Treaties in the Global Environment
The Tabling Process
Ms Ruth Blunden, Treaties Secretariat, International Legal Division, DFAT - November 17, 2004
Good Afternoon. My name is Ruth Blunden and I am your Treaty Tabling Officer.
I have been arranging the clearance and tabling of NIAs for four years. In that time, we have tabled numerous treaties, large and small, bilateral and multilateral, on a wide range of subjects.
The one thing they all have in common is that they benefit Australia or Australians or Australian interests. The purpose of an NIA is to explain the benefits – to the Parliamentary Joint Standing Committee on Treaties, to the other Parliamentarians and Senators, and to the general public.
Over the years, we have made many improvements and changes to the format of the National Interest Analysis (which we will an NIA for short). While each improvement was useful, the whole was beginning to appear a bit of a jumble – rather like some people’s home improvements where they erect a neat picket fence, and then an old-brick garage and finally a modernistic garden shed, and then find the final result awkward. So I have re-written the NIA pro forma to create a more streamlined product, one which is easier for NIA writers to use and which produces an end result that is easier for readers.
WHAT WE TABLE:
Firstly, what do we table? I will explain this first, and then how we do it.
In each case, what is to be tabled is shown on the Cover Sheet. In addition to the Cover Sheet, this is usually the NIA, the text of the treaty action, a Regulation Impact Statement if required, and some background information.
The Cover Sheet is uncomplicated, so we will move on to the NIA.
An NIA is a simple, straight-forward analysis, in about six pages, of why it is in the national interest to proceed with the treaty. It is required before Australia takes any binding treaty action – for every new treaty, for every amendment and before Australia withdraws from a treaty.
As you know, the NIA is tabled in Parliament and considered by the Parliamentary Joint Standing Committee on Treaties, known as JSCOT. It is also published on the Internet where it is ready by the general public. So it needs to be readily – and correctly - understood not only by JSCOT and other Members of Parliament and Senate, but by others who have little knowledge of the subject matter or of international law, while satisfying those experts who require absolute precision.
The line Department or agency is responsible for preparing the NIA. The new NIA falls easily into three parts:
The summary page, the main part with a maximum of six pages, and the section on consultations.
The summary page should have all essential information – for the benefit of those who don’t read any further.
It starts with the category of treaty. Category 1 covers treaties which are tabled for 20 sitting days in both Houses of Parliament, while Category 2 is for “template” treaties which are tabled for 15 sitting days.
The Nature and Timing of Proposed Treaty Action varies a lot, depending on the type of treaty and type of action. Make sure you cover all the points in our explanatory sample.
For the Overview and National Interest Summary, it is useful if you can manage to get in some of the flavour of the proposed treaty action.
The main part of the NIA needs to be pragmatic, practical and detailed. It commences with the Reasons for Australia to take the proposed treaty action, and continues with Obligations, Implementation, Costs, Regulation Impact Statement, Future treaty action, and withdrawal or denunciation. The information in each part must, of course, be true; it must be free of jargon; and it must be easily understood.
The third part of the NIA covers the consultation process. This is an essential part of the NIA which is added at the end to make it, like the Summary Page, easily and quickly accessible. Under Consultation, include all information on who has been consulted; at what stage they were consulted; what form the consultations took; what contributions were made, including support, concerns, suggestions and criticisms; and how the feedback from consultations has been incorporated into the negotiations or text, and if feedback has not been integrated, why.
Looking at the Cover Sheet, the next item is the text of the treaty action. For new treaties, this is quite straightforward, and usually fairly simple for amendments to bilateral treaties. It some-times gets complicated for amendments to multilateral treaties. Could I take this opportunity to remind everyone that, quite apart from tabling requirements, the Treaties Secretariat needs both electronic and original copies of all treaties.
Another reminder: At the very early stages of a treaty, please consult the Office of Regulation Review within the Productivity Commission concerning a Regulation Impact Statement. If your treaty needs one, it should be tabled with the treaty.
For bilateral treaties, we need a political brief and the Economic Fact Sheet; a list of other treaties between Australia and that country; and, usually, a list of treaties of the same type with other countries. Ask the relevant geographic branch of DFAT for the political brief, and then download and add the Country Fact Sheet. Both lists of treaties are also downloaded from the website.
For multilateral treaties, the background information is the list of other Parties. In most cases, the depositary for the multilateral treaty (and this is usually an international organization) has a web-site showing this information, so, again, it is merely a matter of downloading it. The United Nations, of course, has such a web-site but under a “user-pays” system it has a special Username and Password for member States to allow their government officials to access the databases free of charge. If you don’t have the Username and Password, we can email them to you.
A brief word on formatting: when I first came to the Legal Branch, many years ago, I was told NEVER to use right-justified margins. But this no longer seems to apply, so if you (or your Word program) prefer right-justified margins to left margins, feel free to use them.
But please do number the paragraphs in your NIA and the Political Brief. Just put the paragraph number on the left margin, and then indent, like a normal text document. I am sure Members of Parliament and members of the public find this easier to read. The paragraph numbers are there for easy reference.
I can’t see any advantage in numbering the pages of an NIA, but if you really want to, do it.
HOW WE DO IT:
To move on to how to do it:
Once you have written your NIA, please send it to the Office of International Law in the Attorney-General’s Department, and to me. I pass it to the lawyers in the different sections of the Legal Branch. In accordance with Australian Government policy, the Attorney-General’s Department charges other Departments for its advice.
The lawyers – here and in Attorney-General’s Department - use their expertise in Australian law, international law and treaty practice to clear the NIA. I’m the non-expert so I see if I – and the millions of other non-experts – can understand it. I also ensure that the set out and formatting are standarized.
So three different areas are involved in clearing NIAs, and we do work together as much as possible to provide consistent advice to those writing the NIAs.
We usually allow about four weeks for the clearance process. This means, in practice, that we need the FINAL DRAFT of your NIA, agreed within your Department, six weeks before the tabling date. I try to table once each month while Parliament is sitting. Let me know if you want our electronic Treaty Tabling Calendar for 2005.
If you need to have your NIA approved by your Minister after clearance but before tabling – and this depends on the Minister and the treaty action – we can arrange to clear it in three weeks. But please don’t ask to have NIAs cleared in a couple of days unless it is absolutely necessary. While I deal only with treaty tabling matters, for others in Legal Branch and in the Attorney-General’s Department it is only a part of their workload. And I only work part-time.
Once your NIA is cleared, please email it and all the other tabling documents to me so I can seek approval from the Minister for Foreign Affairs to table. Please also advise me of the name, title, email address and other contact details for the Action Officer that JSCOT will write to when a date is set for the hearing.
You can then arrange to print the 245 copies and deliver them to me. That is a lot of copies but less than the standard arrangements for tabling documents, as we have made special arrangements for tabling treaties.
I arrange to have the bulk of the papers delivered to the Parliament House loading dock, and other copies to the PM&C Tabling Officer and to the JSCOT on the day before tabling.
Once they are tabled, I email them to AUSTLII for the Australian Treaties Library on the Internet.
During the period the treaties and NIAs are tabled, JSCOT will consider them, receive submissions and hold public hearings which you will attend, with all the answers at your finger-tips. JSCOT then report their Recommendations to the Parliament.
If they recommend find, binding treaty action be taken, the NIA, JSCOT and tabling process is complete.
That is the tabling process. For most of us, the most important part is the preparation of the National Interest Analysis. It is a short, simple document which is an essential element in the Australian treaty process.