Naylor, Andrew --- "Australia's Treaty Making Process" [1995] ALRCRefJl 8; (1995) 67 Australian Law Reform Commission Reform Journal 34

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AUSTRALIA'S TREATY MAKING PROCESS

Democracy in Action?

International treaties and s 51(xxix) of the Australian Constitution - the external affairs power - have been the subject of controversy ever since the Franklin Dam case in 1983. On that occasion, the Federal Government used the power to prevent the damming of the Franklin River - an area that had been declared a World Heritage Area.

A subsequent string of High Court decisions has substantially increased the extent to which Australians are affected by the provisions of international treaties.

The domestic significance of treaties was reinforced in April this year, when the High Court handed down its decision in The Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995). The Court blocked a deportation order made against a Malaysian man convicted of drug trafficking, finding that the effect of the deportation on the man's children had not been properly considered.

In such cases, the United Nations Convention on the Rights of the Child obliges Australia to give paramount consideration to the best interests of children. The High Court majority said that there was a legitimate expectation that all Government decisions would be made in accordance with the terms of international treaties. Otherwise, it said, it may signal that Australia regards the treaties as platitudinous or ineffectual' agreements.

The Senate Standing Committee on Legal and Constitutional Affairs has been conducting an inquiry into the treaty making process. It is due to report by 24 August 1995.

The Australian Law Reform Commission was asked to make a submission to the inquiry, a task which was undertaken by Andrew Naylor. In this edited version of the submission, he examines s 51(xxix), the treaty making process and makes some suggestions for reform.

Andrew Naylor is a Senior Law Reform Officer with the Australian Law Reform Commission. He is currently on secondment to the Royal Commission into the NSW Police Service. Mr Naylor is also a member of the Human Rights Council of Australia and the Editorial Board of the Australian Journal of Human Rights.

Introduction

Section 51(xxix) of the Australian Constitution provides that the federal Parliament has the power to make laws for the peace, order and good government of the Commonwealth with respect to external affairs. In Franklin Dams (1983) and other cases, this has been interpreted to include the power to make laws which implement obligations arising under international treaties or conventions which Australia has ratified.

More recent decisions by the High Court extend the scope of s 51(xxix) even further by providing that a law will be valid if it concerns anything which is geographically external to Australia. This includes agreements, formal or informal, arising out of international relationships; as well as people, places (eg, the Timor Gap, Horta v Cth (1994)) and events (eg, war crimes committed in the during World War II, Polyukhovich v Cth (1991)). The power may even support laws implementing international customary law and non-binding international commitments.

The Court's approach to the external affairs power

The High Court's approach to s 51(xxix) is consistent with long-held views that such Constitutional powers should be interpreted broadly and independently. The Court has also said that s 51(xxix) should not be limited by the other heads of power (the Seas and Submerged Lands case (1975)), and that foreign affairs policy underpinning laws about international relations will not be examined by the Court since this is the responsibility of the Government.

Nevertheless, concerns have been expressed not only about the scope of the external affairs power but about the role of the Court and its relationship to federal Parliament and the Executive Government ( the Government'). It has been said that the High Court is allowing Australia to cede its sovereignty to international law makers such as the United Nations by validating legislation which implements obligations arising under international treaties. The Court's decisions have affected Federal-State relations, prompting suggestions that the wide approach to s 51(xxix), expanding the matters on which the Commonwealth may make laws, is disrupting the federal balance of powers. The fact that the responsibility for entering treaties lies with the Government, rather than the Parliament, also attracts criticism that the treaty-making process is undemocratic.

Scope of the external affairs power

Introduction

The external affairs power can be used to support Commonwealth legislation implementing international treaty obligations. However, not all legislation which purports to do so will be valid. Justice Mason said in the Franklin Dam case:

I reject the notion that once Australia enters into a treaty Parliament may legislate with respect to the subject matter of the treaty as if that subject matter were a new and independent head of Commonwealth legislative power.

There are a number of legal limitations on the breadth of the external affairs power.

Limitations on the treaty making power

The High Court has placed several restrictions on the scope of s 51(xxix) as a head of power for legislation implementing international treaty obligations.

• The treaty must actually exist and it must be bona fide, that is, in the words of constitutional lawyer Professor Zines, not a 'mere device for attracting jurisdiction'.
• The law must not infringe the express and implied limitations of the Constitution that apply to all heads of Commonwealth power. These limitations include: the freedom of interstate trade (s 92); the prohibitions on establishing a religion or imposing religious observance (s 116) and the prohibition on discriminating between the residents of each State (s 117).
• The law giving effect to the obligations must be capable of being reasonably considered to be appropriate and adapted' to the object of the treaty (Deane J, in Franklin Dams(1983)). The law does not have to carry out the treaty obligations strictly or fully; obligations can be selectively implemented (Franklin Dams). However, the discretion to implement provisions selectively and in a way that does not conform exactly to the wording of the treaty must be exercised carefully.

Federalism as a limitation on the external affairs power

Matters of international concern. Several members of the Court have sought to qualify the scope of the external affairs power even further by arguing that the federal framework places an overriding limitation on the powers of the Australian Parliament. Chief Justice Gibbs argued in Koowarta v Bjelke-Petersen (1982) that:

... if s 51(xxix) empowers the Parliament to legislate to give effect to every international agreement which the Executive may choose to make, the Commonwealth would be able to acquire unlimited legislative power. The distribution of powers made by the Constitution could in time be completely obliterated; there would be no field of power which the Commonwealth could not invade, and the federal balance achieved by the Constitution could be entirely destroyed.

This argument was upheld in Koowarta when it was held that a treaty must deal with a matter of 'international concern' before s 51(xxix) could be used to extend federal powers at the expense of the states. This point was overturned by a majority in the Franklin Dam case on the basis that it represented a revival of the doctrine of reserved state powers rejected by the Engineers (1920) case. Justice Mason summed up the majority's views about the 'international concern' test when he said that the possible subjects of international agreement are infinite and 'it is impossible to enunciate a criterion by which potential for international action can be identified from topics which lack this quality'.

The Melbourne Corporation' doctrine. The Melbourne Corporation (1947) case stands as authority for the proposition that the Commonwealth may not legislate to impair the capacity of a State to function as a government. Franklin Dams did not reject this doctrine of implied governmental immunities'. This would appear to be the only remaining restriction on the scope of s 51(xxix) that is based on the requirements of federalism. The Melbourne Corporation doctrine has been re-affirmed by the High Court as recently as March 1995 (Bilijabu & Ors v Western Australia).

Federation summary. Provided these limitations are observed, a federal law purporting to implement an international treaty obligation will be valid as an exercise of the power under s 51(xxix). It is important to remember, however, that other heads of power in s 51 are also used to support federal laws implementing international obligations. For example, legislation implementing obligations created by the Agreement relating to the International Telecommunications Satellite Organisation (INTELSAT) will be valid, first and foremost under s 51(v) which gives the Federal Parliament power to make laws with respect to postal, telegraphic, and other like services'.

Treaty-making in Australia

Treaty-making is the Government's responsibility

Under Australia's constitutional theory, the Crown possesses sovereign power. This means that the Federal Government has power to negotiate and enter into international treaties on Australia's behalf. The decision to enter into a treaty is made, primarily, by considering the national interest which is assessed on the basis of information obtained from relevant sections of the community. The Government consults with the States and Territories, industry and other relevant interest groups.

Consultation with the States and Territories

Consultation between Federal, State and Territory Governments is facilitated by the Principles and Procedures for Commonwealth-State Consultation on Treaties which require the Commonwealth to provide the States with regular information on upcoming treaty negotiations. This is done through the Commonwealth-State Standing Committee on Treaties, established by the Special Premiers' Conference in July 1991. Meetings of the Standing Committee are held every six months and are used to provide State and Territory representatives with an opportunity to make broad comments on treaty negotiations. Consultation regarding the terms of specific treaties is confined to other issue-specific fora such as the relevant Ministerial Councils and intergovernmental committees.

Who decides whether a treaty should be entered?

The final decision as to whether Australia enters into bilateral treaties is usually taken by the relevant Minister. Multilateral treaties require Cabinet approval before they are signed and ratified. In making these decisions, the Government will consider (but is not bound by) the views of the State and Territories or any other interest groups whose views were solicited during the consultation process.

Where federal legislation is necessary to implement obligations which may arise under a treaty, the decision as to whether Australia enters into the treaty is normally debated in federal Parliament prior to action to become a party. The Government does not enter into international obligations that will need to be enforced domestically until such time as domestic legislation is in place. However, the final decision still rests with the Government. The Parliament does not appear to have any other opportunities for involvement in the treaty-making process, although there are other opportunities for debate after a treaty has been entered into, for example, where the text of a treaty is tabled for members' or senators' information.

Criticisms of the current treaty-making processes

Three main criticisms have been made against the current approach to the treaty-making process.

• the process is undemocratic because the Government and not the Parliament has the final say as to whether a treaty is entered into
• it erodes the sovereignty of the States
• it causes a more general loss of sovereignty for Australia

The treaty-making process is undemocratic - The Franklin Dams case (1983)

Parliament's role is subverted. Critics argue that current procedures allow the role of Parliament to be subverted by the other two branches of government, the executive or the Crown, and the courts. The Franklin Dams case is cited as an example where the Government executed a treaty which imposed obligations for preserving designated world heritage areas. It then passed the World Heritage Properties Conservation Act 1983 (Cth) preventing the construction of the Gordon-below-Franklin dam.

The High Court upheld the validity of this legislation on the basis that s 51(xxix) authorised the making of this legislation since the Act implemented obligations arising as a result of World Heritage Listings under the World Heritage Convention to which Australia was a party (ratified in 1974). It is argued that Parliament should have had an opportunity to consider the ramifications of the Convention before ratification by the Government. There are several arguments against this approach.

Caution does not justify inaction. It would have been impossible to predict the Franklin Dam dispute at the time the Convention was ratified. Nine years passed between ratification of the Convention and the High Court decision. Deciding not to enter into international treaties because the repercussions may not be fully understood for many years to come would put Australia at a significant disadvantage in world affairs.

Parliament did participate in Franklin Dams. The parliamentary process was not subverted because Parliament had the option not to pass the World Heritage Properties Conservation Act 1983 (Cth). The fact that it did is a testament to democracy at work - that a majority of Australia's representatives in both Houses of federal Parliament did in fact consider the legislation worth passing.

The need for efficiency. Systems which require Parliament to approve treaties are cumbersome and inefficient. According to the Department of Foreign Affairs and Trade, allowing the Government to have responsibility for negotiating and deciding whether Australia should enter into treaties ensures that the treaty-making process remains efficient and effective:

This efficiency and certainty of process provides the other party (or parties) with the confidence that treaties negotiated with Australia will not languish awaiting completion of a long process of approval. This is turn 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.

Loss of State sovereignty

States' power diminished. The current treaty-making process has been criticised for eroding the traditional powers of the States. Matters over which the States have traditionally exercised legislative responsibility (eg water resources) may be lost to the federal Parliament and Government by a combination of federal Government action (treaty ratification) and the broad interpretation of s 51(xxix). It is argued that this has the potential to reduce State Parliaments and Governments to little more than administrative agencies of the Commonwealth.

Existing limitations in s 51(xxix). Those in favour of a wide approach to the external affairs power submit that pragmatic and political considerations will always ensure that States do not lose their sovereignty in this way. They also point out that some of the limitations which the High Court has already placed on s 51(xxix) have proved considerable (for example, the requirement that the law be reasonable or proportional with respect to the problem sought to be remedied by the legislation).

This argument does not satisfy proponents of federalism who submit that the limitation which prevents the Commonwealth from acting in a way which threatens the continued existence of the States (the Melbourne Corporation principle) is an ineffective restriction on Commonwealth power and that this is inconsistent with the need to preserve and foster the federal balance of powers envisaged by the framers of the Constitution.

The operation of s 109. The other argument against the view that States' power is being eroded is based on s 109 of the Constitution. This section provides that, when a law of a State is inconsistent with a law of the Commonwealth, the State law is invalid to the extent of the inconsistency.

The drafters of the Constitution clearly intended that the exercise of legislative powers at the national level could and should directly affect, and where necessary override, the exercise of powers at the State level. Such action in furtherance of treaty obligations, far from being a diminution of sovereignty, is the very essence of a responsible state in making its mark and fulfilling its responsibilities in international markets - many of which (for example, finance and communications) have all but replaced domestic markets in importance for Australians.

Loss of Australian sovereignty

It is argued that ratification of international treaties leads to a reduction in the sovereignty of the Australian Parliament as more matters become justiciable by United Nations Committees with responsibility for oversighting particular treaties and conventions.

While their decisions do not impose binding legal obligations, it should be acknowledged that they have significant persuasive value. This persuasive force comes both from the expertise of the committee members and from the need for Australia to be, and to be seen to be, a good international citizen. Reducing the scope of s 51(xxix) may significantly hamper Australia's ability to participate in international affairs. In international law, Australia is a single nation state: the Commonwealth, not the individual States and Territories, has an international identity, administers foreign policy and enters into treaties and conventions with other nation states. As the 1988 Constitutional Commission noted:

... the States may, like other persons and corporations, make contracts and agreements with other governments [but] they are not diplomatic agreements governed by international law. The States are not recognised as having full international personality'.

At a time when markets are becoming globalised; international travel, communication and crime is increasing; and increasing emphasis is being placed upon the importance of concepts such as the universality of human rights, the types of matters upon which international agreements will need to be struck will become more and more important and diverse. In these circumstances, it makes sense for the Commonwealth to have a broad-based power enabling it to implement and enforce obligations which arise by virtue of its international identity.

In exercising its undisputed power to bind Australia in this area, it is pointed out that the international relations of the Commonwealth would be considerably hamstrung if its legislative authority to implement treaties were restricted. Instead of taking an active role in the increasing trend towards international cooperation and the widening area of subjects regarded as of international interest and concern, Australia could find itself a backwater on the international scene. (Constitutional Commission, 1988)

Putting criticisms of the High Court's approach to s 51(xxix) into context

Need for more parliamentary participation

The Australian Law Reform Commission (ALRC) is of the view that these criticisms merit some reconsideration of the treaty-making process. Whether or not they are not fully accepted, they nevertheless demonstrate that there is scope for greater involvement by Parliament in the treaty-making process.

Need is not generated solely by Court's approach to s 51(xxix)

Much of the debate on current treaty-making processes focuses on the recent expansive approach taken by the High Court. Critics charge it with usurping the role of the Parliament by making and striking down laws on the basis of value judgments and implied theories which do not find clear expression in the Constitution.

They suggest that the Court should return to the approach to interpretation described by Dixon CJ as 'strict and complete legalism'. This methodology was based on the view that a strict form of legal analysis is necessary in a federal system which is characterised by a demarcation of powers. The ALRC agrees with more recent statements by Mason CJ and McHugh J, among others, that this form of legalism is no longer warranted not only because there is no longer any justification for the States' reserved powers doctrine but because it is appropriate to recognise that the judiciary has always had values which underpin their decisions and that these values should be clearly stated and exposed to legal scrutiny.

It is also necessary to bear in mind that it is the Government, not the High Court, who is responsible for Australian treaty-making procedures.

Changing nature of the doctrine of parliamentary supremacy

The principle of parliamentary representative democracy and the rights which it implies (eg Nationwide News (1992) on the implied freedoms of speech) as well as an increasing acceptance of international law as a valid source of jurisprudence (Brennan J in Mabo (No. 2) (1992)), have also contributed to criticisms of the Court crossing the 'rubicon' between the law-making roles of the courts and the Parliament.

Interestingly, this development has been accompanied by suggestions that, in the words of Toohey J, 'Parliaments are increasingly seen to be the de facto agents or facilitators of executive power, rather than bulwarks against it'. The question is whether traditional notions of parliamentary supremacy are still valid rather than whether the external affairs power is being interpreted too widely or too narrowly.

The doctrine of parliamentary supremacy contemplates that important changes to the law are best left to the legislature. What is to be done when the legislature does not respond to the needs for important legislative changes such as guaranteeing fundamental human rights, or when it persistently fails to address the obvious absurdity of the doctrine of terra nullius? Former Chief Justice Mason said in 1993 that:

the evolving concept of a modern democracy ... goes beyond the simple majoritarian government and parliamentary sovereignty. It extends to a new notion of responsible government which respects the fundamental rights and dignity of the individual and calls for the protection of the individuals' rights against undue interference and intrusion by authority.

The Australian Law Reform Commission's view

The ALRC approves of the point of United States jurisprudence which holds that one of the primary duties of a judge is to protect against the tyranny of the majority'. The ALRC feels that the general approach currently being taken by the High Court, and its approach toward s 51(xxix) in particular, is right in law and consistent with the judiciary's role as the third arm of government as provided for in the Constitution.

The Constitution is a living document which should be interpreted in light of modern circumstances and the need for recognition of fundamental human rights. The non-static nature of the Constitution is clearly demonstrated by the fact that it makes provision for judicial review. It also provides a mechanism in s 128 for formal amendment. The changing roles of each branch of government suggests a more cooperative approach to law-making rather than the more traditional, parliamentary-supremacy style of top-down law-making.

Options for reform

The way ahead

The object of the reform process should be to ensure that the federal Parliament is able to participate in the process in a way that ensures that the Commonwealth is not unduly hampered in its ability to participate in foreign affairs and meet its international obligations.

Australia is a medium ranked power highly dependent for the maintenance of its standard of living and qualities of life on the uninterrupted flow of foreign investment, trade, migration and international ideas. As such, a transparent and effective debate at the national level about the advantages and disadvantages of entering into new international obligations is necessary.

The ALRC asks whether the organs of the national government, acting in the name of the Australian people, are playing effective parts in this important debate. We believe two of these organs - the Government and the courts, especially the High Court - are. However, federal Parliament is not. This problem may be overcome in a number of ways.

Work of the Constitutional Commission

Scope of the inquiry by the Constitutional Commission. The Constitutional Commission discussed several ways of enabling greater involvement by the state and federal Parliaments in the treaty-making process. Among the options considered were: the establishment of an Australian Treaties Council; ratification of treaties by federal Parliament; and, amending s 51(xxix) to prevent federal law-making from encroaching on traditional State legislative powers while transferring responsibility for implementing treaty obligations to the States.

Treaty-making practices in other countries. In the course of its inquiry, the Constitutional Commission reviewed the treaty-making practices in the United States, Canada and the Federal Republic of Germany, all of which have federal systems of government. The approaches adopted in each of these jurisdictions are summarised below.

• United States. The US Constitution enables the President to ratify treaties provided that two-thirds of senators concur. Once this happens, the treaty automatically acquires the same status as an Act of Congress and becomes part of the supreme Law of the Land'. Where the treaty does not need domestic legislation to enable its provisions to be enforced because sufficient and appropriate mechanisms already exist, the treaty will be self-executing. However, where domestic legislation is necessary, the treaty is not self-executing and the terms of the treaty do not bind American courts until such time as this legislation is passed.
• Canada. The Constitution Act 1967 of Canada contains a power equivalent to s 51(xxix). However, conversely to the Australian constitutional position, Canadian provinces are given specific powers and the Federal Parliament has the balance of powers. The effect of this federal structure has been a relatively rigid separation of powers. However, recent case law suggests that this division of powers is being replaced by a more flexible approach.
• Federal Republic of Germany. As in Australia, the Federal Government has responsibility for conducting the treaty-making process in Germany. However, it differs from the Australian system in two significant ways. Firstly, the States (Länder) are given the right to conclude treaties within their legislative competence provided the federal Government consents to the treaty. In 1957 a Permanent Treaty Commission was established comprising representatives of each Länder. The function of this Commission is to consider the negotiation, signature and ratification of treaties. The other difference relates to the subject matter of a treaty. Where a treaty relates to matters of federal political importance, the German Parliament must consent to ratification.

Recommendations made by the Constitutional Commission

No alteration should be made to s 51(xxix). The Constitutional Commission was not swayed by the arguments in favour of reducing the scope of the external affairs power and requiring States to implement international treaty obligations where they fell within their traditional legislative powers. They expressed concern that this process could be cumbersome and potentially embarrassing for Australia internationally if particular jurisdictions were not seen to be implementing treaty obligations or exercising a virtual power of veto over ratification.

The Constitutional Commission was also unimpressed by arguments that existing limitations on the external affairs power - whether legal or political - are ineffective and contrary to the spirit of federalism which provided a backdrop to the framers' deliberations. It emphasised the need for the Constitution to be interpreted as a 'living' document in the context of the current 'state of the world'. This is consistent with principles of constitutional interpretation developed early this century.

[I]t must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve.

For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the court should ... always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object or purpose. (O'Connor J, Jumbunna Coal Mine NL v Victorian Coal Miners Assoc (1908))

The Constitutional Commission considered several proposals for amending s 51(xxix). One of these proposals would have imposed a 'matters of international concern' restriction. This proposal was rejected on the same basis that the High Court rejected the minority's argument in the Franklin Dam case.

The other proposals attempted, by various means, to confine federal legislative powers by enumerating the responsibilities of the Commonwealth and the States in relation to external affairs. These proposals were also rejected either because it was thought that they would unduly restrict the Commonwealth's responsibility to participate in international affairs or because they would require a substantial redefinition of powers in the Constitution.

The ALRC agrees that s 51(xxix) should not be amended to restrict the powers of the Commonwealth to implement international treaty obligations. Such a restriction might unduly hamper the Commonwealth's capacity to participate in international affairs.

An Australian Treaties Council should be established by the Premiers' Conference

The option most favoured by the Constitutional Commission was the establishment of an Australian Treaties Council similar to the German Permanent Treaty Commission. The Constitutional Commission envisaged that the Council would be established by the Premier's Conference and would comprise people with expertise in international law and Australian governmental relations.

The Treaty Council's main purpose would be to provide a forum for consultation between the States and the Commonwealth regarding ratification of international treaties and conventions. Importantly, its recommendations would not bind any Australian government and the States would not be permitted to exercise an effective veto over ratification proposals. It was recommended that all matters referred to the Treaty Council should be tabled in both Houses of federal Parliament.

This option addresses the concerns of those who submit that the external affairs power is being exercised to the detriment of State legislative powers and at the same time ensures that the Commonwealth is not hindered in its ability to participate fully in international affairs.

The ALRC believes that the Australian Treaties Council proposal has been partially implemented by the establishment of the Commonwealth-State Standing Committee on Treaties and with it the Principles and Procedures for Commonwealth-State Consultation on Treaties. This mechanism encourages consultation at an intergovernmental level.

The limitation on the Standing Committee to act as an advisory body only without the power to veto ratification proposals will ensure that Australia is not unduly hampered in its ability to meet its international obligations. However, continuing concerns about Parliament's lack of involvement in the treaty-making process suggest that the Standing Committee is not altogether incorporating the views of elected representatives into the process in a concrete and tangible way.

Treaties should not require parliamentary ratification

The final option considered by the Constitutional Commission was requiring ratification of all treaties by Federal Parliament. This is the practice in the United States. A majority of the Commission rejected this proposal on the basis that many treaties can be implemented by executive action without the need to pass legislation.

It was argued that, in these circumstances, exposing the treaties to the parliamentary process would 'give non-Government supporters in the Senate the power to override executive policy supported by the Government and the House of Representatives'. Professor Zines dissented, arguing that it is in the interests of promoting greater government accountability, for treaties to be ratified by both Houses of Parliament or for each House to be given a certain period of time in which to disallow a ratification.

The ALRC feels that there is merit in the suggestion that treaties should be ratified by Parliament. This procedure would certainly define a very clear role for Parliament in the treaty-making process. The disadvantage with this approach, as the Constitutional Commission has pointed out, would seem to be the potential for the Commonwealth to be seriously impaired in its ability to discharge its responsibility for external affairs and to keep pace with internationally agreed standards and benchmarks.

The alternative approach - to allow Parliament to disallow a ratification proposal - would be less likely to be used to deny this type of action but may not encourage the Parliament to play an active enough role in the deliberation process.

ALRC recommendations

Establish a Joint Parliamentary Committee on treaty-making. The ALRC believes that the best approach might be to establish a joint federal parliamentary committee to consider and report on ratification proposals put forward by the Government. This would engage all parties at a federal level in the treaty-making process in a positive and constructive way. The committee system has proved itself to be a very effective consultative process with members working cooperatively towards common goals.

A joint federal parliamentary committee has the advantage of ensuring that responsibility for implementation remains in the federal sphere thereby preventing possible veto action by the States and avoiding inertia of State governments which may place foreign affairs at a relatively lower level of priority than domestic matters.

To help ensure accountability and acceptability of international obligations arising out of the treaty-making process, the Joint Parliamentary Committee should perform the following functions:

• receive reports, copies of treaties and other relevant documentation (for example, summaries of treaty negotiations) from the Departments of Prime Minister and Cabinet (DPMC) and Foreign Affairs and Trade (DFAT) concerning the status of treaties and treaty negotiations
• issue periodic reports to federal Parliament on treaty-making in Australia, including the status of negotiations and highlighting important matters ahead of ratification
• keep under review the Principles and Procedures for Commonwealth-State Consultation on Treaties and other relevant practices adopted by DFAT.

These functions would help to ensure that the treaty-making process remains open and accountable. This transparency will, in turn, aid the implementation of international obligations into Australian domestic law when treaties are eventually ratified.

Should ratification by federal Parliament be required?

The Committee could operate in one of two ways. Firstly it could, in a similar way to the Scrutiny of Bills and the Regulations and Ordinances Committees, scrutinise treaty proposals in terms of the mechanisms needed to implement the obligations arising under the treaty and then make recommendations to the Parliament accordingly on the treaty's ratification. The Parliament would then have the responsibility for ratifying or not ratifying the treaty.

This approach is problematic in the sense that it may impair the Government's ability to act promptly in international affairs. However, in the event that it is adopted, Parliament's ratification should be sufficient to make the treaty self-executing to the extent that there are mechanisms in existence which enable the treaty to be enforced. If there are not sufficient or appropriate mechanisms to enable the treaty to be implemented and domestic legislation is necessary for these mechanisms to be established then provided this legislation is within constitutional power, federal Parliament should expedite the passage of the necessary legislation.

A second approach is simply to require the Committee to report on the proposed treaty and continue to allow the Government full power in deciding whether or not the treaty should be ratified. This adds an extra layer of consultation at the Parliamentary level and fulfils both aspects of the objective.

A third option is to combine each of these approaches by allowing the Committee to recommend, as part of its report into each treaty proposal, whether the question of ratification should be referred to Parliament. This may be desirable in the case of some treaties which could be expected to be controversial. Other treaties may not warrant this type of attention and so may be more appropriately dealt with by the Committee directly. Again, if the treaties are referred to Parliament for ratification and sufficient and appropriate mechanisms are available for the treaties to be enforced, upon ratification by Parliament they should be self-executing.

The ALRC's preferred option

The ALRC is least attracted by the first of these options - that all treaties should be ratified by Parliament - principally because there is potential for party political processes to prevent proper and practical consideration of treaties.

However, there is merit in the second and third options. The second option envisages that the Committee would act as a consultative mechanism. The third would empower the Committee to refer potentially controversial treaties to Parliament for ratification.

The ALRC is of the view that if the last of these alternatives is chosen, then treaties which have been ratified by Parliament should be self-executing if proper mechanisms for the administration of the terms of the treaty already exist. If mechanisms do not exist, Federal Parliament should expedite the passage of domestic legislation to establish the necessary mechanisms.

An unedited version of this submission, with full references, is available from the ALRC. Contact the Public Affairs Officer on [phone]

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