Australia’s treaty-making process
This Guidance Note provides a brief summary of the six key steps in Australia’s treaty-making process. Any Commonwealth Government agency contemplating taking a treaty proposal forward should do so in close consultation with the Department of Foreign Affairs and Trade’s International Law: Advising and Treaties Section (Treaties Section).
Step 1: Mandate to negotiate
Before formal negotiations for a treaty can commence, the lead minister must seek a mandate to negotiate the treaty from the Minister for Foreign Affairs. The Prime Minister and any other ministers with a portfolio interest in the subject of the treaty must be informed. A mandate to negotiate can also be granted by Cabinet.
Step 2: Negotiations and finalisation of text
Lead agencies consult throughout the negotiation with other interested Commonwealth Government agencies, state and territory governments, or other interested stakeholders, as appropriate. Where a treaty is concluded in a language additional to English, the other party must provide a translation in that language. The lead agency arranges verification of the foreign language text. Any changes to the foreign language text must be negotiated with the other party and agreed before signature.
Step 3: Ministerial and Executive Council approval
All treaty actions (including signing, ratifying, amending, terminating or withdrawing from a treaty) must be approved by the Federal Executive Council (ExCo). Following the conclusion of negotiations, the lead minister first seeks the agreement of the Minister for Foreign Affairs, the Attorney‑General and any other ministers with a portfolio interest in the treaty, for Australia to become a party to the treaty and for the matter to be submitted to ExCo. The Prime Minister must also be informed of the matter. This usually occurs via an exchange of correspondence (alternatively, the matter can be submitted to Cabinet). Lead agencies should allow around 8 weeks for this step following the conclusion of negotiations.
Step 4: Signature
Once ExCo approval has been received, the treaty may be signed by Australia’s representative. The time and venue of the signing ceremony is determined in consultation with the other party and relevant ministers’ offices. If the treaty is to be signed by anyone other than the Prime Minister or the Minister for Foreign Affairs, the Minister for Foreign Affairs issues an instrument of full powers authorising the representative to sign the treaty.
Step 5: Scrutiny by Parliament
Following signature, treaties are tabled in both Houses of Parliament for consideration by the Joint Standing Committee on Treaties (JSCOT). Treaties are required to be tabled for 15 or 20 joint sitting days (days on which both Houses of Parliament are in session) depending on the category of the treaty (i.e. whether it is routine in form or not). In calendar days this time period may vary considerably in length depending on the sitting program for any given year and, in particular, when parliamentary recess periods may fall. JSCOT will table its report on the treaty within the 15 or 20 joint sitting days. The report will contain JSCOT’s recommendation as to whether binding treaty action should be taken. Lead agencies should allow around four to six months for this step.
If the treaty action does not significantly impact the national interest and will have a negligible effect in Australia (such as technical amendments to an existing multilateral treaty), it may be treated as a minor treaty action and subject to a streamlined Parliamentary scrutiny process. Lead agencies should consult the Treaties Section on a case-by-case basis to determine whether a particular treaty action is likely to be considered a minor treaty action.
Step 6: Entry into force
Following receipt of JSCOT’s report, and prior to entry into force, any legislative changes required to implement the treaty domestically must have passed both Houses of Parliament. Once all the domestic procedures have been completed, arrangements can be made for entry into force. For bilateral treaties, entry into force usually occurs via an exchange of diplomatic notes, which confirms that the parties have completed all necessary domestic procedures to enable entry into force. For multilateral treaties, ExCo approval must be sought for Australia to deposit its instrument of ratification. Once this approval has been obtained, the instrument can be deposited and the treaty will enter into force for Australia in accordance with its terms.
Climate, Human Rights, Advising and Treaties Section
International Law Branch I | Legal Division
Department of Foreign Affairs and Trade