Treaties and Treaty Making
Treaties, the Constitution and the National Interest
The power to enter into treaties is an executive power within Section 61 of the Australian Constitution and accordingly, is the formal responsibility of the Executive rather than the Parliament. Decisions about the negotiation of multilateral conventions, including determination of objectives, negotiating positions, the parameters within which the Australian delegation can operate, and the final decision as to whether to sign and ratify are taken at Ministerial level, and in many cases, by Cabinet.
As well as providing certainty, Australia's constitutional system also ensures that checks and balances operate. This occurs through Parliament's role in examining all proposed treaty actions and in passing legislation to give effect to treaties and the judiciary's oversight of the system. This efficiency and certainty of process enables the Government to negotiate with its overseas counterparts with authority and credibility, and contributes to Australia becoming a source of influence in the treaty's negotiation.
Bilateral agreements that conform to a model text previously approved by Cabinet are normally not subsequently referred to Cabinet. These types of agreements include Investment Promotion and Protection Agreements, Mutual Assistance in Criminal Matters Treaties, Extradition Treaties and Aviation Agreements. They are, however, considered by Ministers prior to approval being given by Federal Executive Council for signature of the treaty.
Isn't there something undemocratic about treaty making being in the hands of the Executive?
Although the Constitution does not confer on the Parliament any formal role in treaty making, all treaties (except those the Government decided are urgent or sensitive) are tabled in both Houses of Parliament for at least 15 sitting days prior to binding treaty action being taken. A treaty is generally tabled after it has been signed for Australia, but before any treaty action is taken which would bind Australia under international law. Such action would include entering into a new treaty, negotiating an amendment to an existing treaty or withdrawing from a treaty.
Treaties are tabled in the Parliament with a National Interest Analysis which notes the reasons why Australia should become a party to the treaty. Where relevant, this includes a discussion of the foreseeable economic, environmental, social and cultural effects of the treaty action; the obligations imposed by the treaty; its direct financial costs to Australia; how the treaty will be implemented domestically; what consultation has occurred in relation to the treaty action and whether the treaty provides for withdrawal or denunciation. Tabled NIAs are included in the Australian Treaties Library.
Treaties which affect business or restrict competition are also required to be tabled with a Regulation Impact Statement (RIS).
The Joint Standing Committee on Treaties (JSCOT) considers tabled treaties. The Committee can also consider any other question relating to a treaty or international instrument that is referred to it by either House of Parliament or a Minister.
Since negotiations for major multilateral treaties are generally a lengthy and quite public, parliamentary debate often takes place as the issues become publicly known. For example, as the Climate Change Convention was negotiated over a period of years, issues associated with the draft convention were the subject of questions without notice, questions on notice, and debate. In cases when implementing legislation is necessary prior to ratification, Parliament has a further opportunity to debate a treaty.
Why are international treaties important to Australia?
Australia participates in treaty making because it is in the national interest to do so. If the projection of military and economic power were the main means by which national objectives were pursued, Australia would be vulnerable. Our geographic isolation and small population would be seen as a weakness. Nations, particularly States with a relatively small population such as Australia, benefit from a world where interaction between countries takes place within a framework based on fair, agreed and transparent rules as agreed in treaties. Australia is not a member of any single rigid regional grouping; rather, we build global or regional alliances and through them, seek to influence the standards by which international relations are conducted.
How can Australia influence the terms of these treaties?
International conventions bring considerable benefits in a wide range of areas to individual nations, particularly small and middle-sized countries. Australia has its say in the drafting of these treaties by becoming involved in the international fora in which they are negotiated. As a middle ranking power, Australia's negotiating resources are finite. As a consequence, successive Governments have often sought to build international coalitions to advance our national interests. For example, in the Uruguay Round of GATT negotiations, the Cairns Group, a coalition of likeminded agricultural exporting nations led by Australia, achieved a favourable outcome on agriculture, which brought Australia well over $1 billion per annum in increased agriculture exports and contributed to an increase in Australia's exports by $5 billion and in Australia's gross domestic product by $4.4 billion by 2002.
Australia has also helped shape a revised Law of the Sea Convention, in the process, gaining sovereign rights over extensive areas of sea and continental shelf. In the field of disarmament, Australia put together a comprehensive draft of a Chemical Weapons Convention and through active diplomacy, was instrumental in achieving a convention now approaching universal acceptance. Australia played a similar catalytic role in relation to the Comprehensive Test Ban Treaty, which aims to ban the testing of nuclear weapons.
Treaties also provide for international cooperation on law enforcement, such as in relation to drug trafficking; establish resource management regimes to encourage sustainable development, and enhance global and regional security, all of which benefit Australia.
Does ratification of international treaties result in a loss of sovereignty?
Ratification of international treaties does not involve a handing over of sovereignty to an international body. Treaties may define the scope of a State's action, and treaties which Australia ratifies may influence the way in which Australia behaves, internationally and domestically. Implicit, however, in any Australian decision to ratify a treaty is a judgement that any limitations on the range of possible actions which may result are outweighed by the benefits which flow from the existence of a widely endorsed international agreement.
The Government also retains the right to remove itself from treaty obligations if it judges that the treaty no longer serves Australia's national and international interests.
Some treaties establish a committee, which receives reports and monitors the implementation of obligations flowing from the treaty by States Parties. One such treaty body is the United Nations Human Rights Committee, which is responsible, among other things, for monitoring States Parties' implementations of their obligations under the International Covenant on Civil and Political Rights (ICCPR). But any assessments such treaty bodies make are of an advisory nature only. They are not binding and the Human Rights Committee has no enforceable legal jurisdiction over nation states which have acceded to the ICCPR or its First Optional Protocol.
Consultation
The Government's decision on whether a treaty is in the national interest is based on information obtained during consultations with relevant stakeholders. Consultation does not take place merely so that those with an interest feel included in the process. The practice is to provide information about the treaty in question and, if possible, develop a consensus within the community before taking definitive treaty action. Inevitably, the final decision necessarily involves a balancing of competing interests.
State and Territory Governments
The State and Territory Governments are a primary focus of the consultation process. Many international treaties need State and Territory cooperation for their domestic implementation and, accordingly, discussions with State and Territory Governments occur at many levels ranging from that of experts to standing Ministerial Committees. The peak consultative body is the Treaties Council consisting of the Prime Minister, the Premiers and the Chief Ministers.
Another important mechanism for federal/state consultation is the Commonwealth-State-Territory Standing Committee on Treaties (SCOT) which consists of representatives from the Premier's or Chief Minister's Departments in every State and Territory. SCOT is chaired by a senior official of the Prim e Minister's Department and also has representatives from the Department of Foreign Affairs and Trade and the Attorney General's Department. This committee receives on a quarterly basis a Treaties Schedule listing all international treaties that Australia is currently negotiating or which are under review. State and Territory representatives have the opportunity to seek further details, offer views and comments, and flag those matters on which they wish to be consulted or to improve the consultative mechanism.
Industry and other interest groups
Consultation with industry bodies and interest groups spans a wide range of processes, from standing bodies to informal methods. DFAT holds formal consultations with Non Government Organisations (NGOs) interested in international human rights issues where international instruments are on the agenda. The National Consultative Committee on Peace and Disarmament considers arms control issues, and the Trade Policy Advisory Committee enables the business community's interests in trade policy negotiations to be reflected in Government positions. Community consultation outside these standing arrangements is, however, an ongoing process. There are numerous other occasions and forums offered by DFAT at which interest groups or individuals have opportunities to seek information or raise concerns about the treaty process.
Enhancing consultations
Because it is not always possible to know all the community groups which might wish to contribute to the process of setting Australia's objectives and positions, the Government prepares a list of all multilateral treaties currently under negotiation or review which can be found on the Australian Treaties Library Internet site. The list is updated approximately twice a year and tabled in both Houses of the Commonwealth Parliament. The list includes the name of the contact officer in the responsible Department to whom comments or questions can be directed for each treaty under negotiation. This provides greater transparency in the treaty making process and ensures that interested groups and individuals are in a position to contribute freely to Australia's negotiating position.
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