The texts of treaties entered into by Australia are tabled as government documents. This was to have been done at least 12 sitting days before ratification or accession, in accordance with an undertaking given by the government in 1961.
Treaties may be considered in accordance with the same procedures as apply to other government documents.
Australian governments consider that the making of treaties is a matter for the executive government and does not require approval of the Parliament. This contrasts with the situation in the United States of America, where the President requires the advice and consent of two-thirds of the Senate before making a treaty. In Britain treaties are not ratified until 21 days after the text is laid before Parliament, although the government may modify this procedure in cases of urgency or when other important considerations arise.
Treaties may be incorporated or referred to in legislation where their provisions are to be applied as part of the law of Australia.
Over many years efforts were made in the Senate to strengthen parliamentary scrutiny of treaties. These efforts bore some fruit in 1996.
A notice of motion was given in the Senate in 1983 by Senator Harradine for the establishment of a Senate standing committee to consider and report in respect of treaties:
- whether Australia should undertake to be bound by that treaty if that treaty is not already binding upon Australia, and
- the effect which Australia’s being bound by that treaty has or would have upon the legislative powers and responsibilities of the Australian States.
This motion arose from concern about the scope of the external affairs power under section 51 of the Constitution, and the power of the Commonwealth Parliament to legislate to enforce treaties entered into by the government, as interpreted by the High Court in Commonwealth v Tasmania (1983) 158 CLR 1. The motion to establish the committee was not moved, but a notice in the same terms was given in each session after 1983. The tabling of 36 treaties on 30 November 1994 led to a debate on the need for some more formal means of scrutiny of treaties by the Senate. The establishment of a committee to scrutinise treaties was then under consideration by senators. The treaties tabled on that day included those under negotiation or active consideration for Australia.
Concern about the lack of parliamentary scrutiny and control of treaties culminated in a comprehensive examination of the subject and a report by the Legal and Constitutional References Committee in 1995. After the 1996 general election, the incoming government responded favourably to the committee’s report and agreed to table treaties in both Houses before ratification, establish a treaties council for consultation with the states, and move for the establishment of a joint committee for parliamentary scrutiny of treaties. The joint committee was subsequently established. These measures fell short of provision for parliamentary approval of treaties.
For a select committee on a treaty, see the Select Committee on the Free Trade Agreement between Australia and the United States.
It has been suggested that the Parliament could legislate to provide that treaties not enter into force in respect of Australia until approved by each House. In 1994 Senator Bourne introduced the Parliamentary Approval of Treaties Bill which would provide for treaties to be approved in the absence of any parliamentary action or, if raised for consideration in either House, by resolution of that House.
The Senate Foreign Affairs, Defence and Trade References Committee, in its report Voting on Trade, suggested a scheme of parliamentary involvement in negotiation of trade agreements and procedures for approval by both Houses of such agreements.