Trick or Treaty? Commonwealth Power to Make and Implement Treaties

Executive Summary

Chapter 1 - Introduction

On 8 December 1994, the Senate asked the Committee to inquire into the Commonwealth's treaty making power and the external affairs power. The Committee consulted widely in relation to this reference. It conducted public hearings in Canberra and every State capital and received 157 written submissions. This perhaps has been the most comprehensive review devoted solely to the operation of the external affairs power.

Chapter 2 - Background

A number of central issues arose from the evidence and submissions before the Committee. Concerns were raised in relation to the impact of international treaties on the Australian federal system and the sovereignty of the nation. Concerns were also identified in relation to the degree of consultation undertaken by the Government prior to entering into and ratifying treaties. Finally, the issue of the respective roles of the Parliament and the Government, and especially the Executive, in treaty making was raised.

Australia is currently party to approximately 920 principal treaties, about 500 of which are bilateral treaties.

The external affairs power has been previously reviewed a number of times in conjunction with wider issues. Over the last decade, the two major bodies to inquire into the power are the Australian Constitutional Convention in 1985 and the Constitutional Commission in 1988. The Constitutional Convention approved the recommendations of its Sub-Committee on External Affairs which, in general, related to improving the Commonwealth's consultation with the States concerning treaties and the establishment of a Treaties Council.

The Constitutional Commission endorsed the 1985 recommendations of the Constitutional Convention in relation to improved consultation on treaties with the States and the establishment of a Treaties Council. The Commission also recommended that legislation should provide that matters referred to the Treaties Council be tabled in Parliament at the time of referral to the Council.

Neither the Convention nor the Commission recommended any constitutional amendment to the external affairs power. Nor did they recommend a statutory requirement that treaties be subject to parliamentary approval, or non-disallowance by either House within a specified period, prior to ratification.

Since the reports of the Constitutional Convention and the Constitutional Commission, High Court cases have further developed the interpretation of the external affairs power.

Chapter 3 - Introduction to International Law

A treaty is a written agreement between countries which is governed by international law and is binding on those countries that enter into it. The term 'treaty' covers a range of international agreements including charters, conventions, covenants, protocols, pacts and exchanges of notes.

The Vienna Convention on the Law of Treaties sets out a range of procedures in relation to entering into treaties, reservations to treaties, interpretation of treaties, termination and withdrawal from treaties.

Bilateral treaties usually come into force upon signature. However, after a country signs a multilateral treaty there is usually a second step, called ratification, that is required in order for a multilateral treaty to come into force for a country. When a country signs a treaty it usually denotes that a party agrees to the content of the agreement. When a country ratifies a treaty it expresses its consent to be bound by the treaty. A country accedes to a treaty in cases where it was not one of the original signatories, but subsequently agrees to be bound by the treaty.

Some treaties permit a country to enter a reservation to a treaty, which operates to exclude or modify the legal effect of some provisions in the treaty. A country may also withdraw from a treaty, which is known as 'denunciation'. Some treaties stipulate conditions for denunciation and others do not permit it.

The consequences of a breach of international law differ from a breach of domestic law. There is no international court that can compel parties to appear before it and there is no international police force to enforce judgments. Although the International Court of Justice, in the Hague, is a permanent international court, it only has jurisdiction over countries that consent to its jurisdiction. In practice, even countries that have consented to the jurisdiction of the International Court of Justice may fail to abide by its rulings. In such cases, the United Nations Security Council may recommend measures to ensure enforcement of the Court's judgment. However, due to the limited effectiveness of the enforcement of international law, international disputes are often resolved by diplomatic negotiation and political pressure and a range of treaties provide for their own dispute resolution measures, such as referral to arbitration.

Federal countries may ratify a treaty that covers subject matter in relation to which the federal Government is not constitutionally competent to legislate. 'Federal clauses' are sometimes used to overcome the difficulties that may arise in such situations and provide that the federal Government is only bound by the provisions of the treaty that come within its legislative competence.

International organisations play an important role in international law matters. They are established by treaties and have independent legal personality, meaning that they can enter into treaties in their own right. Two major international organisations are the United Nations and the International Labour Organisation. The fundamental goal of the United Nations is to ensure international peace and security. The purpose of the International Labour Organisation is to establish labour standards.

Chapter 4 - Treaties and the Commonwealth Constitution

The power to enter into treaties is an executive power within s. 61 of the Constitution. This is to be distinguished from the legislative power to implement treaties in domestic law which is granted in s. 51(xxix) of the Constitution and is known as the external affairs power.

At Federation in 1901, the Commonwealth Government did not possess the executive power to enter into treaties. This prerogative power remained with the United Kingdom. It is unclear on which particular date Australia became an independent nation capable of entering into treaties on its own behalf. However, it is accepted that Australia became an independent nation some time between World War I and World War II. Further, it seems that the Government was probably able to enter into treaties on its own behalf before it acted on this power.

The original draft of the Constitution contained two main references to 'treaties'. There has been some suggestion that the removal of these references from the final Constitution evidences an intention on the part of the Framers of the Constitution to exclude from the Parliament the authority to legislate with respect to treaties. However, there is general consensus that this is not the case. High Court cases have confirmed that the external affairs power does include the power to implement treaties.

Chapter 5 - The interpretation of the external affairs power and reform proposals

The current interpretation of the external affairs power is that it is an independent plenary head of power that supports laws with respect to matters that are physically external to Australia and laws affecting Australia's relations with other nations. The power also supports legislation that implements Australia's obligations under treaties, regardless of whether the subject matter of the treaty is otherwise constitutionally within the Commonwealth's legislative power.

The High Court has expressed the concern that limiting the interpretation of the external affairs power to matters which are truly 'external' or matters of 'international concern' would create uncertainty. The subjectiveness of such classifications would politicise the High Court and require it to make decisions which should be left to the Government. Accordingly, the current wide interpretation of the external affairs power ensures that political decisions about treaty making are made by the Executive rather than the Judiciary.

The external affairs power is not unfettered. It is subject to limitations such as express and implied constitutional guarantees. The width of the current interpretation of the external affairs power is a cause of concern for some in the community and from time to time has resulted in proposals to amend the external affairs power to restrict the subject matter to which it applies. An example of such a proposal, which has not been passed, was the Constitution Alteration (External Affairs) Bill 1984. The Bill was introduced by the former Attorney-General Peter Durack QC. In the absence of bipartisan support, the Committee considers that a constitutional amendment to s 51(xxix) is unlikely to succeed at the current time.

The Committee recognises that the concerns raised about the external affairs power may be addressed by a range of new mechanisms to improve the process by which Australia's treaty obligations are implemented. The Committee makes recommendations in relation to such matters in Chapters 12, 13 and 15.

Chapter 6 - Treaties and domestic law

It has been generally accepted that treaties are not directly incorporated into Australian law by the international act of ratification or accession to a treaty. The executive act of entering into a treaty creates international obligations for Australia. However, those international obligations do not become part of Australian law until the Parliament enacts legislation to implement them.

There is debate as to whether the High Court's judgment in Teoh's case changes this traditional view. However, the effect of Teoh does not alter the basic proposition that treaties are not directly incorporated into Australia's domestic law without legislative implementation. Rather, Teoh held that Government decision makers should have regard to treaties that have been ratified by Australia but are not yet directly incorporated into Australian law.

The Government has responded to Teoh by issuing a press release and introducing the Administrative Decisions (Effect of International Instruments) Bill 1994. The intended effect of the press release and the Bill is to restore the status quo as it was understood to have existed prior to the Teoh decision.

The Government intends to put beyond doubt that the ratification of a treaty does not give rise to a legitimate expectation that an administrative decision will be made in conformity with the treaty.

The Teoh case demonstrates the increasing importance of the impact of treaties on Australian law and supports the necessity for greater parliamentary involvement in treaty making. (See Recommendations 8, 9 and 10).

Chapter 7 - Current practices concerning entry into treaties

As noted above, the executive signs and ratifies treaties and the Parliament plays a minimal role in entering into treaties. In 1961, the Government introduced a practice of tabling treaties 12 sitting days prior to the ratification of treaties. This practice fell into disuse and was overtaken with the practice of tabling treaties in bulk every six months. The effect of this practice was that many treaties were tabled after ratification. In October 1994, the Government announced that it would endeavour to table all multilateral treaties prior to ratification. Also, the Government undertook to table a schedule of multilateral treaties under negotiation.

The Government does not normally table bilateral agreements prior to signing on the basis of an accepted understanding between countries negotiating bilateral agreements that the content of such agreements is confidential until signed.

It is the official policy of the Government to pass legislation to implement Australia's obligations prior to the ratification of treaties. In practice, this official policy is not always followed, limiting the ability of the Parliament to play a meaningful role in entering into treaties. This need not be the case, for example, the Racial Discrimination Act 1975 included a provision whereby the Parliament approved the ratification of the Convention on the Elimination of All Forms of Racial Discrimination at the same time as passing domestic legislation to comply with the obligations under the Convention.

Chapter 8 - External affairs and the Australian federation

While the Framers of the Constitution intended to create a federation, with separate roles and responsibilities for the State and Federal Governments, they also intended to create one nation, and to confer responsibility for external affairs on the Federal Government and Parliament (to the extent that this power was not exercised by the British Government and Parliament at the time of federation).

It should be recognised that the world itself has changed since federation and treaties now address many areas which were previously considered to be subjects of domestic law only. As the High Court recognised in the Koowarta case, for example, racial discrimination is now a matter of international concern, rather than just being a purely internal matter. This is a development which confronts not only Australia, but the rest of the world.

It is argued that the wide interpretation of the external affairs power, to cover matters that are not 'external' to Australia, may threaten the continued existence of the Australian federation. That is, a wide interpretation of the external affairs power may permit the Commonwealth to extend its legislative competence to cover areas previously considered to be within the domain of the States. Other commentators point to the 'vertical fiscal imbalance' as between the Commonwealth and the States as a greater threat to federation. The Commonwealth's monopoly over income taxation and its ability to make tied grants to the States places the Commonwealth in an economically powerful position in relation to the States and would seem to pose a greater threat to federation than the use of the external affairs power.

Chapter 9 - Case studies - concerns raised during the inquiry

The Report examines a number of case studies to highlight the processes used to enter into and implement international treaties, including the Convention on the Rights of the Child, ILO Convention 158 - Termination of Employment and several environmental treaties. The case studies raise a number of issues. First, more needs to be done to publicise and explain treaties to the public as well as to industry and community groups. Many of the misconceptions that abound in relation to the Convention on the Rights of the Child and some of the environmental treaties may be dispelled if there were sufficient explanatory material available to the community.

Secondly, there should be effective consultation with those who have practical experience in the areas dealt with by treaties, during the negotiation process. People with relevant experience could include representatives of the States or industry or community groups. This is essential to ensure that when Australia enters into a treaty it is fully aware of the consequences of the treaty.

Thirdly, before a treaty is ratified a full review of the laws of Australia which may conflict with a treaty needs to be undertaken. All necessary legislative amendments, at a State and Commonwealth level, should also be made before Australia enters into a treaty, that is, the Government's official policy should be followed. The situation should not arise that a treaty is entered into shortly before an election, leaving a subsequent Parliament to decide whether or not it should be implemented.

Fourthly, legislation which implements a treaty should clearly address the consequences of executive acts related to the treaty, such as the listing of land under environmental treaties. The policy decisions concerning whether compensation is payable and the criteria upon which listing should be made, should be made clear in the legislation, and to the general community.

These issues are addressed in Chapters 11, 12, 13 and 14.

Chapter 10 - Practices in other federations

Treaty making and the implementation of treaties is dealt with differently in federations throughout the world. A brief comparative survey of the practices in Argentina, Belgium, Canada, the Federal Republic of Germany, India, Switzerland and the United States of America shows that most federations confine the power to enter into treaties to the central government, although there are some limited exceptions.

A similar comparative survey of treaty making in OECD countries shows that, contrary to some arguments, the extent of parliamentary involvement in treaty making is not necessarily related to whether treaties are self-executing. In countries where treaties are self-executing no implementing legislation is required before the rights and obligations in the treaty become domestic law. It would also seem that in countries that require some form of parliamentary approval for entering into treaties the pursuit of foreign policy objectives is not necessarily restricted or delayed.

Chapter 11 - Reviewing the value of current treaties

As noted earlier, the world today is a markedly different place compared to the state of the world at federation. The term 'globalisation' has been coined to describe the increasing economic, social and political activity throughout the world that is not confined by national borders. International cooperation between countries is imperative to ensure that, where necessary, regulation of such transnational endeavours occurs in a manner that is acceptable to all parties. Countries must participate in international developments, such as the negotiation of international treaties, to ensure that their national concerns and interests are taken into account.

In the international arena, Australia is not a powerful nation in terms of its population, economic strength and military capability. Accordingly, a multilateral system of international treaties governing the interaction between countries, which provides fair, agreed and transparent rules, is in the national interest for Australia.

There is still uncertainty as to the exact number of treaties to which Australia is currently a party. Accordingly, the Committee considers that it is necessary for the Government to conduct an audit of treaties to determine the precise scope of Australia's international obligations. Such a document should be publicly available and would go some way to addressing concerns about the lack of publicly available information about treaties.

Recommendation 1:

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

• a list of treaties to which Australia is currently a party;
• a list of which Departments administer the treaties to which Australia is currently a party; and
• the manner in which treaties have been implemented in Australia, ie, whether they been implemented by executive action or by legislation, and if implemented by legislation, which legislation.

Although treaties do benefit Australia, a range of concerns have been raised in relation to the implementation of treaties and the monitoring of the implementation of treaties. It is ironic that currently the Government is only required to account for the manner in which it implements a treaty through the reporting mechanisms of the treaty itself. Such reporting mechanisms can require the Government to report to a United Nations agency about the action the Government has taken to implement a treaty and any further action that will be taken. In the same way that some treaties require reporting to an international organisation, similar reports should be tabled in Parliament on the progress of treaty implementation.

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.

Chapter 12 - Consultation with interested groups

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 the Commonwealth 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.

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.

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 full text of all multilateral treaties included in the Department of Foreign Affairs and Trade's publication Select Documents on International Affairs;
• any available explanatory material on these treaties; and
• decisions of international bodies which interpret these treaties, such as the United Nations Human Rights Committee and the complaints bodies of the International Labour Organisation.

  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.

Many concerns have been raised about the lack of transparency in the treaty making process and in particular 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.

It is Government policy to consult with relevant groups in the negotiation of an international treaty. The Committee recognises that 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.

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.

Chapter 13 - States and Territories

Only the Commonwealth Government has international legal personality, and therefore only the Commonwealth Government has the power to enter into treaties. The Australian States, however, play an important role in Australia meeting its international obligations. In many cases treaties are implemented by State legislation or State administrative action.

The States and Territories do not seek a power to veto treaties. Instead, they seek proper, detailed and timely consultation. Such consultation has already been achieved, in part, through the establishment of the Standing Committee on Treaties, and the other procedures set out in the 'Principles and Procedures for Commonwealth-State Consultation on Treaties'.

The States and Territories, however, have been critical of the functioning of the Standing Committee on Treaties, as it is only a committee of officials. In addition to suggesting that the Standing Committee on Treaties be upgraded, the States and Territories have called for the establishment of a Treaties Council, comprising State Premiers and Chief Ministers.

The Committee is concerned that the creation of a new Treaties Council would merely duplicate the number of bodies dealing with Treaties. The Committee considers that it would be preferable to build on existing bodies, rather than create an extra body. Accordingly, the Committee considers that the preferable approach would be to replace the Standing Committee on Treaties with a Treaties Council, that could be established by legislation. The Committee considers that the Treaties Council should reflect the views of the State and Territory Governments and the views of the State and Territory Parliaments. This would involve the Parliament of each State and Territory appointing a representative from the Government and a representative from the Opposition, to be on the Treaties Council. Similarly, a representative of the Government, the Opposition, and the minor parties in the Commonwealth Parliament should be included on the Treaties Council.

The Committee considers that the proposed Treaties Council would address the concerns raised before the Committee about inadequate consultation with the States and Territories in relation to treaties. The broad-based parliamentary membership of the Council would facilitate the widest possible Commonwealth/State consultation on treaties.

There may be some concern that the operation of the Council may be too unwieldy. However, the Committee notes that the Treaties Council is not intended to be a decision making body. Rather it is envisaged that the Council will be an advisory body. In many cases, the negotiation of treaties takes place over a number of years. As such, the role of the Treaties Council in considering proposed treaties would not unduly delay the treaty making process.

The Treaties Council should meet on a regular basis. It should actively consider the potential impact of treaties on State and Territory laws and the most appropriate manner of implementing treaties. The Treaties Council should be more than a clearing house for information. It should hold deliberative meetings and publish reports, which would make the views of the States and Territories available to the public. The Committee considers that these reports should be tabled in the Parliaments of the Commonwealth, States and Territories.

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.

Chapter 14 - The need for greater parliamentary involvement

The act of entering into a treaty is a free decision of Australia as a sovereign nation. This decision is made by a government which has been democratically elected by the Australian people and is accountable to them. Any action taken to change the law in order to implement the treaty must be taken by the Commonwealth Parliament, or the parliaments of the States or Territories. Hence the process of entering into and implementing treaties is democratic, but the process could be improved, for example, by improving consultation on treaties.

The Committee recognises that by incurring international obligations under treaties, the Commonwealth Government exerts influence on the Commonwealth Parliament or the States to fulfil those obligations. International influence may be brought to bear by the international community or organisations such as the United Nations Human Rights Committee.

International obligations are incurred at the point of entering into a treaty. However, the function of implementing the treaty is often reserved to the Commonwealth Parliament. Accordingly, it would be preferable to involve Parliament prior to ratification, so that it can make a free choice without the possibility of a potential breach of treaty obligations.

Chapter 15 - Proposals for reform: tabling treaties, parliamentary committees and treaty impact statements

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.

The Committee considers that new legislation should be introduced to require that all treaties should be tabled prior to ratification, subject to special provisions for urgent treaties and sensitive treaties. In the case of urgent treaties, they should be tabled in the Parliament as soon as is possible after they have been entered into, with a statement by the Government justifying the reason for urgency. It would then be a matter for the Parliament to determine whether it finds the reason acceptable.

The Committee also accepts that in the case of sensitive treaties there may be reasons why they should not be tabled before Australia becomes a party to them (if, for example, their early publication would threaten the safety of people or the effectiveness of law enforcement operations). In such cases, the Committee considers that there should be exemptions from the general rule that treaties should be tabled in Parliament at least 15 days before ratification. However, these treaties should still be tabled as soon as practicable after Australia becomes a party to them.

Bilateral treaties should be tabled as well as multilateral treaties. Many bilateral treaties are of great significance for Australia and should therefore not be excluded from tabling until after Australia is committed to them.

The Committee recognises the existing practice that bilateral treaties are treated as confidential prior to signature and that they usually take effect upon signature. The Committee considers, however, that to the extent that such a problem exists, it would be resolved by having a two step procedure in entering into bilateral treaties, as occurs with multilateral treaties. Signature would therefore have to be followed by ratification before the bilateral treaty could come into effect. The treaty could therefore remain confidential up until the point of signature, but could be tabled in the Parliament between signature and ratification.

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.

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 Commonwealth parliamentary Treaties Committee should be established, which could develop expertise in international law and the application of treaties under domestic law. The Committee considers that the Treaties Committee should be a joint parliamentary committee which is established by statute.

The Committee considers that the terms of reference of the joint parliamentary 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. However, any inquiries initiated by the Treaties Committee would not involve the Parliament in negotiating the treaty.

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. 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.

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:

• the function of inquiring into and reporting on any proposals by Australia to ratify or accede to any treaty, proposed treaty, or other international instrument or proposed international instrument, including whether Australia should become a party to the treaty or instrument;
• the function of inquiring into and reporting on whether Australia should make any reservations or declarations upon ratification or accession to any treaty;
• the function of inquiring into and reporting on any other proposed treaty action, such as the removal of a reservation, or the making of a declaration which subjects Australia to additional obligations under a treaty; the function of inquiring into and reporting on treaties to which Australia is already a party, including the method of their implementation and how they should be dealt with in the future;
• the function of scrutinising treaty impact statements;
• the power to hold public hearings and hold hearings in camera; the power to call for documents and witnesses; and
• the power to commence an inquiry into a treaty, proposed treaty, international instrument, proposed international instrument, or any other treaty action, at any time, regardless of whether it relates to a document that has been tabled in the Parliament.

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. 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.

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.

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:

• reasons for Australia being a party to the treaty;
• any advantages and disadvantages to Australia of the treaty entering into force in respect of Australia;
• any obligations which would be imposed on Australia by the treaty;
• any economic, social, cultural and environmental effects of the treaty entering in force in respect of Australia, and of the treaty not entering in force in respect of Australia;
• the costs to Australia of compliance with the treaty;
• the likely effects of any subsequent protocols to the treaty;
• measures which could or should be adopted to implement the treaty, and the intentions of the government in relation to such measures, including legislation;
• the impact on the Federal-State balance of the implementation of the treaty;
• a statement setting out the consultations which have occurred between the Commonwealth, the States and the Territories and with community and interested parties in respect of the treaty; and
• whether the treaty provides for withdrawal or denunciation.

Chapter 16 - Proposals for reform: parliamentary approval of treaties

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.

Several legislative proposals have been made concerning the parliamentary approval of treaties. A recent proposal is the Private Member's Bill introduced by Senator Bourne, the Parliamentary Approval of Treaties Bill 1995 (the Bourne Bill). The Bourne Bill applies to both multilateral and bilateral treaties and provides that entering into a treaty must comply with the parliamentary approval process outlined in the Bill. The approval process requires gazettal of intended treaty action and the tabling of the treaty in Parliament within 15 sitting days of gazettal. Members and Senators have a further 15 sitting days in which to give a notice of motion requesting that one of the Houses consider the treaty. If no notice is given in either House within that 15 sitting day period, the treaty is deemed to have been approved. If, however, a valid notice is given in a House, then no action can be taken to enter a treaty until it is approved by that House. There is no time limit on debating the notice of motion, once it is made. The Bourne Bill also requires a treaty impact statement to be tabled in Parliament.

This procedure is similar to the existing procedure for regulations, which allows them to be disallowed by either House of Parliament. Under a disallowance procedure the Parliament would not be required to actively consider all treaties. This would be an advantage as many treaties are not considered to be controversial. Careful consideration needs to be given to the implications of any treaty approval legislation for sensitive treaties. In addition, a mechanism would need to be in place to accommodate urgent treaties.

The issue of legislation requiring parliamentary approval of treaties is so important that the Committee considers 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.