A treaty is an international agreement concluded in written form between two or more States (or international organisations) and is governed by international law. A treaty gives rise to international legal rights and obligations.
The power to enter into treaties is an Executive power within section 61 of the Australian Constitution. Given that any treaty necessarily involves an element of Australia's foreign relations, the Minister for Foreign Affairs and the Department of Foreign Affairs and Trade (DFAT) have responsibility for treaties. DFAT’s International Law: Advising and Treaties Section (Treaties Section) is responsible for, and should be consulted on, all aspects of the treaty-making process.
The Treaties Section can be contacted at: firstname.lastname@example.org
Australia’s treaty-making process
General guidance on the steps in Australia’s treaty-making process is available in this Guidance note on Australia’s treaty-making process.
These steps include:
- seeking a mandate to negotiate from the Minister for Foreign Affairs
- negotiating and finalising the text of the treaty;
- seeking the approval of relevant Ministers and the Executive Council for Australia to enter into the treaty;
- arranging for signature of the treaty;
- tabling the treaty in Parliament for scrutiny by the Joint Standing Committee on Treaties (JSCOT); and
- any other steps, such as passage of any implementing legislation, required to enable entry into force of the treaty.
- Any Commonwealth Government agencies considering a treaty action should consult DFAT’s Treaty Section at an early stage. This includes negotiating or entering into a new treaty, as well as amending, terminating or withdrawing from an existing treaty.
Instruments of less-than-treaty status
Treaties must be distinguished from instruments of less-than-treaty status, often referred to as memoranda of understanding. These instruments embody political commitments by the participants, but are not legally binding. As they are not binding under international law, instruments of less-than-treaty status are not subject to Australia’s treaty-making process.
To avoid any misunderstandings over the status of an instrument, it is important that the intention of the participants is clear and that this is reflected in the language used to draft the instrument.
General guidance on Australia’s practice for concluding less-than-treaty status instruments can be found in this Guidance note on Australia’s practice with respect to less-than-treaty status instruments.
List of multilateral treaties under negotiation, consideration or review by the Australian Government
The Government periodically tables in Parliament a list of multilateral treaties under negotiation, consideration, or review by the Australian Government.
Australia as a depositary
Australia is the depositary for a number of multilateral treaties. The status lists of the parties to these treaties is available below:
- Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga concerning the Operations and Status of the Police and Armed Forces and Other Personnel deployed to Solomon Islands to assist in the Restoration of Law and Order and Security (Townsville, 24 July 2003) [Note: This treaty ceased to be in force on 30 June 2017.]
- Agreement on the Conservation of Albatrosses and Petrels (Canberra, 19 June 2001)
- Establishment Agreement for the Center for International Forestry Research (Canberra, 5 March 1993)
- Convention for the Conservation of Southern Bluefin Tuna (Canberra, 10 May 1993)
- Agreement Concerning an International Trust Fund for Tuvalu (Suva, 16 June 1987)
- Convention on the Conservation of Antarctic Marine Living Resource (CCAMLR) (Canberra, 20 May 1980)
- Security Treaty between Australia, New Zealand and the United States of America (San Francisco, 1 September 1951)
- Agreement Establishing the South Pacific Commission (Canberra, 6 February 1947)
- Australia's free trade agreements (FTAs)
- Treaty actions currently before the Joint Standing Committee on Treaties (JSCOT), along with the reports of completed inquiries.
The Department of Foreign Affairs and Trade, its officers, employees and agents, accept no liability for any loss, damage or expense arising out of, or in connection with, any reliance on any omissions or inaccuracies in the material contained in the Australian Treaties Database. While every care has been taken in developing the Australian Treaties Database, the Department of Foreign Affairs and Trade cannot vouch for the accuracy or completeness of the information contained within it. Users should rely on their own enquiries, skill and care in using the information and check with primary sources. Enquiries can be directed to email@example.com