A2 Unlike New Zealand, Australia is a federal state: the Commonwealth of Australia Constitution Act 1900 establishes the distribution of powers in the federation and creates central and State governments.199 The power to enter into treaties is an executive power within section 61 of the constitution. Section 51(xxix) provides for the “foreign affairs power” or the legislative power to implement treaties in domestic law.200
A3 In Australia in 1961 the Prime Minister, the Rt Hon Mr Robert Menzies, announced a new practice to the Commonwealth Parliament:
Except in cases where a treaty will otherwise be brought to the attention of the Parliament, for example, where a bill or motion relating to the treaty is to be introduced, the Government as from the next parliamentary session proposes as a general rule to lay on the tables of both Houses, for the information of honourable members and senators, the text of treaties signed for Australia, whether or not ratification is required, as well as the texts of treaties to which the Government is contemplating accession. Unless there be particular circumstances which in the Government’s opinion require that urgent attention be given to the matter – for example, at a time when Parliament is not in session – the Government will moreover as a general rule not proceed to ratify or accede to a treaty until it has lain on the table of both Houses for at least twelve sitting days.
By this means honourable members and senators will be kept informed of treaties which have been signed for Australia and, in cases where ratification or accession is contemplated, it will be possible for them, if they so desire, to draw attention to any relevant consideration prior to ratification or accession.201
A4 We understand that practice has not always complied with this statement. Prior to recent reforms, treaties were tabled in bulk every 6 months in the House of Representatives, but a process of deemed procedure meant that there was no provision for parliamentary debate of the tabling of treaties. Bilateral treaties, due to reasons of confidentiality, were not tabled at all. A recent report of the Senate Committee on treaty making processes noted that the Senate was not provided with adequate time to consider tabled treaties.202
A5 Where legislation is necessary to give effect to treaty obligations, it was “official” policy that Australia would not ratify a treaty and accept obligations under the treaty until the appropriate domestic legislation was in place. In the past, Parliament had passed legislation to approve the ratification of treaties. For example, the Racial Discrimination Act 1975 contained a provision whereby Parliament approved the ratification of the Convention on the Elimination of All Forms of Racial Discrimination. The failure of the Bill to pass through Parliament meant that the executive did not ratify the Covenant at that time. However, the Senate Committee noted in its report that the practice of seeking parliamentary approval for the signing and ratification of significant or controversial treaties appeared to have lapsed.203
A6 The practice is, however, evolving and future changes can be expected, in part as a result of a widespread public and parliamentary debate in Australia on the matter of treaty making. The Senate Legal and Constitutional References Committee’s comprehensive review of powers exercised by the Commonwealth Government in making and implementing treaties, as seen in its report Trick or Treaty? Commonwealth Power to Make and Implement Treaties, forms part of that debate.204 The Committee raised concerns in relation to the impact of international treaties on the Australian federal system and the sovereignty of the nation. It also considered the degree of consultation prior to joining international treaties and the respective roles that Parliament and the government should fulfil in regard to the decision to enter into treaties.
A7 A significant part of the Senate Committee’s 11 recommendations dealt with increasing government efforts to identify and consult groups which may be affected by a treaty. The key groups identified included trade unions, industry and environmental groups, as well as many other non-governmental organisations. A “whole of Government” approach was advocated to ensure all relevant government departments and interest groups are consulted during the development of a treaty. Concern was also expressed about the lack of transparency in the treaty process from the viewpoint of community groups and individuals. The Senate Committee recommended that the Department of Foreign Affairs and Trade (DFAT) prepare a publication providing information on the treaties under consideration by the government and make it available, free of charge, to all public libraries.205 (This recommendation was later accepted by the Australian Government – see the DFAT internet website listed in appendix B.)
A8 Submissions to the Senate Committee extended to six volumes. They indicated a growing understanding about the effects of globalisation and internationalisation, a range of concerns about the way the treaty making power is exercised, and a range of proposals for making the treaty process more transparent, accountable and democratic.206 Concerns relate to the processes of agenda setting and negotiations as well as to acceptance. For instance, the National Farmers Federation, in its submission to the Senate Committee, proposed reforms in relation to multilateral treaties along these lines:
Federal Cabinet should clearly determine and indicate to both officials and the Parliament Australia’s objectives for engaging in treaty negotiations, and for considering signature and ratification.
Parliament and relevant industry sectors should be given the opportunity through timely briefings to influence the position to be taken by Australian delegations at forthcoming treaty negotiating conferences, that is, well before the finalisation of treaty texts.
Tabling by the government in Parliament of the text of proposed treaties upon their adoption at international conferences and well before the deadline for signature.
The concurrent tabling of a government statement (copied to relevant industry associations) summarising:
– the terms of the treaty, including Australia’s obligations if we became a party;
– how it will further Australian national interests; including the expected economic, social and environmental impacts of both the treaty and of not becoming party to it; also including (where the treaty will have economic impacts) a detailed cost-benefit analysis economy-wide and for affected industry sectors, estimating production, income and employment impacts; such analysis should also show how Australia will be affected relative to its trade partners and competitors;
– the relevance to, and likely impact on, Australia of any subsequent protocols then expected;
– the extent of any consultation already held with Parliament, the States, industry and the wider community (with a brief summary of any positions expressed by them).
The referral by the Senate or by each House of particular treaties and tabling statements, at least in the case of treaties with perceived national or contentious impacts, to the relevant parliamentary committee(s) for public inquiry and report to government:
– to test the government’s own impact statement with relevant industry and community sectors; and
– to lead to recommendations for (or against) signing and becoming party, and for any conditions that should be placed on treaty action (eg, drafting changes).
• The repeating of these processes before a formal international review of the treaty is to take place (multilateral treaties and their operation are commonly reviewed say 5 years after their commencement) and before a “protocol” is to be negotiated and signed.
• The relevant parliamentary committee(s) should retain a watching brief on the treaty’s impact on and value to Australia, and should publish periodic reports.
• Full and frank participation of government officials and industry representatives in these parliamentary review processes.
• Regular opportunity for full participation of industry representatives on delegations; with opportunity for participation by Members of Parliament and community representatives with significant interests at stake.
A9 In 1995 the Australian High Court held, in the controversial decision Minister of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, that there was a legitimate expectation that government administrative decision-makers would take into account treaties ratified by Australia but not yet directly incorporated into Australian law when making their decisions. Initial debate over the decision was on whether it altered the traditional position where the executive act of entering into a treaty which creates obligations does not become part of Australian law until legislative action is taken to implement those obligations. It seems clear, however, that the decision leaves the basic position unaltered.207
A10 In response to Teoh, the Australian Government issued a press release and introduced the Administrative Decisions (Effect of International Instruments) Bill 1994. The Bill and press release were intended to restore the position as it was understood to have existed prior to the Teoh decision. More specifically, the Government wished to make clear that the ratification of a treaty does not give rise to a legitimate expectation that an administrative decision will be made in conformity with a treaty.208 The Bill was referred to the Senate Legal and Constitutional Legislation Committee who recommended by majority that it be enacted.209 The Bill lapsed at that time, however it has been revived in the latest round of reforms. It was (re)introduced into the House of Representatives on the 18 June 1997 and referred to the Senate Legal and Constitutional Legislation Committee on 26 June. The Committee reported back to the House on 20 October 1997 and (again) recommended by majority that the Bill be enacted (with the Labour and Democrat Committee members holding the minority opinion).210 (See the provisions of the Bill in paras A25–A26 below, detailing the reforms to the treaty making process.)
Reforms to the treaty making process
A11 On 2 May 1996 the then Minister for Foreign Affairs, the Hon Alexander Downer MP, made a statement to the House of Representatives which outlined reforms to the treaty making process. Changes made to the process include the introduction of a new tabling arrangement, where treaties will be tabled for at least 15 sitting days after signature to allow for parliamentary scrutiny before binding treaty action is taken. This arrangement applies to both bilateral and multilateral treaties and to all actions which amend a treaty if the amendment would alter obligations with a legally binding impact on Australia, including termination or denunciation of a treaty.211
A12 The Government also indicated that special procedures will exist when it needs to take treaty action urgently. Where tabling in advance of such binding action is not possible, the documents will be tabled as soon as possible with an explanation of the reasons for urgent action. The Government undertook to use such procedures sparingly and only where necessary to safeguard Australia’s national interests, be they commercial, strategic or foreign policy.212
A13 In addition the Government agreed to table a list of Commonwealth legislation which specifically implements Australia’s treaty obligations, as well as the comprehensive, periodic implementation and update reports prepared in compliance with Australia’s reporting obligations under various treaties.213
A14 In June 1996 the Council of Australian Governments (COAG) agreed to revise Principles for consultation between the Commonwealth, States and Territories in relation to treaties. These principles have existed in one form or another since 1977, although they have been updated periodically in accordance with changing federal relations, international legal developments, and government policy. The new principles reflect the recommendations made in the Senate Committee’s 1995 report (many based upon Senator Vicki Bourne’s Private Member’s Parliamentary Approval of Treaties Bill 1995).
A15 Information on treaty negotiations will be provided in various ways: information about treaty discussions will be forwarded to Premiers’ and Chief Ministers’ Departments regularly by the Department of Prime Minister and Cabinet and DFAT. Every 6 months the Commonwealth will provide states and territories with a list of current and forthcoming negotiations (forecasting 12 months ahead) and matters under consideration for ratification. States and territories will be consulted on the preparation of National Interest Analysis (NIA) for treaties in which they have an interest. The Commonwealth will provide states and territories, on a confidential basis, with reports of international negotiating sessions of concern to them.214
A16 A review of the current consultation process is being undertaken as a result. The value of treaty-specific consultation and formal meetings with representatives of interested organisations will be considered. The review will also consider the nature and form of the information provided to private sector groups on treaty issues. Due to the delivery of an increasingly large volume of information through the electronic media, it has been suggested that the government should fulfil the role of provider of analysis rather than raw information for consultation purposes. This would be at least where interested organisations and specialist groups are concerned. Access to information is important if consultation is to be effective.215
A17 The revised principles introduce a further number of reforms including: the completion of an NIA, as mentioned above, for each treaty; the establishment of a Joint Standing Committee on Treaties for the purpose of scrutinising important treaties; the establishment of an advisory treaties council comprised of the heads of government of the Commonwealth, states and territories; and the establishment of a treaties database.216
A18 In response to a suggestion in Senator Bourne’s Bill that treaty impact statements be prepared for every treaty tabled in Parliament, the government agreed to prepare and table an NIA for each treaty. The NIA is to be made available to the states and territories and the general public. It was noted that the detail of each NIA would depend upon the nature of each treaty. A standard form, simplified NIA would be prepared for “template treaties” or bilateral treaties which follow an approved model text such as double taxation agreements, investment promotion and protection agreements, and social security agreements.
A19 The NIA should include:
the reasons for and against Australia becoming a party to the treaty – a discussion of the economic, environmental, social and cultural effects of the treaty where relevant;
the obligations imposed;
its direct financial cost to Australia;
how it will be implemented domestically;
what consultation has occurred (including specific details of organisations and individuals consulted; and
whether the treaty provides for withdrawal or denunciation.217
Joint Standing Committee on Treaties
A20 A Joint Standing Committee on Treaties was also established218 consisting of senior Commonwealth and state and territory officers who meet at least twice a year. The Committee considers and reports on tabled treaties, their NIA (particularly in relation to treaties of sensitivity and importance to the states and territories), and any other question relating to a treaty or international instrument that is referred to it by either House of Parliament or a Minister. In appropriate cases, state and territory representatives may be included in delegations to international conferences.219
A21 In relation to urgent or sensitive treaties, it was decided that in the interests of national security and observance of international comity, in camera hearings (that is, behind closed doors) and restricted circulation of documentation were necessary. It was noted that these considerations applied in particular to bilateral treaties, which international convention requires to be confidential between negotiating states during negotiation and until signed.220
A22 Once details of treaty actions are tabled, the Standing Committee on Treaties promptly reviews them by seeking further information and/or taking evidence from Commonwealth departments and agencies, state and territory governments and interested organisations and individuals where appropriate. It reports its findings to both Houses.221
A23 The Australian Commonwealth Government also supported the creation of a Treaties Council as an adjunct to the Council of Australian Governments. The Council, consisting of the Prime Minister, Premiers and Chief Ministers, meets at least once a year. It has an advisory function, as well as providing a forum for consultation between the states and the Commonwealth in relation to treaty making.222
A24 Also, in accordance with the Senate Committee’s recommendation, a treaties database has been established to facilitate the dissemination of treaty information. The database is available both in hard copy form, free of charge from the agent responsible or DFAT, and is now available on the internet. The importance of advertising the availability of such information has been recognised. It is also proposed that consultation on particular treaties could be conducted with electronic news groups as the vehicle for community consultation and will provide immediate advice of treaty developments to anyone who wants to be linked to the system.
Administrative Decisions (Effect of International Instruments) Bill 1997
A25 This Bill, with a long title of “A Bill for an Act relating to the effect of international instruments on the making of administrative decisions”, had its second reading in July 1997 and was reported back from Committee in October 1997. The Bill was reintroduced (after lapsing in 1994) as a measure to secure the Government’s position in response to Teoh. The preamble sets out the reasoning for the proposed enactment.
This Preamble sets out considerations taken into account by the Parliament of Australia in enacting the law that follows.
In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 a majority of the High Court held that the act of entering into an international instrument gives rise to a legitimate expectation at law that could form the basis for challenging an administrative decision. It also held that such a legitimate expectation could be set aside by an executive or legislative indication to the contrary.
There is a need for certainty in making administrative decisions. Uncertainty is created by allowing decisions to be challenged on the ground that decision makers did not properly give effect to such legitimate expectations.
Australia is fully committed to observing its obligations under international instruments.
However, international instruments by which Australia is bound or to which Australia is a party do not form a part of Australian law unless those instruments have been validly incorporated into Australian law by legislation. It is the role of Commonwealth, State and Territory legislatures to pass legislation in order to give effect to international instruments by which Australia is bound or to which Australia is a party.
On 10 May 1995, the then Minister for Foreign Affairs and the then Attorney-General issued a joint statement concerning legitimate expectations and international instruments. On 25 February 1997, the present Minister for Foreign Affairs and present Attorney-General issued a further joint statement. Both statements said, on behalf of the Commonwealth, that the act of entering into an international instrument should not give rise to such legitimate expectations, and that legislation would be introduced to set aside any such legitimate expectations.
The Parliament of Australia therefore enacts:
1 Short title
This Act may be cited as the Administrative Decisions (Effect of International Instruments) Act 1997.
This Act commences on the day on which it received the Royal Assent.
3 Application to external Territories
This Act extends to all the external Territories.
In this Act, unless the contrary intention appears:
administrative decision means:
(a) a decision by or on behalf of the Commonwealth, a State or a Territory; or
(b) a decision by or on behalf of an authority of, or office holder of, the Commonwealth, a State or a Territory;
that is a decision of an administrative character (whether or not the decision is made under an enactment), and includes such a decision reviewing, or determining an appeal in respect of, a decision made before the commencement of this Act.
(a) an Act passed by the Parliament, by the Parliament of a State or by a Legislative Assembly of a Territory; or
(b) an instrument of a legislative character made under such an Act.
international instrument means:
(a) any treaty, convention, protocol, agreement or other instrument that is binding in international law; and
(b) a part of such a treaty, convention, protocol, agreement or other instrument.
5 International instruments do not give rise to legitimate expectations at law
The fact that:
(a) Australia is bound by, or a party to, a particular international instrument; or
(b) an enactment reproduces or refers to a particular international instrument;
does not give rise to a legitimate expectation of a kind that might provide a basis at law for invalidating or in any way changing the effect of an administrative decision.
6 Exclusion where State or Territory coverage
Section 5 does not apply to an administrative decision by or on behalf of:
(a) a State or Territory; or
(b) an authority of, or office holder of, a State or Territory;
if provision having the same effect as, or similar effect to that which, section 5 would otherwise have in relation to the decision is made by an Act passed by the Parliament of the State or Legislative Assembly of the Territory.
7 Other operation etc. of international instruments not affected
To avoid doubt, section 5 does not affect any other operation or effect, or use that may be made, of an international instrument in Australian law.
A26 The proposed legislation has attracted some criticism.
If the Government sees fit to enter into an international agreement, perhaps one in which it undertakes to secure certain basic human rights, it seems peculiar, almost hypocritical, to assert that such agreements have no effect (in the Teoh sense) unless legislation is passed to give effect to the treaty. Western countries, including Australia, have been very vocal in criticising other States for failing to live up to their international obligations towards their citizens, yet in cases like this a real risk arises that Australia may be cast in the same light, even if there may be sound constitutional reasons for adopting such a posture. Of course, one remedy in such a situation is simply to enact appropriate legislation.
The High Court made a telling comment that ratification of a convention is “a positive statement . . . to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention”. Ultimately, it seems that ratification may really be only a statement to the rest of the world.223