Chapter 11
Reviewing the value of current treaties
Why should Australia remain a party to treaties?
11.1 The scope of the Committee's inquiry included the important issue
of how Australia should deal with existing treaties to which it is already
a party. As noted earlier, Australia is currently a party to approximately
920 treaties.[1] These cover areas such as trade, air and sea transportation,
international mail and telecommunications systems, and extradition. Treaties
also deal with more controversial subjects such as human rights, the environment
and industrial relations.
11.2 One of the questions which was raised before the Committee was why
do we need treaties at all? Why not denounce all the treaties to which
Australia is a party? Some witnesses before the Committee suggested that
Australia should withdraw from all United Nations treaties.[2] Another
argued that the people should be able to repeal any existing treaty by
popular referendum.[3]
11.3Mr Darbishire of the Brighton Branch of Grey Power, submitted:
The Commonwealth Parliament should demand a complete list of Conventions
and Treaties ratified behind their backs by the Federal Executive. Then
they should renegotiate those that are relevant.[4]
11.4 The answer to the question of why Australia should enter into treaties,
and remain a party to them, is two-fold. First, it is in the national
interest for Australia to participate in many international treaties and
agreements. Secondly, the process of globalisation means that the number
of treaties to which Australia is a party is likely to increase. These
issues are further discussed below.
The national interest in participation in international processes
11.5 The submission of the Department of Foreign Affairs and Trade set
out the following reasons why it is in the national interest of Australia
to participate in international processes:
Australia participates in international standard setting processes
because it is in our national interest to do so. Nation states (particularly
states with a relatively small population such as Australia) benefit
from a world where interaction between countries takes place within
a framework based on fair, agreed and transparent rules.
In a world where the projection of military and economic power was
the main means by which national objectives were pursued, Australia
would be vulnerable; our geography would be seen as a weakness. In a
world governed by effective rules, Australia can have an influence beyond
what our military and economic strength might suggest.[5]
11.6 Professor Wiltshire noted that Australia benefits enormously from
treaties, not just by way of trade and commerce, but because they create
an orderly system of behaviour throughout the world. He observed that
if the 'law of the jungle were to apply in this world, Australia would
probably be left out in many of the interchanges that actually occur'.[6]
11.7 Ms Swain, from the New South Wales Parliamentary Library Research
Service, has identified two other arguments for participation in treaty
making:
... treaties are important in establishing regimes for government areas
in which many countries have an interest but none have absolute sovereignty,
such as the high seas, the air and outer space.
Moreover, being a signatory to a treaty, especially those which deal
with civil and human rights, enhances a country's standing as a "good
international citizen".[7]
11.8 The Australian Chamber of Commerce and Industry acknowledged the
commercial, economic and social advantages of many of the treaties this
country has entered into over a long period of time. It submitted:
- trade liberalisation, which have provided for a more effective, rules-based
system of international trade, commerce and investment, covering an
increasingly broad range of areas of importance to the private sector;
- civil aviation, which make our skies safe for business travellers
and tourists;
- customs, for the necessary processing of exports and imports;
- posts and telecommunications, for the transmission of business and
personal communications and exchanges around the world; and
- taxation and investment agreements, which seek to minimise the costs
and risks associated with doing business in foreign countries.
This brief listing can only be regarded as the 'tip of the iceberg' ...
the overwhelming majority of which have been of benefit to our commercial,
industrial, economic and social development as nation.
To reiterate, commerce and industry is not opposed as a matter of principle
to the Australian Government entering into international treaties which
advance our national interests or contribute to the achievement of international
outcomes which are beneficial to this country.[8]
11.9 Similarly, the ACTU considered that treaties are often in the public
interest.[9] It submitted:
It is clear that Australia's involvement in the international context
by the making of bi-lateral and multilateral conventions and treaties
is essential to our long term success and development. This involvement
is also an important mechanism by which Australia provides a place for
itself in an increasingly global world both in terms of providing for
its own citizens and influencing the future of other nations.[10]
11.10 The Office of the Status of Women submitted that Australia's ratification
of the Convention on the Elimination of Discrimination Against Women
(CEDAW) provides an important basis for the promotion of the equality
of women in Australia:
Since ratification of CEDAW, the range of legal and non-legal strategies
and programs to promote the equality of women and men within Australia
has expanded. Ratification has been part of the impetus for these measures
and CEDAW has often provided a critical touchstone for their development.[11]
11.11 The Australian Education Union also submitted that participation
in international processes is important for Australia:
By and large, the Australian Education Union applauds the Commonwealth
Government's use of these powers [external affairs power] to meet our
international obligations and to ensure that Australia is a good 'world
citizen'.[12]
11.12 The Human Rights and Equal Opportunity Commission supports Australia's
adherence to international human rights treaties:
Responsible use of the external affairs power is critical to ensuring
that all Australians have equal protection under the law in relation
to their human rights. The Commission supports the continued use of
this power by the national parliament.[13]
Globalisation
11.13 The Department of Foreign Affairs and Trade submitted to the Committee
that the process of globalisation is such that it is not practical for
Australia to consider opting out of international regimes which regulate
such matters as trade and transport. The Department stated:
Since the Second World War, the pace of international activity and
hence the need for international agreements to regulate that activity
has increased. This trend towards globalisation, whereby an increasing
number of activities are conducted on a transnational basis, and whereby
national actions increasingly have international ramifications, is well
documented. The growth of multinational corporations is one example
of this trend, and their success demonstrates how international cooperation
has the potential to deliver a higher level of benefits than is possible
for action planned and carried out wholly within national borders. Because
contact between people at an economic, political and social level now
takes place with less regard to national borders than hitherto, policy
makers in individual countries cannot afford to disregard international
developments in any of these areas. Rather they must try to influence
those developments to protect and to promote their national interests.
For these reasons it is simply not realistic for Australia to opt out
of the international system. For example, Australia has always been
and remains heavily dependent on international trade. Because of our
relatively isolated geographical position, Australia also relies on
efficient transport and communications systems. Australia can gain enormously
from technological innovation and its application in trade, commerce,
transport and communications. However, in many areas, technological
advances provide the most benefits where they are implemented cooperatively.
Where the rest of the world is committed to setting up international
networks in particular areas, such as trade, Australia cannot expect
to maintain its rate of progress by acting alone.[14]
11.14 The ACTU considered the role of international labour standards
in the process of increased globalisation of markets. The ACTU stated:
Australian commitment to the development, ratification and implementation
of the labour standards incorporated in treaties and conventions is
crucial to the development of fair and open trade with our Asia Pacific
neighbours. It is the ACTU's view that there is a clear national interest
for Australia to ensure that wherever possible our Asia Pacific trading
partners are meeting those standards. Firstly, all Australians, and
particularly working Australians, should have an interest in ensuring
that disasters like the fire at the Kader toy factory which killed and
maimed hundreds of, mainly women workers are avoided by the adoption
of ILO standards in relation to occupational health and safety. Secondly,
it is imperative that any comparative trading advantage that Australia
may have over other countries is not eroded by cheaper alternatives
subsidised by exploitative practices and conditions. Thirdly, the regional
adoption of such standards is the best insurance policy against a return
to protectionism.[15]
Calls for review of existing treaty obligations
11.15 Despite any perceived advantage for Australia of entering into
treaties, a number of witnesses before the Committee did not consider
that all treaties to which Australia is a party are beneficial.
11.16 The Gosford Branch of the Liberal Party of Australia recommended
that Parliament re-examine every foreign treaty ever entered into by the
Commonwealth since federation and that all future foreign treaties should
only be made by Act of Federal Parliament.[16]
11.17 Mr Guy Barnett, of the Liberal Lawyers Association of Tasmania,
also sought a review of treaties, recommending to the Committee that the
Government should:
conduct a full review of all treaties that have been signed, or to
which Australia is a party. The review should consider the full extent
of Australia's obligations under each treaty. The Australian public
should be informed about these obligations.[17]
11.18 Mr Barnett also considered that there should be 'the imposition
of a sunset clause of say, 10 years, applied to each treaty'.[18]
11.19 Mr William Marmion, from the Western Australian Ministry of Premier
and Cabinet, proposed the establishment of a Treaties Council, comprising
the Prime Minister, the State Premiers and Chief Ministers of the Territories.
Mr Marmion proposed that one of the roles of a Treaties Council would
be to monitor reports from the Commonwealth-State Standing Committee on
Treaties concerning the outcomes of treaties and how they compare with
original expectations and the cost benefit analysis. The Treaties Council
would then determine whether there needs to be any change in Australia's
position with regard to the treaty.[19]
11.20 The Committee agrees that it may be a useful exercise to review
current treaties to consider whether they are serving Australia well and
whether it is still in the national interest to be a party to them. The
Committee also notes, however, that this would be a costly and time-consuming
process. Rather than establish a new committee to review treaties, the
Committee considers that such a function should be one of the roles of
the proposed joint parliamentary Treaties Committee. The Committee recommends
the establishment of a joint parliamentary Treaties Committee in Chapter
15 of this Report.
11.21 Either House of the Parliament could refer any treaties it considers
require review to the proposed new joint parliamentary Treaties Committee
in the same way that a reference is currently referred to Joint Committees
by a resolution of either House.
Criticism of legislation which implements treaties
11.22 The Committee received a number of complaints about certain instances
where treaties were alleged to have given rise to personal hardship. Many
of these complaints concerned whether compensation was payable when land
was affected by World Heritage listing. At the Hobart public hearing,
criticism was levelled at the failure of the Government to compensate
people whose land values were affected by the limitation of the activities
that could take place on their land, due to World Heritage listing.[20]
11.23 However, as other witnesses have pointed out, such criticisms should
not be directed at the treaties themselves, but rather the legislation
which was passed by the Parliament to implement the treaty. These witnesses
argued that any failure to compensate was either a failure in the legislation
implementing the relevant convention, or the result of a general policy
only to compensate when land is compulsorily acquired.[21] As Mr Geoffrey
Law pointed out, there are many laws enacted by governments which have
a major impact on people's property and their livelihoods, which do not
provide a right to compensation. He did not consider that the external
affairs power should be singled out as being particularly unfair.[22]
11.24 Where legislation has been debated and passed by the Commonwealth
Parliament, the concern about the absence of parliamentary scrutiny and
involvement by the representatives of the people is largely eliminated.
It is then a question of whether the policy adopted by the Parliament
in enacting the relevant laws is an appropriate policy.
11.25 The issue of whether compensation should be paid to people whose
interests are adversely affected by Commonwealth actions is an important
matter. However, this issue is not confined to the impact of legislation
implementing treaty obligations that may affect the value of property.
The issues in relation to compensation for Government actions may be more
appropriately considered by a separate inquiry which specifically addresses
the broad question of compensation for Government actions.
Monitoring the implementation of treaties
11.26 As discussed in Chapter 13, a number of witnesses criticised the
Commonwealth for failing to implement its obligations under treaties.[23]
11.27 Others considered that it should be made clear before a treaty
is entered into how it is intended to implement the treaty.[24]
11.28 At the moment, the only procedural obligation on the Government
to account for the manner in which it has implemented a treaty, or intends
to implement it, is through the reporting mechanisms of the treaty itself.
For example, the ILO Constitution requires its members to make annual
reports on the measures taken by members to give effect to the Conventions
that are binding on them.[25] Also, pursuant to article 40 of the International
Covenant on Civil and Political Rights Australia reports to the United
Nations Human Rights Committee on the manner in which it has implemented
the International Covenant on Civil and Political Rights, and the
further action Australia intends to take to implement it in the future.
Similarly, article 9 of the Convention on the Elimination of all Forms
of Racial Discrimination requires countries that are party to the
Convention to submit implementation reports to the Committee on the Elimination
of all Forms of Racial Discrimination.[26]
11.29 In the same way that Australia has procedural obligations to report
to international organisations about the manner in which it implements
its treaty obligations, the Committee considers that the Commonwealth
Government should make similar reports to the Parliament.
Conclusion and recommendations
11.30 Treaties are important to Australia. There can be little doubt
that this is so. Given the size of Australia's economy, military strength
and small population, Australia benefits from an international treaty
system of fair, agreed and transparent rules. It is important that Australia
maintain its outward looking attitude. Participation in the international
treaty regimes has provided Australia and Australians with many significant
advantages.
11.31 Scrutiny of the Executive's role in the treaty making process is
an important element of the democratic process. Accordingly, it is appropriate
that a parliamentary committee be given the role of scrutinising existing
treaties to consider whether it is still beneficial for Australia to remain
a party to them. In Chapter 15 of this Report the Committee makes a number
of recommendations in this regard.
11.32 The Committee notes that presently there is still uncertainty as
to the exact number of treaties to which Australia is currently a party.[27]
As a basic first step towards improving the Commonwealth's approach to
treaty making, the Committee considers that it is crucial that the Government
conduct an audit of treaties and prepare a document that lists the treaties
to which Australia is currently a party. In addition, this document should
provide information such as the Department that is responsible for the
treaty and the manner in which the treaty has been implemented.
11.33 The Committee notes there has been a suggestion that such an audit
include an analysis of all Australia's obligations under these treaties.
The Committee considers that although there is some merit in this suggestion,
it would be too costly and time-consuming. The Committee considers that
an audit of the number of treaties and the manner in which they have been
implemented, is a manageable task which will be of value to the community.
11.34 Many of those who made written and oral submissions to the Committee
expressed concern about the lack of information that is available about
treaties. To address this concern, the Committee considers that the results
of this audit of treaties should be publicly available.
Recommendation 1:
That the Government should conduct an audit of treaties to provide the
following information:
- a list of treaties to which Australia is currently a party;
- a list of which Departments administer the treaties to which Australia
is currently a party; and
- the manner in which treaties have been implemented in Australia, ie,
whether they been implemented by executive action or by legislation,
and if implemented by legislation, which legislation.
11.35 The Committee also considers that it is appropriate for the Executive
to report to the Parliament on the manner in which treaties have been
implemented and are intended to be implemented in the future. Such a reporting
requirement would complement Australia's existing obligations under several
human rights conventions to report on the implementation of obligations
under the relevant conventions. It would ensure that the Australian Parliament
is provided with at least as much information about the implementation
of treaties as are international organisations.
Recommendation 2:
That legislation provide that the Government report to the Parliament
annually on actions taken in the course of the previous year to implement
treaties to which Australia is a party.
Endnotes
- See Chapter 2 above.
- Hansard, SLCRC, 25 July 1995, p 769 per Mr B. Hannaford. See
also p 770, per Mr Watts, where he stated that: 'Something needs to
be done to stop, to annul or to discontinue the treaties that we are
already involved in that prohibit the growth of our own industry in
the farming community'. See also Mrs J.E. Milligan, Submission No. 38,
Vol 2, p 290.
- Hansard, SLCRC, 25 July 1995, p 744, per Mr D. Craig.
- Mr G. Darbishire, Submission No. 68, Vol 3, p 569.
- Mr C.R. Jones, Department of Foreign Affairs and Trade, Submission
No. 93, Vol 6, pp 1168-69.
- Hansard, SLCRC, 13 June 1995, p 519, per Professor K. Wiltshire.
- M. Swain, International Treaties, NSW Parliamentary Library
Research Service, (1995) pp 14-15.
- Mr B. Davis, Submission No. 92, Vol 6, pp 1118-1119.
- See also, Messrs P.W. Millane, J.F. Connolly and A. Davis, Submission
No. 19, Vol 2, p 219.
- ACTU, Submission No. 76, Vol 4, p 731.
- Ms K. Townsend, Submission No. 144, Vol 9, p 2146.
- Ms S. Burrow, Submission No. 56, Vol 3, p 2.
- Mr K. O'Connor, Submission No. 106, Vol 6, p 1326. See also Mr G.
Nettheim, Submission No. 125, Vol 7, p 1874.
- Mr C.R. Jones, Department of Foreign Affairs and Trade, Submission
No. 93, Vol 6, p 1179.
- ACTU, Submission No. 76, Vol 4, p 739.
- Mr M. Mackellar, Gosford Branch of the Liberal Party of Australia,
Submission No. 17, Vol 1, p 206.
- Hansard, SLCRC, 22 May 1995, p 483. Mr C. Clark also sought
a review of all existing treaties: Hansard, SLCRC, 13 June 1995,
pp 609-10.
- Hansard, SLCRC, 22 May 1995, p 483, per Mr G. Barnett. See
also Ms D. Brown, Submission No. 105, Vol 6, p 1321.
- Hansard, SLCRC, 15 May 1995, 233, per Mr W. Marmion.
- Hansard, SLCRC, 22 May 1995, p 481, per Mr G. Barnett. See
also the case studies in Chapter 9.
- See Hansard, SLCRC, 22 May 1995, pp. 508 and 514, per Mr Graham;
Hansard, SLCRC, 16 May 1995, p 417, per Sir M. Byers QC, and
Hansard, SLCRC, 16 May 1995, p 419, per Mr D. Bennett QC; Hansard,
SLCRC, 16 May 1995, p 420, per the Hon. E. Evatt.
- Hansard, SLCRC, 22 May 1995, 504, per Mr G. Law.
- See, for example: Hansard, SLCRC, 25 July 1995, p 823 per Professor
H. Charlesworth; and Hansard, SLCRC, 2 May 1995, p 189, per Mr
S. Donaghue.
- See, for example: Hansard, SLCRC, 14 June 1995, p 638, per
Mr J. Daley. See Article 22 of the ILO Constitution.
- I. Brownlie, Principles of Public International Law, (4th ed)
Clarendon Press, Oxford, 1990, p 645.
- The Committee notes that, for various reasons, several of Australia's
reports to UN committees, including Australia's reports under the Convention
on the Rights of the Child and the International Convention on
Civil and Political Rights, are currently overdue. The Government
is endeavouring to submit these reports as soon as possible.
- See Chapter 2, above.