Chapter 15

Trick or Treaty? Commonwealth Power to Make and Implement Treaties

Chapter 15

Proposals for reform: tabling treaties, parliamentary committees and treaty impact statements

Tabling of treaties

15.1 The practice in relation to the tabling of treaties in recent years has been criticised as being inadequate. The Department of Foreign Affairs and Trade's supplementary submission[1] provides details of certain improvements which have recently been introduced - no doubt in response to some of the criticisms which have been made. As noted in Chapter 7, the Government has agreed to a policy of early tabling of treaties, except for some bilateral treaties which are not tabled prior to their entry into force.

15.2 At the Committee's hearing on 14 June 1995, the Department agreed to table treaties outside the normal 6 monthly batches, where there was significant interest in the treaty, except in cases of urgency.[2]

15.3 The Business Council of Australia was of the view that there should be a statutory requirement that all treaties be tabled in both Houses of the Federal Parliament well in advance of any decision by the Executive Council as to whether Australia ought to become a signatory.[3]

15.4 The Committee agrees that there should be a legislative basis for this tabling process. While the Committee recognises that treaties are already tabled in the Parliament under current practice, this does not always occur before final action is taken to make Australia a party to a treaty (either by ratification in the case of multilateral treaties, or by signature in the case of bilateral treaties).

15.5 The Committee considers that as a general rule, all treaties should be tabled at least 15 sitting days before their ratification.[4] The only exceptions to this rule should arise in the case of 'urgent' treaties and sensitive treaties, as discussed below. Even in the case of these exceptions, the treaties should still be made public by being tabled in the Parliament as soon as practicable after Australia has entered into them.[5]

Bilateral treaties

15.6 The Department of Foreign Affairs and Trade advised the Committee that historically, bilateral treaties are considered confidential until they have been agreed upon. Senator Ellison noted that many other countries have a form of parliamentary scrutiny of treaties, and that this problem must already be accommodated in those cases. Officers from the Department agreed that the issue has arisen in its dealings with other countries which have a parliamentary approval system, and it has not prevented Australia from dealing with them.[6]

15.7 The Committee notes that as the requirement of confidentiality arises only during the negotiation stage, this problem could be resolved if bilateral treaties all had a two stage process for entering into force. The treaty could then be tabled and scrutinised after signature, but before ratification.

Sensitive treaties[7]

15.8 The Charter of the United Nations discourages secret diplomacy. Article 102 of the United Nations Charter provides as follows:

  1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
  2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or engagement before any organ of the United Nations.[8]

15.9 The Committee agrees that all treaties to which Australia is a party should be made public and be tabled in the Parliament. The Committee notes that worldwide such important defence and security treaties as the NATO,[9] the Warsaw Pact,[10] ANZUS[11] and Pine Gap[12] treaties have been registered with the United Nations, and published in its Treaties Series.

15.10 The Committee recognises, however, that there may be circumstances where it may not be in the national interest for sensitive treaties to be tabled or otherwise published prior to Australia becoming a party to them. The Committee also acknowledges that in some cases the other party to a sensitive bilateral treaty may make it a condition that negotiations remain confidential until the treaty is signed. In such cases, the Committee considers that there should be an exemption from tabling the treaty prior to it being entered into (whether by way of signature or ratification), but that it must be tabled in the Commonwealth Parliament as soon as practicable after this occurs.[13] When tabled, the treaty should be accompanied by a statement by the Government explaining why it could not be tabled before Australia entered into the treaty.

Urgent treaties

15.11There may also be occasions where there is an urgent requirement to enter into a treaty, and Parliament is not sitting or there is not time to go through the tabling process. The example given by the Attorney-General's Department is the multilateral agreement relating to the status of peacekeeping forces in Bougainville to which Australia recently became a party.[14] This treaty, of necessity, was negotiated and entered into force in a matter of days.

15.12The States and Territories submitted that provision should be made for urgent treaties 'provided that it [the Executive] subsequently tables the treaty and the reasons for the urgency. If Parliament subsequently fails to approve the treaty, the executive is obliged to withdraw from the treaty as soon as possible.'[15]

15.13 Mr Marmion, from the Western Australian Ministry of the Premier and Cabinet also suggested a procedure for urgent ratification, followed by an explanation to the Parliament.[16]

15.14 The Committee considers that in the case of urgent treaties, there should be an exemption given to the general rule that all treaties be tabled at least 15 sitting days before Australia becomes a party to them (whether by way of signature or ratification). However, the Committee concludes that such treaties should be tabled in both Houses of the Parliament as soon as practicable after being entered into, and should be accompanied by an explanation by the Government as to the reason for urgency.[17] If the reason were to be considered inadequate by either House, then it would be up to the political processes of the House to censure the Government.

Scrutiny by a parliamentary committee

15.15 Many witnesses called for scrutiny of treaties, prior to ratification, by a parliamentary committee. A group of legal academics from the University of Adelaide submitted to the Committee:

15.16 The Governments of the States and Territories of Australia in a joint submission to the Committee called for a Parliamentary Treaty Committee to review the treaty impact statements and to conduct hearings into contentious treaties. The submission noted that this review should occur whether or not the proposal for parliamentary approval of treaties is adopted. However, it pointed out that any such review would be more effective if the committee had the power to recommend delay in parliamentary approval of the treaty until adequate information had been provided.[19]

15.17 Mr Richard Slater submitted that there was a valuable role for a Parliamentary Committee in the treaty making process but that it should be only an advisory role. He recommended:

15.18 The Committee considers that there should be scrutiny of treaties by the parliamentary committee process.[21] This scrutiny would have the dual effect of keeping the Parliament informed about treaties and involving the public in the consideration of the impact of treaties. Such a committee should have broad terms of reference which would allow it to consider treaties which Australia proposes to ratify and to recommend whether Australia should proceed with ratification, and if so, whether this should be done subject to any reservations.

15.19 The Treaties committee should have the further function of inquiring into proposed treaties, treaties under negotiation, or other proposed international instruments such as Declarations adopted by the General Assembly of the United Nations.[22] The Treaties Committee should also have the power to inquire into other treaty action proposed to be undertaken by Australia, such as the removal of an existing reservation, or the making of a declaration, which subjects Australia to the application of an article in an existing treaty. For example, Australia made a declaration accepting article 14 of the Convention on the Elimination of all Forms of Racial Discrimination (CERD) which allows Australians to complain directly to the United Nations Committee on Elimination of Racial Discrimination about breaches of the Convention. The making of such a declaration could be considered by the proposed committee.

15.20 An additional role for a parliamentary committee could be the ongoing review of existing treaties and their application and implementation, as discussed in Chapter 11.

15.21 Such a treaties committee should be given the ordinary powers to hold formal hearings. This would enable members of the public and interested groups to comment on treaties or other proposed treaty action and enable the Parliament to obtain independent expert advice on the implications of a particular treaty.

Should a new committee be established or existing ones used?

15.22 There was some disagreement amongst witnesses and those making submissions as to whether it would be preferable to establish a new Treaties Committee or to utilise the existing Committees to examine treaties which fall within their relevant terms of reference.

15.23 One problem with using existing standing committees is that it may not always be clear which committee is most appropriate to consider any particular treaty. Mr Kennedy, from Humane Society International, noted that subjects such as desertification or biodiversity cover a range of matters, including farming, conservation and trade, and that there may be conflict in determining which committee is most suitable to deal with them.[23]

15.24 More importantly, it may be difficult to establish and maintain sufficient expertise, in all committees, about treaties and their application in both international and domestic law.

15.25 On the other hand, a single committee may not have sufficient expertise to cover the subject matter of all treaties. The Department of Foreign Affairs and Trade pointed out in its submission that:

15.26 Interestingly, the possibility of referring treaties to parliamentary committees would appear to be already open to the Senate if it was so minded. On 1 September 1994, Senator Chapman, pursuant to notice, proposed to refer to the Standing Committee on Rural and Regional Affairs for inquiry and report the International Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa. That proposal was defeated,[25] but if it had been accepted by the Senate the Committee would have inquired into and reported on the treaty.

15.27 There is certainly scope for the creation of a specialist Treaties Committee. Senator Harradine has proposed the creation of a Standing Committee on Treaties in the Senate on a number of occasions. On 23 August 1983, Senator Harradine gave notice for the creation of such a Committee that would:

15.28 This notice of motion has been moved in each succeeding Parliament.

15.29 The benefits of a specialist Treaties Committee would be that it could establish expertise on international treaties. While such a Treaties Committee would not have the relevant policy exposure in particular fields of expertise of an established subject-based committee, it would be able to develop greater expertise in scrutinising treaties and it could receive all necessary subject-based expertise from expert witnesses.

15.30 Mr Harry Evans, Clerk of the Senate, gave the following evidence to the Committee on the question of whether there should be one new committee or whether treaties should be referred to existing standing committees:

15.31 It has also been suggested that the function of treaty scrutiny should be referred to an existing committee, such as the Joint Standing Committee on Foreign Affairs, Defence and Trade. In response to this suggestion, Professor Charlesworth observed:

15.32 The Committee considers that a new Treaties Committee should be established. The Committee is concerned that if treaties were referred to existing Committees, there would not be sufficient opportunity to give them the attention they deserve, if they were competing with inquiries into Bills and general references. The Committee also considers that it is important to build up expertise in the areas of international law and general issues concerning treaties and their application in Australia. It is the Committee's view that this is best done within a single Committee and Secretariat.[29]

Should there be a Senate committee or a joint committee?

15.33 If a Committee is to be established, the question arises as to whether it should be a joint committee or a Senate committee.

15.34 On the one hand, some have argued that a Senate Committee is the most practical alternative, because the House of Representatives is dominated by the Government whose members would ordinarily support Government proposals to enter into treaties.

15.35 Mr Harry Evans, Clerk of the Senate, suggested possible problems with joint committees, stating:

15.36 Another argument is that the Senate, which was intended to perform the function of the States' House, should play the more prominent scrutiny role because of the potential impact of treaties on the federal system. Mr Jackson QC stated:

15.37 On the other hand, a joint statutory committee would seem the most appropriate, because treaties equally concern both Houses of the Parliament. The Australian Law Reform Commission suggested the establishment of a joint federal parliamentary committee and made the following comments:

15.38 The Law Society of New South Wales argued for the establishment of a legal framework whereby a Treaties Committee would advise the federal Executive Council on the ratification of a treaty. The Law Society proposed that this Committee recommend the establishment of a joint Parliamentary 'Treaties Committee' to oversee the decision-making process for entering into international treaties and conventions.[33] The Society did not support any greater involvement of the Parliament.[34]

15.39 The Federal Coalition has also supported the establishment of a joint Treaties Committee.[35] Mr Daryl Williams QC, the Member for Tangney, has described the operation of such a committee as follows:

15.40 The Committee agrees that a joint House parliamentary committee is most appropriate. Treaties concern both Houses of the Parliament and it is important that both be represented on any committee conducting the important work of scrutinising treaties. With the establishment of a joint committee, reports of the committee could be tabled in both Houses of the Parliament, and committee members would be able to raise matters relating to treaties in both Houses.[37]15.41

When should Parliament become involved?

Another issue is whether Parliament should be involved at the drafting stage of important multilateral treaties. Several witnesses suggested that Parliament should only become involved in the treaty making process after the treaty is signed, but before it is ratified by Australia.[38] A problem with this is that, in practice, once a treaty is adopted by the international community, it is exceedingly difficult to amend. Thus, if Parliament is to consider treaties once they have already been finalised but before Australia has become a party, its effective options are most confined. At that stage the options are to support Australia ratifying the treaty, or to ratify the treaty subject to the making of certain reservations, or not to support ratification of the treaty.

15.42 Professor Herr gave evidence to the Committee that the negotiation stage of the treaty process 'should not be minimised or regarded as inconsequential.'[39] This stage has enormous consequences for other countries involved in the negotiation process. He also argued that democratic processes should be involved earlier in the treaty negotiation stage, rather than await the ratification process and then exercise a veto.[40] He did not, however, consider that Parliament itself should be involved in negotiating the treaty, but rather that Parliament's role should be to alert the public to the negotiation of treaties 'to ensure that everyone with an interest is aware that this process is underway and to give them a chance at least to have a say.'[41]

15.43 The Attorney-General's Department has noted that the process of international negotiation of multilateral treaties often requires Governments to respond quickly to new developments. With regard to the National Farmers' Federation proposal that Parliament and industry groups be given the opportunity to influence the position taken by Australian delegations,[42] the Department's submission stated:

15.44 Parliamentary involvement during the course of negotiations could ensure that appropriate groups in the community were consulted. However, there is also the potential for the process to prejudice negotiations, the success of which may depend upon Australia's position not becoming fixed and not becoming known to other negotiating countries.[44]

15.45 As has been noted in submissions to the Committee, Parliament has relatively little capacity to be involved in treaty negotiation. Treaties are negotiated usually over many years in negotiations which can be very time consuming.[45] However, the Committee considers that its proposed Treaties Committee should have the power to undertake a general inquiry into a multilateral treaty while it is still under negotiation.[46]

15.46 Such an inquiry would not involve the Parliament in negotiating the treaty, nor would it require the Government's negotiation delegation to take instructions from the Parliament. The purpose of such an inquiry would be to give an opportunity to members of the public to express their views, and to pass on these views through the Treaties Committee to the Government. It would complement the existing process of consultation undertaken by the Department of Foreign Affairs and Trade. There would be no need to reveal Australia's negotiating tactics or to otherwise prejudice Australia's negotiating position. On the contrary, information gained through a Committee inquiry from evidence given by people with expertise on the subject of the treaty, might enhance Australia's negotiation position by providing greater knowledge and understanding of the issues.

Treaty impact statements

15.47 The Committee received a number of submissions requesting that treaty impact statements be prepared for the tabling of treaties in Parliament. Such statements would provide a range of significant benefits.

15.48 Such statements would assist in:

15.49 The proposal for treaty impact statements goes further than the Government's undertaking to table in the Parliament a short explanatory note, setting out the main features of the treaty.[47]

15.50 The Governments of the States and Territories of Australia in a joint submission to the Committee called for the tabling of treaty impact statements. The submission stated:

15.51 The submission argued that the statement would significantly improve the awareness of the public and of the States and Territories about treaties.

15.52 Ms Martin, from the South Australian Department of Premier and Cabinet, considered that the treaty impact statement should assess what laws will need to be changed to comply with the treaty, and how this will be done. She stated:

15.53 Ms Martin also noted that the treaty impact statements would assist Australia's negotiating teams, when negotiating treaties. She stated:

15.54 Mr Rose, from the Australian Law Reform Commission, agreed, stating:

15.55 The National Farmers' Federation has similarly called for the concurrent tabling of a government statement which summarises:

15.56 The Australian Chamber of Manufactures commented that:

15.57 The Committee agrees that there should be a legislative requirement that the Government prepare and table a treaty impact statement at the same time as the relevant treaty is tabled. The Committee considers that such 'impact statements' should not be confined to economic advantages and disadvantages, but should cover social, cultural and environmental effects, and the obligations which would flow from the treaty. The impact statement should also address how it is intended that the treaty be implemented in Australia, and by which level of government.[54]

Other reform proposals

15.58 The Committee received a range of suggestions for reform of the treaty making process. One proposal, made by Professor Greig, of the Australian National University, was for the establishment of a Treaties Commission.

15.59 Professor Greig suggested to the Committee:

15.60 Mr Wayne Morgan, of the University of Melbourne, also was of the opinion that there may be benefit in establishing a special treaties institution. Mr Morgan commented:

15.61 The attractive feature of this proposal is that it would provide the federal Parliament (and possibly State and Territory Parliaments as well) with access to expertise on international law and treaty making.

15.62 As Professor Greig commented:

15.63 While federal Parliamentary Committees can access expert advice as part of the established hearing processes with experts providing their views in a voluntary capacity, a Treaties Commission would provide a professional service to the Parliament. A Treaties Commission might prove particularly beneficial to the State and Territory governments which may not have the same level of access to expert advice. The proposal may also prevent duplication by avoiding the need for each State and Territory to obtain its own advice on a particular treaty.

15.64 Another proposal was for the establishment of a Standing Committee on Federal-State Relations which would have the function of scrutinising treaties as well as a role in relation to the functioning of the federal system of Government in Australia. Professor Wiltshire set out his proposal as follows:

15.65 A further alternative would be to utilise existing bodies and Commissions in relation to consultation and dissemination of information relating to treaties. For example, in relation to human rights treaties, the Human Rights and Equal Opportunity Commission could be provided with additional resources and functions.

15.66 A further suggestion, made by the National Recovery Council, was for a referendum procedure to approve treaties.[59]

Conclusion and recommendations

15.67 It is important that treaties be tabled in both Houses of the Parliament prior to their ratification, to ensure that Parliament is aware of them and that there is an opportunity to debate them. The tabling of treaties also provides another means of public access to the text of treaties.

15.68 The Committee considers that bilateral treaties should be tabled as well as multilateral treaties. Many bilateral treaties are of great significance for Australia and should therefore be tabled before Australia is committed to them. In order to avoid problems concerning international expectations of confidentiality prior to signature, Australia could change its practice in relation to bilateral treaties by requiring both signature and ratification before they can enter into effect. If this were the case, the bilateral treaty could remain confidential up until the time of signature, but be tabled in the Parliament before its ratification.

15.69 As a general rule, treaties should be tabled in both Houses of the Parliament at least 15 sitting days before Australia becomes a party to them (whether by way of signature or ratification). However, in the case of urgent treaties, or sensitive treaties, the Committee considers that they should be tabled as soon as practicable after they are entered into by Australia, and an explanation be given to the Parliament as to why it was considered that they could not be tabled before they were entered into by Australia.

Recommendation 8:

That legislation be enacted which requires the tabling of treaties in both Houses of the Commonwealth Parliament at least 15 sitting days prior to Australia entering into them (whether by signature or ratification). This should be subject to an exception for urgent and sensitive treaties, in circumstances where it is not possible or not in the national interest to table them before Australia becomes a party to them. In such cases, the treaty must be tabled as soon as practicable after Australia has become a party to it, accompanied by a statement explaining the reason why it could not be tabled before Australia became a party to it.

15.70 A Parliamentary Committee process for the scrutiny of treaties could play an invaluable role in keeping the Parliament informed about the implications of treaties and allowing members of the public and other interested groups an opportunity to express their views on treaties. The Committee considers that a new 'Treaties Committee' should be established, which could develop expertise in international law and the application of treaties under domestic law. The Committee considers that it is most appropriate that the Treaties Committee be a joint parliamentary committee, established by statute.

15.71 The Committee considers that the terms of reference of the Treaties Committee should be broad. It should not be confined to considering treaties after they have been tabled but before their ratification. The Treaties Committee should be able to initiate an inquiry into proposed treaties, treaties under negotiation, other proposed international instruments such as Declarations, and other treaty action such as removing reservations and making declarations under existing treaties.

15.72 The Treaties Committee should also have the power to initiate inquiries into existing treaties, in order to consider, amongst other things, how the treaty applies in Australia, and how it is being implemented, or should be implemented.

15.73 The Treaties Committee should not be obliged to report on all tabled treaties, but should be able to initiate inquiries on its own behalf, or be referred matters for inquiry by either House of the Parliament.

15.74 As some treaties may concern sensitive issues, the Treaties Committee should have the power to take evidence in camera.

Recommendation 9:

That legislation be enacted to establish a Joint Parliamentary Committee on Treaties. The functions and powers of the Committee should include:

15.75 The Committee also considers that it would be of advantage to the Parliament, the States, the general public and the Government itself, if the Government prepared 'treaty impact statements' which were tabled at the same time as the treaties to which they relate.

15.76 The Committee considers that 'treaty impact statements' should be monitored and scrutinised by the Treaties Committee, to ensure that sufficient detail is given and that all appropriate areas are covered.

15.77 The Committee considers that the Treaties Council (see Recommendation 7 in Chapter 13) and the Treaties Committee should have the power to formally meet with each other. The aim of these bodies is to improve consultation on treaties. It is therefore essential that these two bodies consult with each other and share the benefit of any insights into the treaty making process and address concerns that may be raised about the process.

Recommendation 10:

That the legislation establishing the Joint Parliamentary Committee on Treaties require that treaty impact statements be prepared on each treaty tabled in Parliament. The impact statements should address the following matters: