Chapter 1

Trick or Treaty? Commonwealth Power to Make and Implement Treaties

Chapter 1

Committee's Reference and Introduction


1.1 The Committee was asked by the Senate on 8 December 1994 to inquire into the Commonwealth's treaty making power and the external affairs power and report by 24 August 1995.[1] Extensions were sought,[2] and the reporting date was deferred to 30 November 1995.

1.2 The terms of reference are as follows:

The meaning and operation of section 51(xxix) of the Constitution with particular reference to:

The Committee's inquiry

1.3 The Senate References Committee called for submissions from interested persons by placement of advertisements in the major national newspapers on 15 December 1994 and by letters to particular persons and organisations known to have an interest in the relevant issues.

1.4 The Committee received 157 submissions in relation to its inquiry. (See Appendix 1).

1.5 The Committee also took evidence at public hearings in the following cities on the dates shown:

Canberra 01 May 1995

Melbourne 02 May 1995

Perth 15 May 1995

Sydney 16 May 1995

Hobart 22 May 1995

Brisbane 13 June 1995

Canberra 14 June 1995

Adelaide 25 July 1995

1.6 Further information about those who gave evidence to the Committee at these hearings is included in this Report as Appendix 2.


States and states
1.7 At international law, countries are referred to as 'states'. To avoid confusion with the Australian States, which are a constituent part of the Australian federation, nation states are referred to either as 'countries' or 'states' and the Australian States are referred to as 'States'.

The Executive
1.8 Section 61 of the Constitution confers the executive power of the Commonwealth on the Queen, as represented by the Governor-General. Section 62 of the Constitution states that the Governor-General is to be advised by the 'Federal Executive Council'. Section 64 of the Constitution provides that Members of the Federal Executive Council shall be the Queen's Ministers of State for the Commonwealth. Hence, the term 'Executive', as used in this Report, means the Governor-General, acting on the advice of the relevant Ministers.

1.9 In Australia there are parliaments of the States as well as the Commonwealth Parliament. References to 'the Parliament' in this Report refer to the Commonwealth Parliament. In order to distinguish references to the State parliaments from references to the Commonwealth Parliament, the parliaments of the States are referred to specifically as follows, the New South Wales Parliament, the Victorian Parliament, the Queensland Parliament, the Western Australian Parliament, the South Australian Parliament and the Tasmanian Parliament. The assemblies of the Territories are referred to as the Northern Territory Assembly and the Australian Capital Territory Assembly.

  1. Journals of the Senate, No. 133, 8 December 1994.
  2. Journals of the Senate, No. 188, 25 September 1995; Journals of the Senate, No. 194, 18 October 1995; Journals of the Senate, No. 201, 14 November 1995 and Journals of the Senate, No. 205, 21 November 1995