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Chapter 15
Proposals for reform: tabling treaties, parliamentary committees
and treaty impact statements
Tabling of treaties
15.1 The practice in relation to the tabling of treaties in recent years
has been criticised as being inadequate. The Department of Foreign Affairs
and Trade's supplementary submission[1] provides details of certain improvements
which have recently been introduced - no doubt in response to some of
the criticisms which have been made. As noted in Chapter 7, the Government
has agreed to a policy of early tabling of treaties, except for some bilateral
treaties which are not tabled prior to their entry into force.
15.2 At the Committee's hearing on 14 June 1995, the Department agreed
to table treaties outside the normal 6 monthly batches, where there was
significant interest in the treaty, except in cases of urgency.[2]
15.3 The Business Council of Australia was of the view that there should
be a statutory requirement that all treaties be tabled in both Houses
of the Federal Parliament well in advance of any decision by the Executive
Council as to whether Australia ought to become a signatory.[3]
15.4 The Committee agrees that there should be a legislative basis for
this tabling process. While the Committee recognises that treaties are
already tabled in the Parliament under current practice, this does not
always occur before final action is taken to make Australia a party to
a treaty (either by ratification in the case of multilateral treaties,
or by signature in the case of bilateral treaties).
15.5 The Committee considers that as a general rule, all treaties should
be tabled at least 15 sitting days before their ratification.[4] The only
exceptions to this rule should arise in the case of 'urgent' treaties
and sensitive treaties, as discussed below. Even in the case of these
exceptions, the treaties should still be made public by being tabled in
the Parliament as soon as practicable after Australia has entered into
them.[5]
Bilateral treaties
15.6 The Department of Foreign Affairs and Trade advised the Committee
that historically, bilateral treaties are considered confidential until
they have been agreed upon. Senator Ellison noted that many other countries
have a form of parliamentary scrutiny of treaties, and that this problem
must already be accommodated in those cases. Officers from the Department
agreed that the issue has arisen in its dealings with other countries
which have a parliamentary approval system, and it has not prevented Australia
from dealing with them.[6]
15.7 The Committee notes that as the requirement of confidentiality arises
only during the negotiation stage, this problem could be resolved if bilateral
treaties all had a two stage process for entering into force. The treaty
could then be tabled and scrutinised after signature, but before ratification.
Sensitive treaties[7]
15.8 The Charter of the United Nations discourages secret diplomacy.
Article 102 of the United Nations Charter provides as follows:
- Every treaty and every international agreement entered into by any
Member of the United Nations after the present Charter comes into force
shall as soon as possible be registered with the Secretariat and published
by it.
- No party to any such treaty or international agreement which has not
been registered in accordance with the provisions of paragraph 1 of
this Article may invoke that treaty or engagement before any organ of
the United Nations.[8]
15.9 The Committee agrees that all treaties to which Australia is a party
should be made public and be tabled in the Parliament. The Committee notes
that worldwide such important defence and security treaties as the NATO,[9]
the Warsaw Pact,[10] ANZUS[11] and Pine Gap[12] treaties have been registered
with the United Nations, and published in its Treaties Series.
15.10 The Committee recognises, however, that there may be circumstances
where it may not be in the national interest for sensitive treaties to
be tabled or otherwise published prior to Australia becoming a party to
them. The Committee also acknowledges that in some cases the other party
to a sensitive bilateral treaty may make it a condition that negotiations
remain confidential until the treaty is signed. In such cases, the Committee
considers that there should be an exemption from tabling the treaty prior
to it being entered into (whether by way of signature or ratification),
but that it must be tabled in the Commonwealth Parliament as soon as practicable
after this occurs.[13] When tabled, the treaty should be accompanied by
a statement by the Government explaining why it could not be tabled before
Australia entered into the treaty.
Urgent treaties
15.11There may also be occasions where there is an urgent requirement
to enter into a treaty, and Parliament is not sitting or there is not
time to go through the tabling process. The example given by the Attorney-General's
Department is the multilateral agreement relating to the status of peacekeeping
forces in Bougainville to which Australia recently became a party.[14]
This treaty, of necessity, was negotiated and entered into force in a
matter of days.
15.12The States and Territories submitted that provision should be made
for urgent treaties 'provided that it [the Executive] subsequently tables
the treaty and the reasons for the urgency. If Parliament subsequently
fails to approve the treaty, the executive is obliged to withdraw from
the treaty as soon as possible.'[15]
15.13 Mr Marmion, from the Western Australian Ministry of the Premier
and Cabinet also suggested a procedure for urgent ratification, followed
by an explanation to the Parliament.[16]
15.14 The Committee considers that in the case of urgent treaties, there
should be an exemption given to the general rule that all treaties be
tabled at least 15 sitting days before Australia becomes a party to them
(whether by way of signature or ratification). However, the Committee
concludes that such treaties should be tabled in both Houses of the Parliament
as soon as practicable after being entered into, and should be accompanied
by an explanation by the Government as to the reason for urgency.[17]
If the reason were to be considered inadequate by either House, then it
would be up to the political processes of the House to censure the Government.
Scrutiny
by a parliamentary committee
15.15 Many witnesses called for scrutiny of treaties, prior to ratification,
by a parliamentary committee. A group of legal academics from the University
of Adelaide submitted to the Committee:
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.[18]
15.16 The Governments of the States and Territories of Australia in a
joint submission to the Committee called for a Parliamentary Treaty Committee
to review the treaty impact statements and to conduct hearings into contentious
treaties. The submission noted that this review should occur whether or
not the proposal for parliamentary approval of treaties is adopted. However,
it pointed out that any such review would be more effective if the committee
had the power to recommend delay in parliamentary approval of the treaty
until adequate information had been provided.[19]
15.17 Mr Richard Slater submitted that there was a valuable role for
a Parliamentary Committee in the treaty making process but that it should
be only an advisory role. He recommended:
That the Parliament develops a relationship through the creation of
a committee with the consent of the Federal Government, in the Senate
to advise the Executive Government on the management and implementation
of treaties and conventions. The committee should consist of representatives
from all major parties and independents, the chairperson of which should
be elected by committee members. Further, the committee's capacity should
be only to advise the government and have no charter to curtail the
government's power in the implementation of treaties and conventions.[20]
15.18 The Committee considers that there should be scrutiny of treaties
by the parliamentary committee process.[21] This scrutiny would have the
dual effect of keeping the Parliament informed about treaties and involving
the public in the consideration of the impact of treaties. Such a committee
should have broad terms of reference which would allow it to consider
treaties which Australia proposes to ratify and to recommend whether Australia
should proceed with ratification, and if so, whether this should be done
subject to any reservations.
15.19 The Treaties committee should have the further function of inquiring
into proposed treaties, treaties under negotiation, or other proposed
international instruments such as Declarations adopted by the General
Assembly of the United Nations.[22] The Treaties Committee should also
have the power to inquire into other treaty action proposed to be undertaken
by Australia, such as the removal of an existing reservation, or the making
of a declaration, which subjects Australia to the application of an article
in an existing treaty. For example, Australia made a declaration accepting
article 14 of the Convention on the Elimination of all
Forms of Racial Discrimination (CERD) which allows Australians to
complain directly to the United Nations Committee on Elimination of Racial
Discrimination about breaches of the Convention. The making
of such a declaration could be considered by the proposed committee.
15.20 An additional role for a parliamentary committee could be the ongoing
review of existing treaties and their application and implementation,
as discussed in Chapter 11.
15.21 Such a treaties committee should be given the ordinary powers to
hold formal hearings. This would enable members of the public and interested
groups to comment on treaties or other proposed treaty action and enable
the Parliament to obtain independent expert advice on the implications
of a particular treaty.
Should a
new committee be established or existing ones used?
15.22 There was some disagreement amongst witnesses and those making
submissions as to whether it would be preferable to establish a new Treaties
Committee or to utilise the existing Committees to examine treaties which
fall within their relevant terms of reference.
15.23 One problem with using existing standing committees is that it
may not always be clear which committee is most appropriate to consider
any particular treaty. Mr Kennedy, from Humane Society International,
noted that subjects such as desertification or biodiversity cover a range
of matters, including farming, conservation and trade, and that there
may be conflict in determining which committee is most suitable to deal
with them.[23]
15.24 More importantly, it may be difficult to establish and maintain
sufficient expertise, in all committees, about treaties and their application
in both international and domestic law.
15.25 On the other hand, a single committee may not have sufficient expertise
to cover the subject matter of all treaties. The Department of Foreign
Affairs and Trade pointed out in its submission that:
[t]reaties deal with a virtually limitless range of subjects and issues;
and the nature of treaties varies enormously as well. For example, some
treaties record the resolution of important political issues and set
out formal undertakings made at the highest level, while others contain
detailed regulations governing highly technical areas. Parliamentary
committee consideration of whether particular treaties would promote
or protect Australia's interests would need to take proper account of
relevant domestic and international policies and developments. A committee
with expertise in the subject matter of a treaty would appear to have
greater potential to produce constructive recommendations about that
treaty than would an inquiry by a special treaties committee, which
would have to familiarise itself with the disparate subjects which are
covered by treaties.[24]
15.26 Interestingly, the possibility of referring treaties to parliamentary
committees would appear to be already open to the Senate if it was so
minded. On 1 September 1994, Senator Chapman, pursuant to notice, proposed
to refer to the Standing Committee on Rural and Regional Affairs for inquiry
and report the International Convention to Combat Desertification in
those Countries Experiencing Serious Drought and/or Desertification, Particularly
in Africa. That proposal was defeated,[25] but if it had been accepted
by the Senate the Committee would have inquired into and reported on the
treaty.
15.27 There is certainly scope for the creation of a specialist Treaties
Committee. Senator Harradine has proposed the creation of a Standing Committee
on Treaties in the Senate on a number of occasions. On 23 August 1983,
Senator Harradine gave notice for the creation of such a Committee that
would:
Consider all treaties laid before the Senate, and any other treaties
to which the Committee may have access, and to report in respect of
each such treaty -
(i) whether Australia should undertake to be bound by that treaty if
that treaty is not already binding upon Australia; and
(ii) the effect which Australia's being bound by that treaty has or
would have upon the legislative powers and responsibilities of the Australian
States.[26]
15.28 This notice of motion has been moved in each succeeding Parliament.
15.29 The benefits of a specialist Treaties Committee would be that it
could establish expertise on international treaties. While such a Treaties
Committee would not have the relevant policy exposure in particular fields
of expertise of an established subject-based committee, it would be able
to develop greater expertise in scrutinising treaties and it could receive
all necessary subject-based expertise from expert witnesses.
15.30 Mr Harry Evans, Clerk of the Senate, gave the following evidence
to the Committee on the question of whether there should be one new committee
or whether treaties should be referred to existing standing committees:
On the question of one committee or several committees, I have been
assuming that you would have one committee to look at all treaties.
I know there is a suggestion that treaties may be looked at by the relevant
legislative and general purpose standing committees. That could have
some difficulties of scattered and inconsistent scrutiny. Having one
committee would give you the advantage of one point of scrutiny and
consistent standards and criteria of scrutiny. I suppose the problems
are not insurmountable, but if you referred treaties to the relevant
standing committees you would be adding to the workload of the various
committees rather than adding to the workload of the Senate by having
one committee and needing senators to be members of one committee.[27]
15.31 It has also been suggested that the function of treaty scrutiny
should be referred to an existing committee, such as the Joint Standing
Committee on Foreign Affairs, Defence and Trade. In response to this suggestion,
Professor Charlesworth observed:
Obviously, there would be a significant need for increasing resources,
because what we are talking about is a really significant workload.
They would need a significant research staff, and so on, to do this.
I have seen that committee in action and perhaps it could have a treaty
subcommittee. There is a human rights subcommittee of that joint standing
committee and perhaps a treaty subcommittee that had significant resources
would be able to do this.[28]
15.32 The Committee considers that a new Treaties Committee should be
established. The Committee is concerned that if treaties were referred
to existing Committees, there would not be sufficient opportunity to give
them the attention they deserve, if they were competing with inquiries
into Bills and general references. The Committee also considers that it
is important to build up expertise in the areas of international law and
general issues concerning treaties and their application in Australia.
It is the Committee's view that this is best done within a single Committee
and Secretariat.[29]
Should there be a Senate committee or a
joint committee?
15.33 If a Committee is to be established, the question arises as to
whether it should be a joint committee or a Senate committee.
15.34 On the one hand, some have argued that a Senate Committee is the
most practical alternative, because the House of Representatives is dominated
by the Government whose members would ordinarily support Government proposals
to enter into treaties.
15.35 Mr Harry Evans, Clerk of the Senate, suggested possible problems
with joint committees, stating:
There are problems with joint committees generally.... A joint committee
would have the difficulty that - bearing in mind the different situations
in the House of Representatives and the Senate - it would tend to be
directed towards what could or would happen in the Senate anyway. To
have a committee representing one house that speaks virtually for the
government all the time, and the other house which is not under the
government's control, would be awkward. You may have the Senate part
of the committee tending to become a de facto separate committee directing
its attention to what might happen in the Senate.[30]
15.36 Another argument is that the Senate, which was intended to perform
the function of the States' House, should play the more prominent scrutiny
role because of the potential impact of treaties on the federal system.
Mr Jackson QC stated:
It is probably better that such a Committee be in the Senate rather
than the House. The underlying notion of the Senate as a States' House
- a notion blurred, of course, by the discipline of Australian political
parties - assists in that regard.[31]
15.37 On the other hand, a joint statutory committee would seem the most
appropriate, because treaties equally concern both Houses of the Parliament.
The Australian Law Reform Commission suggested the establishment of a
joint federal parliamentary committee and made the following comments:
One way to achieve both parts of the object may be to establish a joint
federal parliamentary committee, the terms of reference of which would
be to consider and report on ratification proposals put forward by the
Government. This would engage all parties at a federal level in the
treaty-making process in a positive and constructive way. The committee
system has proved itself to be a very effective consultative process
with members working cooperatively towards common goals. A joint federal
parliamentary committee has the advantage of ensuring that responsibility
for implementation remains in the federal sphere thereby preventing
possible veto action by the States and avoiding inertia of State governments
which may place foreign affairs at a relatively lower level of priority
than domestic matters.[32]
15.38 The Law Society of New South Wales argued for the establishment
of a legal framework whereby a Treaties Committee would advise the federal
Executive Council on the ratification of a treaty. The Law Society proposed
that this Committee recommend the establishment of a joint Parliamentary
'Treaties Committee' to oversee the decision-making process for entering
into international treaties and conventions.[33] The Society did not support
any greater involvement of the Parliament.[34]
15.39 The Federal Coalition has also supported the establishment of a
joint Treaties Committee.[35] Mr Daryl Williams QC, the Member for Tangney,
has described the operation of such a committee as follows:
The Committee would be a standing committee set up by resolutions of
the two Houses. It would be made up of senators and members of the House
of Representatives and serviced by a permanent secretariat operating
within the Parliament. Committee members would be drawn from the government,
opposition and minor parties. The chairperson would normally be one
of the government party and the deputy chairperson would usually be
from the opposition.[36]
15.40 The Committee agrees that a joint House parliamentary committee
is most appropriate. Treaties concern both Houses of the Parliament and
it is important that both be represented on any committee conducting the
important work of scrutinising treaties. With the establishment of a joint
committee, reports of the committee could be tabled in both Houses of
the Parliament, and committee members would be able to raise matters relating
to treaties in both Houses.[37]15.41
When should
Parliament become involved?
Another issue is whether Parliament should be involved at the drafting
stage of important multilateral treaties. Several witnesses suggested
that Parliament should only become involved in the treaty making process
after the treaty is signed, but before it is ratified by Australia.[38]
A problem with this is that, in practice, once a treaty is adopted by
the international community, it is exceedingly difficult to amend. Thus,
if Parliament is to consider treaties once they have already been finalised
but before Australia has become a party, its effective options are most
confined. At that stage the options are to support Australia ratifying
the treaty, or to ratify the treaty subject to the making of certain reservations,
or not to support ratification of the treaty.
15.42 Professor Herr gave evidence to the Committee that the negotiation
stage of the treaty process 'should not be minimised or regarded as inconsequential.'[39]
This stage has enormous consequences for other countries involved in the
negotiation process. He also argued that democratic processes should be
involved earlier in the treaty negotiation stage, rather than await the
ratification process and then exercise a veto.[40] He did not, however,
consider that Parliament itself should be involved in negotiating the
treaty, but rather that Parliament's role should be to alert the public
to the negotiation of treaties 'to ensure that everyone with an interest
is aware that this process is underway and to give them a chance at least
to have a say.'[41]
15.43 The Attorney-General's Department has noted that the process of
international negotiation of multilateral treaties often requires Governments
to respond quickly to new developments. With regard to the National Farmers'
Federation proposal that Parliament and industry groups be given the opportunity
to influence the position taken by Australian delegations,[42] the Department's
submission stated:
Furthermore, the proposals do not take into account the time constraints
which flow from the international treaty process itself. For example,
if documents are received from the Secretariat which has responsibility
for a particular treaty negotiation some three weeks before the next
round of negotiations is to commence, it is, of course, only possible
for the Government to provide those documents to the States and to industry
within the same time frame.[43]
15.44 Parliamentary involvement during the course of negotiations could
ensure that appropriate groups in the community were consulted. However,
there is also the potential for the process to prejudice negotiations,
the success of which may depend upon Australia's position not becoming
fixed and not becoming known to other negotiating countries.[44]
15.45 As has been noted in submissions to the Committee, Parliament has
relatively little capacity to be involved in treaty negotiation. Treaties
are negotiated usually over many years in negotiations which can be very
time consuming.[45] However, the Committee considers that its proposed
Treaties Committee should have the power to undertake a general inquiry
into a multilateral treaty while it is still under negotiation.[46]
15.46 Such an inquiry would not involve the Parliament in negotiating
the treaty, nor would it require the Government's negotiation delegation
to take instructions from the Parliament. The purpose of such an inquiry
would be to give an opportunity to members of the public to express their
views, and to pass on these views through the Treaties Committee to the
Government. It would complement the existing process of consultation undertaken
by the Department of Foreign Affairs and Trade. There would be no need
to reveal Australia's negotiating tactics or to otherwise prejudice Australia's
negotiating position. On the contrary, information gained through a Committee
inquiry from evidence given by people with expertise on the subject of
the treaty, might enhance Australia's negotiation position by providing
greater knowledge and understanding of the issues.
Treaty impact
statements
15.47 The Committee received a number of submissions requesting that
treaty impact statements be prepared for the tabling of treaties in Parliament.
Such statements would provide a range of significant benefits.
15.48 Such statements would assist in:
- clarifying the implications of a treaty;
- facilitating the dissemination of information about a treaty; and
- enabling more accurate assessments to be made of whether ratification
of a treaty is in the national interest.
15.49 The proposal for treaty impact statements goes further than the
Government's undertaking to table in the Parliament a short explanatory
note, setting out the main features of the treaty.[47]
15.50 The Governments of the States and Territories of Australia in a
joint submission to the Committee called for the tabling of treaty impact
statements. The submission stated:
The Commonwealth should table in Parliament for each treaty a treaty
impact statement outlining the advantages and disadvantages of the treaty,
and summarising the consultation over the treaty.
The Parliamentary treaties committee should recommend delay in Parliamentary
approval for a treaty if its impact statement does not contain adequate
information.[48]
15.51 The submission argued that the statement would significantly improve
the awareness of the public and of the States and Territories about treaties.
15.52 Ms Martin, from the South Australian Department of Premier and
Cabinet, considered that the treaty impact statement should assess what
laws will need to be changed to comply with the treaty, and how this will
be done. She stated:
[I]f treaty impact statements are done properly, such as things like
the environmental impact statements and family impact statements, they
look at the financial aspects and they look at all sorts of different
aspects - what legislation would be affected, what legislation may need
to be implemented, what legislation was in the States' jurisdiction
and what legislation federally could be put in.
Something like that is absolutely necessary from the States' point
of view. A lot of the States, and especially the smaller States, do
not have the resources to do full investigations on every treaty that
is put up. So they are expecting that the basic work, the groundwork,
would be done on this and the results of those investigations supplied
to them prior to any further action.[49]
15.53 Ms Martin also noted that the treaty impact statements would assist
Australia's negotiating teams, when negotiating treaties. She stated:
If you are unaware of certain impacts, it is very hard to negotiate
if you do not have the full facts. I would imagine that the work of
the committee or the subcommittee that you are suggesting could be invaluable
to the negotiators as backup work with respect to what they should press
for and, maybe, what they should take reservations of.[50]
15.54 Mr Rose, from the Australian Law Reform Commission, agreed, stating:
The delegation that is carrying on that negotiation would be greatly
assisted by having a broader sounding board before briefs are finally
settled or negotiating groups go to the next round of negotiations.[51]
15.55 The National Farmers' Federation has similarly called for the concurrent
tabling of a government statement which summarises:
the terms of the treaty, including Australia's obligations if we became
a party; how it will further Australian national interests; including
the expected economic, social and environmental impacts of both the
treaty and of not becoming party to it; also including (where
the treaty will have economic impacts) a detailed cost-benefit analysis
economy-wide and for affected industry sectors, estimating production,
income and employment impacts; such analysis should also show how Australia
will be affected relative to its trade partners and competitors.[52]
15.56 The Australian Chamber of Manufactures commented that:
Regarding international treaties, there has developed a process whereby
Australian governments have pursued treaty/convention action without
any reference to Parliament and without any evaluations of costs or
benefits to this country. Often the design, scope and impact of the
eventual detailed protocols have not been foreseeable at the time of
signing of the original generalised "framework" treaty or
convention.
... Before signing of the text of any treaty or convention, both Houses
of parliament should be informed of:
b) Where appropriate, a detailed cost-benefit analysis of effects on
industry sectors, environment, employment, trade competitiveness, etc.[53]
15.57 The Committee agrees that there should be a legislative requirement
that the Government prepare and table a treaty impact statement at the
same time as the relevant treaty is tabled. The Committee considers that
such 'impact statements' should not be confined to economic advantages
and disadvantages, but should cover social, cultural and environmental
effects, and the obligations which would flow from the treaty. The impact
statement should also address how it is intended that the treaty be implemented
in Australia, and by which level of government.[54]
Other reform
proposals
15.58 The Committee received a range of suggestions for reform of the
treaty making process. One proposal, made by Professor Greig, of the Australian
National University, was for the establishment of a Treaties Commission.
15.59 Professor Greig suggested to the Committee:
There is something to be said for establishing a Treaties Commission
to advise Parliament on the advisability of and problems with treaties.
As to its membership, it should include one representative of each
State and Territory and of the Commonwealth whose role would be:
(ii) to produce material on the compatibility of the relevant local
law with the provisions of the treaty under consideration.
It should also include, say at least two members from each Chamber
of the Commonwealth Parliament whose task would be to present, to the
relevant Chamber, the Commission's report and recommendations.
It would have some members, say two or three, representing outside
interests, although the Commission's chief source of information should
be through submissions sought in respect of each treaty.
15.60 Mr Wayne Morgan, of the University of Melbourne, also was of the
opinion that there may be benefit in establishing a special treaties institution.
Mr Morgan commented:
The faults of the present system can thus be identified as two major
ones. Firstly, there is no mechanism to provide for public discussion
and the expression of a diversity of views concerning a treaty before
it is signed. I do not think we can equate parliamentary discussion
with a discussion which involves that diversity of views.
Secondly, although the mechanisms exist for intra and intergovernmental
consultations, a genuine commitment to information sharing and proper
consultation is lacking. So, in light of those faults in terms of suggestions
for reform, a greater role for public discussion and education could
be achieved by establishing some institution that had the power to hold
public inquiries and make recommendations as to treaties.
This treaty commission would have power to initiate its own inquiry
into any treaty the executive planned to negotiate and to consult with
members of the public and nongovernmental organisations. It would have
the power to make recommendations but would have no powers to control
the entry into international obligations. Nor would it have power to
attach conditions or reservations to treaties, although it would have
power to make such suggestions.
Although such a body would have no formal legal power, it would increase
public awareness and, hence, pressure on the federal executive to justify
any obligations it proposed to undertake by signing a treaty. As I stated,
my view is that current formal arrangements between federal and state
governments are adequate to achieve the appropriate level of consultation.[56]
15.61 The attractive feature of this proposal is that it would provide
the federal Parliament (and possibly State and Territory Parliaments as
well) with access to expertise on international law and treaty making.
15.62 As Professor Greig commented:
In examining the issue of the appropriate Parliamentary process, consideration
also needs to be given to the issue of appropriate specialist resources.
Whether it is Parliament or a Treaties' Commission that is established
as the appropriate machinery, it is essential that it is in a position
to act upon independent advice. The Executive receives advice from within
the Public Service and its policy is coloured by that advice. If Parliament
or the commission is reliant upon the same source for advice, its reaction
is also likely to be coloured.[57]
15.63 While federal Parliamentary Committees can access expert advice
as part of the established hearing processes with experts providing their
views in a voluntary capacity, a Treaties Commission would provide a professional
service to the Parliament. A Treaties Commission might prove particularly
beneficial to the State and Territory governments which may not have the
same level of access to expert advice. The proposal may also prevent duplication
by avoiding the need for each State and Territory to obtain its own advice
on a particular treaty.
15.64 Another proposal was for the establishment of a Standing Committee
on Federal-State Relations which would have the function of scrutinising
treaties as well as a role in relation to the functioning of the federal
system of Government in Australia. Professor Wiltshire set out his proposal
as follows:
Instead of a Treaties Council, I believe that the Australian Senate
should have a Standing Committee on Federal-State Relations. It has
always amazed me that the so called States House in this Parliament
has never had a committee on Federal-State relations.
I believe that committee should be an umbrella committee and that the
reports from COAG and all the ministerial councils should be scrutinised
by the Senate. It should have the main democratic input into the oversight
of Federal-State relations in this country. That could include the Loan
Council, Premiers' Conference and COAG.
I am suggesting that treaties would be one aspect of a Senate Standing
Committee on Federal-State Relations. After all, if the Senate is a
house of review and if it also was designed as a state's house, it would
seem to me to be very appropriate.[58]
15.65 A further alternative would be to utilise existing bodies and Commissions
in relation to consultation and dissemination of information relating
to treaties. For example, in relation to human rights treaties, the Human
Rights and Equal Opportunity Commission could be provided with additional
resources and functions.
15.66 A further suggestion, made by the National Recovery Council, was
for a referendum procedure to approve treaties.[59]
Conclusion and
recommendations
15.67 It is important that treaties be tabled in both Houses of the Parliament
prior to their ratification, to ensure that Parliament is aware of them
and that there is an opportunity to debate them. The tabling of treaties
also provides another means of public access to the text of treaties.
15.68 The Committee considers that bilateral treaties should be tabled
as well as multilateral treaties. Many bilateral treaties are of great
significance for Australia and should therefore be tabled before Australia
is committed to them. In order to avoid problems concerning international
expectations of confidentiality prior to signature, Australia could change
its practice in relation to bilateral treaties by requiring both signature
and ratification before they can enter into effect. If this were the case,
the bilateral treaty could remain confidential up until the time of signature,
but be tabled in the Parliament before its ratification.
15.69 As a general rule, treaties should be tabled in both Houses of
the Parliament at least 15 sitting days before Australia becomes a party
to them (whether by way of signature or ratification). However, in the
case of urgent treaties, or sensitive treaties, the Committee considers
that they should be tabled as soon as practicable after they are entered
into by Australia, and an explanation be given to the Parliament as to
why it was considered that they could not be tabled before they were entered
into by Australia.
Recommendation
8:
That legislation be enacted which requires the tabling of treaties in
both Houses of the Commonwealth Parliament at least 15 sitting days prior
to Australia entering into them (whether by signature or ratification).
This should be subject to an exception for urgent and sensitive treaties,
in circumstances where it is not possible or not in the national interest
to table them before Australia becomes a party to them. In such cases,
the treaty must be tabled as soon as practicable after Australia has become
a party to it, accompanied by a statement explaining the reason why it
could not be tabled before Australia became a party to it.
15.70 A Parliamentary Committee process for the scrutiny of treaties
could play an invaluable role in keeping the Parliament informed about
the implications of treaties and allowing members of the public and other
interested groups an opportunity to express their views on treaties. The
Committee considers that a new 'Treaties Committee' should be established,
which could develop expertise in international law and the application
of treaties under domestic law. The Committee considers that it is most
appropriate that the Treaties Committee be a joint parliamentary committee,
established by statute.
15.71 The Committee considers that the terms of reference of the Treaties
Committee should be broad. It should not be confined to considering treaties
after they have been tabled but before their ratification. The Treaties
Committee should be able to initiate an inquiry into proposed treaties,
treaties under negotiation, other proposed international instruments such
as Declarations, and other treaty action such as removing reservations
and making declarations under existing treaties.
15.72 The Treaties Committee should also have the power to initiate inquiries
into existing treaties, in order to consider, amongst other things, how
the treaty applies in Australia, and how it is being implemented, or should
be implemented.
15.73 The Treaties Committee should not be obliged to report on all tabled
treaties, but should be able to initiate inquiries on its own behalf,
or be referred matters for inquiry by either House of the Parliament.
15.74 As some treaties may concern sensitive issues, the Treaties Committee
should have the power to take evidence in camera.
Recommendation
9:
That legislation be enacted to establish a Joint Parliamentary Committee
on Treaties. The functions and powers of the Committee should include:
- the function of inquiring into and reporting on any proposals by Australia
to ratify or accede to any treaty, proposed treaty, or other international
instrument or proposed international instrument, including whether Australia
should become a party to the treaty or instrument;
- the function of inquiring into and reporting on whether Australia
should make any reservations or declarations upon ratification or accession
to any treaty;
- the function of inquiring into and reporting on any other proposed
treaty action, such as the removal of a reservation, or the making of
a declaration which subjects Australia to additional obligations under
a treaty;
- the function of inquiring into and reporting on treaties to which
Australia is already a party, including the method of their implementation
and how they should be dealt with in the future;
- the function of scrutinising treaty impact statements;
- the power to hold public hearings and hold hearings in camera;
- the power to call for documents and witnesses; and
- the power to commence an inquiry into a treaty, proposed treaty, international
instrument, proposed international instrument, or any other treaty action,
at any time, regardless of whether it relates to a document that has
been tabled in the Parliament.
15.75 The Committee also considers that it would be of advantage to the
Parliament, the States, the general public and the Government itself,
if the Government prepared 'treaty impact statements' which were tabled
at the same time as the treaties to which they relate.
15.76 The Committee considers that 'treaty impact statements' should
be monitored and scrutinised by the Treaties Committee, to ensure that
sufficient detail is given and that all appropriate areas are covered.
15.77 The Committee considers that the Treaties Council (see Recommendation
7 in Chapter 13) and the Treaties Committee should have the power to formally
meet with each other. The aim of these bodies is to improve consultation
on treaties. It is therefore essential that these two bodies consult with
each other and share the benefit of any insights into the treaty making
process and address concerns that may be raised about the process.
Recommendation
10:
That the legislation establishing the Joint Parliamentary Committee on
Treaties require that treaty impact statements be prepared on each treaty
tabled in Parliament. The impact statements should address the following
matters:
- reasons for Australia being a party to the treaty;
- any advantages and disadvantages to Australia of the treaty entering
into force in respect of Australia;
- any obligations which would be imposed on Australia by the treaty;
- any economic, social, cultural and environmental effects of the treaty,
of the treaty entering in force in respect of Australia, and of the
treaty not entering in force in respect of Australia;
- the costs to Australia of compliance with the treaty;
- the likely effects of any subsequent protocols to the treaty;
- measures which could or should be adopted to implement the treaty,
and the intentions of the government in relation to such measures, including
legislation;
- the impact on the Federal-State balance of the implementation of the
treaty;
- a statement setting out the consultations which have occurred between
the Commonwealth, the States and the Territories and with community
and interested parties in respect of the treaty; and
- whether the treaty provides for withdrawal or denunciation.
Endnotes
- Ms J. Linehan, Submission No. 143, Vol. 9, p 2137.
- Hansard, SLCRC, 14 June 1995, p 691, per Mr C. Lamb.
- Mr M. Soutter, Submission No. 51, Vol 3, p 436.
- This period would be substantially more than three weeks. Fifteen
sitting days could range over a period from approximately 30-100 calendar
days.
- See Recommendation No. 8, below.
- Hansard, SLCRC, 14 June 1995, pp 703-706, per Mr C. Lamb
and Ms J. Linehan.
- For example, sensitive treaties could include treaties that may
endanger personnel or jeopardise law enforcement investigatory procedures
if they were made public prematurely.
- Professor I. Brownlie, Principles of International Law, 4th
ed., Clarendon Press, Oxford, 1990, p 612. A similar provision was
included in article 18 of the Covenant of the League of Nations,
L. Oppenheim, International Law: A Treatise, Vol 1, 8th ed.,
edited by H. Lauterpacht, Longmans, p 919.
- 34 United Nations Treaty Series ('UNTS') 243.
- 219 UNTS 3.
- 131 UNTS 83.
- 607 UNTS 83.
- See Recommendation No. 8, below.
- Hansard, SLCRC, 14 June 1995, pp 663 and 702, per Ms J. Linehan.
- Joint State and Territory Submission, Submission No. 107, Vol 6,
p 1331. See also Hansard, SLCRC, 14 June 1995, p 647, per Mr
J. Daley.
- Hansard, SLCRC, 15 May 1995, p 267, per Mr W. Marmion.
- See Recommendation 8, below.
- Professor H. Charlesworth, Submission No. 81, Vol 5, p 1022.
- Joint State and Territory Submission, Submission No. 107, Vol 6,
p 1332.
- Mr R. J. Slater, Submission No. 40, Vol 2, p 339.
- See Recommendation No. 9 below.
- The Committee does not consider that Parliament should actively
become involved in negotiating treaties. See further paragraph 15.46.
- Hansard, SLCRC, 1 May 1995, p 96, per Mr M. Kennedy. It should
also be noted that failure to agree upon the Committee to which the
Desertification Convention should be sent, resulted in the
failure of it being sent to any Committee at all. See: Senate, Hansard,
1 September 1994 at p 757 and 22 September 1994 at p 1188.
- Mr C.R. Jones, Department of Foreign Affairs and Trade, Submission
No. 93, Vol 6, pp 1154-1155.
- Journals of the Senate, No. 105, p 2137.
- Senate, Hansard, 23 August 1983, p 8.
- Hansard, SLCRC, 1 May 1995, pp 102-103, per Mr H. Evans.
- Hansard, SLCRC, 25 July 1995, p 836, per Professor H. Charlesworth.
- See Recommendation No. 9, below.
- Hansard, SLCRC, 1 May 1995, pp 115-116, per Mr H. Evans.
- Mr D.F. Jackson QC, Submission No. 64, Vol 3, p 544.
- Ms S. Tongue, Submission No. 77, Vol 5, p 851.
- Mr M. Stack, Submission No. 120, Vol 7, p 1573. For further support
for a joint committee see also: Hansard, SLCRC, 22 May 1995,
p 492, per Mr A. Graham.
- Mr M. Stack, Submission No. 120, Vol 7, p 1577.
- Mr A. Downer MP, Address to the 44th Federal Council of the Liberal
Party, Albury, 30 October 1994.
- Mr D. Williams QC, Submission No. 154, Vol 10, p 2234.
- See Recommendation No. 9, below.
- See for example: Hansard, SLCRC, 13 June 1995, p 611, per
Mr A. Morris QC.
- Hansard, SLCRC, 22 May 1995, p 453, per Dr R.A. Herr.
- Hansard, SLCRC, 22 May 1995, p 454, per Dr R.A. Herr.
- Hansard, SLCRC, 22 May 1995, p 454, per Dr R.A. Herr.
- Mr R. Farley, Submission No. 3, Vol 1, pp 17-19.
- Mr H. Burmester, Submission No. 75, Vol. 4, p 712.
- Hansard, SLCRC, 2 May 1995, p 158, per Mr J. Daley.
- Mr K. Baxter, Submission No. 111, Vol 7, p 1454.
- See Recommendation No. 9, below.
- See Chapter 7.
- Joint State and Territory Submission, Submission No. 107, Vol 6,
p 1329.
- Hansard, SLCRC, 25 July 1995, p 835, per Ms P. Martin.
- Hansard, SLCRC, 25 July 1995, p 837, per Ms P. Martin.
- Hansard, SLCRC, 25 July 1995, p 837, per Mr A. Rose.
- Mr R. Hadler, Submission No. 62, Vol 3, p 524.
- Mr A. Handberg, Submission No. 72, Vol 3, pp 591-592.
- See Recommendation No. 10, below.
- Professor D.W. Greig, Submission No. 112, Vol 7, pp 1511-1512.
- Hansard, SLCRC, 2 May 1995, pp 129-130. See also: Mr W. Morgan,
Submission No. 118, Vol 7, p 1546.
- Professor D.W. Greig, Submission No. 112, Vol 7, pp 1511-1512.
- Hansard, SLCRC, 13 June 1995, p 522, per Professor K. Wiltshire.
- Hansard, SLCRC, 13 June 1995, p 535, per Mrs G. Grining.
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