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Chapter 7
Current practices concerning entry into treaties
Role of the Executive
7.1 As noted in Chapter 4, currently the decision to enter into treaties
is made by the Executive and the formal act is given by approval of the
Executive Council. The decision to ratify may or may not involve the approval
of Cabinet. From 1990 to 1994, less than one quarter of international
agreements were subjected to Cabinet approval before being presented to
the Governor-General in Council.[1]
Tabling of treaties in the Parliament
7.2 In 1961, the then Prime Minister announced a practice of tabling
treaties at least 12 sitting days before the Government was to finally
commit itself to the treaty by ratifying it or acceding to it.[2]
7.3 It appears that this practice fell into disuse in the 1970s and is
no longer followed. The present practice is for treaties to be tabled
in bulk every six months. Treaties have often been tabled after they have
been ratified or otherwise come into force, rather than 12 sitting days
before this occurs:
For example, on 30 November 1994, out of the 11 bilateral treaties
tabled, 7 had already come into force. On the same date, out of the
25 multilateral treaties tabled, 16 had already been ratified or acceded
to, and only 9 required further action before coming into effect. Accordingly,
in the case of approximately two-thirds of the treaties tabled, Australia
was already obliged by international law to comply with them before
they were tabled, denying any meaningful kind of Parliamentary scrutiny.[3]
Recent changes to the tabling practice
7.4 In October 1994, the Government introduced further initiatives with
a view to improving the flow of information about treaties to the Parliament.
In a Joint Press Release, the Attorney General and the Minister for Foreign
Affairs and Trade referred to the current practice of tabling treaties
twice yearly together with an explanatory memoranda, and continued:
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. And we will be happy to offer
full briefings on treaties under consideration or negotiation to any
Member or Senator who asks for them.[4]
7.5 During the course of the inquiry, the Department of Foreign Affairs
and Trade also advised the Committee of further improvements to the system
of tabling treaties. The Department informed the committee that a schedule
of multilateral treaties under negotiation, or to which the Government
is considering adhering, is now tabled in Parliament.[5] The Department
advised:
The list of multilateral treaties that are being negotiated (and in
which Australia is participating) and of finalised treaties that the
government's reviewing for possible adherence is based on material collected
for the purpose of the Commonwealth, State and Territory Standing Committee
on Treaties. This information is collected and collated every six months
by the Department of the Prime Minister and Cabinet. As indicated above,
it puts the Parliament on notice that the government is considering
taking definitive action with respect to a treaty.[6]
7.6 The Department of Foreign Affairs and Trade has also stated that
it will advise Parliament when 'definitive' treaty action is to be taken.
For example, while treaties are only to be tabled once, in the case of
a treaty which has a two-stage adherence mechanism (eg. signature and
ratification), a list of treaties where further definitive action is to
be taken will be tabled. The underlying policy is that, if a treaty has
been tabled at any time, the Parliament has had notice of the fact that
the Government may at some stage in the future take definitive treaty
action. The understanding is that the Parliament will make known its views
at the time of tabling or shortly after, although it may return to the
subject at any time of its own choosing. (Any such treaty will almost
always have entered the public domain through the Select Documents
series, which was begun in 1966 at the request of the Parliament).[7]
7.7 The Government has made changes to its practice of tabling international
instruments before action is taken to adhere to them. On 18 October 1995,
the Government tabled a batch of treaties and a list of multilateral instruments
under negotiation or review, amounting to over 100 treaties.[8]
7.8 The Committee notes that in practical terms the Senate is not provided
with enough time in which to consider these documents. This practice could
be improved as there is insufficient time for any thorough examination
of the treaties.[9] Accordingly, the Committee suggests that this issue
could be referred to the proposed joint parliamentary committee on treaties,
recommended in Chapter 15, for its consideration.
7.9 The practice for tabling treaties in the House of Representatives
is different from the procedure followed in the Senate. However, the inadequacy
of the tabling process concerning treaties in the House of Representatives
has also been criticised.[10]
7.10 In the House of Representatives, treaties are tabled under the deemed
tabling provision of standing order 319 which allows papers to be 'delivered
to the Clerk who shall cause them to be recorded in the Votes and Proceedings.
Papers so delivered to the Clerk shall be deemed to have been presented
to the House on the day on which they were recorded in the Votes and Proceedings.'
This deemed tabling procedure operates such that there is no provision
for parliamentary debate on the tabling of treaties.[11]
Bilateral treaties
7.11 An important exception to the early tabling practice are bilateral
treaties which usually come into force upon signature. The Department
of Foreign Affairs and Trade has advised that such treaties will not be
tabled before signature. The Department stated:
Bilateral treaties are not tabled before signature, regardless of whether
a two-stage adherence mechanism is involved (signature and ratification
or signature and exchange of notes bringing the treaty into force).
(It is probably the case that about half our bilateral treaties enter
into force by the one-step process, ie, on signature. Most of these
treaties are minor amendments to existing treaties or new treaties concerning
less important matters. This is not to say that all bilateral treaties
which enter into force through a one-step process are in this category.)
The Government takes the view that all bilateral treaties are "sensitive"
before signature because the international convention amongst countries
is to treat the text of such treaties as confidential until signature.
(The same attitude is taken to the very few trilaterals that we enter
into, such as the Agreement to Ban Smoking on International Passenger
Flights, 1994, the text of which was tabled after signature.) We would
have significant problems in getting general agreement from other countries
to table all bilaterals regardless of content before signature. We have
looked into this issue in a number cases and found that other countries
usually cite the impossibility of getting the different agencies with
an interest in the treaty to agree to "premature" disclosure.
It appears that those countries which have a parliamentary approval
process either treat bilaterals as falling outside the rule or adopt
a practice of always having a two step process and sending a signed
but not yet in force treaty to the legislature.[12]
Explanatory notes on treaties
7.12 The recently announced procedures will not make explanatory notes
available for treaties which were tabled prior to the new procedures.
The Department of Foreign Affairs and Trade has advised that:
Explanatory notes tabled with each treaty are based on the material
submitted to the Executive Council seeking authorisation for the proposed
treaty action. It follows that the Parliament gets basically the same
information as the Executive Council. Where a treaty was tabled before
1995, there will not be a further tabling before definitive treaty action
and so there will not be an explanatory note tabled. (Information about
all tabled treaties is available on request from the Department of Foreign
Affairs and Trade and the Department also publishes in Insight
the name of contact officers in the responsible agencies).[13]
7.13 There does not seem to be any compelling reason why explanatory
notes cannot be provided in relation to treaties which have already been
tabled, but have not yet been ratified. The information should still be
available, because it is necessary to provide the information to the Executive
Council before ratification. Further, it would be of assistance to those
members of the public who wish to obtain an understanding of treaties,
to have access to a statement about the meaning and scope of the treaty.
This issue is discussed further in Chapter 15.
Minimal role for Parliament
7.14 In spite of the announcement concerning the revision of tabling
procedures, currently the federal Parliament has a minimal role in the
processes leading to the ratification of treaties or in the decision to
ratify a treaty. While under existing practices, it would be open for
the Senate to refer a treaty to a Committee, this has rarely been done.
7.15 It has been argued that one explanation for the minimal role of
Parliament to date may be found in the legal status of treaties in Australian
domestic law[14] and the view that:
Parliament will normally have the opportunity to debate a treaty prior
to action to become a party (since the usual practice is to pass legislation
before agreeing to a treaty).[15]
7.16 These sentiments are also evident in comments made in 1994 by the
Minister for Foreign Affairs and Trade:
Senator KEMP - ... The next issue is how long would you propose
to lay this on the table so that there can be a proper debate on the
treaty protocols or on a new treaty?
Senator Gareth Evans - The intention, as we have said, is to
continue the practice of tabling the treaties twice yearly in batches.
We will ensure, as far as possible, that treaties are tabled before
Australia becomes a party to them, thus enabling time for parliament
to reflect upon it. In the case of multilateral treaties, this means
we will table a treaty either before ratification or before accession,
as the case may be, depending on which method of adherence is appropriate
for that document. Bilateral treaties can normally be expected to be
tabled after signature, in accordance with the internationally accepted
convention that the text of such treaties are confidential between governments
until they are signed. There will be occasions when, as has occurred
in the past, action has to be taken quickly on adherence, and it might
occur during a period in which parliament is out of session, or something
of that kind - in which case the notification will be after the event.
But we will do our best to get them on the table before adherence in
the case of the multilateral ones, where most of the policy interest
lies.
Senator KEMP - I am still trying to get an idea of how long
we will have a chance to consider these treaties. It is all very well
to have them laid on the table for a week, but that does not really
provide the time period in which people who have concerns about a particular
treaty can raise issues.
Senator Gareth Evans - I am not proposing to make a commitment
that the government will wait for any specified period of time following
the tabling. The idea is to provide information to parliament about
the treaties. We will do that through this tabling process and through
the explanatory note that we have also agreed to make part of that process.
But tabling treaties is not intended to be an exercise in ascertaining
parliament's views about whether or not Australia should become a party.
That decision is the responsibility of the executive under the Constitution,
and it will remain so. That is one of the reasons why we did not want
to go down the path of committees and all the rest of the hoopla that
you are proposing.[16]
Senator KEMP - But you do not see it as a chance for the parliament
to reflect and debate, and provide the executive government with some
sage advice on whether it should proceed or not.
Senator Gareth Evans - Parliament has its constitutional role
when it comes to the actual implementation of the treaty as a commitment
binding in Australian domestic law. That is a very serious step in the
process and it is not one that can occur without fullscale parliamentary
adherence. As you would well know, that is the difference between our
system and that in the United States, where the treaty becomes binding
as a matter of domestic law once it is adhered to. That is why you have
got the advice and consent process involving congressional or at least
Senate endorsement. We do not have that status vested in treaties and
on their adherence; that comes only when they are the subject of legislation.
That is the failsafe mechanism in our system, and as such you ought
not to complain about it.[17]
7.17 The necessity for the limitation of the role of Parliament is not
apparent. In the past, the Parliament has passed legislation to approve
the ratification of treaties. For example, the Racial Discrimination
Act 1975 contained a provision whereby the Parliament approved the
ratification of the Convention on the Elimination of All Forms of Racial
Discrimination.[18] The Parliament was also asked to approve the ratification
of the International Covenant on Civil and Political Rights, by
way of its implementation in the Human Rights Bill 1973.[19] The
failure of the Bill to pass through the Parliament meant that the Executive
did not ratify the Covenant at that time. This practice of seeking parliamentary
approval for the signing and ratification of significant or controversial
treaties appears to have lapsed.
7.18 If this practice became the norm, and the Executive agreed not to
ratify a treaty if the Parliament failed to approve the proposed implementing
legislation, then this would give Parliament a more significant role in
the treaty making process.
Westminster practice and the 'Ponsonby Rule'
7.19 Another reason given for the current limited role is that it follows
what may be termed the 'Westminster tradition' of limited parliamentary
involvement in the treaty making process. Treaties are tabled in the Westminster
Parliament according to the 'Ponsonby Rule'. This rule was introduced
in 1924 by the British Under-Secretary of State for Foreign Affairs, Arthur
Ponsonby.[20]
7.20 Professor Saunders has outlined the Ponsonby Rule as follows:
It obliges the British Government to let treaties lie on the table
of the Parliament for 21 days after signature and before ratification
and to submit important treaties to the House of Commons for discussion.
It applies only where a treaty places "continuing obligations"
on the United Kingdom, where a further formal act to signify commitment
is required after signature and where the matter is not one of "urgency".
In 1990-91, the Select Committee on the European Communities of the
House of Lords estimated that approximately one quarter of United Kingdom
treaties were subject to the Ponsonby Rule.[21]
7.21 Despite the apparent lack of parliamentary involvement in the decision
to enter into treaties, the Westminster Parliament can limit the power
of the Executive to enter into treaties, and has done so on at least one
occasion. Section 6 of the European Parliamentary Elections Act 1978
(UK) provides:
(1) No treaty which provides for an increase in the powers of the European
Parliament shall be ratified by the United Kingdom unless it has been
approved by an Act of Parliament.
(2) In this section "treaty" includes any international agreement,
and any protocol or annex to a treaty or international agreement.[22]
7.22 Given this clear assertion of parliamentary control over the Executive
in the United Kingdom, it is less than convincing to base arguments for
maintaining a minimal role for the Commonwealth Parliament in the treaty
making process, upon Westminster tradition.
Current practices in relation to entering into treaties and whether
legislation will be used
7.23 As treaties do not automatically directly become part of Australia's
domestic law, legislation will often be necessary to give effect to treaty
obligations. However, in specific instances, legislation will not be necessary
where existing practices or legislation are sufficient to meet the obligations
imposed by the treaty, or where the obligations are imposed solely on
the Government, in which case the obligations may be able to be met by
Executive practice.[23]
7.24 The Attorney-General's Department has advised that:
as a general rule legislation will be necessary, not merely desirable,
when the rights and/or duties of individuals would be affected in order
to give effect to the international obligation or benefit involved.[24]
Passage of legislation prior to ratification
7.25 Where legislation is necessary, it is the 'official' policy that
Australia will not ratify a treaty and accept obligations under the treaty
until it has the appropriate legislation in place:
If Australia became a party to a treaty on the assumption that certain
implementing legislation would be passed and it was not, then Australia
would be left in breach of the treaty. The basic reason for this practice
is that where legislation, be it Commonwealth or State, is necessary
to give effect to the provisions of a treaty, it cannot be anticipated
that the relevant legislature will pass that legislation. This would
be particularly embarrassing if there was no provision for withdrawal
from the treaty in question.[25]
7.26 The position becomes more complicated where a treaty calls for progressive
implementation of its obligations. The Attorney-General's Department referred
to the Convention for the Protection of the Natural Resources and Environment
of the South Pacific Region (SPREP) which was ratified in 1989[26]
and appears to fall within this category. For example, article 7 of the
SPREP Convention provides:
The parties shall take all appropriate measures to prevent, reduce
and control pollution in the convention area caused by coastal disposal
or by discharges emanating from rivers, estuaries, coastal establishments,
outfall structures, or any other sources in their territory.
The Department has advised that Australia was not obliged to have all
those measures in place at the time the treaty entered into force.
7.27 Despite the 'official' policy of ensuring that all necessary legislation
is in place before a treaty is ratified, there have been recent examples
of legislation only being enacted after the treaty has been already ratified.
ILO Convention No. 158, Termination of Employment, is an example.
It is discussed in detail in Chapter 9.
Conclusion
7.28 Under the current system, the Commonwealth Parliament plays a minimal
role in the decision as to whether Australia should enter into a treaty.
7.29 Treaties are important legal agreements which impose obligations
on Australia under international law. They also have significant domestic
effects, as discussed in Chapter 6. The increase in the number and scope
of treaties in recent decades means that they are having an increasingly
significant effect on the lives of Australians. It is appropriate that
the Parliament, which represents the people, plays a more active role
in scrutinising treaties and ascertaining their consequences for Australians,
before Australia commits itself under international law to obligations
under treaties.
7.30 At the very least, this role could involve legislation implementing
treaties being introduced and dealt with by the Parliament prior to the
ratification of the treaty.
Endnotes:
- Estimates Committee A, Additional
Information Received (Prime Minister and Cabinet Portfolio) Volume 1,
June 1994: p. 85. See also: C. Saunders, 'Articles of Faith or Lucky
Breaks?' (1995) 17 Sydney Law Review 150, 168.
- Hansard, House of Representatives,
Vol. H of R 31, 10 May 1961, p 1693.
- A. Twomey, Procedure and Practice
of Entering and Implementing International Treaties, Parliamentary
Research Service Background Paper No. 27 1995, Department of the Parliamentary
Library, 9 February 1995: p 8.
- 'Government Slams Opposition Hypocrisy
on Treaties', Joint Statement by the Minister for Foreign Affairs,
Senator Gareth Evans, and the Attorney General, Michael Lavarch,
21 October 1994.
- Mr C.R. Jones, Submission No. 93,
Vol 6, pp 1154-1155.
- Ms J. Linehan, Submission No. 143,
Vol 9, pp 2137-2138.
- Ms J. Linehan, Submission No. 143,
Vol 9, pp 2137-2138.
- Senate, Hansard, 18 October
1995, pp 2095-2096.
- Senate, Hansard, 18 October
1995, p 2081, per Senator C. Ellison; and p 2082, per Senator R. Kemp.
- House of Representatives, Hansard,
23 October 1995, p 2696, per Mr D. Williams QC MP.
- House of Representatives, Hansard,
23 October 1995, p 2696.
- Ms J. Linehan, Submission No. 143,
Vol 9, pp 2137-2138.
- Ms J. Linehan, Submission No. 143,
Vol 9, pp 2137-2138.
- See Chapter 6.
- Department of Foreign Affairs and
Trade, Australia's Participation in Treaty Regimes - Questions and
Answers, October 1994. Others have disputed the view that it is
indeed normal practice for necessary legislative action to be taken
before Australia becomes a party to a treaty - see Chapter 14. Further,
treaties may have significant effects even when they are not implemented
by legislation - see Chapter 6.
- Hansard, Estimates Committee,
Foreign Affairs, Defence and Trade, 29 November 1994, p 158.
- Hansard, Estimates Committee
Foreign Affairs, Defence and Trade, 29 November 1994, p 159.
- Section 7 of the Act provided:
'Approval is given to ratification by Australia of the Convention'.
- Clause 6 of the Bill provided:
'Approval is given to ratification by Australia of the International
Covenant on Civil and Political Rights and the Convention on the Political
Rights of Women'. For further examples, see: Mr H. Burmester, Submission
No. 75, Vol 4, p. 705.
- For the text of the Ponsonby Rule,
as first outlined in the Parliament of Westminster, see: Professor E.
Campbell, Submission No. 8, Vol 1, p 89, quoting from United Kingdom,
171 House of Commons Debates (session 5) col. 2001q (1 April
1924).
- C. Saunders, 'Articles of Faith
or Lucky Breaks?', (1995) 17 Sydney Law Review 150, at 170.
- This section was also quoted by
the NSW Farmers Association in Submission No. 127, Vol 8, p 1698.
- Mr H. Burmester, Attorney-General's
Department, Submission No. 75, Vol 4, p 699.
- Mr H. Burmester, Attorney-General's
Department, Submission No. 75, Vol 4, p 699.
- Mr H. Burmester, Attorney-General's
Department, Submission No. 75, Vol 4, p 700.
- Mr H. Burmester, Attorney-General's
Department, Submission No. 75, Vol 4, p 699.
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