Chapter 16

Trick or Treaty? Commonwealth Power to Make and Implement Treaties

Chapter 16

Proposals for reform: parliamentary approval of treaties

Previous proposals for reform

16.1 In 1987, Mr Geoff Lindell, a member of the Distribution of Powers Advisory Committee to the Constitutional Commission, suggested that there should be a statutory requirement that the ratification of treaties by Australia be conditional on either:

16.2 The majority of the Constitutional Commission (and the majority of the Distribution of Powers Committee) disagreed with Mr Lindell's proposal. The majority of the Constitutional Commission stated that:

16.3 The majority of the Constitutional Commission did not support Parliament being given a greater role in relation to treaties above and beyond a statutory requirement that all matters referred to the proposed Treaties Council be tabled in both Houses of the Federal Parliament at the time of the referral to the Council. The Distribution of Powers Committee had previously considered the advantages and disadvantages of an increased parliamentary role in treaty making in the following terms:

16.4 However, a minority of members of the Commission (Professor Leslie Zines and Sir Rupert Hamer) supported the proposal put forward by Mr Lindell.[4] Professor Zines, in his submission to the Committee, confirmed his view that ratification of treaties by Australia should be subject to the approval of both Houses of Parliament.[5]

Industry proposal

16.5 A number of industry groups joined together to set out proposals for reforming the treaty making process in Australia. These groups were the National Farmers' Federation, the Australian Mining Industry Council, the Council for International Business Affairs, the Metal Trades Industry Association, the Australian Chamber of Commerce and Industry, the Business Council of Australia, the Environment Management Industry Association and the National Association of Forestry Industries. They set out a number of proposals, including a recommendation that:

16.6 The industry proposal involved both the enactment of confining legislation (parliamentary disallowance) as well as the tabling of treaty impact statements and the establishment of a Parliamentary Committee.

16.7 The submission of the Attorney-General's Department contended that:

16.8 This response seems to misconstrue the proposal, which would appear to require parliamentary approval (by way of absence of disallowance during a certain period of time) prior to ratification. It would not be an attempt to denounce a treaty after ratification, nor would it be a limit on Parliament's power to implement a treaty, except to the extent that a head of power may not be available to the Parliament if the treaty is not entered into. It should be noted that the Parliament is hardly likely to want to legislate to implement a treaty if it specifically acted to prevent the treaty's ratification.

Senator Bourne's Parliamentary Approval of Treaties Bills

16.9 Senator Bourne initially introduced a Private Member's Parliamentary Approval of Treaties Bill 1994 on 29 June 1994. Senator Bourne submitted to the Committee a draft of her proposed Parliamentary Approval of Treaties Bill 1995 and later introduced a Private Member's Parliamentary Approval of Treaties Bill 1995 [8](the Bourne Bill). The Bill has not yet been debated.

16.10 The Bourne Bill would encompass both multilateral and bilateral treaties, as it would apply to 'any agreement or proposed agreement in writing between two or more countries'.[9]

16.11 Clause 4 of the Bourne Bill provides that:

16.12 Under the Bill the Minister would be required to publish a declaration in the Gazette when it is proposed that Australia enter into a treaty. In addition, the treaty would have to be tabled in each House of Parliament within 15 sitting days of Gazettal.[10] The members of each House would then have 15 sitting days to give a notice of motion requesting that the treaty be considered by that House. If no notice of motion is given within the 15 sitting days, the treaty is deemed to have been approved.[11] If a notice of motion is given within that time, no action can be taken to bring the treaty into effect until the treaty has been approved by the relevant House of Parliament. There is no time limit for the approval of the House once a notice of motion has been given. In circumstances where the treaty is approved by one House but disapproved by the other, action to enter the treaty could not take place. Provision is also made for approval of reservations to treaties.[12]

16.13 The Bourne Bill also requires the tabling of a treaty impact statement. Clause 5(3) specifies the matters which must be addressed. The impact statement must set out:

16.14 The Attorney-General's Department, in its submission, (commenting on the earlier version of the Senator Bourne Bill) made the following comments (which appear to be applicable to the current version of the Bill):

16.15 Criticisms of the Bourne Bill, and ways to rectify these problems are discussed later in the course of this Chapter.

Constitutional validity

16.16 Some questions have been raised about Parliament's power to regulate the Executive Government's power to enter into treaties. The concern has been that it may be unconstitutional for the Parliament to interfere with the exercise of the executive power vested in the Executive under section 61 of the Constitution.[51]

16.17 Sir Maurice Byers argued that the executive power to enter into treaties could not be taken away from the Executive, but that it could be regulated by the Parliament. He stated:

16.18 Sir Maurice pointed out that the power of the executive could not be taken away indirectly by saying 'You can't ratify unless I say so'.[17]

16.19 Professor Winterton disagreed, distinguishing a prerogative power, such as the power to enter into treaties, from executive powers which are specifically conferred by the Constitution. He considered that prerogative powers could be subject to legislative control or even removed by the Parliament, while those executive powers specifically conferred by the Constitution could not be interfered with by the Parliament.[18]

16.20 Professor Enid Campbell agreed that section 61 'picks up' prerogative powers, but does not entrench them. The federal Parliament may therefore abrogate royal prerogatives. However, she still considered that there may be a question concerning the separation of powers doctrine:

16.21 Professor Detmold, from the University of Adelaide, took a different constitutional approach, arguing that while the Parliament could and should approve treaties which require legislative implementation, it may not be constitutionally valid to claim the power to approve those treaties which do not require legislative implementation. He stated:

16.22 Professor Charlesworth, also from the University of Adelaide, added the following comments to Professor Detmold's statement:

16.23 Mr Alan Rose, President of the Australian Law Reform Commission, stated that he thought the Commission was at the other end of the spectrum, and that he believed that Parliament would constitutionally be able to bind the Executive.[23] Mr Wayne Morgan,[24] Mr Jacob Fajgenbaum,[25] Mr Michael Stokes,[26] Professor Zines,[27] Mr Brian Fitzgerald,[28] Mr Anthony Morris QC,[29] Dr Schoombee,[30] Professor Webb,[31] Mr John Daley,[32] and the Law Council of Australia[33] were of the same view.

16.24 The Committee received legal advice from the Attorney-General's Department on these issues. Mr Henry Burmester stated:

16.25 Mr Burmester also provided the Committee with his opinion on the constitutional validity of the Bourne Bill. He concluded that the Bill would be constitutionally valid, and made the following points:

Special majorities in the Houses of Parliament

16.26 Several witnesses before the Committee raised the proposal that treaties should be approved by a special majority of two-thirds of the Senate, or both Houses.[36]

16.27 Section 23 of the Constitution provides:

16.28 The equivalent section for the House of Representatives, which states that questions shall be determined by a majority of votes, is contained in section 40 of the Constitution.

16.29 The Committee has received advice that a legislative attempt to impose a two-thirds majority of either House for approval of treaties may be constitutionally invalid, because it may breach these sections.[37]

Evidence for and against parliamentary approval of treaties

16.30 A number of submissions expressly supported Senator Bourne's Bill or parliamentary approval of ratification.[38] Others saw it as a 'good starting point', upon which improvements could be made.[39]

16.31 Mr Alexander Downer,[40] in his speech to the fiftieth anniversary conference of the Liberal Party in Albury on 30 October 1994, gave a commitment to consider requiring that Parliament vote on treaties prior to ratification and for parliamentary disallowance of treaties.[41]

16.32 The Western Australian Constitutional Committee made the following recommendation in January 1995:

16.33 The joint submission of all the Australian States and Territories proposed:

16.34 The States and Territories set out the following scheme 'as a possible method for parliamentary approval of treaties':

16.35 The proposal that treaties with defence or security implications are examined by a parliamentary committee in camera was discussed in Chapter 15 above.

16.36 The Australian Mining Industry Council supported the Parliamentary Approval of Treaties Bill:

There is a great deal of merit in acquiring the approval of both Houses of Parliament before treaties are concluded. The draft bill introduced by the Democrats in June 1994, "The Parliamentary Approval of Treaties Bill" has a great deal to commend it for this reason.[44]

16.37 The Australian Chamber of Commerce and Industry submitted that:

16.38 Several members of the public who appeared before the Committee or made submissions to it, also supported parliamentary approval of treaties.[46]

16.39 On the other hand, several submissions did not support legislation requiring parliamentary approval before ratification. Sir Maurice Byers QC, stated:

16.40 The Hon. Elizabeth Evatt supported the Executive continuing to have the power to ratify treaties without the need for parliamentary approval.[48]

16.41 Mr David Jackson QC supported the Executive retaining its current treaty making power:

16.42 The Australian Council of Trade Unions (ACTU) was supportive of the current roles of Parliament and the Executive. The ACTU submitted:

16.43 Dr Herr, of the Antarctic Cooperative Research Centre of the University of Tasmania, was concerned that any limitation on the power of the Executive to ratify treaties may be detrimental to Australia's interests:

16.44 The Australian Law Reform Commission suggested that any proposed reform process should not unduly hamper the Commonwealth's ability to participate in foreign affairs and to meet its international legal and other obligations.[52]

16.45 Other bodies, such as the Institute for Aboriginal Development, were concerned that the involvement of Parliament in the treaty making process could lead to an undesirable politicisation of the human rights initiatives. Mr Laughton, the Director of the Institute, stated:

Should Parliament have a veto on ratification of a treaty?

16.46 Mr John Daley, from the Victorian Department of Premier and Cabinet, argued that a power of veto held by the Commonwealth Parliament will assist the States because it will ensure that consultation is taken seriously.[54]

16.47 Mr Alistair Graham, from the Biodiversity Coalition, stated that he did not consider that the Parliament had yet earned the right to veto treaties. He stated:

16.48 Others considered that parliamentary approval is inappropriate in a system where treaties are not self-executing (i.e. directly incorporated into the law of the country without the need for enacting legislation). They have expressed concern that if a system of parliamentary approval were adopted, the courts may recognise treaties as automatically having the status of law in Australia.[56] This was disputed by the representatives of the Victorian Government, who argued that Australia could set up a system of parliamentary approval without self-executing treaties, and who noted that in the United States the Senate often agrees to the ratification of human rights treaties only on the condition that they be not treated as self-executing.[57]

16.49 Proposals for parliamentary involvement in the treaties process have also been criticised as being fundamentally undemocratic. This is because, effectively, it provides the Senate with the power to veto ratification of a treaty. The Senate is of course elected on the basis of equal State representation. Thus, populous States such as Victoria and New South Wales have the same representation as less populous States such as Tasmania and South Australia.[58]

16.50 Against this argument it can be considered that a Senate role in the ratification process is democratic under the Australian Constitution as it was the intention of the Framers of the Constitution to establish a States' House. Since federation, the Senate has also developed an important role of review. The Senate represents a different democratic constituency.[59] As treaties may have important implications for the States and the federal system, it may be argued, that it is singularly important that the Senate have a role in the treaty making process.

16.51 Ms Jeannie Paterson, from Monash University, argued that the problem with giving the Senate a power of veto is that it would not be subject to the same risk of a double dissolution under s. 57 of the Constitution if a deadlock developed. While blocked legislation could lead to a double dissolution, the disallowance of approval to enter a treaty would be a mere resolution, which could not result in a double dissolution.[60] The suggestion was raised, in response to this argument, that the House of Representatives could reintroduce the treaty and keep 'badgering' the Senate.[61] If it were supported by public opinion, it is likely that the Senate would support the treaty. As Mr Donaghue pointed out, if the Senate refuses to approve a treaty, this indicates that it would have been unlikely to implement it by way of legislation:

Approval or disallowance?

16.52 The type of approval which Parliament should give treaties was also the subject of debate. The NSW Farmers Association advocated express approval for treaties which have internal effects, on the grounds that a sufficient amount of time is needed to ascertain all the ramifications of a treaty.[63] Express approval of treaties would probably involve a great deal of parliamentary time, and prove administratively difficult.[64]

16.53 While treaties are important, a large number of treaties are of a routine nature. Parliamentary consideration of every treaty may not be an effective use of scarce parliamentary time. Mr Daryl Williams QC, the Member for Tangney, has noted that it is probable that there would be little or no interest among members and senators in debating the great bulk of treaties, which have bipartisan support. He considered that '[i]n view of the large number of treaties likely to be uncontentious, a disallowance system is clearly the more practical'.[65]

16.54 The Clerk of the Senate, Mr Harry Evans, gave the following evidence to the Committee on how a system of active approval of treaties would operate in the Senate, and affect chamber time. He stated:

16.55 Under an active approval procedure each treaty would need to be expressly approved by Parliament no matter how routine or technical in nature. The benefit of a disallowance procedure as envisaged under the Bourne Bill is that either an individual Member or Senator, or a Parliamentary Committee could sift through the tabled treaties and bring contentious treaties to Parliament's attention for consideration by tabling a notice of motion.[67]

Which treaties should be scrutinised?

16.56 An initial question which must be addressed when considering which treaties should be scrutinised by the Parliament, is what falls within the definition of a 'treaty'. Professor Greig pointed out that there are some agreements which Australia treats as being of 'less than treaty status', which other countries would characterise as treaties.

16.57 Professor Greig noted, in his submission, examples of cases where other countries have treated memoranda of understanding as having binding legal consequences.[69] He concluded, however, that:

16.58 A memorandum of understanding would appear not to fall within the definition of 'treaty' proposed in the 1995 Bourne Bill. Treaties are defined to include only those which would confer or impose rights and obligations upon the parties.[71]

16.59 The second important question is whether the Australian Parliament should directly deal with all treaties, or whether it should confine its attention to categories of treaties.

16.60 This issue was also raised by Professor Greig who argued that:

16.61 Professor Campbell, in her submission to the Committee, commented on the scheme for the parliamentary approval of treaties which was proposed by Professor Zines and Mr Lindell to the Constitutional Commission. In contrast to Professor Greig, she observed that from a 'practical point of view, such a scheme would, I imagine, need to cover all international agreements and not merely specified classes of agreements.'[73] If the scheme is expressed to apply only to certain classes of agreement, then there would be the risk of disagreement as to whether the legislation was applicable to a particular agreement or type of agreement.[74]

16.62 International experience shows that the use of categories of treaties is, at least, viable, even if it may not be the best course. In a number of countries, parliamentary approval is only required for the ratification of certain categories of treaties. For example, article 53 of the French Constitution provides that the following categories of treaties may be ratified or approved only pursuant to a law passed by the Parliament: 'Peace treaties, commercial treaties, treaties or agreements relating to international organization, which obligate the finances of the state, which modify provisions of legislative character, which relate to the status of persons, or which pertain to exchange or addition of territory'.[75]

16.63 Similarly, in Italy, article 80 of the Italian Constitution of 1948 provides that it is the Parliament which must authorize by statute the ratification of 'treaties that are by nature political, or provide for arbitrations or judicial settlements of disputes, or involve variations in the state territory, or burdens on the state finances, or modifications in the statutory law'.[76]

16.64 The Committee's attention was drawn to the question of whether the category in which a treaty was placed would be a justiciable issue.[77] The concern was raised that if it were justiciable, the validity of Australia's entry into treaties could be challenged at a domestic level, for failure to meet with legislative requirements. Mr Michael Gorton, from the United Nations Association of Australia, suggested that if it were the Senate which made the decision of which category a treaty falls within, this would be a political decision which would not be justiciable.[78]

16.65 An alternative option was raised by the Australian Law Reform Commission, amongst others. Under this proposal, all treaties would be referred to a Joint Parliamentary Committee on treaty making, and that Committee would be given the power to recommend, as part of its report on a proposed treaty, whether the question of ratification should be referred to the Parliament.[79] In this way, the Committee could sift through all treaties, and refer the controversial ones to the Parliament for its consideration. This would solve the problem of categorising treaties as well as any legal consequences about disputes as to how a treaty is categorised. It would, however, give significant power to a Committee,[80] unless the Houses themselves could decide independently that they wished to subject a treaty to the scrutiny and the approval mechanism.

Enforceability of the legislative controls

16.66 Professor Campbell also pointed out that where a power to veto proposals to enter into international agreements is proposed, consideration needs to be given to the 'enforceability of the legislative controls.'[81] She observed:

16.67 The significance of this issue is that potentially it could lead to international embarrassment for Australia. For example, if Australia entered into a binding international obligation, but the correct procedure was not followed under the Parliamentary Approval of Treaties Bill, it may be that Parliament would refuse to pass legislation to bring Australian practices into line.

16.68 Professor Campbell noted, however, that under the present system the same international embarrassment may arise because the Parliaments of Australia may refuse to amend Australian law to make it comply with the requirements of a treaty entered into by the Executive.[83] Professor Campbell also noted that it may be assumed that the Executive would endeavour to comply with any legislation restricting its power.[84]

16.69 A further issue raised by Professor Campbell concerned the extent to which a court would be prepared to exercise its power to restrain officers of the executive branch from acting in contravention of the legislative provisions. She added that there might also be a question as to who would have standing to sue for an injunction.[85]

If parliamentary approval is to be adopted should Parliament also legislate to implement the treaty at the same time?

16.70 It has been argued that if parliamentary approval of treaty making is to be introduced then it would be desirable to move to have Parliament legislate to implement the treaty at the same time. This would certainly avoid the potential for a government to ratify a treaty and to enjoy the international kudos, while not taking any domestic measures to implement the treaty.[86]

16.71 The ACTU's submission was that if the Parliament was to limit the power of the Executive in entering treaties by requiring parliamentary supervision or State involvement and veto, the effect would be to push Australia closer to the monist model. The ACTU submitted that:

16.72 Professor Greig, of the Australian National University, argued that if there was to be parliamentary approval of legislation, it may be sensible for any necessary legislation to implement the treaty to be made at the same time. He stated:

16.73 In several European countries, where treaties are self-executing, the legislature deals with both the authorisation of ratification of treaties and the incorporation of treaties into domestic law, by the same act. For example, in Italy, the legislature both authorises the ratification of the treaty and transforms self-executing treaties into Italian law, by enacting an 'order of execution'.[89] Similarly, in Germany, the Bundestag performs the double function of consenting to the ratification of a treaty, and opening up the German legal system to the norms of the treaty.[90]

16.74 Although in Australia it is not proposed that ratification of treaties should result in their automatic incorporation in Australian law, any mechanism for parliamentary approval could involve legislative implementation of the treaty at the time that authorisation is given. Such a system would be similar to that used in the early 1970s. As discussed in Chapter 7, when the Whitlam Government proposed to ratify the Convention on the Elimination of All Forms of Racial Discrimination, it ensured that the Racial Discrimination Act 1975, which was intended to implement the treaty, was first passed by the Parliament. The Act contained an express provision authorising the ratification of the Convention.[91] The ratification of the Convention then took place after the Act was passed, but before it came into force, so that the external affairs power was activated before the Act came into effect. The same procedure was undertaken in relation to the International Covenant on Civil and Political Rights, but the failure of the Parliament to pass the enacting and authorising legislation, meant that the Government did not ratify the Covenant.[92]

16.75 There is no reason why this procedure could not be used today, with or without legislation requiring the parliamentary approval of treaties.

Executive action after approval

16.76 Another issue which would arise were legislation requiring parliamentary approval of treaties to be enacted, is whether the Executive should be bound to ratify a treaty once it has been approved by Parliament. The problem would most likely arise were the Senate to agree to approval but subject to reservations which were not acceptable to the Government (this does not appear possible under Senator Bourne's draft Bill because as noted above the issue of reservations has been separated from the process of entering the treaty).[93]

16.77 As the Government must represent Australia internationally, it would not be appropriate for the legislation to require ratification were the Government to decide that a proposed reservation was so sensitive that it would decide not to ratify the treaty. Mr Henry Burmester, of the Attorney-General's Department, commented:

16.78 Professor Campbell also noted that it may be a breach of the constitutional separation of powers if the Parliament were to remove the treaty making power from the Executive. This power would not have been removed if the Executive still had the ultimate power to decide not to enter into a treaty, even if the Parliament had approved entry into the treaty on certain conditions.[95]

Problem of possible delay in ratification

16.79 Concern has been expressed at the length of time it has taken Australia to enter into treaties under current arrangements.[96] Significant parliamentary involvement and additional mechanisms for consultation with the States and Territories could lead to an extension in the amount of time it takes for Australia to enter into treaties.[97] In addition, it has been pointed out that significant delay could lead to embarrassment where Australia, despite taking an active involvement in the treaty drafting, is unable to ratify the treaty within a reasonable period.

16.80 The practices of the United States were raised in evidence on this matter:

18.81 Other witnesses, however, pointed to the fact that treaties are usually negotiated over a long period of time, allowing ample time for consultation.[99] Mr Morris QC also noted that only about 1 percent of treaties will be contentious, and the rest could pass through the Parliament by means of a disallowance mechanism, without any delay.[100] In those cases where a treaty is contentious, delay may be preferable in order to clarify the ramifications of the treaty.

16.82 The Department of Foreign Affairs and Trade agreed that with most treaties there is a sufficient period between signing and ratification to allow for parliamentary procedures, although officers of the Department noted that there will be exceptions where there is an urgent need to enter into treaties.[101]

Power to approve ratification subject to reservations

16.83 The general rule is that a country may ratify a treaty subject to a reservation which may modify the application of a treaty provision for that country. Article 19 of the Vienna Convention on the Law of Treaties permits reservations unless the treaty prohibits them, or authorises only specified reservations other than those in question. Where the treaty makes no provision for reservations, a reservation must be compatible with the object and purpose of the treaty.[102]

16.84 Whether a reservation is compatible with the object and purpose of a treaty raises difficult issues of international law and international relations.[103] The obvious concern is that the benefits of an international treaty can be frustrated by countries making reservations from substantive provisions of a treaty.

16.85 Any parliamentary involvement in making reservations is likely to raise a number of important issues. Parliament is not well equipped to be advised on the intricacies of international law. One of the issues which is likely to arise is the problem of the way international treaties are generally drafted. As treaties tend to be drafted in broad terms (often reflecting the result of compromise) there is a concern that some members of Parliament would tend to be overly zealous in making specific reservations - bringing to bear the skills which are necessary when drafting domestic legislation. Parliamentary approval of treaties could lead to an increase in the frequency of Australia making reservations. Certainly, this appears to be the result of the Senate's involvement in the treaty process in the United States.[104] No doubt at times this would be a useful result, however, where a country ratifies with a long list of reservations, the international community may well view this as representing a lack of commitment to the instrument.

16.86 Mr Barrie Virtue, of the Law Council of Australia, pointed out problems that have arisen in the United States where the Senate has required reservations to be made when entering into treaties He stated:

16.87 Peculiar problems could arise were Parliament to approve the ratification of a treaty subject to a reservation which was determined to be invalid at international law. For example were ratification to be approved subject to the making of a reservation which was found to be incompatible with the object and purpose of a Convention, the effect may be that at international law the reservation would be void.[106] This would mean that Australia, at international law, might be considered a party to the convention without the benefit of the reservation or it might be regarded as not being a party to the Convention at all.[107] The resultant uncertainty may cause some embarrassment for Australia.

16.88 A further issue is how precisely Parliament could be involved in the framing of a reservation.

Clause 9 of the Bourne Bill provides that:

16.90 This provision would allow a proposed reservation to be disallowed by Parliament. It is not clear how this provision would operate in practice. For example, it is not clear whether if a treaty were approved but a proposed reservation were not approved, the Government could proceed to ratify without the reservation. This might be possible, but it would be anomalous if the reason Parliament disallowed the reservation was because it was believed that it was not wide enough (although presumably the Parliament would not approve a treaty in these circumstances unless there was an appropriate reservation).[109]

16.91 Perhaps the most significant point to note about Clause 9 of the Bourne Bill is that it does not provide a mechanism for Parliament to amend a reservation. The Bill provides for a reservation to be either approved or not approved by Parliament. The other problem with the provision is that each reservation would be subject to a separate Gazettal and disallowance procedure. It is conceivable that there may be a number of proposed reservations to any treaty and some may be interrelated.

16.92 In addition, the Bourne Bill does not provide for the linking of the disallowance motion for a reservation with any disallowance motion for a treaty. This results in conceptual problems as a valid reservation must be attached to a treaty. It would be preferable to introduce a process which clearly links the process of reservation making with the process of ratification. It may nevertheless be desirable to have a separate process for tabling and debate, where the Government proposes to amend or withdraw a reservation.

Parliamentary scrutiny of withdrawal of reservations or denunciation of treaties

16.93 The Bourne Bill does not appear to apply to the withdrawal of a reservation. This would appear to be anomalous, as the withdrawal of a reservation may, in effect, increase Australia's obligations under a treaty. Similarly, the Bourne Bill does not apply to a decision by the Government to denounce a treaty where this is possible.

Sensitive and bilateral treaties

16.94 The Bourne Bill does not make any exemptions for sensitive treaties. As discussed in Chapter 15, there may be cases where it is not in the public interest for a treaty to be tabled in the Parliament, and generally publicised, prior to its ratification.

16.95 The Bourne Bill would also have significant implications for current practices in entering bilateral or trilateral agreements. As noted in Chapter 5, such treaties are usually not tabled before signature. In a significant number of such agreements this means that currently the treaty is not tabled prior to the treaty coming into effect. Ms Linehan, from the Department of Foreign Affairs and Trade, attributed this practice to an international convention, describing the situation thus:

16.96 Under the Bourne Bill, bilateral treaties which come into force upon signature (one step treaty process) would need to be tabled prior to signature or exempted from the proposed legislation. If the Bill were expressed to apply to all bilateral treaties, this could mean that some countries might be reluctant to enter into some bilateral treaties with Australia. More likely, however, countries would be willing to enter into bilateral agreements provided that there was a two stage ratification process. As the Department of Foreign Affairs and Trade noted:

Urgent treaties

16.97 A further criticism which has been made of the Bourne Bill is that it does not deal with the issue of urgent treaties. Nor does it place a statutory limit on the length of time Parliament has to consider the treaty.

16.98 Possible means of dealing with urgent treaties were discussed in Chapter 15.

Conclusion and recommendation

16.99 There seems little reason to doubt that the Legislature has the power to limit or regulate the Executive's power to enter into treaties, to make or remove reservations or denounce treaties. The Committee does not consider that the imposition of special majorities in such legislation is a viable option.

16.100 If treaty approval legislation along the lines of the Bourne Bill were to be further considered, the legislation could be drafted to reflect the link between reservations and the treaty under consideration. Parliamentary approval of a treaty could be considered in the context of the desirability of making any reservations. Provision could also be made for the amendment of reservations proposed by the Government, that is, approval for a treaty could be made conditional upon the Executive entering the reservation determined by Parliament. The legislation could also extend to any other treaty process which would increase or vary Australia's international legal obligations.

16.101 Careful consideration would also need to be given to the implications of any treaty approval legislation for sensitive security or defence treaties. In addition, a mechanism would need to be in place to accommodate urgent treaties.

16.102 The Committee considers that the step to requiring parliamentary approval of treaties is so important that it should be the subject of further public debate and consideration. The Committee hopes that this Report will play a useful role in facilitating that debate. The Committee further considers that the implementation of its other recommendations may assist in curing some of the problems which a system of parliamentary approval of treaties would also be designed to address.

Recommendation 11:

That the issue of what legislation, if any, should be introduced to require the parliamentary approval of treaties be referred to the proposed Treaties Committee for further investigation and consideration.


  1. Constitutional Commission, Advisory Committee on the Distribution of Powers Report, AGPS, Canberra, 1987, Appendix J, pp 233-234.
  2. Constitutional Commission, Final Report of the Constitutional Commission, Vol. 2, AGPS, Canberra, 1988: p 745.
  3. Constitutional Commission, Advisory Committee on the Distribution of Powers Report, AGPS, Canberra, 1987: p 88.
  4. Constitutional Commission, Final Report of the Constitutional Commission, Vol 2, AGPS, Canberra, 1988: pp 745-746; 749.
  5. He stated: 'the ratification of treaties by Australia should be subject to the approval of both Houses of Parliament, or, alternatively, subject to disapproval by either House within a specified time. .... I am still of the view that this should be done initially by legislation, perhaps leading later to a constitutional amendment.' Professor L. Zines, Submission No. 102, Vol 6, p 1308.
  6. This recommendation is noted and criticised in: Mr H. Burmester, Submission No. 75, Vol 4, p 711.
  7. Mr H. Burmester, Submission No. 75, Vol 4, p 712.
  8. Senator V. Bourne, Submission No. 85, Vol 5, p 1043.
  9. Clause 3.
  10. Clause 5(2).
  11. Clause 6.
  12. Clause 9.
  13. Clause 5(3).
  14. Mr H. Burmester, Submission No. 75, Vol 4, pp 27-28.
  15. Professor G. Winterton, Submission No. 89, Vol 5, p 1078.
  16. Hansard, SLCRC, 16 May 1995, pp 383-384, per Sir Maurice Byers QC.
  17. Hansard, SLCRC, 16 May 1995, p 384, per Sir Maurice Byers QC.
  18. Hansard, SLCRC, 16 May 1995, p 406, per Professor G. Winterton.
  19. Professor E. Campbell, Submission No. 8, Vol 1, p 93.
  20. Professor E. Campbell, Submission No. 8, Vol 1, p 93.
  21. Hansard, SCLRC, 25 July 1995, p 814.
  22. Hansard, SLCRC, 25 July 1995, pp 815-816, per Professor H. Charlesworth.
  23. Hansard, SLCRC, 25 July 1995, p 816, per Mr A. Rose.
  24. Hansard, SLCRC, 2 May 1995, p 140, per Mr W. Morgan.
  25. Hansard, SLCRC, 2 May 1995, p 208, per Mr J. Fajgenbaum.
  26. Hansard, SLCRC, 22 May 1995, p 460, per Mr M. Stokes.
  27. Professor L. Zines, Submission No. 102, Vol 6, p 1308.
  28. Hansard, SLCRC, 13 June 1995, p 526, per Mr B. Fitzgerald.
  29. Hansard, SLCRC, 13 June 1995, pp 591-592, per Mr A. Morris, QC.
  30. Hansard, SLCRC, 15 May 1995, p 310, per Dr Schoombee.
  31. Hansard, SLCRC, 15 May 1995, p 355, per Professor Webb.
  32. Hansard, SLCRC, 14 June 1995, pp 623-624, per Mr J. Daley.
  33. Mr B. Virtue, Submission No. 63, Vol 3, p 532.
  34. Mr H. Burmester, Submission No. 145, Vol 9, p 2154.
  35. Mr H. Burmester, Submission No. 145, Vol 9, p 2154.
  36. Hansard, SLCRC, 15 May 1995, p 234, per Mr Marmion; p 247 per Mr Gethin; p 331 per Mr Buxton. Mr Savell, from the Association of Mining and Exploration Companies, preferred a two-thirds majority of the Premiers, Chief Ministers and the Prime Minister: Hansard, SLCRC, 15 May 1995, p 342.
  37. See discussion in Hansard, SLCRC, 16 May 1995, per Sir Maurice Byers, Professor G. Winterton and Mr D. Bennett QC at pp 424-6; Hansard, SLCRC, 13 June 1995 at p 603 per Mr A. Morris QC and, Hansard, SLCRC, 25 July 1995, p 818, per Professor Detmold. See also: Hansard, SLCRC, 15 May 1995, p 311, per Dr Schoombee.
  38. See for example, Ms D. Brown, Submission No. 121, Vol 7, p 1684. Mr G.A. Taylor, Submission No. 123, Vol 7, p 1838; Mr P. McDermott, Submission No. 109, Vol 7, p 1403; Mr D. Hodgkinson, Submission No. 127, Vol 8, p 1712 and Mr M. MacKellar, Submission No. 84, Vol 5, p 1040. Dr T. Meagher, Submission No. 108, Vol 7, pp 1361-1362 called for legislation dealing with both implementation of existing and future treaties as well as issues of negotiation and ratification of future treaties.
  39. See for example: Hansard, SLCRC, 13 June 1995, p 527, per Mr B. Fitzgerald.
  40. Mr Downer was Opposition Leader at the time, and is now Shadow Minister for Foreign Affairs and Trade.
  41. Mr H. Burmester, Submission No 75, Vol 4, p 713.
  42. Joint State and Territory Submission, Submission No. 107, Vol 6, p 1331.
  43. Joint State and Territory Submission, Submission No. 107, Vol 6, p 1331.
  44. Mr Buckingham, Submission No. 45, Vol 2, p 407.
  45. Mr B. Davis, Submission No. 92, Vol 6, pp 1111-12.
  46. See, for example: Hansard, SLCRC, 13 June 1995, p 525, per Mr H. Downey; Hansard, SLCRC, 25 July 1995, p 776, per Mr Darbishire; Mrs T.J. McCallum, Submission No. 22, Vol 2, p 234; Ms D. Brown, Submission No. 27, Vol. 2, p 261; Ms J. Orr, Submission No. 28, p 264; Mrs V. Guest, Submission No. 30, p 268.
  47. Sir Maurice Byers QC, Submission No. 25, Vol 2, p 255.
  48. The Hon. E. Evatt, Submission No. 110, Vol 7, p 1415; See also: Mr M Hogan, Public Interest Advocacy Centre, Submission No 141, Vol 9, p 2108, who supported the increased scrutiny of treaties, but not the limitation on the Executive's power. A similar view was taken by Mr Roger Shipton, Hansard, SLCRC, 2 May 1995, p 194; Ms K. Walker, Hansard, SLCRC, 2 May 1995, p 199; and Ms P. Mathew, Hansard, SLCRC, 2 May 1995, p 197.
  49. Mr D.F. Jackson QC, Submission No. 64, Vol 3, p 544.
  50. ACTU, Submission No. 76, Vol 4, p 730.
  51. Dr R.A. Herr, Submission No. 82, Vol 5, pp 1024-1025.
  52. Ms S. Tongue Submission No. 77, Vol 5, p 851.
  53. Mr K. Laughton, Submission No. 55, Vol 3, p 457.
  54. Hansard, SLCRC, 14 June 1995, p 620.
  55. Hansard, SLCRC, 22 May 1995, pp 493-4.
  56. See for example: Hansard, SLCRC, 16 May 1995, p 380, per the Hon. E. Evatt. For analysis of how treaties could be recognised as self-executing under existing constitutional arrangements, see: Mr S. Donaghue, Submission No. 13, Vol. 1, p 121, and Hansard, SLCRC 15 May 1995, p 264, per Dr Thomson. For advocacy of making treaties self-executing in Australia see: C. Saunders, 'Articles of Faith or Lucky Breaks' (1995) 17 Sydney Law Review 150. See also Hansard, SLCRC, 15 May 1995, p 307, per Dr Schoombee.
  57. Hansard, SLCRC, 14 June 1995, p 622, per Mr J. Daley.
  58. G. Winterton, Parliament, the Executive and the Governor-General, Melbourne University Press, 1983: p 9.
  59. It has also been argued that the use of proportional representation for the election of the Senate leads to a more democratically representative Chamber: J. Nethercote, 'Senate is a people's house, too' The Sydney Morning Herald, 14 March 1994.
  60. Hansard, SLCRC, 2 May 1995, p 174, per Ms J. Paterson.
  61. Hansard, SLCRC, 2 May 1995, p 221.
  62. Hansard, SLCRC, 2 May 1995, p 190, per Mr S. Donaghue.
  63. Hansard, SLCRC, 14 June 1995, p 727, per Mr F. Gulson.
  64. Hansard, SLCRC, 2 May 1995, p 133, per Ms J. Tyers.
  65. Mr D. Williams QC, Submission No. 154, Vol 10, p 2241.
  66. Hansard, SLCRC, 1 May 1995, p 103, per Mr H. Evans.
  67. See Mr K. Baxter, Submission No. 111, Vol 7, p 1447.
  68. Professor D.W. Greig, Submission No. 112, Vol 7, p 1508.
  69. Professor D.W. Greig, Submission No. 112, Vol 7, p 1508.
  70. Professor D. W. Greig, Submission No. 112, Vol 7, p 1509.
  71. Clause 3.
  72. Professor D.W. Greig, Submission No. 112, Vol 7, p 1507.
  73. Professor E. Campbell, Submission No. 8, Vol 1, p 85.
  74. Professor E. Campbell, Submission No. 8, Vol 1, p 88.
  75. S. Riesenfeld and F. Abbott, Parliamentary Participation in the Making and Operation of Treaties - A Comparative Study, Martinus Nijhoff, 1994: p 582.
  76. S. Riesenfeld and F. Abbott, Parliamentary Participation in the Making and Operation of Treaties - A Comparative Study, Martinus Nijhoff, 1994: p 583.
  77. Hansard, SLCRC, 2 May 1995, p 210.
  78. Hansard, SLCRC, 2 May 1995, p 220, per Mr M. Gorton.
  79. Ms S. Tongue, Submission No. 77, Vol 5 p 852. See also: Hansard, SLCRC, 25 July 1995, p 790, per Mr A. Rose; and Hansard, SLCRC, 22 May 1995, p 463, per Mr M. Stokes. Although not advocating parliamentary approval, the Hon. E. Evatt also noted that there would be no need for categories of treaties if a Committee were able to sift through them: Hansard, SLCRC, 16 May 1995, p 389.
  80. Hansard, SLCRC, 14 June 1995, p 734, per Senator C. Ellison.
  81. Professor E. Campbell, Submission No. 8, Vol 1, p 86.
  82. Professor E. Campbell, Submission No. 8, Vol 1, p 86.
  83. Professor E. Campbell, Submission No. 8, Vol 1, p 87.
  84. Professor E. Campbell, Submission No. 8, Vol 1, p 88.
  85. Professor E. Campbell, Submission No. 8, Vol 1, p 87.
  86. Hansard, SLCRC, 25 July 1995, p 823, per Professor H. Charlesworth; and p 825 per Mr A. Rose.
  87. ACTU, Submission No. 76, Vol 4, p 751.
  88. Professor D. W. Greig, Submission No. 112, Vol 7, pp 1509-10.
  89. G. Bognetti, 'The Role of the Italian Parliament in the Treaty-Making Process', in S. Riesenfeld and F. Abbott, Parliamentary Participation in the Making and Operation of Treaties - A Comparative Study, Martinus Nijhoff, 1994: pp 96-97.
  90. J.A. Frowein and M. J. Hahn, 'The Treaty Process in the Federal Republic of Germany' in S.A Riesenfeld and F.M. Abbott, Parliamentary Participation in the Making and Operation of Treaties - A Comparative Study, Martinus Nijhoff, 1994: p 68.
  91. Racial Discrimination Act 1975: s. 7.
  92. The Covenant was later ratified by the Fraser Government in 1980.
  93. Mr K. Baxter, Submission No. 111, Vol 7, p 1452.
  94. Hansard, SLCRC, 1 May 1995, p 30, per Mr H. Burmester.
  95. Professor E. Campbell, Submission No. 8, Vol 1, pp 93-94.
  96. See for example: Hansard, SLCRC, 13 June 1995, pp 522 and 530, per Professor K. Wiltshire.
  97. Hansard, SLCRC, 2 May 1995, pp 176-7, per Mr Walsham; and p 213, per Ms P. Matthew.
  98. Hansard, SLCRC, 1 May 1995, pp 41-42, per Senator E. Abetz and Mr H. Burmester. See also comments by Mr Morgan, Hansard, SLCRC, 2 May 1995 p 128. In relation to the greater involvement of the States and Territories in the treaties process and the problem of delay, see Chapter 13.
  99. Hansard, SLCRC, 15 May 1995, p 267, per Mr Marmion.
  100. Hansard, SLCRC, 13 June 1995, p 604, per Mr A. Morris QC.
  101. Hansard, SLCRC, 14 June 1995, pp 701-702, per Mr C. Lamb and Ms J. Linehan.
  102. D.P. O'Connell, International Law, Vol 1, Stevens and Sons, London, 1970, p 232. S. Rosenne, Developments in the law of treaties 1945-1986, Cambridge University Press, 1989 pp 424 and ff.
  103. Hansard, SLCRC, 1 May 1995, p 57, per Ms J. Linehan.
  104. Hansard, SLCRC, 1 May 1995, p 56 per Professor D.W. Greig, who referred to the US reservations to the genocide convention. Hansard, SLCRC, 1 May 1995, p 40, per Mr C. Lamb, who referred to the large number of reservations made by the American administration.
  105. Mr B. S. Virtue, Submission No. 63, Vol 3, p 531.
  106. D.P. O'Connell, International Law, Vol 1, Stevens and Sons, London, 1970, p 237.
  107. Mr K. Baxter, Submission No. 111, Vol 7, p 1451.
  108. Senator V. Bourne, Submission No. 85, Vol 5, p 1045.
  109. Some of these issues were canvassed by Mr H. Burmester, SLCRC, 1 May 1995, pp 29-30.
  110. Hansard, SLCRC, 14 June 1995, p 705, per Ms J. Linehan.
  111. Ms J. Linehan, Submission No. 143, Vol 9, pp 2137-2138.