Chapter 11

Trick or Treaty? Commonwealth Power to Make and Implement Treaties

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:

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:

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:

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:

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:

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:

11.11 The Australian Education Union also submitted that participation in international processes is important for Australia:

11.12 The Human Rights and Equal Opportunity Commission supports Australia's adherence to international human rights treaties:


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:

11.14 The ACTU considered the role of international labour standards in the process of increased globalisation of markets. The ACTU stated:

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:

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:

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.


  1. See Chapter 2 above.
  2. 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.
  3. Hansard, SLCRC, 25 July 1995, p 744, per Mr D. Craig.
  4. Mr G. Darbishire, Submission No. 68, Vol 3, p 569.
  5. Mr C.R. Jones, Department of Foreign Affairs and Trade, Submission No. 93, Vol 6, pp 1168-69.
  6. Hansard, SLCRC, 13 June 1995, p 519, per Professor K. Wiltshire.
  7. M. Swain, International Treaties, NSW Parliamentary Library Research Service, (1995) pp 14-15.
  8. Mr B. Davis, Submission No. 92, Vol 6, pp 1118-1119.
  9. See also, Messrs P.W. Millane, J.F. Connolly and A. Davis, Submission No. 19, Vol 2, p 219.
  10. ACTU, Submission No. 76, Vol 4, p 731.
  11. Ms K. Townsend, Submission No. 144, Vol 9, p 2146.
  12. Ms S. Burrow, Submission No. 56, Vol 3, p 2.
  13. Mr K. O'Connor, Submission No. 106, Vol 6, p 1326. See also Mr G. Nettheim, Submission No. 125, Vol 7, p 1874.
  14. Mr C.R. Jones, Department of Foreign Affairs and Trade, Submission No. 93, Vol 6, p 1179.
  15. ACTU, Submission No. 76, Vol 4, p 739.
  16. Mr M. Mackellar, Gosford Branch of the Liberal Party of Australia, Submission No. 17, Vol 1, p 206.
  17. 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.
  18. Hansard, SLCRC, 22 May 1995, p 483, per Mr G. Barnett. See also Ms D. Brown, Submission No. 105, Vol 6, p 1321.
  19. Hansard, SLCRC, 15 May 1995, 233, per Mr W. Marmion.
  20. Hansard, SLCRC, 22 May 1995, p 481, per Mr G. Barnett. See also the case studies in Chapter 9.
  21. 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.
  22. Hansard, SLCRC, 22 May 1995, 504, per Mr G. Law.
  23. 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.
  24. See, for example: Hansard, SLCRC, 14 June 1995, p 638, per Mr J. Daley. See Article 22 of the ILO Constitution.
  25. I. Brownlie, Principles of Public International Law, (4th ed) Clarendon Press, Oxford, 1990, p 645.
  26. 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.
  27. See Chapter 2, above.