Chapter 2
Background
The main issues
2.1 From the submissions and evidence before the Committee there would
appear to be a number of central issues which arise for consideration
by the Committee. These issues include concerns about:
- the impact of international treaties on the federal system of Government
in Australia;
- the impact of treaties on the sovereignty of Australia;
- the degree of consultation prior to joining international treaties;
and
- the respective roles that the Parliament and the Government should
play in the decision to enter into treaties.
2.2 The terms of reference are broad and relate to the following key
issues:
- Paragraph (a) of the terms of reference concerns the Commonwealth
Parliament's function in ratifying international treaties. At present,
the Parliament is playing a minimal role, as entering into treaties
is currently a function performed by the Executive. The Government has
agreed to table on a six monthly basis, wherever possible, all treaties
other than sensitive bilateral ones, before action is taken to adhere
to them.[1]
- Paragraph (b) of the terms of reference concerns the Commonwealth
Parliament's role in ensuring that the management of such treaties is
consistent with the spirit and intent of the Constitution. Among other
things, this paragraph raises the Commonwealth/State issues, especially
the issue of the Commonwealth's power to legislate pursuant to the external
affairs power in relation to areas of traditional state responsibility.
- Paragraphs (c) and (d) of the terms of reference concern the possibility
of regulating and limiting the Executive's power to enter into treaties.
A number of issues are raised under these terms of reference. First,
the extent to which Parliament could regulate or limit the Executive's
power to enter into treaties. Secondly, the mechanisms by which Parliament
could regulate the Executive's actions, including how we deal with existing
treaties. A variety of measures have been suggested, from the establishment
of a new Senate or Joint Committee, through to requiring parliamentary
approval before treaties can be entered into.
- Paragraph (e) of the terms of reference concerns the operation of
equivalent external affairs powers by other federations.
The number of treaties to which Australia is
a party
2.3 Various figures have been given for the number of treaties to which
Australia is a party. Sometimes the number given is 2223.[2] This number
represents the number of international instruments listed in the Australian
Treaties List. This number does not truly represent the number of
treaties to which Australia is a party because many of the international
instruments that are included in the treaties list merely amend existing
treaties or are subsidiary to them. The list also includes treaties which
have been terminated or replaced with other treaties.[3]
2.4 According to the Department of Foreign Affairs and Trade, the number
of treaties to which Australia is currently a party is 'approximately
920'.[4] This number better represents the number of treaties to which
Australia is a party because it only includes current multilateral
and bilateral treaties rather than treaties that have become obsolete
and treaties that merely amend principal treaties.
2.5 Criticism was expressed by some witnesses before the Committee that
the exact number of treaties is not known.[5] Mr Lamb, from the Department
of Foreign Affairs and Trade, explained that there were two reasons why
the Government could not be sure of the exact number of treaties to which
Australia is a party. The first reason is that several of the treaties
on the Treaty List were entered into by the United Kingdom, before Australia
started to exercise the power to enter into treaties, and it is unclear
whether other countries would still regard Australia as being a party
to those treaties. The second reason is that a number of the treaties
were made with countries which have now split into several separate countries
(such as the former Soviet Union, the former Yugoslavia and the former
Czechoslovakia), and it is not yet clear whether the new countries consider
themselves bound by these treaties.[6]
2.6 Out of the approximately 920 treaties to which Australia is a party,
the majority (over 500), are bilateral. The number of treaties has steadily
increased, with more than 300 treaties concluded in the last decade. The
growth has principally occurred in bilateral treaties (particularly in
areas such as investment, extradition, mutual assistance in criminal matters
and taxation), although there has also been an increase in the number
of multilateral treaties to which Australia has become a party.
2.7 The Department of Foreign Affairs and Trade submitted to the Committee
that the number of multilateral United Nations treaties to which Australia
is a party is 'about average for an OECD country'.[7]
Previous proposals for reform
2.8 There have been a number of reviews of some of the key issues raised
by this reference. The most detailed of these reviews have been undertaken
by the Australian Constitutional Convention and its External Affairs sub-committee
and the Constitutional Commission and its advisory committees.
Australian Constitutional Convention
2.9 The External Affairs SubCommittee of the Australian Constitutional
Convention in 1984 completed a substantive analysis of the external affairs
power. This report came in the wake of the Tasmanian Dams case in
1983. Since this case there have been significant developments in the
interpretation of the external affairs power. The Final Report of the
Constitution Commission, in 1988, provides a convenient summary of
the results of that earlier Convention:
At the Brisbane (1985) session, the Australian Constitutional Convention
generally approved the recommendations of the SubCommittee, which were
as follows:
- There should be full and effective involvement of State Officers in
consultation with Commonwealth Officers prior to the preparation of
the brief for the Australian delegation to any negotiating session.
- The existing Treaties Schedule should be upgraded, where possible,
to include adequate information concerning any potential treaties, international
agreements or arrangements.
- The practice of State Officers attending negotiating sessions as part
of the Australian delegation should be encouraged. Where State Officers
do attend, they should attend as Full Members of the delegation being
bound by the terms of the brief for the Australian delegation and responsible
to the leader of the delegation. This right as a full delegate should
include access to appropriate cables and communication facilities.
- The Federal structure of Australia should be effectively explained
to the international community. In this regard, several members of the
SubCommittee believed that an appropriate Federal clause should be sought
in appropriate treaties.
Other recommendations were:
- The Australian Treaties Council would be established by the Premiers'
Conference, report annually to it and be ultimately responsible to it.
No legislation, at least initially, would be required in order to provide
maximum flexibility in its operations.
- Membership of the Australian Treaties Council would be as determined
by the Premiers' Conference with an emphasis on expertise in international
law and Inter-Governmental relations being considered desirable.
- The Australian Treaties Council would function as a body through which
the interests of the States could be identified and views expressed
and coordinated, if possible, in relation to the negotiation of Treaties
bearing upon State interests. It could assist in conveying these State
views to the Commonwealth Government.
- The Australian Treaties Council would provide advice and reports on
its own initiative on the effect of proposed Treaties, both to the Commonwealth
and the States, and make recommendations on the manner whereby particular,
Treaties could be ratified and implemented within Australia, including
the recommendation of model legislation. No Government would be bound
by such recommendations.
- The Australian Treaties Council would not replace existing mechanisms
for Inter-Governmental consideration of particular Treaties but would
provide advice to those bodies in appropriate cases or wherever specifically
requested to do so.
- The Australian Treaties Council would report regularly to State Parliaments
on its deliberations; the handling of such reports to be for each Parliament
to determine.
- All Governments, both Commonwealth and State, would have the right
to refer particular Treaties to the Australian Treaties Council, save
that the rights of the Commonwealth in relation to Treaties concerning
defence and national security would be recognised.[8]
2.10 No recommendation was made regarding the scope of the legislative
power because of wide differences of opinion.
Constitutional Commission and Advisory Committees
2.11 The Constitutional Commission was established in 1985 to carry out
a fundamental review of the Australian Constitution. The members of the
Commission were Sir Maurice Byers QC, (Chair), Professor Enid Campbell,
Hon Sir Rupert Hamer, Hon Mr Justice Toohey, Hon Gough Whitlam, and Professor
Leslie Zines.
2.12 The Commission was advised by an Advisory Committee on the Distribution
of Powers, which reported on the external affairs power, among other things,
on 6 June 1987. The Committee recommended that there be no amendment to
the external affairs power. It considered whether there should be greater
parliamentary participation in treaty making, and concluded that there
should be a statutory requirement that treaties be tabled in both Houses
of the Commonwealth Parliament. A majority of the Advisory Committee did
not recommend that treaties should be approved by Parliament before ratification.[9]
However, Mr Geoff Lindell, who was a member of the Advisory Committee,
dissented on this point, and outlined proposals for parliamentary approval
of treaties in Appendix J to the Advisory Committee's report.[10]
2.13 The Commission, itself, reported on 30 June 1988. Two of the issues
examined by the Commission included:
- Australia as a federation and the relationship between Governments;
and
- the scope of the external affairs power.
2.14 The Commission recommended that:
There should be established by the Premiers' Conference an Australian
Treaties Council with the composition and functions recommended by the
Australian Constitutional Convention.
The Commonwealth should consider improvement in the existing procedures
for Federal and State consultation on treaties in the light of comments
made by some State Governments and the recommendations of the Australian
Constitutional Convention.
A federal Act should provide that all matters referred to the Australian
Treaties Council be tabled in both Houses of the Parliament at the time
of referral to the Council.[11]
2.15 The Commission considered the case for parliamentary approval of
treaties before their ratification. A majority concluded that it is unnecessary
to increase the role of Parliament in treaty making, in this manner.[12]
Professor Zines dissented, however, agreeing with Mr Lindell that there
should be a statutory requirement that the ratification of treaties by
Australia be conditional on either the approval of both Houses of Parliament
or the non-disallowance by either House within a specified period.[13]
Sir Rupert Hamer also agreed with Professor Zines on this point.[14]
Endnotes:
- Joint statement by the Minister
for Foreign Affairs and Trade and the Attorney-General, dated 21 October
1994.
- See Senate Legal and Constitutional
References Committee, Treaties and the External Affairs Power - Discussion
Paper, March 1995, Appendix B.
- Mr C.R. Jones, Department of Foreign
Affairs and Trade, Submission No. 93, Vol 6, p 1147.
- Hansard, Senate Legal and
Constitutional References Committee (SLCRC), 1 May 1995, p 10.
- See, for example, Mr G. Barnett,
Hansard, SLCRC, 22 May 1995, p 479.
- Hansard, SLCRC, 1 May 1995,
p 10, per Mr C. Lamb.
- Mr C.R. Jones, Department of Foreign
Affairs and Trade, Submission No. 93, Vol 6, p 1147.
- Constitutional Commission, Final
Report of the Constitutional Commission, Vols 1 and 2, AGPS, Canberra,
1988, pp 735-6.
- Constitutional Commission, Advisory
Committee on the Distribution of Powers Report, Canberra Publishing
and Printing Co, Canberra, 1987: p 88.
- Constitutional Commission, Advisory
Committee on the Distribution of Powers Report, Canberra Publishing
and Printing Co, Canberra, 1987, p 233.
- Constitutional Commission, Final
Report of the Constitutional Commission, Vol 2, AGPS, Canberra,
1988, p 731.
- Constitutional Commission, Final
Report of the Constitutional Commission, Vol 2, AGPS, Canberra,
1988, p 745.
- Constitutional Commission, Final
Report of the Constitutional Commission, Vol 2, AGPS, Canberra,
1988, pp 745-46.
- Constitutional Commission, Final
Report of the Constitutional Commission, Vol 2, AGPS, Canberra,
1988, p 749.