With the signing of the Malaysia-Australia Free Trade Agreement, we can now actually discover what the government has negotiated on our behalf and start trying to determine its impacts in sensitive areas such as palm oil labelling and logging. The agreement is accompanied by side letters agreeing that environmental issues will be left to the Trans Pacific Partnership talks (which the letters appear to commit the government to agreeing to).

Like the TPP, the MAFTA has been negotiated in secret and we only get to see it once it is signed. The treaty will be referred to the Joint Standing Committee on Treaties and will also require legislation; under changes by the Howard government introduced in 1996 based on an election commitment designed to exploit concerns about the Keating government’s defence treaty with Indonesia, the role of Parliament in examining treaties was strengthened, but constitutionally Parliament has no role; treaty-making is entirely a matter for the executive.

The secret nature of the TPP negotiations, in which the US is attempting to impose draconian surveillance and civil liberties restrictions in the name of copyright enforcement, has drawn extensive criticism. Locally, DFAT officials have conducted “stakeholder consultations” in an effort to avoid the sort of criticisms directed at the government over the Anti-Counterfeiting Trade Agreement.

In fact secrecy is the wrong word for treaty negotiations; knowledge of them is rarely confined to government — affected business groups and, occasionally, some NGOs are consulted during the course of negotiations on a confidential basis. The reason we know about the appalling American IP proposals contained in the TPP is because a draft of the IP chapter was leaked after the US government consulted with the copyright industry, which runs US copyright policy in its own interests. As usual, the issue isn’t about needing to needing to keep negotiations secret, just keep them secret from the public.

Treaty negotiations should thus be more accurately called “non-public”. Why are they non-public? As a US academic noted in a paper on the costs and benefits of secrecy in treaty negotiation, the need for secrecy tends to be asserted by governments and diplomats, rather than convincingly argued for — that was why Craig Emerson’s essential argument about the secrecy of the MAFTA was because “it’s always done this way”. The non-public nature of treaty making, particularly when the motives of one participant are under serious question, prompts the criticism that the resulting agreements are “undemocratic”.

As the Koremenos paper shows, opinion is divided about the benefits and costs of treaties when considered from a variety of perspectives such as economics and game theory. Some hold that transparency is beneficial for negotiating governments and for the electorate. Others hold governments benefit from secrecy but the public does not. Koremenos’ conclusion was that public treaty-making would lead to worse outcomes from a national interest point of view by allowing a variety of stakeholders to influence the negotiation process, yielding sub-optimal outcomes.

The conviction that treaty making must be secret forms part and parcel of the effort by diplomats and the foreign policy establishment to argue that foreign policy needs to be conducted in a different manner to other forms of public policy, without the basic transparency and accountability that is expected of government activities. This bland assertion that “foreign policy is different” sustained a crippling blow from WikiLeaks’ release of the US diplomatic cables, which demonstrated that foreign policy is exactly the same as domestic policy — bureaucratic, focused on serving the needs of favoured corporations, conducted in a fog of gossip and speculation.

And as the WikiLeaks releases and the leaking of the TPP IP chapter demonstrate, it is becoming increasingly difficult to maintain strict government information hierarchies: digitisation has made vast amounts of documents easy to distribute, and the process of selective consultation with “key stakeholders” provides ample opportunity for controversial sections of treaties to be released, and released devoid of context or explanation. Governments are now caught adhering to an 18th-century diplomatic process using 21st-century tools.

It’s time to abandon non-public treaty making and let citizens see what the diplomats are doing before the results of their work are presented to us as a fait accompli.

Peter Fray

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