FEDERAL-STATE RELATIONS COMMITTEE
Report on
5.0 This chapter considers the current role of the Commonwealth Parliament in relation to treaty matters, and makes recommendations for the enhancement of the role of both the Commonwealth and State Parliaments.
5.1 One obvious way to facilitate the public dissemination of information about treaties, and to create a public focus for discussion of these issues, is for treaty texts to be tabled and debated in Parliament.
5.2 In 1961 Prime Minister Menzies announced a practice of tabling treaties in the Commonwealth Parliament at least 12 sitting days prior to ratification. However, over time this practice fell into disuse, until by 1994 the practice was rather for treaties to be tabled in bulk, twice yearly, with many already having been ratified.1
5.3 In their position paper put to COAG in 1995, Australia's Premiers and Chief Ministers called for ratification of treaties to be subject to disallowance by either House of the Commonwealth Parliament.2
5.4 Senator Vicki Bourne has also called for treaty ratification to be subject to parliamentary approval, and has twice introduced a Private Member's Bill aimed at bringing this about.3 Her Bills have not yet been debated.
5.5 After a detailed consideration of the matter,4 the Trick or Treaty? report recommended
That the issue of what legislation, if any, should be introduced to require the parliamentary approval of treaties be referred to the proposed Treaties Committee for further investigation and consideration.5
As this Recommendation indicates, the Trick or Treaty? report felt that its proposed Joint Standing Committee on treaties, with a mandate to report on tabled treaties together with tabled National Interest Analyses (NIAs), would in itself constitute a significant reform to the treaty making process.
5.6 These proposals for parliamentary scrutiny were put in Trick or Treaty? Recommendations 8, 9 and 10. They have been implemented by the Commonwealth Government, but only in part. The recommended Joint Standing Committee on treaties (JSCT) was established on May 30th 1996.6 However, while the Trick or Treaty? report recommended that Commonwealth legislation be introduced requiring the tabling of treaty texts together with NIAs at least 15 sitting days prior to ratification by Australia, the Commonwealth Government in its response has simply made a firm commitment not to ratify a treaty until JSCT has made its report.7
5.7 The Government has said that it will review the success of the reforms, and the possibility of implementing them by way of legislation, after their first two years of operation.8 At this time the Government will also consider referring the question of parliamentary approval to JSCT. This commitment to a review after two years was reiterated at the June 14th 1996 COAG meeting.9
5.8 According to its chairman, Mr W L Taylor, MP, JSCT's role is to increase democracy in Australian treaty-making, by consulting with the States and the wider community by means of submissions and public hearings.10 As well as investigating treaties tabled in the Parliament, JSCT can also investigate treaties to which Australia is already party.11
5.9 The Committee was cautioned by several witnesses that a Commonwealth Parliamentary Committee will not necessarily treat the interests of the States as its first priority when considering a treaty. Professor Cheryl Saunders, of Melbourne University, said:
However, the problem I see is that the Commonwealth Parliamentary Committee will not necessarily pick up CommonwealthState federal issues. If there is a need for State expertise to be injected into a process, that will not necessarily come through the Commonwealth Parliamentary Committee. If there is a question about whether the State should implement a treaty rather than leave it to the Commonwealth, that will not necessarily come through the Commonwealth Parliamentary Committee, either. In fact, I would be prepared to bet that it will not.12
5.10 Kris Walker, also of the University of Melbourne, made a similar point:
Ms WALKER - It is possible for a state government to make a submission to that committee when it is dealing with a particular treaty. Those features are particularly useful.
Whether it will really address the concerns of this Committee about the relationship between the States and the Commonwealth remains to be seen, but perhaps it will be less useful there. I think its primary uses are in terms of greater transparency at the Commonwealth level and greater public input. As I said, there is the potential for the States to use that committee, but I am not sure that would answer all this committee's concerns.
The CHAIRMAN - Would you favour a mechanism that would enable state representation on such a committee? This committee realises the difficulties: if it has not been done before, it might be rejected out of hand.
Ms WALKER - To the extent that senators are involved in the committee, of course, in theory they represent the States and could in theory be said to represent the interests of the States. The problem is that the Senate has not operated as a States' house, and I think it would be naive to assume that it would operate as a States' house on this issue when it has not done so with any other issue.13
5.11 The JSCT has recognised the potential impact of treaties on the States. It has called for more contributions from State Governments, and has been disappointed at the lack of response.14
5.12 These considerations suggest that Commonwealth Parliamentary scrutiny is not the best way of dealing with the States' treaties concerns.
5.13 One simple device for meeting these difficulties would be for treaty texts, and accompanying NIAs, to be tabled in State Parliaments. The Committee heard support for this suggestion from a great many witnesses. These included Professor Saunders:
The CHAIRMAN - Professor, please consider this: one device that has been suggested to us is that the sorts of details that go to the Department of the Premier and Cabinet in this State should be tabled in State Parliaments across the nation so that the information is more publicly available and people can have more opportunity to see and scrutinise it?
Prof. SAUNDERS - Yes. Is the information that now goes to the Premier's department much the same as the information that is tabled in the Commonwealth Parliament?
The CHAIRMAN - I understand so.
Prof. SAUNDERS - In that case I would see no difficulty at all with it being tabled in the State Parliaments, and indeed I think it would be quite appropriate.15
Professor Kenneth Wiltshire of Queensland University:
[A]t the moment the treaty is signed each State Parliament could be notified.16
and Professor Peter Howell of Flinders University:
The CHAIRMAN - This committee is considering a proposal whereby it recommends the details be tabled in the Victorian Parliament as soon as possible with a view to letting the public and the media at least have access to those details.
Mr PULLEN - Together with a National Interest Analysis?
Prof. HOWELL - Yes.
Mr PULLEN - Do you have a comment on that?
Prof. HOWELL - I think that is a step in the right direction, and I think the more consultation, the better.17
5.14 The Honourable Phillip Pendal MLA, in his submission to the Senate Legal and Constitutional References Committee, also called for treaties to be the subject of scrutiny and debate in State Parliaments.18
5.15 The advantages of a mechanism of review based in the States rather than the Commonwealth was stressed by Professor Brian Galligan, of Melbourne University:
You referred to the national interest statement which is now required for treaties. It seems to me that two things should be done for the States. The first is that they should have the opportunity to know what is going on. If that is done through a formal tabling in State Parliaments at the same time or soon afterwards, they will know - at least formally - that the treaty has come to the attention of the State parliament. . .19
[O]nce you put in place more formal review mechanisms presumably someone will blow the whistle. After the Howard government put in place these new mechanisms at the federal level we have improved mechanisms so people can, even if they do not search the InterNet, have some confidence there is a review process in place and people are being consulted and that the parliamentary members have a public interest duty which they are fulfilling. If something is particularly controversial they will blow the whistle on it. One hopes the Commonwealth representative will raise issues of concern for States, because they live in separate States, but there may be a need for a formal mechanism so that, for example, people living in Victoria can be assured that treaties affecting Victoria are being reviewed by some part of the Victorian system so that if necessary they can blow the whistle or cause attention to be drawn to the fact that there is something in a treaty that Victorians ought to be mobilised about.20
5.16 The Committee heard evidence that the Commonwealth would not object to such a procedure, and indeed would take notice of views expressed by State Parliaments. Mr Bill Campbell, First Assistant Secretary of the Office of International Law in the Commonwealth Attorney-General's Department, said:
Mr CAMPBELL - Another issue that has been raised is whether treaties and the National Interest Analysis should be tabled in State and Territory Parliaments. It is not the Commonwealth's role to ensure the treaties and National Interest Analysis are tabled in State and Territory Parliaments; it would be a matter for State and Territory Governments to decide whether they should table them, but I cannot see any objection from the Commonwealth's point of view to that actually happening.
Ms SMITH - You have addressed my question already. I wanted to know what would be the attitude of the Commonwealth Government and the department to the States having a National Interest Analysis and treaties that are currently under review coming into State Parliaments and whether your department would support that.
Mr CAMPBELL - I cannot say whether or not my department would support it, but I can say that once they are tabled in federal Parliament, the treaties and the National Interest Analysis are public documents and are open to be tabled in State and Territory Parliaments after that. I suppose another question follows on from that: whether the Commonwealth should hold off becoming a party to the treaty until the States and Territories have actually considered it in their Parliaments. That really raises an issue of timeliness and how long that would hold up the process, if at all, in becoming a party to a treaty, bearing in mind that there are, I think, eight State and Territory parliaments, and nine if you include Norfolk Island.
Ms SMITH - There are obviously some guidelines that are crucial in that process and no State wants to extend that process, but do you think the Commonwealth would take into account the states' opinions during the next step?
Mr CAMPBELL - Do you mean the next step of becoming a party?
Ms SMITH - The final signature notification by the Commonwealth.
Mr CAMPBELL - If the information was available by the time the Commonwealth wanted to become a party to the treaty, I think the answer is yes.21
5.17 Senator Vicki Bourne expressed a similar opinion:
The CHAIRMAN - I take it you favour a mechanism by which the documents are tabled in State Parliaments?
Senator BOURNE - It would be up to the State Parliaments; that would be sensible. We would need to look at a few treaties, and probably even fewer than those identified by the Commonwealth's treaty committee, because they do not always cover all States.
The CHAIRMAN - Professor Galligan was talking about the effect on the States.
Senator BOURNE - The West Australian, South Australian and ACT governments would not be interested in anything that affects the South Pacific; however, Queensland and New South Wales would probably be interested. Timing is an important aspect. While they have been happy to leave off ratification until we have investigated treaties to our heart's content - which does not take too long! - I would imagine a State Parliament doing something along the same lines would not want to take an unreasonable amount of time, like years. I think they would be happy to take all of that into consideration, too. . .
Mr PULLEN - From your experience as a member of the Joint Standing Committee on Treaties would you see an advantage in having State committees that correlate with the Commonwealth committee in processing these sorts of things?
Senator BOURNE - I cannot see a disadvantage in it, particularly in relation to the states. Keep in mind it is a lot of work. I know committees are overloaded, and are becoming more so - that is certainly the case federally, and I am sure it is the same in the States; it is a lot of work. You may like to look at a provision whereby certain issues are farmed out to different committees so you have the basic information to start with. That may not be the way the States want to go, however. Keep in mind, too, that you do have to keep tight time lines, which makes things more difficult.
I cannot see any disadvantage to States or to the Commonwealth in that.22
5.18 Senator Bourne suggested that the Commonwealth Government might send treaties to be tabled in State Parliaments at the same time as they are tabled in the Commonwealth Parliament.23 Certainly, at this point the treaty is a public document, and so open to tabling in State Parliaments. However, this would be subsequent to signature but prior to ratification, and as was noted in Chapter 3 (paragraph 3.8), this would make changing the treaty text quite difficult.
5.19 As was noted in Chapter 1 (paragraph 1.37), the treaties most commonly of interest to the States are multi-lateral treaties instituting international standards of conduct in a nation's domestic affairs. As was noted in Chapter 4 (paragraphs 4.37, 4.38) , a great deal of information about Australia's negotiation of these treaties is publicly available on the InterNet and from the Department of Foreign Affairs. In many cases, this material may be appropriate to be tabled prior to the finalisation and signature of a treaty text.
5.20 The Committee believes that all Australian treaties should be tabled in State Parliaments upon Australia's signature. But this represents only the minimum requirement. In many cases, it will be possible and appropriate to table information at an earlier stage of treaty development.
5.21 The Committee therefore makes the following recommendation:
Recommendation 2:
The Federal-State Relations Committee recommends that, as soon as practicable, treaties and information relevant to treaties be tabled in the Victorian Parliament, together with a National Interest Analysis, if available. The Committee further recommends that this process be implemented by appropriate legislation.
5.22 Obviously, as Senator Bourne points out, not all treaties will be relevant to the States. The same point was made by Ms Walker.24 It would therefore seem appropriate for there to be some mechanism for bringing to the attention of State Parliaments those treaties of particular relevance to the States, together with an explanation of their relevance. One suggested mechanism for which the Committee heard support, was that of State Parliamentary Committees, complementary to the Commonwealth JSCT.
5.23 Professor Galligan told the Committee:
It seems that there needs to be a better arrangement than the COAG one that will give the States formal input into things. My thoughts are that it would be better for it to be done by this Committee or fitted into another Committee, so it is an ongoing routine thing.25
5.24 Professor Wiltshire suggested that the initial focus for such a Committee's investigations would be the NIA:
Each State Parliament could, if it wished, create a Committee. . . it would allow each State Parliament as opposed to each State Government to have a say at least. . . the Foreign Affairs Department [would] prepare a schema of costs and benefits of treaties as well as listing them, and if a Committee like yours had before it a preliminary outline of what seemed to be the likely costs and benefits that would be a good starting point.26
5.25 Professor Galligan went further:
Given the volume of these things and the fact that they are on anything and everything and many of them are of not much interest to anybody, it would be appropriate for a treaty to entail a statement about a State interest - something short - to which somebody, who I presume would be a Parliamentary officer, would on receiving it attach a State interest declaration, which would simply be tabled.27
5.26 Dr David Kinley agreed with this suggestion:
I think, certainly, there is room for State interest analyses - SIAs, to run parallel to the NIAs. They may come out of a specially appointed Parliamentary committee and they may stand on their own within the Victorian or Queensland parliament, but equally they may be . . . submissions to the Joint Parliamentary Committee [at a federal level]. Why not? I see no problem with that. For an SIA to have the imprimatur of that Parliament on it and to sit before Senator Bourne's committee [JSCT] would presumably carry some weight. Certainly if it were ignored or overridden questions would be asked as to why, and a whole justificatory process would be initiated. I think that would be a good thing.28
5.27 The Committee believes that a State Interest Analysis, prepared by a State Parliamentary Committee for those treaties and proposed treaties likely to impact upon the States, would be an effective way for State Parliaments to engage with treaty issues of concern to them.
5.28 Mr Bill Campbell, of the Commonwealth Attorney-General's Department, agreed that something like a State Interest Analysis might be appropriate. He also indicated that it is up to the States to determine their dissemination of treaties information and to develop any response they wish to make:
[I]t may well be that an individual State may want to put a particular gloss on it [the NIA] regarding the individual effects of the treaty for [that] State.29
[T]here is an element of the Commonwealth relying on the States and Territories to do their own dissemination rather than the Commonwealth taking over the process of disseminating the information to the States and Territories. If the Victorian Parliament wanted more information about treaties it would be open to the Victorian executive to give it that information which it has rather than the Commonwealth executive having to provide it to the Victorian Parliament.30
5.29 While the current Commonwealth practice of tabling NIAs for treaties that are signed but not yet ratified allows those potentially affected by the treaty to be made aware of such effects, it does not leave many options for those affected by the treaty. Once the treaty has been negotiated and signed, the only two options are ratification or no ratification. It is too late to affect the treaty text. A State Interest Analysis would need to be prepared and tabled at the time at which it would be most effective. In order to properly report to a State Parliament on the effects on the State of some proposed treaty action, a Parliamentary Committee would need to gain information on the proposed treaty and its possible impact prior to the tabling of an NIA in the Commonwealth Parliament.
5.30 Sources of information concerning ongoing treaty negotiations and proposals for treaty action to which a State Parliamentary Committee might have recourse include the InterNet, the Department of Foreign Affairs and Trade, the Commonwealth JSCT and the Department of Premier and Cabinet for that State.
5.31 The Committee believes that, if such material were to be tabled in Parliament, it would be appropriate to accompany it with a State Interest Analysis, explaining the likely impact of any treaty action on Victoria.
5.32 The Committee therefore makes the following recommendation:
Recommendation 3:
The Federal-State Relations Committee recommends that a Committee of the Victorian Parliament be appointed by legislation, or that an existing Committee of the Parliament be given the responsibility and resources, to advise the Parliament on all matters concerning international treaty making in Australia. The Committee would be a source of information for the Parliament on treaty matters and their possible impact on Victoria, and would be able to advise the Parliament on how Victoria can play its role in implementing Australia's treaty obligations.
In order to play this role, the Committee's functions would be:
To acquire and bring together documentation and information relevant to Australian treaty making, from all sources, as soon as it becomes available.
To table in Parliament, on a regular basis, the schedule of Australia's treaty negotiations.
To scrutinise National Interest Analyses.
To prepare State Interest Analyses for those treaties of particular concern to Victoria. This would require the Committee:
To inquire into and to consider the implications for Victoria of treaties and other international instruments that are under discussion and/or being negotiated in multi-lateral or bilateral fora.
To report upon proposed treaties likely to impact upon Victoria, and to recommend ways in which the proposed treaty might enhance the Australian federation and Victoria's role within it.
To report upon treaties tabled in the Victorian Parliament (as per Recommendation 2), including advice as to whether and how they are likely to impact upon Victoria, and in light of this whether or not they should be ratified by Australia, and whether such ratification ought to be subject to any reservations or declarations by Australia.
To monitor the work of other bodies and organisations dealing with treaty matters, including the Department of Foreign Affairs, the Treaties Council, and the Commonwealth Parliamentary Joint Standing Committee on Treaties.
To commission research into the effects of international treaty making on the States, and on the Australian federal system.
To enable the Committee to perform these functions, the Committee recommends that it have:
The power to hold public hearings and to hold hearings in camera.
The power to call for documents and witnesses.
The power to commence an inquiry into a treaty or proposed treaty, or any other treaty action, at any time, regardless of whether it relates to a document that has been tabled in Parliament.
Finding 11:
The structures and processes detailed in Recommendations 2 and 3 would operate most effectively if similar structures and processes were implemented in all State Parliaments.
Recommendation 4:
The Federal-State Relations Committee recommends that tabling arrangements, and a process of scrutiny by Parliamentary Committee, similar to those recommended for Victoria in Recommendations 2 and 3, be instituted in all Australian State Parliaments. The Committee recommends that the Victorian Government pursue this in appropriate fora, including the Leaders' Forum.
5.33 As was noted above, the Commonwealth JSCT has been disappointed at the lack of input received to date from State Governments. If JSCT were to liaise not just with the State Governments, but with State Parliaments, it might get a fuller response. The proposed Victorian Parliamentary Committee would provide a focus for such a liaison.
5.34 This Committee could also prepare formal submissions to inquiries being conducted by JSCT. State Interest Analyses prepared by the proposed Victorian Parliamentary Committee could form the basis of such submissions.
Recommendation 5:
The Federal-State Relations Committee recommends that it be requested that the Commonwealth Joint Standing Committee on Treaties liaise with the Victorian Parliament, via the Committee proposed in Recommendation 3, in addition to the Government agencies it currently consults.
5.35 A more formal device for inter-Parliamentary liaison and consultation was proposed by the Trick or Treaty report, in its Recommendation 7:
That the existing Commonwealth-State Standing Committee on Treaties be abolished and replaced with a Treaties Council that is preferably established by legislation. The Treaties Council should comprise members appointed by both the Government and Opposition of each of the Parliaments of the States and Territories and the Government, Opposition and minor parties of the Commonwealth Parliament. The role of the Treaties Council should be to consider the potential impact of treaties on State, Territory and Commonwealth laws, and the method of implementing treaties. The Council should provide public reports which could be tabled in the Parliaments of the States, Territories and the Commonwealth.31
5.36 The Trick or Treaty? report considered that SCOT was not acting as effectively as it might, and therefore that it ought to be abolished.32 It proposed replacing SCOT with a politically accountable body, consisting of Government and Opposition members of all State and Territory Parliaments, which it felt would provide a more effective means of canvassing the diverse range of opinions on treaty matters and their possible impact on the States.
5.37 Since the formation by COAG of the Treaties Council, SCOT has been given a new focus, becoming, in effect, the secretariat to the Treaties Council.
5.38 Nevertheless, it remains true that a body which brought together members of Parliament from all Australian Parliaments to discuss treaty matters would be able to play an important consultative role. Treaty implementation is legislative activity of national importance. It is not simply a device to be used by the Commonwealth to override State legislation on disputed policy issues. An inter-Parliamentary treaties body would enable all Australian Parliaments to play their proper role.
5.39 One role for such a body would therefore be to consider the impact on the States of proposed treaty action, and to facilitate the co-ordination of Commonwealth and State legislation implementing treaties.
5.40 Professor Cheryl Saunders told the Committee:
Either there needs to be a separate process that works effectively . . . or the States need to in some way slot into the processes that are going on in the Commonwealth Parliament.33
An inter-Parliamentary body would be one way for the States to "slot in".
5.41 Professor Saunders wondered, of such an inter-Parliamentary body:
Is there any precedent for that sort of co-operation between a Commonwealth Parliamentary Committee and the various State Parliaments? I was wondering whether the network that exists in the regulations and ordinances area might be some sort of precedent . . .34
5.42 In its report on Scrutiny of National Schemes of Legislation, the Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia proposed a National Committee for the Scrutiny of National Schemes of Legislation.35 This Committee would have the Chair of the Senate Scrutiny of Bills Committee as Chair, and the Deputy Chair position would rotate among the Chairs of the other participating Committees. Responsibility for carriage of Reports of the National Committee would lie with the Committee whose Chair was Deputy Chair of the National Committee. The views of the various participating Committees would be co-ordinated by teleconferencing prior to the preparation of a first draft of a Report, and then preparing a final draft after receiving feedback on the first draft from all participating Committees.36 The Working Party noted that
At the end of the day, the success of the National Scrutiny Committee involves the cooperation and commitment of individual committees to the process.37
5.43 The model for an inter-Parliamentary body proposed by the Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia depends upon each Parliament having an appropriate committee supported by a secretariat. It is essentially these committees which would make up the National Committee. On the other hand, Trick or Treaty? proposed that its recommended inter-Parliamentary body have an independent existence and membership, with one Government and one Opposition member from each State and Territory Parliament, together with a representative of the Government, the Opposition and the minor parties from the Commonwealth Parliament.38
5.44 Trick or Treaty? recommended that the inter-Parliamentary body should meet at least twice yearly.39 It also felt that it would be preferable to establish the body by legislation, either enacted by the Commonwealth at the request of the States and Territories, or by way of uniform co-operative legislation passed in each jurisdiction.40
5.45 So far, the Commonwealth response to Recommendation 7 of the Trick or Treaty? report has been to create the heads of government Treaties Council.41
Finding 12:
The Commonwealth is unlikely to act on the recommendation that an inter-Parliamentary treaties body be created.
5.46 Although Trick or Treaty? recommended that treaty tabling requirements in the Commonwealth Parliament be implemented by legislation, the Commonwealth Government has in fact implemented them simply by administrative arrangement. The Commonwealth Government has made a firm commitment not to ratify a treaty until JSCT has made its report,42 but this ministerial promise may be revoked at any time.
5.47 Ms Anne Twomey, Secretary to the Senate Legal and Constitutional References Committee at the time of the Trick or Treaty? report, has since explained why Trick or Treaty? recommended legislative implementation:
The reason the Committee strongly recommended legislation was that previous commitments to such administrative procedures, in both Australia and the United Kingdom, have gradually been neglected or abandoned without any formal recognition or official policy change to the system. Legislation would prevent this from happening again, as a formal amendment would have to be proposed and justified in order to change the system. The absence of legislation to buttress this recommendation means that this tabling commitment may well pass the way of others, from a rule, to a general practice, to a practice more honoured in the breach.43
5.48 In the absence of legislation it is political, not legal, force which must prevent the Commonwealth government from ratifying a treaty in the face of JSCT objections. The Committee heard comments on this matter from members of JSCT:
Mr PULLEN - Coming back to the process, I do not think I have it quite clear yet. The treaties are signed before they come to you. What if it reaches the situation, which I take it has not arisen yet, where the committee completely disagrees? What are the procedures in terms of the parliamentary role?
Mr TAYLOR - The stage of signature is reached by government after consideration of all factors, where they feel that they are able to indicate a moral intent. That is basically what the signature is. But until it is actually ratified by the government, it has no legal effect in international law. It is in between. What you are asking is what we say that might stop the ratification. We have not got to that stage yet, but it is pretty clear from the 15-day rule, for example, that the government is not going to move to ratification until we report . . .
Senator COONEY - I think in the end it depends on the persuasive power of Bill Taylor because, as Senator O'Chee said, it is a matter for the executive in the end . . . If they say, 'Clear off', they can sign it and ratify it. So between the signature and the ratification if this Committee or your Committee came in, saying, "This is awful. This is not an environmentally sound law. This is a law that is going to take over Victoria," it then depends on how persuasive Bill Taylor is.
Mr TAYLOR - It would be a brave government that ratified it.
Senator COONEY - But that is persuasion; if you cannot persuade them, they can go on. . . There is no legal ability with this Committee, but there is a strong political ability.
Mr TAYLOR - That is right; it is a persuasive ability.
Mr TUCKEY - Just adding to those facts, the realities are, as I pointed out earlier, that the first time the people go off to negotiate the treaty in the first instance - remembering that many of them are relatively minor but still very important to somebody - they are now under the discipline of knowing that they have to uphold the things they did.44
5.49 Given that Government members are the majority of JSCT, the political force JSCT is able to exert on the Commonwealth Government is significant. But it is a force which the States have no role in sustaining.
5.50 The Committee therefore believes that the Commonwealth Parliament should pass legislation requiring the Commonwealth Government to abstain from ratifying a treaty until it has been tabled in the Parliament for a sufficient length of time to allow scrutiny and comment by State Parliaments.
5.51 Some concern was expressed to the Committee that introducing such processes could unduly delay Australian treaty making.45 However, the Committee heard from Professor Wiltshire that the time between signature and ratification of treaties by Australia is often years:46
[W]e already have a long period between the time of signing and ratifying the treaty and there is plenty of time for a proposal [for scrutiny] of that kind to take effect.47
5.52 Trick or Treaty? heard similar evidence from the Department of Foreign Affairs and Trade:
The Department of Foreign Affairs and Trade agreed that with most treaties there is a sufficient period between signing and ratification to allow for parliamentary procedures, although officers of the Department noted that there will be exceptions where there is an urgent need to enter into treaties.48
This Committee recognises that exceptions for urgent and sensitive treaties would continue to apply to a legislated tabling regime.
5.53 The Committee believes that the reforms it is recommending will significantly enhance State scrutiny of and participation in Australia's treaty processes. However, the success of these reforms is contingent on the Commonwealth allowing sufficient time prior to ratification of a treaty for the States to play an effective role. The Committee therefore makes the following recommendation:
Recommendation 6:
The Federal-State Relations Committee recommends that the Victorian Government call upon the Commonwealth to extend the length of time prior to ratification for which treaties are tabled in the Commonwealth Parliament. The Committee believes that this time should be extended from the current 15 sitting days of the Commonwealth Parliament to 15 sitting days of every Australian parliament, with the proviso that the period be no longer than six months. The Committee also believes that this would best be implemented not merely through administrative agreement, but through appropriate legislation of the Commonwealth Parliament. The Committee recognises that the current exceptions to this tabling practice in the case of urgent and sensitive treaties would continue to apply.
Report adopted Thursday October 2nd 1997.
1Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Canberra, 1995, pp 96-7, paras 7.1-7.2.
2Council of Australian Governments, Position Paper of the States and Territories of Australia: Reform of the Treaties Process, April 1995, p 4.
3Parliamentary Approval of Treaties Bill 1994; Parliamentary Approval of Treaties Bill 1995.
4Trick or Treaty? , above n 1, ch 16.
5Ibid, Recommendation 11.
6Anne Twomey, "International Law and the Executive" in Brian Opeskin and Donald Rothwell, International Law and Australian Federalism, Melbourne University Press, forthcoming, p 94.
7Hansard, House of Representatives, Thursday, May 2nd 1996, p 232; Hansard, Senate, Thursday, May 2nd 1996, p 223.
8Hansard, Senate, Thursday, May 2nd 1996, pp 223, 225.
9Council 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.
10Minutes of Evidence, FSRC, February 26th 1997, p 145, (Per Mr W Taylor, MP).
11Ibid, p 150.
12Minutes of Evidence, FSRC, June 30th 1997, p 576 (per Professor C Saunders).
13Minutes of Evidence, FSRC, June 30th 1997, p 586 (per Ms K Walker).
14Minutes of Evidence, FSRC, February 26th 1997, p 150 (per Mr W Truss MP); Minutes of Evidence, FSRC, June 30th 1997, p 621(per Senator V Bourne).
15Minutes of Evidence, FSRC, June 30th 1997, p 577 (per Professor C Saunders).
16Minutes of Evidence, FSRC, June 26th 1997, p 514 (per Professor K Wiltshire).
17Minutes of Evidence, FSRC, July 3rd 1997, p 679 (per Professor P Howell).
18Hansard, Senate Legal and Constitutional References Committee, May 15th 1995, p 237, cited in Trick or Treaty?, above n 1, p 217, para 13.49.
19Minutes of Evidence, FSRC, June 30th 1997, p 599 (per Professor B Galligan).
20Ibid, p 632.
21Minutes of Evidence, FSRC, June 30th 1997, p.609 (per Mr W Campbell).
22Minutes of Evidence, FSRC, June 30th 1997, p 622 (per Senator V Bourne).
23Ibid, p 631.
24Minutes of Evidence, FSRC, June 30th 1997, p 588 (per Ms K Walker).
25Minutes of Evidence, FSRC, June 30th 1997, p 598 (per Professor B Galligan).
26Minutes of Evidence, FSRC, June 26th 1997, p 514-5 (per Professor K Wiltshire).
27Minutes of Evidence, FSRC, June 30th 1997, p 599 (per Professor B Galligan).
28Minutes of Evidence, FSRC, June 30th 1997, p 626 (per Dr D Kinley).
29Minutes of Evidence, FSRC, June 30th 1997, p 613 (per Mr W Campbell).
30Ibid, p 614.
31Trick or Treaty?, above n 1, p 302.
32Ibid, pp 226-7, para 13.82-13.85
33Minutes of Evidence, FSRC, June 30th 1997, p 576 (per Professor C Saunders).
34Ibid, p 578.
35Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia, Scrutiny of National Schemes of Legislation, 1996, pp 41-3.
36Ibid.
37Ibid, p 42.
38Trick or Treaty?, above n 1, p 227, para 13.86.
39Ibid, p 228, para 13.91.
40Ibid, p 228, para 13.92.
41Council of Australian Governments, above n 9, section entitled "Treaties"; Hansard, Senate, Thursday, May 2nd 1996, p 222.
42Hansard, House of Representatives, Thursday, May 2nd 1996, p 232; Hansard, Senate, Thursday, May 2nd 1996, p 223.
43Twomey, above n 6, p 94.
44Minutes of Evidence, FSRC, February 26th 1997, pp 156-7 (per Mr W Taylor, MP, Senator B Cooney, Mr C Tuckey, MP).
45Minutes of Evidence, FSRC, June 26th 1997, p 514 (per Professor K Wiltshire), June 30th 1997, p 576 (per Professor C Saunders), p 587 (per Ms K Walker), p 598 (per Professor B Galligan), p 609 (per Mr W Campbell), p 622 (per Senator V Bourne).
46Minutes of Evidence, FSRC, June 26th 1997, p 514 (per Professor K Wiltshire).
47Ibid.
48Trick or
Treaty?, above n 1, p 294, para 16.82.
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