FEDERAL-STATE RELATIONS COMMITTEE
Report on
4.0 This chapter considers the current role of the States in treaty negotiation and implementation. This is exercised principally through intergovernmental arrangements, which do not maximise the opportunities for the States to influence treaty matters.
4.1 The Commonwealth has practised various strategies to keep the States informed and able to participate in the area of foreign affairs, while maintaining overall control. The most recent developments in this area were prompted by two things: calls for reform by the Premiers of the States and Chief Ministers of the Territories, meeting as the Leaders' Forum on February 24th 1995 (which were put as a position paper to the Council of Australian Governments on April 11th 1995);1 and the 1995 inquiry and subsequent report of the Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties.2 That inquiry's terms of reference dealt with the external affairs power of the Commonwealth, the executive's power to bind Australia to an international instrument, and the role of the Commonwealth Government in a federal system.3
4.2 The Trick or Treaty? report recommended various methods of addressing the democratic deficit in treaty making and implementation in Australia. This Committee endorses those recommendations, particularly Recommendations 8, 9 and 10, and takes the view that these should be extended, so as to address the federal democratic deficit.
4.3 In summary, the Recommendations of Trick or Treaty? were:4
1.
That the Government prepare a list of treaties to which Australia is currently a party, together with a record of which department administers each treaty, and what steps have been taken to implement each treaty.
2.
That legislation be introduced requiring the Government to report annually to Parliament on the steps it has taken to implement treaties to which Australia is a party.
3.
That the Department of Foreign Affairs distribute to all public libraries in Australia information on treaties under consideration by the Government.
4.
That the Government prepare a treaties database, with the full text of each treaty to which Australia is a party, together with explanatory and interpretive material.
5.
That the Government publish the records of the negotiation proceedings of each treaty to which Australia is a party, to assist in the interpretation of those treaties.
6.
That in the negotiation of treaties, the Government increase its efforts to consult with interested and affected groups.
7.
That an advisory Treaties Council with parliamentary representation from every State, Territory and Commonwealth Parliament be established.
8.
That prior to ratification, treaties be tabled in both Houses of the Commonwealth Parliament for at least 15 sitting days. An exception would apply for urgent and sensitive treaties.
9.
That a Joint Parliamentary Committee on Treaties be established by the Commonwealth Parliament, to allow greater parliamentary and public scrutiny of treaties, and to assess and analyse the more controversial treaties prior to ratification.
10.
That a treaty impact statement be prepared on every treaty tabled in Parliament.
11.
That the proposed Joint Parliamentary Committee on Treaties be given the task of investigating the merits of a regime of parliamentary approval for treaty ratification.
4.4 The Commonwealth Government's response to the report was tabled in the Senate on May 2nd 1996.5 On the same day the Minister for Foreign Affairs, The Hon Alexander Downer, announced the Government's response in the House of Representatives, linking it also to the views of the Leaders' Forum.6
4.5 In his evidence to this Committee, Professor Brian Galligan described the Commonwealth response in this way:
the incoming Howard government, with Mr Downer as foreign minister, more or less took on board holus-bolus the Trick or Treaty? Recommendations.7
4.6 The Commonwealth accepted, to at least some extent, all of these recommendations except for Recommendation 5.8 However, it has created an executive rather than a parliamentary Treaties Council, and has implemented parliamentary scrutiny via administrative rather than legislative arrangements. These points will be taken up later in this chapter (paragraph 4.22) and in Chapter 5 (paragraph 5.6).
4.7 In 1982 the Premiers and the Commonwealth reached agreement on a set of Principles and Procedures for Commonwealth-State Consultation on Treaties.9 The current version of these "Principles and Procedures" dates from the Council of Australian Governments (COAG) meeting of June 14th 1996.10 These principles and procedures relate to treaties and other international instruments (eg UN Draft Declarations) of sensitivity and importance to the States and Territories. They are adopted "in the interests of achieving the best possible outcome for Australia", subject to their operation not unreasonably delaying Australia's negotiation and implementation of treaties. Treaties pertaining to matters of national security are outside their scope.11
4.8 Under these principles and procedures, consultation is to take place in the following ways:
The Commonwealth will inform the States and Territories at an early stage of any treaty discussions in which Australia is considering participation.12 The State Premiers' Departments and Territory Chief Ministers' Departments will be kept abreast of Australia's treaty negotiation position. Twice a year they will receive a twelve-month forecast of the treaty negotiations the Commonwealth is involved in and anticipating involvement in, with a quarterly update to this list.13 This schedule includes a Commonwealth Government contact officer for each treaty.14
When a treaty is one in which the States have a major interest, the Commonwealth will disseminate draft National Interest Analyses (NIAs) to the States.15 These will tell the States the Commonwealth's expectations of and intentions in its treaty negotiations, and how the States are likely to be affected. Final NIAs will also include details of consultation on the treaty (including a summary of the views of the consulted parties), and will be tabled in the Commonwealth Parliament.16
Whenever practicable the Commonwealth will provide States and Territories with a report on the outcome of international negotiating sessions which are of sensitivity and importance to the States and Territories.17
The Commonwealth will, wherever practicable, seek and take into account State and Territory views, both in forming Australian negotiating policy, and continuing through to (and including) the stage of implementation.18 The Commonwealth will consult with the States and Territories in an effort to secure agreement on the implementation of treaty obligations.19 While the Commonwealth will consider relying on State and Territory legislation where this is in the national interest, the Commonwealth will not commit itself in a general way not to legislate in areas that are within its constitutional purview.20
4.9 The Committee sought the opinions of all State and Territory Governments on the adequacy and effectiveness of these arrangements. The Committee also heard evidence from responsible officers of the Victorian and New South Wales Departments of Premier and Cabinet. This evidence suggests that the Commonwealth's commitments to consult with State Governments are largely being met.
4.10 Mr Peter Hendy, of the New South Wales Department of Premier and Cabinet, said that
I must admit that in the past two years the Commonwealth has been very good. Until two years ago its performance on consultation on treaties was absolutely woeful, but it has improved out of sight.21
4.11 While Queensland generally has been pleased with the progress made on treaty making procedures, it expressed some concern that the Commonwealth is forwarding information at the last minute, without allowing a sufficient time for the State Government to respond. Queensland also said some States had been concerned that draft NIAs were not being circulated sufficiently close to the date of commencement of treaty negotiations. Queensland was also concerned that States were not being invited to comment on the way that the consultation process is portrayed in finalised NIAs.22
4.12 The Victorian Government is receiving the Treaties Schedule twice a year.23 While initially it felt the Commonwealth had not been informing the States early enough, those problems have now been resolved.24
4.13 The Tasmanian Government welcomes the introduction of the new procedures, and is closely monitoring their implementation.25
4.14 Under the Principles and Procedures, it is the responsibility of each State and Territory to develop its own whole of government position.26 Where they choose, the States and Territories may develop a joint position.27
4.15 Each State develops its whole of government position in its own way. In Victoria, the Department of Premier and Cabinet disseminates treaties information to all line agencies. The line agencies are responsible for seeking the input of industry, interested non-government organisations and so on. This takes place through the normal channels those agencies have for seeking input from these bodies. The role of the Premier's Department is principally to facilitate this collection and presentation of Victorian views.28
4.16 The Queensland Government is working on its arrangements to ensure a whole of government focus. Line agencies are expected to keep the Department of Premier and Cabinet informed of major issues affecting the State, and to bring significant issues to Cabinet.29
4.17 The Tasmanian Government also emphasises the importance of a whole of government approach, requiring line agencies involved in consultation with the Commonwealth to clear their position with the Department of Premier and Cabinet.30
4.18 In addition to these arrangements endorsed by COAG, there is an ongoing and informal flow of information between the Commonwealth and State Governments, which occurs from the time treaty negotiations begin. These informal processes mean that it can sometimes happen that a line agency knows of a treaty negotiation before the Premier's Department.31 For example, the Commonwealth Department of Health might go straight to the Victorian Department of Human Services seeking input on a particular treaty being negotiated. The Principles and Procedures specifically states that its institution of formal consultative mechanisms will not affect this informal flow of information on treaties to State Governments.32
4.19 As is evident from the Principles and Procedures, the current mechanisms of Commonwealth-State consultation on treaty matters are mostly intergovernmental, rather than parliamentary, in their focus. Intergovernmental co-operation is facilitated by two Commonwealth-State bodies.
4.20 The Treaties Council is a council of State and Commonwealth leaders, with the Foreign Minister in attendance if appropriate, set up under the aegis of COAG.33 Its role is to consider and advise upon treaties of particular concern to the States and Territories.34 The Council is a formal mechanism for the States to be made aware of treaties that may affect them, and is also a gathering of those who may be able to enhance Australia's treaty making process.
4.21 The idea of a Treaties Council, the role of which would be to consider, and advise governments upon, the impact on the Australian federation of treaty making and implementation, has been around for some time. Such a council, to be made up of experts in international law and intergovernmental relations, was recommended by the Constitutional Convention in 1985 and the Constitutional Commission in 1988. Recommendation 7 of Trick or Treaty? advocated the creation of a Treaties Council with membership drawn from all Australian parliaments. The Leaders' Forum, in its position paper put to COAG, called for a Treaties Council consisting of Heads of Government to be created as an adjunct to COAG, similarly to the way that the Loans Council is an adjunct to the Financial Premiers Conference. This model was first put forward by Victoria, in early 1995.35
4.22 In its response to the Trick or Treaty? report, the Commonwealth Government accepted the need to establish a Treaties Council.36 However, it has adopted the model proposed by the Leaders' Forum, rather than that proposed by the Trick or Treaty? report. Peter Hendy, of the New South Wales Department of Premier and Cabinet, put it this way:
They [the Senate Legal and Constitutional References Committee] will argue that they were instrumental in the treaties negotiations between the Commonwealth and the States. I have a completely different view, that they were tail enders on the issue. Over the past two years the States put in an enormous amount of work in lobbying the Federal Government for reform, and the Treaties Council model that has been adopted is exactly what the States proposed. If anything, one of the achievements of the Leaders' Forum was the Treaties Council. Premiers worked up and got their officers to do the detailed work on that issue. We put the submissions to the Commonwealth and eventually they were agreed to.37
This has ensured that State involvement remains in the domain of the executive. State Parliaments still have no formal role in the Australian treaty process.
4.23 The creation of the Treaties Council was agreed to at the June 14th 1996 meeting of COAG.38 The Principles and Procedures state that it will meet at least once each year, usually at the same time and place as COAG.39 However, the cancellation of the November 1996 COAG meeting has left the Council in limbo, and it has not yet met.
4.24 This has prompted criticism of the functioning of the Treaties Council. In its Second and Final Report, the South Australian Constitutional Advisory Council says that this delay
means that a significant component of the new consultative processes is simply not operational.40
4.25 In her evidence to the Committee, Professor Cheryl Saunders of the University of Melbourne expressed similar concerns:
Professor SAUNDERS - . . . The latest phase of co-operation has sought to raise intergovernmental co-operation to a much higher level - to the level of heads of government - and I think that that is definitely a move in the right direction. However, the heads of government will need good administrative support if that is to work. Obviously, they have a lot of other priorities, and that system will need a lot of thinking through if it is to make any difference to the way in which things have happened in the past. . .
The CHAIRMAN - The Treaties Council has not met.
Professor SAUNDERS - No, I am aware of that. Its existence is somewhat theoretical at present. Of course that is a problem, and I think that problem is the result of the link between the Treaties Council and COAG and the fact that COAG seems to have fallen on slightly hard times over the past 12 months or so. . .41
4.26 Professor Kenneth Wiltshire, of the University of Queensland, noted that
42[i]t is part of the brief of COAG at the moment to consider treaties. COAG does not seem to have addressed that effectively. . .
4.27 However, even though the Treaties Council has not yet met, both State and Commonwealth officials involved in preparing the agenda for the cancelled meeting were enthusiastic about the impetus it gave to Commonwealth-State consultation.
4.28 Mr Bill Campbell, of the Commonwealth Attorney-General's Department, said that
[i]t is true that [the Treaties Council] has not yet met, but it is also true that it was about to meet in November or December last year but it was called off because of the Western Australian election. Quite substantive papers were prepared for that meeting on treaties that dealt with the issues in some detail. Overall, my own view of it - I have to say this is from the viewpoint of somebody who works for the Commonwealth - is that it is working quite satisfactorily.43
4.29 The Queensland Government thought that the experience of determining the Treaties Council agenda forced an identification of
treaty negotiations of major concern to the States, the outstanding policy issues at stake, and the adequacy of the consultative processes being used. The process of clarifying issues was useful both to the Commonwealth and to the States. It should be noted that in 1996 the Commonwealth largely left it to the States to determine the list of treaties for consideration by the Treaties Council. . . 44
The Tasmanian Government expressed a similar opinion.45
4.30 The agenda for the Treaties Council is prepared by the other intergovernmental body, the Standing Committee on Treaties (SCOT).46 This is a committee of senior Commonwealth, State and Territory officials, the role of which is to co-ordinate the information flow to and between the States, to co-ordinate State representation on Australian treaty negotiating delegations, and to recommend further consideration of particular treaties where it thinks this is required, whether by the Treaties Council, a Ministerial Council, or some other consultative body.47 SCOT is to meet twice a year, or more often if required. 48
4.31 Commenting on the role of SCOT, the South Australian Constitutional Advisory Council said
Although political leaders insist that this Standing Committee exists only to serve the proposed Treaties Council, in both the short and the long term it may prove a more useful institution.49
4.32 In addition to these two bodies, if a treaty is relevant principally to a particular portfolio area, consultation will generally take place at appropriate Ministerial Council meetings.50 To preserve its whole of government approach, Queensland requires that Ministers inform Cabinet of all issues affecting Queensland that are under discussion at Ministerial Councils.51
4.33 The importance of effective consultation on treaty matters was emphasised by Mr Tony Thomas, from the Victorian Department of Premier and Cabinet, and Victoria's representative on SCOT. He expressed the view that widespread consultation with industry, non-government organisations, and other interested and affected parties, and the presentation of their views to the Commonwealth, is the best way for a State to influence the Commonwealth:
The Commonwealth specialises in basically saying, "We have consulted and although there are a few minor problems we do not think this will cause much upheaval." The only way we can answer that is to say that we have consulted and say, "Here is what X number of industry bodies have said."52
4.34 Despite the intergovernmental procedures in place, there is still concern about a lack of consultation in treaties processes. Professor Kenneth Wiltshire told the Committee that
[w]e need far more consultative measures for the federal government to consult with State and Local Governments, preferably prior to the signing of the treaty but also prior to ratifying it, and certainly prior to passing domestic legislation to implement the treaty.53
4.35 Lack of transparency was emphasised by Professor Brian Galligan of the University of Melbourne:
one of the main problems to do with the issues here is simply the problem of transparency and knowledge. From my own viewpoint as an informed citizen, or as an academic who studies these things on and off, it is rather difficult without doing quite a lot of research to come to grips with exactly where we are, what treaties there are, what are the significant ones and the insignificant ones, what is the rate at which we enter into treaties, what is the purpose, and so on.54
4.36 To such concerns, Mr Bill Campbell, First Assistant Secretary of the Office of International Law in the Commonwealth Attorney-General's Department, responded:
I ought to point to the initiatives that have been taken by the Federal Government to make treaties more transparent. The first one I should mention is that the Australian treaty series, treaties tabled in Parliament and the National Interest Analyses have been placed on the InterNet under the AustLII InterNet site... There is a list prepared by Foreign Affairs and Trade two or three times a year that sets out the multilateral treaties that are under negotiation. That list is published in a magazine at Foreign Affairs. I had understood that list was also on the InterNet.55
[A]s to the question of the States not influencing the process, it is not my experience that the States do not influence the process: State and Territory executives are asked for their view in the process of implementing treaties.56
4.37 Treaty texts and negotiation schedules are available on the World Wide Web, from the Treaties Library Home Page.57 This schedule is identical to that disseminated to State Governments, except that only schedules of negotiation of multi-lateral treaties are available; bilateral negotiations are generally confidential until signature.
4.38 While this information does make it possible for interest groups and members of the public to inform themselves of developments in Australia's treaty position, and to therefore participate in the process, there is no effective conduit of information from these specialist sources to the interested general public.
4.39 The difficulties in disseminating treaties information are compounded by the need for State Governments to be pro-active in identifying treaties issues. The Commonwealth distributes the treaties schedule, but it is up to State Governments to identify treaties of concern to them, and to contact the officer nominated for further information on the treaty.58 The Commonwealth relies on State Governments to distribute treaty information within their jurisdiction.59 This requires the responsible officer to have a sound knowledge of international law, treaties and their impact on domestic policy areas.
4.40 Dr David Kinley emphasised this point:
one thing which may have been mentioned, but which needs greater emphasis, is the institution of a greater awareness within State Governments - be that through the supervisory role of a State Parliamentary scrutiny treaties committee, or through the deliberate creation of officers within ministerial departments of State Governments who have an understanding and appreciation of what international law treaties impact on the ministerial portfolios. . . You cannot expect somebody in the Cabinet bureaucracy to be able to pick up those specific sorts of things.60
4.41 Professor Kenneth Wiltshire suggested that
we need to educate State public servants a lot more about the implications of treaties.61
4.42 One way of increasing the transparency of the consultation process would be the creation of a public forum to act as a focus for discussion of treaty issues.
4.43 Mr Peter Hendy, of the New South Wales Department of Premier and Cabinet, had hoped that the Treaties Council would play such a role:
Ms BURKE - [A]s a State, how do you feed back your feelings or your community's feelings about those treaties?
Mr HENDY - In terms of the community generally?
Ms BURKE - Yes, what your community thinks of the treaties. Have you fed that back through the system yet?
Mr HENDY - We have not got a specific mechanism for consulting the community beyond the government agencies.
Ms BURKE - So it is only the bureaucrats?
Mr HENDY - Yes. We hope - and we thought this would occur - that the Treaties Council itself, because it is a heads of government body, will necessarily attract media attention when it meets and that the agenda will become public; that will alert the general community that there is some forum there where these issues are discussed and that will have its own momentum. Once people generally become aware that the Treaties Council exists and that it is a forum for discussing issues about treaties, we will start being lobbied much more intensely by people. That is what we thought.62
But the failure of the Treaties Council yet to meet has prevented it from having this effect.
Finding 10:
The Commonwealth will take notice of the opinions of State Governments on treaty matters. It is therefore incumbent on State Governments to maximise their consultative efforts. Currently, the Treaties Council's failure to meet means that the intergovernmental processes of Commonwealth-State treaty consultation remain principally bureaucratic in their operation, and require supplementation, in order to increase their democratic accountability.
1Council of
Australian Governments, Position Paper of the States and Territories of
Australia: Reform of the Treaties Process, April 1995; Council of Australian
Governments, Communique, April 11th 1995; available on the
World Wide Web at http://www.qld.gov.au/depts_agc/premiers/
cag11495.htm.
2Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Canberra, 1995.
3Ibid, p 20, para 1.2.
4Ibid, pp 302-4.
5Hansard, Senate, Thursday, 2 May 1996, p 217.
6Hansard, House of Representatives, Thursday, 2 May 1996, pp 231-5.
7Minutes of Evidence, FSRC, June 30th 1997, p 596 (per Professor B Galligan).
8Hansard, Senate, Thursday, 2 May 1996, pp 221-5.
9Trick or Treaty?, above n 2, p 208, para 13.19.
10Principles and Procedures for Commonwealth-State Consultation on Treaties, Attachment C to Council of Australian Governments, Communique, June 14th 1996; available on the World Wide Web at http://www.nla.gov.au/pmc/treaties.html.
11Ibid, Part A.
12Ibid, para 4.1.
13Ibid, para 4.2 (a) (b).
14Minutes of Evidence, FSRC, June 30th 1997, p 610 (per Mr W Campbell).
15Principles and Procedures, above n 10, paras 4.2 (c).
16Ibid, para 4.2 (c) and attached NIA pro forma.
17Ibid, para 4.2 (d).
18Ibid, paras 3.1, 3.2.
19Ibid, para 7.1.
20Ibid, para 8.4.
21Minutes of Evidence, FSRC, February 28th 1997, p 252 (per Mr P Hendy).
22Mr P Ellis, Reply to request for information, p 3.
23Ms F Hanlon, Reply to request for information, p 1.
24Minutes of Evidence, FSRC, April 7th 1997, pp 330, 331 (per Mr A Thomas).
25Mr S Haines, Reply to request for information, p 2.
26Principles and Procedures, above n 10, para 3.3.
27Ibid.
28Minutes of Evidence, FSRC, April 7th 1997, pp 333-5 (per Mr A Thomas).
29Mr P Ellis, Reply to request for information, p 3.
30Mr S Haines, Reply to request for information, p 2.
31Minutes of Evidence, FSRC, April 7th 1997, p 339 (per Mr A Thomas).
32Above n 10, para 4.3.
33Ibid, para 5.3; Council of Australian Governments, Communique, June 14th 1996, section entitled "Treaties"; available on the World Wide Web at http://www.nla.gov.au/pmc/commq2.html.
34Principles and Procedures, above n 25, paras 5.1, 5.2.
35Ms F Hanlon, Reply to request for information, p 3.
36Hansard, Senate, Thursday, May 2nd 1996, p 222.
37Minutes of Evidence, FSRC, February 28th 1997, p 251 (per Mr P Hendy).
38Council of Australian Governments, above n 33, section entitled "Treaties".
39Principles and Procedures, above n 10, para 5.3.
40South Australian Constitutional Advisory Council, Final Report, 1996, p 58.
41Minutes of Evidence, FSRC, June 30th 1997, pp 573-4, 576 (per Professor Saunders).
42Minutes of Evidence, FSRC, June 26th 1997, p 512 (per Professor K Wiltshire).
43Minutes of Evidence, FSRC, June 30th 1997, p 610 (per Mr W Campbell).
44Mr P Ellis, Reply to request for information, p 2.
45Mr S Haines, Reply to request for information, p 2.
46Minutes of Evidence, FSRC, April 7th 1997, p 330 (per Mr A Thomas); Mr P Ellis, Reply to request for information, p 2.
47Principles and Procedures, above n 10, para 5.4.
48Ibid.
49South Australian Constitutional Advisory Council, above n 40, p 59.
50Principles and Procedures, above n 10, paras 5.6, 5.7.
51Mr P Ellis, Reply to request for information, p 3.
52Minutes of Evidence, FSRC, April 7th 1997, p 341 (per Mr A Thomas).
53Minutes of Evidence, FSRC, June 26th 1997, p 512 (per Professor K Wiltshire).
54Minutes of Evidence, FSRC, June 30th 1997, p 596 (per Professor B Galligan).
55Minutes of Evidence, FSRC, June 30th 1997, pp 608-9 (per Mr W Campbell).
56Ibid, p 612.
57The Treaties Library is available on the World Wide Web at http://www.austlii.edu.au/au/other/dfat/.
58Minutes of Evidence, FSRC, June 30th 1997, p 610 (per W Campbell).
59Ibid, p 44.
60Minutes of Evidence, FSRC, June 30th 1997, p 629 (per Dr D Kinley).
61Minutes of Evidence, FSRC, June 26th 1997, p 514 (per Professor K Wiltshire).
62Minutes of Evidence, FSRC,
February 28th 1997, pp 251-2 (per Mr P Hendy).
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