FEDERAL-STATE RELATIONS COMMITTEE
Inquiry into overlap and duplication of
roles and responsibilities
Minutes of evidence
Canberra - 28 May 1998
Sub-Committee Members
| Mr G. B. Ashman | Mr B. T. Pullen |
| Mr M. John | Ms W. I. Smith |
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
THE HON BILL TAYLOR MP - That's why the federal-state relationship criteria is spelt out in tax reform and the five points is so important. In terms of real tax reform, and I don't want to get into party political arguments here on that other than to say that I think unless we can get the states and the commonwealth as one on some of these things and the left hand doesn't know what the right hand is doing then it's counter productive.
THE HON MICHAEL JOHN MP - Absolutely. We think that will be a valuable role for us to play and we have done a fair bit of work in the housing and health as separate issues too, although to some extent it reached a few dead ends in both those areas. I am interested in your comments about the reaction or submissions that might have come from the Victorian government on some of your references. Do you get many comments from our government?
THE HON BILL TAYLOR MP - Yes, absolutely. It is interesting Jeff Kennett has personally written a letter. I write to all Premiers and chief ministers on lots of issues. A lot of those come back from principal private secretaries or whatever, but I have to say that Victoria with Queensland and in fact Western Australia, and in fact in recent times we've had most of the Premiers coming back themselves. I think this committee is starting to get through, right through the country.
THE HON MICHAEL JOHN MP - Yes, I am quite certain of that. That's certainly come through to our committee
THE HON BILL TAYLOR MP - And certainly as far as Kennett is concerned, he signed the one on intercountry adoption didn't he.
THE HON MICHAEL JOHN MP - Yes..
THE HON BILL TAYLOR MP - MAI which is a very informative piece of paper which as I say, without getting into detail, we will feature on Monday. Have you seen a copy of that?
THE HON MICHAEL JOHN MP - Is that the one we did through the Parliament or was (inaudible)
THE HON WENDY SMITH MLC - No, we haven't seen it.
THE HON BILL TAYLOR MP - We of course have seen your MAI submission. On that one we've had 800 submissions, 400 form letters and the 400 form letters would vary between say league of rights and some of these church groups that put in a particular comment mainly about sovereignty and all that sort of stuff. We've listed those but we haven't accepted those as formal submissions, but besides those there are 800 written submissions and the longer it goes the more informed, I would have to say, the comments that are coming to us are, and that's why it's important that we don't do anything too quickly.
THE HON WENDY SMITH MLC - Can I just ask at this point what the feeling of our report was and will you see it being extended federally.
THE HON BILL TAYLOR MP - I think as we indicated at that first meeting is that we think Victoria has taken a step in the right direction in trying to establish this, whether it be in the broad federal-state relationship area or even more specifically in terms of the treaty making. I know you weren't successful there and I understand what the Victorian government is saying that you've got priorities and that sort of thing. To answer your question I think it's a great step in the right direction. I wish other states were picking it up.
THE HON WENDY SMITH MLC - What did you think of the recommendations in the report?
THE HON BILL TAYLOR MP - It would be a bit difficult for me to answer that when I'm not in the Victorian setting. Our newest member is not here at the moment but Bob Halderson? was in yesterday, being brought into the committee as the result of Tony Smith's resignation from Queensland. Barney, do you have a Victorian perspective on that. You've seen what was recommended to the Victorian government and you've seen the response. Do you have any comments?
SENATOR BARNEY COONEY - First of all it's a single state that's brought this out and I think that will form the basis for the processes from here on, so I think we have to keep discussing it. It would be nice to something from some other state to see it get perspective (inaudible).
THE HON MICHAEL JOHN MP- When I was in Western Australia about three months ago I had discussions with a couple of people over there and I've forgotten the name of the committee. (Inaudible) can you remember the name of the committee?
MS LILIAN TOPIC - Mutual recognition..
SENATOR BARNEY COONEY - There's a move around Australia to get rid of all this national legislation, say on censorship (inaudible) template legislation and there has been a lot of work done and the states have got together on that and written off to (inaudible). I think what might be spoken about there is that this is a cousin at least to that sort of process in the states (inaudible) right around Australia where mass writing of the treaties can be discussed and I think that might have been what they were talking about.
THE HON MICHAEL JOHN MP - Certainly we have tried to push that along. Everything we've been doing in this area we have communicated with the other state parliaments and in a couple of instances we have seen MPs from other state parliaments probably in every state.
THE HON BILL TAYLOR MP - I think other committees which have some kind of part interest like the scrutiny of acts committees or legalistic type of committees have been making contact with us because they see it as partly falling within their area but there isn't anybody who has the terms of reference like yours or ours to actually track these issues they are extras for them. I think if there was a bit of encouragement, and I think you are actually in a stronger position than we are.
THE HON MICHAEL JOHN MP - Where would that be done through, COAG or through the treaties council.
THE HON BARRY PULLEN MLC - We are talking about dialogue between parliaments rather than executives. I think it's a different type of dialogue that is being established here, which I think is important because it can be to a degree bipartisan. There are always going to be issues on party lines but I think a whole lot of stuff can be done in parliamentary committees on a bipartisan or on a basis where you get very close to handling it on the basis of the evidence and the submissions. I think that type of dialogue is important and I think your committee is in a position to say some positive things and encourage that type of dialogue.
THE HON BILL TAYLOR MP - I'm very happy to take that one up with other parliaments and write off from the treaties committee and say that this has been a meaningful process experience for Victoria.
THE HON MICHAEL JOHN MP - Your committee has got the credibility. You were pointing out earlier on, you were both making comments along the lines of what was the reputation of the committee and that it's getting some status, so I think that you would have a lot of sway if it came from your committee.
THE HON BILL TAYLOR MP - Our reaction for the recommendations we thought they were very reasonable but we sit back as a treaties committee. I know the Victorian government has to take a wider perspective and they've asked some valid questions about what specifically you would mean by in the tabling process and all that sort stuff and that's what I mean. I think it's a Victorian thing.
THE HON DICK ADAMS MP - There's a border issue here that people wanted to have this committee in place (inaudible) and that broader view of treaties (inaudible) and having a parliamentary committee but in the state where we are already seeing that as not being so. Is there some feeling that (inaudible) bureaucracy or that the government of the day - -
THE HON BILL TAYLOR MP - Well I think there is still some concern being in this committee about the SCOT? processes - the standing committee on treaties which is the bureaucratic level of discussion and that's a bit variable depending on what treaties we deal with and that needs to be improved at the commonwealth level and the MAI and I have to say that Monday we will be critical of the number of commonwealth departments, quite strongly critical. And so, they can't just sit back and slug shoulders on this. It is pretty clear from what Jeff Kennett said in his submission which has been reflected in others too that the dialogue has not taken place government to government. Perhaps one way of correcting it as you suggest is to take it to the parliamentary level and do something about it. We will have a look at that.
SENATOR BARNEY COONEY - If we could get a letter signed by you Bill and Rob, you and Michael and Barry so you're the one committee in operation (inaudible) and we sort of endorse what you're doing. If there could be a common letter that the four of you signed so that it would cover both sides of the political fence and send it out, but I am just trying to work out who to send it to .
THE HON BILL TAYLOR MP - I think we could do it unilaterally as a committee and just draw on the federal-state relationship with Victoria and just say, look these are the sort of things we have got a fair amount of mileage in terms of the treaty making processes which other parliaments might like to share.
SENATOR BARNEY COONEY - The problem is to whom to send it.
THE HON BILL TAYLOR MP - I would have no difficulty in sending it to Premiers and chief ministers.
THE HON WENDY SMITH MLC - I see it as a federal issue, certainly not our issue to pick up (inaudible) but certainly to Premiers.
SENATOR BARNEY COONEY - The only problem we had with what Barry was mentioning the scrutiny of bills and scrutiny of regulations and ordinances is we sent letters off to COAG you don't get much of a return. The old executive says, oh, we'll talk about this in the year 2050, that's the only problem.
THE HON BILL TAYLOR MP - The treaty council has only met once and as you know it's an adjunct to COAG but it has only formally met once and that meeting I think was 15 minutes on the agenda. That is an issue that we need to take up with the Prime Minister as chairman of the treaties council but I have no difficulty and if the committee agrees then we can have discussions about this later, but I have no difficulty in raising it at Premier level as part of this committee process. In terms of the tabling of it the only comment I make is that criticism of commonwealth departments is sub judice until Monday.
We have representation in this committee from every state except Western Australia. To go off to Premiers and chief ministers we would have the appropriate state representation to also apply some pressure at the state level and I'm happy to do that. As a result of discussions today we will look at that as a committee and then do something and we'll let you know what the follow up is.
THE HON MICHAEL JOHN MP - It may be that some of the other states may not wish to establish a new committee but simply to extend the parameters of an existing committee so that it wouldn't necessarily involve more bureaucracy or cumbersome administrative structure. It could be done within those parameters. The fact our Premier despite some of the things that were not taken up in our treaties report, has been starting to table material in the Parliament on treaty matters, so we'll be getting a report on that. Barry do you have some specific page that you wanted to read.
THE HON BARRY PULLEN MLC - I am interested in your comments on the MAI because we had some difficulty in how to enter into that because it didn't fit within our terms of reference but the fact that you were embarking on I think two inquiries gave us the leverage to see a way in which we could present a point of view but not in a robust way. We didn't see ourselves in the position of doing of actually doing the normal thing of taking evidence from people and getting the submissions you have as (inaudible) so, as you saw it was fairly carefully worded an extension of what we've said before. I think it's an issue that's got legs and it'll go on and I suppose that if I'm correct your second terms of reference does take into account the reaction of the state and local government.
THE HON BILL TAYLOR MP - Let me just go back on that. As we discussed at the last meeting our function lies after the first signature, in general terms after the first signature before the ratifying signature and we have reviewed over 100 bilateral multilateral treaties conventions protocols on that basis since we were formed. But on top of that we have got this under this standing joint resolution we can look at (inaudible) treaties and hence the CROC? - the Conventional Rights of Child Abuse? But on top of that what has happened only in the last few months is that we have had two references by ministers, one from Amanda Vanstone in terms of the intercountry adoption before her signature but with draft legislation and we think that's a great step forward and we will report on that as I indicated earlier fairly shortly and in a matter of weeks. We have also got as you indicate in terms of MAI a ministerial reference from Alexander Downer to this committee but on top of that, even though he doesn't have prime responsibility, the Treasurer does, but on top of that we have a resolution from the Senate which was put to us. What we have done is put the two together. And in one said report the Senate said quite unrealistically report by the 25 May on the whole thing. Downer's reference said interim report by the 25 May, and we've put the two together and we've made comments accordingly and drawn on some of the comments from individuals from Premiers like Jeff Kennett in the interim report. Again, without going into detail the text keeps on changing as result our reservations or exemptions or preliminary exemptions will continue to change. In fact, you could argue that in many ways the preliminary exemptions are just as large and substantial as the document, so there's a lot of water to flow under the bridge yet Rod Kemp indicated that we would not sign unless it was in the national interest. I don't think anybody would see it as being in the national interest at this point in time simply because we don't have enough information whether it be at the state level, state and territory level, or even at the commonwealth departmental level. We have had a couple of commonwealth departments who have been reluctant to make a submission, a written submission, and yet they have a major policy function in terms of investment. We can't quite understand that.
THE HON WENDY SMITH MLC - Depends what departments they are.
THE HON BILL TAYLOR MP - I'm not going to specify what they are, you will see that on Monday.
SENATOR ERIC ABETZ - Make the comment that I appreciated the submission on the MAI and I would think that if there was more of that it would be great assistance up here but as I observed what's happened especially in the past with treaties is that the federal government might write to a Premier's office, the Premier's office isn't interested but that's been the consultation or the federal government writes let's say with a convention on the rights of a child this won't affect any aspect of state legislation, everything's okay, don't worry about it, so the state government says, it won't affect us and gives it the big tick only to find out a decade later that in fact it has a huge impact and more importantly it may clothe? the federal Parliament with an extra area of jurisdiction and with the MAI I asked, I think (inaudible) whether they had done an analysis of how it would impact on federal-state relations and none of them could provide an answer as to that and if they didn't do it for something as wide-ranging as the MAI what's the bet they don't really do it for any other of the treaties as well. If you could somehow convince your Premier that in the letters the state government gets in relation to treaties that it comes to you people for close examination for the federal-state relations I think that would be of great assistance then ultimately back to us because then we can say, well you know the legal advice from Victoria is that it will have this federal implication with a head of power and we could actually challenge our bureaucracy up here to in fact deal with it on a serious basis.
THE HON BARRY PULLEN MLC - You've really hit on the point that we had to try and focus on how we could actually get some material before you which we thought was of interest in terms of not so much just a national interest but the question about how the states' interests are preserved or protected in the signing of treaty as wide-ranging as MAI. But we covered this early submission after advice from the Clerks by tabling it in Parliament so that it was a submission to our Parliament for advice that we make a submission to you because we really didn't have a protocol of how a state committee could make a direct submission to a federal committee which didn't go through our own Parliament.
THE HON BILL TAYLOR MP - But administratively it would have helped Michael if in fact on each occasion with Victoria that we wrote to the Premier if the Secretary had sent Lillian a drop copy of the reference letter and I'm happy to do that. I think if we do that it will give you a head start and some of them will be of no interest to you whatsoever. For example, we are dealing with one on Monday morning ILO9? - International Labour Organisation No. 9 which we are getting the ACTU and the MUA etc in on that, but it will be interesting to see what we get in terms of the state level on ILO9, for example. Again, you have to depend on the judgment of this committee to a certain extent because we may not write on everything but we will advertise and they will always be in the Age or the weekend Australian and you need to look out for some of those in terms of straight advertisement. I invite comment from Premier Kennett and we'll send you a drop copy of the letter.
SENATOR ERIC ABETZ - Do you think it would even be worth just sending them a copy of the advertisement.
THE HON BILL TAYLOR MP - We could do that.
SENATOR ERIC ABETZ - That way at least there has been mechanism? from this committee to yours.
Chit chat .......
THE HON MICHAEL JOHN MP - Taking up your point Senator that when it hits Victoria the information goes to a specific officer in the Premier's department and although that person is a well trained lawyer and an intelligent person he can't possibly have the breadth of experience to be able to compare ILO, with children's rights, with adoption, environment laws, the breadth of what you do with this so vast that as you have indicated, that just a couple of people can't possibly be expected to be responsible to give you the answers that you want and so that is certainly our first goal to get it all on the table, all in the Parliament.
THE HON WENDY SMITH MLC - I just to wanted to ..... where you see all this going. I can see that you're after consultation and I think it's obviously important to talk to other states and get a package together but where do you foresee all this going eventually with treaties. We have obviously expressed an interest that our Parliament should be involved and I wouldn't be surprised if down the track we take, over time, much more interest in treaties being tabled in Parliament. I think often new ideas take a while to sink in through the processes which doesn't surprise me if we do come to that situation. Do you have a time frame in your mind. Do you have an idea of where you see this going. You obviously support the idea I suspect, to some extent.
THE HON BILL TAYLOR MP - Parliament and politics is all about people and we want to involve people in this whole process, so it is not only just parliaments like Victoria but it's Victorian people. What the federal government wants to do is to get the community involved, to get away from the criticism that has been levelled justifiably in the past. In terms of time scale we are working at it and we are getting better. In the consultative process, even at the federal level, is gradually improving. This treaty-making process is now up to be reviewed. The government said they would review it at the two year point but because of other priorities it hasn't been done yet. My personal view is that what is there at the moment is not a bad start and you can argue, do we need our own legislation, that's an argument, but I think so far it seems to have worked pretty well, the 15 sitting day rule is that appropriate, all sort of things like that which then govern the answer to your question as to how quickly you can get to the optimum situation.
SENATOR ERIC ABETZ - I think we'd need a long way prior to this committee being set up be it a federal Liberal government or a federal Labor government basically the view was it was an executive function and the executive decides. And I was on the Senate committee, the Legal and Constitutional Committee which brought down the report ...... treaty where in discussing it we got, possibly I would have been a bit more rigorous on the federalist line, but that aside we were able to sign a unanimous report Labor, Liberal and Democrat and that then moved to the joint standing committee on treaties after 1996. I don't know if any of the Labor people would wish to venture a view, but I would doubt, if there were a change in government that the Labor Party would abolish the joint standing committee on treaties.
MR ROBERT McCLELLAND MP - I would think that's a matter for policy but from my point of view I think this consultative process gives us efficacy to the whole treaty-making process and validity I think it takes away the argument of those in the community who would otherwise want to be isolationists saying ...... an international plot to take over our Sovereignty ..... and for the community to be involved, so I see it as a positive - -
SENATOR ERIC ABETZ - I think it's that part of our culture in Canberra? to head this system and I would doubt that it would change no matter who was in the government, so I think that's very important and has the educative role and we have in fact recommended that Kazakhstan? which in fairness, but for this committee's examination of it, I am sure it would have gone ahead (inaudible) and recommendation the minister would have signed.
THE HON ROBERT McCLELLAND MP - Part of the problem as Senator Abetz has said is the frustration on the very ability of states responding to our invitations to participate and they can hardly complain after the event if they haven't participated and we've given then that opportunity, so I think this discussion is worthwhile and we could give them a bit of a prod and say, look you should look at something like the Victorian model to hone in your opportunity to participate.
MR GARY HARDGRAVE MP - The other thing is that any assistance that your committee and members of the Victorian Parliament can give to the realisation of the Joint Standing Committee on Treaties is this would help the matter as well because it's probably just a Queensland thing but in my state you still get letters from people who are plugged in I thought into a society writing to us and saying how disgraceful it is that this MAI is being signed with no consultation with anybody and the government and the executives are still doing this. The chairman alluded to the bureaucrats being difficult but a lot of it has to do with the fact that they've never had to face the Joint Standing Committee on Treaties.
THE HON BILL TAYLOR MP - It's also an opportunity for the Hansonites and I know Pauline Hanson who says very little that is factual, an opportunity to get into the dark shadowy figures and the darkened corridors of the OECD in Paris negotiating secretly without even governments involved - it's bureaucrats who are involved in all of this and so the bottom line is the whole process has got to be open but people have got to perceive it as being open.
SENATOR ERIC ABETZ - And also I think it's vitally important that with those treaties that could impact on federal-state power sharing that there be a full and proper understanding by the state government and that there be a rigorous examination and I've often asked for the national interest analysis that we get from the department that they put in there how it might impact on federal-state relations so that in 5 or 10 years time we can go back to them and say, well it has had an impact when you said it wouldn't have an impact and try to put some .......?. I am a federalist but if it makes good sense to transfer a certain power to the commonwealth through the external affairs power then fine but let's make the process transparent so everybody knows what's happening and let's not do it by stealth and that was basically the heading of our legal and constitutional senate committee trick or treaty. It wasn't to try to trick people and get more power for the commonwealth and if it's all transparent and people know what we are doing and the body politic is agreeable then that's what a democracy is all about.
THE HON BILL TAYLOR MP - The NIA processes at the moment are not infallible and to just give you an example and I can't remember whether we mentioned this to you last time or whether the report was after we met with you but we had a ...... taxation agreement with Vietnam and they are quite complicated in themselves, but when we got the NIA, the NIA said pull some consultation on the whole process. It might have been done through the SCOT? processes but the CPAs hadn't even consulted us and so the Deputy Commissioner of Taxation was a little ante? with us when we invited him to go around ....... in terms of another hearing to substantiate. As a result of that we've now got a group set up within treasury to make sure the appropriate consultation takes place with the NGOs?.
SENATOR ERIC ABETZ - The CPA is bringing in certified practising accountants.
THE HON BILL TAYLOR MP - The whole peak body have not been consulted.
MR GARY HARDGRAVE MP - That report is worth reading because we have had some very diplomatic language to give this guy? a dose of salt?.
THE HON BILL TAYLOR MP - ...... children cooperation adoption, we've got the response from Victoria on that. Pronunciation? of ILO9, we have nothing on that. This week will be the mutual recognition conformity and that is one that I think we will put on the back burner. The .... landmines won't worry you, the CTBT? won't worry you, general agreement on trade and services as a state implication, a couple of environmental ones which might, and in fact (inaudible). Films production with Ireland, IPPA? with Pakistan, probably not, too much. Social Security ...... with New Zealand and (inaudible). There are a couple of there that could very well have a Victorian state dimension.
THE HON MICHAEL JOHN MP - That last one that you read from Bill indicates the breadth of what you are doing and how we really can't trust it to one person in our bureaucracy to be handling it.
THE HON BARRY PULLEN MLC - You are tabling your interim report on MAI. Have you at this stage considered what the next steps will be.
THE HON BILL TAYLOR MP - Yes, we have recommended (inaudible) we will continue with our inquiry. In fact, we are planning at this stage, depending on the longevity of the Parliament, we are intending to have the first hearing in Melbourne on 6 July and that will be the first state one that we have done. Because of the input to the MAI we gave people to the 30 April which was about six or seven weeks leave time for people to put it in but then we of course had to make this report as close as possible to 25 May and I've told Mr Downer? that it will be next week rather than this week because of the sitting patterns and that often happens, but it has all been done on the basis of written submissions and a preliminary hearing which was held with the lead departments, Treasury and DEFAT?, on 6 May. It was clear cut as far as the committee was concerned on what we had to say.
THE HON BARRY PULLEN MLC - So you're more now to being down to the Senate part of the reference.
THE HON BILL TAYLOR MP - Bear in mind that the whole MAI negotiation at the OECD? level has been deferred by six months ..... in October and the next ministerial OEC ministerial meeting is not until April/May 1999, so my personal view is that I won't be around because I'm not coming back next Parliament but I suspect that you will not see too much movement in the camp probably until the next Parliament.
THE HON WENDY SMITH MLC - Have you seen any countries suggest that they will not sign it.
THE HON BILL TAYLOR MP - The MAI?
THE HON WENDY SMITH MLC - Yes.
THE HON BILL TAYLOR MP - Lots, yes. The United States and France, for example, France very much on cultural grounds, Canada on cultural grounds ...... more to it than that. The United States has an organic problem with treaty-making anyhow because they require two-thirds majority in the senate and sorts of things.
THE HON BILL TAYLOR MP - ........ which is the ........ Cuban is a problem.
THE HON WENDY SMITH MLC - And major other European outside of France.
THE HON BILL TAYLOR MP - Well, the United Kingdom has got some reservations. The thing that this committee doesn't have because it's confidential within the OECD, we don't yet have access to the exemptions of other countries and how can we decide on something if we don't have full access to the documentation as to what others are saying but that's not releasable at this stage and that's something on which we've quieted?. Canada is on cultural grounds, France on cultural grounds although with the French it is always something other than what they say and the United States it's just a basic disagreement (inaudible).
Committee adjourned.
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