INTERNATIONAL TREATY MAKING AND THE ROLE OF THE STATES

No 3 - Tuesday, 28 May 1996

5			FEDERAL-STATE RELATIONS COMMITTEE - The Honourable R I Knowles moved, by leave, That, contingent upon the Legislative Assembly concurring with the Resolution to appoint the Federal-State Relations Committee, the Honourables G B Ashman, B T Pullen and W I Smith be members of that Committee.

Question - put and resolved in the affirmative.

VOTES AND PROCEEDINGS OF THE LEGISLATIVE ASSEMBLY OF VICTORIA

No 5 - Tuesday, 28 May 1996

No 42 - Thursday, 3 April 1997

5			FEDERAL-STATE RELATIONS COMMITTEE - MEMBERSHIP - Motion made, by leave, and question - That Mr Mildenhall be discharged from attendance on the Federal-State Relations Committee and that Mr Dollis be appointed in his stead (Mr Gude) - put and agreed to.

III Terms of Reference of the Federal-State Relations Committee

The Committee received its Terms of Reference on June 25 ^th 1996 ( Victorian Government Gazette, G 26, 4 July, 1996, pp 1706-7):

The Governor-in-Council, acting under section 4F (1) of the Parliamentary Committees Act 1968 , by this Order requires the Federal-State Relations Committee to inquire into, consider and report to Parliament on overlap and duplication of roles and responsibilities between the Commonwealth and the State; and areas of responsibility for which the States should have an enhanced role for the benefit of the Federation, and in particular to:

1. To inquire into and make recommendations about the specific nature and extent of problems associated with overlap and duplication of roles and responsibilities between the Commonwealth and the State, including:

i) the desirability of developing general principles for assigning roles and responsibilities, and what such principles might be;
ii) if different principles should apply to different functional areas, recommend which should apply to what areas; and
iii) identify reform opportunities for Commonwealth-State financial relations to give the States a secure revenue base; and to

2. Identify areas of responsibility for which the State should have an enhanced role for the benefit of the Federation, with particular reference, but not necessarily limited to:

i) the role of the Senate;
ii) examining the use and operation of federal decision-making institutions with a view to recommending improvements.

3. Examine options for improved technological links between the Federal and State Governments and related organisations.

In addressing the terms of reference, the Committee should take account of initiatives of the Leaders' Forum and the Council of Australian Governments (COAG), and of individual Australian governments.

The Minister responsible for the Inquiry Terms of Reference is The Honourable J G Kennett, Premier.

IV Introduction to the Report

This is the First Report of the Federal-State Relations Committee arising out of its Inquiry into Overlap and Duplication of Roles and Responsibilities between the Commonwealth and the State; and areas of responsibility for which the States should have an enhanced role for the benefit of the Federation. It is a Report into the subject of International Treaty Making and the Role of the States.

This First Report falls clearly within the scope of the Federal-State Relations Committee's broad function, to "inquire into, consider and report to the Parliament on any proposal, matter or thing connected with relations between the Commonwealth Government and State and Territory Governments" and it relates directly to the current Terms of Reference of the Committee, requesting the Committee to "identify areas of responsibility for which the States should have an enhanced role for the benefit of the Federation".

Given the extremely broad nature of the Committee's Terms of Reference, the Committee decided early in its Inquiry to divide the Inquiry into separate subject areas and to report on each of these. Treaty making is one of the many issues brought up by the Committee's Terms of Reference; the Committee's evidence has made it clear that the power of the Commonwealth in relation to treaties is a crucial issue for Australian federalism.

This First Report outlines Australia's treaty making process, the constitutional arrangements which allow the Commonwealth to make and then implement treaties, and the role of the States in these matters. The Committee is also investigating opportunities for reform of Commonwealth-State financial relations to give the States a secure revenue base, as well as the achievements and effectiveness of Australian intergovernmental processes, such as the Council of Australian Governments and the Leaders' Forum.

Interest in the implications of treaty making for the Australian federation reached a peak with the 1983 Tasmanian Dam decision (Commonwealth v Tasmania (1983) 158 CLR 1). This decision showed that Commonwealth legislation implementing treaty obligations had the potential to override State policy and legislation in areas of traditional State control.

Interest in the treaties issue was renewed in 1995 by two calls for reform: that of the Leaders' Forum, and that of the Senate Legal and Constitutional References Committee's Trick or Treaty? report. Last year the Commonwealth Government, the Commonwealth Parliament and the Council of Australian Governments set about implementing some of these recommendations. Two new bodies were created: the Commonwealth Parliament's Joint Standing Committee on Treaties, and the heads of Australian government Treaties Council.

In light of these developments, the Committee felt it appropriate to seek evidence on the effectiveness of these reforms from a State's perspective, and on the broader issue of the role of the States in Australia's treaty processes. The Committee called for submissions on its Terms of Reference on October 4^th, 1996. It wrote to each State and Territory Government, requesting information on the nature of the consultative process between the Commonwealth and that particular State or Territory with regard to international treaty making. Advice on this complex issue was heard from a number of leading academics, government representatives, lawyers, and public servants in Victoria and throughout Australia. The Committee heard evidence both by way of a number of briefings over the past eight months, and at a Public Hearing on the role of the States in Australia's treaty processes held on Monday June 30^th.

The Committee acknowledges the significance of the 1996 reforms, and this report discusses them at length. The effective operation of the current intergovernmental and parliamentary processes of treaty consultation and review will almost certainly lead to a more considered treaty signing regime. The Commonwealth Government has also agreed to involve State Governments in the formulation of Australia's negotiation position on treaties which are relevant to the States. However, treaty making and implementation are still activities dominated by the Commonwealth, with little substantial State participation.

During the course of the Committee's Inquiry, the evidence presented made it increasingly apparent that if the States do not become more directly involved in Australia's negotiation of international obligations, they will be unable to influence matters which have a potentially enormous impact on their traditional jurisdiction. The Committee believes that the States must be pro-active and seize the initiative. A failure by the States to develop effective and institutional ways of participating in the process of making and implementing treaties will leave these processes dominated by the Commonwealth Government, and will consequently leave the States' traditional jurisdiction increasingly subject to Commonwealth control.

During the course of its Inquiry the Committee became concerned that there is currently no legal requirement for Australian parliamentary involvement in the process of creating international rights and obligations for Australia. Treaty making in Australia is a process dominated by the executive. Although Australia's entry into treaties can have huge consequences for the scope of State Parliamentary activity, there is currently no State Parliamentary involvement in Australian treaty making. Current Commonwealth-State consultation on treaty issues takes place entirely through bureaucratic arrangements.

This absence of Parliamentary involvement constitutes a lack of democratic participation in the generation of international legal obligations for Australia. Moreover, the ability of the Commonwealth Government to increase the scope of Commonwealth legislative power through the ratification of treaties, without having to go through the mandated constitutional processes for constitutional amendment, undermines Australia's federal democracy. The Committee believes that the interests of Australian federal democracy require the Parliaments of the States to seek an enhanced role for themselves in the processes of treaty making and treaty implementation. The Committee is pleased to have been able to make practical suggestions as to how Victoria might achieve "an enhanced role for the benefit of the federation.

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