Chapter 12

Trick or Treaty? Commonwealth Power to Make and Implement Treaties

Chapter 12

Consultation with interested groups

Consultation with interested groups

12.1 Depending on the subject matter of a treaty, there is a wide range of interested groups with whom the Government should properly consult in relation to entering into treaties. These groups include trade unions, industry, environmental groups, and many other non-government organisations.

12.2 The important issue of consultation with the States concerning entering into treaties is considered in Chapter 13.

The Government's policy on consultation

12.3 In relation to the Government's policy on consultation with interested groups, the Department of Foreign Affairs and Trade has advised that:

Need for whole of government consideration of treaties

12.4 A 'whole of Government' approach to treaty making aims to ensure that all relevant Commonwealth Government departments are consulted during the development of a treaty and that all relevant interested groups are also consulted. For example, if one particular Government department has the carriage of a treaty, and fails to consult widely with other Government departments and authorities, it may fail to appreciate the broader ramifications of the treaty under negotiation for some interested groups that may be outside the usual range of groups which are consulted by that Department. A whole of Government approach to treaty making may help to avoid such a situation and facilitate more effective consultation.

12.5 Mr Ewing, of the Australian Mining Industry Council, expressed concern that certain treaties were not considered from a 'whole of Government' perspective:

Consultation with industry

12.6 Industry's concerns are most evident in the field of industrial relations, environmental and trade treaties. In some areas, essential technical and commercial information will only be possessed by relevant industry bodies. In assessing the value of entering a treaty against the national interest it is increasingly important that industry is consulted, and where necessary, involved in the treaty making process.

12.7 Mr Rick Farley, representing the National Farmers' Federation, commented:

12.8 The National Farmers' Federation pointed out:

12.9 The New South Wales Farmers Association pointed out, however, that consultation is not meaningful unless sufficient time is given by the Government to allow industry groups to respond. Mr Hodgkinson told the Committee:

12.10 The Australian Chamber of Commerce and Industry thought that the private sector should play an important part in the development of treaties. The Chamber's submission recommended that:

12.11 Mr Soutter, from the Business Council of Australia, pointed out the problems that can arise when industry is not properly consulted in the treaty making process. He gave as an example a tax treaty with New Zealand which does not impose any requirement upon the tax officials of either side to come to a speedy determination of issues which may arise between them. He noted that this 'flaw in the treaty' was the result of lack of proper consultation, and had serious consequences for business.[7]

Evidence of increased efforts at consultation

12.12 The Committee received evidence from a range of business groups and companies about their concerns with the treaty making processes. However, there seemed to be some agreement that the Government was making a greater effort to consult industry on relevant conventions.

12.13 Mr Rick Farley, from the National Farmers' Federation, submitted that:

12.14 Mr Hadler, also from the National Farmers' Federation, stated:

12.15 Australia's Manufacturing, Engineering and Construction Industry Association also commented on improvements in the Government's efforts to consult industry in relation to the treaty making process. The Association stated:

12.16 Mr Ewing, from the Australian Mining Industry Council, however, described the consultation as 'spasmodic':

12.17 The Committee also notes that there are cases in which members of minor parties in the Commonwealth Parliament have participated in delegations to negotiate international treaties. For example, Senator Spindler actively participated in the Australian delegation to the Copenhagen United Nations Summit for Social Development earlier in 1995.

12.18 Even with this improvement in consultation, interested persons may miss out on participating in the consultation process because they may not be identified as interested persons by the Government. Dr Herr has argued that there needs to be a more formal parliamentary mechanism to allow everyone who is interested to contribute to the treaty making process.[12]

Consultation with community groups

12.19 Consultation with non-government organisations (NGOs) on treaty matters takes place in a variety of fora. The Department of Foreign Affairs and Trade holds meetings called NGO Briefings with selected non-government organisations.

12.20 Occasionally, members of non-government organisations are included on delegations to international negotiating meetings on the text of treaties.[13] For example, the Committee heard evidence from a Greenpeace representative that he had participated in an Australian Government delegation to renegotiate the international tropical timbers agreement and had been an observer to the negotiations on the UN Convention on Biological Diversity.[14]

12.21 On the one hand, the Committee received evidence that non-government organisations are consulted in relation to treaties. However, the Committee also received evidence that the choice of which groups are consulted on which treaties is a somewhat arbitrary process and could be improved.[15]

12.22 The Joint Committee on Foreign Affairs, Defence and Trade's report, A Review of Australia's Efforts to Promote and Protect Human Rights, called for resources to be allocated for more effective community consultation and education.[16]

12.23 The forum for consultation has also been the subject of debate. Mr Rodney Croome, of the Tasmanian Gay and Lesbian Rights Group, has observed that community consultation will not be achieved merely through more consultation with Parliament. He recommended the establishment of an independent Treaties Commission to facilitate consultation with the community.[17] Mr Soutter, from the Business Council of Australia, also argued that consultation should go beyond the Parliament, beyond the States and into the wider community.[18]

The need to improve the availability of information about treaties

12.24 There appears to be some evidence that the Commonwealth has done much more in recent years in consulting relevant non-government organisations and industry groups.[19] Concern, however, remains about the lack of transparency in the treaty process from the viewpoint of community groups and individuals.[20]

12.25 Members of the public who appeared before the Committee and made submissions to the Committee complained about the lack of accessibility of information about treaties.[21] They were particularly concerned about the absence of material in public libraries and the media. Mr Darbishire, who is President of the Brighton Branch of Grey Power S.A., complained that the journal Insight[22] is not available in local libraries, and that he was unable to obtain a copy of it.[23] Mr Craig also requested that Insight be made available in public libraries.[24]

12.26 Mr Gierke requested the publication of decisions and opinions of international committees and tribunals which are now relevant to Australia.[25] He noted that although people are presumed to know the law, it is not possible to know about treaty obligations if the material is not as accessible as statutes and case law.[26]

12.27 Mr Hannaford complained that publicity about treaties is not reaching the general public. He stated in evidence before the Committee that:

12.28 Dr Gerry Bates also argued that it is imperative that information on treaties reach the community, noting:

12.29 The United Nations Association called on the Government to increase its efforts to educate Australians about the United Nations. Mr Purnell, the National Administrator of the United Nations Association, submitted:

12.30 The Public Interest Advocacy Centre thought the lack of transparency was evidence of a 'democratic deficit'. The Centre submitted:

12.31 The Centre proposed that communication to the public about treaties could be improved by :

12.32 Even lawyers find it difficult to obtain access to treaties in order to advise their clients. Mr David Bennett QC noted that they are not accessible in the same manner as legislation or Hansard, and that the time and effort taken to find them adds to the costs of legal advice and litigation. He suggested that treaties should all be put on a database similar to the SCALE database currently run by the Attorney-General's Department.[32]

12.33 The Australian Law Reform Commission has also expressed concern about the lack of transparency in the treaty making process, and the lack of publicly accessible information on treaties. Mr Alan Rose, President of the Commission, suggested to the Committee that the proposed joint parliamentary treaties committee have access to, or develop, a database of all treaties, both multilateral and bilateral, to which Australia is a party, which should also contain full documentation of treaties currently under negotiation.[33]

12.34 Such a database could then be made available to State parliaments, local government, and to the public generally through such means as the InterNet. Mr Rose concluded:

12.35 Mr Christopher Lamb, from the Department of Foreign Affairs and Trade, informed the Committee that the Department has a 'strong commitment' to consultation, and that it will use technology, as it improves, to facilitate that process.[35] He also noted that the Department is looking at producing commentaries on treaties as follows:

That is particularly applicable to human rights instruments where you might want to relate something in, say, the Convention on the Rights of the Child or the Convention Against Torture to an umbrella paragraph in the Convention on Civil and Political Rights and then go back from there to the Universal Declaration of Human Rights. People can then see where that came from, what it means and, at implementation stages, how they should work with that language.[36]

12.36 The development of such treaty commentaries would not only be extremely useful for Commonwealth, State and Territory Governments, the courts and the general community, but would also be useful internationally, as there is very little published information giving such a comprehensive guide to the meaning of treaties.

Information about treaties in electronic form

12.37 The Committee notes that there is an increasing range of information about treaties available on the InterNet.[37] While commercial providers offer information services on the InterNet, the Committee notes that there are public legal information service providers on the InterNet, such as the recently established Australasian Legal Information Institute.

Australasian Legal Information Institute

12.38 The Australasian Legal Information Institute was established on 1 January 1995 by the University of New South Wales and the University of Technology, Sydney.[38] The Institute has been funded by a grant from the Department of Employment, Education and Training. The joint project was supported by the Australian Council of Law Deans.

12.39 The purpose of the Australasian Legal Information Institute is to provide legal researchers with free access to legal materials that are already in the public domain. The Australasian Legal Information Institute world wide web (www) site ( includes the following (as at 30 May 1995):

The text of the legislation is provided by the Commonwealth Attorney-General's Department and its SCALE system, and converted into HTML (hypertext mark-up language) and searchable form by AustLII.

Human rights database

12.40 The Australasian Legal Information Institute is also involved in providing technical support for the human rights database that is being set up by the Human Rights Centre in the University of New South Wales. The Human Rights Centre recently obtained funding from the Attorney-General's Department to establish a National Human Rights Database and Documentation Centre at the University of New South Wales.

12.41 The Human Rights Centre considers that the establishment of a human rights database and documentation centre will assist to remedy the lack of information currently available to the public about treaty making in general and human rights bodies

12.42 In its submission to the Committee, the Human Rights Centre noted that three priorities have been identified for the human rights database:

Recently announced initiatives to improve consultation and access to treaty materials

Human Rights Consultation and Coordination

12.43 The Government recently announced in The Justice Statement that it would establish a regular Forum for non-government organisations to participate in and to discuss domestic human rights concerns. This Forum would be in addition to the forum currently established by the Department of Foreign Affairs and Trade which discusses human rights from an international perspective.[42]

12.44 The Statement claims that the Forum would provide non-government organisations with an opportunity to exchange information and to discuss domestic human rights issues and developments. The Forum will also be used to involve non-government organisations in the preparation of reports under the international human rights treaties - for example under the International Covenant on Civil and Political Rights.

Human Rights and Discrimination Law Centre

12.45 The Statement also included the proposal to establish a new specialist community legal centre, the Human Rights and Discrimination Law Centre.[43] The Centre is to provide specialist advice and legal assistance to parties involved in discrimination complaints. The Centre will provide advice and collect information relating to discrimination and human rights issues. It will make primary UN material and other key human rights publications available to the public, and assist individuals and groups in their claims.[44]

12.46 The Centre will be provided with additional funding to undertake a project review on the issue of discrimination on the grounds of sexual preference including financial and property related issues. The Centre will be funded to provide for four staff.

Conclusion and recommendations

12.47 The Committee is concerned that the public does not have access to adequate information about treaties. The Department of Foreign Affairs and Trade currently provides the States and Territories, through the Standing Committee on Treaties, with a schedule of treaties under consideration by the Government. Recently, the Government announced that it would also table this document in Parliament. While this move is to be applauded, the Committee considers that this source of information about treaties should be more readily accessible by the general public.

Recommendation 3:

That the Department of Foreign Affairs and Trade prepare a special publication which provides information on the treaties under consideration by the Government and make it available, free of charge, to all public libraries in Australia.

12.48 The Committee considers that the establishment by the Government of a treaties database, that would be readily accessible by the public and free of charge, would help to overcome the problem of the lack of publicly available information about treaties. Such a database would complement the existing ad hoc information on the InterNet about treaties and be an important source of information about the treaties to which Australia is a party.

12.49 The Committee recognises that there will be costs involved in developing appropriate treaties databases but believes that this is in the national interest. Australia's ability to take an active part in the international treaty regime depends on the maintenance of public support for the treaty process. The lack of availability of material on treaties, the limited consultation with community groups, and the lack of parliamentary scrutiny of the treaty making process is contributing to anxiety in sectors of society about the United Nations and the role of treaties.

Recommendation 4:

That the Government fund a project for the establishment of a treaties database, which would include:

The treaties database should be made available, free of charge, on the InterNet (so that Commonwealth, State and local governments, universities, schools, libraries and the general public may access it) and should also be able to be accessed through Commonwealth Government bookshops, in the same manner as the SCALE database which is maintained by the Attorney-General's Department.

12.50 The Committee is concerned about the lack of transparency in the treaty making process and in particular with the failure to educate the community about treaties. Foremost of these concerns is the lack of availability of information relating to treaties, such as full texts of treaties, the travaux prparatoires (which are the documents detailing the negotiation history of a treaty) and documents explaining treaties and their implications to the interested public. Information should also be available as to the status of Australia's negotiations, and which treaties are expected to be signed or ratified in the future.

Recommendation 5:

That funding be provided to the Department of Foreign Affairs and Trade and the Attorney-General's Department for a joint project to publish information on the meaning and interpretation of treaties, including collections of interpretative decisions and the travaux prparatoires (records of the negotiation proceedings) of treaties.

12.51 Of course, the appropriate consultation mechanism for treaties will depend on the particular treaty. Nevertheless, the Government should consider broadening the range of community groups it consults.

12.52 In some cases, the Government may only consult with a peak body in relation to a particular interest group. However, in relation to some groups, a peak body may not be as representative of that interest group as the Government may believe. The Committee considers that the Government should endeavour to consult widely with all relevant groups to overcome such problems.

Recommendation 6:

That the Government increase its efforts to identify and consult the groups which may be affected by a treaty which Australia proposes entering into, and groups with expertise on the subject matter of the treaty or its likely application in Australia.


  1. Mr C.R. Jones, Department of Foreign Affairs and Trade, Submission No. 93, Vol 6, pp 1151-1152.
  2. Hansard, SLCRC, 1 May 1995, p 70, per Mr G. Ewing.
  3. Mr R. Farley, Submission No. 3, Vol 1, p 19.
  4. Mr R. Farley, Submission No. 3, Vol 1, p 20.
  5. Hansard, SLCRC, 14 June 1995, p 750, per Mr D. Hodgkinson.
  6. Mr B. Davis, Submission No. 92, Vol 6, p 1111.
  7. Hansard, SLCRC, 22 May 1995, p 469, per Mr A. Soutter.
  8. Mr R. Farley, Submission No. 3, Vol 1, p 19.
  9. Hansard, SLCRC, 1 May 1995, p 73, per Mr R. Hadler.
  10. Ms V. Filling, Submission No. 116, Vol 7, p 1534.
  11. Hansard, SLCRC, 1 May 1995, p 71, per Mr G. Ewing.
  12. Hansard, SLCRC, 22 May 1995, p 454, per Dr R.A. Herr.
  13. A Funder, 'Treaty-making Procedures in Australia', (1994) Vol 5(4) Public Law Review 289.
  14. Hansard SLCRC, 1 May 1995, p 75, per Mr I. Fry.
  15. Hansard SLCRC, 1 May 1995, p 77, per Mr I. Fry.
  16. Joint Committee on Foreign Affairs, Defence and Trade, A Review of Australia's Efforts to Promote and Protect Human Rights, AGPS, Canberra, 1992: p 43. In its response to the Committee's recommendation, the Government noted that it is the broad function of the Human Rights and Equal Opportunity Commission (HREOC) to consult with community groups on human rights issues generally. See Senator the Hon G. Evans QC, The Government's Response to the Report of the Joint Committee on Foreign Affairs, Defence and Trade, "Australia's Efforts to Promote and Protect Human Rights";, the Senate, 27 May 1993: p 7.
  17. Hansard, SLCRC, 22 May 1995, p 442, per Mr R. Croome.
  18. Hansard, SLCRC, 22 May 1995, p 446, per Mr A. Soutter.
  19. Mr M. Hogan, Submission No. 141, Vol 9, p 2105.
  20. A range of individuals commented that there could be greater public consultation in relation to the Government's ratification of treaties as follows: Mr B. Hannaford, Submission No. 4, Vol 1, p 22; Mrs T. McCallum, Submission No. 22, Vol 2, p 234; Mr A. Joy, Submission No. 57, Vol 3, p 479; B.A. Rocke, Submission No. 58, Vol 3, p 481; Mr W.J. Haskell, Submission No. 49, Vol 2, p 429; Ms J. Orr, Submission No. 28, Vol 2, p 264; Mrs A. Howe, Submission No. 32, Vol 2, p 272.
  21. For example, see Mr J. Bryson, Submission No. 2, Vol 1, p 11.
  22. Insight is published by the Department of Foreign Affairs and Trade and contains lists of treaties under negotiation.
  23. Hansard, SCLRC, 25 July 1995, p 771, per Mr J. Darbishire. Mr C. Clark also complained about the inaccessibility of Insight: Hansard, SLCRC, 13 June 1995, p 580.
  24. Hansard, SCLRC, 25 July 1995, p 774, per Mr D. Craig.
  25. Hansard, SLCRC, 13 June 1995, p 539, per Mr J. Gierke.
  26. Hansard, SLCRC, 13 June 1995, p 540, per Mr J. Gierke.
  27. Hansard, SLCRC, 25 July 1995, p 778, per Mr B. Hannaford.
  28. Hansard, SLCRC, 22 May 1995, p 506, per Dr G. Bates.
  29. Mr D. Purnell, Submission No. 69, Vol 3, pp 578-579.
  30. Mr M. Hogan, Submission No. 141, Vol 9, pp 2104-2106.
  31. Mr M. Hogan, Submission No. 141, Vol 9, pp 2104-2106.
  32. Hansard, SLCRC, 16 May 1995, pp 366-367, per Mr D. Bennett QC. Professor G. Winterton agreed that this was a problem for lawyers: Hansard, SLCRC, 16 May 1995, p 407.
  33. Hansard, SLCRC, 25 July 1995, p 790, per Mr A. Rose.
  34. Hansard, SLCRC, 25 July 1995, p 801, per Mr A. Rose.
  35. Hansard, SLCRC, 14 June 1995, p 662, per Mr C. Lamb.
  36. Hansard, SLCRC, 14 June 1995, p 755, per Mr C. Lamb.
  37. For example, the Multilaterals Project at the Fletcher School of Law and Diplomacy, at Tufts University in the United States of America, provides the texts of multilateral conventions in a range of subjects including cultural protection, human rights, trade and commercial relations.
  38. The following outline of the activities of the Australasian Legal Information Institute is based on information in G. Greenleaf and A. Mowbray, 'Law via the InterNet: the Australasian Legal Information Institute', (1995) 69(8) Australian Law Journal, pp 581-584.
  39. G. Greenleaf and A. Mowbray, 'Law via the InterNet: the Australasian Legal Information Institute', (1995) 69(8) Australian Law Journal, p 582.
  40. Ms S. Pritchard, Submission No. 157, Vol 10, p 2295.
  41. Ms S. Pritchard, Submission No. 157, Vol 10, p 2308.
  42. Attorney-General's Department, The Justice Statement, May 1995: p 175.
  43. Attorney-General's Department, The Justice Statement, May 1995: p 169.
  44. This may redress the problem raised about there being no independent source of advice for people wishing to make complaints under the First Optional Protocol: Hansard, SLCRC, 22 May 1995, p 444, per Mr R. Croome.