FEDERAL-STATE RELATIONS COMMITTEE
Report on
0.1 Treaties - formal agreements negotiated between national governments - are a fact of international life. Treaties are binding at international law. However, in Australia, if a treaty is to affect domestic legal arrangements, an Australian Parliament must pass legislation implementing the treaty.
Finding 1:
Australia's treaty obligations which concern the domestic legal order require legislative implementation to have any significant legal effect within Australia.
0.2 In Australia, entry into a treaty is a purely executive act: there are no legal requirements for any parliaments to be involved. This is why treaty obligations only become part of domestic law if they are implemented by legislation; Australian law cannot be changed simply by executive action.
0.3 The Commonwealth Government represents Australia in treaty negotiations, and has the power to bind Australia at international law. The Australian States have no power to make treaties.
Finding 2:
The Commonwealth Government is the only Australian government with the power to make treaties.
0.4 Section 51 (xxix) of the Constitution gives the Commonwealth Parliament the power to legislate to make Australia's treaty obligations part of Australian law. The Commonwealth Parliament may legislatively implement any treaty, regardless of its subject matter.
0.5 Section 109 of the Constitution provides that constitutionally valid Commonwealth law prevails over State law wherever the two are in conflict. If it is clear that a Commonwealth law is meant to "cover the field" on a particular legal issue, then a State law will be overridden even if it is possible to obey both the Commonwealth and the State law.
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.
0.6 This constitutional framework of treaty making and treaty implementation gives the Commonwealth a great deal of power to intervene in areas traditionally the province of the States. If a treaty deals with a subject matter traditionally within the area of the States - as is increasingly the case for multi-lateral treaties dealing with such issues as human rights and environmental protection - the Commonwealth may, on the basis of the treaty, legislate to override State laws.
Findings 4 and 5:
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.
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.
0.7 It is possible for treaties to contain federal clauses, or for a party to a treaty to make a federal reservation or a federal declaration, which commit national governments to implement the treaty only to the extent that the treaty falls within the scope of federal power. As the Commonwealth Parliament has unlimited power to implement treaties, these devices cannot be used to preserve the jurisdiction of the States.
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.
0.8 The power of the Commonwealth to make and implement treaties therefore has the potential to undermine Australia's federal balance without recourse to the constitutionally decreed federal mechanisms of constitutional change. Preservation of Australian federalism will require the States to involve themselves systematically and deliberately in the treaties process. If the States fail to do this, their control over their traditional legislative and policy domain will continue to decline.
Recommendation 1:
0.9 The High Court has interpreted section 51 (xxix) of the Constitution (the external affairs power) to include the power for the Commonwealth Parliament to implement treaty obligations as law for the whole of Australia. This gives the Commonwealth the power to intrude into areas traditionally controlled by the States. The extent of the Commonwealth's power to use treaties as a means of overriding State legislation and policy has been made clear in a series of High Court decisions.
0.10 The Koowarta case (Koowarta v Bjelke-Peterson (1982) 153 CLR 168) made it clear that Commonwealth legislation implementing treaty obligations can override State Government action and policy.
0.11 The Tasmanian Dam case (The Commonwealth v Tasmania (1983) 158 CLR 1) made it clear that Commonwealth legislation implementing treaty obligations can override State legislation.
0.12 In both these cases, the minority judges expressed concern about the threat the external affairs power poses to Australia's federal balance.
0.13 Victoria v The Commonwealth (1996) 138 ALR 129 is the most recent High Court decision on these matters. It confirms that:
treaty obligations must be implemented by legislation if they are to have domestic legal force;
Commonwealth legislation implementing treaty obligations will be valid, and will override conflicting State legislation;
a law under the external affairs power which implements the treaty need not implement the whole treaty;
a law under the external affairs power which implements treaty obligations must be appropriate to give effect to those obligations; but the Commonwealth Parliament has a great deal of scope in deciding exactly how it will implement treaty obligations.
0.14 The recent Toonen case (Toonen v Australia, UN Doc CCPR/C/50/D/488/1992 (8 April 1994) ) led to the Commonwealth overriding a State's criminal law. In the Toonen case, the United Nations Human Rights Committee found that Tasmanian laws making it an offence to engage in sexual activity "against the order of nature" violated Australia's obligations under a key human rights treaty, the International Covenant on Civil and Political Rights. The Commonwealth Parliament passed legislation making the Human Rights Committee's view law in Australia. The High Court was preparing to hear a challenge to the Tasmanian laws on the basis of this Commonwealth Act when the Tasmanian Parliament repealed the laws. At no stage of these events was anyone actually charged under the laws.
0.15 These decisions make it clear that there are no legal or constitutional limits to the Commonwealth Parliament using the external affairs power to override State Governments, State policy and State legislation.
Finding 7:
High Court decisions show that the jurisdiction of the Commonwealth Parliament can grow with the growth in Australian treaty making. The Commonwealth Parliament, through the external affairs power, can thereby acquire jurisdiction over areas traditionally under the control of the States.
0.16 The process of treaty making has three stages: negotiation, signature and ratification.
0.17 Wherever countries come together in some diplomatic or international forum, there is the potential to negotiate treaties. As the Commonwealth is Australia's national government, it leads Australia's treaty negotiations.
0.18 Once countries have agreed upon a treaty text, their governments will sign the treaty. Although this does not bind them to the treaty, it does require them not to act in such a way as to defeat the purpose of the treaty.
0.19 By ratifying a treaty, a country becomes bound by its terms at international law. Different countries have different processes of ratification. In Australia, ratification is a purely executive act. Some other countries require parliamentary approval prior to ratification. The time which elapses between signature and ratification can often be years. Some countries sign treaties which they never ratify.
Finding 8:
If the States wish to influence the text of treaties, particularly multi-lateral treaties, they must intervene prior to signature. Although a treaty is not binding until it has been ratified, the likelihood of changes in a treaty text between signature and ratification, particularly in the case of a multi-lateral treaty, is low.
0.20 If the Commonwealth agrees, it is possible for State representatives, and for representatives of industry groups or non-government organisations, to participate in Australia's treaty negotiations. The role of such participants is to observe the negotiations and give advice to the Commonwealth; they do not represent Australia.
0.21 It is also possible for individuals and organisations to inform themselves and participate directly in international processes. Aboriginal organisations have been directly involved in environmental and human rights treaty negotiations for many years.
0.22 State and Territory Governments have the power to make their own international commitments in the furtherance of trade and other policies. These commitments are not binding at international law, and are subject to scrutiny and veto by the Commonwealth Government.
0.23 The Northern Territory has a highly effective Memorandum of Understanding with Indonesia. Not only has this increased the Territory's commercial and cultural integration with its region, but it has led to a greater degree of co-operation and consultation between the Territory and the Commonwealth on treaty matters and international relations between Australia and Indonesia.
Finding 9:
The Northern Territory has taken a pro-active role in developing ties with the East ASEAN region. It has done so on its own initiative, with the co-operation of the Commonwealth. The Territory's achievement shows that, by involving themselves directly in international relations, the States and Territories can increase their ability to work effectively with the Commonwealth. By developing Memoranda of Understanding with other countries, the States and Territories can play a significant role in driving the treaties agenda and influencing treaty outcomes. For the Territory, this has also led to economic benefits which are likely to increase in tandem with its regional integration.
0.24 The current arrangements for Commonwealth-State consultation on treaty matters arose from the Commonwealth response to calls for reform from the Leaders' Forum, and from the Senate Legal and Constitutional References Committee's Trick or Treaty? report (Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Canberra, 1995).
0.25 These arrangements are set out in Principles and Procedures for Commonwealth-State Consultation on Treaties, endorsed by the Council of Australian Governments (COAG) on June 14th 1996. These provide for a regular flow of information between the Commonwealth and the States, to keep the State Governments informed of Australia's ongoing treaties activities, and to keep the Commonwealth Government informed of the State Governments' views on these matters.
0.26 These intergovernmental co-operative arrangements are facilitated by two bodies. The Treaties Council is an adjunct to COAG, made up of all heads of Australian government, plus the Minister for Foreign Affairs. The Treaties Council was created on June 14th 1996. It was intended that it would meet at least once a year, to consider and advise on the federal implications of Australia's treaty activities. However, the Council has not yet met. Its first scheduled meeting, for November of 1996, was cancelled.
0.27 The Standing Committee on Treaties (SCOT) is a body of senior officials, which meets twice a year. It co-ordinates the flow of information between State and Commonwealth Governments, and acts as a secretariat to the Treaties Council. It is working effectively.
0.28 The Commonwealth Government will take notice of the opinions of State Governments on treaty matters. It is therefore up to the States to develop a broad and transparent consultative process with their constituents. The Treaties Council has not provided an adequate focus for public discussion of treaties. As an adjunct to COAG, it is hostage to political vicissitudes beyond the domain of treaties. This is shown by the fact that it has not yet met.
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.
0.29 Parliamentary scrutiny is an obvious way of increasing the transparency of treaties consultation. Currently, treaties signed by Australia are tabled in the Commonwealth Parliament at least 15 sitting days prior to ratification. A National Interest Analysis is tabled together with each treaty text.
0.30 The Commonwealth Parliament has a Joint Standing Committee on Treaties (JSCT). The JSCT was established on May 30th 1996, and is playing an effective review role at the Commonwealth level. However, a Committee of the Commonwealth Parliament will not necessarily have the interests of the State as its first priority. Moreover, to date State Governments have not taken advantage of the JSCT scrutiny process.
0.31 The Committee therefore recommends that treaties and related information be tabled in State Parliaments.
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.
0.32 As not all treaties will be of concern to the States, it would be appropriate for there to be a mechanism within the State Parliaments to highlight treaties of concern, and their implications for the States.
0.33 The Committee believes that a Parliamentary Committee, with responsibility for the investigation of treaty matters and for reporting to the Parliament on the impact on the State of treaties and proposed treaties, should be given this role.
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.
0.34 Liaison between the proposed Committee and the Commonwealth JSCT would assist JSCT to consider more fully the issues which arise for the State in respect of treaty matters.
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.
0.35 Treaty implementation is a legislative issue of national importance. The Trick or Treaty? report proposed that an inter-Parliamentary consultative body on treaty matters be created by legislation, to facilitate co-operation in this area. It was recommended that such a body have one Government and one Opposition member from each State and Territory Parliament, and one Government, one Opposition and one minor party member from the Commonwealth Parliament. The Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia has proposed a similar National Committee for the Scrutiny of National Schemes of Legislation.
Finding 12:
The Commonwealth is unlikely to act on the recommendation that an inter-Parliamentary treaties body be created.
0.36 The Trick or Treaty? report strongly recommended that the Commonwealth's regime of parliamentary scrutiny and tabling be implemented by legislation. However, the Minister for Foreign Affairs has simply made a firm commitment not to ratify any treaties to which Australia is signatory without first receiving the report of the Commonwealth Parliament's JSCT.
0.37 For the reforms recommended in this report to be effective, the Commonwealth must allow sufficient time prior to treaty ratification for the States to play an effective role. A maximum period of six months would permit effective scrutiny without delaying the overall process of treaty making. The Committee believes that Commonwealth legislation requiring treaties to be tabled before they are ratified would be the most effective way to achieve this.
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.
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