The role of parliament in treaty making
As outlined in Chapter 2, the executive government has the power to
enter into treaties under the Constitution. Parliament's main role in the
treaty-making process is to implement treaties once they have been signed by
passing implementing legislation.
The role of the parliament in the treaty-making process has long been
the subject of discussion in Australia. The issue continues to attract the
attention of the community and of stakeholders interested in the negotiation of
large and complex trade agreements. This chapter provides background on
previous reform attempts and practices in other jurisdictions, and analyses
proposals aimed at strengthening parliament's role in the treaty-making
The role of parliament in the treaty-making process has been the subject
of debate in Australia for several decades. In 1985 the Constitutional
Convention was established to undertake a fundamental review of the Australian
Constitution. The Constitutional Convention, and the Advisory Committee on the
Distribution of Powers that reported to it, both recommended that the status
quo with regard to the role of parliament in treaty making be retained.
However, dissenting reports were submitted to the Advisory Committee by Mr
and the Constitutional Commission by Professor Leslie Zines.
Both reports concluded that the arguments in favour of greater parliamentary
participation in the treaty-making process were sufficiently persuasive to
justify adoption of a system of parliamentary approval on a trial basis.
There have been several initiatives for parliamentary scrutiny of
treaty-making, including attempts to legislate for parliamentary approval of
treaty action. In 1994, the Australian Democrats introduced the Parliamentary
Approval of Treaties Bill 1994 and re-introduced it in a revised form in 1995,
but the bill lapsed due to the calling of the 1996 election. The bill
established a mechanism similar to the disallowance of regulations, so that a
treaty would be deemed to be approved without a notice of motion being moved to
oppose it 15 sitting days after its tabling in each house. The important point
is that the bill was not designed to force the executive to enter into a treaty
or to give parliament the power to enter into treaties. It would only have
enabled parliament to prohibit the executive from entering into a treaty.
The introduction of the 1996 reform package and the Department of
Foreign Affairs and Trade's (DFAT's) 1999 review, which concluded that the
reforms were operating well and there was no need for further change, put the
issue of parliamentary approval of treaties on the political back-burner for
the better part of ten years.
In 2003, the Foreign Affairs, Defence and Trade References Committee's
inquiry into the General Agreement on Trade in Services and the proposed
Australia-United States Free Trade Agreement revisited the issue of
parliament's involvement in in the process of negotiating bilateral and
multilateral trade agreements. Chapter 3 of the 2003 report, 'Treaties and the
parliamentary process', included an overview of the Constitution and the
treaty-making process, a summary of the Trick or Treaty? report and the
1996 reforms, the work of Joint Standing Committee on Treaties (JSCOT) and a
discussion of the process of stakeholder consultation and the level of
parliamentary scrutiny of treaties.
In light of the evidence received from submitters, the committee
recommended that the government introduce legislation to implement a process
for parliamentary scrutiny and endorsement of trade treaties. The process was
to include parliament voting on a treaty and any implementing legislation in an
'up or down' vote (either accepting or rejecting the package in its entirety).
The government rejected the committee's recommendation in a lengthy
...the report's recommendation on trade treaties and the
Parliamentary process would be unworkable. It would circumscribe the capacity
of the Government to secure the best possible trade outcomes from trade
negotiations. It would undermine the Executive's constitutional authority to
The response concluded that it was the government's view that the twin
objectives of promoting trade growth and ensuring that appropriate consultation
is undertaken with the broader community '...are best met by current
Parliamentary and consultation processes and practices'.
In February 2012, the Hon Bob Katter MP introduced the Treaties
Ratification Bill 2012 which contained only one substantive provision: that the
Governor-General must not ratify a treaty unless both houses of parliament
have, by resolution, approved the treaty.
On 16 February 2012, the House Selection Committee referred the bill to
JSCOT for inquiry. JSCOT found that the bill, if passed, would create problems
for both parliament and the executive:
The sheer number of treaties along with the political nature
of the Senate has the potential to overwhelm the Parliamentary process. This,
and the Bill's lack of a provision for short-term emergency treaties, makes the
Not surprisingly, JSCOT recommended that the bill not be passed by the
House or the Senate. It is interesting that as part of its inquiry into the
bill, JSCOT took the opportunity to summarise previous parliamentary
initiatives to scrutinise the treaty-making process. As a result of its
overview, JSCOT noted that it had previously called for greater transparency in
trade agreement negotiations, particularly in the context of concerns expressed
by witnesses to its 2008 inquiry into the Australia-Chile Free-Trade Agreement.
At that time it had recommended that:
...prior to commencing negotiations for bilateral or regional
trade agreements, the Government table in Parliament a document setting out its
priorities and objectives. The document should include independent assessments
of the costs and benefits. Such assessments should consider the economic
regional, social, cultural, regulatory and environment impacts which are
expected to arise.
The JSCOT report on the Treaties Ratification Bill 2012 expressed
disappointment that the process for greater transparency recommended in its
2008 report had not been taken up by the government. Accordingly, the committee
repeated its recommendation in a slightly abbreviated form:
Prior to commencing negotiations for a new agreement, the
Government table in Parliament a document setting out its priorities and
objectives including the anticipated costs and benefits of the agreement.
JSCOT concluded its report by noting that notwithstanding its activities
and numerous previous inquiries:
...there appears to remain a conviction in parts of the
community that true Parliamentary approval can only consist of direct approval
by both chambers as has been advocated by the reform attempts described [in
The issue of parliamentary approval of treaties continues to attract the
community's attention and that of stakeholders involved in the negotiation of
large and complex trade agreements.
Practices in other jurisdictions
Direct comparison of the Australian treaty-making process and the
processes in other jurisdictions is difficult, as Australia has a different
constitutional structure in place. However, it is useful to consider how other
jurisdictions balance the respective roles of their executive and legislative
branches of government in respect of treaty-making.
Traditionally, the treaty-making power in the United Kingdom is a power
of the Crown, exercised by the Secretary of State for Foreign and Commonwealth
Affairs. The role of parliament in the negotiation and conclusion of treaties
is limited, although as in Australia, parliament has a role in passing
implementing legislation to give effect to treaties in domestic
From 1924, the United Kingdom had a requirement known as the 'Ponsonby Rule'
that certain treaties subject to ratification be laid before parliament, with a
short explanatory memorandum, for 21 sitting days. It was then open to the
House of Commons to debate the treaty.
In 2010, the United Kingdom significantly reformed its system of parliamentary
scrutiny of treaties, enacting the Constitutional Reform and Governance Act
2010. Under this act, the Ponsonby Rule was replaced by a statutory process
laid out in section 20. In short, these statutory changes make it unlawful for
the government to ratify a treaty if the House of Commons repeatedly disallowed
ratification. The House of Lords does not have the power to disallow treaty
ratification, but can require the government to produce further explanatory
The 28 European Union (EU) members still largely control their own
foreign relations. However, on some topics the EU endeavours to speak with one
voice as it holds more weight as a single negotiating bloc. Trade policy is an
exclusive power of the EU—only
the EU and not individual member states can legislate on trade matters and
conclude international trade agreements.
The European Commission negotiates with a trading partner on behalf of
the EU. The Commission requests authorisation to negotiate a trade agreement
with a trading partner from the Council, which sets out the general objectives
to be achieved. While negotiations are ongoing, the Commission reports
regularly to the Council and the European Parliament.
Once negotiations are complete, the Commission presents the deal to the
Council to decide on signature and conclusion of the agreement. After
signature, the agreement is sent to the European Parliament, which has the
power to vote either for or against the agreement ahead of ratification. Where
the agreement contains provisions that relate to areas of member state
responsibility, the agreement must also be ratified by member states in
accordance with their ratification procedures.
The committee received evidence in relation to the EU's new policy
around transparency of trade negotiations which was published by the College of
Commissioners in November 2014. Under the new approach, all 751 members of the
European Parliament, and in some cases their staff, will be granted access to
texts currently made available to a select group of law makers (members may
inspect restricted text in a reading room). The Commission is also seeking to
classify fewer documents as 'restricted' to make them more accessible outside
the confines of a reading room.
Unlike in many other countries, including Australia, when the United
States ratifies a treaty it immediately becomes part of the 'supreme law of the
land'. This means that a treaty provision that is sufficiently clear and
precise to be applied as if it is a statute will be considered
'self-executing', and treated as equal to an Act of Congress. As such, there is
considerable uncertainty around which treaty provisions are self-executing, and
which require legislation to implement.
There are several ways for the President to secure the authority to
enter a treaty:
Under Article II of the Constitution, the president can ratify a
treaty with the 'advice and consent' of two thirds of the Senate. The Senate
can vote not only on whether to accept or reject the treaty in its entirety,
but can also amend the treaty. By taking this approach, there is no requirement
to consult with the House of Representatives.
The President can also enter into 'executive agreements', which
can be ratified without the consent of the Senate. While considered treaties
under international law, these generally relate to foreign relations or
military issues rather than those impacting on the rights and obligations of
Under the Trade Promotion Authority (or 'fast-track negotiating authority'),
Congress can grant the President temporary power to negotiate trade agreements.
In this situation, Congress has the power to approve or disapprove the final
treaty, but cannot amend it. This approach does not require a two thirds
majority in the Senate.
Trade Promotion Authority
The Trade Promotion Authority (TPA) was last in effect from 2002 to
2007. Legislation to re-authorise TPA was introduced in the Senate and the
House as the Bipartisan Congressional Trade Priorities and Accountability
Act of 2015 in April 2015. This could allow for an up or down vote on the
TPP and any other trade negotiations concluded by 2018 when the current version
of the bill expires.
At the time of writing, the bill had passed both the US Senate and House of
As transparency arrangements under the Trade Promotion Authority differ
from other treaty-making processes in the US, they are worth considering in
more detail. According to Associate Professor Weatherall:
The Congress enacts TPA legislation that defines negotiating
objectives (including specific provisions that limit the President's authority
to liberalise trade in the US) and prioritises for trade agreements, and
establishes consultation processes.
The various notification and consultation requirements of TPA
in the US are designed to achieve greater transparency in trade negotiations,
and maintain some role for Congress in shaping trade policy.
Under the US' general treaty-making process, negotiating texts are not
made available to members of Congress. The Obama administration has developed a
practice of allowing members of Congress to see draft negotiating texts.
The process is highly controlled. Texts may be viewed but
there is no capacity to take notes or retain copies of text. Staff with security
clearance may view texts with Members but may not view texts unless the member
of Congress is present.
The bill in its current form would formalise the existing practice of
the Obama administration with respect to access for members of Congress to draft
treaty text by requiring that the United States Trade Representative provide
members of Congress and their cleared staff (in the presence of the member), as
well as appropriate committee staff, access to pertinent documents relating to
trade negotiations, including draft texts and classified materials.
Access to text is still provided in a manner that is restricted through the use
of confidentiality agreements and dedicated reading rooms.
The guidelines would also require the President to consult with congressional
advisory groups (CAG), in both chambers, made up of members of Congress.
The treaty-making process in Canada bears strong resemblance to the
process in Australia. As in Australia, the executive branch of government has
the power to negotiate, sign and ratify international conventions and treaties.
Parliament is responsible for implementation of the treaty through domestic
legislation (if required).
While implementing legislation is usually passed by parliament, in 1988 the
Senate refused to pass the proposed Canada–United States Free Trade Agreement
Implementation Act, thereby triggering an election.
While the executive is responsible for ratification of the treaty, parliament
has long had some involvement in the process. In 2008, the federal government
implemented a policy of ensuring treaty texts are tabled in the House of
Commons 21 sitting days prior to the treaty coming into effect. The House
of Commons can debate the treaty and pass a motion recommending the action to
be taken; however, such a vote has no legal force and is a courtesy on the part
of the executive.
New Zealand's treaty-making process also closely resembles that in
Australia. As in Australia, entry into treaties is a power of the executive
government, while the parliament has responsibility for implementing
legislation. Under New Zealand's parliamentary treaty examination process, all
multilateral treaties and major bilateral treaties of particular significance
are presented to the House of Representatives before binding treaty action is
taken. Once presented, the treaty stands referred to the House Foreign Affairs,
Defence and Trade Committee, which may inquire into the treaty (or refer it to
a more relevant committee). The government does not take binding treaty action
until a committee report is handed down or 15 sitting days have elapsed (except
in urgent cases), and if implementing legislation is necessary, binding treaty
action will not be taken until the required legislation is passed.
A strengthened role for parliament
A majority of submitters argued that parliament needs a strengthened
role in the treaty-making process, though not all were convinced it was
necessary to implement a system of parliamentary approval of treaties.
DFAT argued that reform of parliament's role in treaty-making was not
required. DFAT's submission stated:
respects the balance that has been secured in the treaty-making process between
the respective roles of the Executive, which has formal responsibility under
the Constitution for treaty-making, and the Parliament, which plays a
significant role in relation to scrutiny and implementation of treaties.
Mr Andrew Hudson from the Export Council of Australia agreed that the
current system achieved a balance between the executive and parliament. He told
would think that there could be improvements to how society and industry can
engage inside the confidential ring... but we think broadly, procedurally we have
got a pretty good system.
The perspective of DFAT and the Export Council of Australia was at odds
with the majority of submitters that did not consider the respective roles of
the executive and parliament to be well-balanced. Dr Patricia Ranald from the
Australian Fair Trade and Investment Network (AFTINET) argued that parliamentary
scrutiny of treaties needs strengthening as trade agreements now include
detailed treatment of topics that would previously have been subject to
government legislation. As she explained to the Committee:
argument is that since trade agreements are now dealing with all these issues
that would normally be decided through an open democratic process domestically
involving public discussion and parliamentary legislation, then the trade
agreement process needs to be a lot more open...there is a whole lot in the text
that is very important that Parliament does not get to vote on.
This point was also made by union representatives. As Ms Kearney, Australian
Council of Trade Unions (ACTU), stated:
have seen over recent decades the significant expansion of trade agreements
beyond reduction in tariffs or taxes on imports, and so the demand for a more
open and democratic process for trade agreements has grown, because they are
increasingly dealing with an expanding range of other regulatory issues which
would normally be debated and legislated through the democratic parliamentary
process and which have deep impacts on Australians' lives.
Associate Professor Weatherall pointed out that it is not just that trade
agreements are covering topics not previously included in international
agreements, but also that the agreements themselves are highly prescriptive.
She told the Committee:
nub of the issue now is that IP chapters look like legislation, and they are at
that level of detail. Traditionally, power to make legislation and to specify
domestic policy at that level of detail has lain with parliament. If we are
going to make agreements at that sort of level we need the same sort of
parliamentary input and public input that we would have into legislation,
because that is the level we are talking about...
generally it is about the change in the topics that the trade agreements are
now covering. The focus has shifted from tariff setting to behind the border
domestic regulation issues. Once you are really impacting in detail on all
sorts of domestic regulation issues, then I think you need much more public and
Several submissions suggested that, in a number of key fora,
transparency had decreased and this justified strengthening the role of parliament.
As Ms Hepworth explained:
copyright was decided in very open, transparent multilateral fora... The
inclusion of a very complex subject matter such as copyright—and, I believe, from experts in other areas, increasing
complexity in their subject matter as well—in
trade agreements has definitely changed the focus of trade agreements and their
impacts on Australia.
Parliamentary approval of treaties
As outlined above, there have been several attempts to legislate for
parliamentary approval of treaties, none of which have been successful. However,
support for parliament to have the power to approve or disapprove proposed
treaty action remains firm in some parts of the community.
Many submissions captured a level of public discomfort with parliament's
current role. As Ms Alanna Hardman explained:
have very real concerns that such treaties can become law without having to be
put to the Parliament of Australia for debate and approval, prior to agreement.
International trade treaties have ramifications for many Australian citizens
(and citizens of foreign nations) and it is important for there to be public
discussion on the merits or otherwise of aspects of trade treaties that may have
the potential to conflict with our rights...
Professor Lindell's submission supported adoption on a trial basis of a
statutory system of parliamentary approval, as outlined in his dissenting
report to the Advisory Committee on the Distribution of Powers in 1987.
A number of organisations also endorsed a system of parliamentary approval. Dr
Ranald from AFTINET explained:
want more involvement by parliament. That means that we believe the parliament
should vote on the whole text, not just the implementing legislation. We have
consulted, and various constitutional experts have made submissions...They agree
that there is no constitutional barrier to cabinet referring its ability to
sign trade agreements to parliament so that parliament can vote on the whole agreement,
and then having it go back to cabinet, if it is approved, for them to do the
technical signing process.
Mr Dettmer, ACTU, agreed that a system of parliamentary approval was
necessary due to a 'democratic deficit' that exists in the current system, in
which executive governments can enter treaties without the consent of
parliament. He told the committee:
we now have...is, of course, a process of any number of issues, which really are
the sovereign responsibility of the parliament, being the subject of treaties
with foreign governments, which then somehow preclude the democratic process
from having any oversight or involvement...[T]his democratic deficit is something
which we believe is a signal failure on the part of successive governments...
Dr Rimmer also favoured a system of parliamentary approval of treaties
suggesting that trade agreements could be used to 'fast track' policy changes
without parliamentary scrutiny:
in Australia and elsewhere, like the United States, there is some concern that
if you do not get your way through normal processes and if you stick something
into a trade agreement, that might be a means to fast track something that
might be otherwise politically unpalatable or unpalatable to the public.
Submissions from Dr Rimmer, the ACTU and the National Tertiary Education
Union (NTEU) referred to the views of constitutional experts Professor George
Williams, Professor Hilary Charlesworth and Professor Ann Twomey, published in
other contexts, to argue that a greater role for parliament is consistent with
the Constitution. For example, according to the ACTU submission:
Based on the historical
development of treaty-making in Australia, Professor Twomey argues that it
would be constitutional for the treaty-making power of the Executive to be
limited by a provision of the approval of both Houses of Parliament.
Professor Twomey notes that there
are several examples in the Westminster system in which the decisions of the
Executive on international agreements are subject to Parliamentary approval.
The committee was persuaded by evidence that the context of treaty
making—particularly in relation to trade treaties—had changed dramatically in
recent decades and that a review of parliament's role in treaty-making is necessary.
The committee acknowledges evidence from submitters in support of a process
of parliamentary approval of treaties, including a mechanism similar to that
which is used to disallow legislative instruments. Balancing the power of the
executive to act unilaterally and decisively in the national interest with the
need for democratic deliberation through parliamentary oversight is a recurring
theme in the debate on this issue.
A question that the committee has attempted to resolve is: how far
should parliament's role in treaty-making go, and should it be underpinned by legislation
similar to the bills introduced by the Australian Democrats in the 1990s and by
the Hon Bob Katter MP in 2012. While the committee believes it is necessary to
strengthen the role of parliament, it is not convinced that a dramatic
recasting of the respective roles of parliament and the executive is desirable
or necessary at this point in time. None of the evidence before the committee
made a compelling case for change of this nature.
The committee acknowledges the view of some legal experts referred to in
evidence that limiting the power of the executive by making treaty action
conditional upon approval of both houses of parliament may be consistent with
the Constitution. However, the fact that underlying constitutional authority
for such a course of action may exist is not, by itself, an argument for
proceeding down the path of parliamentary approval. This is not the only way for
parliament to play a meaningful role in the treaty-making process.
Alternatives exist that are more achievable and reflect a practical
balancing of executive authority and parliamentary oversight. In arriving at
this view the committee notes that there have been previous attempts to
introduce a system of parliamentary approval, none of which have gained
significant political traction to date. The committee considers it unlikely
that renewed efforts down this path would prove successful in the short to
medium term. The remainder of this chapter outlines other proposals to
strengthen parliament's role in the treaty-making process that were raised in
Parliamentary access to treaty text
A proposal raised by submitters to strengthen parliamentary oversight
was that parliamentarians be given access to draft treaty text during
negotiations, on a confidential basis. Currently, the level of access to draft
treaty text varies between agreements. However, in the case of major trade
agreements with confidential negotiations, the practice of successive governments
appears to have been for access to texts to be restricted to cabinet ministers
and public servants from the relevant departments.
A number of submitters were in favour of parliamentarians being able to
access draft negotiating text or other information about the progress of
negotiations before an agreement is signed by cabinet. The Australian Digital
Alliance (ADA) and Australian Libraries Copyright Committee (ALCC) described
allowing parliamentarians and other stakeholders access to negotiating texts as
a 'bare minimum',
citing the US example and arguing that Australian parliamentarians should
receive at least as much access to draft text as their foreign counterparts.
Associate Professor Weatherall's submission stated:
of my concerns at present is that Australian members of Parliament and
Australian stakeholders are at a distinct disadvantage compared to their
counterparts overseas...In terms of members of Parliament, my understanding is
that in both Europe and the US, at least some parliamentary representatives
have access to detailed ongoing briefings into the progress of agreements.
There seems to me to be little reason why JSCOT, or a subcommittee of JSCOT,
could not have similar opportunities for ongoing review and discussion during
At the committee's public hearing on 4 May 2015, AFTINET argued that it
should be mandatory for the text of agreements to be released for public and
parliamentary discussion before the decision to sign is made or recommended by
cabinet. While it is difficult to establish a clear picture of how many of
Australia's negotiating partners share draft treaty text with parliamentarians
that are not members of cabinet, this practice at least occurs in the United
The committee understands that Australian parliamentarians were advised
during a briefing by DFAT officials on 1 June 2015 that they would be given an
opportunity to view the negotiating text of the TPP, subject to signing a
confidentiality agreement preventing disclosure for up to four years after
entry into force or, if no agreement enters into force, four years after the
last round of negotiations. The confidentiality agreement required members of
parliament and their staff not to divulge text or information obtained in the
briefing, or to copy, transcribe or remove the negotiating text.
The committee can see no good reason why parliamentarians and their
advisers—at the very least, members of JSCOT—should not be able to access
information on treaty-making, especially draft negotiating text, on a
confidential basis throughout key stages of the treaty negotiation process.
This would be consistent with contemporary developments in the US and the EU
and with the secrecy provisions around the TPP negotiations.
The fact that access was recently granted to parliamentarians to view
the draft treaty text for the TPP is evidence that such a system is consistent
with Australia's international obligations and can be administratively
workable. This reform would improve treaty transparency and put Australian
parliamentarians on a level playing field with their international
Access could come in one of two ways. First, members of parliament and
their staff could gain access during negotiations and sign a confidentiality
agreement not to disclose draft text until negotiations are concluded and the
final agreement is tabled in parliament, and therefore in the public domain.
Second, access could be restricted to dedicated reading rooms for one or two
days and at intervals following the conclusion of each major round of
negotiations. Under this arrangement there would be no capacity to take notes
or make copies of text.
The current system, under which parliamentarians may only see draft text
after an agreement has been authorised for signature and it is too late for the
agreement to be changed, does not allow for meaningful parliamentary scrutiny.
The committee considers allowing parliamentarians access to draft negotiating
texts—as was done recently for the TPP—to be a sensible reform that is overdue.
The committee recommends that parliamentarians and their
principal advisers be granted access to draft treaty text upon request and
under conditions of confidentiality throughout the period of treaty
negotiations. The committee recommends that the government provides an access
framework and supporting administrative arrangements.
The issue of access to the negotiating texts for stakeholders other than
parliamentarians is explored in Chapter 4.
As discussed in Chapter 2, after trade agreements have been authorised
for signing by cabinet, the text is tabled in parliament for up to 20 sitting
days and reviewed by JSCOT. Currently, there are three categories of treaties:
Category 1 major treaties which JSCOT is required to report on
within 20 joint sitting days;
Category 2 treaties which JSCOT is required to report on within
15 joint sitting days; and
Category 3 treaties which are considered to be minor treaty actions
and which JSCOT generally approves without a full inquiry.
The following sections provide a brief overview of JSCOT and the
Parliamentary Joint Committee on Human Rights and examine proposals to
strengthen their respective roles in the treaty-making process.
Joint Standing Committee on
A central element of the government's 1996 reforms was the creation of JSCOT.
A joint committee of the federal parliament, JSCOT reviews treaties during the
tabling period and issues a report containing recommendations as to whether, and
under what circumstances, a treaty should be ratified. JSCOT was appointed to
inquire into and report on:
arising from treaties and related National Interest Analyses (NIAs) and
proposed treaty actions and related Explanatory Statements presented or deemed
to be presented to the parliament;
question relating to a treaty or other international instrument, whether or not
negotiated to completion, referred to the committee by:
- either house of the parliament, or
- a minister; and
- such other matters as may be referred to the committee by the Minister
for Foreign Affairs and on such conditions as the minister may prescribe.
JSCOT is seen as one of the key elements of parliament's scrutiny over
treaties. Professor Gillian Triggs, Head of the Human Rights Commission, told
the Committee: 'I think that the JSCOT national interest analysis process that
emerged from the "Trick or Treaty" report has been extremely
DFAT's Senior Legal Advisor advised the committee that JSCOT has issued reports
addressing 134 different treaty actions:
I wanted to highlight the diverse range of subject matters.
It is interesting that three topics alone accounted for almost 40 per cent of
those treaty actions. They were tax, civil aviation and the environment. There
were 12 treaty actions concerning trade, which amounts to around nine per cent
of total treaty actions. There were of course many other subject matters which
were covered by JSCOT in that period, including treaties on defence, fisheries,
human rights, development assistance, extradition, social security and arms
Criticisms of current role
Three main criticisms of JSCOT's current role were raised in evidence:
it comes too late in the treaty-making process; it rubber-stamps agreements
already signed by the government; and it is not adequately resourced to
undertake the scrutiny which is required for large and complex agreements.
These are examined in more detail below.
The main criticism of the current process is that the review JSCOT
conducts occurs after an agreement is signed, when it is generally not possible
to reopen negotiations to adopt proposed changes. This, according to Dr Moir,
while welcome for getting some issues into the public realm: '...makes a mockery
of the role of parliament in a democracy...[w]hen JSCOT raises concerns, the
government simply ignores them'.
This point was made by Ms McGrath, Australian Industry Group, who told the
current model of signing and then going to JSCOT does not really make any
sense. There seems little value in reviewing it after it has been signed. On
any issue that we do have, we are always told, 'It has been negotiated. We
cannot open that again.' It really makes a mockery of the whole point of a
Associate Professor Weatherall's experience supported this criticism:
current processes the evidence I might have given on [KAFTA] comes too late. By
the time JSCOT or this committee looked at the Korea FTA it could not be
changed; it was take it or leave it.
Dr Ranald from AFTINET agreed that this is a major problem, telling the
committee: 'JSCOT is handicapped by the fact that it cannot actually change the
text. The text has already been signed.'
The Law Council submission drew attention to the fact that JSCOT's
resolution of appointment provides the means to undertake reviews of treaties
during the negotiation process and before they are concluded and signed by the government.
Specifically, it authorises JSCOT to inquire and report on any questions
relating to a treaty whether or not negotiated to completion or referred to it
by a minister or either house of parliament. Notwithstanding this power, the
It is our understanding that there has never been an instance
in which the Minister for Foreign Affairs has referred a treaty to the
Committee during the negotiation stage to assist the Government in determining
its position in relation to the treaty negotiation or its response to the
position of other countries.
Another criticism of JSCOT that emerged from the inquiry was the
committee's tendency to recommend that the implementing legislation be passed.
As Dr Ranald told the committee:
main problem with the JSCOT process is that they only get to look at the
agreement after it has been signed, and they cannot change it. JSCOT have
frequently made assessments which are quite critical of trade agreements. So,
in that sense, they have taken an independently critical position...
JSCOT is a joint committee and the majority of members are government members,
they usually recommend that the agreement go forward, that the legislation be
passed through parliament.
Dr Moir told the committee that even when JSCOT does issue
recommendations, the government is not compelled to follow them. She told the
main interaction with JSCOT was on the Anti-Counterfeiting Trade Agreement. I
thought JSCOT put forward an excellent report on that, which was very grounded
in the evidence. I thought the government's response to that was grossly disrespectful
of parliament. From that, I conclude that the JSCOT process simply has no
Several witnesses considered that JSCOT is too under-resourced to cope
with an increasing number of large and complex agreements. Ms Kearney, President
of the ACTU, explained: 'JSCOT can hardly scrutinise massive and complex
documents with the diligence necessary in the time it has, and the committee is
hard pressed by its large workloads.'
This view was echoed by AFTINET which argued:
Because the JSCOT has the task of
reviewing all treaties, it has a very heavy work schedule and has to review
several treaties at the same time. This means that in many cases it receives
very few submissions and holds only one hearing in Canberra. It can only
justify holding public hearings outside Canberra if it receives many
submissions and there is evident public interest in the agreement.
The committee is therefore hard
pressed to thoroughly analyse trade agreements, which are highly technical
documents of 1000 to 2000 pages each.
Strengthening the role of JSCOT
Evidence before the committee supported the view that JSCOT's oversight
role could be significantly improved depending on the nature of the treaty and
the required level of transparency. One suggestion was that the JSCOT process
should mirror the Joint Parliamentary Committee on Intelligence and Security
process where the government and opposition members of that committee are able
to receive private briefings on a secure and confidential basis.
Another suggestion raised in evidence by the NTEU, AFTINET and the ACTU was
that a subcommittee of JSCOT be created which would be dedicated to reviewing
trade agreements with a second subcommittee examining all other non-trade agreements.
The ACTU submission put the suggestion in the following terms:
the complexity and the differences between trade agreements and other treaties...it
would be more practical for the Joint Committee to have two sub committees, one
dealing with trade agreements and the other dealing with all other treaties.
The trade sub-committee would have more time and capacity to play a greater
role in the parliamentary process.
Other submitters argued that JSCOT should be involved earlier in the treaty-making
process. Ms Hepworth from the ADA together with the ALCC suggested that JSCOT
could play a role in reviewing and approving a government's negotiating mandate
at the time Australia decides to enter negotiations, telling the committee: 'The
negotiation mandate and conditions of negotiation should be approved by JSCOT
prior to negotiations commencing...'
Other witnesses suggested that JSCOT could have some direct input into the
treaty negotiation process. In fact, nothing in JSCOT's terms of reference
prevents this from occurring, but in practice it has not occurred. Associate
Professor Weatherall noted:
certainly think one option would be for JSCOT to have a more expanded role,
including during negotiations...In theory, JSCOT could do it now but they do not.
The Australian Human Rights Commission suggested that in the future JSCOT
should play a role in relation to the coordination of Australia's obligation to
provide a periodic report to the relevant United Nations treaty monitoring body.
Currently the reporting process is delegated to three government departments
consulting with relevant federal, state and territory bodies, civil
organisations and other stakeholders. The Commission believed that there is
scope to develop a more consolidated mechanism, in line with the UN's treaty
body strengthening process, for the development of periodic reports to better
meet human rights treaty obligations. An Australian standing national reporting
and coordination mechanism, or SNCRM: '...might involve formalising an
inter-departmental committee approach, with clear terms of reference of how it
operates across all of Australia's human rights obligations, with a resources
secretariat coordinated by one department'.
The Commission told the committee that an Australian SNCRM that reported
to JSCOT is preferable to current arrangements:
It would certainly be a much more
efficient way of coordinating and reporting and partly because,
although...different departmental bodies are dealing with different treaties, the
substantive Australian provisions in relation to them overlap. They are simply
duplicated, and it becomes an extremely cumbersome process to do it the way we
are doing it at the moment. We suggest that it does not have to be particularly
complex in legal terms but could be simply the creation of the
interdepartmental committee and perhaps some minor amendments...to the scrutiny
committee provisions to engage them in the process.
Parliamentary Joint Committee on
The Parliamentary Joint Committee on Human Rights (PJCHR) was
established by the Human Rights (Parliamentary Scrutiny) Act 2011 to
perform an important scrutiny role in relation to bills and acts of parliament.
Specifically, the committee has three core functions:
examine bills and legislative instruments that come before
parliament for compatibility with human rights and report to parliament on that
examine acts for compatibility with human rights and report to
parliament on that issue; and
inquire into any matter relating to human rights which is
referred to it by the Attorney-General and report to parliament on that matter.
According to information published on its website, the committee
considers the core human rights and freedoms contained in the seven human
rights treaties to which Australia is a party.
In relation to how it approaches human rights scrutiny:
The committee views its human
rights scrutiny tasks as primarily preventive in nature and directed at
minimising risks of new legislation giving rise to breaches of human rights in
practice. The committee also considers it has an educative role, which includes
raising awareness of legislation that promotes human rights.
Under the parliament's current legislative process, any bill required to
implement treaties must be accompanied by a statement of compatibility with
human rights. The committee views the statements of compatibility as:
...essential to the examination of
human rights in the legislative process. The committee expects statements to
read as stand-alone documents. The committee relies on the statement as the
primary document that sets out the legislation proponent's analysis of the
compatibility of the bill or instrument with Australia's international human
The Australian Human Rights Commission submission noted that while there
is significant scope for JSCOT to include a review of the human rights
implications of treaties within their reports on their own initiative,
currently it does not undertake inquiries of this nature. It was not considered
the best option as it would involve drawing expertise from other committees or
sources. The Commission was of the opinion that the most appropriate
parliamentary committee for this purpose is the PJCHR:
The PJCHR reports on bills and
legislative instruments that are introduced to the parliament for compatibility
with human rights. The PJCHR has the human rights expertise to properly
consider the human rights implications of bills and other instruments. It
would, subject to resources, be able to extend this expertise to consider human
rights implications of treaties prior to Parliamentary debate on ratification.
The Australian Human Rights Commission submission argued that the PJCHR
can play a constructive role at the 'primary stage' of the treaty-making
process. Specifically, it recommended that a human rights analysis be
incorporated into the NIA for category 1 and 2 treaties to promote joint
committee consideration of the human rights implications of treaties prior to
President of the Commission, Professor Triggs, told the committee:
The reason is that...that body has
been operating now for the last three years. It has really been...increasingly
effective in the sense that it has become more familiar with the treaty
processes and the implications of the seven human rights treaties that they
deal with. We feel that they have a growing competence, along with the support
from their secretariat.
The committee considers it unfortunate that JSCOT's recommendations on
changes to treaties are often not accepted as they are received too late in the
process to negotiate changes to the treaty. To provide meaningful review, it is
essential that JSCOT engage in treaty-making action early enough in the process
for its recommendations to be taken into consideration by the government while
negotiations are still ongoing.
As Associate Professor Weatherall pointed out, nothing in JSCOT's terms
of reference prevents it from reporting on treaties during the negotiations
The relevant question for the committee is how this would best work in
practice. The committee's recommendation attempts to lay out workable
arrangements for ongoing JSCOT oversight of the treaty-making process. While
some take issue with JSCOT's advice not being public, the committee is of the
view that this is unavoidable in the case of confidential negotiations. The
recommendation should be seen as an effort to create a more meaningful role for
JSCOT in holding the government accountable, in a manner that is as transparent
as practical given the circumstances.
The committee was not convinced by the proposal to establish a
sub-committee of JSCOT to deal exclusively with trade agreements. Establishing
a sub-committee in the absence of additional resourcing would not in itself
overcome the perceived issues with the current process, and may actually reduce
flexibility and create duplication.
The committee recommends that the Joint Standing Committee on
Treaties adopt a process of ongoing oversight of trade agreements under
negotiation. This process is to include:
private briefings from the Minister for Trade and Investment
and the Department of Foreign Affairs and Trade under conditions of
confidentiality at key points during negotiations;
consultation with stakeholders with confidential access to
negotiating texts, to enable JSCOT to form an evidence-base for its oversight
writing to the minister and inviting the minister to respond
to its concerns; and
a summary of its ongoing oversight role, including relevant
correspondence with the minister, as an annex to its public report on the
The committee is also of the view that the Australian Human Rights
Commission's recommendation with regard to the work of the PJCHR would be a
sensible reform. As all bills are currently subject to human rights analysis,
there seems little reason to not adopt a similar approach for treaties,
especially as the mechanisms are already in place. This relatively new committee
has an opportunity to play a greater role in the treaty-making review process
and align its existing mandate to the scrutiny of proposed treaties against the
backdrop of Australia's international human rights obligations.
The committee recommends that the Parliamentary Joint Committee on Human
Rights consider the human rights implications of all proposed treaties prior to
ratification and report its finding to parliament.
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