FEDERAL-STATE RELATIONS COMMITTEE
Report on
1.0 This Chapter explains the relationship between Australia's treaties and Australian law, and how the Commonwealth is able to use its treaty making and legislative powers to override State legislation in ways which upset Australia's democratically determined federal balance.
1.1 It is a fact of international life that countries must deal with one another. International agreements - treaties - are the means whereby two or more countries create and express obligations to one another, and grant one another rights. They can also be used by countries to promise one another that they will act in certain ways, subject to internationally agreed goals, standards and rules.
1.2 Treaties are binding at international law.1 But it is a further question whether or not the text of a treaty has legal force in the domestic law of a country which is a party to it. In some countries, ratified treaties automatically attain domestic legal status.2 In Australia, however, this is not the case. If they are to significantly effect Australian law, most treaties must be implemented through normal Australian parliamentary and governmental means.
1.3 The general rule in Australia is that, if a treaty is to actually create binding domestic law, it must be implemented by Australian legislation which makes the obligations created by the treaty part of Australian law.3 This is true not just for treaties, but also for customary international law.4
1.4 This general rule does not apply to all treaties. Treaties which essentially concern relations with foreign governments - for instance, treaties of alliance, treaties relating to war and peace, agreements concerning the exchange of diplomatic representatives, and arrangements for the return of fugitives from foreign countries - are the principal exceptions.5 But a treaty which "calls for action affecting powers and relationships governed by the domestic legal order" - such as a treaty dealing with human rights or environmental protection - will require legislation to make its requirements binding in Australian law.6
1.5 In the absence of such legislation Australia's international legal obligations, including her treaty obligations, which concern Australia's domestic legal order, will have only a limited legal effect within Australia: when developing the common law, the courts may pay attention to treaties to which Australia is a party, as well as to the rules of customary international law;7 and when interpreting ambiguous legislation, the courts will prefer interpretations which are consistent with the intentions of treaties to which Australia is a party, because "Parliament is presumed to have 'intended to legislate in conformity' with the nation's treaty obligations".8 One slightly complicated exception to this rule is the Teoh decision,9 which will be discussed in Appendix 2.10
Finding 1:
Australia's treaty obligations which concern the domestic legal order require legislative implementation to have any significant legal effect within Australia.
1.6 Both international law and diplomacy dictate that the subjects of international relations are to be sovereign nations, and to be represented in the international arena by a national government. In the case of Australia, this is the Commonwealth Government.11
1.7 At the time of Federation the Australian colonies had only very limited power over foreign relations and entry into treaties. Treaty negotiation was the sole province of the Imperial Government, but the self-governing colonies had the right to determine their own adherence to commercial (not political) treaties negotiated by the Imperial Government.12
1.8 Early drafts of the Commonwealth Constitution gave power to the Commonwealth in respect of treaties. The British Government expressed concern that these provisions might give the Commonwealth the power to enter treaties outside the Imperial framework of the day. Therefore these references to treaties were removed. 13 The Constitution still contains no explicit reference to any power to make and implement treaties.
1.9 The power of Australia to enter into treaties in its own right evolved over the first few decades of Federation,14 culminating in Australia's adoption of the Statute of Westminster in 194215 and its signature of the United Nations Charter in 1945.
1.10 The power to make a treaty in Australia is an executive function of the Commonwealth, falling within section 61 of the Constitution.16 There is no Constitutional requirement for any parliament to be consulted or even informed of Australia's entry into a treaty. This makes it clear why treaties which have not been legislatively implemented have such a small domestic legal effect. Were treaties to become law without legislative implementation, the executive would be able to make laws for Australia without any parliamentary involvement.17
1.11 As the Australian States did not gain any new powers with Federation,18 they still have no power to enter into treaties.19 Section 2 (2) of the Australia Act 1986 explicitly states:
It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.
Whatever agreements States and Territories enter with other countries are not treaties. They are either ordinary contracts, or non-binding political agreements.20
Finding 2:
The Commonwealth Government is the only Australian government with the power to make treaties.
1.12 Although the Australian States have no power to make treaties, in many cases they have the power to make Australia's treaty obligations part of Australian law.21 Each State Constitution grants that State's Parliament a plenary power to legislate for that State. This includes, therefore, the power to legislate so that the law in a State conforms with Australia's treaty obligations.
1.13 Indeed, in a case where the implementation of Australia's obligations under a treaty requires the passage of legislation to alter the domestic legal order, and in which the treaty deals with a subject matter over which the Commonwealth Parliament has no constitutional right to legislate, it might appear that State legislation making the provisions of a treaty law is necessary, if Australian law is to be brought into line with Australia's treaty obligations. If the Commonwealth Government, having entered into such a treaty, wishes to ensure that Australia is meeting its international legal obligations, it might appear that the Commonwealth is obliged to negotiate with the States, to ensure that State laws comply with the treaty.22
1.14 However, this is not the case. Section 51 (xxix) of the Constitution reads
The [Commonwealth] Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to . . . External affairs.
A series of High Court judgements interpreting this section has held that the section gives the Commonwealth Parliament extensive power to implement treaties through legislation, even to the extent of overriding State laws. Chapter 5 of Trick or Treaty?, a report by the Senate Legal and Constitutional References Committee, includes an excellent account of these judicial developments.23 This Chapter will outline these developments focusing on the consequences for the States of these High Court decisions. Chapter Two will look at four cases in greater detail.
1.15 Before 1920, the High Court had largely interpreted the Constitution as containing certain implied limitations on Commonwealth power. These limitations were expressed in the twin doctrines of the immunity of instrumentalities and the reserved powers of the States. The Engineers' case24, however, held that the full effect should be given to the words of any Commonwealth power.25 In this spirit, the High Court has consistently interpreted section 51 (xxix) as a power to legislate in the area of international matters affecting Australia. In the Koowarta26 and Tasmanian Dam27 cases, the Court made it clear that Australia's international legal obligations constitute an international matter affecting Australia. Therefore, the Commonwealth Parliament has the right to legislate in respect of them, and this includes the right to pass legislation which makes treaty obligations part of Australia's domestic law.
1.16 Importantly, if such Commonwealth legislation conflicts with any State law, section 109 of the Constitution provides that the Commonwealth law prevails:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
This gives the Commonwealth the ability to use treaty implementation as a way of overriding State legislation.
1.17 For inconsistency between State and Commonwealth laws to exist, it is not necessary that the laws actually be in conflict.28 It is sufficient that the Commonwealth laws manifest an intention by the Commonwealth Parliament to "cover the field" with regard to a particular matter.29 If such an intention is manifest, whether explicitly or implicitly, any State laws purporting to deal with the matter will be invalid.
1.18 This has significant ramifications for the States. It is not sufficient, in order for a regime of State law to be immune from Commonwealth interference under the external affairs power, that a State's law comply with Australia's international legal obligations. Even if it does, the Commonwealth can displace it by legislating to implement a treaty, with a manifest intention to "cover the field" as far as the treaty's subject matter is concerned.
1.19 This possibility is not merely hypothetical. In the cases of Viskauskas v Niland30 and The University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally31, the High Court found that victims of racial discrimination in New South Wales could not seek redress by way of the provisions of the New South Wales Anti-Discrimination Act 1977. The Commonwealth Racial Discrimination Act 1975, in implementing the International Convention on the Elimination of all Forms of Racial Discrimination, manifested an intention by the Commonwealth to cover the field of protection from racial discrimination.32 This rendered the New South Wales laws invalid, even though, as the Court acknowledged, it was possible to "obey both laws by refraining from committing any act of racial discrimination. "33
1.20 The Commonwealth's twin powers, of making treaties, and of using treaty obligations as the basis for legislation under the external affairs power, are very significant. Once the Commonwealth Government has entered into a treaty, the external affairs power enables the Commonwealth Parliament to make the obligations created by that treaty part of Australian law, even to the extent of overriding existing State laws, and even if a State's laws are consistent with Australia's treaty obligations. Thus a decision by the Commonwealth to enter into a treaty has an indirect but immediate impact upon the scope of State activity, and cases such as the Tasmanian Dam case show how this impact has the potential to become direct. The use of the external affairs power has fundamentally affected the Australian federal system.
Finding 3:
State Parliaments have the power to legislate to implement Australia's treaty obligations, in so far as these concern domestic matters normally the subject of State legislation. The Commonwealth also has the power to legislate to implement treaty obligations, whatever the subject matter of a treaty. As Commonwealth legislation on a subject matter prevails over State legislation, treaties give the Commonwealth the power to override State laws in areas of traditional State activity, even where those laws are in accord with treaty requirements.
1.21 The Commonwealth has not made a habit of using the external affairs power to override the States. In his evidence to the Senate Legal and Constitutional References Committee, Professor George Winterton said:
The reality is that a few causes celebres have raised the external affairs power to unwarranted prominence in Commonwealth-State relations,34
and in his evidence to this Committee, Professor Brian Galligan cautioned that
We need to make a firm distinction between what is formally possible under the. . . external affairs power and what is actually feasible for governments from time to time.35
1.22 In general, the Commonwealth prefers to rely on State legislation to meet treaty obligations, if the subject matter of the treaty would otherwise be outside the legislative competence of the Commonwealth Parliament,36 or if the States already have programs in place which meet Australia's treaty obligations.37 Indeed, the Commonwealth will even permit the States to persist with legislation which is inconsistent with Commonwealth legislation (by adding "roll-back" clauses to the Commonwealth legislation), provided that it meets the treaty requirements in question.38 It is only rarely that the external affairs power is used, or its use threatened, in order to overturn State legislation.39
1.23 Nevertheless, the fact remains that the Commonwealth has the power, and both the Commonwealth and the States know this.40 As Professor Galligan has noted, the threat of the use of the Commonwealth power is a powerful tool for the Commonwealth to use in its negotiations with the States.41
1.24 The Commonwealth justifies its use of the external affairs power by reference to its international legal obligations. For example, in its Submission to the Senate Legal and Constitutional References Committee, the Attorney-General's Department stated
If the States are unwilling to implement an obligation which the Commonwealth has assumed, or is about to assume, then the Commonwealth must either implement the obligations itself or not enter into, or withdraw from the obligation. The Commonwealth should not allow Australia to be placed in breach of its international obligations.42
But the very fact of the infrequent use of the external affairs power by the Commonwealth shows that this is not the only motive for Commonwealth activity under the external affairs power, and that the Commonwealth is motivated also by political considerations.
1.25 In his evidence to the Committee, Professor Peter Howell, Chair of the South Australian Constitutional Advisory Council, pointed out that
When Premier Bjelke-Petersen decided to approve the drilling for oil on the Great Barrier Reef, the conservationists were up in arms, just as they were with the damming of the Franklin River, but no federal government attempted to stop the drilling on the Great Barrier Reef. . . There is a strong political element to the use of the [external affairs] power.43
1.26 In her paper "Australia's Split Personality: Implementation of Human Rights Treaty Obligations in Australia", Professor Hilary Charlesworth criticises the Commonwealth for its selective approach to the implementation of international human rights standards.44 Professor Charlesworth made the same criticism in her evidence to the Senate Legal and Constitutional References Committee.45
1.27 Such selective use of its power to implement treaties suggests that the Commonwealth is not motivated only by its international legal obligations, but also by domestic political considerations. The Commonwealth is, in effect, arrogating to itself the power to determine policy over every matter dealt with in treaties to which Australia is a party.
1.28 Some State governments have protested against this encroachment of the Commonwealth into areas traditionally controlled by the States. This is well illustrated by the Tasmanian Government's Issues Paper, submitted to COAG in the wake of the Toonen case.46 The Tasmanian paper argues that: "The abuse of the external affairs power by the Commonwealth is causing significant damage to the nature of the federal relationship, and to the sovereignty of the states. "47
1.29 Others concerned with the role of the States in the Australian federation have expressed similar views. Boyce states that the Koowarta and the Tasmanian Dam cases "caused many old-style federalists to take fright, for judgement in each case hinged on the implications of the Commonwealth's treaty making power for its domestic jurisdiction in matters covered by treaties. "48
1.30 In his judgment in the Koowarta case, Justice Sir Ninian Stephen said
The real issue. . . is confined to the question whether this power to implement treaty obligations is subject to any and if so what overriding qualifications derived from the federal nature of our Constitution. . . The need for such qualifications is said to arise in this way. Whereas, read in isolation, par. (xxix) would seem to authorize legislation to give effect municipally to each and every international obligation which Australia may incur, yet Australia is a federation possessing a constitution which assigns carefully limited legislative power to the federal legislature, leaving the undefined residue of legislative competence to the States. The power of the federal Executive to conclude treaties upon any subject-matter it sees fit is undoubted. If it can thereby at will create such "external affairs" as it wishes and if par. (xxix) then confers power upon the federal legislature to legislate with respect to whatever external affair has thus been brought into being, this may place in jeopardy the federal character of our polity, the residuary legislative competence of the States being under threat of erosion and final extinction as a result of federal exercise of the power which par. (xxix) confers.49
1.31 In his dissenting judgments in the Koowarta and Tasmanian Dam cases, Chief Justice Sir Harry Gibbs expressed the same concern:
[I]f 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.50
The federal nature of the Constitution requires that some limits be imposed on the power to implement international obligations conferred by [section 51 (xxix]. . . there is almost no aspect of life which under modern conditions may not be the subject of an international agreement, and therefore the possible subject of Commonwealth legislative power. Whether Australia enters into any particular international agreement is entirely a matter for decision by the Executive. The division of powers between the Commonwealth and the States which the Constitution effects could be rendered quite meaningless if the Federal Government could, by entering into treaties with foreign governments on matters of domestic concern, enlarge the legislative powers of the parliament so that they embraced literally all fields of activity. This result could follow even though all the treaties were entered into in good faith, ie, not solely as a device for the purpose of attracting legislative power. Section 51 (xxix) should be given a construction that will, so far as possible, avoid the consequence that the federal balance of the Constitution can be destroyed at the will of the Executive.51
1.32 Sir Ninian Stephen has criticised the power of the executive in Australia to sign and ratify treaties, calling it a
democratic deficit... in the case of Westminster-type governments because with them the process of treaty-making is a purely executive act.52
As his judgment, and the judgments of the former Chief Justice, both make clear, there is another form taken by this democratic deficit in Australia. Australia is a federal system, with a constitutionally mandated distribution of powers between the Commonwealth and the States. Section 128 of the Constitution provides that only the voters of Australia can alter that distribution of power. And by making the passage of a referendum contingent on the support of a majority of States along with a majority of voters, section 128 reserves the right of constitutional amendment not simply to Australian voters, but to Australian voters in their capacities as the citizens of States. The current situation of treaty-making in Australia undermines these constitutional arrangements. The Commonwealth Parliament's external affairs power means that international treaties "[give] the Commonwealth an 'interest' in policy areas hitherto reserved as state domains under the Constitution. "53 Simply by entering into a treaty, the Commonwealth Government can give the Commonwealth Parliament what is in effect a new head of legislative power.54
Finding 4:
By entering into treaties dealing with matters over which the Commonwealth would otherwise have no constitutional power to legislate, the Commonwealth Government can increase the scope of Commonwealth activity, at the expense of the States. This may alter Australia's federal balance without requiring recourse to the constitutionally mandated federal and democratic referendum process for achieving constitutional change.
1.33 It is clear that the framers of the Constitution intended the Commonwealth to have power to implement treaties. In 1902 Alfred Deakin wrote
Legislation with respect to the enforcement of treaty obligations is clearly within the scope of 'external affairs'.55
Nevertheless, many commentators have argued that the sorts of treaties that the framers of the constitution anticipated to require domestic implementation would have been treaties concerning such subjects as international trade and the extradition of criminals, which would not have dealt with matters internal to Australia, and so would not have had the potential to affect the activities of the States.56
1.34 The High Court has rejected this claim in its most recent decision dealing with these matters, pointing out that by the end of the nineteenth century, Britain had entered treaties dealing with human rights, public health and environmental protection.57 The Court quotes a 1905 textbook on international law:
Experience has shown that the different States have also many non-political interests in common which can better be satisfied by a general treaty between a great number of States than by special treaties singly concluded between the different parties. Such general treaties have, therefore, since the second half of the nineteenth century, more and more come into being, and it is certain that their number will in time increase.58
1.35 Whatever the intentions of the framers of the Constitution as to the formal scope of the external affairs power, the threat to Australian federalism that it creates has clearly been exacerbated by the rapid growth in the number of treaties to which Australia is party. The rate of Australia's entry into treaties has been constantly increasing since Federation. It has been estimated that Australia is currently party to around 850 bilateral and multilateral treaties.59
1.36 Treaties to which Australia is party cover the full gamut of policy areas: airport controls, sea zoning, international trade, extradition of criminals, the regulation of warfare, the protection of human rights and the environment, to name a handful. The wide range of treaties to which Australia is party enables the Commonwealth to legislate in the areas of industrial relations, health, education and potentially any other area that the States consider secure.
1.37 It is multi-lateral treaties which oblige Australia to institute domestic standards of some sort - principally human rights and environmental protection treaties - which provide the main opportunity for the Commonwealth to expand its legislative activity at the expense of the States. Consider the Koowarta, Tasmanian Dam and Toonen cases: these concerned the International Convention on the Elimination of all Forms of Racial Discrimination, the Convention for the Protection of the World Cultural and Natural Heritage and the International Covenant on Civil and Political Rights. The Convention on the Rights of the Child also has the potential to intrude into traditional areas of State control. It has already been used to question the Western Australian and Victorian Juvenile sentencing laws, and may be the foundation for a challenge to these laws. At the end of 1994 Australia was party to 59 such significant multi-lateral treaties.60
This graph shows the growth since Federation in the number of multi-lateral treaties to which Australia has become a party. The number of treaties to which Australia has become a party is not the same as the number of treaties to which Australia is currently a party; some treaties lapse, or are replaced by new agreements.
1.38 Australia's international relations are not going to go away. With increasing globalisation will come only an increased level of international treaty making. In his evidence to the Committee, the First Assistant Secretary of the Office of International Law in the Commonwealth Attorney-General's Department, Mr Bill Campbell, said
generally in international practice there is an increase in treaty making between countries, and that in itself will have an effect on the number of treaties Australia will enter.61
This growth in the number of treaties will continue to increase their significance for all Australian governments, and for Australia more generally. While the Commonwealth has principal responsibility for the conduct of Australia's foreign affairs, foreign affairs and domestic affairs have become increasingly intermingled. Treaties requiring Australia to implement domestic standards of human rights and environmental protection exemplify this phenomenon.
1.39 These treaties, which call on Australia to implement certain standards as part of its domestic law, have spawned two opposing lines of argument. It is sometimes put that there is a need for the Commonwealth, on ratifying such treaties, to meet Australia's newly created international obligations by undertaking extensive legislative action. In contraposition to this, it has been argued that a discussion of the merits of treaties - especially human rights treaties - is necessary, in order to resolve concerns about the erosion of State powers raised by the prospect of the implementation of such treaties.
1.40 The Committee takes the view that questioning the first line of argument does not mean accepting the second. It is not within the Committee's Terms of Reference to question the merits of international standards in such areas as human rights and environmental protection. Nor does the Committee wish to comment on the standards and principles to which Australia has pledged itself. What does concern the Committee is what might be called the 'federal democratic deficit' in the Australian process of treaty making and treaty implementation.
Finding 5:
It is the increasing number and scope of multi-lateral treaties dealing with domestic issues, such as environmental and human rights protection, which are fundamentally altering the federal balance in Australia.
1.41 Federal clauses are one formal device sometimes used to protect the constitutional integrity of federal nations which are party to treaties. An example is found in Article 34 of the Convention for the Protection of the World Cultural and Natural Heritage:
The following provisions shall apply to those States Parties to this Convention which have a federal or non-unitary constitutional system:
(a) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those States Parties which are not federal States;
(b) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of individual constituent States, countries, provinces or cantons that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States, countries, provinces or cantons of the said provisions, with its recommendation for their adoption.
However, in the case of a country such as Australia, in which the Commonwealth Parliament has full power to implement any treaty obligation, a clause such as this has no effect.62
1.42 Another sort of federal clause is found in Article 19 (7) of the Constitution of the International Labour Organisation (ILO):
In the case of a federal State, the following provisions shall apply:
(a) in respect of Conventions and Recommendations which the federal government regards as appropriate under its constitutional system for federal action, the obligations of the federal State shall be the same as those of Members which are not federal States;
(b) in respect of Conventions and Recommendations which the federal government regards as appropriate under its constitutional system in whole or in part, for action by the constituent states, provinces or cantons rather than for federal action, the federal government shall-
(i) make, in accordance with its Constitution and the Constitutions of the states, provinces or cantons concerned, effective arrangements for the reference of such Conventions and Recommendations not later than 18 months from the closing of the session of the Conference to the appropriate federal, state provincial or cantonal authorities for the enactment of legislation or other action;
(ii) arrange, subject to the concurrence of the state, provincial or cantonal governments concerned, for periodical consultations between the federal and the state, provincial or cantonal authorities with a view to promoting within the federal State co-ordinated action to give effect to the provisions of such Conventions and Recommendations;
(iii) inform the Director-General of the International Labour Office of the measures taken in accordance with this article to bring such Conventions and Recommendations before the appropriate federal state, provincial or cantonal authorities with particulars of the authorities regarded as appropriate and of the action taken by them;
(iv) in respect of each such Convention which it has not ratified report to the Director-General of the International Labour Office at appropriate intervals as requested by the Governing Body [of the ILO], the position of the law and practice of the federation and its constituent states, provinces or cantons in regard to the Convention, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement, or otherwise;
(v) in respect of each such Recommendation, report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body [of the ILO], the position of the law and practice of the federation and its constituent states provinces or cantons in regard to the Recommendation, showing the extent to which effect has been given, or is proposed to be given to the provisions of the Recommendation and such modifications of these provisions as have been found or may be found necessary in adopting or applying them.
A federal clause such as this is more relevant to Australia, as it leaves it up to the Commonwealth Government to determine what action under the treaty is appropriately undertaken by it and by the States. However, it still provides no legal protection to the States.63
1.43 Federal clauses have become increasingly unpopular in recent times,64 being seen by unitary countries as merely an attempt by federal countries to avoid their full treaty obligations. For this reason, it has been Australian policy since 1983 not to attempt to negotiate federal clauses.65
1.44 For those treaties which do not contain federal clauses, and which it has been thought require legislative implementation, it has in the past been Australia's practice on ratification to lodge a "federal reservation", stating that Australia's system of government allocates the power to implement the treaty to two levels of government.66 At the international level, this was believed to protect the Commonwealth from criticism for failing to meet its treaty obligations if State laws did not satisfy the treaty requirements. At the domestic level, this would appear to have given the States some measure of protection from being overridden by Commonwealth legislation. Commonwealth legislation implementing international obligations must reflect those obligations,67 and so would be constrained by Australia's reservations to a treaty.
1.45 This practice has been discontinued, however, because the apparent protection was in fact illusory. In purporting to express the limits of Commonwealth legislative capacity, a federal reservation of the sort just outlined takes as its premise that the Commonwealth does not have full constitutional capacity in its own right to implement the treaty. Given the extent of the external affairs power, this is a false premise.68 Moreover, these reservations had been the subject of international criticism.69
1.46 Australian practice is now to make a short "federal declaration" upon ratification of treaties where it is intended that the States will play a role in implementing the treaty.70 The sample declaration attached to the Principles and Procedures for Commonwealth-State Consultation on Treaties reads
Australia has a federal constitutional system in which legislative, executive and judicial powers are shared or distributed between the Commonwealth and the constituent states.
The treaty will be implemented throughout Australia by the Federal, State and Territory governments, according to their respective constitutional powers and arrangements concerning the exercise of these powers.71
A statement almost identical to this has been made with respect to Australia's ratification of the International Covenant on Civil and Political Rights.72 As arrangements concerning the use of legislative powers are entirely political, a statement such as this provides no protection to the States from incursions of Commonwealth power.73
1.47 Given the scope of the external affairs power, formal attempts to acknowledge that the subject matter of many treaties includes areas traditionally under the control of the States, in the form of federal clauses, federal reservations and federal statements do nothing to address the federal democratic deficit in Australia's treaty processes. They leave treaty making and treaty implementation as matters entirely in Commonwealth hands.
Finding 6:
The extent of the Commonwealth's power to legislatively implement treaties means that formal mechanisms, such as federal clauses, federal reservations and federal declarations offer no protection to the States from being overridden by the Commonwealth.
1.48 Both the Constitution and the realities of international relations give the Commonwealth Government the principal role of representing Australia to the world. But this ought not to be at the expense of the Australian federation. With increasing globalisation, and the consequent growth in the impact of international law on domestic affairs, the preservation of the federal balance decreed by the Constitution requires that the Commonwealth not simply pursue its own agenda. Rather, where the traditional activity of the States is concerned, the Commonwealth ought to be the medium through which the States interact with the international community.74
1.49 This means that the Governments and Parliaments of the States ought to have a role to play in implementing, as part of Australian law, those increasing number of treaty obligations which concern domestic matters in areas of traditional State activity. The implementation of Australia's international legal obligations ought not simply be an excuse for the dominance of Commonwealth over State policy.
1.50 Perhaps more importantly, if the subject matter of a proposed treaty is traditionally an area of State activity, then the States, who ought to have a crucial role in implementing that treaty, should also have a role to play in negotiating it. Such State involvement would respect the federal nature of Australian democracy.
1.51 Given the powers of treaty making and treaty implementation granted to the Commonwealth by the Constitution, these aims will not be achieved through formal, legal means. The Constitution on its own will not necessarily preserve Australia's federal balance. The States must actively engage with the Commonwealth's treaty processes, to try and influence them towards desired outcomes. Chapters 3, 4 and 5 will consider the extent to which this course has already been adopted, and ways in which it might be furthered. Without a greater role for the States, and a greater willingness to consult on the part of the Commonwealth, the present situation can lead only to a further erosion of the States' role in the federation.
Recommendation 1:
The Federal-State Relations Committee recommends that Victoria seek improvements in the consultative framework on treaty matters in the Australian federation. In keeping with this, Victoria should further develop its current procedures for consulting with the Commonwealth on treaty matters; should consider developing new procedures where current procedures are inadequate; and should encourage other States and the Commonwealth to do likewise.
1Vienna Convention on the Law of Treaties, Article 26. Australia became a party to this treaty establishing the law of treaties in 1974.
2See Appendix 3 for a discussion of treaty making and implementation in three other federations.
3Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (hereafter referred to as Teoh) at 286-7 (per Mason CJ and Deane J), 298 (per Toohey J), 304 (per Gaudron J), 315 (per McHugh J).
4I A Shearer, "The Relationship Between International Law and Domestic Law" in Brian Opeskin and Donald Rothwell, International Law and Australian Federalism, Melbourne University Press, forthcoming, pp 48-53. Customary international law, sometimes called "the law of nations", is that body of rules governing relations between countries which has developed over the centuries out of the practices of governments in conducting international relations. It stands in a relation to treaty law something like that in which Australia's common law stands to legislation.
5See Victoria v The Commonwealth (1996) 138 ALR 129 at 142-3; see also ibid, p 35.
6Victoria v The Commonwealth, above n 5 at 143.
7An example is the judgment of Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42.
8George Winterton, "Limits to the Use of the 'Treaty Power' " in Philip Alston and Madelaine Chiam, Treaty-Making and Australia: Globalisation versus Sovereignty?, Federation Press, Sydney, 1995, p 34; see also Teoh, above n 3 at 287 (per Mason CJ and Deane J), 315 (per McHugh J).
9Above n 3.
10See also Ryszard Piotrowicz, "Analysis: Unincorporated treaties in Australian Law", Public Law, Summer, 1996, pp 190-2.
11P Boyce, "International relations of federal states: responsibility and control" in Wood, Williams & Sharman (eds), Governing Federations: Constitution, Politics, Resources, Hale & Iremonger, Sydney, 1989, p 187; Minutes of Evidence, FSRC, June 30th 1997, p 585 (per Ms K Walker).
12Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Canberra, 1995, pp 46-7; Anne Twomey, "International Law and the Executive" in Brian Opeskin and Donald Rothwell, International Law and Australian Federalism, Melbourne University Press, forthcoming, p 70; Victoria v The Commonwealth, above n 5 at 138-9.
13Peter Durack, The External Affairs Power, The Federalism Project Issues Paper No 1, Institute of Public Affairs, 1994, p 1; Trick or Treaty?, above n 12, pp 52-7; Victoria v The Commonwealth, above n 5 at 143-4.
14Trick or Treaty?, above n 12, pp 48-51; Twomey, above n 12, pp 76-8; Victoria v The Commonwealth, above n 5 at 139.
15Statute of Westminster Adoption Act 1942 (Cth).
16In Victoria v The Commonwealth, the High Court endorsed the proposition that "The execution and maintenance of the Constitution [under s 61]. . . involves. . . the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane": above n 5 at 140, quoting Latham CJ in R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 644.
17Teoh, above n 3 at 287 (per Mason CJ and Deane J).
18Commonwealth Constitution, s 106; Minutes of Evidence, FSRC, June 30th 1997, p 585 (per Ms K Walker); Victoria v The Commonwealth (1971) 122 CLR 353 at 395-6 per Windeyer J.
19Minutes of Evidence, FSRC, June 30th 1997, p 578 (per Professor C Saunders), p 585 (per Ms K Walker), p 604 (per Mr W Campbell); Twomey, above n 12, p 79; Trick or Treaty?, above n 12, pp 202-4.
20Brian Opeskin, "International Law and Federal States" in Brian Opeskin and Donald Rothwell, International Law and Australian Federalism, Melbourne University Press, forthcoming, p 28 at n 48; Twomey, above n 12, p 79.
21See the submission made by the Western Australian Government to the Senate Legal and Constitutional References Committee's inquiry into the Commonwealth's treaty making power and the external affairs power: The Hon C Edwardes, MLA, Submission No 100, Vol 6, p 1266, cited in Trick or Treaty?, above n 12, p 204, para 13.6.
22This is the situation in Canada: see Appendix 3.
23Trick or Treaty?, above n 12, pp 63-75.
24Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
25Durack, above n 13, p 15.
26Koowarta v Bjelke-Peterson (1982) 153 CLR 168 (hereafter referred to as Koowarta). This case is discussed in Chapter Two.
27The Commonwealth v Tasmania (1983) 158 CLR 1 (hereafter referred to as the Tasmanian Dam case). This case is discussed in Chapter Two.
28Viskauskas v Niland (1983) 153 CLR 280 at 291.
29Ibid at 291-2.
30Ibid.
31(1984) 158 CLR 447.
32Viskauskas v Niland, above n 28 at 292.
33Ibid at 291.
34Submission No 89, Vol 5, p 1065, cited in Trick or Treaty?, above n 12, p 117, para 8.32.
35Minutes of Evidence, FSRC, June 30th 1997, p 595 (per Professor B Galligan).
36David Kinley, "The Implications of Executive Ratification of Treaties for Democratic Governance" in Philip Alston and Madelaine Chiam, Treaty-Making and Australia: Globalisation versus Sovereignty?, Federation Press, Sydney, 1995, p 64.
37Commonwealth Attorney-General's Department, Submission to the Inquiry by the Senate Reference Committee on Legal and Constitutional Affairs into the External Affairs Power, pp 13-14, para 50; Minutes of Evidence, FSRC, June 30th 1997, pp 606-7 (per Mr W Campbell).
38Information provided to David Kinley by Henry Burmester, of the Office of International Law in the Commonwealth Attorney-General's Department: Kinley, above n 36, p 64 at n 45. An example of a "roll-back" clause is that in the proposed "anti-Teoh" legislation: see Appendix 2.
39Kinley, above n 36, pp 54-5.
40Ibid; Durack, above n 13, pp 6-7.
41Brian Galligan and Ben Rimmer, "The Political Dimensions of International Law in Australia" in Brian Opeskin and Donald Rothwell, International Law and Australian Federalism, Melbourne University Press, forthcoming, pp 314, 319.
42Commonwealth Attorney-General's Department, above n 37, p 13, para 48.
43Minutes of Evidence, FSRC, July 3rd 1997, p 668 (per Professor P Howell).
44Hilary Charlesworth, "Australia's Split Personality: Implementation of Human Rights Treaty Obligations in Australia" in Philip Alston and Madelaine Chiam, Treaty-Making and Australia: Globalisation versus Sovereignty?, Federation Press, Sydney, 1995.
45Hansard, Senate Legal and Constitutional References Committee, July 25th 1995, p 823, cited in Trick or Treaty?, above n 12, p 182, para 11.26.
46Tasmanian Government, Commonwealth External Affairs Power: Treaties and their Impact on Federalism, Issues Paper, 1994. Mr Toonen's successful complaint to the United Nations Human Rights Committee (Toonen v Australia, UN Doc CCPR/C/50/D/488/1992 (8 April 1994) (hereafter referred to as the Toonen case)) resulted in the Commonwealth Government overriding sections of the Tasmanian Criminal Code criminalising sexual conduct between men and sexual conduct "against the order of nature". The case is discussed in Chapter Two.
47Tasmanian Government, above n 46, p 1.
48Boyce, above n 11, p 192.
49Koowarta, above n 26 at 212-3.
50Ibid at 198.
51Tasmanian Dam case, above n 27 at 99-100.
52Sir Ninian Stephen, "The Expansion of International Law: Sovereignty and External Affairs", Sir Earle Page Memorial Trust Lecture, 15 September 1994, quoted in "Making rules for the world", Australian Lawyer, March 1995, p 14.
53Tim Tenbensel, "International Human Rights Conventions and Australian Political Debates: Issues Raised by the 'Toonen Case' ", Australian Journal of Political Science, Vol 31, No 1, p 11.
54Galligan and Rimmer call this an "accumulation of latent Commonwealth power": above n 41, p 314.
55Opinions of Attorneys-General of the Commonwealth of Australia, vol 1, 1981, p 134, cited in Victoria v The Commonwealth, above n 5 at 143.
56Vicki Bourne, "The Implications of Requiring Parliamentary Approval of Treaties" in Philip Alston and Madelaine Chiam, Treaty-Making and Australia: Globalisation versus Sovereignty?, Federation Press, Sydney, 1995, p 196; Koowarta, above n 26 at 228 (per Mason J); Trick or Treaty?, above n 12, p 112, para 8.18.
57Victoria v The Commonwealth, above n 5 at 141.
58Oppenheim, International Law, vol 1, 1905, para 578, cited by the High Court, ibid at 140.
59Philip Alston , "Reform of Treaty-Making Processes: Form over Substance?" in Philip Alston and Madelaine Chiam, Treaty-Making and Australia: Globalisation versus Sovereignty?, Federation Press, Sydney, 1995, pp 9-10.
60Ibid, p 10.
61Minutes of Evidence, FSRC, June 30th 1997, p 608 (per Mr W Campbell).
62Trick or Treaty?, above n 12, pp 204-5, para 13.7.
63Opeskin, above n 20, p 14.
64Trick or Treaty, above n 12, p 39, para 3.39 and p 206, para 13.13.
65Opeskin, above n 20, p 15; Principles and Procedures for Commonwealth-State Consultation on Treaties, Attachment C to Council of Australian Governments, Communique, June 14th 1996, para 8.1; available on the World Wide Web at http://www.nla.gov.au/pmc/treaties.html.
66For example, Australia's 1980 ratification of the International Covenant on Civil and Political Rights included such a reservation; this reservation was withdrawn in 1984: Anne Twomey, Strange Bedfellows: The UN Human Rights Committee and the Tasmanian Parliament, Parliamentary Research Service, Current Issues Brief No 6, 1994, pp 16-17; Trick or Treaty, above n 12, pp 39-40, paras 3.40-3.41.
67Victoria v the Commonwealth, above n 5, at 146-7.
68Twomey, above n 66, p 17.
69Trick or Treaty?, above n 12, pp 39-40, paras 3.40-3.41.
70Principles and Procedures, above n 65, para 8.2.
71Ibid, attached Federal Statement Example.
72Opeskin, above n 20, p 19.
73Trick or Treaty?, above n 12, p 207, para 13.14.
74Cf Galligan and
Rimmer, above n 41, pp 316-7.
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