Treaty making process
What is a Treaty?
A treaty is an agreement between States (countries) which is binding at international law. In some cases international organisations can be parties to treaties. An agreement between an Australian State or Territory and a foreign Government will not, therefore, be a treaty. Even if a document is agreed between two or more sovereign countries, it will not be a treaty unless those countries intend the document to be binding at international law. A treaty may also be called a ‘treaty', ‘convention', ‘protocol', ‘covenant' or ‘exchange of letters'
Treaties can be bilateral - between Australia and one other country. An aviation agreement between Australia and the United States is one example. Multilateral treaties are those between three or more countries: an example is the United Nations Charter. Multilateral treaties are generally developed under the auspices of international (inter-governmental) organisations such as the United Nations or the International Labour Organisation, but regional multilateral treaties (like the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region ‘SPREP') are of growing importance for Australia.
Frequently, ‘declarations', such as the Declaration on the Rights of the Child, are adopted by the UN General Assembly. However, those declarations are not treaties as they are not intended to be binding by reason of their adoption. Such declarations may, however, be part of a long process that leads ultimately to the negotiation of a UN convention such as the United Nations Convention on the Rights of the Child. They may also, in certain circumstances, assist in the interpretation of a treaty, as is the case with the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (1970).
Why are Treaties necessary?
Arguably, the need for treaties has increased as the world's interdependence has intensified. Continuing technological innovation, economic globalisation and the growth of transnationalism has resulted in an enormous increase in the frequency and rapidity of global interaction. Such challenges require both national and international responses. Where a problem cannot be adequately addressed by a country acting alone (for example, in relation to ozone depletion or the depletion of migratory fish stocks), acting cooperatively at the international level becomes essential for a country to protect its own interests.
What subjects are covered by Treaties?
In recent decades, the issues subject to treaties have expanded. Australia is a Party to agreements on postal, shipping and social security and health arrangements, defence and security, nuclear non-proliferation, the environment, civil aviation, maritime delimitation, technological exchanges, and agreements designed to establish universal standards in relation to the treatment of civilians in time of war. Australia has also invested considerable energy into outlawing the use of weapons of mass destruction, and into various aspects of law of the sea and the international trading system. The need for global rules on the protection and promotion of human rights, education, the environment, wildlife and the world's cultural and natural heritage is now widely accepted. Most recently, the establishment of effective international regimes to combat criminal activity which does not respect national borders, including terrorism, has taken on a new urgency.
Treaties, the Constitution and the National Interest
The power to enter into treaties is an executive power within Section 61 of the Australian Constitution and accordingly, is the formal responsibility of the Executive rather than the Parliament. Decisions about the negotiation of multilateral conventions, including determination of objectives, negotiating positions, the parameters within which the Australian delegation can operate, and the final decision as to whether to sign and ratify are taken at Ministerial level, and in many cases, by Cabinet.
As well as providing certainty, Australia's constitutional system also ensures that checks and balances operate. This occurs through Parliament's role in examining all proposed treaty actions and in passing legislation to give effect to treaties and the judiciary's oversight of the system. This efficiency and certainty of process enables the Government to negotiate with its overseas counterparts with authority and credibility, and contributes to Australia becoming a source of influence in the treaty's negotiation.
Bilateral agreements that conform to a model text previously approved by Cabinet are normally not subsequently referred to Cabinet. These types of agreements include Investment Promotion and Protection Agreements, Mutual Assistance in Criminal Matters Treaties, Extradition Treaties and Aviation Agreements. They are, however, considered by Ministers prior to approval being given by Federal Executive Council for signature of the treaty.
Isn't there something undemocratic about treaty making being in the hands of the Executive?
Although the Constitution does not confer on the Parliament any formal role in treaty making, all treaties (except those the Government decided are urgent or sensitive) are tabled in both Houses of Parliament for at least 15 sitting days prior to binding treaty action being taken. A treaty is generally tabled after it has been signed for Australia, but before any treaty action is taken which would bind Australia under international law. Such action would include entering into a new treaty, negotiating an amendment to an existing treaty or withdrawing from a treaty.
Treaties are tabled in the Parliament with a National Interest Analysis (NIA) which notes the reasons why Australia should become a party to the treaty. Where relevant, this includes a discussion of the foreseeable economic, environmental, social and cultural effects of the treaty action; the obligations imposed by the treaty; its direct financial costs to Australia; how the treaty will be implemented domestically; what consultation has occurred in relation to the treaty action and whether the treaty provides for withdrawal or denunciation. Tabled NIAs are included in the Australian Treaties Library.
Treaties which affect business or restrict competition are also required to be tabled with a Regulation Impact Statement (RIS).
The Joint Standing Committee on Treaties (JSCOT) considers tabled treaties. The Committee can also consider any other question relating to a treaty or international instrument that is referred to it by either House of Parliament or a Minister.
Since negotiations for major multilateral treaties are generally lengthy and quite public, parliamentary debate often takes place as the issues become publicly known. For example, as the Climate Change Convention was negotiated over a period of years, issues associated with the draft convention were the subject of questions without notice, questions on notice, and debate. In cases when implementing legislation is necessary prior to ratification, Parliament has a further opportunity to debate a treaty.
Why are international treaties important to Australia?
Australia participates in treaty making because it is in the national interest to do so. If the projection of military and economic power were the main means by which national objectives were pursued, Australia would be vulnerable. Our geographic isolation and small population would be seen as a weakness. Nations, particularly States with a relatively small population such as Australia, benefit from a world where interaction between countries takes place within a framework based on fair, agreed and transparent rules as agreed in treaties. Australia is not a member of any single rigid regional grouping; rather, we build global or regional alliances and through them, seek to influence the standards by which international relations are conducted.
How can Australia influence the terms of these treaties?
International conventions bring considerable benefits in a wide range of areas to individual nations, particularly small and middle-sized countries. Australia has its say in the drafting of these treaties by becoming involved in the international fora in which they are negotiated. As a middle ranking power, Australia's negotiating resources are finite. As a consequence, successive Governments have often sought to build international coalitions to advance our national interests. For example, in the Uruguay Round of GATT negotiations, the Cairns Group, a coalition of likeminded agricultural exporting nations led by Australia, achieved a favourable outcome on agriculture, which brought Australia well over $1 billion per annum in increased agriculture exports and contributed to an increase in Australia's exports by $5 billion and in Australia's gross domestic product by $4.4 billion by 2002.
Australia has also helped shape a revised Law of the Sea Convention, in the process, gaining sovereign rights over extensive areas of sea and continental shelf. In the field of disarmament, Australia put together a comprehensive draft of a Chemical Weapons Convention and through active diplomacy, was instrumental in achieving a convention now approaching universal acceptance. Australia played a similar catalytic role in relation to the Comprehensive Test Ban Treaty, which aims to ban the testing of nuclear weapons.
Treaties also provide for international cooperation on law enforcement, such as in relation to drug trafficking; establish resource management regimes to encourage sustainable development, and enhance global and regional security, all of which benefit Australia.
Does ratification of international treaties result in a loss of sovereignty?
Ratification of international treaties does not involve a handing over of sovereignty to an international body. Treaties may define the scope of a State's action, and treaties which Australia ratifies may influence the way in which Australia behaves, internationally and domestically. Implicit, however, in any Australian decision to ratify a treaty is a judgement that any limitations on the range of possible actions which may result are outweighed by the benefits which flow from the existence of a widely endorsed international agreement.
The Government also retains the right to remove itself from treaty obligations if it judges that the treaty no longer serves Australia's national and international interests.
Some treaties establish a committee, which receives reports and monitors the implementation of obligations flowing from the treaty by States Parties. One such treaty body is the United Nations Human Rights Committee, which is responsible, among other things, for monitoring States Parties' implementations of their obligations under the International Covenant on Civil and Political Rights (ICCPR). But any assessments such treaty bodies make are of an advisory nature only. They are not binding and the Human Rights Committee has no enforceable legal jurisdiction over nation states which have acceded to the ICCPR or its First Optional Protocol.
The Government's decision on whether a treaty is in the national interest is based on information obtained during consultations with relevant stakeholders. Consultation does not take place merely so that those with an interest feel included in the process. The practice is to provide information about the treaty in question and, if possible, develop a consensus within the community before taking definitive treaty action. Inevitably, the final decision necessarily involves a balancing of competing interests.
State and territory governments
The State and Territory Governments are a primary focus of the consultation process. Many international treaties need State and Territory cooperation for their domestic implementation and, accordingly, discussions with State and Territory Governments occur at many levels ranging from that of experts to standing Ministerial Committees.
Another important mechanism for federal/state consultation is the Commonwealth-State-Territory Standing Committee on Treaties (SCOT) which consists of representatives from the Premier's or Chief Minister's Departments in every State and Territory. SCOT is chaired by a senior official of the Prime Minister's Department and also has representatives from the Department of Foreign Affairs and Trade and the Attorney General's Department. This committee receives on a biannual basis a Treaties Schedule listing all international treaties that Australia is currently negotiating or which are under review. State and Territory representatives have the opportunity to seek further details, offer views and comments, and flag those matters on which they wish to be consulted or to improve the consultative mechanism.
Industry and other interest groups
Consultation with industry bodies and interest groups spans a wide range of processes, from standing bodies to informal methods. The Department of Foreign Affairs and Trade (DFAT) holds formal consultations with Non Government Organisations (NGOs) interested in international human rights issues where international instruments are on the agenda. The National Consultative Committee on Peace and Disarmament considers arms control issues, and the Trade Policy Advisory Committee enables the business community's interests in trade policy negotiations to be reflected in Government positions. Community consultation outside these standing arrangements is, however, an ongoing process. There are numerous other occasions and forums offered by DFAT at which interest groups or individuals have opportunities to seek information or raise concerns about the treaty process.
It is not always possible to know all the community groups which might wish to contribute to the process of setting Australia's objectives and positions. To facilitate public input, the Government prepares a list of all multilateral treaties currently under negotiation or review which can be found on the Australian Treaties Library Internet site. The list is updated approximately twice a year and tabled in both Houses of the Commonwealth Parliament. The list includes the name of the contact officer in the responsible Department to whom comments or questions can be directed for each treaty under negotiation. This provides greater transparency in the treaty making process and ensures that interested groups and individuals are in a position to contribute freely to Australia's negotiating position.
Negotiating and implementing Treaties
NGO and state and territory participation
Since expert, technical views are often needed by officials at international negotiations, representatives from the States, Territories, industry groups and other NGOs often serve as advisers to Australian delegations. These advisers are in a position to report back to their organisations on the room for manoeuvre for Australian initiatives and positions. This process is frequently employed when key new multilateral regimes are being negotiated in areas like the environment, trade, human rights and the law of armed conflict.
How does Australia become a party to a Treaty?
How a country joins a treaty is determined by the treaty in question. All bilateral treaties have a two stage entry into force mechanism. This allows a bilateral treaty to be tabled in Parliament after its signature but before binding treaty action is taken that would bring the treaty into force.
Modern multilateral treaties typically do not provide that signature alone is sufficient to bind a country to the terms of a treaty. When the text of a multilateral treaty is finalised, the common practice is to have the treaty ‘open for signature' for a specified period. Countries may sign the treaty within that period but are not legally bound by its provisions until ratification occurs. Where a country has not signed a multilateral treaty, it will nevertheless generally be able to become a party to it. This is typically called an act of accession.
What is the scope of the Commonwealth's power to legislate?
If Commonwealth legislation is required to give effect to a treaty, the Government relies on the external affairs power in Section 51 (xxix) of the Constitution. In certain specific cases, however, for example, in giving effect to air navigation and shipping treaties, the Government relies on the trade and commerce power as well as the external affairs power. In many other cases, there is no need to rely on the external affairs power because the subject of that treaty already lies within other Commonwealth powers or because State and Territory Governments will enact appropriate legislation.
The Constitution also limits the Commonwealth's ability to exercise the external affairs power. For example, the Commonwealth Government may not remove constitutional rights, such as freedom of interstate trade, merely by relying on treaty provisions. Also, the Commonwealth's exercise of legislative powers, including the external affairs power, is subject to a principle that the continued existence of one or more States, or their capacity to function as States, must not be impaired.
Neither does the conclusion of a treaty automatically bring the entire subject matter within the legislative capacity of the Federal Government. For example, Australia's accession to the Convention on the Conservation of Nature in the South Pacific does not mean that the Commonwealth has thereby gained legislative power over the subject of ‘nature conservation.' The external affairs power only enables legislation to be passed to give effect to the terms of the treaty, and for legislation to be valid, it must be reasonably considered to be appropriate and adapted to the implementation of a treaty.
Perhaps the most important constraint upon the Commonwealth is the fact that treaty making processes in Australia operate within a democratic context. This includes, ultimately, the knowledge that action by the Commonwealth Government which was widely perceived as contrary to Australia's interests could result in its defeat at the next election.
What happens once the Government has decided to enter into a Treaty?
Once an in-principle decision has been taken to agree to a treaty, the Commonwealth Government considers whether:
- specific implementing action is required;
- if so, whether existing legislation (Federal or State) is adequate; and
- if not, whether the treaty should be implemented by legislation at the Commonwealth or State/Territory level.
The prior approval of the Federal Executive Council is also required for Australia to enter into a treaty. The Executive Council comprises the Governor-General and all serving Ministers and Parliamentary Secretaries. A meeting of the Executive Council requires the presence of the Governor-General plus two Ministers and/or Parliamentary Secretaries. The Executive Council requires certain documentation be presented to it showing that the decision to accept the rights and responsibilities associated with a treaty has been approved by Cabinet or by the relevant Ministers.
Do all treaties require legislation to operate in Australia?
The general position under Australian law is that treaties which Australia has joined, apart from those terminating a state of war, are not directly and automatically incorporated into Australian law. Signature and ratification do not, of themselves, make treaties operate domestically. In the absence of legislation, treaties cannot impose obligations on individuals nor create rights in domestic law. Nevertheless, international law, including treaty law, is a legitimate and important influence on the development of the common law and may be used in the interpretation of statutes.
New legislation is not always necessary
Many treaties do not require new or prior legislation, as they can be implemented through executive action (for example, trade cooperation, defence logistics and procurement treaties). Other treaties, including a number of international human rights and industrial relations treaties, have been ratified on the basis of an assessment by the Commonwealth that existing Commonwealth or State/Territory legislation is sufficient to implement the provisions of the convention (in other words, we are already meeting domestically the terms of the convention and no further action is necessary), or that the particular treaty obligations can be implemented progressively and without radical change to existing laws.
Relying on existing legislation may sometimes be problematic
Difficulties can arise if ratification relies on existing State or Territory legislation and that legislation is subsequently altered in a way that is incompatible with the relevant treaty. In such cases, consideration may be given to the Commonwealth passing legislation to bring Australia's laws back into line with its international obligations. Sometimes the interpretation of obligations under a treaty may evolve to the extent that the existing State/Territory law is no longer adequate to give effect to those obligations. Again, if a State or Territory is unwilling to effect necessary amendments to its own law, the Commonwealth may consider passing its own legislation.
If obligations are not fully covered by existing legislation, new laws may be needed
If new legislation is required to implement the treaty, the normal practice is to require that it be passed before seeking Executive Council approval to enter into the treaty. This is because subsequent Parliamentary passage of the necessary legislation cannot be presumed, entailing a risk that Australia could find itself legally bound by an international obligation which it could not fulfil.
Examples of treaties where specific legislation will be necessary are those requiring specific outcomes which can only be achieved by imposing legislative requirements on individuals. For example, legislation was necessary to give effect to an obligation under the Montreal Protocol to ban the manufacture of, and trade in, certain products containing harmful ozone depleting substances.
Is treaty making being used by the Commonwealth to grab power from the States?
Globalisation has changed the way all levels of Government interact with the international system. The States and Territories are increasingly aware of the benefit of having a global ‘voice', and playing a greater role in the world's deliberations on international rule making. State tourism offices, premiers' trips overseas to raise finance or attract investment, relevant ministers working with their counterparts to develop specific trade opportunities are just some examples of these trends. The increased presence of State and Territory representatives on delegations to international meetings (including for the negotiation and implementation of international treaties) demonstrates the importance of treaties to the States and Territories.
The Principles and Procedures for Commonwealth-State-Territory Consultation on Treaties sets out the arrangements governing the provision of information, consultative mechanisms and the implementation of treaties and other international instruments that are of particular sensitivity and importance to the State and Territory Governments. Under these procedures, the Commonwealth may consider relying on State or Territory legislation where the treaty affects an area of particular concern to the States or Territories and adoption of that course is consistent with the national interest and the effective and timely discharge of treaty obligations.