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:
A requirement that Parliament or its Houses consent to the ratification
of all treaties would therefore often give non-government supporters
in the Senate the power to override executive policy supported by the
Government and the House of Representatives.[2]
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:
the proposal is unnecessary because Parliament's participation is already
assured in relation to legislation needed to implement a treaty;
no instance has been cited to the Committee of the Executive Government
having entered into an international obligation without first attempting
to assure itself that Australian laws comply with such obligations before
they come into force;
the approval of the Senate may not be easy to obtain since Governments
do not always have a majority in that House;
the proposal is based on the United States system of government which
is different from that which prevails in Australia since in the United
States (self executing) treaties automatically become part of the domestic
law of the land, and in any event Congressional approval is not required
for "executive agreements";
it may be unnecessary to require parliamentary approval for all treaties
and it is too difficult to distinguish in advance which treaties should
receive that approval;
the point is sometimes made that treaty making, as distinct from implementation,
is inherently an executive function.
the proposal would prevent a Commonwealth Government in effect dictating
to or forcing the Parliament's hand, by entering into a treaty which
has the effect of binding Australia at international law before any
legislation has been passed to ensure compliance or consistency with
the obligations created by the treaty; the fact that such an eventuality
has so far not occurred does not mean it will never occur in the future;
the proposal could assist the political processes to prevent or restrain
an abuse of the external affairs power.[3]
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:
[P]roposed treaty ratification ... be subject to parliamentary disallowance
by either House and implementing legislation not ... be put to Parliamentary
vote until Parliament has had the opportunity to consider whether the
convention would be in the national interest.[6]
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:
The last three of these proposals, if fully implemented, would have
the capacity to completely stifle Australia's participation in treaties...
The proposal that proposed treaty ratification be subject to Parliamentary
disallowance is puzzling. If it is intended to mean that Parliament
can somehow disallow an Australian ratification or accession then it
is impractical. Once Australia becomes a party to a treaty then it is
the international process which governs withdrawal from that treaty.
Indeed, in many cases treaties do not provide for withdrawal. Even when
treaties do provide for the withdrawal of parties, there is a period
between the time when notice of withdrawal is given and the withdrawal
takes effect. Any rule that implementing legislation could not be put
to Parliamentary vote until Parliament has considered whether the convention
would be in the national interest seems to pre-empt the power of Parliament
over its own proceedings. Quite obviously Parliament itself could defer
implementing legislation if it was not happy with Australia becoming
a party to the relevant convention. There is no need for a specific
rule or practice delaying implementing legislation pending consideration
of the national interest.[7]
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:
Action by which a treaty would enter into force in respect of Australia
must not be taken before the treaty is approved in accordance with this
Act.
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:
(ii) any advantages and disadvantages to Australia of the treaty entering
into force in respect of Australia; and
(iv) any economic, social and environmental effects of the treaty,
of the treaty entering in force in respect of Australia, and of the
treaty not entering in force in respect of Australia; and
(vii) measures which could or should be adopted to implement the treaty,
and the intentions of the government in relation to such measures, including
legislation; and
(b) a statement setting out the consultations which have occurred between
the Commonwealth, the states and the territories in respect of the treaty.[13]
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):
it applies to both multilateral and bilateral treaties. In international
law the content of bilateral treaties is generally regarded as being
confidential to the parties prior to entry into force. It is difficult
to see how that confidentiality could be maintained if bilateral treaties
had to be tabled in Parliament;
it takes no account of the fact that on occasions some treaties are
urgent. If Parliament is not sitting or has been dissolved or prorogued
then a treaty could not enter into force for Australia under the Bill.
There are occasions in which treaty action is urgent. For example last
year Australia entered into a multilateral agreement relating to the
status of peacekeeping forces in Bougainville. This treaty, of necessity,
was negotiated and entered into force in a matter of days;
Senator Bourne stated in her Second Reading Speech that if a notice
is given then the treaty must be considered within 15 sitting days.
It does not seem that the Bill achieves that result as the Bill does
not require the relevant House of Parliament to consider the motion
within that time frame, nor does it state that the treaty enters into
force if the House of Parliament does not consider the motion within
that time frame;
the Bill does not take sufficient account of the international processes
relating to entry into force of treaties under which the timing of entry
into force of a treaty generally will be dependent not only on the actions
of Australia, but also on the actions of other countries.[14]
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:
No law of the Parliament could take away directly or indirectly the
power that the executive possessed. However, the law under 51(xxxix)
can say how that power is to be exercised and so it could lay down conditions
relating to the manner in which treaties should be ratified by the executive
or it could require things like reports to the parliament beforehand.[16]
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:
[I]t is possible that the High Court would hold that the federal Parliament
cannot enact legislation to invest itself, or either of its Houses,
with powers of an executive character. If this is so, it follows that
the federal Parliament could not, pursuant to its external affairs power,
enact a statute which removes the treaty-making power from the executive
branch and transfers it to the Parliament or one (or both) of its Houses.
Federal legislation which leaves the power to enter into treaties,
or any other international agreements, with the executive branch, but
which prohibits the exercise of that power without reference to Parliament
or its Houses would probably not be regarded as involving Parliament
or its Houses in the exercise of executive power.[20]
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:
Prof. Detmold - I think that if there were legislation that
said no treaty shall be ratified without parliamentary approval, there
would be a strong argument that that legislation would be unconstitutional.
As you probably know, the High Court has explored quite extensively
the separation of judicial and legislative power. It has not yet explored
the separation of legislative and executive power, but it most certainly
would do on that occasion, if such legislation were passed.
Prof. Detmold - Where it concerned treaties that quite centrally
required legislative intervention and legislative implementation, then
it would be constitutionally appropriate, because the parliament would
be concerning itself with essentially a legislative process.[21]
16.22 Professor Charlesworth, also from the University of Adelaide, added
the following comments to Professor Detmold's statement:
With regard to Professor Detmold's argument, there is lively debate
on the extent to which Parliament can control the Executive's function....
I do not think Professor Detmold would disagree that his view is at
one extreme of the debate and there are other views that there would
really be no problem. So I think it is something that has not yet been
firmly resolved by the High Court, but there is real debate on what
the court would do.[22]
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:
In my opinion, it is clear that Parliament cannot itself assume the
executive power to conclude treaties.... The more difficult question
is the degree to which it can control the exercise of the power. Sir
Maurice [Byers] draws the line at one point. Other constitutional lawyers
have drawn the line elsewhere. In my opinion, the High Court is unlikely
to regard an Act requiring prior parliamentary approval for ratification
of a treaty as beyond power. As Professor Winterton points out, the
treaty making power is not specifically conferred by the Constitution.
While implicit in s.61 of the Constitution as an exercise of executive
power, it derives from the common law and is thus inherently subject
to control by statute. See also Zines, The High Court and the Constitution
(3rd ed.), pp. 224-8. In my view Parliament may enact legislation to
regulate the exercise of the prerogative powers of the Crown, of which
the power to conduct Australia's treaty relations forms part.[34]
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:
Applying the advice set out above, the 1995 bill is likely, in my opinion,
to be held valid by the High Court if it were enacted. Certainly the
Bill does not seek to transfer the treaty-making powers from the Executive
branch of the Government to Parliament. Rather, it would be a precondition
to the exercise of those powers by the Executive that the process set
out in the 1995 Bill be followed.
However, there are two aspects of the 1995 Bill which from a practical
point of view might be considered further. They might also leave the
Bill open to challenge on the basis that it would severely hamper the
conduct of Australia's foreign relations. The first of these is that
it makes no allowance either for urgent treaties or for dealing with
treaties when Parliament is not sitting. Secondly, if a notice of motion
were given under Clause 6 of the 1995 Bill there would be no requirement
for that notice to be dealt with within a reasonable period of time.[35]
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:
Questions arising in the Senate shall be determined by a majority of
votes, and each senator shall have one vote. The President shall in
all cases be entitled to a vote; and when the votes are equal the question
shall pass in the negative.
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:
Failing a constitutional amendment to limit the scope of the Commonwealth's
external affairs power, all treaties should be tabled in the Commonwealth
Parliament, and Commonwealth legislation be enacted under section 51(29),
in conjunction with section 61, to make ratification conditional on
non-disallowance by either House within a specified period from the
time of tabling.
16.33 The joint submission of all the Australian States and Territories
proposed:
[t]hat the Commonwealth Parliament - meaning the two Houses of Parliament
- should be given statutory power to approve the ratification of treaties
using a disallowance procedure similar to that used for Parliamentary
scrutiny of delegated legislation.[42]
16.34 The States and Territories set out the following scheme 'as a possible
method for parliamentary approval of treaties':
- Legislation creates the requirement for Commonwealth Parliamentary
approval before treaties are ratified.
- If within a set period no member of Parliament gives notice that a
treaty should be debated, Parliament is deemed to have approved the
treaty.
- If a majority of either House of Parliament votes not to approve the
treaty, the executive must not ratify the treaty.
- Parliamentary approval is required for all treaties binding on Australia
at international law, but not to agreements of less than treaty status.
- Treaties with defence or security implications are examined by a Parliamentary
committee in camera and are deemed approved unless the committee recommends
otherwise.
- The executive has power to ratify a treaty as a matter of urgency,
provided that it subsequently tables the treaty and the reasons for
the urgency. If Parliament subsequently fails to approve the treaty,
the executive is obliged to withdraw from the treaty as soon as possible.
- Parliament can add reservations to a treaty where permissible at international
law.
- A Parliamentary committee oversees the treaties process, examining
all treaties brought before Parliament for approval and monitoring the
effectiveness of consultation on them, and also makes wider reports
on the treaty making system.[43]
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:
... Ratification of an international instrument should be dealt with
in the same way as conventional legislation - that is, tabling, debate
and passage through both Houses of the Federal Parliament;[45]
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:
It is difficult to conceive of any reason why, in the national interest,
the power of the Executive should be prescribed. The Executive Government
is responsible to the Parliament already. No reason exists to suggest
that Parliament is capable of negotiating treaties or that the actions
of the Executive have been unsatisfactory to the people.[47]
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:
My own view is that there should not be any impediment upon the ability
of the executive government to enter into international accords. ...After
all, if any such accord is to be implemented as a matter of Australian
law, the proposed law will have to pass both Houses in any event.[49]
16.42 The Australian Council of Trade Unions (ACTU) was supportive of
the current roles of Parliament and the Executive. The ACTU submitted:
It is the ACTU's view that the proper role of the Federal Parliament
in relation to these issues only arises once a treaty has been ratified
by the Executive and the question becomes one of implementation that
affects the rights and duties of Australian citizens. In this respect
it is argued that this power should not be curtailed by either voluntary
restraint by the Parliament or by constitutional amendment.[50]
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:
[I]t does seem that some avenues of reform in this area have the potential
to lead to a diplomatic straitjacket by preventing Australia from participating
effectively in the formation of international law through the negotiation
of new treaties. Such an outcome must be avoided. The international
reliance on treaty-making will not be reversed simply by an Australian
inability to ratify these agreements. Instead, any significant limitation
on the ratification of treaties will merely prevent the Commonwealth
from protecting Australian interests by influencing the drafting of
new treaties.[51]
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:
However, human rights are not negotiable. To subject such agreements
to ratification by the Parliament could undermine the diplomatic efforts
of the Executive. Although it has been generally recognised that Australia
has been well served by some excellent Ministers in portfolios which
require large amounts of diplomacy, the nature of Commonwealth and State
Parliaments is one... which is fraught by internal politicisation of
sometimes sensitive issues and particularly where the rights of minorities
are concerned.[53]
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:
At the moment it remains my view that it simply has not demonstrated
the ability to exercise that right with what I think is necessary reserve
to ensure that Australia continues to play its role in the international
community as a model citizen. At the moment, it shows far too much tendency
to be diverted by parochial bigotry, under pressure from state governments.
Until it can actually find a fair balance between the pressures which
it is rightly and properly subject to, I do not think any government
of Australia would be acting responsibly were it to encourage the Parliament
to arrogate to itself the power to make treaties.[55]
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:
If we are ratifying all these treaties and Parliament is not prepared
to agree to whatever the terms of the treaty may be, that suggests that
the treaty is not ultimately going to be implemented by the Parliament
and that Australia will be left in the situation of having ratified
the treaty but being unable to comply with it. Essentially, the argument
is that it is not obstructionism when the body which is being obstructionist
is the one that ultimately has the power to determine whether or not
we will comply with the treaty obligation.[62]
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:
If you had a system of requiring all treaties to be positively approved
and not simply raised for consideration as in the disallowance model,
which is the basis of Senator Bourne's bill, you would probably very
quickly get into the practice of the United States Senate of having
a large number of treaties pass on the nod, as they say, and real consideration
would only be given to the ones in some way selected for real consideration.
There would be a large number approved without debate and without any
real consideration and you would still be focussing on the ones selected
in some way for consideration. That would probably mean having a committee
to do the selecting for you. So the scrutiny by a committee would be
vital there as well. That would also be an imposition on chamber time.
But how much of an imposition? Probably not much more than the disallowance
model, because you would be really considering only those treaties in
some way selected for consideration.[66]
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.
In Australian practice, there is a category of agreements described
as being of less than treaty status, the idea being that such arrangements
are devoid of legal consequences. It is the belief of the Australian
government that the use of the expression "memorandum of understanding",
particularly if "shall" and words suggesting the idea of obligation
are avoided, will automatically have this result.[68]
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:
Although the distinction between agreements of less than treaty status
and a binding treaty may be flawed in that (i) a particular agreement
may be regarded as binding by the other party or parties; and (ii) on
some occasions it may even suit the Australian government to argue for
the legal effectiveness of such an agreement, it would be too much of
a potential drain on parliamentary time to oversee such instruments.[70]
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:
The multiplicity of agreements entered into would make it impossible
to place them all under parliamentary supervision or control.[72]
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:
An international agreement entered into by the executive branch in
violation of a regulatory regime imposed by federal legislation may
still be regarded, under international law, as binding on Australia
under principles of international law.[82]
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:
It is nonsensical to suggest that the Parliament (or the states for
that matter) can have both consultation or veto rights at ratification
but still reserve to itself the right to determine whether to pass the
treaty into domestic law. The models are in a very real and practical
sense, mutually exclusive.[87]
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:
A requirement for parliamentary approval of treaties, whether
all or only some, creates a number of obvious problems which have been
dealt with in other submissions, not least of course being either the
unacceptability of subjecting treaties to what in most respects would
be the legislative process, or the pointlessness of requiring the endorsement
of the House of Representatives alone. In addition, there seems to be
little point in requiring Parliamentary approval, rather than legislation
incorporating a treaty into Australian law. For some inexplicable reason,
ratification of the Genocide Convention 1948 was given Parliamentary
approval in the Genocide Convention Act of 1949 (Cth), but no attempt
was made to translate the provisions of the Convention into domestic
law. As a result the legislation achieves nothing of practical value.[88]
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:
I would have thought a law that said that a house of parliament could
require a reservation to be made would not then go on and say that Australia
must make that reservation. What it would do would be to say that the
executive should not proceed to adhere to the treaty without that reservation.
In other words, parliament was making it a condition. If the executive
wished to adhere to that treaty it should do so on certain terms. Parliament
would not be insisting that we adhere with the reservation. I would
think, in constitutional terms, the appropriate relationship would be
that the decision whether to lodge the instrument of ratification should
remain with the executive. But there could be a statutory precondition
that, if it wished to do that, it would have to do so in certain ways
or seek certain approvals.[94]
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:
CHAIR - That involvement of the Senate in America has not caused
them any trouble, has it? One of the criticisms about parliamentary
scrutiny is that it might hold up the process, but you have told us
that the process is a long one anyway, so -
Mr Lamb - That is right; it did not ratify the League covenant.
It took, I think, 30 years or more to ratify the genocide convention.
It has yet to ratify, I think, the convention
Mr Lamb - It has. In relation to human rights, after almost
30 years that was finally done - with a large number of reservations,
some of which the American administration felt were not even necessary
for the purposes of United States implementation of the conventions.
On top of that, by redescribing a whole lot of bilaterals as executive
agreements the United States has managed to avoid the process. I am
not sure that it is a system we can learn a tremendous amount from,
if I can put it that way.
Senator ABETZ - But it has not harmed the United States in any
way, has it?
Mr Burmester - I think some would say it has inhibited its treaty
making capacity, its ability to participate as effectively as perhaps
other nations in certain treaty making. The League of Nations has been
mentioned. Look at the difficulties, for instance, it has had to go
through to get the Uruguay Round through the Senate. It certainly does
impose a significant barrier to United States' participation in international
negotiations. Some would say it is desirable and it serves a useful
purpose, but I think it imposes a significant barrier.[98]
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:
There is evidence that the United States experience has at times been
unsatisfactory and inefficient. Wilcox cites some interesting statistics,
admittedly dated, where 'inconveniences' have arisen. From 1789 to 1908
the ratification of 146 treaties was advised by the Senate subject to
reservations or amendments sometimes radically changing the original
agreement. Forty eight of these never came into effect as a result of
the changes. The remaining ninety eight eventually came into force.
In some cases this was embarrassing as for example in the case of the
Treaty of Versailles where after President Wilson submitted it to the
Senate 45 amendments were recommended and the Treaty was never ratified.[105]
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:
When there is a reservation by Australia in respect of a treaty proposed
to enter into force in respect of Australia, this Act applies to the
reservation as if the reservation were a treaty.[108]
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:
About 50 per cent of our bilateral treaties enter into force definitively
on signature. The rest of them have a two-step process. Confidentiality
relates only to the negotiation of the agreement. There is a convention
amongst countries that until the two governments have actually signed
it and it becomes public it should be treated as confidential. It is
a convention and, to some extent, it suggests that there is some kind
of secrecy or high level of concern not to expose governments to scrutiny.
I do not think that is, in fact, correct. Most of the agreements we
are concerned about are generic agreements. They might relate to trade
agreements or they might be extradition and investment protection agreements.
They are not things that are highly sensitive in the sense of being
politicised, but there is a convention observed by all countries that
until signature the document remains confidential between the two governments.[110]
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:
It appears that those countries which have a parliamentary approval
process either treat bilaterals as falling outside the rule or adopt
a practice of always having a two step process and sending a signed
but not yet in force treaty to the legislature.[111]
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.
Endnotes
- Constitutional Commission, Advisory Committee on the Distribution
of Powers Report, AGPS, Canberra, 1987, Appendix J, pp 233-234.
- Constitutional Commission, Final Report of the Constitutional Commission,
Vol. 2, AGPS, Canberra, 1988: p 745.
- Constitutional Commission, Advisory Committee on the Distribution
of Powers Report, AGPS, Canberra, 1987: p 88.
- Constitutional Commission, Final Report of the Constitutional Commission,
Vol 2, AGPS, Canberra, 1988: pp 745-746; 749.
- 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.
- This recommendation is noted and criticised in: Mr H. Burmester, Submission
No. 75, Vol 4, p 711.
- Mr H. Burmester, Submission No. 75, Vol 4, p 712.
- Senator V. Bourne, Submission No. 85, Vol 5, p 1043.
- Clause 3.
- Clause 5(2).
- Clause 6.
- Clause 9.
- Clause 5(3).
- Mr H. Burmester, Submission No. 75, Vol 4, pp 27-28.
- Professor G. Winterton, Submission No. 89, Vol 5, p 1078.
- Hansard, SLCRC, 16 May 1995, pp 383-384, per Sir Maurice Byers
QC.
- Hansard, SLCRC, 16 May 1995, p 384, per Sir Maurice Byers QC.
- Hansard, SLCRC, 16 May 1995, p 406, per Professor G. Winterton.
- Professor E. Campbell, Submission No. 8, Vol 1, p 93.
- Professor E. Campbell, Submission No. 8, Vol 1, p 93.
- Hansard, SCLRC, 25 July 1995, p 814.
- Hansard, SLCRC, 25 July 1995, pp 815-816, per Professor H.
Charlesworth.
- Hansard, SLCRC, 25 July 1995, p 816, per Mr A. Rose.
- Hansard, SLCRC, 2 May 1995, p 140, per Mr W. Morgan.
- Hansard, SLCRC, 2 May 1995, p 208, per Mr J. Fajgenbaum.
- Hansard, SLCRC, 22 May 1995, p 460, per Mr M. Stokes.
- Professor L. Zines, Submission No. 102, Vol 6, p 1308.
- Hansard, SLCRC, 13 June 1995, p 526, per Mr B. Fitzgerald.
- Hansard, SLCRC, 13 June 1995, pp 591-592, per Mr A. Morris,
QC.
- Hansard, SLCRC, 15 May 1995, p 310, per Dr Schoombee.
- Hansard, SLCRC, 15 May 1995, p 355, per Professor Webb.
- Hansard, SLCRC, 14 June 1995, pp 623-624, per Mr J. Daley.
- Mr B. Virtue, Submission No. 63, Vol 3, p 532.
- Mr H. Burmester, Submission No. 145, Vol 9, p 2154.
- Mr H. Burmester, Submission No. 145, Vol 9, p 2154.
- 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.
- 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.
- 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.
- See for example: Hansard, SLCRC, 13 June 1995, p 527, per Mr
B. Fitzgerald.
- Mr Downer was Opposition Leader at the time, and is now Shadow Minister
for Foreign Affairs and Trade.
- Mr H. Burmester, Submission No 75, Vol 4, p 713.
- Joint State and Territory Submission, Submission No. 107, Vol 6, p
1331.
- Joint State and Territory Submission, Submission No. 107, Vol 6, p
1331.
- Mr Buckingham, Submission No. 45, Vol 2, p 407.
- Mr B. Davis, Submission No. 92, Vol 6, pp 1111-12.
- 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.
- Sir Maurice Byers QC, Submission No. 25, Vol 2, p 255.
- 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.
- Mr D.F. Jackson QC, Submission No. 64, Vol 3, p 544.
- ACTU, Submission No. 76, Vol 4, p 730.
- Dr R.A. Herr, Submission No. 82, Vol 5, pp 1024-1025.
- Ms S. Tongue Submission No. 77, Vol 5, p 851.
- Mr K. Laughton, Submission No. 55, Vol 3, p 457.
- Hansard, SLCRC, 14 June 1995, p 620.
- Hansard, SLCRC, 22 May 1995, pp 493-4.
- 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.
- Hansard, SLCRC, 14 June 1995, p 622, per Mr J. Daley.
- G. Winterton, Parliament, the Executive and the Governor-General,
Melbourne University Press, 1983: p 9.
- 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.
- Hansard, SLCRC, 2 May 1995, p 174, per Ms J. Paterson.
- Hansard, SLCRC, 2 May 1995, p 221.
- Hansard, SLCRC, 2 May 1995, p 190, per Mr S. Donaghue.
- Hansard, SLCRC, 14 June 1995, p 727, per Mr F. Gulson.
- Hansard, SLCRC, 2 May 1995, p 133, per Ms J. Tyers.
- Mr D. Williams QC, Submission No. 154, Vol 10, p 2241.
- Hansard, SLCRC, 1 May 1995, p 103, per Mr H. Evans.
- See Mr K. Baxter, Submission No. 111, Vol 7, p 1447.
- Professor D.W. Greig, Submission No. 112, Vol 7, p 1508.
- Professor D.W. Greig, Submission No. 112, Vol 7, p 1508.
- Professor D. W. Greig, Submission No. 112, Vol 7, p 1509.
- Clause 3.
- Professor D.W. Greig, Submission No. 112, Vol 7, p 1507.
- Professor E. Campbell, Submission No. 8, Vol 1, p 85.
- Professor E. Campbell, Submission No. 8, Vol 1, p 88.
- S. Riesenfeld and F. Abbott, Parliamentary Participation in the
Making and Operation of Treaties - A Comparative Study, Martinus
Nijhoff, 1994: p 582.
- S. Riesenfeld and F. Abbott, Parliamentary Participation in the
Making and Operation of Treaties - A Comparative Study, Martinus
Nijhoff, 1994: p 583.
- Hansard, SLCRC, 2 May 1995, p 210.
- Hansard, SLCRC, 2 May 1995, p 220, per Mr M. Gorton.
- 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.
- Hansard, SLCRC, 14 June 1995, p 734, per Senator C. Ellison.
- Professor E. Campbell, Submission No. 8, Vol 1, p 86.
- Professor E. Campbell, Submission No. 8, Vol 1, p 86.
- Professor E. Campbell, Submission No. 8, Vol 1, p 87.
- Professor E. Campbell, Submission No. 8, Vol 1, p 88.
- Professor E. Campbell, Submission No. 8, Vol 1, p 87.
- Hansard, SLCRC, 25 July 1995, p 823, per Professor H. Charlesworth;
and p 825 per Mr A. Rose.
- ACTU, Submission No. 76, Vol 4, p 751.
- Professor D. W. Greig, Submission No. 112, Vol 7, pp 1509-10.
- 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.
- 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.
- Racial Discrimination Act 1975: s. 7.
- The Covenant was later ratified by the Fraser Government in 1980.
- Mr K. Baxter, Submission No. 111, Vol 7, p 1452.
- Hansard, SLCRC, 1 May 1995, p 30, per Mr H. Burmester.
- Professor E. Campbell, Submission No. 8, Vol 1, pp 93-94.
- See for example: Hansard, SLCRC, 13 June 1995, pp 522 and 530,
per Professor K. Wiltshire.
- Hansard, SLCRC, 2 May 1995, pp 176-7, per Mr Walsham; and p
213, per Ms P. Matthew.
- 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.
- Hansard, SLCRC, 15 May 1995, p 267, per Mr Marmion.
- Hansard, SLCRC, 13 June 1995, p 604, per Mr A. Morris QC.
- Hansard, SLCRC, 14 June 1995, pp 701-702, per Mr C. Lamb and
Ms J. Linehan.
- 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.
- Hansard, SLCRC, 1 May 1995, p 57, per Ms J. Linehan.
- 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.
- Mr B. S. Virtue, Submission No. 63, Vol 3, p 531.
- D.P. O'Connell, International Law, Vol 1, Stevens and Sons,
London, 1970, p 237.
- Mr K. Baxter, Submission No. 111, Vol 7, p 1451.
- Senator V. Bourne, Submission No. 85, Vol 5, p 1045.
- Some of these issues were canvassed by Mr H. Burmester, SLCRC, 1 May
1995, pp 29-30.
- Hansard, SLCRC, 14 June 1995, p 705, per Ms J. Linehan.
- Ms J. Linehan, Submission No. 143, Vol 9, pp 2137-2138.