Chapter 7

Trick or Treaty? Commonwealth Power to Make and Implement Treaties

Chapter 7

Current practices concerning entry into treaties

Role of the Executive

7.1 As noted in Chapter 4, currently the decision to enter into treaties is made by the Executive and the formal act is given by approval of the Executive Council. The decision to ratify may or may not involve the approval of Cabinet. From 1990 to 1994, less than one quarter of international agreements were subjected to Cabinet approval before being presented to the Governor-General in Council.[1]

Tabling of treaties in the Parliament

7.2 In 1961, the then Prime Minister announced a practice of tabling treaties at least 12 sitting days before the Government was to finally commit itself to the treaty by ratifying it or acceding to it.[2]

7.3 It appears that this practice fell into disuse in the 1970s and is no longer followed. The present practice is for treaties to be tabled in bulk every six months. Treaties have often been tabled after they have been ratified or otherwise come into force, rather than 12 sitting days before this occurs:

Recent changes to the tabling practice

7.4 In October 1994, the Government introduced further initiatives with a view to improving the flow of information about treaties to the Parliament. In a Joint Press Release, the Attorney General and the Minister for Foreign Affairs and Trade referred to the current practice of tabling treaties twice yearly together with an explanatory memoranda, and continued:

7.5 During the course of the inquiry, the Department of Foreign Affairs and Trade also advised the Committee of further improvements to the system of tabling treaties. The Department informed the committee that a schedule of multilateral treaties under negotiation, or to which the Government is considering adhering, is now tabled in Parliament.[5] The Department advised:

7.6 The Department of Foreign Affairs and Trade has also stated that it will advise Parliament when 'definitive' treaty action is to be taken. For example, while treaties are only to be tabled once, in the case of a treaty which has a two-stage adherence mechanism (eg. signature and ratification), a list of treaties where further definitive action is to be taken will be tabled. The underlying policy is that, if a treaty has been tabled at any time, the Parliament has had notice of the fact that the Government may at some stage in the future take definitive treaty action. The understanding is that the Parliament will make known its views at the time of tabling or shortly after, although it may return to the subject at any time of its own choosing. (Any such treaty will almost always have entered the public domain through the Select Documents series, which was begun in 1966 at the request of the Parliament).[7]

7.7 The Government has made changes to its practice of tabling international instruments before action is taken to adhere to them. On 18 October 1995, the Government tabled a batch of treaties and a list of multilateral instruments under negotiation or review, amounting to over 100 treaties.[8]

7.8 The Committee notes that in practical terms the Senate is not provided with enough time in which to consider these documents. This practice could be improved as there is insufficient time for any thorough examination of the treaties.[9] Accordingly, the Committee suggests that this issue could be referred to the proposed joint parliamentary committee on treaties, recommended in Chapter 15, for its consideration.

7.9 The practice for tabling treaties in the House of Representatives is different from the procedure followed in the Senate. However, the inadequacy of the tabling process concerning treaties in the House of Representatives has also been criticised.[10]

7.10 In the House of Representatives, treaties are tabled under the deemed tabling provision of standing order 319 which allows papers to be 'delivered to the Clerk who shall cause them to be recorded in the Votes and Proceedings. Papers so delivered to the Clerk shall be deemed to have been presented to the House on the day on which they were recorded in the Votes and Proceedings.' This deemed tabling procedure operates such that there is no provision for parliamentary debate on the tabling of treaties.[11]

Bilateral treaties

7.11 An important exception to the early tabling practice are bilateral treaties which usually come into force upon signature. The Department of Foreign Affairs and Trade has advised that such treaties will not be tabled before signature. The Department stated:

Explanatory notes on treaties

7.12 The recently announced procedures will not make explanatory notes available for treaties which were tabled prior to the new procedures. The Department of Foreign Affairs and Trade has advised that:

7.13 There does not seem to be any compelling reason why explanatory notes cannot be provided in relation to treaties which have already been tabled, but have not yet been ratified. The information should still be available, because it is necessary to provide the information to the Executive Council before ratification. Further, it would be of assistance to those members of the public who wish to obtain an understanding of treaties, to have access to a statement about the meaning and scope of the treaty. This issue is discussed further in Chapter 15.

Minimal role for Parliament

7.14 In spite of the announcement concerning the revision of tabling procedures, currently the federal Parliament has a minimal role in the processes leading to the ratification of treaties or in the decision to ratify a treaty. While under existing practices, it would be open for the Senate to refer a treaty to a Committee, this has rarely been done.

7.15 It has been argued that one explanation for the minimal role of Parliament to date may be found in the legal status of treaties in Australian domestic law[14] and the view that:

7.16 These sentiments are also evident in comments made in 1994 by the Minister for Foreign Affairs and Trade:

7.17 The necessity for the limitation of the role of Parliament is not apparent. In the past, the Parliament has passed legislation to approve the ratification of treaties. For example, the Racial Discrimination Act 1975 contained a provision whereby the Parliament approved the ratification of the Convention on the Elimination of All Forms of Racial Discrimination.[18] The Parliament was also asked to approve the ratification of the International Covenant on Civil and Political Rights, by way of its implementation in the Human Rights Bill 1973.[19] The failure of the Bill to pass through the Parliament meant that the Executive did not ratify the Covenant at that time. This practice of seeking parliamentary approval for the signing and ratification of significant or controversial treaties appears to have lapsed.

7.18 If this practice became the norm, and the Executive agreed not to ratify a treaty if the Parliament failed to approve the proposed implementing legislation, then this would give Parliament a more significant role in the treaty making process.

Westminster practice and the 'Ponsonby Rule'

7.19 Another reason given for the current limited role is that it follows what may be termed the 'Westminster tradition' of limited parliamentary involvement in the treaty making process. Treaties are tabled in the Westminster Parliament according to the 'Ponsonby Rule'. This rule was introduced in 1924 by the British Under-Secretary of State for Foreign Affairs, Arthur Ponsonby.[20]

7.20 Professor Saunders has outlined the Ponsonby Rule as follows:

7.21 Despite the apparent lack of parliamentary involvement in the decision to enter into treaties, the Westminster Parliament can limit the power of the Executive to enter into treaties, and has done so on at least one occasion. Section 6 of the European Parliamentary Elections Act 1978 (UK) provides:

7.22 Given this clear assertion of parliamentary control over the Executive in the United Kingdom, it is less than convincing to base arguments for maintaining a minimal role for the Commonwealth Parliament in the treaty making process, upon Westminster tradition.

Current practices in relation to entering into treaties and whether legislation will be used

7.23 As treaties do not automatically directly become part of Australia's domestic law, legislation will often be necessary to give effect to treaty obligations. However, in specific instances, legislation will not be necessary where existing practices or legislation are sufficient to meet the obligations imposed by the treaty, or where the obligations are imposed solely on the Government, in which case the obligations may be able to be met by Executive practice.[23]

7.24 The Attorney-General's Department has advised that:

Passage of legislation prior to ratification

7.25 Where legislation is necessary, it is the 'official' policy that Australia will not ratify a treaty and accept obligations under the treaty until it has the appropriate legislation in place:

7.26 The position becomes more complicated where a treaty calls for progressive implementation of its obligations. The Attorney-General's Department referred to the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (SPREP) which was ratified in 1989[26] and appears to fall within this category. For example, article 7 of the SPREP Convention provides:

The Department has advised that Australia was not obliged to have all those measures in place at the time the treaty entered into force.

7.27 Despite the 'official' policy of ensuring that all necessary legislation is in place before a treaty is ratified, there have been recent examples of legislation only being enacted after the treaty has been already ratified. ILO Convention No. 158, Termination of Employment, is an example. It is discussed in detail in Chapter 9.


7.28 Under the current system, the Commonwealth Parliament plays a minimal role in the decision as to whether Australia should enter into a treaty.

7.29 Treaties are important legal agreements which impose obligations on Australia under international law. They also have significant domestic effects, as discussed in Chapter 6. The increase in the number and scope of treaties in recent decades means that they are having an increasingly significant effect on the lives of Australians. It is appropriate that the Parliament, which represents the people, plays a more active role in scrutinising treaties and ascertaining their consequences for Australians, before Australia commits itself under international law to obligations under treaties.

7.30 At the very least, this role could involve legislation implementing treaties being introduced and dealt with by the Parliament prior to the ratification of the treaty.


  1. Estimates Committee A, Additional Information Received (Prime Minister and Cabinet Portfolio) Volume 1, June 1994: p. 85. See also: C. Saunders, 'Articles of Faith or Lucky Breaks?' (1995) 17 Sydney Law Review 150, 168.
  2. Hansard, House of Representatives, Vol. H of R 31, 10 May 1961, p 1693.
  3. A. Twomey, Procedure and Practice of Entering and Implementing International Treaties, Parliamentary Research Service Background Paper No. 27 1995, Department of the Parliamentary Library, 9 February 1995: p 8.
  4. 'Government Slams Opposition Hypocrisy on Treaties', Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney General, Michael Lavarch, 21 October 1994.
  5. Mr C.R. Jones, Submission No. 93, Vol 6, pp 1154-1155.
  6. Ms J. Linehan, Submission No. 143, Vol 9, pp 2137-2138.
  7. Ms J. Linehan, Submission No. 143, Vol 9, pp 2137-2138.
  8. Senate, Hansard, 18 October 1995, pp 2095-2096.
  9. Senate, Hansard, 18 October 1995, p 2081, per Senator C. Ellison; and p 2082, per Senator R. Kemp.
  10. House of Representatives, Hansard, 23 October 1995, p 2696, per Mr D. Williams QC MP.
  11. House of Representatives, Hansard, 23 October 1995, p 2696.
  12. Ms J. Linehan, Submission No. 143, Vol 9, pp 2137-2138.
  13. Ms J. Linehan, Submission No. 143, Vol 9, pp 2137-2138.
  14. See Chapter 6.
  15. Department of Foreign Affairs and Trade, Australia's Participation in Treaty Regimes - Questions and Answers, October 1994. Others have disputed the view that it is indeed normal practice for necessary legislative action to be taken before Australia becomes a party to a treaty - see Chapter 14. Further, treaties may have significant effects even when they are not implemented by legislation - see Chapter 6.
  16. Hansard, Estimates Committee, Foreign Affairs, Defence and Trade, 29 November 1994, p 158.
  17. Hansard, Estimates Committee Foreign Affairs, Defence and Trade, 29 November 1994, p 159.
  18. Section 7 of the Act provided: 'Approval is given to ratification by Australia of the Convention'.
  19. Clause 6 of the Bill provided: 'Approval is given to ratification by Australia of the International Covenant on Civil and Political Rights and the Convention on the Political Rights of Women'. For further examples, see: Mr H. Burmester, Submission No. 75, Vol 4, p. 705.
  20. For the text of the Ponsonby Rule, as first outlined in the Parliament of Westminster, see: Professor E. Campbell, Submission No. 8, Vol 1, p 89, quoting from United Kingdom, 171 House of Commons Debates (session 5) col. 2001q (1 April 1924).
  21. C. Saunders, 'Articles of Faith or Lucky Breaks?', (1995) 17 Sydney Law Review 150, at 170.
  22. This section was also quoted by the NSW Farmers Association in Submission No. 127, Vol 8, p 1698.
  23. Mr H. Burmester, Attorney-General's Department, Submission No. 75, Vol 4, p 699.
  24. Mr H. Burmester, Attorney-General's Department, Submission No. 75, Vol 4, p 699.
  25. Mr H. Burmester, Attorney-General's Department, Submission No. 75, Vol 4, p 700.
  26. Mr H. Burmester, Attorney-General's Department, Submission No. 75, Vol 4, p 699.