Treaty-Making Options For Australia


Current Issues Brief 17 1995-96

Susan Downing
Law and Public Administration Group

Contents


Major Issues

In its recent decision in Minister for Immigration and Ethnic Affairs v Teoh, the High Court held that the Executive's ratification of an international convention created a legitimate expectation that the Executive Government and its agencies would act in conformity with that convention.

The United Nations Human Rights Committee (the UNHRC) communication in Toonen v Australia unanimously found that Australia had breached its international obligations under the International Covenant on Civil and Political Rights. The Commonwealth Parliament enacted legislation to override the offending State legislation.

These two decisions have fuelled debate on Australia's current system for entering into treaties. Criticism of the present system has primarily concentrated on the perceived lack of public or parliamentary scrutiny of the international instruments that the Executive Government signs and ratifies. Concern has been expressed about Australia's perceived loss of sovereignty (1), given that in some cases international tribunals can comment on matters that previously fell within domestic law. In the Toonen case an individual was able to have a grievance heard by the UNHRC. The contrary argument to this is that the act of entering into a treaty is an act of sovereignty itself. (2)

There has also been the suggestion that the continual use of the treaty-making process to increase the legislative powers of the Executive Government, beyond its express constitutional powers, will lead to the erosion of the federal system and the 'extinction' of the States. The Senate Legal and Constitutional References Committee has conducted a review of the external affairs power (in the context of treaty-making) and tabled a report with a number of recommendations entitled: Trick or Treaty? Commonwealth Power to Make and Implement Treaties.

On 10 May 1995 the Minister for Foreign Affairs, Senator Evans, and the Attorney-General Mr Lavarch issued a joint statement clarifying the Government's understanding of the effect of entering into an international treaty. The statement made it clear that the Government did not intend the act of entering an international treaty to confer any expectation that government decision-makers would act in accordance with the treaty in the absence of implementing domestic legislation. This was followed on 28 June 1995, by the Government introducing the Administrative Decisions (Effect of International Instruments) Bill 1995 into the House of Representatives. The Bill is designed to override the above High Court Teoh decision. [For a discussion of the ramifications of this Bill see Bills Digest No 115/95 by Dr Max Spry.]

The Senate Legal and Constitutional Legislation Committee tabled its report on the Administrative Decisions (Effect of International Instruments) Bill 1995 on 28 September 1995. The majority recommended that the Bill be enacted, so as to preserve what was seen as the status quo before the Teoh decision. The recommendation was that once a 'review into the impact of treaties on administrative decision making' was complete, the legislation 'should be revisited and assessed.'

The External Affairs Power and the Treaty-Making Process

Introduction

Instruments of international law are increasingly dealing with more complex issues and matters of global concern. The sorts of issues now covered include the protection of human rights, the use of global resources and the prevention of environmental damage. The protection of these sorts of rights and resources at the international level depends upon the co-operation of individual nations (called 'states'). The mechanism for achieving this degree of international co-operation generally involves setting out the agreed terms in the text of a multilateral treaty. Once individual states have signed and ratified the treaty they are under a legal obligation to comply with its terms. Therefore, these instruments are becoming increasingly important in international law and for individual states such as Australia.

The constitutional system in Australia enables the Executive Government to commit Australia to treaties at the international level. The External Affairs power in the Constitution [section 51(xxix)] then enables Parliament to enact legislation that may otherwise be outside its legislative power. Concern has been expressed about this system and a number of proposals have been suggested for reform. This paper examines the advantages and disadvantages of each of the reform proposals. The paper does not comment on the merits of change but attempts to reflect on the current mechanism for entering into treaties and explores some of the options available should any change be required, nor does it address the formalities of treaty-making. The latter can be found in 'Procedure and Practice of Entering and Implementing International Treaties' by Anne Twomey, Current Issues Paper, Parliamentary Research Service, No 27 of 1995.

Customary International Law

International law is characterised by its consensual nature and is quite different from domestic legislation. The enforcement of international law is difficult and is frequently achieved by political mechanisms rather than strictly legal mechanisms. Generally rules of international law are identified by two factors. One is the actual state practice (ie where states are consistently following a particular practice in their relations) and the other is the intention of states to be bound by the practice. If there is a practice that is so commonly followed by states and if, when following the practice, states demonstrate that they consider themselves bound by the practice, then it will become a rule of customary international law. In other words, customary international law is the set of general principles that are so widely accepted and adhered to by the majority of states that they have become binding. Once a practice of states gains this widespread acceptance it will crystallise into a rule of international law or a 'customary international norm'.

Australia's Current Mechanism For Entering Into Treaties

As a sovereign state, Australia is able to conclude treaties with other states and other states clearly recognise that the Australian Government alone is able to conclude valid treaties with other states. The legal foundation for this is the Constitution. Whilst there is no explicit power to conclude a treaty in the Constitution, the High Court, in R v Burgess, has interpreted section 61 of the Constitution as containing the power to conclude treaties with other countries. (3) Once a treaty is concluded, section 51(xxix) allows Parliament to make laws implementing the terms of the treaty in order to fulfil our international obligations arising under it.

The High Court, in Teoh, made it clear that in general, implementing domestic legislation is required. The majority of the High Court held that:

The provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been incorporated into municipal law by statute and cannot operate as a direct source of individual rights and obligations under that law. (4)

The High Court did not, however, say that international treaties have no effect in the absence of domestic legislation. In fact, the majority held that whilst ratified international treaties could not operate as a direct source of individual rights and obligations, the act of ratification was a positive statement by the Executive Government. The act of ratification was held to be sufficient foundation for individuals to have a legitimate expectation that the Government decision-makers would act in conformity with the treaty. (5) In addition, treaties have often been used by Australian Courts to assist in resolving ambiguities in legislation and to assist in developing the common law.

The Practical Effect Of The Treaty-Making Process

The Executive has the power to conclude treaties and is not obliged to liaise with any other body prior to exercising this power. No formal consultation with, or endorsement by the Parliament, the States, Non-Government Organisations (NGOs) or the public is required. In practice there is usually some degree of consultation. Treaties, with the exception of International Labour Organisation (ILO) Conventions, are tabled in Parliament twice a year in batches. ILO Conventions are tabled as soon as possible after the text is finalised (6). The timetable for non ILO treaties does not always allow treaties to be tabled prior to their entry into force or prior to their ratification. (7) Therefore, it would be safe to say that, at least until 21 October 1994, it was not the Executive's invariable practice to seek Parliamentary approval prior to signing a treaty. On 21 October 1994 Senator Gareth Evans and the Attorney-General Michael Lavarch issued a press release indicating that treaties will be tabled prior to ratification wherever possible:

The Government will supplement this information flow by now tabling, wherever possible, all treaties, other than sensitive bilateral ones, before action is taken to adhere to them. We will also take steps to increase the possibility of participation by Members of Parliament on various treaty negotiating delegations. (8)

Having become a party to the treaty, the Government is then able to rely upon the external affairs power in section 51(xxix) of the Constitution to give it the legislative power to enact implementing legislation. This is not an unlimited legislative power though. For example, in the Tasmanian Dam Case Mason J (as he then was) held :

I reject the notion that once Australia enters into a treaty Parliament may legislate with respect to the subject-matter of the treaty as if that subject-matter were a new and independent head of Commonwealth legislative power. The law must conform to the treaty and carry its provisions into effect. (9)

If this were not the case then the use of the external affairs power in this fashion could, in theory, lead to the extinction of State's rights. Given that there are few restrictions on the treaties that the Executive may conclude, without the above limitation, the Commonwealth's powers would be infinite. This is expressed by Stephen J in Koowarta v Bjelke-Petersen:

If it [the federal Executive] can thereby at will create such "external affairs" as it wishes and if par. (xxix) then confers power upon the federal legislature to legislate with respect to whatever external affair has thus been brought into being, this may place in jeopardy the federal character of our polity, the residuary legislative competence of the States being under threat of erosion and final extinction as a result of federal exercise of the power which par. (xxix) confers.

There is also a view that, in the absence of a treaty, the legislature has the power to enact laws that are rules of customary international law notwithstanding that there is no express power in section 51 of the Constitution. (10) This view has not been tested but it may be possible that legislation could be enacted implementing a rule of customary international law, that would not be found to be unconstitutional despite not being covered by an express constitutional head of power. If this view is correct, then perhaps an amendment to the Constitution would be required to restrict this power. This option is discussed below. Even without a treaty obligation, if there is a binding international obligation or if the matter relates to 'other nations or to things external to Australia,' (11) or to a matter of international concern (12), then the external affairs power may extend to allow the legislative government to enact implementing domestic legislation. (13)

The legislative framework for implementing international treaty obligations can, of course, be either State or Commonwealth legislation. The case of Toonen illustrates that the Commonwealth is reluctant to override a State's laws without first giving the State the opportunity to amend its legislation. (14) However, given that by entering into a treaty the Commonwealth is binding Australia, it seems arguable that great care should be taken to identify existing State and Territory laws that are incompatible with the treaty obligations. The States are generally dissatisfied with the level of consultation with the Commonwealth prior to a treaty. (15)

In fact, the Senate report on this issue (16) made recommendations specifically aimed at increasing the level of consultation with interested groups (recommendation 6) and with the State governments (recommendation 7). The latter, could be done by way of the establishment of a Treaties Council. This option was one of the recommendations put forward by the 1984 Australian Constitutional Convention. The major options available to the Government, if any change to the present system were contemplated, are discussed below.

Options Available To The Australian Government Re: Treaty-Making

The general procedure for entering into multilateral treaties is that countries will negotiate the text of a treaty, sign it and then later ratify it. The significance of a State's signature to a particular treaty can vary from merely authenticating the agreed text of the treaty to immediately placing that country under an obligation to act in good faith (ie take steps towards ratification and not act inconsistently with the treaty in the interim (17)). The High Court, in Teoh, held ratification to be a positive statement by the Executive Government to the world that Australians, the Australian Government and its agencies will act in compliance with the treaty. (18) This reflects the difference in international law between signature and ratification, with the latter being regarded by states as a much more formal and binding act.

On 10 May 1995, a joint statement was issued by the Minister for Foreign Affairs, Senator Evans and the Attorney-General, Michael Lavarch, seeking to clarify the Government's position. This stated that:

...entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law. It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treaty not incorporated by legislation should be applied by decision-makers. Any expectation that may arise does not provide a ground for review of a decision. This is so, both for existing treaties and for future treaties that Australia may join. (19)

Although the Government's position is that ratified treaties have limited effect (20) until implemented by domestic legislation, the act of ratification is treated as binding under international law. Therefore, there is a discrepancy between the international and the domestic effect of ratification. At the international level, Australia is bound and yet at the domestic level, the above joint statement asserts that Australian citizens cannot expect ratified but unimplemented treaties to be applied by decision makers. Given the different status ascribed in international law to the acts of signature and ratification, the options for regulating Executive action prior to signature and between signature and ratification are covered under separate sections below.

Parliamentary Approval Prior to Signature

This option involves the Executive obtaining Parliamentary approval of the text of an international treaty prior to signature. It is arguably the most simple method of increasing the scrutiny of treaties prior to execution.

In order to achieve this option, Parliament could either enact legislation making Parliamentary approval a prerequisite to signature or it could reinstate formally a variation of the 'Ponsonby Rule'. The Ponsonby Rule is a convention adopted initially by the British Government, whereby treaties are tabled in the House of Commons between signature and ratification. After 21 days, if there has not been a Parliamentary motion passed disapproving ratification of the treaty in question, the treaty may be ratified. Australia could require treaties to be tabled prior to signature with provisions for disapproval within a set period of time. The option of legislating to require Parliamentary approval prior to signature would be within the Parliament's constitutional power. One view is that:

...the Commonwealth Parliament does have the constitutional power to enact legislation imposing a requirement of prior parliamentary consent before the Executive enters into treaties. However this power would not extend to an assumption by Parliament of the basic role of the Executive in concluding treaties or to legislation which effectively prevented the executive from carrying out its treaty negotiation or treaty-making role (21).

The latter option, of reinstating a variation on the Ponsonby rule, could incorporate a system whereby only if the text of a treaty was specifically objected to would Parliamentary approval be withheld.

Benefits

One advantage of the proposal is that if the Executive gets approval in advance of negotiating a treaty (rather than trying to obtain approval afterwards) then, from an international perspective, Australia will gain by being able to quickly ratify and implement treaties that it has signed. In some cases, the implementing legislation may even be in place by the time that Australia signs the treaty which will smooth the process considerably.

Another advantage is that contentious provisions can be identified and, if necessary, have reservations (22) placed upon them. There would also be an opportunity to obtain greater input from the public and interested groups which may lead to greater community support for any legislation enacted pursuant to treaty obligations. (23) An increase in the amount of public consultation and debate prior to signature/ratification of a treaty should create a greater community acceptance of treaties being a source of domestic law.

Australia would benefit from having the possible ramifications on Australia's domestic legislation and administrative processes identified prior to signature and from having more informed debate upon the advantages and disadvantages of various treaties before Australia is committed.

The Executive would be more accountable to Parliament for the treaties it signed. This process would allow those outside the Executive an earlier opportunity to identify concerns and comment upon them. This may have the effect of lessening the concerns of the States that the Executive is identifying and signing International treaties that increase the legislative's powers and consequently erode Australia's Federal system, although the States may take a contrary view and argue that their interests are not always protected. For example, following the Toonen case, Parliament enacted legislation designed to override the existing Tasmanian legislation. (24) This may enhance the perception that Australia's treaty-making process is a democratic one.

Drawbacks

A major disadvantage of this mechanism is that any delay in approval of a treaty may impair or extinguish Australia's role in influencing and negotiating the terms of the actual text. This is quite a significant disadvantage as the more contentious provisions of the multilateral treaties are negotiated quite thoroughly and over considerable periods of time before the final text of the treaty is opened for signature. Since Australia could not obtain Parliamentary approval of the text of the treaty until the final stage, Australia's effectiveness at the negotiations stage may be weakened. Taken to extremes, the situation may eventuate whereby Australia negotiates for a particular draft of text and then fails to obtain parliamentary approval of the same text.

A practical problem would be that negotiations for multilateral treaties tend to be conducted in several sessions over a period of time. It would be quite difficult to circulate draft texts and obtain comments in the time that negotiations are taking place.

Another disadvantage is that there will be less freedom for the Executive to negotiate and execute treaties. Possibly, obtaining rapid Parliamentary approval may be difficult for 'urgent' treaties (25) (or conceivably for security reasons) and would undoubtedly cause delays. There are some cases where wide scrutiny may prejudice treaty negotiations, for example, where the material being negotiated is commercially sensitive and the other contracting state does not want the material released.

As a consequence, Australia may be less well regarded as an international good citizen if it delays in signing important treaties.

Perhaps one other consideration is the argument that any necessary implementing legislation has to be passed by both houses anyway and therefore a de facto parliamentary approval is given at that time. The problem with this argument is that at the international level, Australia is already bound and therefore there is considerable pressure upon the Parliament to enact the domestic implementing legislation.

Making Parliamentary Approval A Prerequisite For Ratification

This option would involve Australia announcing that signature to a particular treaty was not binding until the instrument had been ratified. Then the Executive would seek Parliamentary approval of the text of the treaty and, if appropriate, ratify the treaty at a later stage. Examples of other states that have adopted this sort of process include the United States of America (which requires a 2/3 majority in the Senate (26)), the Netherlands, Argentina and Italy. A more detailed summary of the practice in some other federations is provided in the Appendix to this paper.

Benefits

This overcomes the problem of Australia being handicapped during the negotiation process that may occur with requiring Parliamentary approval prior to signature. The above advantages are equally applicable under this proposal, namely greater accountability of the Executive, more scrutiny of treaty texts prior to them having effect in Australia and arguably a more democratic procedure for treaty-making.

Drawbacks

One disadvantage is that there may be a delay between signature and ratification which leaves treaties 'in limbo'. Since parliamentary approval has not been obtained on the treaty text it is conceivable that objection might be taken to provisions in the treaty. However, the treaty would already have been signed and it may be difficult to subsequently enter a reservation, since these are generally done at the time of signature. If ratification is not given then there is a practical problem of what status the unratified treaty text has. Former Prime Minister Whitlam is strongly of the view that there should be consultation with the States prior to ratification but there should be a time limit set. (27) Justice Evatt does not favour making Parliamentary approval a precondition for ratification of treaties. (28) In general, delays between signature and ratification are undesirable.

The other disadvantages listed above are equally relevant here. They include a curtailing of the freedom of the Executive to enter into treaties and a possible loss of Australia's reputation as a good international citizen.

A Treaties Council

One of the ways in which this proposal could be implemented is to follow one of the recommendations made by the Australian Constitutional Commission in 1988, namely to establish a Treaties Council. This recommendation was also made by the 1984 Australian Constitutional Convention. A Treaties Council would be composed of persons with knowledge and experience in international law and inter-governmental relations. Treaties would be sent in draft form to the Treaties Council, who would then be in a position to circulate them and obtain comments from interested groups and members of the public. The Treaties Council would also look at implementation of the treaty and would confer with the States before reporting back to Parliament.

On 30 October 1994, the then Leader of the Opposition, Mr Alexander Downer MP, announced that the Coalition proposed to establish a Treaties Council. (29)

Some academics, led by Professor Hilary Charlesworth, advocate a similar proposal:

We favour a consultative process established by the standing orders of the Parliament to the effect that the Government consult with a Parliamentary standing committee in respect of all treaties that require or contemplate eventual legislative implementation. In the present scheme of things, this would be a Senate Committee, but it need not be. The constitutional justification for this new process would be the power of the Parliament, in a system of responsible government, to keep itself informed of Executive practice in matters affecting its confidence. (30)

While others argue that it is unnecessary given the present procedures. (31)

There is also an issue as to whether the Treaties Council would be able to make binding recommendations to Parliament or whether they would merely be recommendations to be considered. Professor Cheryl Saunders argues that:

...if the two Houses of the Commonwealth Parliament were to assume a role in relation to the ratification of international agreements, there is no reason why the views of Australian Heads of Government, expressed through the Council of Australian Governments or a modified Treaties Council, should not be one of the matters to which the Parliament expressly has regard, at least where the agreements in issue have particular relevance to the states. (32)

Benefits

The presence of a Treaties Council should promote wider dissemination of treaty texts which in turn should promote greater public debate and consultation. Certainly there would be increased scrutiny of treaties prior to Australia being bound than currently exists.

The Treaties Council would be in an informed position and would be able to make recommendations to Parliament regarding treaty texts being considered by the Executive Government.

Drawbacks

The disadvantages are again that this would: curtail the freedom of the Executive to negotiate and sign treaties; cause some delays in the process of treaty-making; duplicate some of the existing, informal procedures for consultation.

Tabling Of Treaties Prior To Ratification

Parliament could legislate to require treaties to be tabled after signature but prior to ratification. In theory, the Executive already follows this procedure which is called the Ponsonby Rule. However, in practice there is often little opportunity for Parliamentary debate and until the 21 October 1994 when the Government changed its practice, ratification had already occurred before the treaty was tabled.

One outcome of adopting this sort of procedure is that it would change the status of ratified treaties in Australian domestic law. Justice Evatt is of the opinion that the more parliamentary involvement you have prior to ratification the more likely it is that a treaty will be self-executing once ratified, although of course an amendment to the Constitution would be required in Australia to achieve this. By self-executing, Justice Evatt is referring to the possibility that the treaties will be part of Australian domestic legislation without implementing legislation. (33) She also expressed the view that the tabling of treaties would keep the Parliament informed of trends and developments in international law. (34)

Amend The Constitution To Redefine The External Affairs Power

This would involve approving the text of a redefinition of the External Affairs power and then submitting that text to a referendum. If approved then the Constitution could be amended to restrict the operation or extent of the External Affairs power.

This issue has been canvassed by the Constitutional Commission in their 1988 report. (35) In that report, the majority of the Commission were in favour of leaving the External Affairs power intact. The majority included prominent constitutional lawyers such as Sir Maurice Byers, Professor Campbell and Emeritus Professor Zines.

Benefits

If it were possible to suitably redefine the External Affairs power then the advantage would be that the Government would no longer have the legislative power to enact legislation that is otherwise unconstitutional.

Drawbacks

An amendment to the Constitution of this type does not prevent the Executive from entering into international treaties and committing Australia. It merely prevents Parliament from enacting federal implementing legislation that would otherwise be unconstitutional. Therefore, the amendment would not answer the criticisms of the current system where Australia can be bound without Parliamentary involvement.

Perhaps the greatest difficulty with this proposal is that it is very difficult to agree on a suitable amendment that guarantees to redefine the External Affairs Power to promote certainty in its scope whilst maintaining the balance between State powers and Federal powers. Quite clearly, the External Affairs power is one of the fundamental powers in the Constitution and it is necessary for the Government in power to have some sort of authority to deal with matters external to Australia. Without such a power, Australia would have difficulty functioning as a sovereign state at the international level.

Even if a suitable redrafting of the External Affairs Power were to be agreed upon, there are other arguments against utilising this mechanism to alter the treaty-making procedure. For example, there is an argument that for the Commonwealth to enact legislation implementing treaty obligations is more efficient in terms of resources than for each State and Territory to enact its own legislation. To quote Sir Anthony Mason:

Conduct of international affairs would be a nightmare if legislative implementation of Australia's treaty obligations were to become a matter for each State to decide. (36)

Although of course a number of Australia's treaty obligations are left to the States to implement and so in practice there is a degree of State autonomy.

The option of redefining the External Affairs power does not seem to attracted much academic support. (37) For example, Professor Winterton says:

...greater participation in treaty-making and implementation by the Commonwealth Parliament, State and Territory governments, and the general public should be encouraged, and secured by institutional mechanisms established, if necessary, by Commonwealth legislation. Only if such political constraints have been given a fair trial and proven inadequate to address the States' reasonable concerns should constitutional amendment be contemplated. (38)

Apart from the above considerations, the practical difficulty with this option is that, from an historical perspective, proposed changes to the Constitution have been largely unsuccessful when put to a referendum. Of the forty-two proposals for amending the constitution put to a referendum since Federation, only eight have been accepted. A further two proposals (relating to military conscription) were also rejected. (39)

Conclusion

The increasing range of international multilateral instruments covering important and universally recognised areas of human rights, environmental protection and the division of global resources are clearly intended to benefit humanity. Australia gains benefits from aspiring to the sorts of ideals that are contained in those instruments. Nevertheless, the underlying principle that the Executive should not be able to increase its constitutional powers by ratifying instruments is a serious consideration. Clearly there has been a degree of concern expressed on this issue. This paper presents the options available if a change to the current system were contemplated. All options have their advantages and their disadvantages. However, it seems as though the reinstatement of the Ponsonby Rule would be the simplest method and the establishment of a Treaties Council would facilitate the most community discussion. Care would need to be taken not to interfere with Australia's role in the negotiation process of major international treaties. Also, delays between signature and ratification should be avoided where possible. There is also an argument for adopting a separate regime for those treaties that deal with human rights or matters of an urgent nature, in order to avoid delays. Whether or not any change to the current system is required is really a political issue and whatever the outcome, Australia should hope to maintain its international reputation and strive to have the best possible domestic legislation.


Appendix: An Overview Of The Practice Of Other Federal Countries

United States

The American Constitution makes external affairs an exclusively federal power. The President is able to conclude foreign treaties with the advice and consent of the Senate. Ratification of foreign treaties is a legislative act. Article 2 of the US Constitution requires 2/3 of the Senate to endorse a treaty prior to ratification. However, once such treaties are ratified article VI (2) states that they become part of the 'supreme Law of the Land' and equal to acts of Congress and even to the Constitution itself.

Only those treaties which clearly create rights/obligations are self-executing (40). A self-executing treaty is one that is sufficiently clear and precise in its terms that courts can apply it as if it were a statute. If a given treaty is not sufficiently clear and precise then domestic implementing legislation will be required. Interestingly, Congress is able to subsequently alter or repeal a treaty. This leads to the bizarre situation whereby Congress can repeal a treaty but the United States as a whole remains accountable to other treaty parties! The American system has not always worked smoothly with some extensive delays between signature and ratification resulting in treaties hanging in limbo for many years.

If Australia adopted a system of parliamentary ratification (41) then the treaty would become law upon ratification by Parliament. A change to the Constitution would be required to achieve this. For example, If we had to implement a similar system, we would need to amend the Constitution, as currently only a simple majority is provided for (section 23 and section 40 of the Constitution). Alternatively, Parliament could enact legislation requiring a simple majority to approve a treaty text without any amendment to the Constitution being required.

The Federal Republic of Germany

Once again, treaty-making is essentially a federal act with the President concluding treaties on behalf of the Federation. Notwithstanding this, the 1957 Lindau Agreement gives the German States the power to conclude their own treaties provided that the consent of the Federal Government is obtained. The Federal Republic of Germany has something akin to a Treaties Council: a Permanent Treaty Commission. The Commission was established under the Lindau Agreement and scrutinises the negotiation, signature and ratification of treaties. Those treaties that deal with matters of federal importance require the consent of Parliament prior to ratification.

Canada

The Executive Government does not have a specific constitutional power to enter into treaties, however, it inherited this power at the time of Canadian independence from Great Britain. Under the Constitution, the Parliament and Government of Canada is given all powers necessary or proper to perform treaty obligations. This is roughly equivalent to Australia's section 51(xxix) although possibly more far-reaching. There is no Treaties Council equivalent.

Generally speaking, it has been the Canadian Government's practice to seek Parliamentary approval of important multilateral treaties between signature and ratification. In Canada, as is the case in Australia, treaties only have domestic effect when implementing legislation is enacted.

Other Countries

The Netherlands require parliamentary approval for ratification. Parliaments that have the power to give consent subject to reservations include Brazil, Germany, the Netherlands and Switzerland. In the case of Switzerland, different categories of treaties are treated differently. Some are put to a referendum, either optional or compulsory depending upon their nature. The more important treaties must be approved by the Federal Assembly even though the executive has the power to conclude them.


Endnotes

  1. For example see Sir Ninian Stephen's paper presented at the Sir Earle Page Memorial Trust Lecture, reported in Australian Lawyer March 1995 at p13.
  2. Shearer, I.A. The Growing Impact of International Law on Australian Domestic Law - Implications for the Procedures of Ratification and Parliamentary Scrutiny (1995) ALJ Vol 69:404 at p405.
  3. See R v Burgess; Ex Parte Henry (1936) 55 CLR 608 per Latham CJ at 644.
  4. Per Mason CJ, Deane and Toohey JJ in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 at p354.
  5. Per Mason CJ, Deane and Toohey JJ in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 at p354. C/f the introduction into the House of Representatives on 28 June 1995 of the Administrative Decisions (Effect of International Instruments) Bill 1995.
  6. Article 19 (5) of the ILO Constitution requires each state to refer the final agreed text of a convention promptly to that state's competent authority. In Australia's case, the Department of Industrial Relations takes responsibility for complying with Article 19 (5) by tabling the Conventions before Parliament and therefore they are dealt with separately from other treaties.
  7. In fact, Senator Evans stated that 'Tabling treaties is not intended to be an exercise in ascertaining Parliament's views about whether or not Australia should become a party.'
  8. Press release (Minister for Foreign Affairs), M134, 21 Oct.1994.
  9. The Commonwealth v Tasmania. The Tasmanian Dam Case (1983) 158 CLR 1 per Mason J at p131.
  10. Renowned constitutional lawyer Emeritus Professor Zines is of this opinion. See Zines, L. The High Court and the Constitution (3rd Ed) p 254.
  11. The Commonwealth v Tasmania. The Tasmanian Dam Case (1983) 158 CLR 1 per Gibbs CJ at p98.
  12. Per Stephen J in Koowarta v Bjelke-Petersen (1982) 153 CLR 168: "...the quality of being of international concern remains, no less than ever, a valid criterion of whether a particular subject-matter forms part of a nation's "external affairs"."
  13. Ibid. Also see Staker, C, in Saunders, C (ed), Laws of Australia: Government, Title 19, (1994) at 173-80;
  14. Opeskin, B and Rothwell, D, The Impact of Treaties on Australian Federalism (1995) Case W. Res. J. Int'l.L. Vol 27:00 1 at 54.
  15. Joint Submission of the States and Territories, (No. 107) to the Senate Committee on Legal and Constitutional Affairs, Hansard Vol 6, pp1331-4.
  16. Senate Legal and Constitutional References Committee Report November 1995: Trick or Treaty? Commonwealth Power to Make and Implement Treaties.
  17. See Greig, D. International Law (2nd Ed) 1974 p463.
  18. Per Mason CJ and Deane J in Teoh's case. It was held by the majority in that case that Australia's ratification of the United Nations Convention on the Rights of the Child created a legitimate expectation (not necessarily an actual expectation although there was a dissenting opinion on this point) in Mr Teoh that the decision-maker would conform to the provisions of the convention when exercising their discretion.
  19. Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General, Michael Lavarch of 10 May 1995.
  20. The Minister for Foreign Affairs, Senator Gareth Evans, indicated that the Government accepts that ratified but unimplemented treaties can affect Australian law:
    The courts have traditionally used treaties to which Australia is a party in a limited way - to resolve ambiguities in legislation, and as a guide in developing the common law...particularly where a treaty declares universal fundamental rights...
  21. See Henry Burmester's opinion to the Senate Committee on Legal and Constitutional Affairs of 13 June 1995.
  22. Reservations are formal declarations which may be made by a state (usually at the time of signature) regarding some treaty provisions. The reservation might be, for example, that the state does not agree to a certain provision or interprets an obligation in a particular way. Reservations are not permitted if their effect is to undermine the treaty as a whole and not all treaties allow reservations to be made.
  23. One way of implementing this and achieving a greater degree of public support would be to legislate to establish a Standing Parliamentary Treaties Commission. The Commission would then disseminate draft treaties (through Government bookshops) and obtain public comment.
  24. The Human Rights (Sexual Conduct) Act 1994 was enacted to override the provisions of the Tasmanian criminal code which were found by the United Nations Human Rights Committee to breach article 17 of the International Covenant on Civil and Political Rights. For further details see: Twomey, A., Strange Bedfellows: The UN Human Rights Committee and the Tasmanian Parliament, PRS Current Issues Brief No. 6 of 1994.
  25. An example of a recent treaty that was negotiated and concluded urgently is the Bougainville Treaty. The whole process took only a few days and (arguably) if the Executive had had to seek Parliamentary approval prior to signature the timetable could not have been kept.
  26. Article 2 of the US Constitution requires 2/3 of the Senate to endorse a treaty prior to ratification. The American system has not always worked smoothly with some extensive delays between signature and ratification resulting in treaties hanging in limbo for many years.
  27. In his submissions to the Senate Legal and Constitutional References Committee on 16 May 1995. Hansard p374.
  28. See the submission of Justice Evatt to the Senate Standing Committee on Legal and Constitutional Affairs, Hansard v 7 p1411.
  29. The full proposal is set out in: Williams, D Australia's Treaty-Making Processes: The Coalition's Reform Proposals (1995) published in Treaty-Making and Australia. Globalisation versus Sovereignty? (1995) Ed. Alston and Chaim.
  30. The submission from Professor Hilary Charlesworth, Jane Cox, Michael Detmold, Chris Finn and Rosemary Owens (University of Adelaide Law School) to the Senate Standing Committee on Legal and Constitutional Affairs, Hansard v 5 p1022.
    Also, Justice Evatt was in favour of the establishment of an Australian Treaties Council with non-binding powers in respect of the ratification and implementation of treaties. See her submission to the Senate Standing Committee on Legal and Constitutional Affairs, Hansard v 7 p1416.
  31. For example, Henry Burmester's opinion to the Senate Committee on Legal and Constitutional Affairs at p718:
    The Attorney-Generals Department believes that the existing mechanisms for consulting the States and the Territories and industry on treaty matters are satisfactory. However, there is no doubt that the States do not avail themselves fully of the consultation process - for example they could make greater use of the Commonwealth-State Standing Committee on treaties.
  32. Saunders, C Articles of Faith or Lucky Breaks? The Constitutional Law of International Agreements in Australia Syd. Law Rev. v 17(2) June 1995 150-176, at 166.
  33. Justice Evatt's submissions to the Senate Legal and Constitutional References Committee on 16 May 1995. Hansard p380.
  34. See the submission of Justice Evatt to the Senate Standing Committee on Legal and Constitutional Affairs, Hansard v 7 p1411.
  35. Final Report of the Constitutional Commission 1988 Vol. 2 at p740.
  36. Mason, A. 'The Australian Constitution 1901-1988' (1988) 62 ALJ 752 at 755.
  37. See the submission from Professor Hilary Charlesworth, Jane Cox, Michael Detmold, Chris Finn and Rosemary Owens (University of Adelaide Law School) to the Senate Standing Committee on Legal and Constitutional Affairs, Hansard v 5 p1019.
  38. Winterton, G. A Framework For Reforming the External Affairs Power (a paper delivered to The Samuel Griffith Society Fifth Conference at Sydney on 1 April 1995).
  39. Parliamentary Handbook of the Commonwealth of Australia (26th Ed) 1993 at p689.
  40. Another example is France. Articles 55 and 56 of the French Constitution give properly ratified treaties immediate application in French domestic law. The treaty is given such status that it supersedes conflicting domestic law and can be applied directly by the courts
  41. Australia would need either an amendment to the Constitution to require parliamentary approval in order to achieve ratification or legislation.
 
 

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