Chapter 17

Trick or Treaty? Commonwealth Power to Make and Implement Treaties

Chapter 17


17.1 The Committee considers that the Commonwealth's power to enter into and implement treaties must be exercised in the most effective and appropriate manner. This is imperative for both domestic and international reasons. The Government must ensure that entry into international obligations is in the national interest of Australia. As a good international citizen, Australia must fulfil its obligations under international law.

17.2 The Committee considers that the implementation of its recommendations will ensure improvements in the way that the Government's power to enter into and implement treaties is exercised.

17.3 In summary, the Committee's recommendations have five main objectives as follows:

17.4 Accordingly, the Committee has made the following recommendations:

Recommendation 1:

That the Government should conduct an audit of treaties to provide the following information:

Recommendation No. 2:

That legislation provide that the Government report to the Parliament annually on actions taken in the course of the previous year to implement treaties to which Australia is a party.

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.

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.

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.

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.

Recommendation 7:

That the existing Commonwealth-State Standing Committee on Treaties be abolished and replaced with a Treaties Council that is preferably established by legislation. The Treaties Council should comprise members appointed by both the Government and Opposition of each of the Parliaments of the States and Territories and the Government, Opposition and minor parties of the Commonwealth Parliament. The role of the Treaties Council should be to consider the potential impact of treaties on State, Territory and Commonwealth laws, and the method of implementing treaties. The Council should provide public reports which could be tabled in the Parliaments of the States, Territories and the Commonwealth.

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.

Recommendation 9:

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

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:

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.

Senator Chris Ellison