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Chapter 14
The need for greater parliamentary involvement
Is there a democratic deficit in the current treaty making practices?
14.1 There is criticism that current practices have led to a 'democratic
deficit' or a lack of accountability in those practices.[1] The concern
is that the practice, whereby treaties are entered into by the Executive
(ie the Government) without significant Parliamentary involvement, is
'undemocratic', as treaties can have a range of significant effects on
the Australian legal and administrative systems; the Australian economy
and indeed the way Australians live.
14.2 Dr David Kinley, from the Australian National University, rejected
the democratic deficit argument. He stated, in evidence before the Committee:
We hear a lot about the fact that it is a democratic deficit because
of parliament's formal absence from a role in treaty negotiation or
conclusion. I think it must not be forgotten that within our system
the executive is elected - elected to the position and to the powers
that it possesses. It is knowingly elected to that position. To provide
parliament with a formal role in the ratification of treaties would
not substantially affect that democratic basis. It would not substantially
improve it. Therefore I think it is a suggestion that we should not
follow.[2]
14.3 The same point was made by the Minister for Foreign Affairs and
Trade, the Hon. Senator Gareth Evans QC, when he observed that the democratic
accountability of the executive is achieved through the ordinary method
of election to government.[3]
14.4 It is also argued that because the official Government policy is
that treaties will not be ratified until Australian law is in conformity
with the treaty obligations,[4] Parliament does play a vital role prior
to the ratification of treaties, and there is, therefore, no democratic
deficit.
14.5 Others have disputed that this 'official' policy is always put into
practice. Professor Charlesworth has stated:
In official theory, Australian law is made consistent with treaty obligations
before ratification or accession in order to avoid the risk that "Australia
would find itself legally bound by an international obligation it could
not fulfil." Although this has occasionally occurred with respect
to human rights obligations, in Australia implementing legislation is
more often passed after ratification, or not at all.[5]
14.6 Many treaties are implemented by executive action and do not require
legislation, for example, treaties concerning trade cooperation, defence
logistics and procurement.[6] Even when treaties are not implemented by
legislation, they may still have domestic consequences. Treaties can affect
the interpretation of law, by being used to resolve any ambiguity in legislation
or any gap in the common law. They are considered by the courts to be
a legitimate source of influence on the development of the common law,
and may be the source of a 'legitimate expectation' under administrative
law, that government officials will comply with the treaty when making
administrative decisions which affect the rights of people.[7]
14.7 Sir Ninian Stephen also saw the potential for a 'democratic deficit'
because international agencies can exert influence over nation-states
when countries enter into international treaties. He stated:
When power passes from nation-states to international agencies, the
international elector risks becoming increasingly unimportant, and increasingly
isolated from influence over affairs that may be of direct concern to
him or her.
The decline in the extent of national sovereignty may mean just that
- policy affecting the citizen may be determined at levels altogether
too remote, in international forums by people largely immune to the
sorts of pressures that the citizen can still exert over policy-making
by Australian governments if sufficiently determined and if their determination
is shared by sufficient others.[8]
14.8 Sir Ninian's remarks are relevant to recent Executive action which
has submitted Australia to the scrutiny or jurisdiction of several international
bodies.[9]
14.9 A background paper submitted by the Victorian Government also pointed
to a number of other features of international treaty processes as being
undemocratic, including:
- that foreign affairs officers are not directly accountable to the
citizens of the countries they represent;[10]
- the preference for international law in stating broad principles and
conferring significant power on the judiciary to flesh out details is
more usual in Continental jurisprudence than in Australian practice
and does not fit easily with the detailed style of Australian statutes
which tends to specify significant policy choices rather than leaving
them to the judiciary;[11]
- that treaty bodies granted jurisdiction by treaties may not have adequate
democratic processes and that international bodies often lack democratic
control;[12]
- that the fact that treaties may bind future Governments derogates
from the principle of parliamentary supremacy.[13]
14.10 Some of the concerns raised in the Victorian Government Background
Paper relate to the general practice of international law and of the United
Nations and are not matters which could be addressed by the Australian
Parliament. However, more active parliamentary involvement prior to ratification,
and the full legislative implementation of treaties, may alleviate these
problems.
14.11 The National Farmers' Federation has also pointed to the inadequate
parliamentary processes for debate on treaties as contributing to the
democratic deficit. Mr Hadler stated:
Australian federal governments still hold to the ritual of merely tabling
- usually without any explanation or invitation to debate - the text
of treaties that they have already signed. The need for prior explanation
and debate assumes even greater democratic importance in our constitutional
system where the legislature has no power over the executive's prerogative
to sign and ratify legally binding agreements (unlike the position of
the US Senate and the constitutional guarantees of treaty implementation
enjoyed by the German states). This unsatisfactory state of affairs
remains despite regular calls for reform in Australia.[14]
14.12 Professor de Q Walker, of the University of Queensland, queried
whether even parliamentary involvement in treaty making could redress
the democratic deficit, observing that:
[e]ven when the Parliament is given an active role in approving the
terms of treaties, which is not generally the case in Australia, even
the most important treaties lack anything resembling a mandate from
the electorate. For example, the CER [Closer Economic Relations] treaty
with New Zealand, which has had a major impact on the Australian economy,
was never mentioned in any party's campaign during the federal election
that preceded its ratification.[15]
14.13 The Australian Council for the National Interest called for increased
parliamentary debate.[16] The Council argued:
At present treaties concerning fundamental principles of social and
economic interaction are commonly negotiated and ratified without significant
community debate. Proposed treaties should be debated in parliament.
Parliamentary debate of treaties would significantly improve community
awareness of the content of international obligations which Australia
proposes to take on, and improve the ability of the people to have an
input into the content of these obligations. This proposal is desirable
in addition to an amendment to the constitution limiting the scope of
the external affairs power. It becomes even more vital if the external
affairs power remains widely defined.[17]
14.14 Professor Webb, of the University of Western Australia, was critical
of Parliament's lack of action in relation to treaty making. He stated:
[t]he Commonwealth parliament has been dilatory in allowing the executive
to commit the Australian nation, almost without question, to a course
of action relating not only to its relation to other states, but, more
importantly to its own internal affairs.[18]
14.15 The Department of Foreign Affairs and Trade rejected the argument
that treaty making by the Executive is undemocratic as follows:
The government conducting treaty negotiations on behalf of Australia
has been democratically elected, has a duty of public disclosure to
the Australian people, and is morally obliged to be responsive to popular
wishes. Moreover, Australia's practice in recent years has been to include
key 'stakeholders' such as business or NGOs direct in delegations to
negotiate conventions, ensuring that the views of interested sections
of the community are available during the process of framing international
obligations.[19]
Influence on Parliament to implement treaty
obligations
14.16 Another aspect of the 'democratic deficit' concern is the argument
that Parliament is influenced by the fact that treaties already entered
into by the Government are binding at international law. If they are not
complied with by Australia, Australia will be in breach of its obligations
to other countries.[20]
14.17 Mr Anthony Morris QC argued that the present system allows the
Executive to dictate to the Parliament that treaties signed by the Government
should be implemented by the Parliament. He stated:
If the federal government... decides that it will enter into a particular
treaty... it is saying to the world that we are, as a nation, prepared
to commit ourselves to this.
That has the effect, whether deliberate or unintended, that the parliament
and particularly the upper house of the parliament is put in a situation
where they have to toe the government's line or risk jeopardising Australia's
international reputation.[21]
14.18 Mr Hodgkinson, from the NSW Farmers' Association, agreed that once
a treaty is entered into, an obligation arises, and obligations should
be honoured. It is important, therefore, that treaties are subject to
full scrutiny before they give rise to obligations 'which we are bound
to honour to the fullest extent we can'.[22]
Human Rights (Sexual Conduct) Act 1994
14.19 An example of how the adoption of a treaty can lead to a change
in domestic law is the Human Rights (Sexual Conduct) Act 1994. The
Human Rights (Sexual Conduct) Act 1994 was passed by the Commonwealth
Parliament in response to the finding by the United Nations Human Rights
Committee in the Toonen case that Australia was in breach of its
treaty obligations under the International Covenant on Civil and Political
Rights (ICCPR).[23]
14.20 Mr Toonen had complained that Tasmanian laws which make homosexual
acts a criminal offence breached his right to privacy under article 17
of the Covenant. The United Nations Human Rights Committee agreed, finding
that an appropriate remedy would be the repeal of the relevant laws. As
the Tasmanian Government declined to repeal its laws, the Commonwealth
Parliament enacted legislation which was intended to provide a remedy
for the complaint.
14.21 Prior to the ratification of the ICCPR, it was not commonly realised
that there might be a conflict between the right to privacy in the Covenant
and the Tasmanian laws which were the focus of the Toonen complaint.
The Hon. Elizabeth Evatt, a member of the United Nations Human Rights
Committee, stated that the Toonen case revealed a violation of
the Covenant 'which may not have been obvious at the time of ratification'.[24]
Indeed, the Toonen complaint was the first complaint in which the
United Nations Human Rights Committee considered whether the right to
privacy applied to sexual conduct.
14.22 On the other hand, it could be argued that if Australian law had
been changed to make sure it conformed with the Covenant before its ratification,
there would be a legal right to privacy as part of Australian law, so
the complaint about the breach of the right of privacy made by Mr Toonen,
could have been dealt with by Australian courts under domestic law.
14.23 The Human Rights (Sexual Conduct) Act 1994 is clearly a
direct response to the finding of the United Nations Human Rights Committee.
It does not implement the whole of the Covenant, nor does it implement
the whole of article 17, by giving Australians a general right to privacy.
It is specifically limited to privacy in relation to 'sexual conduct involving
only consenting adults acting in private'.[25] Professor Charlesworth
has noted that this legislation sends the curious message:
...that Australia will get around to specific human rights legislation
only after violations have occurred and only in reaction to views adopted
by the Human Rights Committee with respect to individual communications.[26]
14.24 The decision to enact the Human Rights (Sexual Conduct) Act
1994 was the decision of a sovereign nation, and the legislation was
passed through the Parliament as part of the democratic process.[27] However,
it is arguable that there would not have been the same pressure to enact
such legislation if it were not for the treaty obligation and the fact
that the UN Human Rights Committee had alerted the world to Australia's
breach of that obligation.[28]
Other examples of international influence on Parliaments
14.25 The Background Paper submitted by Mr Baxter, Secretary of the Department
of the Premier and Cabinet of Victoria, also suggested that the decision
not to prohibit racial hatred when enacting the Racial Discrimination
Bill 1974 was a similar instance where Parliament was influenced to
implement treaty obligations:
Similarly, despite the doubts of some government Senators about the
substance of the legislation, the government would have preferred to
retain the prohibition of inciting racial hatred in the Racial Discrimination
Bill 1974 (Cth) "so that requirements of the international
convention could have been followed more closely in Australian law".[29]
14.26 Australia has maintained a reservation to the clause in the Convention
on the Elimination of All Forms of Racial Discrimination requiring
the prohibition of words or acts which incite racial hatred, and is therefore
not obliged under international law to enact such legislation. However,
the fact that such a provision is contained in the Convention is sometimes
given as a reason for enacting such laws.[30]
14.27 Mr Baxter also pointed to Australia's recognition of the jurisdiction
of the International Court of Justice to hear and determine disputes involving
Australia as an example of where a decision would bind Australia at international
law and have profound effects.[31] Similarly, Australia is obliged to
implement resolutions of the United Nations Security Council.
Ratification of treaties prior to passage
of legislation
14.28 There have been concerns that the Government policy of not ratifying
treaties until necessary legislation is in place has not been followed
on a number of occasions. Examples which have been suggested are the following:
- Australia's ratification of ILO Convention 158 on termination of employment
even though existing State and Commonwealth law did not conform;[32]
- Australia's ratification of the ICCPR which imposes an obligation
to ensure that effective remedies are provided for violation of rights,
when the necessary remedies were not in place;
- Australia's ratification of the GATT/WTO Agreement on Sanitary
and Phytosanitary Measures and Technical Barriers to Trade prior
to ascertaining whether State and Territory practices complied with
the agreement;[33] and
- Australia's accession to the First and Second Protocols to the Geneva
Conventions.[34]
14.29 Several witnesses wished to reinforce the point to the Committee
that before entering into a treaty, the law implementing it should already
be in place or should be enacted immediately thereafter.[35]
Accountability
14.30 A related concern to the issue of a democratic deficit in the current
treaty making processes is the need for the Government to be made more
accountable to the Parliament. Although it is open to parliamentarians
to utilise the usual parliamentary processes to facilitate debate, current
practices do not ensure that important national decisions are subjected
to appropriate scrutiny.
14.31 Even the decision made by the Executive to enter into a treaty
may not be subject to sufficient scrutiny by the Executive itself. The
Chief Justice of the High Court, Sir Gerard Brennan, referring in a speech
to an article written by Professor Cheryl Saunders,[36] made the following
admission:
I confess to some surprise at her revelation that, in this country,
less than one quarter of international agreements are subjected to Cabinet
approval before official signature and ratification.[37]
14.32 The criticism can be made that procedures should be in place so
that important national issues dealt with by treaties should at the least
be subject to systematic scrutiny.
14.33 The Australian Catholic Bishops Conference made the point in the
following terms:
[j]ust as rights claimed by individuals carry correlative responsibilities,
so too governments which claim to be active participants in the international
community, must (i) honour their international obligations, and (ii)
honour their responsibilities to the citizens of their own countries
to ensure that the processes by which they accede to any international
instrument provide appropriate scrutiny of the terms and the implications
for that country. The accountability of government, legislative and
executive, must extend to the process by which international instruments
are enacted into domestic law or where laws are framed based on them.
The processes of accountability which must be stressed are: the consistent
application of principles based on the dignity of every person, without
qualification, and the scrutiny of government policy and process before
the public eye.[38]
14.34 Mr Stokes argued that accountability is more important than convenience,
stating:
We have a clear choice: do we put Australia's effectiveness as an international
player before domestic political accountability because historically
those countries which have had no or very little domestic political
accountability have found it much easier to act decisively in external
affairs. Personally, I think domestic accountability is more important...[39]
Arguments for greater parliamentary involvement
14.35 While there perhaps is not sufficient evidence to conclude that
there is a democratic deficit, a range of arguments can be made for greater
parliamentary involvement in the treaty processes. The key arguments would
appear to be the following:
the increasing number and wide range of contemporary treaties makes
it important for Parliament to be much more closely involved in treatymaking.
The more important the subject matter dealt with by the treaty, then
the greater the need for Parliamentary involvement. The more numerous
the treaties the greater the need for a formal procedure for the consideration
by Parliament of the treaty.[40]
14.36 There was clearly strong support in the evidence before the Committee
in favour of a greater parliamentary involvement in the treaty process.[41]
There were a range of suggestions as to what the role of Parliament should
be and these issues are discussed further in Chapters 15 and 16.
Treaties and sovereignty
14.37 One criticism, which is not infrequently made, is that by signing
treaties Australia is in fact surrendering its sovereignty.[42] A former
Governor-General, Sir Ninian Stephen, has agreed with this concern:
[I]t has been estimated that no less than fifty thousand international
instruments have come into existence in the past fifty post-war years
and that a whole horde of intergovernmental agencies, some two thousand
of them, now exist, most of them busy rule-making for the world.
What this amounts to is a partial transference by nations of their
sovereignty in recognition of their interdependence one with another,
or their absolute need in today's world to relate to other nations and
to do so in part through the medium of international treaties and conventions
giving rise to new international law and involving a diminution of sovereignty
and a growth of common-form laws.[43]
14.38 There are many different aspects to the criticism that entering
into treaties adversely affects Australia's sovereignty. One of the central
tenets of international law is that countries refrain from acting in a
way which is inconsistent with their international obligations. In this
sense, all treaty making may be said to limit sovereignty.[44] However,
the decision to enter into a treaty is a deliberate sovereign decision
of the Government concerned.
14.39 At one level the limitation on sovereignty imposed by treaties
is not significant, particularly in relation to treaties like the Genocide
Convention, the Convention on the Elimination of Torture, or
the Slavery Convention. Clearly there is no significant abandonment
of sovereignty in relation to these actions because no civilised country
would countenance acceptance of torture, slavery or genocide.[45]
14.40 Nevertheless the issue of sovereignty becomes more significant
in relation to issues which are more contentious, such as trade policies,
or the abolition of the death penalty.[46]
14.41 Treaties are part of an international legal regime and to an extent
it is clear that we all benefit from the existence of an international
legal order. The Department of Foreign Affairs and Trade has pointed out
that the decision to enter a treaty is a decision by the Government taken
as a 'judgement that any limitations on the range of possible actions
which result are outweighed by the benefits which flow from the existence
of a widely endorsed, international agreement.'[47]
14.42 The Department of Foreign Affairs and Trade also argued that:
Where issues extend beyond the boundaries of any one country, and management
of an issue or problem cannot be achieved by a state acting alone, some
pooling of sovereignty becomes essential to a state being able to exercise
effective control within its own borders by strengthening the capacity
to manage the broader environment in which it must function. But, ultimately,
formal legal sovereignty is retained, since the power to enter into
such arrangements remains with government and the government retains
the right to remove itself from treaty obligations if it judges that
on balance the treaty no longer serves Australia's national and international
interests.[48]
14.43 Treaties can be used to reinforce sovereignty. As the Attorney-General,
Michael Lavarch, pointed out in the debate on the Human Rights (Sexual
Conduct) Bill 1994:
The Commonwealth has used the external affairs power to reinforce Australian
sovereignty. Some examples are the maritime boundary agreements with
France, the Solomon Islands, Papua New Guinea and Indonesia. Most recently
we have taken steps to ensure that Australia benefits from the right
to a 200 nautical mile exclusive economic zone recognised in the United
Nations Convention on the Law of The Sea. There were no complaints about
treaties eroding our sovereignty or overriding the states in these cases.[49]
14.44 The United Nations Association of Australia submitted that:
Acceptance of international treaties does not involve any decrease
in sovereignty by Australia or the Australian Government. A treaty cannot
be implemented in Australia unless appropriate legislation is enacted.
Such legislation is exclusively reserved to the Federal and State Governments.
The extent to which Government chooses to accede to [a] treaty or convention
is entirely a matter for it and its own sovereign power. Australia and
Australians will be bound only to the extent that they choose to do
so. It is open, as a last resort, for Australia to retain the right
to remove itself from treaty obligations if it perceives that there
is no further benefit to the country in remaining party to it.[50]
14.45 The issue was also raised that the greater loss of sovereignty
in Australia is through international trade and finance, rather than treaties.
The Hon. P Pendal quoted the following phrase from Time magazine:
The decisions that dictate Australia's ways and means are not made
in the parliaments of Australia but in the boardrooms and markets of
the world.[51]
United Nations Committees and Australian Sovereignty
14.46 One of the particular concerns raised by Senator Kemp is the role
of the United Nations Human Rights Committee under the First Optional
Protocol to the International Covenant on Civil and Political Rights
and various other committees established under the auspices of the United
Nations. Senator Kemp has stated:
The decision by the Federal Government to involve UN Committees in
Australian domestic disputes will inevitably over time undermine our
own legal institutions. Acceptance of a UN decision, which is critical
of a High Court judgment or against an Australian Government, inevitably
diminishes the importance of our own system.[52]
14.47 Several witnesses before the Committee had strong views on the
issue of sovereignty and treaties.[53] Mr Guy Barnett from the Liberal
Lawyers Association of Tasmania stated:
The United Nations-Canberra coalition can, in our view, quickly remove
the decision making powers from ordinary Australians. It is undermining
our legal system. It is compromising our independence and stomping on
the rights of ordinary Australians, particularly Tasmanians.[54]
14.48 Mr Barnett considered that the Government should 'cease allowing
appeals from Australia to the myriad of foreign-based international committees
established under these 2000 odd international treaties'.[55]
14.49 Mr Roger Wilkins, the Director-General of the New South Wales Cabinet
Office, noted that the reason successive NSW Attorneys-General had objected
to the ratification of the First Optional Protocol to the International
Covenant on Civil and Political Rights was that they saw it as 'ceding
sovereign power to bodies outside the Australian jurisdiction'. He also
observed that although this was considered to some extent 'inevitable',
they considered that it should only be done with our eyes open and with
a clear understanding of the consequences.[56]
14.50 Mr John Daley, from the Victorian Department of Premier and Cabinet,
argued that the fact that international committees may influence Australian
law 'is a good reason for saying that Parliament ought to be involved
before effective jurisdiction is conferred on those international bodies'.[57]
14.51 Mr Jeremy Buxton argued that the opening up of access to the United
Nations Human Rights Committee raised real questions about Australian
sovereignty. He observed that appeals to the Privy Council are no longer
allowed because it is an 'affront to Australian sovereignty to go to a
foreign court', but that we now encourage Australians 'to go to another
foreign tribunal that is not even a real court of law'.[58]
14.52 The Hon. Justice Kirby, however, has argued that the UN committees
do not have a similar role to that previously played by the Privy Council
in the Australian legal system. He stated:
The international committees which are frequently criticised stand
in an entirely different relationship to the Australian legal system
than the Privy Council in London did. By our Constitution, the Privy
Council was part of the Australian judicial hierarchy. No United Nations
committee and no international court has the same power. So far as the
committees are concerned, their decisions derive only from the power
which we, as a nation, have accorded them. Their decisions are not self-executing.
As in the case of the decision of the UN Human Rights Committee on the
complaint of Mr Toonen against the Tasmanian laws, the decision is only
translated into action in Australia by the authority of an Australian
law-maker... But the authority of the statute rests upon a decision,
duly debated, of the Australian Parliament. No Australian law was changed,
as such, by the decision of the United Nations Committee.[59]
14.53 The Department of Foreign Affairs and Trade has argued that the
ratification of treaties does not result in the loss of sovereignty to
UN Committees:
Ratification of treaties does not involve a handing over of sovereignty
to an international body. For example, the UN Committee on Human Rights
(the body that monitors UN human rights conventions) is responsible,
among other things, for considering whether parties to a convention
are meeting their obligations. But any assessments they make are advisory
and have "moral suasion" only. They are not binding and the
Committee has no enforceable legal jurisdiction over nation states which
have acceded to the treaties which they monitor. Nonetheless, ratification
of a treaty does require a State to perform its obligations in good
faith. But this is an exercise, not a relinquishing, of sovereignty.[60]
[emphasis added]
14.54 The Australian Law Reform Commission also pointed out that the
committees established under the major human rights treaties do not impinge
on national sovereignty. The Commission stated:
[t]he decisions of these committees do not impose binding legal obligations.
However, it should be acknowledged that they have significant persuasive
value.[61]
Sovereignty and denunciation of treaties
14.55 Some witnesses before the Committee expressed concern that Australia
was entering into treaties from which it was not able to withdraw. Mr
Bruce Hannaford stated in evidence before the Committee:
Perhaps the worst aspect of the signing of these treaties, covenants
et cetera, is that almost all of them have no provision for cancellation.
They are intended to exist in perpetuity. How dare recent or present
federal governments of a given political ideology assume the almighty
power of committing our great-great-grandchildren to what they see as
desirable for today. Surely future generations have a right to decide
for themselves.[62]
14.56 Senator Abetz asked the Department of Foreign Affairs and Trade
at the public hearing on 1 May 1995, which of the 920 head treaties to
which Australia is a party, do not allow denunciation. The Department
took the question on notice, and provided the following answer to the
Committee:
It has not been possible to examine each of the 920 treaties. However,
according to published information on 270 of the approximately 340 multilateral
treaties currently in force for Australia, 240, i.e. about 90%, have
specific provisions for the denunciation of, or withdrawal from, the
treaty by the parties.
A sampling of bilateral treaties concluded in the past twenty years
shows that any treaty which is not of limited duration will usually
contain a provision for termination by either party. However, one class
of bilateral treaties, those concerning boundary delimitation, rarely
provide for unilateral termination.
14.57 Even when withdrawal is permitted by the treaty, it may be politically
difficult to withdraw from the treaty. Officers of the Victorian Department
of Premier and Cabinet addressed this problem at the public hearing on
2 May 1995, in the following terms:
Mr Daley - If you look at the actual terms of a vast majority
of treaties, you will see that they require at least 12 months notice
of denunciation. In any case, there is significant international pressure
not to denounce a treaty. If you wind up just not signing a treaty,
it does not create international headlines. If you denounce a treaty,
it is much more likely to do so.
Senator Cooney - Yes, but can you see what I am getting at?
If a new government is so committed to changing it, nobody is going
to be upset about that -
Ms Hanlon - It may damage Australia's overall standing as a
good international citizen, which is something to be avoided and would
be avoided if all this debate happened before ratification.[63]
14.58 The Hon. Elizabeth Evatt also expressed concern as to the consequences
of denunciation of treaties, stating:
It is highly undesirable, even if legally possible, to withdraw from
human rights treaties. It would be unprecedented so far as I know for
a State to withdraw from such a treaty.[64]
14.59 Mr Guy Barnett suggested that the Federal Government 'should seriously
consider declining to sign a treaty if it does not include a clause for
withdrawal'.[65]
Conclusion
14.60 The act of entering into a treaty is a free decision of Australia
as a sovereign nation. This decision is made by a government which has
been democratically elected by the Australian people and is accountable
to them. Any action taken to change the law in order to implement the
treaty must be taken by the Commonwealth Parliament, or the parliaments
of the States or Territories. Hence the process of entering into and implementing
treaties is democratic, but the process could be improved. For example,
there could be better consultation.
14.61 The Committee recognises that by incurring international obligations
under treaties, the Commonwealth Government exerts influence on the Commonwealth
Parliament or the States to fulfil those obligations. International influence
may be brought to bear by the international community or organisations
such as the United Nations Human Rights Committee.
14.62 International obligations are incurred at the point of entering
into a treaty. However, the function of implementing the treaty is often
reserved to the Commonwealth Parliament. Accordingly, it would be preferable
to involve Parliament prior to ratification, so that it can make a free
choice without the pressure of a potential breach of treaty obligations.
The Committee's proposals and recommendations for parliamentary involvement
prior to ratification are contained in Chapters 15 and 16 of this report.
Endnotes
- The term 'democratic deficit' was reportedly coined in the context
of European Community institutions. Mr K. Baxter, Submission No. 111,
Vol 7, p 1435.
- Hansard, SLCRC, 1 May 1995, p 107, per Dr D. Kinley.
- Hansard, Senate Estimates, 1 June 1995, p 36, the Hon. Senator
G. Evans QC.
- Department of Foreign Affairs and Trade, Negotiation, Conclusion
and Implementation of International Treaties and Arrangements, August
1994: para 56. See also: The Hon. E. Evatt, Submission No. 110, Vol
7, p 1408.
- H. Charlesworth, 'Implementation of Australia's Human Rights Treaty
Obligations', Paper given at a conference on Australia in a Global
Context: The United Nations and Law-Making for the Twenty-First Century,
University House, Canberra, May 1995. See also: Hansard, SLCRC,
2 May 1995, p 189 per Mr S. Donaghue; and Mr D.Williams QC, Submission
No. 154, Vol 10, p 2241.
- Mr C. R. Jones, Department of Foreign Affairs and Trade, Submission
No. 93, Vol 3, p 1173.
- For further detail, see the discussion in Chapter 6 above.
- Sir Ninian Stephen, 'Making rules for the world' (1995) Vol 30(2)
Australian Lawyer, p 14.
- On 28 January 1995, the Executive removed reservations or subjected
itself to other articles of treaties, which allowed scrutiny of Australia's
actions by international committees under the International Covenant
on Civil and Political Rights, the Convention on the Elimination
of All Forms of Racial Discrimination, and the Convention against
Torture. See Joint Committee on Foreign Affairs, Defence and Trade,
A Review of Australia's Efforts to Promote and Protect Human Rights,
AGPS, Canberra, 1994: p 29.
- Mr K. Baxter, Submission No. 111, Vol 7, p 1436.
- Mr K. Baxter, Submission No. 111, Vol 7, p 1437.
- Mr K. Baxter, Submission No. 111, Vol 7, p 1437.
- The Submission by the Victorian Government notes, however, that such
'contravention may be a necessary result of Australia's participation
in the international community.' Mr K. Baxter, Submission No. 111, Vol
7, p 1434.
- Mr R. Hadler, Submission No 62, Vol 3, p 521.
- Professor G. de Q Walker, Submission No. 103, Vol 6, p 1310.
- Other submissions made to the Committee also called for treaties to
be subjected to proper parliamentary scrutiny and debate. For example,
see Mr R. Mansour, Submission No. 142, Vol 9, p 2131.
- Mr S. Gethin, Submission No. 97, Vol 6, p 1227.
- Professor Emeritus M. Webb, Submission No. 128, Vol 8, p 1758.
- Mr C. R. Jones, Department of Foreign Affairs and Trade, Submission
No. 93, Vol 6, p 1177.
- Several witnesses raised this type of concern, including: Hansard,
SLCRC, 2 May 1995, p 168 per Ms J. Paterson and p 188 per Mr S. Donaghue;
Hansard, SLCRC, 15 May 1995, p 247 per Mr S. Gethin; Hansard, SLCRC,
16 May 1995, pp 391-2 per Mr D. Bennett QC; Hansard, SLCRC, 22 May 1995,
p 486, per Dr D. Mitchell; Professor G. Winterton, Submission No. 89,
Vol 5, p 1073.
- Hansard, SLCRC, 13 June 1995, p 589, per Mr A. Morris QC.
- Hansard, SLCRC, 14 June 1995, p 725, per Mr D. Hodgkinson.
- Toonen v Australia, Communication No. 488/1992, UN Doc. CCPR/C/50/D/488/1992,
8 April 1994. See also: I. Shearer, 'United Nations: Human Rights Committee:
The Toonen Case', (1995) 69 Australian Law Journal 600-609. Mr
K. Baxter, Submission No. 111, Vol 7, p 1431.
- The Hon. E. Evatt, Submission No. 110, Vol 7, pp 1408-1409.
- Human Rights (Sexual Conduct) Act 1994: s. 4.
- H. Charlesworth, 'Implementation of Australia's Human Rights Treaty
Obligations', Paper given at a conference on Australia in a Global
Context: The United Nations and Law-Making for the Twenty-First Century,
University House, Canberra, May 1995.
- Senate Legal and Constitutional Legislation Committee, Human Rights
(Sexual Conduct) Bill 1994, Canberra, 1994, p 9; Hansard
of that hearing, L&C 316-317. See: Bulletin, 'UN rules OK?'
11 October 1994, pp 18-19; Mr K Baxter, Submission No. 111, Vol 7, p
1432.
- See the exchange between Senator Kemp and Senator Evans on whether
Australia can pick and choose those views of the UN Human Rights Committee
which it is prepared to implement: Hansard, Senate Estimates,
1 June 1995, p 38.
- Mr K. Baxter, Submission No. 111, Vol 7, p 1431.
- See, for example, Hansard, Senate, 23 August 1995, p 223, per
Senator C. Evans.
- Mr K. Baxter, Submission No. 111, Vol 7, p 1432.
- The circumstances relating to the Government's ratification of this
treaty are discussed in Chapter 9.
- Mr K. Baxter, Submission No. 111, Vol 7, p 1433.
- Hansard, SLCRC, 22 May 1995, p 486, per Dr D. Mitchell.
- See, for example, Hansard, SLCRC, 22 May 1995, p 486, per Dr
D. Mitchell; Hansard, SLCRC, 25 July 1995, per Professor H. Charlesworth
and Mr A. Rose at pp. 823-6.
- C. Saunders, 'Articles of Faith or Lucky Breaks', (1995) 17 Sydney
Law Review 150.
- The Hon. Sir G. Brennan, AC KBE, 'Launch of the Sydney Law Review
(Vol 17 No. 2), Reporting Papers of the Symposium: The Internationalisation
of Australian Law', Transcript of speech, 27 July 1995.
- Rev. W. Wright, Submission No. 79, Vol 5, p 961.
- Hansard, SLCRC, 22 May 1995, p 475, per Mr M. Stokes.
- Senate Legal and Constitutional References Committee, Treaties
and the External Affairs Power, Discussion Paper, Canberra, 1995,
p 7.
- See Mr D. Purnell, Submission No. 69, Vol 3, p 578-579; Ms D. Brown,
Submission No. 121, Vol 7, p 1384; Mr M. Stack, Submission No. 120,
Vol 7, p 1377; Ms V. Filling, Submission No. 116, Vol 7, pp 1533-1534;
Mr A. Proudfoot, Submission No. 10, Vol 1, p 104; Mr E. Chapman, Submission
No. 11, Vol 1, p 116; Ms J Paterson, Submission No. 14, Vol 1, p 173;
Mr R. Downey, Submission No. 18, Vol 1, p 216; Mrs V Guest, Submission
No. 30, Vol 2, p 268; Mr G. Watts, Submission No. 35, Vol. 2, p 279;
Ms S. Laxton, Submission No. 91, Vol 5, p 1104; Mrs R. Miller, Submission
No. 137, Vol. 8, p 2085; Mr C. Ronden, Submission No. 20, Vol 2, p 222.
The Hon. E. Evatt agreed that a Parliamentary Committee could have the
function of scrutinising proposed treaties and reporting to Parliament:
Submission No. 110, Vol 7, p 1416.
- See for example: Hansard, SLCRC, 13 June 1995, per Mr C. Clark,
p 583. Mr J. Bryson, Submission No. 2, Vol 1, p 11; Mr G. Hart, Submission
No. 9, Vol 1, p 100; Brotherhood of Man of Nebadon, Submission No. 6,
Vol 1, pp 28-29; Mrs G. Alcock, Submission No. 29, Vol 2, p 266; Mrs
P. Gibson, Submission No. 31, Vol 2, p 270; Mrs W. Teakle, Submission
No. 42, Vol 2, p 376; Mr B. Katz, Submission No. 86, Vol 5, p 1047;
Ms D. Brown, Submission No. 121, Vol 7, p 1583; Mr N. Udloff-Browne,
Submission No. 26, Vol 2, p 259; Mr D. Sisson, Submission No. 46, Vol
2, p 418; Mr R. de Louth, Submission No. 139, Vol 8, p 2092; Mr S. Carter,
Submission No. 43, Vol 2, p 378.
- Sir Ninian Stephen, 'The Expansion of International Law - Sovereignty
and External Affairs', Sir Earl Page Memorial Trust Lecture, 15 September
1994, p 3.
- See the dissenting opinion of Justices Adatci, Kellog, Rolin-Jaequemyns,
Hurst, Schucking, Van Eysinga and Wang in the Permanent Court of International
Justice's Advisory Opinion on Customs Regime Between Germany and
Austria PCIJ Ser.A/B, No. 41, where they stated: 'Practically, every
treaty entered into between independent States restricts to some extent
the exercise of the power incidental to sovereignty. Complete and absolute
sovereignty unrestricted by any obligations imposed by treaties is impossible
and practically unknown'.
- Ms P. Mathew, Submission No. 115, Vol 7, pp 1524-1525.
- The Second Optional Protocol to the ICCPR.
- Department of Foreign Affairs and Trade, Australian and International
Treaty Making, Information Kit, October 1994.
- The Department of Foreign Affairs and Trade, Australian and International
Treaty Making, Information Kit, October 1994.
- The Hon. M Lavarch, House of Representatives, Hansard 12 October 1994,
p 1775. Second Reading Speech, Human Rights (Sexual Conduct) Bill
1994.
- Mr D. Purnell, Submission No. 69, Vol 3, pp 578-579.
- Hansard, SLCRC, 15 May 1995, p 235, per The Hon. P. Pendal.
- Senator R. Kemp, 'International Tribunals and the Attack on Australian
Democracy', in Upholding the Australian Constitution: Proceedings
of the Fourth Conference of the Samuel Griffith Society, July 1994:
p 135.
- See for example: Hansard, SLCRC, 15 May 1995, p 246, per Mr
S. Gethin.
- Hansard, SLCRC, 22 May 1995, p 482, per Mr G. Barnett.
- Hansard, SLCRC, 22 May 1995, p 483, per Mr G. Barnett. See
also Hansard, SLCRC, 15 May 1995, p 250, per Mr G. Gethin.
- Hansard, SLCRC, 16 May 1995, p 430, per Mr R. Wilkins.
- Hansard, SLCRC, 14 June 1995, p 629, per Mr J. Daley.
- Hansard, SLCRC, 15 May 1995, pp 329-330, per Mr J. Buxton.
- The Hon. Justice M. Kirby AC CMG, Submission No. 41, Vol 2, p 350.
- Mr C. R. Jones, Department of Foreign Affairs and Trade, Submission
No. 93, Vol 6, p 1175.
- Ms S. Tongue, Submission No. 77, Vol 5, p 845.
- Hansard, SLCRC, 25 July 1995, p 769, per Mr B. Hannaford.
- Hansard, SLCRC, 2 May 1995, pp 148-149.
- The Hon. E. Evatt, Submission No. 110, Vol 7, p 1415.
- Hansard, SLCRC, 22 May 1995, p 483, per Mr G. Barnett.
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