Treaties and Treaty Making
Negotiating and Implementing Treaties
NGO and State and Territory Participation
Since expert, technical views are often needed by officials at international negotiations, representatives from the States, Territories, industry groups and other NGOs often serve as advisers to Australian delegations. These advisers are in a position to report back to their organisations on the room for manoeuvre for Australian initiatives and positions. This process is particularly heavily employed when key new multilateral regimes are being negotiated in areas like the environment, trade, human rights and the law of armed conflict.
How does Australia become a party to a Treaty?
How a country joins a treaty is determined by the treaty in question. All bilateral treaties have a two stage entry into force mechanism. This allows a bilateral treaty to be tabled in Parliament after its signature but before binding treaty action is taken that would bring the treaty into force.
Modern multilateral treaties typically do not provide that signature alone is sufficient to bind a country to the terms of a treaty. When the text of a multilateral treaty is finalised, the common practice is to have the treaty ‘open for signature' for a specified period. Countries may sign the treaty within that period but are not legally bound by its provisions until ratification occurs. Where a country has not signed a multilateral treaty, it will nevertheless generally be able to become a party to it. This is typically called an act of accession.
What is the scope of the Commonwealth's power to legislate?
If Commonwealth legislation is required to give effect to a treaty, the Government relies on the external affairs power in Section 51 (xxix) of the Constitution. In certain specific cases, however, for example, in giving effect to air navigation and shipping treaties, the Government relies on the trade and commerce power as well as the external affairs power. In many other cases, there is no need to rely on the external affairs power because the subject of that treaty already lies within other Commonwealth powers or because State and Territory Governments will enact appropriate legislation.
The Constitution also limits the Commonwealth's ability to exercise the external affairs power. For example, the Commonwealth Government may not remove constitutional rights, such as freedom of interstate trade, merely by relying on treaty provisions. Also, the Commonwealth's exercise of legislative powers, including the external affairs power, is subject to a principle that the continued existence of one or more States, or their capacity to function as States, must not be impaired.
Neither does the conclusion of a treaty automatically bring the entire subject matter within the legislative capacity of the Federal Government. For example, Australia's accession to the Convention on the Conservation of Nature in the South Pacific does not mean that the Commonwealth has thereby gained legislative power over the subject of ‘nature conservation.' The external affairs power only enables legislation to be passed to give effect to the terms of the treaty, and for legislation to be valid, it must be reasonably considered to be appropriate and adapted to the implementation of a treaty.
Perhaps the most important constraint upon the Commonwealth is the fact that treaty making processes in Australia operate within a democratic context. This includes, ultimately, the knowledge that action by the Commonwealth Government which was widely perceived as contrary to Australia's interests could result in its defeat at the next election.
What happens once the Government has decided to enter into a Treaty?
Once an in-principle decision has been taken to agree to a treaty, the Commonwealth Government considers whether:
(a) specific implementing action is required;
(b) if so, whether existing legislation (Federal or State) is adequate; and
(c) if not, whether the treaty should be implemented by legislation at the Commonwealth or State/Territory level.
The prior approval of the Federal Executive Council is also required for Australia to enter into a treaty. (The Executive Council comprises the Governor-General and all serving Ministers and Parliamentary Secretaries. A meeting of the Executive Council requires the presence of the Governor-General plus two Ministers and/or Parliamentary Secretaries. The Executive Council requires certain documentation be presented to it showing that the decision to accept the rights and responsibilities associated with a treaty has been approved by Cabinet or by the relevant Ministers.)
Do all treaties require legislation to operate in Australia?
The general position under Australian law is that treaties which Australia has joined, apart from those terminating a state of war, are not directly and automatically incorporated into Australian law. Signature and ratification do not, of themselves, make treaties operate domestically. In the absence of legislation, treaties cannot impose obligations on individuals nor create rights in domestic law. Nevertheless, international law, including treaty law, is a legitimate and important influence on the development of the common law and may be used in the interpretation of statutes.
New legislation is not always necessary
Many treaties do not require new or prior legislation, as they can be implemented through executive action (for example, trade cooperation, defence logistics and procurement treaties). Other treaties, including a number of international human rights and industrial relations treaties, have been ratified on the basis of an assessment by the Commonwealth that existing Commonwealth or State/Territory legislation is sufficient to implement the provisions of the convention (in other words, we are already meeting domestically the terms of the convention and no further action is necessary), or that the particular treaty obligations can be implemented progressively and without radical change to existing laws.
But relying on existing legislation can sometimes be a problem
Difficulties can arise if ratification relies on existing State or Territory legislation and that legislation is subsequently altered in a way that is incompatible with the relevant treaty. In such cases, consideration may be given to the Commonwealth passing legislation to bring Australia's laws back into line with its international obligations. Sometimes the interpretation of obligations under a treaty may evolve to the extent that the existing State/Territory law is no longer adequate to give effect to those obligations. Again, if a State or Territory is unwilling to effect necessary amendments to its own law, the Commonwealth may consider passing its own legislation.
If obligations are not fully covered by existing legislation, new laws may be needed
If new legislation is required to implement the treaty, the normal practice is to require that it be passed before seeking Executive Council approval to enter the treaty. This is because subsequent Parliamentary passage of the necessary legislation cannot be presumed, entailing a risk that Australia could find itself legally bound by an international obligation which it could not fulfil.
Examples of treaties where specific legislation will be necessary are those requiring specific outcomes which can only be achieved by imposing legislative requirements on individuals. For example, legislation was necessary to give effect to an obligation under the Montreal Protocol to ban the manufacture of, and trade in, certain products containing harmful ozone depleting substances.
Is treaty making being used by the Commonwealth to grab power from the States?
Globalisation has changed the way all levels of Government interact with the international system. The States and Territories are increasingly aware of the benefit of having a global ‘voice', and playing a greater role in the world's deliberations on international rule making. State tourism offices, premiers' trips overseas to raise finance or attract investment, relevant ministers working with their counterparts to develop specific trade opportunities are just some examples of these trends. The increased presence of State and Territory representatives on delegations to international meetings (including for the negotiation and implementation of international treaties) demonstrates the importance of treaties to the States and Territories.
The Principles and Procedures for Commonwealth-State-Territory Consultation on Treaties sets out the arrangements governing the provision of information, consultative mechanisms and the implementation of treaties and other international instruments that are of particular sensitivity and importance to the State and Territory Governments. Under these procedures, the Commonwealth may consider relying on State or Territory legislation where the treaty affects an area of particular concern to the States or Territories and adoption of that course is consistent with the national interest and the effective and timely discharge of treaty obligations.
For further information see the Australia and International Treaty Making Information Kit
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