Chapter 17
Recommendations
17.1 The Committee considers that the Commonwealth's power to enter into
and implement treaties must be exercised in the most effective and appropriate
manner. This is imperative for both domestic and international reasons.
The Government must ensure that entry into international obligations is
in the national interest of Australia. As a good international citizen,
Australia must fulfil its obligations under international law.
17.2 The Committee considers that the implementation of its recommendations
will ensure improvements in the way that the Government's power to enter
into and implement treaties is exercised.
17.3 In summary, the Committee's recommendations have five main objectives
as follows:
- to increase the information available to the public about treaty making;
- to improve consultation with the States in relation to treaty making;
- to improve consultation with the public, industry and interested groups
in relation to treaty making;
- to strengthen the role of Parliament in relation to treaty making;
and
- to put forward a mechanism which can accommodate the federal system.
17.4 Accordingly, the Committee has made the following recommendations:
Recommendation 1:
That the Government should conduct an audit of treaties to provide the
following information:
- 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.
Recommendation No. 2:
That legislation provide that the Government report to the Parliament
annually on actions taken in the course of the previous year to implement
treaties to which Australia is a party.
Recommendation 3:
That the Department of Foreign Affairs and Trade prepare a special publication
which provides information on the treaties under consideration by the
Government and make it available, free of charge, to all public libraries
in Australia.
Recommendation 4:
That the Government fund a project for the establishment of a treaties
database, which would include:
- the 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.
Recommendation 5:
That funding be provided to the Department of Foreign Affairs and Trade
and the Attorney-General's Department for a joint project to publish information
on the meaning and interpretation of treaties, including collections of
interpretative decisions and the travaux prparatoires (records
of the negotiation proceedings) of treaties.
Recommendation 6:
That the Government increase its efforts to identify and consult the
groups which may be affected by a treaty which Australia proposes entering
into, and groups with expertise on the subject matter of the treaty or
its likely application in Australia.
Recommendation 7:
That the existing Commonwealth-State Standing Committee on Treaties be
abolished and replaced with a Treaties Council that is preferably established
by legislation. The Treaties Council should comprise members appointed
by both the Government and Opposition of each of the Parliaments of the
States and Territories and the Government, Opposition and minor parties
of the Commonwealth Parliament. The role of the Treaties Council should
be to consider the potential impact of treaties on State, Territory and
Commonwealth laws, and the method of implementing treaties. The Council
should provide public reports which could be tabled in the Parliaments
of the States, Territories and the Commonwealth.
Recommendation 8:
That legislation be enacted which requires the tabling of treaties in
both Houses of the Commonwealth Parliament at least 15 sitting days prior
to Australia entering into them (whether by signature or ratification).
This should be subject to an exception for urgent and sensitive treaties,
in circumstances where it is not possible or not in the national interest
to table them before Australia becomes a party to them. In such cases,
the treaty must be tabled as soon as practicable after Australia has become
a party to it, accompanied by a statement explaining the reason why it
could not be tabled before Australia became a party to it.
Recommendation 9:
That legislation be enacted to establish a Joint Parliamentary Committee
on Treaties. The functions and powers of the Committee should include:
- 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.
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,
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.
Recommendation 11:
That the issue of what legislation, if any, should be introduced to require
the parliamentary approval of treaties be referred to the proposed Treaties
Committee for further investigation and consideration.
Senator Chris Ellison
Chair