Susan Downing
Law and Public Administration Group
Contents
In its recent decision in Minister for Immigration and
Ethnic Affairs v Teoh, the High Court held that the
Executive's ratification of an international convention created a
legitimate expectation that the Executive Government and its
agencies would act in conformity with that convention.
The United Nations Human Rights Committee (the UNHRC)
communication in Toonen v Australia unanimously
found that Australia had breached its international obligations
under the International Covenant on Civil and Political Rights. The
Commonwealth Parliament enacted legislation to override the
offending State legislation.
These two decisions have fuelled debate on Australia's current
system for entering into treaties. Criticism of the present system
has primarily concentrated on the perceived lack of public or
parliamentary scrutiny of the international instruments that the
Executive Government signs and ratifies. Concern has been expressed
about Australia's perceived loss of sovereignty (1), given that in
some cases international tribunals can comment on matters that
previously fell within domestic law. In the Toonen case an
individual was able to have a grievance heard by the UNHRC. The
contrary argument to this is that the act of entering into a treaty
is an act of sovereignty itself. (2)
There has also been the suggestion that the continual use of the
treaty-making process to increase the legislative powers of the
Executive Government, beyond its express constitutional powers,
will lead to the erosion of the federal system and the 'extinction'
of the States. The Senate Legal and Constitutional References
Committee has conducted a review of the external affairs power (in
the context of treaty-making) and tabled a report with a number of
recommendations entitled: Trick or Treaty? Commonwealth Power
to Make and Implement Treaties.
On 10 May 1995 the Minister for Foreign Affairs, Senator Evans,
and the Attorney-General Mr Lavarch issued a joint statement
clarifying the Government's understanding of the effect of entering
into an international treaty. The statement made it clear that the
Government did not intend the act of entering an international
treaty to confer any expectation that government decision-makers
would act in accordance with the treaty in the absence of
implementing domestic legislation. This was followed on 28 June
1995, by the Government introducing the Administrative
Decisions (Effect of International Instruments) Bill 1995 into
the House of Representatives. The Bill is designed to override the
above High Court Teoh decision. [For a discussion of the
ramifications of this Bill see Bills Digest No 115/95 by Dr Max
Spry.]
The Senate Legal and Constitutional Legislation Committee tabled
its report on the Administrative Decisions (Effect of
International Instruments) Bill 1995 on 28 September 1995. The
majority recommended that the Bill be enacted, so as to preserve
what was seen as the status quo before the Teoh
decision. The recommendation was that once a 'review into the
impact of treaties on administrative decision making' was complete,
the legislation 'should be revisited and assessed.'
Instruments of international law are increasingly dealing with
more complex issues and matters of global concern. The sorts of
issues now covered include the protection of human rights, the use
of global resources and the prevention of environmental damage. The
protection of these sorts of rights and resources at the
international level depends upon the co-operation of individual
nations (called 'states'). The mechanism for achieving this degree
of international co-operation generally involves setting out the
agreed terms in the text of a multilateral treaty. Once individual
states have signed and ratified the treaty they are under a legal
obligation to comply with its terms. Therefore, these instruments
are becoming increasingly important in international law and for
individual states such as Australia.
The constitutional system in Australia enables the Executive
Government to commit Australia to treaties at the international
level. The External Affairs power in the Constitution [section
51(xxix)] then enables Parliament to enact legislation that may
otherwise be outside its legislative power. Concern has been
expressed about this system and a number of proposals have been
suggested for reform. This paper examines the advantages and
disadvantages of each of the reform proposals. The paper does not
comment on the merits of change but attempts to reflect on the
current mechanism for entering into treaties and explores some of
the options available should any change be required, nor does it
address the formalities of treaty-making. The latter can be found
in 'Procedure and Practice of Entering and Implementing
International Treaties' by Anne Twomey, Current Issues Paper,
Parliamentary Research Service, No 27 of 1995.
International law is characterised by its consensual nature and
is quite different from domestic legislation. The enforcement of
international law is difficult and is frequently achieved by
political mechanisms rather than strictly legal mechanisms.
Generally rules of international law are identified by two factors.
One is the actual state practice (ie where states are consistently
following a particular practice in their relations) and the other
is the intention of states to be bound by the practice. If there is
a practice that is so commonly followed by states and if, when
following the practice, states demonstrate that they consider
themselves bound by the practice, then it will become a rule of
customary international law. In other words, customary
international law is the set of general principles that are so
widely accepted and adhered to by the majority of states that they
have become binding. Once a practice of states gains this
widespread acceptance it will crystallise into a rule of
international law or a 'customary international norm'.
As a sovereign state, Australia is able to conclude treaties
with other states and other states clearly recognise that the
Australian Government alone is able to conclude valid treaties with
other states. The legal foundation for this is the Constitution.
Whilst there is no explicit power to conclude a treaty in the
Constitution, the High Court, in R v Burgess, has
interpreted section 61 of the Constitution as containing the power
to conclude treaties with other countries. (3) Once a treaty is
concluded, section 51(xxix) allows Parliament to make laws
implementing the terms of the treaty in order to fulfil our
international obligations arising under it.
The High Court, in Teoh, made it clear that in general,
implementing domestic legislation is required. The majority of the
High Court held that:
The provisions of an international
treaty to which Australia is a party do not form part of Australian
law unless those provisions have been incorporated into municipal
law by statute and cannot operate as a direct source of individual
rights and obligations under that law. (4)
The High Court did not, however, say that international treaties
have no effect in the absence of domestic legislation. In fact, the
majority held that whilst ratified international treaties could not
operate as a direct source of individual rights and obligations,
the act of ratification was a positive statement by the Executive
Government. The act of ratification was held to be sufficient
foundation for individuals to have a legitimate expectation that
the Government decision-makers would act in conformity with the
treaty. (5) In addition, treaties have often been used by
Australian Courts to assist in resolving ambiguities in legislation
and to assist in developing the common law.
The Executive has the power to conclude treaties and is not
obliged to liaise with any other body prior to exercising this
power. No formal consultation with, or endorsement by the
Parliament, the States, Non-Government Organisations (NGOs) or the
public is required. In practice there is usually some degree of
consultation. Treaties, with the exception of International Labour
Organisation (ILO) Conventions, are tabled in Parliament twice a
year in batches. ILO Conventions are tabled as soon as possible
after the text is finalised (6). The timetable for non ILO treaties
does not always allow treaties to be tabled prior to their entry
into force or prior to their ratification. (7) Therefore, it would
be safe to say that, at least until 21 October 1994, it was not the
Executive's invariable practice to seek Parliamentary approval
prior to signing a treaty. On 21 October 1994 Senator Gareth Evans
and the Attorney-General Michael Lavarch issued a press release
indicating that treaties will be tabled prior to ratification
wherever possible:
The Government will supplement this
information flow by now tabling, wherever possible, all treaties,
other than sensitive bilateral ones, before action is taken to
adhere to them. We will also take steps to increase the possibility
of participation by Members of Parliament on various treaty
negotiating delegations. (8)
Having become a party to the treaty, the Government is then able
to rely upon the external affairs power in section 51(xxix) of the
Constitution to give it the legislative power to enact implementing
legislation. This is not an unlimited legislative power though. For
example, in the Tasmanian Dam Case Mason J (as he then
was) held :
I reject the notion that once
Australia enters into a treaty Parliament may legislate with
respect to the subject-matter of the treaty as if that
subject-matter were a new and independent head of Commonwealth
legislative power. The law must conform to the treaty and carry its
provisions into effect. (9)
If this were not the case then the use of the external affairs
power in this fashion could, in theory, lead to the extinction of
State's rights. Given that there are few restrictions on the
treaties that the Executive may conclude, without the above
limitation, the Commonwealth's powers would be infinite. This is
expressed by Stephen J in Koowarta v
Bjelke-Petersen:
If it [the federal Executive] can
thereby at will create such "external affairs" as it wishes and if
par. (xxix) then confers power upon the federal legislature to
legislate with respect to whatever external affair has thus been
brought into being, this may place in jeopardy the federal
character of our polity, the residuary legislative competence of
the States being under threat of erosion and final extinction as a
result of federal exercise of the power which par. (xxix)
confers.
There is also a view that, in the absence of a treaty, the
legislature has the power to enact laws that are rules of customary
international law notwithstanding that there is no express power in
section 51 of the Constitution. (10) This view has not been tested
but it may be possible that legislation could be enacted
implementing a rule of customary international law, that would not
be found to be unconstitutional despite not being covered by an
express constitutional head of power. If this view is correct, then
perhaps an amendment to the Constitution would be required to
restrict this power. This option is discussed below. Even without a
treaty obligation, if there is a binding international obligation
or if the matter relates to 'other nations or to things external to
Australia,' (11) or to a matter of international concern (12), then
the external affairs power may extend to allow the legislative
government to enact implementing domestic legislation. (13)
The legislative framework for implementing international treaty
obligations can, of course, be either State or Commonwealth
legislation. The case of Toonen illustrates that the
Commonwealth is reluctant to override a State's laws without first
giving the State the opportunity to amend its legislation. (14)
However, given that by entering into a treaty the Commonwealth is
binding Australia, it seems arguable that great care should be
taken to identify existing State and Territory laws that are
incompatible with the treaty obligations. The States are generally
dissatisfied with the level of consultation with the Commonwealth
prior to a treaty. (15)
In fact, the Senate report on this issue (16) made
recommendations specifically aimed at increasing the level of
consultation with interested groups (recommendation 6) and with the
State governments (recommendation 7). The latter, could be done by
way of the establishment of a Treaties Council. This option was one
of the recommendations put forward by the 1984 Australian
Constitutional Convention. The major options available to the
Government, if any change to the present system were contemplated,
are discussed below.
The general procedure for entering into multilateral treaties is
that countries will negotiate the text of a treaty, sign it and
then later ratify it. The significance of a State's signature to a
particular treaty can vary from merely authenticating the agreed
text of the treaty to immediately placing that country under an
obligation to act in good faith (ie take steps towards ratification
and not act inconsistently with the treaty in the interim (17)).
The High Court, in Teoh, held ratification to be a
positive statement by the Executive Government to the world that
Australians, the Australian Government and its agencies will act in
compliance with the treaty. (18) This reflects the difference in
international law between signature and ratification, with the
latter being regarded by states as a much more formal and binding
act.
On 10 May 1995, a joint statement was issued by the Minister for
Foreign Affairs, Senator Evans and the Attorney-General, Michael
Lavarch, seeking to clarify the Government's position. This stated
that:
...entering into an international
treaty is not reason for raising any expectation that government
decision-makers will act in accordance with the treaty if the
relevant provisions of that treaty have not been enacted into
domestic Australian law. It is not legitimate, for the purpose of
applying Australian law, to expect that the provisions of a treaty
not incorporated by legislation should be applied by
decision-makers. Any expectation that may arise does not provide a
ground for review of a decision. This is so, both for existing
treaties and for future treaties that Australia may join.
(19)
Although the Government's position is that ratified treaties
have limited effect (20) until implemented by domestic legislation,
the act of ratification is treated as binding under international
law. Therefore, there is a discrepancy between the international
and the domestic effect of ratification. At the international
level, Australia is bound and yet at the domestic level, the above
joint statement asserts that Australian citizens cannot expect
ratified but unimplemented treaties to be applied by decision
makers. Given the different status ascribed in international law to
the acts of signature and ratification, the options for regulating
Executive action prior to signature and between signature and
ratification are covered under separate sections below.
This option involves the Executive obtaining Parliamentary
approval of the text of an international treaty prior to signature.
It is arguably the most simple method of increasing the scrutiny of
treaties prior to execution.
In order to achieve this option, Parliament could either enact
legislation making Parliamentary approval a prerequisite to
signature or it could reinstate formally a variation of the
'Ponsonby Rule'. The Ponsonby Rule is a
convention adopted initially by the British Government, whereby
treaties are tabled in the House of Commons between signature and
ratification. After 21 days, if there has not been a Parliamentary
motion passed disapproving ratification of the treaty in question,
the treaty may be ratified. Australia could require treaties to be
tabled prior to signature with provisions for disapproval within a
set period of time. The option of legislating to require
Parliamentary approval prior to signature would be within the
Parliament's constitutional power. One view is that:
...the Commonwealth Parliament does
have the constitutional power to enact legislation imposing a
requirement of prior parliamentary consent before the Executive
enters into treaties. However this power would not extend to an
assumption by Parliament of the basic role of the Executive in
concluding treaties or to legislation which effectively prevented
the executive from carrying out its treaty negotiation or
treaty-making role (21).
The latter option, of reinstating a variation on the
Ponsonby rule, could incorporate a system whereby only if
the text of a treaty was specifically objected to would
Parliamentary approval be withheld.
One advantage of the proposal is that if the Executive gets
approval in advance of negotiating a treaty (rather than trying to
obtain approval afterwards) then, from an international
perspective, Australia will gain by being able to quickly ratify
and implement treaties that it has signed. In some cases, the
implementing legislation may even be in place by the time that
Australia signs the treaty which will smooth the process
considerably.
Another advantage is that contentious provisions can be
identified and, if necessary, have reservations (22) placed upon
them. There would also be an opportunity to obtain greater input
from the public and interested groups which may lead to greater
community support for any legislation enacted pursuant to treaty
obligations. (23) An increase in the amount of public consultation
and debate prior to signature/ratification of a treaty should
create a greater community acceptance of treaties being a source of
domestic law.
Australia would benefit from having the possible ramifications
on Australia's domestic legislation and administrative processes
identified prior to signature and from having more informed debate
upon the advantages and disadvantages of various treaties before
Australia is committed.
The Executive would be more accountable to Parliament for the
treaties it signed. This process would allow those outside the
Executive an earlier opportunity to identify concerns and comment
upon them. This may have the effect of lessening the concerns of
the States that the Executive is identifying and signing
International treaties that increase the legislative's powers and
consequently erode Australia's Federal system, although the States
may take a contrary view and argue that their interests are not
always protected. For example, following the Toonen case,
Parliament enacted legislation designed to override the existing
Tasmanian legislation. (24) This may enhance the perception that
Australia's treaty-making process is a democratic one.
A major disadvantage of this mechanism is that any delay in
approval of a treaty may impair or extinguish Australia's role in
influencing and negotiating the terms of the actual text. This is
quite a significant disadvantage as the more contentious provisions
of the multilateral treaties are negotiated quite thoroughly and
over considerable periods of time before the final text of the
treaty is opened for signature. Since Australia could not obtain
Parliamentary approval of the text of the treaty until the final
stage, Australia's effectiveness at the negotiations stage may be
weakened. Taken to extremes, the situation may eventuate whereby
Australia negotiates for a particular draft of text and then fails
to obtain parliamentary approval of the same text.
A practical problem would be that negotiations for multilateral
treaties tend to be conducted in several sessions over a period of
time. It would be quite difficult to circulate draft texts and
obtain comments in the time that negotiations are taking place.
Another disadvantage is that there will be less freedom for the
Executive to negotiate and execute treaties. Possibly, obtaining
rapid Parliamentary approval may be difficult for 'urgent' treaties
(25) (or conceivably for security reasons) and would undoubtedly
cause delays. There are some cases where wide scrutiny may
prejudice treaty negotiations, for example, where the material
being negotiated is commercially sensitive and the other
contracting state does not want the material released.
As a consequence, Australia may be less well regarded as an
international good citizen if it delays in signing important
treaties.
Perhaps one other consideration is the argument that any
necessary implementing legislation has to be passed by both houses
anyway and therefore a de facto parliamentary approval is
given at that time. The problem with this argument is that at the
international level, Australia is already bound and therefore there
is considerable pressure upon the Parliament to enact the domestic
implementing legislation.
Making Parliamentary Approval A Prerequisite For
Ratification
This option would involve Australia announcing that signature to
a particular treaty was not binding until the instrument had been
ratified. Then the Executive would seek Parliamentary approval of
the text of the treaty and, if appropriate, ratify the treaty at a
later stage. Examples of other states that have adopted this sort
of process include the United States of America (which requires a
2/3 majority in the Senate (26)), the Netherlands, Argentina and
Italy. A more detailed summary of the practice in some other
federations is provided in the Appendix to this paper.
This overcomes the problem of Australia being handicapped during
the negotiation process that may occur with requiring Parliamentary
approval prior to signature. The above advantages are equally
applicable under this proposal, namely greater accountability of
the Executive, more scrutiny of treaty texts prior to them having
effect in Australia and arguably a more democratic procedure for
treaty-making.
One disadvantage is that there may be a delay between signature
and ratification which leaves treaties 'in limbo'. Since
parliamentary approval has not been obtained on the treaty text it
is conceivable that objection might be taken to provisions in the
treaty. However, the treaty would already have been signed and it
may be difficult to subsequently enter a reservation, since these
are generally done at the time of signature. If ratification is not
given then there is a practical problem of what status the
unratified treaty text has. Former Prime Minister Whitlam is
strongly of the view that there should be consultation with the
States prior to ratification but there should be a time limit set.
(27) Justice Evatt does not favour making Parliamentary approval a
precondition for ratification of treaties. (28) In general, delays
between signature and ratification are undesirable.
The other disadvantages listed above are equally relevant here.
They include a curtailing of the freedom of the Executive to enter
into treaties and a possible loss of Australia's reputation as a
good international citizen.
One of the ways in which this proposal could be implemented is
to follow one of the recommendations made by the Australian
Constitutional Commission in 1988, namely to establish a Treaties
Council. This recommendation was also made by the 1984 Australian
Constitutional Convention. A Treaties Council would be composed of
persons with knowledge and experience in international law and
inter-governmental relations. Treaties would be sent in draft form
to the Treaties Council, who would then be in a position to
circulate them and obtain comments from interested groups and
members of the public. The Treaties Council would also look at
implementation of the treaty and would confer with the States
before reporting back to Parliament.
On 30 October 1994, the then Leader of the Opposition, Mr
Alexander Downer MP, announced that the Coalition proposed to
establish a Treaties Council. (29)
Some academics, led by Professor Hilary Charlesworth, advocate a
similar proposal:
We favour a consultative process
established by the standing orders of the Parliament to the effect
that the Government consult with a Parliamentary standing committee
in respect of all treaties that require or contemplate eventual
legislative implementation. In the present scheme of things, this
would be a Senate Committee, but it need not be. The constitutional
justification for this new process would be the power of the
Parliament, in a system of responsible government, to keep itself
informed of Executive practice in matters affecting its confidence.
(30)
While others argue that it is unnecessary given the present
procedures. (31)
There is also an issue as to whether the Treaties Council would
be able to make binding recommendations to Parliament or whether
they would merely be recommendations to be considered. Professor
Cheryl Saunders argues that:
...if the two Houses of the
Commonwealth Parliament were to assume a role in relation to the
ratification of international agreements, there is no reason why
the views of Australian Heads of Government, expressed through the
Council of Australian Governments or a modified Treaties Council,
should not be one of the matters to which the Parliament expressly
has regard, at least where the agreements in issue have particular
relevance to the states. (32)
The presence of a Treaties Council should promote wider
dissemination of treaty texts which in turn should promote greater
public debate and consultation. Certainly there would be increased
scrutiny of treaties prior to Australia being bound than currently
exists.
The Treaties Council would be in an informed position and would
be able to make recommendations to Parliament regarding treaty
texts being considered by the Executive Government.
The disadvantages are again that this would: curtail the freedom
of the Executive to negotiate and sign treaties; cause some delays
in the process of treaty-making; duplicate some of the existing,
informal procedures for consultation.
Parliament could legislate to require treaties to be tabled
after signature but prior to ratification. In theory, the Executive
already follows this procedure which is called the Ponsonby
Rule. However, in practice there is often little opportunity
for Parliamentary debate and until the 21 October 1994 when the
Government changed its practice, ratification had already occurred
before the treaty was tabled.
One outcome of adopting this sort of procedure is that it would
change the status of ratified treaties in Australian domestic law.
Justice Evatt is of the opinion that the more parliamentary
involvement you have prior to ratification the more likely it is
that a treaty will be self-executing once ratified, although of
course an amendment to the Constitution would be required in
Australia to achieve this. By self-executing, Justice Evatt is
referring to the possibility that the treaties will be part of
Australian domestic legislation without implementing legislation.
(33) She also expressed the view that the tabling of treaties would
keep the Parliament informed of trends and developments in
international law. (34)
This would involve approving the text of a redefinition of the
External Affairs power and then submitting that text to a
referendum. If approved then the Constitution could be amended to
restrict the operation or extent of the External Affairs power.
This issue has been canvassed by the Constitutional Commission
in their 1988 report. (35) In that report, the majority of the
Commission were in favour of leaving the External Affairs power
intact. The majority included prominent constitutional lawyers such
as Sir Maurice Byers, Professor Campbell and Emeritus Professor
Zines.
If it were possible to suitably redefine the External Affairs
power then the advantage would be that the Government would no
longer have the legislative power to enact legislation that is
otherwise unconstitutional.
An amendment to the Constitution of this type does not prevent
the Executive from entering into international treaties and
committing Australia. It merely prevents Parliament from enacting
federal implementing legislation that would otherwise be
unconstitutional. Therefore, the amendment would not answer the
criticisms of the current system where Australia can be bound
without Parliamentary involvement.
Perhaps the greatest difficulty with this proposal is that it is
very difficult to agree on a suitable amendment that guarantees to
redefine the External Affairs Power to promote certainty in its
scope whilst maintaining the balance between State powers and
Federal powers. Quite clearly, the External Affairs power is one of
the fundamental powers in the Constitution and it is necessary for
the Government in power to have some sort of authority to deal with
matters external to Australia. Without such a power, Australia
would have difficulty functioning as a sovereign state at the
international level.
Even if a suitable redrafting of the External Affairs Power were
to be agreed upon, there are other arguments against utilising this
mechanism to alter the treaty-making procedure. For example, there
is an argument that for the Commonwealth to enact legislation
implementing treaty obligations is more efficient in terms of
resources than for each State and Territory to enact its own
legislation. To quote Sir Anthony Mason:
Conduct of international affairs
would be a nightmare if legislative implementation of Australia's
treaty obligations were to become a matter for each State to
decide. (36)
Although of course a number of Australia's treaty obligations
are left to the States to implement and so in practice there is a
degree of State autonomy.
The option of redefining the External Affairs power does not
seem to attracted much academic support. (37) For example,
Professor Winterton says:
...greater participation in
treaty-making and implementation by the Commonwealth Parliament,
State and Territory governments, and the general public should be
encouraged, and secured by institutional mechanisms established, if
necessary, by Commonwealth legislation. Only if such political
constraints have been given a fair trial and proven inadequate to
address the States' reasonable concerns should constitutional
amendment be contemplated. (38)
Apart from the above considerations, the practical difficulty
with this option is that, from an historical perspective, proposed
changes to the Constitution have been largely unsuccessful when put
to a referendum. Of the forty-two proposals for amending the
constitution put to a referendum since Federation, only eight have
been accepted. A further two proposals (relating to military
conscription) were also rejected. (39)
The increasing range of international multilateral instruments
covering important and universally recognised areas of human
rights, environmental protection and the division of global
resources are clearly intended to benefit humanity. Australia gains
benefits from aspiring to the sorts of ideals that are contained in
those instruments. Nevertheless, the underlying principle that the
Executive should not be able to increase its constitutional powers
by ratifying instruments is a serious consideration. Clearly there
has been a degree of concern expressed on this issue. This paper
presents the options available if a change to the current system
were contemplated. All options have their advantages and their
disadvantages. However, it seems as though the reinstatement of the
Ponsonby Rule would be the simplest method and the
establishment of a Treaties Council would facilitate the most
community discussion. Care would need to be taken not to interfere
with Australia's role in the negotiation process of major
international treaties. Also, delays between signature and
ratification should be avoided where possible. There is also an
argument for adopting a separate regime for those treaties that
deal with human rights or matters of an urgent nature, in order to
avoid delays. Whether or not any change to the current system is
required is really a political issue and whatever the outcome,
Australia should hope to maintain its international reputation and
strive to have the best possible domestic legislation.
The American Constitution makes external affairs an exclusively
federal power. The President is able to conclude foreign treaties
with the advice and consent of the Senate. Ratification of foreign
treaties is a legislative act. Article 2 of the US Constitution
requires 2/3 of the Senate to endorse a treaty prior to
ratification. However, once such treaties are ratified article VI
(2) states that they become part of the 'supreme Law of the Land'
and equal to acts of Congress and even to the Constitution
itself.
Only those treaties which clearly create rights/obligations are
self-executing (40). A self-executing treaty is one that is
sufficiently clear and precise in its terms that courts can apply
it as if it were a statute. If a given treaty is not sufficiently
clear and precise then domestic implementing legislation will be
required. Interestingly, Congress is able to subsequently alter or
repeal a treaty. This leads to the bizarre situation whereby
Congress can repeal a treaty but the United States as a whole
remains accountable to other treaty parties! The American system
has not always worked smoothly with some extensive delays between
signature and ratification resulting in treaties hanging in limbo
for many years.
If Australia adopted a system of parliamentary ratification (41)
then the treaty would become law upon ratification by Parliament. A
change to the Constitution would be required to achieve this. For
example, If we had to implement a similar system, we would need to
amend the Constitution, as currently only a simple majority is
provided for (section 23 and section 40 of the Constitution).
Alternatively, Parliament could enact legislation requiring a
simple majority to approve a treaty text without any amendment to
the Constitution being required.
Once again, treaty-making is essentially a federal act with the
President concluding treaties on behalf of the Federation.
Notwithstanding this, the 1957 Lindau Agreement gives the German
States the power to conclude their own treaties provided that the
consent of the Federal Government is obtained. The Federal Republic
of Germany has something akin to a Treaties Council: a Permanent
Treaty Commission. The Commission was established under the Lindau
Agreement and scrutinises the negotiation, signature and
ratification of treaties. Those treaties that deal with matters of
federal importance require the consent of Parliament prior to
ratification.
The Executive Government does not have a specific constitutional
power to enter into treaties, however, it inherited this power at
the time of Canadian independence from Great Britain. Under the
Constitution, the Parliament and Government of Canada is given all
powers necessary or proper to perform treaty obligations. This is
roughly equivalent to Australia's section 51(xxix) although
possibly more far-reaching. There is no Treaties Council
equivalent.
Generally speaking, it has been the Canadian Government's
practice to seek Parliamentary approval of important multilateral
treaties between signature and ratification. In Canada, as is the
case in Australia, treaties only have domestic effect when
implementing legislation is enacted.
The Netherlands require parliamentary approval for ratification.
Parliaments that have the power to give consent subject to
reservations include Brazil, Germany, the Netherlands and
Switzerland. In the case of Switzerland, different categories of
treaties are treated differently. Some are put to a referendum,
either optional or compulsory depending upon their nature. The more
important treaties must be approved by the Federal Assembly even
though the executive has the power to conclude them.
- For example see Sir Ninian Stephen's paper presented at the Sir
Earle Page Memorial Trust Lecture, reported in Australian
Lawyer March 1995 at p13.
- Shearer, I.A. The Growing Impact of International Law on
Australian Domestic Law - Implications for the Procedures of
Ratification and Parliamentary Scrutiny (1995) ALJ Vol 69:404
at p405.
- See R v Burgess; Ex Parte Henry (1936) 55 CLR
608 per Latham CJ at 644.
- Per Mason CJ, Deane and Toohey JJ in Minister for
Immigration and Ethnic Affairs v Teoh (1995) 128 ALR
353 at p354.
- Per Mason CJ, Deane and Toohey JJ in Minister for
Immigration and Ethnic Affairs v Teoh (1995) 128 ALR
353 at p354. C/f the introduction into the House of Representatives
on 28 June 1995 of the Administrative Decisions (Effect of
International Instruments) Bill 1995.
- Article 19 (5) of the ILO Constitution requires each state to
refer the final agreed text of a convention promptly to that
state's competent authority. In Australia's case, the Department of
Industrial Relations takes responsibility for complying with
Article 19 (5) by tabling the Conventions before Parliament and
therefore they are dealt with separately from other treaties.
- In fact, Senator Evans stated that 'Tabling treaties is not
intended to be an exercise in ascertaining Parliament's views about
whether or not Australia should become a party.'
- Press release (Minister for Foreign Affairs), M134, 21
Oct.1994.
- The Commonwealth v Tasmania. The Tasmanian Dam Case
(1983) 158 CLR 1 per Mason J at p131.
- Renowned constitutional lawyer Emeritus Professor Zines is of
this opinion. See Zines, L. The High Court and the Constitution
(3rd Ed) p 254.
- The Commonwealth v Tasmania. The Tasmanian Dam Case
(1983) 158 CLR 1 per Gibbs CJ at p98.
- Per Stephen J in Koowarta v Bjelke-Petersen
(1982) 153 CLR 168: "...the quality of being of international
concern remains, no less than ever, a valid criterion of whether a
particular subject-matter forms part of a nation's "external
affairs"."
- Ibid. Also see Staker, C, in Saunders, C (ed), Laws of
Australia: Government, Title 19, (1994) at 173-80;
- Opeskin, B and Rothwell, D, The Impact of Treaties on
Australian Federalism (1995) Case W. Res. J. Int'l.L. Vol
27:00 1 at 54.
- Joint Submission of the States and Territories, (No. 107) to
the Senate Committee on Legal and Constitutional Affairs, Hansard
Vol 6, pp1331-4.
- Senate Legal and Constitutional References Committee Report
November 1995: Trick or Treaty? Commonwealth Power to Make and
Implement Treaties.
- See Greig, D. International Law (2nd Ed) 1974
p463.
- Per Mason CJ and Deane J in Teoh's case. It was held
by the majority in that case that Australia's ratification of the
United Nations Convention on the Rights of the Child
created a legitimate expectation (not necessarily an actual
expectation although there was a dissenting opinion on this point)
in Mr Teoh that the decision-maker would conform to the provisions
of the convention when exercising their discretion.
- Joint Statement by the Minister for Foreign Affairs, Senator
Gareth Evans, and the Attorney-General, Michael Lavarch of 10 May
1995.
- The Minister for Foreign Affairs, Senator Gareth Evans,
indicated that the Government accepts that ratified but
unimplemented treaties can affect Australian law:
The courts have traditionally used
treaties to which Australia is a party in a limited way - to
resolve ambiguities in legislation, and as a guide in developing
the common law...particularly where a treaty declares universal
fundamental rights...
- See Henry Burmester's opinion to the Senate Committee on Legal
and Constitutional Affairs of 13 June 1995.
- Reservations are formal declarations which may be made by a
state (usually at the time of signature) regarding some treaty
provisions. The reservation might be, for example, that the state
does not agree to a certain provision or interprets an obligation
in a particular way. Reservations are not permitted if their effect
is to undermine the treaty as a whole and not all treaties allow
reservations to be made.
- One way of implementing this and achieving a greater degree of
public support would be to legislate to establish a Standing
Parliamentary Treaties Commission. The Commission would then
disseminate draft treaties (through Government bookshops) and
obtain public comment.
- The Human Rights (Sexual Conduct) Act 1994 was enacted
to override the provisions of the Tasmanian criminal code which
were found by the United Nations Human Rights Committee to breach
article 17 of the International Covenant on Civil and Political
Rights. For further details see: Twomey, A., Strange
Bedfellows: The UN Human Rights Committee and the Tasmanian
Parliament, PRS Current Issues Brief No. 6 of 1994.
- An example of a recent treaty that was negotiated and concluded
urgently is the Bougainville Treaty. The whole process took only a
few days and (arguably) if the Executive had had to seek
Parliamentary approval prior to signature the timetable could not
have been kept.
- Article 2 of the US Constitution requires 2/3 of the Senate to
endorse a treaty prior to ratification. The American system has not
always worked smoothly with some extensive delays between signature
and ratification resulting in treaties hanging in limbo for many
years.
- In his submissions to the Senate Legal and Constitutional
References Committee on 16 May 1995. Hansard p374.
- See the submission of Justice Evatt to the Senate Standing
Committee on Legal and Constitutional Affairs, Hansard v 7
p1411.
- The full proposal is set out in: Williams, D Australia's
Treaty-Making Processes: The Coalition's Reform Proposals
(1995) published in Treaty-Making and Australia. Globalisation
versus Sovereignty? (1995) Ed. Alston and Chaim.
- The submission from Professor Hilary Charlesworth, Jane Cox,
Michael Detmold, Chris Finn and Rosemary Owens (University of
Adelaide Law School) to the Senate Standing Committee on Legal and
Constitutional Affairs, Hansard v 5 p1022.
Also, Justice Evatt was in favour of the establishment of an
Australian Treaties Council with non-binding powers in respect of
the ratification and implementation of treaties. See her submission
to the Senate Standing Committee on Legal and Constitutional
Affairs, Hansard v 7 p1416.
- For example, Henry Burmester's opinion to the Senate Committee
on Legal and Constitutional Affairs at p718:
The Attorney-Generals Department
believes that the existing mechanisms for consulting the States and
the Territories and industry on treaty matters are satisfactory.
However, there is no doubt that the States do not avail themselves
fully of the consultation process - for example they could make
greater use of the Commonwealth-State Standing Committee on
treaties.
- Saunders, C Articles of Faith or Lucky Breaks? The
Constitutional Law of International Agreements in Australia
Syd. Law Rev. v 17(2) June 1995 150-176, at 166.
- Justice Evatt's submissions to the Senate Legal and
Constitutional References Committee on 16 May 1995. Hansard
p380.
- See the submission of Justice Evatt to the Senate Standing
Committee on Legal and Constitutional Affairs, Hansard v 7
p1411.
- Final Report of the Constitutional Commission 1988
Vol. 2 at p740.
- Mason, A. 'The Australian Constitution 1901-1988'
(1988) 62 ALJ 752 at 755.
- See the submission from Professor Hilary Charlesworth, Jane
Cox, Michael Detmold, Chris Finn and Rosemary Owens (University of
Adelaide Law School) to the Senate Standing Committee on Legal and
Constitutional Affairs, Hansard v 5 p1019.
- Winterton, G. A Framework For Reforming the External
Affairs Power (a paper delivered to The Samuel Griffith
Society Fifth Conference at Sydney on 1 April 1995).
- Parliamentary Handbook of the Commonwealth of Australia (26th
Ed) 1993 at p689.
- Another example is France. Articles 55 and 56 of the French
Constitution give properly ratified treaties immediate application
in French domestic law. The treaty is given such status that it
supersedes conflicting domestic law and can be applied directly by
the courts
- Australia would need either an amendment to the Constitution to
require parliamentary approval in order to achieve ratification or
legislation.