FEDERAL-STATE RELATIONS COMMITTEE

TRANSCRIPT OF EVIDENCE

CORRECTED VERSION

Inquiry into overlap and duplication of
roles and responsibilities

Minutes of evidence

Canberra - 26 February 1997

Members

Chairman: Mr M. John

Deputy Chairman: Mr B. T. Pullen

Staff

Executive Officer: Ms L. Topic

Witness

Members of the Commonwealth Joint Standing Committee on Treaties

Mr W. L. Taylor, MHR, Chairman;

Senator H. Coonan;

Senator B. Cooney;

Senator W. G. O'Chee;

Mr K. J. Bartlett, MHR;

Mr L. D. T. Ferguson, MHR;

Mr W. E. Truss, MHR;and

Mr C. W. Tuckey, MHR.

Staff of the Commonwealth Joint Standing Committee on Treaties

Mr P. Stephens, Secretary, Joint Standing Committee on Treaties, Parliament of Australia.

Inter-Parliamentary Liaison

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In your folders, for later reference, you will find a copy of a paper on the treaties committee that I presented to the University of Southern Queensland just before Christmas, together with some other papers that are examples of our most recent reports. I will go into the processes briefly before we get to the more important part where we exchange a few views across the table.

This is a new committee in this Parliament. It is the direct result of initiatives by my government to enhance the communication process not only with state and territory governments but also with the electorate at large - individuals, groups, et cetera. Our experience so far is showing that that is the way we have to go and increasingly have to move. It is the second largest joint standing committee in the Parliament. When it left the House of Representatives as a resolution early last June and went into the Senate, the membership was to be 14. The Senate in its wisdom increased it to 16, and we need that membership. The Senate emphasised its support for what we were trying to do and the importance of what we are about.

Previously, we had no parliamentary debate in terms of the treaties process, and in fact there was almost no involvement until the ratification became a fait accompli. Although one element has not yet met, first of all you have this Joint Standing Committee on Treaties at the parliamentary level. You already had a Standing Committee on Treaties, which is a group of officials and which represents federal and state governments and authorities as necessary. That remains.

What you also have is the Treaties Council, which is yet to meet. That is chaired by the Prime Minister. Your Premier, of course, is to be a member of that Treaties Council, which is to be an adjunct to COAG. We understand there was to be an inaugural meeting of the Treaties Council in November last year, but of course with the Western Australian election being called it was deferred. My understanding is that it is to meet in July. During lunch I have been down to talk to about 30 senior executive service members of the Attorney-General's Department about the treaty-making process. I understand it is pretty well confirmed that the Treaties Council will in fact meet some time in July.

Yesterday the Attorney-General and the Minister for Foreign Affairs issued an executive statement. For those non-lawyers among you, I point out that it addresses the issue of the High Court judgment in Teoh. We can talk about that in moment if you want. Basically what that did was to introduce some uncertainties into the process as a result of a legitimate expectation, which we are going to address in terms of legislation, which is what Gareth Evans and Michael Lavarch, as the former Minister for Foreign Affairs and Attorney-General, tried to do in the last Parliament, but with the proroguing it was not proceeded with.

My committee is basically involved between the signature of the convention, the treaty, the protocol - whatever you want to refer to it as - and the ratification. Again for those non-lawyers among you, the difference is between the moral intention and the legal intention. Once the treaties are tabled, we have 15 sitting days in which we have to report back to the Parliament prior to the formal ratification. The Minister for Foreign Affairs has assured me and the committee that if we are not able to meet that remit the government will not proceed to ratification until we are ready to make recommendations.

During 1996 we submitted four reports - `very short views' are the words I used at Attorney-General's earlier today. It puts considerable pressure on my colleagues on both sides of the political fence and on the secretariat to provide meaningful reports. We were able to report to the Parliament on 55 or 56 of the treaties that were tabled prior to getting up for the Christmas-New Year break. Two were left over. I tabled a report, which is one of the reports you have - report no. 5 on protocol 2 and protocol 4 of the inhuman weapons convention - which has some rather radical recommendations. I am not sure just how the government will address them, whether it will be favourably or not.

Nevertheless, we have made some recommendations on the basis of the evidence that was provided to us. That is not one where the Victorian government, for example, would have had an input. But as to others that we have had, we have had some input in terms of the bilateral agreement with Japan on tuna fishing. Some of the matters we have already addressed have been addressed very much in discussion with the Victorian government and the other state governments, and so on. That is a rough outline of what we do.

Before we move to your side of the table, I will introduce some of my committee members. Senator Helen Coonan is a Liberal member from New South Wales. She is a lawyer, and this is her first attendance at a meeting. She was legally appointed to the committee only yesterday and replaces Chris Ellison, the new parliamentary secretary. Also present are National Party member Warren Truss, from Queensland; Barney Cooney, a well-known Labor senator; Laurie Ferguson, a Labor member from New South Wales, and Kerry Bartlett, a Liberal member from New South Wales.

The CHAIRMAN - My name is Michael John. I am the Chairman of the Federal-State Relations Committee of the Victorian Parliament. I am also the member for Bendigo East in the Legislative Assembly, and I have been in Parliament for approximately 12 years. I am a lawyer by training. Barry Pullen, my Deputy Chair, is a Labor member for Melbourne Province. Alex Andrianopoulos is the ALP member for Mill Park. Gerald Ashman is an upper house Liberal member for the eastern suburban Koonung Province. Leonie Burke is the Liberal member for Prahran, and Wendy Smith is a Liberal member for Silvan Province. Lilian Topic is our executive director. We have an equal representation of coalition and Labor Party members as well as a good balance of male and female views, given their various professions and training.

The committee has been running since June of last year. It is a new committee that has required legislation for its establishment. Its main role is to look at the overlap and duplication of functions at the state and federal government levels. The committee has very broad terms of reference, which I can provide if you do not already have them.

The committee is particularly interested in the roles of both levels of government, as well as treaties. Since arriving in Canberra we have met with Mr Ian Biggs, the Executive Director of the Treaties Secretariat, Department of Foreign Affairs and Trade, who was most informative. We are impressed with the work your committee has done in Canberra over the past year or two in the area of treaties. I think I speak for all members of the committee when I say that I am concerned that so far as the process as it hits Victoria is concerned, although the joint offices and the bureaucracy are well informed in every quarter about what is coming up by way of treaties, we get nothing into the Victorian Parliament, nothing into our electorates and very little public debate. We are concerned about how we can improve the performance at our end. This is in no sense a criticism of what the commonwealth is doing, because we are pleased about your achievements.

We are interested in the aspects that you deal with, especially in relation to the presentation by Ian Biggs this morning. Obviously he was speaking from a far more academic, bureaucratic and administrative standpoint. We are interested in your comments, both political and public.

Mr TAYLOR - I am a Liberal member from Queensland, and my electorate area is Toowoomba. I note that Mr John is the only lawyer on the committee, so let me explain because this goes to the heart of the federal-state relationship. Some questions were raised as a result of the Teoh High Court decision. Teoh came up as a result of a convention dealing with the rights of the child, which I suspect is an issue that bounces around electorates in Victoria just as well as it does anywhere else.

The committee has a number of ongoing hearings, investigations and inquiries. One is into desertification and has yet to be signed. In this case there is no national interest analysis (NIA) involved, which is the normal process. When a treaty is tabled it has a national interest analysis. A national interest analysis has not been introduced here because desertification involves the preservation of the states, as does land use.

The Teoh case threw a big question mark over the legitimate expectation of people that because a convention or protocol had been agreed to in New York it should automatically flow on and have legal application in Australia. Yesterday Daryl Williams and Alexander Downer put out a press statement - we will get you copies - that makes it clear that until such time as such conventions become part of domestic law they will not have any legal effects, particularly in areas where the preservation of the states is involved.

The legislation will probably not be introduced for some weeks yet, although it might be accelerated. Nevertheless, the statement still has the force of an executive statement and expresses that intention. It is an important development and will make life easier for our committee, although we have not yet discussed it in detail. It is too early for the opposition to indicate its political reaction to what we are going to do. As a calculated guess - maybe I am wrong - I believe it may be difficult for the opposition to argue against what we are proposing when Gareth Evans and Michael Lavarch wanted to go down that path, anyhow. Probably, if it were not for the proroguing of the Parliament, they would have gone through what we are about to go through.

I will give you an example of the degree to which we take evidence - our modus operandi, if you like. When these treaties are tabled we get in the bureaucrats from the various federal departments. Let us take the taxation of Vietnam, which we took evidence on on Monday morning. We got the federal departments in to start off with, including the Australian Taxation Office. The Australian Taxation Office had not even consulted with the Institute of Chartered Accountants or the Australian Society of Certified Practising Accountants. There was no consultation and they wondered why they suddenly came up against a brick wall with this committee. There is a way to talk to people about that. The consultative process is the sort of thing that you can get hold of immediately.

The Oakey agreement will be the subject of our next report. It is a parochial issue for me because it concerns the proposed stationing of Singapore armed forces and air force people at the aviation centre at Oakey in my electorate. It involves families, aircraft, and all the economic multipliers that that involves, locally. We had a meeting in Toowoomba last week which had strong local support. The opportunity to attend was given to local government, the Queensland Chamber of Commerce and Industry, churches, education and health representatives at the state level and other groups, as well as individuals - and four individuals came along. Three of them were from out of town. They were interested because it was a good idea and because those people were not white and were not Christian. Nevertheless, they had freedom of speech and were able to say what they wanted to say, even though I suspect all the members of this committee might not agree with them and would say so.

Senator O'CHEE - I certainly do not.

Mr TAYLOR - I think most rational people do not, but these people were quite irrational and they were able to come along and say on the record what they wanted to say, and we will report on the basis of that evidence. That is a rough outline of how we do business.

In terms of state governments, my understanding is that the Standing Committee on Treaties, the SCOT group which is Ian Biggs's group, moves around Australia regularly, having discussions with the bureaucrats at the state and territory level and keeping them informed of what we might be doing. It is part of the three-tiered process: the officials level, the parliamentary level and then at the highest level the Treaties Council. For example, I saw the draft for the inaugural meeting in November and the desertification was to be on the agenda. I suspect because of our approach on Teoh it might still be discussed in July. It is not going to become the issue that it would have with Court, Jeff Kennett or Bob Carr or whoever in relation to that particular issue. I think we are moving the way the general public wants us to move, and I hope you would agree. Bob McClelland, who is my deputy, Labor from New South Wales, is unfortunately not able to come along. So far we have been very bipartisan. Unfortunately one of the two reports you have, the one that was tabled on Monday, has a dissenting report in it.

The CHAIRMAN - I understand that is government members.

Mr TAYLOR - Yes, two government members. But nevertheless that is their right. One or two others who did not sign it have some reservations about one recommendation which goes a fair way ahead of government policy. I repeat that we made recommendations on the basis of the evidence provided irrespective of what might be existing policy in one particular area. Does anyone else want to make any point?

Mr FERGUSON - Briefly. As I said in the Parliament, I think it was overdue. I am glad the new government initiated this process. As Bill said, it will go some way to reassuring people in the electorate who perhaps feel that Australians get very little say internationally in regard to the way the world is operating, essentially. This was a useful initiative to give them that reassurance, particularly on the convention on the rights of the child. That is a good example of the concerns that there were out there.

As Bill has indicated, the committee has worked in a non-partisan fashion. It might be the nature of the committee and who it has attracted, like the foreign affairs committee. I think there is an element of who actually goes on the committee. Generally I have found it very useful so far.

Mr TAYLOR - I wanted to say also that we have put out a release today on the convention on the rights of the child. We intend to review that. It is bouncing around already, from the media interest that I have had in it. The convention on the rights of the child was ratified in 1990. In 1989-90, it would be fair to say on both sides of the political fence, there was a lot of flak. There is nothing exceptional about the broad framework, but there were five or six clauses about which a lot of people, particularly some of the churches, and other groups had a view that too much emphasis was put on the rights of the child compared with the rights of the parents. I have some personal sympathy with some of that. In the break we have produced an exploratory paper on that within the secretariat.

I should mention to you of the 900-plus conventions or treaties that are extant at the moment, under the joint resolution of the Reps and the Senate we are able to go into any of those extant treaties and review them. Having been at the Attorney-General's over the luncheon break talking to the group, it is already bouncing around in the corridors at Attorney-General's. I have not spoken to the Attorney-General about it, but it is the sort of thing we can look at under the terms of our resolution.

Mr TRUSS - I wanted to make the comment that it is particularly appropriate for us to meet with a state committee because many of the treaties the commonwealth has signed have a bearing on the states and indeed there has been criticism that the commonwealth has used its treaty-making powers to extend its influence in areas which were traditionally the responsibility of the states. There has always been, and there will be particularly in the future, an opportunity for the states to participate in the treaty-making process. The Treaties Council, which is made up of the Premiers of each state, still has not got around to having its first meeting, unfortunately.

It is certainly intended that state parliamentarians and state organisations should take an interest in the process. In the time that this committee has been functioning we have had very little feedback from the states. There is a forum available and we would certainly encourage you to use it. None of the inquiries are conducted in secret; they are all open and public. I would encourage your state departments or your ministers to make submissions in areas where you feel you have some contribution you would like to make.

Mr TAYLOR - When we did the bilateral agreement on bluefin tuna with Japan, we had some positive feedback in very short order from the WA government.

In terms of the convention on the rights of the child, I have written to all the Premiers and Chief Ministers. I signed a letter to Jeff Kennett this morning; that will be coming back through the Premier's department. So here is your opportunity in the state sphere to have your say on that.

Senator COONEY - First of all, a lot of this came out of a report that was done last year by a committee that was chaired by Chris Ellison, a Liberal Senator from Western Australia, who prepared an outstanding report and whose service on this committee was outstanding service. I agree with what has been said, but it is a chance, as was said, for parliamentarians to have a go. The constitution provides for the federal government to sign it. The big thing about this committee is that it can have an input. It cannot stop the government signing or stop anything that did happen before. But this committee is a real initiative and a real drive in the right direction, where at least parliamentarians in the states and hopefully people beyond that can have an input through Bill's meeting with the various ministers.

Mr TAYLOR - Barney is underselling himself. He was also a member of the `Trick or Treaty?' Senate committee on this, so he made a significant contribution, which led to the formation of this committee.

Mr TUCKEY - Just expanding on this view and taking Barney's comments, not critically but as an observation, it is not even the government of the day that has been signing off on the treaties; it is the executive. I think there is plenty of evidence that even cabinet has frequently not had a look at these things and possibly not the big and controversial ones but the little ones that still have an effect. They roll these things out at a tremendous rate and, from my observations so far, the bureaucracies involved have basically had the handling of all of this on their own. Although they have now become quite cooperative, they have never had to ask, `I wonder if anyone is going to ask me a question about this?'.

If I can give you an instance of a matter before us at the moment. The country has a number of double taxation agreements with various countries and included in that was a realisation that some developing countries give special tax deductions to encourage investment in their countries, which of course could be highly advantageous to Australians who are making that investment. In the past the provision has been to allow the amount of tax forgone by the other country to be treated as real tax in terms of the deductions that an Australian could claim here.

That has become the subject of some tax avoidance in the financial and security area. The latest response with regard to Vietnam was that the financial and security activity is excluded, which meant that if the Vietnam government rang up and asked one of our major stockbrokers or banks to go to Vietnam and generate profits for Australians it would be told that they could not have the benefit of this tax arrangement, when the issue that needed to be addressed was to cut off the tax avoidance within Australian tax law.

Because it has suddenly been put in front of us, we have said, `Cut it out, they have found a nice bureaucratic solution. We will just take them out'. But in terms of the type of investment that might be beneficial to Australia, the contract was also excluded. Fortunately, the accountancy definition picked this up. We expected that when the document came before us it would be of the standard of many previous agreements, but it was not.

We are presently looking at the desertification treaty, an international treaty of grave significance. We all hold the view that Australia should participate, but we have discovered that there are no reservations allowed, and if it were to be signed as it is now it would open up a new commonwealth power for the management of all pastoral lands throughout Australia. In other words, it would take another power off state governments.

The commonwealth might be fairly cooperative about that, but what of the Greens and other group? Remember that we are talking desertification - and I argue that as a rural member I represent 12 000 desert farmers - so by any international standard at what stage do we suddenly find people going off to the courts demanding that the commonwealth take away the rights of the states? I am not aware of any submission from a state government to come to us on that issue, which is a real worry. We have had discussions, and you have possibly been told that we set some processes in train; but as a committee member I would be disappointed if on nearly all these issues we did not get at least some written submissions.

Bill made the point about tuna. We travelled to Western Australia, South Australia and other places and had hearings. People appeared and gave evidence, but I am sure that if we had not gone there would have been a fair chance that we would have got nothing out of the states on that issue. This is an initiative of the Parliament to try to re-establish the federal arrangements in terms of treaty making and to see that they get some scrutiny. As I said, I do not think that was even given by cabinets in various governments in the past.

Mr TAYLOR - The executive statement issued yesterday does one thing the Lavarch-Evans statement did not do. It introduces the parliamentary context. We have section 61, the executive function, section 51, and section 29 dealing with the external affairs power. Wilson is right in that the treaty-making function rests with the executive. It is important to note, and the legislation makes it clear, that the Parliament makes the laws, and we have to be involved in that.

I understand that young Sean Baker, our intern for a few months, has been with you. He wrote some of the early paper. He did a survey of the Convention on the Rights of the Child (CROC), but I do not know where he is now.

The CHAIRMAN - He has gone back to university and is with us part-time. He was with us for several months. We now have him one day a week.

Mr TAYLOR - I do not altogether share his view on the convention. Nevertheless, he prepared a good exploratory paper as part of his internship.

The CHAIRMAN - We find him very talented and helpful.

Senator O'CHEE - I will make a few reflections on what we are doing here in an international context. Historically, up until the middle of the 19th century treaties were very much the sole prerogative of the executive because in many cases they were arrangements between sovereigns, and therefore they had an absolute power. It was only in the middle of the 19th century that we found the rise of parliaments in Europe.

The one area of international law that has been very slow to adapt to parliamentary democracy has been the international law on treaties because the executives have decided to hold on to the powers that sovereigns used to have. Therefore, what this committee does is significant because it reasserts the importance of the parliamentary process. It may be that 10 years down the track what we have started here may have evolved in another way - but it has been significant. There are very few places that give more power to Parliament than we do. The United States does, but in the United States treaties are ratified by two-thirds of the Senate, and that is not the situation here. We are certainly ahead of most of the commonwealth now, and we are ahead of the Germans under the Landauer agreement.

You may want to reflect on this from the states' points of view. Section 51 does not grant exclusive powers to the commonwealth in relation to external affairs. It merely provides that the commonwealth Parliament shall have a non-exclusive right to make laws in relation to, inter alia, external affairs. A number of states and territories have entered into agreements overseas. The memorandum of understanding signed by the Northern Territory with Indonesia in relation to education and trade, and a number of other areas and agreements in Queensland and Western Australia, comes to mind.

In the next two, three, four or five years some of the areas we will end up discussing are the interrelationships and the abilities of the states to make those agreements. I do not think anybody would say it is a bad right for the states to make those agreements because some of them have been significant in trade and education.

Mr TAYLOR - I addressed a meeting of some 35 SES officers at the Attorney-General's Department here. One of the questions related to the involvement of the states in some of the overseas forums in negotiations in terms of some of these treaties.

A lot of countries, particularly in Europe, had some difficulty with state representatives going along to those negotiating meetings. Some of the Europeans are saying, `Wait a minute, you are Australian. What is this New South Wales, what is this Victoria?'. It is the problem that some of them have with the federation - and the basic problem some of them have as well. It is a complicating factor. To give you an example, next month after 25 years of negotiating Alexander Downer and Ali Alatas will sign a major marine boundaries agreement in Perth on 14 March. That has involved the West Australian state government, as well as Richard Court. But Alexander Downer and Ali Alatas will sign the agreement, but WA has been heavily involved in that process.

Senator COONEY - The states are probably interested in three main areas: environmental law - Point Lillias; human rights - Tasmania; and the ILO convention, which is a great example of that. We have not struck any of it yet.

Mr TAYLOR - The Convention on the Rights of the Child is very much the preserve of state governments, so you should be having a major input into that sort of thing. My colleagues and I would be disappointed if the Victorian government did not have a view. There may be different views from both sides of the fence, but if you did not have a view on some of the issues after six and a half years' experience with the convention - and about to what extent your state has been adequate or inadequate - we would be disappointed.

The CHAIRMAN - We have been a bit astounded this morning, having had a brief discussion about this - and your discussion now has confirmed it - that our own systems in Victoria are not adequate. With respect to the COAG process and the Treaties Council, they do not meet often enough and it is not a high enough priority on their agenda. They are often occupied about finance and there is not enough time left in the day for the Treaties Council to meet on these matters as much as perhaps they should.

We are interested to find out what other states are doing. This morning, Wendy and Gerald raised issues with Ian Biggs: Wendy in terms of the fact that our electorates know nothing about what is going on and Gerald pointed out that the process with the national interest analysis, which obviously has democratic input, had the capacity to be railroaded or pushed along by lobby groups or vested interests, albeit that it can be balanced because you have pushes coming from all directions and ultimately governments have to make the decisions.

The bottom line for us is that we have realised that the quarterly reports and the communication from the federal government goes to the state to a bureaucrat or someone in the bureaucracy or a group of people in the bureaucracy and we do not have any parliamentary input whatsoever. This is something we intend to address.

Mr TUCKEY - This is basically my point. To date we have dealt with a large number of treaties; some in half a minute, some over weeks. With the exception of the southern bluefin tuna agreement, on which we actually travelled, I am not aware of any significant evidence that has come before the committee from a state government. It might not be representing only its own political view; it might, through a department, say, `This is not good for the mining industry, or the fishing industry' - whatever. This thing that came out of the discussions on the southern bluefin tuna agreement was that the environmentalists and others became involved, and things like the bio-catch were discussed; it became an illuminating exercise for the parliamentarians on the committee. We discussed at length keeping the states informed and somewhere over there collectively you have a quicksand pit because we never see any of it come back.

The CHAIRMAN - I think good things are being done by the commonwealth but they are disappearing.

Mr TAYLOR - Your committee is important. It may well be that as a result of what you hear today and your visit you may decide a subcommittee of your committee should look at some of these things.

The CHAIRMAN - There is a fair bit of support for that type of subcommittee or the full committee, as we already exist and we would not be increasing the bureaucracy or adding another committee to those of the Victorian Parliament.

Mr TUCKEY - Melbourne is the centre of commerce. This Vietnamese thing, where a treaty has been changed to exclude financial services, fortunately the accountants picked it up.

Mr TAYLOR - Before you came in, with the accounting and the peak bodies, (a) they were not consulted, and (b) it was as a result of discussion the week before the meeting when over a lunch I had with the two peak bodies and two other government chairmen that I said, `What about this double taxation? You might like to have a look at it.' They did and they have raised some important issues in the whole process. One of the associated problems is the degree to which, simply because some of these things might be seen to be avenues for illegality, they are being excluded, for example, established financial institutions, banking and commerce.

Mr TRUSS - Even last week when we were looking at the defence agreement with Singapore we were unable to give answers to elementary questions about who was going to look after the sick soldiers and where kids were going to go to school. We did have state people present to give evidence on that occasion, too, but again they were really unable to answer questions and it was fairly clear that there had not been much discussion about where people were going to live and how they were going to be looked after.

Mr PULLEN - Coming back to the process, I do not think I have it quite clear yet. The treaties are signed before they come to you. What if it reaches the situation, which I take it has not arisen yet, where the committee completely disagrees? What are the procedures in terms of the parliamentary role?

Mr TAYLOR - The stage of signature is reached by government after consideration of all factors, where they feel that they are able to indicate a moral intent. That is basically what the signature is. But until it is actually ratified by the government, it has no legal effect in international law. It is in between. What you are asking is what we say that might stop the ratification. We have not got to that stage yet, but it is pretty clear from the 15-day rule, for example, that the government is not going to move to ratification until we report - even though in the case of protocols 2 and 4, because of the Christmas-New Year break it was a couple months - and they get some firm recommendations that ratification should take place.

Mr TRUSS - Desertification was signed two or three years ago.

Mr TAYLOR - Yes, it was signed in December 1994. But the NIA - the national interest analysis that Michael referred to - has not been produced yet and I suspect the reason is that there are too many question marks as a result of Teoh and other things, where it was getting into an area, as Wilson said, that was the legal preserve - the constitutional preserve, I guess - of state governments.

Mr PULLEN - Given that there was probably a fairly long lead time, then the other party would have a process, too, so if there was to be an amendment they would have to presumably rethink their position, so it takes it back. I have not seen a clear explanation of how that is meant to work.

Senator COONEY - I think in the end it depends on the persuasive power of Bill Taylor because, as Senator O'Chee said, it is a matter for the executive in the end for the executive. If they say, `Clear off', they can sign it and ratify it. So between the signature and the ratification if this committee or your committee came in, saying, `This is awful. This is not an environmentally sound law. This is a law that is going to take over Victoria', it then depends on how persuasive Bill Taylor is.

Mr TAYLOR - It would be a brave government that ratified it.

Senator COONEY - But that is persuasion; if you cannot persuade them, they can go on.

Mr TAYLOR - That is right, but we have to persuade them on the basis of the facts. That is why our reports are so important. So far we are up to about 65 if you include the latest lot, but so far with 57 we have not had to say, `We do not recommend ratification'. In every instance we have recommended ratification. However, we have some qualification. As you see with just the couple there, we have made a number of recommendations which the government may or may not pick up. For example, the national interest analysis in general terms is not too bad. In our second report we recommended some changes. We do not want a voluminous document with the NIA, but we want the issues covered. The government has not reacted to the first report yet because it is flat out keeping up with us and we are flat out keeping up with the tabling to meet that 15-day rule.

Senator COONEY - There is no legal ability with this committee, but there is a strong political ability.

Mr TAYLOR - That is right; it is a persuasive ability.

Mr TUCKEY - Just adding to those facts, the realities are, as I pointed out earlier, that the first time the people go off to negotiate the treaty in the first instance - remembering that many of them are relatively minor but still very important to somebody - they are now under the discipline of knowing that they have to uphold the things they did. I have given you an example of how it would have gone through the sausage machine in times gone and by. I bet it would not have been given any scrutiny at executive council level. It would just have been a statement like, `There you are, gentlemen; this is our routine double taxation agreement'.

The realities are that some of that is going to have prospective advantages. I support Bill's view. It would make a farce of this committee, and it would require a major policy commitment from our side of politics to have this committee operating by just striking down every recommendation it makes.

As a slightly aggressive member of Parliament from time to time, I point out that the cooperation from within the committee on the fundamentals has been excellent, so we are not looking at a great diversity of views on the fundamental issue that the Parliament should be able to have a say. We went through landmines the other day and found a compromise that I thought was excellent. People had some divergent views about what we should be recommending.

Senator O'CHEE - We are parliamentarians, too; we are not negotiators or drafters of treaties. Our responsibility is to scrutinise. Therefore, while sometimes people might think it is a compromise or weak kneed, it is important that we do not become part of the process by which treaties are negotiated or become people who draft what our commitments are. Otherwise there will be no confidence that people will get a hearing when they come before the committee, which is only fair.

Mr TAYLOR - To come back to Barry's point, there are various options, and you will find them explored, albeit briefly, in the paper I presented last year at USQ. There are various options available in the process. You could take a view that the committee should get involved before the signature process, but that has some negatives. However, that is one of the options.

One of the functions of this committee - and we have not had time yet because we have had to learn to walk before learning to run - is an information process. We have to get out into the community the fact that we exist, that the treaties council exists, and that the consultative processes are available. This weekend, the CROC advertisement will appear in every national newspaper in the country. If we come to Melbourne - and undoubtedly we will - and we do not have a submission from the Victorian government, I will be disappointed and I am sure my committee will be disappointed. You can take a horse to water but you cannot necessarily make it drink. The consultative process is there and available.

Ms SMITH - You have obviously gone a fair way down the path of trying to get a concerted process going. Do you see any other measures for reform that the states could institute?

Mr TAYLOR - It is a little early to judge that. We are still walking! Daryl Williams has indicated that he would like to review the situation in a couple of years. It may well be that instead of being a joint standing committee this committee may become a joint legislative committee - in other words, have its own legislative framework. I do not know whether we will get to that stage or not. It is an educative process and we will learn from experience by the two-year point. We will have some experience as a result of discussions like these, which are very fruitful. I hope the states and territories will have the same sort of feel for what we are about.

Ms SMITH - Are you talking to other states?

Mr TAYLOR - Ian Biggs in DEFAT and Peter Stephens, the secretary of this committee, have been moving around the states. They have been to three of the states so far.

Mr STEPHENS - We have not been to Victoria yet, but we have been to Queensland, Tasmania and Western Australia.

Ms SMITH - Who are you briefing?

Mr TAYLOR - This is at an official level.

The CHAIRMAN - I do not think the other states have parliamentary committees like ours. We are the closest thing.

Mr TAYLOR - It could be an issue that Jeff Kennett might raise at the Premiers' council.

Ms BURKE - You have obviously come quite some way in improving the democratic deficit in treaty making. The council is a good example of that - and in particular, this committee.

We have learnt a lot today about where we have been missing out, and it will be an interesting process for us to go home and look at how we can fit into the process. Do you think this treaty process will end up with a de facto global Parliament that will in the longer term affect our trade with other countries?

Mr TAYLOR - The answer is no. I am reluctant to keep coming back to Teoh and its aftermath, but until yesterday I would have said I am not sure. Depending on what happens in the legislative coverage, we are now going to get over that. I told the A-G's group at lunch that politics is all about perceptions. In the wider electorate perceptions are that just because somebody hiccups in New York or Geneva, Australia follows suit. Until this development yesterday there was some validity in that sort of argument.

I hope that as a result of that executive statement and the legislation that will follow we will make it clear that until such time as domestic legislation is introduced - federal or state, depending on what area it might cover - it really has no legal effect. The United Nations Human Rights Committee can argue what it wants to in certain areas, but in legal terms a lot of it is straight rhetoric.

Ms BURKE - Yes, but we are in the early stages, are we not?

Mr TAYLOR - Yes.

Ms BURKE - If these treaties are going to have the power that everyone intends as they are signed the second time, we will be putting in another sphere of legislation. Where does that lead us in trade and country negotiations in the future?

Mr TUCKEY - The creation of this committee resulting from trick or treat has probably put a stop to that. Your fears were extremely well grounded prior to that point, because we were finding people being carted off to UN committees and the international court and everywhere to make decisions relative to the administration of Australia. It is an interesting point. In all the issues that we will address from time to time - particularly in the social engineering area - the question is what the need is for a treaty.

I come back to CROC. Why did Australia have to promise the Indians and the Filipinos and a few others that as legislators we would look after our kids? When we started off some of the first evidence we got was from the foreign affairs department, which said to us, `This is how we have been acting on your behalf in the past'. They started to talk about the construction of treaties and the negotiations and everything else. In passing, one of its senior people said, `Of course, on this particular treaty the government of Thailand refused to sign it'. They said, `We are quite happy to bring our own legislation up to a level that satisfies the requirements of that agreement, but you are not going to get us to sign it'.

The penny then dropped with me: why isn't that what Australia offers to do, instead of signing off with the rest of the world on an issue that we can address domestically and standing up with all the pride in the world and saying, `No, we have not signed that thing, but come and look at us.'? Those sorts of options are now before us, whereas before everyone was rushing off to get this warm inner glow of signing some treaty somewhere in the world. The clean air treaty is a good example. We are now being threatened with trade sanctions by the United States because we are not progressing fast enough. They are more interested in the trade sanctions than in clean air, which is a real threat to us.

This committee needs the help of all Australians, but particularly the second level, state governments, to put forward a position by way of written evidence. I stress that I do not think you should look only at the big deal or the big ticket items. Bill made the point that we have dealt with over 60 treaties so far, but outside the southern bluefin tuna treaty we have not had one response from a state government.

Senator COONEY - In large part the answer to the question depends upon the federal government in two ways. First of all is the signing off by the federal government, and it can do that despite the states, which is the sort of thing Bill was talking about. The second thing is if it does sign off and the federal Parliament passes laws on the basis of those treaties, which is the sort of thing we had with the Franklin dam, among other things. The point you make is not a bad one, Leonie. The federal government is not nearly as honourable as the state government, unfortunately.

Committee adjourned.

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