Australia and International Treaty Making Information Kit
FOR FURTHER INFORMATION CONTACT
Executive Director, Treaties Secretariat, International Organisations and Legal Division
Department of Foreign Affairs and Trade, Barton, ACT, 0221
telephone: (02) 6261 3072, fax: (02) 6261 2144
AUSTRALIA AND INTERNATIONAL TREATY MAKING
Australia's role in the negotiation of treaties and the domestic implementation of treaty obligations has aroused considerable interest in the Parliament, among State and Territory Governments, and in the general community, including business and other non-government organisations (NGOs).
Since the first edition of this publication in October 1994, two separate reviews of the treaty making process in Australia have been undertaken (see below) and on 2 May 1996 the Government announced a number of changes to the treaty making process. The changes are designed to increase the opportunity for Parliamentary scrutiny of treaties; enhance the provision of information on treaties to States and Territory Governments, industry, non-government organisations and the wider community; and lead to greater consultation with interested parties before Australia becomes a party to a treaty.
The reforms to the treaty making process now mean that all treaties must be tabled in both Houses of the Commonwealth Parliament for at least 15 sitting days before the Government takes action to bring the treaty into force. All treaties that are tabled in Parliament under the new arrangements are now accompanied by a National Interest Analysis, which notes the reason why Australia should become a party to the treaty. A Parliamentary Joint Standing Committee on Treaties has been established which inquires into and reports on treaties and National Interest Analyses that are tabled as well as any other question relating to a treaty or international instrument that is referred to it. The Government's proposal for the creation of a Treaties Council comprised of the Prime Minister, Premiers and Chief Ministers was supported by the Council of Australian Governments at its meeting in June 1996. The Council, which met for the first time in 1997, has an advisory function in relation to treaties and other international instruments of particular sensitivity and importance to the States and Territories. In addition, the Government agreed to establish a treaties database to allow individuals and groups with an interest in treaties to obtain information free of charge via the Internet. The combined effect of these reforms should lead to an increased involvement by Parliamentarians, State and Territory Governments and the wider community in Australian treaty making. (The press release announcing the reforms is included herein.)
In April 1995, the States and Territories presented a Position Paper on Reform of the Treaties Process (the State Paper) to the Council of Australian Governments (COAG). The State Paper contained ten recommendations dealing with Commonwealth-State consultation on treaties and the provision of information on treaties to Commonwealth and State and Territory Governments, as well as the public. COAG decided that the Commonwealth-State Standing Committee on Treaties (SCOT) should consider the proposals for reform and report to the next COAG meeting. At the June 1996 COAG meeting, Heads of Government noted the reforms made to the treaty making process announced by the Government on 2 May 1996, and agreed to the establishment of a Treaties Council and to a revised set of Principles and Procedures for Commonwealth-State-Territory Consultation on Treaties (a copy is included herein).
A report on the Commonwealth's treaty making power and the external affairs power prepared by the Senate Legal and Constitutional References Committee entitled Trick or Treaty? Commonwealth Power to Make and Implement Treaties (the "Senate Report'') was tabled in Parliament on 29 November 1995. The unanimous Senate Report contains eleven recommendations, which deal with domestic consultation on proposed treaties, dissemination of information relating to treaties and parliamentary involvement in the treaty making process.
The Government tabled its response to the Senate Report in both Houses of Parliament on 2 May 1996. (The Government's response to the Senate report is included. It is also recorded in Hansard on 2 May 1996 which is accessible via the Internet on the Parliament of the Commonwealth of Australia's homepage. Refer to the list of useful Internet web site addresses, included herein.)
The following questions and answers look at the international context in which contemporary treaty making takes place, as well as the domestic legal environment in which treaties, particularly multilateral treaties, are given effect in Australia. Australia's policy-making processes and the domestic consultations undertaken as part of these processes are also explained.
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.) A treaty may be called a "treaty'', "convention'', "protocol'', "covenant'' or "exchange of letters'' (please see Glossary).
As a general statement, if a document is not concluded between countries it will not be a treaty. An agreement between an Australian State or Territory and a foreign Government will not, therefore, be a treaty. Furthermore, 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. For example, all countries might vote in favour of a resolution of the UN General Assembly, but that resolution is not a treaty because those voting for the document do not intend that it should be binding at international law. Frequently, "declarations'', such as the Declaration on the Rights of the Child, are adopted by the General Assembly but those declarations are not treaties as they are not intended to be binding by reason of their adoption. However, such declarations may 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).
How can I find a copy of a treaty Australia is a party to?
There are a number of ways that individuals can obtain a copy of a treaty that Australia is a party to in either electronic format or hard copy. The Treaties Secretariat of the Department of Foreign Affairs and Trade established the Australian Treaties Library on the Internet in September 1996 (the Internet site is http://www.austlii.edu.au/dfat). The Treaties Library contains the Australian Treaty List, which will identify the year that the treaty is published in the Australian Treaty Series (ATS) and it is then possible to view or print the texts of Australian treaties for the years from 1901 through the ATS number. The Treaties Library is also the place where you can locate the National Interest Analyses that are now tabled in Parliament with treaties, the list of multilateral treaty actions under negotiation, the electronic version of this Treaty Information Kit as well as links to other treaty related Internet sites. While most public libraries will not have a hard copy of the ATS they will have Internet access and will therefore be able to print a copy of the treaty.
Where implementing legislation is required, the text of the treaty may be attached to the legislation. In these cases the Australian Treaty List specifies the year and number of the Commonwealth Acts the treaty appears in.
For those people who do not have access to the Internet, the Treaties Secretariat will continue to provide copies of treaties through the mail.
Why are Treaties necessary?
International relations are shaped by a wide range of factors, most desirably through rules formulated by international negotiation and agreement. A striking global trend in recent years has been the growth of technological innovation and its application in commerce, transport and communications, resulting in an enormous increase in the frequency and rapidity of global interaction. Another interrelated development is the tendency for problems to occur on a global scale, beyond the scope of any one nation to resolve. Such challenges require both national and international responses.
Treaties cover a wide range of subjects. Australia, for example, is a Party to agreements on defence and security, nuclear non-proliferation, trade, the environment, civil aviation, reciprocal social service and health arrangements, technological exchanges, and agreements designed to establish universal standards in relation to the treatment of civilians in time of war. 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 Organization, 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.
Treaties and conventions are important as they reflect agreements and understandings between national Governments. Arguably their importance is being accentuated as international relations grow in their complexity and sensitivity and as the world's interdependence intensifies. In the past few decades, the scope of issues subject to treaties has expanded. Australia has invested considerable energy into outlawing the use of weapons of mass destruction, into various aspects of law of the sea and into the international trade system.
The need for global rules on the protection and promotion of human rights, the environment, wildlife and the world's cultural and natural heritage is now widely accepted. Each is now recognised as an area of interest beyond the nation states most directly affected, and as an issue which does not respect national borders. So 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. Treaties reflect the agreements reached between sovereign Governments.
Treaties and Australia's National Interests
Why are international treaties important to Australia?
Australia participates in international standard setting processes because it is in the national interest to do so. Nation states, 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.
In a world where the projection of military and economic power was the main means by which national objectives were pursued, Australia would be vulnerable. Our geography would be seen as a point of isolation and our small population would be seen as a weakness. However, in a world governed by effective rules, Australia can have an influence beyond what our military and economic strength might suggest. We can advance our national objectives through shaping the standards and rules by which international relations are conducted. Indeed, geography can be an advantage. As Australia is not a member of a rigid regional grouping, we can build global or regional alliances to meet our needs. Our multicultural character means we can identify common cause more easily with other countries because of aspects of a shared value system.
International conventions bring considerable benefits in a wide range of areas to individual nations, particularly small and middle sized countries. Australia has used multilateral diplomacy to advance our national interests in specific ways. In the GATT Uruguay Round, we were successful in having agriculture included on the agenda of global trade liberalisation. Australia led the influential Cairns Group, a key participant in achieving a favourable outcome on agriculture in the Uruguay Round, bringing Australia well over $1 billion per annum in increased agriculture exports once the full effects of the agreement are felt. And the overall package of multilateral agreements concluded as part of the Uruguay Round (incorporated in the 1994 Marrakesh Agreement) is estimated to contribute 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 through diplomacy. 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.
How can Australia influence the terms of these treaties?
Australia has its say in the drafting of these treaties through active participation in the international fora in which they are negotiated. Maximising our influence requires a commitment to equitable arrangements, which bring the greatest possible benefit to the largest possible number. In the great majority of cases, their final content is acceptable to Australia. In some cases, of course, we (and others) may have to accept compromises if they are necessary to achieve equitable global rules. If our concerns are serious, Australia would consider remaining outside the treaty, or joining after entering a reservation in relation to a part of the treaty, should that avenue be open (the term "reservation'' is defined in the glossary contained herein).
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. Certainly, 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. However, implicit 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.
Where issues extend beyond the boundaries of any one country and management of an issue or problem cannot be achieved by a state acting alone a cooperative approach to the issue is essential. In this way, a state is able to exercise effective control within its own borders by strengthening its capacity to manage the broader environment in which it must function. But, ultimately, formal legal sovereignty is retained, as the power to enter into such arrangements remains with Government. The Government also retains the right to remove itself from treaty obligations if it judges that on balance the treaty no longer serves Australia's national and international interests. (Since 1996 Australia has tabled documents in Parliament foreshadowing its withdrawal from several treaties on the basis that these treaties no longer served Australia's 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. Nonetheless, ratification of a treaty does require a State to perform its obligations in good faith. But this is an exercise, not a relinquishing, of sovereignty.
Treaties and the Australian Government
What are the Australian Constitutional arrangements for Treaties?
Under the Australian Constitution, treaty making 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, Aviation Agreements etc. They are, however, considered by Ministers prior to approval being given by Federal Executive Council for signature of the treaty.
The Constitution does not confer on the Parliament any formal role in treaty-making. Notwithstanding this, on 2 May 1996, the Government announced a number of changes to the treaty making process designed to enhance Parliamentary scrutiny of treaties. All treaties are now tabled in both Houses of the Commonwealth Parliament for at least fifteen sitting days prior to binding treaty action being taken, with exceptions for urgent or sensitive treaties (examples of urgent treaty action were the Agreement of 5 December 1997 concerning the Neutral Truce Monitoring Group for Bougainville and the 29 April 1998 Protocol concerning the Peace Monitoring Group (made pursuant to and amending that Agreement).
The term "treaty action'' includes entering into a new treaty, negotiating an amendment to an existing treaty or withdrawing from a treaty. Treaties are generally tabled after the treaty has been signed for Australia, but before action is taken which would bind Australia under international law. Treaties are tabled in the Parliament with a National Interest Analysis 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 treaties library at www.austlii.edu.au/dfat The Joint Standing Committee on Treaties (JSCOT) was established in June 1996 to consider tabled treaties and National Interest Analyses. 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. To date, the Committee has provided detailed scrutiny and examination of all treaties tabled in Parliament. JSCOT reports, once tabled, are available through the Internet website at http://www.aph.gov.au/house/committee/jsct/index.htm or on LH OilWeb.
A list of multilateral treaties that are currently under negotiation or review is also tabled approximately twice a year and published on Internet in the Australian Treaties Library.
Where Commonwealth implementing legislation is necessary, Parliament will have a further opportunity to debate a treaty prior to action to become a party given the practice of passing implementing legislation before agreeing to a treaty. The Montreal Protocol on Substances that Deplete the Ozone Layer was not ratified by Australia until implementing legislation and regulations had been debated and enacted. As the negotiation process for major multilateral treaties is generally a drawn out and quite public process, parliamentary discussion on key issues often takes place during negotiations as the issues become publicly known. For example, the Climate Change Convention was negotiated over a period of years, during which time issues associated with the draft convention were the subject of questions without notice, questions on notice, and debate in the Parliament.
Isn't there something undemocratic about treaty-making being in the hands of the Executive?
The 1996 reforms to the treaty-making process have increased Parliament's role in the treaty process and ensured that it is both an open and democratic process. Furthermore, the Government conducting treaty negotiations on behalf of Australia having been democratically elected, has a duty of public disclosure to the Australian people, and is morally obliged to be responsive to popular wishes. Moreover, Australia's practice in recent years has been to include key "stakeholders'' such as business or NGOs on delegations attending treaty negotiations, ensuring that the views of interested sections of the community are available during the process of framing international obligations. Further, as discussed below, the Government engages in wide ranging consultation with interested parties from the Australian community at all stages through the negotiations.
How does the Government determine whether to become a party to a Treaty?
The key issue in determining whether to become a party to an international treaty is whether it is consistent with Australia's national interests. At the same time, because of their crucial importance and far-reaching effects, the practice is to consult widely before taking definitive treaty action.
The Government's decision on whether a treaty is in the national interest is based on information obtained from all relevant sections of the community. Consultation does not take place merely so that those with an interest feel included in the process, but more importantly because their views are an essential part of the judgement made by the Government as to whether a treaty is in the national interest.
With whom does the Commonwealth consult?
Wide-ranging consultations are the best means of ensuring broad community support for a multilateral treaty as well as specific support for a balanced outcome from those groups interested in the issues being negotiated. They also serve as a mechanism for the Government to provide information about the treaty in question and, if possible, develop a consensus within the Australian community.
The States and Territories
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. In 1996, Heads of Government agreed to the establishment of a Treaties Council with an advisory function consisting of the Prime Minister, Premiers and Chief Ministers. The Treaties Council is an adjunct to COAG and considers treaties and other international instruments of particular sensitivity and importance to the States and Territories. Another important mechanism for federal/state consultation is the Commonwealth-State-Territory Standing Committee on Treaties which consists of representatives from the Premier's or Chief Minister's Departments in every State and Territory. This committee receives on a quarterly 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. DFAT holds consultations twice a year with 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. However, consultation with all relevant groups in the community takes place outside such standing bodies where proposed treaty action is of interest to such groups. There are also numerous other occasions where the opportunities and forums offered by DFAT for consultation can be used to raise concerns that representatives may have about the treaty process.
Balancing competing interests
Consultation does not mean that any single group consulted can determine Australia's negotiating position. Indeed, this could never be the case because the groups consulted may support differing and at times opposing positions. The aim of the consultations is to give decision-makers, ultimately Ministers, access to a wide range of information and to provide relevant groups with the opportunity to present their positions to the Government. The final decision necessarily involves a balancing of competing interests with the aim of upholding a broader national interest.
Because 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, 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.
NGO and State and Territory Participation
Because developments at international conferences can be quite fast moving at times and expert views are needed on the spot to assist delegations, representatives from the States, Territories, industry groups and other NGOs often serve as advisers to Australian delegations. Apart from assisting the various delegations, these advisers are in a position to report back to their organisations on the room for manoeuvre for Australian initiatives and positions. The Government also seeks advice from affected groups on technical issues in the course of negotiations. This process is particularly heavily 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. As a result of the 1996 reforms to the treaty making process, 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 become bound by 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; however, signature is generally made subject to the deposit of an instrument of ratification, and a country is not legally bound by the treaty's 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, reliance can be placed on the external affairs power in s.51 (xxix) of the Constitution. The Tasmanian Dam Case and others establish that legislation based on the external affairs power, which is reasonably appropriate and adapted to giving effect to a treaty, will be constitutionally valid. However, when the Commonwealth is considering legislation to implement a treaty, it will normally rely on a range of available Commonwealth powers. For example, in giving effect to air navigation and shipping treaties, reliance is placed upon the trade and commerce power as well as the external affairs power. In many cases, there is no need to rely on the external affairs power to give effect to a treaty because the subject of that treaty already lies within other Commonwealth powers or because agreement has been reached with State and Territory Governments that they will enact appropriate legislation.
Are there any limits to the Commonwealth's treaty-making powers?
The Constitution grants powers, including the external affairs power, to the Commonwealth but also provides some limitations on the exercise of those powers. 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.
Finally, the conclusion of a treaty does not 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.
However, perhaps the most important constraint of all is the fact that treaty making processes in Australia operate within a democratic context which places a range of effective constraints on all exercises of executive authority. This includes, ultimately, the knowledge that action by the Commonwealth Government which was widely perceived as contrary to Australia's interests could result in 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:
(a) specific implementing action is required;
(b) if so, whether existing legislation (Federal or State) is adequate; and
(c) 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. However, even in cases where a treaty does not involve new or different standards or actions beyond those already enshrined in domestic law, the treaty and a National Interest Analysis are now tabled in Parliament and referred to the Joint Standing Committee on Treaties.
But relying on existing legislation can sometimes be a problem
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 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?
The blurring of national and international issues as a consequence of the globalisation of economic and political life has had a range of consequences in Australia. Treaties, as the fundamental instruments of international law, are therefore an increasingly important component of international relations and of Australia's own legal development. The Commonwealth's use of its powers to implement treaties domestically allows Australia to function as a full and constructive member of the international community.
Simultaneously, however, the States and Territories are also increasingly aware of the benefit in 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 globalisation of issues has seen changes in the way all levels of Government interact with the international system, and an increasing focus outward to the world.
At their June 1996 meeting, Australian Heads of Governments agreed to a revised set of Principles and Procedures for Commonwealth-State-Territory Consultation on Treaties which reflect the treaty-making reforms introduced by the Government in May 1996. This document sets forth 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. In their June 1996 COAG Communique, Premiers and Chief Ministers welcomed the treaty reforms and viewed the Treaties Council as a potentially important new Federal institution.
In addition to the Principles and Procedures there may be Commonwealth-State-Territory arrangements covering a particular subject area. For example, the 1992 Intergovernmental Agreement on the Environment sets out detailed Commonwealth-State-Territory mechanisms relating to the negotiation and implementation of environmental treaties. The Consultative Forum on Mutual Recognition Agreements was formed in 1996 to assist Commonwealth/State consultation on treaties and less than treaty status arrangements by which Australia secures recognition for its export standards in potential markets.
HOW AUSTRALIA BENEFITS FROM TREATIES
Following this introduction is a list setting out a range of bilateral and multilateral treaties from which Australia gains palpable benefits in a wide range of areas, benefits derived not only from the more obvious security and trade treaties, but also from international agreements which affect the daily lives of its nationals. For example, since colonial times, Australia has gained from postal treaties, shipping agreements and health treaties.
Since the Second World War, the pace of international activity, and thus the need for international agreements to regulate that activity, has increased. This trend towards globalisation is well documented, as a growing number of activities are conducted on a transnational basis, and national actions increasingly have international ramifications. Due to the rate at which contact takes place today between people at economic, political and social levels, without regard to national borders, policy makers in individual countries cannot afford to ignore international developments in any of these areas. Rather, they must try to influence those developments in order to protect and to promote their national interests. The growth of multinational corporations is one example of the globalisation trend, their success demonstrating how international cooperation has the potential to deliver a wider range of benefits than is possible for action planned and carried out wholly within national borders.
For these reasons, it is simply not realistic for Australia to opt out of the international system. Where the rest of the world is committed to setting up international networks in particular areas, such as trade, Australia cannot expect to maintain its rate of progress by acting alone. Australia, for example, has always been, and remains, heavily dependent on international trade, and, because of our relatively isolated geographical position, reliant upon efficient transport and communications systems. Australia can gain enormously from technological innovation and its application in trade, commerce, transport and communications and, in many areas, technological advances provide the most benefit where they are implemented cooperatively. The Government therefore needs to ensure that Australia has an effective handle on the international system, so that Australian industry can develop global markets. The treaties establishing the World Trade Organization demonstrate how much intergovernmental cooperation can benefit international commerce.
Access to the world's natural resources is more than ever governed by international agreements. For example, the United Nations Convention on the Law of the Sea (UNCLOS) establishes globally accepted regimes for access to the resources of the sea and the seabed. Australia played an important role in the negotiation of this Convention, and was able to ensure that Australian interests were and would continue to be protected. Along with specific bilateral treaties delimiting maritime boundaries between Australia and its neighbours, UNCLOS creates a stable climate in which Australian industries may formulate strategies for the development of this country's natural resources. The provisions of the Convention and the international agreements to which Australia is a party ensure that these resources are exploited and developed in a sustainable manner.
Our multicultural society and the increased contact between Australians and people from other countries have heightened Australian awareness of, and interest in, the social welfare of people around the world. The responses by Australians to the crisis in Rwanda and the conflict in the former Yugoslavia are indicative of Australian concern for problems which are geographically remote from Australia. International agreements can also assist with the protection of the rights of individuals, such as, for example, the International Covenant on Civil and Political Rights which has been accepted by countries in all regions. The Covenant provides for a basic level of human rights and forms the platform for building a greater global commitment to rights which we may take for granted.
Australians themselves have also gained directly from international agreements dealing with social issues. The Convention on the Elimination of All Forms of Discrimination Against Women is the basis for our Sex Discrimination Act, which provides Australian women with more opportunities and greater choice in many areas of their lives, and strengthens protection from discrimination. The Convention on the Elimination of Racial Discrimination performs a similar role in combating discrimination on the grounds of race. Australia is also party to a number of labour conventions, which enshrine basic rights for Australian workers.
Finally, it is clear that some problems can only be solved by concerted international action. To this end, treaties on extradition and drug trafficking, for example, have been concluded, recognising the fact that criminals do not respect national borders. Countries have also shown a greater tendency to address pressing environmental problems such as global warming and the depletion of the ozone layer through cooperative action. If Australia did not participate in the negotiation of environmental treaties, it would have no way of ensuring that Australians' interests, including those interests of industry, were taken into account in formulating solutions to environmental and other problems.
UNESCO Regional Education Conventions (1979 and 1983)
The Conventions set out, and encourage States Parties and their educational institutions to practise, principles for recognition of studies and qualifications for entry to higher education. The aim is to ensure that a qualification issued by one member Party is recognised by another member Party provided that it is comparable. The Conventions therefore provide a gateway for recognition of Australian qualifications for academic purposes by other Convention Parties. This potentially has positive implications for Australians who wish to study overseas and for the marketing of Australian education to overseas students.
The Conventions also encourage Parties to make information about higher education institutions as widely accessible as possible to each other's students and researchers.
Many of the major threats to the world's environment extend beyond national borders, and require solutions to be worked on a global scale if they are to be effective. Issues such as global warming, depletion of the ozone layer and threats to biodiversity are problems that must be resolved by agreement among the global community but have a direct impact on individual states such as Australia. Environmental conventions are therefore concerned with problems of an international, and often global, dimension for which public opinion expects solutions but which no country can solve unilaterally. Only by contributing to the multilateral protection of the global commons can each country maximise and benefit from global ecological security. This collective and individual security can best be achieved through arrangements involving the greatest possible number of countries.
Framework Convention on Climate Change (1992) and Kyoto Protocol (1997)
The United Nations Framework Convention on Climate Change (UNFCCC) was signed at the Rio Earth Summit in June 1992. The Convention's ultimate objective is to stabilise "greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic (human-induced) interference with the climate system". The Convention also established the implied target for Annex I countries, comprising OECD countries, Russia and Eastern Europe, of stabilising greenhouse gas emissions at 1990 levels by 2000. The Convention entered into force in March 1994, with Australia as an original party.
The commitments under the Convention were reviewed at the First Conference of the Parties in Berlin (1995) and agreement was reached on the need for stronger long term action in order to help meet the Convention's ultimate objective. As a result, in April 1995, the Berlin Mandate was established for Annex I countries to negotiate a protocol containing strengthened commitments by 1997. The end result of these negotiations was the Kyoto Protocol, adopted at the Third Conference of the Parties (Kyoto, 1997), which provides for differentiated country commitments and a commitment by developed countries to reduce their collective emissions by 5.2%, on 1990 levels, by 2008-2012. Australia signed the Kyoto Protocol in April 1998.
Australia has important interests at stake in relation to greenhouse gas emissions. Through the Convention and the Protocol, Australia participates in global action to protect both our own interests and those of the global environment. These instruments provide opportunities for the use of Australian expertise which is of particular relevance for developing countries. The three Kyoto (flexibility) mechanisms for achieving greenhouse gas reductions included in the Protocol - international emissions trading, the Clean Development Mechanism (CDM), and joint implementation - offer the potential to engage the energies of the market place and the private sector in achieving emissions reductions in a cost effective manner. For example, through the CDM, developed countries can implement cooperative projects in developing countries which assist in reducing emissions of greenhouse gases or enhancing sinks for greenhouse gases, with provision for the transfer of emission credits. The Convention and Protocol also provide opportunities for the export of Australian alternative energy products, such as solar or wind power units. Australia is a world leader in the development of such projects.
Desertification Convention (1994)
The objective of the Desertification Convention is to combat desertification and mitigate the effects of drought. The Convention provides an opportunity for Australia to participate in finding solutions to a global problem which is estimated to affect the lives of 900 million people. In the negotiation of the Convention, which Australia ratified in 2000, Australia has been able to demonstrate ways to provide a high standard of land stewardship in areas which for many Australians represent "the real Australia".
Convention on Biological Diversity (1992)
The objectives of the Convention on Biological Diversity are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources. The conservation and sustainable use of biodiversity is an indispensable foundation of ecologically sustainable development and is vital for maintaining the planet's life support system. Australia's future economic, trading and social well being depend on maintenance of Australia's and the world's biological resources.
The Convention helps Australia, as one of the world's twelve biologically megadiverse countries, to preserve its natural heritage. It also enables Australians to benefit from the prevention of further loss of diversity of flora and ecosystems, and from the sustainable use of biological resources, both in Australia and globally.
The Convention assists all Australians in receiving a fair return from the commercial development of Australia's genetic resources, and establishes the principles of an international framework through which Australia can be assured of access to the genetic resources of other countries on which Australia depends. Greater international commitment to conservation and sustainable use of biological diversity creates opportunities for research involvement by the Australian scientific community and export opportunities for the Australian environment and biotechnology industries.
In January 2000 Parties agreed to a Protocol to the Convention on Biosafety. The Cartagena Protocol establishes an international regime to ensure countries have sufficient information to take decisions on the environmental impact of trade in living (genetically) modified organisms. The Protocol opened for signature in June 2000 and will enter into force following ratification by 50 countries.
Other important areas identified for priority treatment under the Convention's work program include marine and coastal biodiversity, access to genetic resources, the relationship between agriculture and biodiversity, the role of indigenous and local communities in the conservation and sustainable use of biodiversity, and the establishment of a clearing house for scientific and technical cooperation.
Convention for the Protection of the World Cultural and Natural Heritage (1975) (under the auspices of UNESCO)
The objective of the World Heritage Convention is to promote cooperation among nations in order to protect heritage which is of such universal value that its conservation is concern of all people. Countries commit themselves to ensuring the identification, protection, conservation, preservation and transmission to future generations of world heritage properties.
Australia has played a leading role in the development of the Convention and ongoing associated activities. A number of significant heritage conservation actions have been undertaken in Australia as a result of the Commonwealth making decisions that contribute to Australia fulfilling its obligations under the Convention.
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989)
The objective of the Basel Convention is to ensure the sound management of international movements of hazardous wastes. It is intended primarily to prevent irresponsible waste-brokering operations, which dump waste in developing countries. Australia's involvement in the Convention maintains our international standing on hazardous wastes issues and so allows Australia to influence international trade policy to promote environmental protection. It also promotes regional environment protection.
International Tropical Timber Agreement (1983) (ITTA)
This Agreement is aimed at promoting stability in the international tropical timber trade and assisting tropical timber producers in developing countries.
Australia imports about one fifth of its sawnwood needs, including almost all of its tropical timber (which amount to about 15% of timber imports). The availability of tropical timber will decline rapidly unless sustainable forest management practices are implemented soon. Australian timber importers and users benefit from our ITTA membership through the Agreement's provision of technical assistance on sustainable forest management, which helps assure a continued supply of tropical timbers. Wider environmental concerns in the community such as climate change (because of forests' role as "carbon sinks'') and biodiversity are addressed by improved forest management practices in tropical timber producer countries.
A successor agreement to the 1983 ITTA was concluded in January 1994 and provisionally came into force on 1 January 1997. ITTA 1994 further integrates sustainability considerations into tropical timber production, particularly through the commitment by tropical timber producers to the Year 2000 target. By this time, all exports of tropical timbers should come from sustainably managed sources.
Vienna Convention on Substances that Deplete the Ozone Layer (1985) and Montreal Protocol (1987)
The Convention and Protocol phase out ozone depleting substances, which are of particular benefit to Australians, given our geographical position. Australians are often especially vulnerable to the type of skin damage which results from ozone layer depletion in the southern hemisphere and can lead to melanoma and other types of skin cancers .
Convention on Nuclear Safety (1994) and the Liability Regime for Civil Nuclear Damage
The Nuclear Safety Convention and the Liability Regime for Civil Nuclear Damage are intended to minimise the prospects of a recurrence of Chernobyl-type accidents and ensure that proper compensation is payable by nuclear power generating companies and States for loss caused by their activities. With the possibility of a growing nuclear power industry and related activities in our region, these are important developments for all Australians.
Convention on Wetlands of International Importance (1971) (Ramsar Convention)
The Convention originated as a means of protection of wetland habitats important to migratory birds. In 1990, the name was changed to reflect the Convention's interest in all wetland value and in encouraging the management of wetlands based on ecologically sustainable principles. The Convention is important to Australia because of our many species of migratory birds reliant on wetland habitat.
The Convention has heightened public awareness of the ecological importance of wetlands and facilitated the development of programs, in Australia and elsewhere, to designate sites as Wetlands of International Importance. Wetlands have significant economic importance as, for example, fishery breeding grounds. Preservation of wetlands and development of management plans also contribute to the preservation of flora and fauna and ecosystems, which are valuable to the community both for public enjoyment and as a scientific resource.
International Plant Protection Convention (1951)
This Convention aims to prevent the spread of plant pests and diseases through international trade. It gives Australia access to overseas material, such as resources important for the development of Australian horticulture, with a reduced risk of important pests and diseases.
International Convention for the Regulation of Whaling (1946) and Protocol (1956)
This Convention began as an instrument for the controlled harvesting of whales and has since evolved into an effective channel for the progressive ending of whaling. The 1982 moratorium on commercial whaling was enacted under this Convention, as was the 1994 Southern Ocean Whale Sanctuary. Australia and New Zealand have jointly proposed the creation of a South Pacific Whale Sanctuary under the Convention.
As a result of these and other measures under the Convention, the number of whales is increasing and several endangered species of whale can now be seen in growing numbers off the Australian coast.
Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973) (CITES)
This Convention and its Appendices help protect endangered species which are, or may be, affected by trade. It thus assists in the continued existence of unique Australian flora and fauna and the preservation of global diversity.
Convention on the Conservation of Migratory Species of Wild Animals (1979) (CMS or Bonn Convention)
This Convention commits range states to take action to conserve migratory species, especially those under threat of existence. It thus contributes to the conservation of migratory wildlife. Australia hosted an international meeting in Hobart in July 2000 aimed at securing agreement to a framework for international cooperation to conserve southern hemisphere albatross.
Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (1978)
The Convention prohibits military or other hostile uses of environmental modification techniques which can cause "widespread, long-lasting or severe'' damage to the environment. The Convention protects Australians by prohibiting in armed conflict situations the use of scientific techniques for environmental modification which might otherwise be harmful to the environment and human welfare.
Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals & Pesticides in International Trade, 1989 (PIC Procedure)
The Convention seeks to provide for the identification of banned or severely restricted chemicals in international trade and the formalisation of existing, voluntary arrangements to secure consent to their continued import and use. It has yet to enter into force, but all Parties agreed to apply its provisions on an interim, voluntary basis. The existing voluntary arrangements cover industrial chemicals and pesticides and comprise a number of straightforward steps which enable importing States to indicate whether they wish to continue to receive chemicals which have been banned or severely restricted, by another country, on the basis of the health and/or environmental risk they pose. Australia signed the Convention in July 1999, subject to ratification.
Regional Environmental Conventions
The five South Pacific environmental conventions listed immediately below were negotiated over a fifteen year period and provide a number of benefits to Australians, including:
- the sustainable development of local and regional industries, which will promote regional security and provide the greater economic and social independence of the countries in the South Pacific region, leading to the reduction of their dependence on foreign aid, principally from Australia.
- the preservation of local ecosystems, retaining the aesthetic beauty of our region.
- the addressing of environmental problems facing the South Pacific at a regional, as opposed to national, level thereby assisting the prevention of environmental degradation on a scale which could lead to environmental refugees looking to Australia for resettlement.
Convention on the Conservation of Nature in the South Pacific (1976)
The purpose of the Convention is the conservation, utilisation and sustainable development of the natural resources of the South Pacific region from nutritional, scientific, educational, cultural and aesthetic points of view, including indigenous customs and traditional cultural practices. The Convention facilitates good relations between Australia and other countries of the South Pacific, enabling them to share their nature conservation expertise, and work together to solve management problems.
Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (1986)
The purpose of the Convention is to prevent, reduce and control pollution of the marine and coastal environment of the South Pacific region from any source, and to ensure sound environmental management and development of natural resources. The Convention preserves the sovereign rights of states to exploit, develop and manage their own natural resources, whilst recognising their duty to protect and preserve the environment and ensuring that activities within their jurisdiction or control do not cause damage to the environment elsewhere. In particular, it provides that states should harmonise their environmental policies at the regional level.
Agreement establishing the South Pacific Regional Environment Programme (1990) (SPREP)
The purposes of SPREP are to promote cooperation in the South Pacific region and to provide assistance in order to protect and improve the regional environment and ensure sustainable development for present and future generations. The SPREP Convention and its Protocols also set down rules about dumping and cooperation in combating pollution emergencies. These instruments are especially useful for Australia, because although some of the Pacific island states are not parties to the relevant international conventions, under the regional SPREP Convention they are nevertheless subject to obligations similar to those applied to Australia by the international conventions (see also Marine Pollution).
Convention for the Prohibition of Fishing with Long Drift-nets in the South Pacific (1989)
Parties to this Convention are required to ensure that their nationals and vessels are prohibited from engaging in drift-net fishing activities within the Convention Area in the South Pacific (Articles 2 and 3). The increasing fishing capacity induced by large scale drift-net fishing threatens fish stocks in the South Pacific region. This particular method of fishing also endangers the lives of non-target species including dolphins, sea turtles and sea birds. By outlawing this method of fishing, the Convention contributes to the conservation and better management of the marine living resources of the South Pacific region and limits the possibility of by-catch of dolphins, sea turtles and sea birds.
Regional Convention on the Transboundary Movement of Hazardous Wastes (1995) (Waigani Convention)
The main purpose of this Convention is to impose a ban on the importation of all hazardous and radioactive wastes from outside the Convention Area to Pacific Island Developing Parties. It also ensures that any transboundary movements of hazardous wastes within the Convention Area are completed in a controlled and environmentally friendly manner. Australia ratified the Convention in 1998.
Plant Protection Agreement for the South-East Asia and Pacific Region (1956)
This Agreement aims to limit the spread of plant pests and diseases within the region through cooperation between its parties on plant matters. The development of plant material under reduced pest/disease risk conditions increases the potential commercial benefits for the Australian horticultural industry by increasing our ability to access regional and international markets.
Bilateral Agreements on the Protection of Migratory Birds
Australia has negotiated bilateral agreements with Japan (1974) and China (1986) to protect species of birds which migrate between Australia and those countries. The nature of these species obviously means that unilateral action by Australia would be insufficient to ensure their conservation. The agreements foster scientific and cultural interchanges between the countries involved.
Torres Strait Treaty (1978)
One element of this treaty provides that within an area described as the Protected Zone, Australia and Papua New Guinea take special measures to protect the marine environment. This is particularly important for Australia as activities within Papua New Guinea's territorial waters may have effects in Australian coastal areas, including the Great Barrier Reef.
Multilateral conventions provide the framework for extensive international cooperation in Antarctica, more than one-third of which is claimed as the Australian Antarctic Territory.
Antarctic Treaty (1959)
This treaty designates Antarctica as an area which is to be used for peaceful purposes only. It benefits Australians through the prohibition of military activity in Antarctica and the promotion of international cooperation in science. The latter is of particular importance in the context of renewed concern over climate change. The Treaty prohibits nuclear explosions and the disposal of radioactive waste material in the Antarctic region.
Protocol on Environmental Protection to the Antarctic Treaty (1991) (the Madrid Protocol)
The Madrid Protocol and its Annexes commit the Parties to the comprehensive protection of the Antarctic environment, designating Antarctica as a natural reserve, devoted to peace and science. It prohibits any mining in Antarctica for at least 50 years.
Convention on the Conservation of Antarctic Marine Living Resources (1980) (CCAMLR) and Headquarters Agreement (1986)
CCAMLR protects the ecosystem of the seas surrounding Antarctica and promotes the sustainable use of the resources of these seas. The location of the secretariat is Hobart, which enhances that city's status as a centre of Antarctic expertise. CCAMLR helps ensure that the Antarctic waters are not over-fished and that the wildlife of the Antarctic region is maintained for the enjoyment of all.
Multilateral conventions have been concluded to address the problems of marine pollution. As an island continent with a long coastline and unique offshore fauna and flora, Australia especially benefits from the rules established by the following Conventions. In one sense, the less these Conventions need to be used, the more successful they can be seen to have been.
Part XII of UNCLOS sets up a general legal framework for marine environment protection. The Convention imposes obligations on States Parties to prevent, reduce and control marine pollution from the various major pollution sources, including pollution from land, from the atmosphere, from vessels and from dumping (Articles 207 to 212). Subsequent articles provide a regime for the enforcement of national marine pollution laws in the many different situations that can arise.
Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (1972) (the London Convention)
The London Convention regulates the dumping of wastes and other matter at sea. Article 4 provides a general prohibition on dumping of wastes except as specified in the Convention. The Convention has annexed to it two lists of substances, the "black list'' of substances which may not be dumped at all, and the "grey list'' of substances which may only be dumped under a specific permit. The Convention has been highly successful in prohibiting the dumping of environmentally harmful substances.
International Convention for the Protection of Pollution from Ships (1973) and Protocol (1978)
This Convention and Protocol (together known as MARPOL 73/78) build on earlier conventions on the same subject. MARPOL is concerned with operational discharges of pollutants from ships. It contains five Annexes, dealing respectively with oil, noxious liquid substances, harmful packaged substances, sewage and garbage. Detailed rules are laid out as to the extent to which (if at all) such substances can be released in different sea areas.
Specific provisions dealing with the protection of the Great Barrier Reef are contained in Annexes I, II, IV and V of MARPOL, whereby the outer edge of the Great Barrier Reef is treated as the coastline for measuring distances under MARPOL. This allows for greater Australian legislative protection of the Great Barrier Reef than would otherwise be permitted at international law, and so contributes to the preservation of a unique environmental resource.
Prevention and Remediation of Accidents at Sea
International Convention on Oil Pollution Preparedness, Response and Cooperation (1990)
The Convention was a response to the Exxon Valdez oil spill in Alaska in 1989. It sets up a system of oil pollution contingency plans and cooperation in fighting oil spills.
International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969)
The Convention gives States Parties powers to intervene on ships on the high seas when their coastlines are threatened by an oil spill from that ship.
International Convention on Civil Liability for Oil Pollution Damage (1969)
The Convention and the associated International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1971) set up a system of compulsory insurance and strict liability, up to a certain figure, for damages suffered as a result of an oil spill accident. Any damage suffered as a result of major oil spills is potentially so large that, in the absence of such an international system, it is unlikely that sufficient money could ever be recovered from owners to compensate effectively for the environmental degradation caused.
Bilateral Reciprocal Health Care Agreements
Australia is currently party to a number of reciprocal Health Care Agreements, for example with the United Kingdom, New Zealand, Italy, Malta, Sweden, the Netherlands and Finland.
Under these Agreements, short term visitors who need immediate and necessary medical treatment have access to the host country's public health care system as public patients on the same basis as residents of that country. This means they receive treatment with the same privileges and liabilities in terms of any patient payments (for example, in Australia patient "gaps" for medical services or patient contributions for pharmaceutical benefits).
Australians travelling in those countries are therefore protected from exorbitant medical bills if they are injured or fall ill.
International Covenant on Civil and Political Rights (1966) (ICCPR)
Following Australia's ratification of the ICCPR in 1980, the Human Rights Commission was established the following year. In 1986, the Human Rights and Equal Opportunity Commission (HREOC) replaced the original Commission, and now acts as Australia's national authority in the field of human rights. Through its activities, it increases understanding, acceptance and observance of human rights in Australia and promotes social justice and equal opportunity. It handles complaints from individuals and conducts educational, promotional and research programs in relation to a wide variety of legislation dealing with civil and political rights. HREOC also has cooperative arrangements with state Equal Opportunity bodies, non-governmental organisations and various legal institutions.
Optional Protocol to the ICCPR (1966)
The Optional Protocol enables the UN Human Rights Committee, established pursuant to Article 28 of the ICCPR, to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the ICCPR. Australia acceded to the Optional Protocol in 1991, giving people in Australia the right to bring complaints of human rights violations before the Committee. As at June 2000, 30 cases had been lodged against Australia. Eleven complaints have been declared inadmissible, four have been withdrawn or discontinued and the merits of four have been considered. Of these the Committee was of the view that the individuals' rights under the ICCPR had been breached by Australia in two instances.
Second Optional Protocol to the ICCPR (1989)
The Second Optional Protocol was adopted in 1989 with the objective of eliminating the death penalty. Australia acceded to the Protocol in 1990 after ensuring that capital punishment had been abolished by law in all its States and Territories. Australia therefore has undertaken an international obligation not to execute any person within its territory (no execution has taken place in Australia since 1967).
International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR)
The ICESCR recognises, inter alia, the right to health, education, housing, work, form and join trade unions, social security, an adequate standard of living, and a cultural life. The ICESCR requires progressive realisation of the rights recognised in it by States Parties. Australia submitted its first comprehensive report under the ICESCR in June 1998.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (CAT)
Australia acceded to the CAT in 1989 and accepted the competence of the Committee against Torture, under articles 21 and 22 of the CAT, to consider matters relating to inter-state disputes and communications from or on behalf of individuals in 1993. Fifteen cases have been lodged under article 22: of these only two have proceeded to consideration on the merits, with the Committee reaching the view in one of these cases that there was a substantial risk to individual's rights would be breached if he were returned to Somalia. The CAT is set out in the Schedule to the Crimes (Torture) Act 1988 (Cth). This provides that if a person who is acting as a public official in an official capacity commits an act of torture outside Australia which would have been punishable if committed within Australia, that person may be tried for the relevant offence.
Convention on the Elimination of All Forms of Racial Discrimination (1966) (CERD)
The Convention provides the basis for the Racial Discrimination Act 1975, which makes racial discrimination illegal. Article 14 of the CERD also provides for individual complaints procedures to be received by the Committee on the Elimination of Racial Discrimination. To date, four cases have been lodged under article 14. The Committee declared one case inadmissible and that the other two revealed no violation.
The Office of International Law in the Commonwealth Attorney-General's Department is responsible for the preparation of Australia's response to communications lodged under the international complaints mechanisms.
Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW)
The Convention provides the basis for the Sex Discrimination Act 1984. The Act provides the legislative basis for more choices, better opportunities and freedom from discrimination for women in Australia. Through the Act, the Convention has helped to bring about a change in Australia's cultural infrastructure, leading to a better Australia for both women and men.
Convention on the Rights of the Child (1989) (CROC)
The Convention on the Rights of the Child has been the impetus for a number of government measures to protect the rights of children, including the establishment of the National Child Protection Council.
ILO Convention 29: Forced Labour (1930)
The Convention provides that each ratifying Member shall undertake to suppress the use of forced or compulsory labour in all its forms within the shortest possible period with a view to complete suppression. During the transitional period, recourse to forced or compulsory labour may have been had for public purposes only and as an exceptional measure, subject to conditions and guarantees laid down in the Convention.
ILO Convention 87: Freedom of Association and Protection of the Right to Organise (1948)
The Convention provides that all workers and employers shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing, without previous authorisation.
ILO Convention 98: Right to Organise and Collective Bargaining (1949)
The Convention provides that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment, particularly in regard to acts calculated to make employment subject to non-membership of a trade union or to cause dismissal of, or prejudice to, a worker by reason of union membership or participation in union activities.
ILO Convention 100: Equal Remuneration (1951)
The Convention requires parties to ensure the application to all workers of the principal of equal remuneration for men and women workers for work of equal value. The term ´equal remuneration for men and women workers for work of equal value'' refers to rates of remuneration established without discrimination on the grounds of sex. This principle may be applied by means of national laws or regulations, legally established or recognised machinery for wage determination, collective agreements between employers and workers or a combination of these various means.
ILO Convention 105: Abolition of Forced Labour (1957)
The Convention requires parties to undertake to suppress and not to make use of any form of forced or compulsory labour as a means of suppressing political views or views ideologically opposed to the established political, social or economic system; or as a method for mobilising and using labour for purposes of economic development; as a means of labour discipline; as a punishment for having participated in strikes; or as a means of racial, social, national or religious discrimination.
ILO Convention 111: Discrimination (Employment and Occupation) (1958)
The Convention requires each party to declare and to pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating discrimination.
ILO Convention 135: Workers' Representatives (1971)
The Convention is concerned with the protection of, and facilities to be afforded to, workers' representatives.
ILO Convention 156: Workers with Family Responsibilities (1981)
The Convention applies to men and women workers with responsibilities for their dependent children or other members of their immediate family where such responsibilities restrict their possibilities of participating in economic activity. It provides that each party shall make it an aim of national policy to enable these persons to exercise their right to work, without discrimination, and as far as possible without conflict between employment and family responsibilities.
Rights of Indigenous Australians
Torres Strait Treaty (1978)
The Treaty allows the continuation of traditional activities and freedom of movement by the Torres Strait Islanders and coastal Papua New Guineans in the Protected Zone between Australia and Papua New Guinea.
There are a broad range of treaties, both bilateral and multilateral, which deal with various aspects of law enforcement. These treaties create a framework for international cooperation in the area of law enforcement and in certain cases provide for the suppression of crimes of particular international concern. Participation in cooperative law enforcement treaties is essential to avoid the creation of a criminal haven in Australia. For this reason, the Australian Government participates actively in regimes which promote international cooperation on law enforcement issues.
Bilateral Mutual Assistance Treaties
Such treaties are important tools in the arsenal of Australian law enforcement agencies in dealing with sophisticated and complex criminal activity. Organised crime groups are not constrained by national borders. Efforts to combat these groups would be seriously hampered if Australian agencies could not seek the assistance of their counterparts in other countries in investigations. The provision of such assistance is facilitated where Australia has a bilateral treaty regarding mutual assistance in criminal matters with the country concerned. Where evidence exists in those countries which is wanted for use in prosecutions in Australia, it can also be obtained pursuant to such a treaty. If proceeds of a crime committed in Australia are located in another country, such a treaty can facilitate the seizure and confiscation of those proceeds. Australia has mutual assistance treaties with 18 countries.
Bilateral Extradition Treaties
There are occasions where an alleged offender is wanted for trial in Australia but is outside the country. In such cases, if the alleged offender is located in a country with which Australia has a bilateral extradition treaty, then steps can be taken to seek the alleged offender's extradition to stand trial in Australia. If Australia did not have an extensive network of extradition treaties with other countries, persons who had committed serious crimes, but had managed to leave the country, could well escape prosecution. Australia currently has over 28 modern bilateral extradition treaties, and other extradition arrangements which cover more than 60 countries world-wide.
United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)
The Convention is intended to suppress the production, sale and trafficking of narcotic drugs and psychotropic substances. The Convention, among other things, imposes obligations on parties in relation to extradition, mutual assistance in criminal matters and the confiscation of proceeds of crime. Failure by Australia to participate in these conventions would increase the amount and availability of narcotics in Australia. These anti-narcotics treaties are a crucial part of addressing the drug problem at its source.
The Hague Convention on the Civil Aspects of International Child Abduction (1980)
The Hague Convention requires contracting states to take appropriate measures to ensure the prompt return of children abducted from one country to another.
A positive strategic environment is essential to Australia and, therefore, treaty regimes which contribute to our national security enhance the lives of all Australians.
The UN Charter itself is obviously the most important of these treaty regimes.
The ANZUS Treaty (1951) which formalises the Australia-US defence alliance remains vitally important to Australia's security. The alliance is based on a close alignment of enduring strategic interests with the United States, in particular our shared interests in a stable and secure Asia-Pacific region. The alliance also provides a framework for valuable practical cooperation in areas such as intelligence, access to leading edge defence technologies, and privileged logistics and support arrangements. The United States suspended its ANZUS Treaty obligations to New Zealand in 1986, but for Australia the Treaty continues to provide the framework for our bilateral defence cooperation with New Zealand as well as with the United States.
The Five Power Defence Arrangements (1971) were established as a consultative arrangement between Australia, Malaysia, New Zealand, Singapore and the United Kingdom to provide a practical basis for continued bilateral and multilateral cooperation between the defence forces of the participating countries. While the focus of the FPDA is on the external defence of Malaysia and Singapore, the cooperative activities conducted under the Arrangements contribute positively to the regional security environment and thereby to Australia's security interests and objectives.
Global security regimes
Treaty on the Non-Proliferation of Nuclear Weapons (1968) (NPT)
The Nuclear Non-Proliferation Treaty commits non-nuclear weapon states to not acquiring nuclear weapons and prohibits the transfer of nuclear weapons (or the know-how to make nuclear weapons) to non-nuclear weapon states.
The wide adherence to the Treaty demonstrates a global commitment to its objectives, which has discouraged States from acting inconsistently with those objectives, and has facilitated a cooperative global response when those objectives have been threatened by individual States.
The Treaty is backed up by an effective system of on-site verification in the form of International Atomic Energy Agency safeguards. Australia's system of bilateral nuclear Safeguards Agreements also supports the NPT regime and ensures that Australian uranium exports can only be used for peaceful non-explosive purposes and used only by carefully selected bilateral partners.
The 1995 NPT Review and Extension Conference decided without recourse to a vote to extend the Treaty indefinitely. This very broad support for indefinite extension was facilitated by agreement on an accompanying package of decisions to strengthen the treaty review process and to adopt a set of principles and objectives on nuclear non-proliferation and disarmament.
Comprehensive Test Ban Treaty (1997) (CTBT))
The Comprehensive Test Ban Treaty, which outlaws nuclear explosions for all time, was adopted by the United Nations General Assembly in New York on 10 September 1996 and opened for signature on 24 September 1996. Australia signed on that day as did the five nuclear weapon states. Signature of the Treaty constitutes a political and moral commitment to renounce nuclear testing and is a vital step in the nuclear non-proliferation and disarmament process.
The CTBT represents the culmination of decades of effort by Australia and other countries to stop nuclear testing. Australia led international action to have the Treaty adopted by the UNGA when the Conference on Disarmament reached stalemate in the final stages of the negotiations. Pending entry into force, a CTBT Preparatory Commission has been established to carry out the necessary preparations for the Treaty's effective implementation, including the establishment of the International Monitoring System.
Chemical Weapons Convention (1993) (CWC)
The Chemical Weapons Convention, which entered into force on 29 April 1997, provides for a global ban on all aspects of chemical weapons development, production and transfer, as well as for the destruction of all existing chemical weapon stocks and production facilities. It is the first comprehensively verifiable multilateral treaty to ban an entire class of weapons and includes verification procedures to ensure that all states parties comply with the provisions of the Convention. The verification machinery is administered internationally by the Organisation for the Prohibition of Chemical Weapons (OPCW) located in the Hague. The Chemical Weapons Convention Office (CWCO) in Canberra is responsible for implementing the provisions of the treaty in Australia and maintains regular contact with the Australian chemical industry.
Australia played a leading role in the negotiation of the Convention and will continue to play an active role in the operation of the OPCW. This level of involvement enhances Australia's image internationally as a country which can contribute constructively to the resolution of global security problems.
Biological Weapons Convention (1972)
The control, and if possible the final elimination, of weapons of mass destruction, is high on the international agenda. The Biological Weapons Convention was signed on 10 April 1972, and entered into force for Australia on 5 October 1977. The Convention bans the production, development, stockpiling and acquisition of biological weapons and their delivery systems.
Australia attaches great importance to the Convention as the sole global instrument for the abolition of biological weapons. Biological weapons are not only inhumane but also capable of causing large scale casualties. The mere possession of such weapons by one or more countries in a region would seriously erode the trust in that region. Biological weapons proliferation within Asia, for example, would harm the development of the productive economic and international security environment which Australia and others in the region are seeking. Biological weapons proliferation in other regions would weaken global security as a whole, and could possibly encourage interest in biological weapons in our own region.
Australia will continue to work to strengthen the Biological Weapons Convention to ensure that Australians can continue to enjoy an environment free of the risk of biological weapons proliferation. Australia is playing leading role with respect to negotiations on a verification protocol to the Convention.
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines, and on their Destruction (1997) (the Ottawa Convention)
This Convention was opened for signature on 3 December 1997. Australia signed it on that day and ratified it on 14 January 1999 following parliamentary scrutiny of the Convention and the enactment of legislation to enforce its provisions nationally. The Convention entered into force generally on 1 March 1999 and for Australia on 1 July 1999. The First Conference of States Parties to the Convention was held in Maputo, Mozambique 3-7 May 1999, and the second will be held in September 2000.
States adhering to the conditions of the Convention agree never to use, develop, produce, stockpile or transfer anti-personnel mines. Each state must agree also to the destruction of stockpiled anti-personnel mines under its jurisdiction or control within 4 years of the Convention's entry into force for that state. Australia destroyed the bulk of its stockpile in September and October 1999. A minimum number of mines may be retained for the development of and training in mine detection, mine clearance, or mine destruction techniques - Australia has maintained 10,000 mines. Each ratifying state must destroy emplaced anti-personnel mines within its territory within 10 years of the date of entry into force of the Convention (Australian does not have anti-personnel mines emplaced within its territory). There are provisions for extensions of this time period for severely mine-affected states. States in a position to do so are under a general obligation to provide support for mine clearance and mine awareness programs, and assistance to mine victims. Australia contributes to these activities through its commitment to provide $100 million by 2005 for demining and victim assistance programs, focusing on our region. States also undertake to provide information to a United Nations database on mine clearance technologies and expertise.
The Convention provides for monitoring of compliance with its provisions by means of annual reports to the United Nations Secretary-General, the depositary of the Convention.
Geneva Conventions for the Protection of War Victims and Additional Protocols (1949 and 1977)
The four 1949 Geneva Conventions and the 1977 Additional Protocols regulate and control the conduct of international and non-international armed conflicts. The Conventions and Additional Protocols establish a humanitarian law regime which is designed to protect Australian Defence Force personnel, belligerents and civilians (whether Australian or otherwise) in armed conflict situations by specifying rules for the humane conduct of the conflict.
The Conventions and Protocols also benefit Australians by promoting international peace and security by seeking to prevent abuses and excesses which might otherwise prolong a conflict, whether involving Australia or not, or sow the seeds of a future conflict. Moreover, they contain enforcement provisions which are intended to deter individuals and states from inhumane conduct and thus contribute to the restoration of peace.
Inhumane Weapons Convention (1980)
The Convention and its Protocols prohibit or restrict the use of certain specific categories of the conventional weapons (including anti-personnel landmines, booby traps, incendiary weapons and fragmentation weapons) which can be characterised as causing "unnecessary suffering" or have indiscriminate effects. The Conventions and Protocols seek to protect Australian service personnel, Australian civilians and other parties from weapons which are excessively injurious or weapons which have indiscriminate effects. In 1996, the Inhumane Weapons Convention Review Conference adopted an amended Protocol II which contains much stronger restrictions and prohibitions on anti-personnel landmines use and transfers as well as a new Protocol IV which outlaws the use of blinding laser weapons.
Australia ratified these two Protocols on 22 August 1997, and was among the first states to do so. Following the twentieth ratification of amended Protocol II, the Protocol entered into force on 1 December 1998. As a result of its entry into force, the first annual implementation conference on amended Protocol II was held in 1999, leading to a further review Conference in 2001.
Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1956)
The Convention provides both for preparations in peacetime for safeguarding cultural property against foreseeable effects of armed conflict, and also for respect for such property in time of war/or military occupation.
Regional security regimes
Treaty of Rarotonga (1986)
In addition to the global regimes, a regional regime has been established under the Treaty of Rarotonga, which creates a South Pacific Nuclear Free Zone (SPNFZ).
Australia played a leading role in the negotiation of SPNFZ which came into force in 1986 and prohibits the testing, production, acquisition, possession or stationing of nuclear weapons in the region.
The SPNFZ Treaty has contributed generally to the establishment of an international norm against the proliferation of nuclear weapons, and more specifically, was the first international agreement to require full scope safeguards as a condition of nuclear supply to non-nuclear weapon states. SPNFZ is widely regarded as a good model of a regional NWFZ Treaty.
The signing of the Protocols of the SPNFZ Treaty by France, the United States and the United Kingdom on 25 March 1996 marked the end of more than 40 years of nuclear testing in the South Pacific. (China and the then USSR were early signatories of the Protocols.) Under the Protocols, the nuclear weapon states agree not to use or threaten to use nuclear explosive devices against any party to the Treaty or against any territory in the Zone for which nuclear weapon states party to the Protocols are responsible.
Truce and Peace Monitoring on Bougainville, Papua New Guinea (1997 and 1998)
There are Agreements between Australia, Papua New Guinea, New Zealand, Fiji and Vanuatu concerning the establishment and operations of the neutral Truce (and subsequently Peace) Monitoring Group on Bougainville.
Universal Postal Union and Asia Pacific Postal Union
The Universal Postal Union sets globally accepted standards for the international carriage of mail, allowing reciprocal use of mail systems of countries all around the world, for the exchange of letters and parcels. Agreements concluded under the auspices of the UPU cover areas such as standardisation of forms and systems for international transit of letters and parcels, charges for international delivery of mail and determination of liability for registered international mail and parcels.
The global system is supplemented by the Asia-Pacific Postal Union, which is responsible for the establishment of rules for postage in this region.
International Social Security Agreements are intended to close gaps between the social security systems of the countries which are party to them. Australia's social security system is based on residence and need. A claimant for an Australian benefit must generally have lived in Australia for a specified minimum period of time and cannot claim a benefit whilst residing overseas. In contrast, most other countries have social security systems that are based on compulsory contributions made by the working population from salaries or wages. A minimum number or period of contributions is usually required before a benefit can be drawn from such a system.
International Social Security Agreements:
- allow people to add together their periods of residence in Australia and periods of coverage in the other country to meet the minimum periods needed to qualify them for a pension from either country;
- guarantee that pensions can be transferred from one agreement country to the other; and
- allow former Australian residents now living in the other country to claim Australian pensions without returning to Australia to live.
Australia has agreements of this type with Austria, Canada, Cyprus, Ireland, Italy, Malta, the Netherlands, Portugal and Spain.
In addition, Australia has a long-standing agreement with New Zealand under which the country in which the person lives has the responsibility for payment of the benefit.
The Agreement between Australia and the United Kingdom is also a special case. It will be terminated from 1 March 2001. However the Government has announced that it will allow people who migrated to Australia on or before 1 March 2000, and who do not qualify for Age Pension until after the Agreement terminates, to be able to claim Age Pension as if the agreement was still operating. This means that people in this situation will not have to wait until they accrue ten years' qualifying residence before they can qualify for Age Pension.
International Telecommunications Union
The ITU allows countries to cooperatively address global telecommunication needs and to set rules and standards which allow for quick and easy telecommunications access to virtually the whole world. Members have concluded agreements which expand and improve telecommunications services to the public, prevent interference with telecommunications from other countries and organise frequency bands for radio services.
Agreement relating to the International Telecommunications Satellite Organisation (1971) (INTELSAT)
The INTELSAT Agreement has as its primary objective the establishment, on a commercial basis, of a system of satellites for international public telecommunications. Australia is a part owner in the INTELSAT system from its initial investment under this Agreement.
Convention on the International Maritime Satellite Organization (1976) (INMARSAT)
The INMARSAT Convention provides a universal satellite communications organisation primarily directed at maritime users with particular emphasis on safety considerations. Australia is also a part owner of the INMARSAT system from its initial investment under this Convention.
UN Convention on the Law of the Sea (1982)
The Convention permits Australian companies to lay submarine cables in certain maritime zones of other countries, such as optical fibre cables vital for Australia's telephone communications system.
TRADE AND INDUSTRY
Multilateral trade regimes are delivering increasing benefits more widely than ever before, and such treaties underpin Australia's economic prosperity by facilitating trade and investment flows.
The World Trade Organization (WTO), which flowed from the Uruguay round of the GATT trade negotiations, constitutes the major multilateral trade body to which Australia belongs. The agreements established under the auspices of the WTO cover trade in agricultural products, trade related investment measures, services and intellectual property, the most rapidly expanding areas of international trade.
Agreement establishing the World Trade Organization (1994)
The World Trade Organization (WTO) administers a series of agreements on rules and disciplines that should be applied by members in their policies relating to international trading activities. Those agreements provide middle-sized economies like Australia that do not belong to any geo-political trading blocs, with a system that establishes a more equitable and predictable global trading environment.
The WTO is a forum in which trade concerns can be addressed (including through a formal dispute settlement process where necessary). It also facilitates multilateral trade negotiations. Such negotiations have always included tariff reductions but can, subject to a consensus among the membership, involve a wide range of trade-related issues. Successive rounds of multilateral trade negotiations have led to significant improvements in market access arrangements. These include reductions in tariffs, the development of disciplines on non-tariff measures and agreements on the reduction of trade-distorting subsidies in agriculture and other sectors - all of which have supported a continuing rapid expansion of global trade.
The major agreements under the World Trade Organization Agreement are:
- the revised General Agreement on Tariffs and Trade (1994), which incorporates the provisions of the 1947 GATT;
- the General Agreement on Trade in Services (GATS), which brings services trade under multilateral rules for the first time, providing Australian services exporters with improved international trading opportunities in the telecommunications, financial services, insurance, business and professional services sectors;
- the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (see Intellectual Property); and
- the Agreement on Trade-Related Aspects of Investment Measures (TRIMS), which provides a basic framework for the flow of investment between countries.
South Pacific Regional Trade and Economic Co-operation Agreement (1980) (SPARTECA)
SPARTECA provides a mutually beneficial framework for trade among South Pacific countries. It also contributes to the prosperity and stability of the region.
As a complement to the multilateral trade regimes in which Australia participates, Australia has also concluded a number of bilateral trade agreements. For example:
- the Closer Economic Relations (CER) Agreement and amending documents, which are politically and economically central to the Australia-New Zealand relationship;
- the Nara Agreement (1976), which is the cornerstone of our trading relationship with Japan, which is Australia's largest export destination;
- a number of agreements with countries that are not members of GATT, which ensure that Australia has the same access to those markets as our competitors. Examples are Trade Agreements with several of the Newly Independent States of the former Soviet Union.
- the Agreement on Trade and Commercial Relations with Papua New Guinea (1976 and 1991) (PATCRA), which governs Australia's trade relations with Papua New Guinea, and contributes to the prosperity and stability of both parties.
The United Nations Convention on Contracts for the International Sale of Goods (1980) provides a fair legal framework and greater certainty for Australians engaged in international trade in goods.
Double Taxation Agreements increase our international competitiveness by reducing to fair levels the tax burdens of companies with international operations. These agreements also encourage international investment in Australia.
Under the auspices of the international World Customs Organization, a number of conventions have been concluded to which Australia has become a party. Those conventions variously provide for the harmonisation of certain customs procedures, systems and descriptions, which together facilitate international trade to and from Australia and will ultimately lead to more competitive markets. The Conventions are the International Convention on the Harmonized Commodity Description and Coding System (1983); the International Convention on the Simplification and Harmonization of Customs Procedures (1973); and the (Customs) Convention on Temporary Admission (1990).
Under the UN Convention on the Law of the Sea (1982), Australia is given the right to exercise customs and sanitary regulation in its contiguous zone, which extends 24 nautical miles from the coast.
Australia has concluded bilateral Investment Promotion and Protection Agreements with countries including Argentina, Chile, China, the Czech Republic, Hong Kong, Hungary, India, Indonesia, Laos, Papua New Guinea, Peru, the Philippines, Poland, Romania and Vietnam. The agreements encourage international investment in Australia and protect the interests of Australian investors overseas. They are significant confidence building mechanisms for investors and also provide agreed dispute resolution procedures.
Parts II, V and VI of the Convention provide for extensive maritime zones in which Australia can exercise sovereign rights. Under the Convention, Australia has sovereign rights over marine and seabed resources within its exclusive economic zone (EEZ), which extends 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. Australia also has the right to regulate the exploration and exploitation of the natural resources of its broad continental shelf.
Part XIII of the Convention permits Australia, within its EEZ, to regulate marine scientific research, through the participation of Australian scientists, the conducting of research cruises by other countries and the sharing of research project results with Australia. As a result, Australian scientists and companies are better positioned to obtain knowledge concerning our marine environment and resources.
Part XI of the Convention, read with the New York Agreement of 28 July 1994 on its implementation, regulates mining activities on the deep seabed beyond national jurisdiction. This aspect of the Convention is far sighted, providing that when deep seabed mining becomes viable, it will not be subsidised. This will ensure that Australian land-based mining activities will operate in a fair and competitive environment.
Timor Gap Treaty (1989)
The Treaty between Australia and Indonesia on the Zone of Cooperation in the area between northern Australia and East Timor, which entered into force in February 1992, established a legal basis for exploration for and exploitation of petroleum resources which would otherwise have been indefinitely delayed because of the difficulty of negotiating a permanent seabed boundary. The legal regime has been continued since Indonesia's withdrawal from East Timor by agreement between Australia and the United Nations Transitional Administration in East Timor (UNTAET), and further negotiation will be needed in preparation for East Timor's independence.
Part I of the Treaty establishes a Zone of Cooperation in the Timor Gap area which is made up of three component parts, dividing areas of access and responsibility between Australia and its Treaty partner. As a result of the Treaty, investors and companies have been able to explore this resource-rich area with certainty and return substantial revenues to governments deriving from the petroleum resources of the Timor Gap.
Agreement between Australia and Indonesia Relating to Cooperation in Fisheries (1992)
This Agreement facilitates fisheries cooperation between Australia and Indonesia. It promotes trade in the fisheries sector by encouraging and facilitating joint ventures in the processing and marketing of fish products and in related enterprises (Article 10).
The Agreement further facilitates the exchange of information on technological developments related to fisheries (Article 5) and scientific data on fish stocks (Article 2) and through the exchange and training of fisheries and marine conservation personnel (Article 4). The development of sustainable fishing techniques and better management of marine resources ensures the conservation of shared stocks.
These Agreements permanently delimit the boundaries of certain areas of seabed between Australia and Indonesia. In so doing, the Agreements create a climate of certainty about the extent of the seabed areas over which Australia exercises sovereign rights, including rights to mineral resources.
Treaty with Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries (signed on 14 March 1997 but not yet in force)
The Treaty establishes the remaining maritime boundaries between Australia and Indonesia and provides Australia with security of jurisdiction over its maritime boundaries.
The sectors of maritime boundary in question are:
. the water column (i.e. exclusive economic zone - "EEZ'') and seabed boundary between Java and Christmas Island;
. the complete water column (EEZ) boundary between Australia and Indonesia; and
. the extension of the seabed boundary between Australia and Indonesia west of the point reached in the 1972 Treaty.
The Treaty also contains a range of provisions that govern the rights and obligations of the Parties in areas where the sovereign rights and seabed jurisdiction of one overlap the water column jurisdiction of the other.
Torres Strait Treaty (1978)
This Treaty delimits the boundary between Australia and Papua New Guinea and provides certainty for Australian investors in the Torres Strait region, both in relation to fisheries and the seabed.
Convention for the Conservation of Southern Bluefin Tuna (1993)
Over-fishing of Southern Bluefin Tuna (SBT) has caused serious depletion of the stock. This Convention entered into by Australia, Japan and New Zealand provides a legally binding international regime for the conservation and sustainable management of SBT.
The Convention creates the Commission for the Conservation of SBT (with its Secretariat in Canberra) which is required to meet annually to determine a global total allowable catch and national quota allocations for the SBT fishery. Each Party is required to ensure that the catch of SBT by vessels operating under its jurisdiction does not exceed its agreed national quota allocation.
The conservation, sustainable management and optimum utilisation of SBT have both economic and environmental benefits for Australians. The fishery is worth approximately $100 million per year to Australian companies. International legal proceedings are currently in train to ensure that Japan does not continue to exceed its recently agreed national quota by pursuing fishing unsanctioned by the convention and in breach of UNCLOS.
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS)
The TRIPS Agreement, concluded under the Agreement establishing the World Trade Organization as part of the GATT Uruguay Round, will provide for Australia a stronger, more comprehensive and predictable system of international protection for a range of intellectual property rights. It will thereby boost Australia's performance as an innovator and exporter of intellectual property, including computer software, films, television, music and video, creative design and patents. The value of export of these items are moving towards $A500 million per annum.
International Union for the Protection of New Varieties of Plants (1991) (UPOV)
UPOV establishes an internationally harmonised sui generis system of intellectual property protection for plant breeders. It provides breeders with incentives to develop improved varieties which provide significant environmental, social and economic benefits. The benefits to Australia of participation in the Convention include improved access to varieties developed overseas and reciprocal access for Australian breeders to protection of their intellectual property in member States.
Berne Convention for the Protection of Literary and Artistic Works (1886, revised 1971)
The Berne Convention is the foundation treaty for the protection of literary and artistic works and has widespread international support. It is based on national treatment, which enables the works of Australians to be given the same treatment in member countries as those of nationals of the member countries, and sets down minimum standards for the protection of literary and artistic works. The importance of the Berne Convention is underlined by the fact that the TRIPS Agreement obliges member states to comply with the substantive provisions of the Berne Convention.
Paris Convention for the Protection of Industrial Property (1883, revised 1967)
The Paris Convention, like the Berne Convention, is also a foundation treaty, concerning industrial property such as patents, trademarks and industrial designs. It provides for national treatment, right of priority and independence of protection. It gives a right of priority to a person filing a patent application in Australia to file a patent application in any other member country, thereby providing Australians with a means of access to different national systems for patentees. The Convention has widespread international support. As with the Berne Convention, TRIPS member states must comply with the substantive provisions of the Paris Convention.
Chicago Convention on Civil Aviation (1944)
The Chicago Convention provides the framework for international civil aviation, while recognising that each Contracting Party has complete and exclusive sovereignty over the airspace above its territory (Article 1). The Convention provides a right to fly over the territory of other countries (Article 5), and is the basis for the bilateral negotiation of traffic rights between countries. Countries are required to facilitate air navigation (Article 22), including by the provision of assistance to aircraft in distress (Article 25) and by the investigation of accidents (Article 26). The Convention also establishes international standards and recommended practices in relation to safety, regularity and efficiency of air navigation (Chapter VI).
Participating in the Chicago regime facilitated the establishment of a broad network of aviation links - which is crucial given the distance between us and many of our markets. It has also been an essential ingredient to Australia's viability as a tourist destination.
Bilateral Aviation Agreements
The details of air schedules - for example, rights to fly a specified number of flights on particular routes - are provided by bilateral aviation agreements. Without those agreements Australian carriers would have no rights to use overseas airports; nor would overseas carriers be able to land at Australian airports.
Warsaw Convention on Certain Rules relating to International Carriage by Air (1929) and Hague Protocol (1955)
The Convention and Protocol establish an international liability regime for death, injury or damage caused by international air travel. It is to be noted that there has been discussion in the Senate of the inadequacy of limits of compensation which are set down in the Convention, and proposals that the limits be raised.
The Hague Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1970)
The Convention provides that hijacking offences should be made punishable by severe penalties (Article 2) and provides for cooperation among contracting states for punishment or extradition of offenders (Article 10).
A regime of four treaties has been negotiated over 25 years to cover a range of terrorist acts on aircraft and at airports. The Hague Convention, as well as the Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963), the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971) and the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (1988). This series of treaties provides a secure travelling environment to Australians around the world, and makes Australian aircraft and airports safer.
UN Convention on the Law of the Sea (1982)
Parts II, III and IV of the Convention ensure navigation and overflight rights for Australia vessels and aircraft through and over other States' maritime zones. This provides certainty and freedom of movement for Australian vessels and aircraft as well as their passengers and cargo. The inclusion in the Convention of rights to travel through archipelagic sea lanes preserves our access to Asian markets, for example, via Indonesia.
Torres Strait Treaty (1978)
The Treaty provides for freedom of navigation and overflight by vessels and aircraft of Australia and Papua New Guinea in the region, and for cooperation in the maintenance of navigational aids. These provisions ensure the free and safe movement of Australian vessels and aircraft in the Torres Strait.
General Treaty Information
Details of the treaties to which Australia is known to have been, is, or has taken action to become a party, or which have affected Australia, are contained in the Australian Treaty List. The List is available through the Australian Treaties Library on the Internet (at http://www.austlii.edu.au/dfat), and is complete at the end of each year. The List is updated monthly in the current year under Australian Treaty List - Monthly Updates. Texts of treaties which have entered into force for Australia can be found in the Australian Treaty Series (ATS) - texts from 1925 on may be accessed through the Internet (ATS number can be found in the Australian Treaty List), under the Australian Treaty Series (Full Text) heading. Texts of treaties where some action has been taken (e.g. signature) but which are not yet in force for Australia, also appear under the Australian Treaty Series (Full Text) entry, as Australian Treaties not yet in force. Texts of those multilateral treaties in the development of which Australia participated, but to which Australia is not yet a Party, are published in Select Documents on International Affairs: Treaties and Conventions which are also available on the Internet under Related Materials.
The Minister for Foreign Affairs, Alexander Downer, and the Attorney-General, Daryl Williams, today announced the Government's reforms to the treaty-making process in Australia.
The changes, which were foreshadowed in the Coalition's pre-election Foreign Policy and Law and Justice Policy Statements, fulfil a major election commitment.
Mr Williams said "the reforms will significantly enhance domestic involvement in the treaty making process''.
In a statement to Parliament, Mr Downer said: "The changes will provide proper and effective procedures enabling Parliament to scrutinise intended treaty action. Importantly, they will also overcome what this Government considers to have been a democratic deficit in the way treaty-making has been carried out in the past''.
"Trade flows, environmental concerns and human rights, to name only a few of the increasing array of such issues, can only be managed and handled effectively through international agreement. This means that treaties, the fundamental instruments of international law, are and will always be an essential component of contemporary international relations and of Australia's own legal development.''
The Minister for Foreign Affairs and the Attorney-General noted the following elements of the reforms:
. Treaties will be tabled in Parliament at least 15 sitting days before the Government takes binding action. This means that treaties will be tabled after the treaty has been signed for Australia, but before action is taken which would bind Australia under international law.
. Treaties will be tabled in Parliament with a National Interest Analysis which will note the reasons why Australia should become a party to the treaty. Where relevant, this will include a discussion of the foreseeable economic, environmental, social and cultural effects of the treaty; 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 and whether the treaty provides for withdrawal or denunciation.
. The Government will propose the establishment of a Joint Parliamentary Committee on Treaties to consider tabled treaties and the National Interest Analyses. The proposed Committee could 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. The Committee will provide detailed scrutiny and examination of those treaties that are of particular interest to Australians.
. The Commonwealth will support the creation of a Treaties Council as an adjunct to the Council of Australian Governments. The Council will have an advisory function, but its composition and operational details will be the subject of further discussions with the States and Territories.
. A treaties database is to be established which will allow individuals and groups with an interest in treaties to obtain information free of charge. It is currently envisaged that the information on the database will be accessible via the Internet. However, it will remain possible for those without electronic communication equipment to obtain information in hard copy form from the agency responsible for the treaty or the Department of Foreign Affairs and Trade.
"The Department of Foreign Affairs and Trade has already established a new Treaties Secretariat with responsibility for managing the reforms and coordinating their implementation,'' Mr Downer said. The Treaties Secretariat has been established in the Department's Legal Office.
In addition, Mr Williams commented: "I am particularly delighted that the Government is proposing a Joint Parliamentary Committee on Treaties. The Committee process will provide an opportunity for greater Parliamentary and community involvement in the treaty process.''
In announcing these reforms, Mr Downer and Mr Williams consider that Australians will be given unparalleled access to the work of governments in the making of new international laws. It is particularly important that the fundamental rights of people to scrutinise the way international law is made be upheld.
The Government's response to the Senate Legal and Constitutional References Committee report Trick or Treaty? Commonwealth Power to Make and Implement Treaties was also scheduled to be tabled today.
It gives me particular pleasure that my first statement to this House as Minister for Foreign Affairs should be to inform the Parliament of the Government's action to reform the treaty-making process. This reform is long overdue, and the actions taken and proposals to be submitted to the Parliament are intended to implement the policy commitments announced by the Coalition during the election campaign.
The changes will provide proper and effective procedures enabling Parliament to scrutinise intended treaty action. Importantly, they will also overcome what this Government considers to have been a democratic deficit in the way treaty-making has been carried out in the past. The measures will ensure that State and Territory Governments are effectively involved in the treaty-making process through the establishment of a Treaties Council. They will also ensure that every Australian individual and interest group with a concern about treaty issues has the opportunity to make that concern known. Consultation will be the key word, and the Government will not act to ratify a treaty unless it is able to assure itself that the treaty action proposed is supported by national interest considerations.
In considering policy options, the Government has taken careful account of national and international considerations. Among the latter, it is vital to note that trade flows, environmental concerns, human rights, to name only a few of an increasing array of such issues, can only be effectively managed and handled through international agreement. This means that treaties, the fundamental instruments of international law, are an increasingly important component of contemporary international relations and of Australia's own legal development. Accordingly, the treaty-making system must be reformed and updated so as to reflect this growing importance and influence on our domestic system in a way which will provide greater accountability to the treaty-making process.
This, for Australia, means that we must have an efficient domestic methodology for assessing the way proposed treaties meet our own national concerns. Parliament should be in a position to examine the considerations which are weighed by the Government when it determines the need for Australia to take binding treaty action.
The new arrangements should go a long way toward rectifying the democratic deficit identified by so many commentators during the hearings conducted during 1995 by the Senate Legal and Constitutional References Committee. Very many individuals and organisations put their views forward on treaty-making in 1995. I cannot name them all here, but I can say that they came from virtually every part of the Australian social, economic, cultural and political spectrum. They ranged from community organisation representatives to persons like Justice Michael Kirby and Sir Ninian Stephen. My colleague, the Attorney-General, also made two submissions to the Senate Committee, and has played an instrumental role in the development of the actions and proposals I am privileged to announce today.
It is my earnest hope that the Government's response to the Senate Committee's report Trick or Treaty? Commonwealth Power to Make and Implement Treaties, which is scheduled for tabling in the Senate today, will restore confidence in the treaty-making process. I do, however, offer an undertaking to revisit these issues after experience with these reforms.
Before stating the changes that are to be introduced, I should note that they also respond to the belief of State and Territory Governments that reforms are needed. The States and Territories put their views forward in 1995 in their Position Paper on Reform of the Treaties Process, to the Council of Australian Governments. They proposed a number of reforms which have been considered by this Government. While discussions are continuing with the State and Territory Governments on the detail of some of the reforms announced today, I believe that the new arrangements will go a long way to allaying their concerns over the treaty-making process.
In particular, I note that the Prime Minister has already written to Premiers and Chief Ministers to inform them that the Commonwealth will support the creation of a Treaties Council as an adjunct to the Council of Australian Governments. Further discussions will take place with the State and Territory Governments on the composition and working methods of the Treaties Council, but it is my hope that it will begin functioning without delay.
THE NEW ARRANGEMENTS
Mr Speaker, I shall now describe the reforms we have decided to make to the treaty-making process.
Tabling of Treaties
Treaties will be tabled in Parliament at least 15 sitting days before the Government takes binding action. This means that treaties will be tabled after the treaty has been signed for Australia, but before action is taken which would bind Australia under international law. This latter action, which is often inaccurately called ´´signature'' is usually ratification or accession, but there are occasionally other forms or procedures for taking binding action. The procedure will also be used whenever other types of binding action are proposed, including termination or denunciation of a treaty.
The new arrangements will apply to all treaties, bilateral as well as multilateral. They will also apply to all actions which amend a treaty if the amendment would alter obligations with a legally binding impact on Australia.
The Senate Committee recognised that there would be occasions when the Government would need to take treaty action urgently, and recommended that special procedures be instituted to cater for this need. It noted, for example, that a 15 sitting day tabling requirement would often translate into 30-100 calendar days. Treaties which require immediate implementation, like the Bougainville Peace Keeping Treaty of 1994, demonstrate the need for special arrangements to meet special circumstances.
Therefore, and in accordance with the Senate Committee's recommendation, where tabling in advance of binding action is not possible, it will be tabled as soon as possible together with an explanation. These exceptions will be used sparingly and only where necessary to safeguard Australia's national interests, be they commercial, strategic or foreign policy interests.
National Interest Analyses
Treaties will be tabled in the Parliament with a National Interest Analysis. This will facilitate Parliamentary and community scrutiny of treaties, and demonstrate the reasons for the Government's decision that Australia should enter into legally binding obligations under the treaty. The Analysis will be designed to meet the need identified both by the Senate Committee and the States and Territories in 1995, namely that no treaty should be ratified without an analysis of the impact the treaty would have on Australia.
This document will note the reasons why Australia should become a party to the treaty. Where relevant, this will include a discussion of the economic, environmental, social and cultural effects of the treaty; 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 and whether the treaty provides for withdrawal or denunciation.
The size and complexity of National Interest Analyses will, of course, be tailored to particular treaties. More complex multilateral treaties will require a more detailed statement but this will not be allowed to become an unnecessarily lengthy, resource consuming exercise. I expect the consultation process will identify which issues merit detailed analysis. Ministers will ultimately determine the appropriate balance between the size and utility of the document and the resources required to prepare it.
I expect the first tablings of treaties to see the beginnings of the National Interest Analysis system. The Government looks forward to discussing these issues with State and Territory Governments in the COAG context.
Parliamentary Joint Standing Committee on Treaties
The Government will propose the establishment of a Joint Parliamentary Committee on Treaties to consider tabled treaties, their National Interest Analyses and any other question relating to a treaty or international instrument that is referred to it by either House of Parliament or a Minister. The Committee will provide detailed scrutiny and examination of those treaties that are of particular interest to Australians. I consider this to be a landmark step in strengthening Parliament's role in treaty-making as the Committee will be empowered to inquire into all tabled treaties and bring forward reports for consideration by the Parliament.
The Commonwealth will support the creation of a Treaties Council as an adjunct to the Council of Australian Governments. The Council will have an advisory function, but its composition and operational details will be the subject of further discussions with the States and Territories.
The Government believes that together with the commitment to prepare National Interest Analyses for all future treaty actions, the establishment of a Treaties Council will herald a new phase in Commonwealth - State consultation on treaty-making.
Treaties Information Database
The establishment of a treaties database was recommended by the Senate Committee, and my Department, in consultation with the Attorney-General's Department, is now working on its creation, taking advice from potential users in the non-governmental community as well as from State and Territory Governments.
The database will be designed to make it easy for all persons and groups with an interest in treaty information to obtain it free of charge, as recommended by the Senate Committee. Present planning envisages that although the database will be available from the Internet, it will remain possible for those without electronic communication equipment to obtain information in hard copy form from the agency responsible for the treaty or the Department of Foreign Affairs and Trade.
Arrangements will be made to advertise the availability of the database once it is established. The Government recognises that it is one thing to have the information available, but quite another to make that very availability widely known.
Once established, the treaties database will complement the Electronic Links for Public Libraries Program, which aims to provide Internet access to all public libraries in Australia. My Department will work with the Office of Government Information Technology and other relevant agencies to ensure that the database both stays abreast of technological developments, and provides information in a user-friendly form.
This exciting step will truly modernise the dissemination of treaty information in Australia. Industry bodies and NGOs are increasingly turning to the Internet as a means of communication that is particularly suited to the vast spaces of the Australian continent. Libraries in remote and rural communities that previously would not have kept hard copy texts of treaties and other information will, in future, be able to download this information from the Internet and make it available to anyone who wants it.
The Treaties Database also has implications for consultations on particular treaties. My Department is examining the possibility that new forms of information dissemination, for example via electronic news groups, will make it easy to provide immediate advice of treaty developments to anyone who wants to be linked to the system. Discussions with potential users of this facility have already started, and I hope it will be possible for the new system to be up and running quickly. I also hope this will be able to be developed for the benefit of the Parliament, for it is important that the Parliament and the new Joint Standing Committee on Treaties is linked to this form of information dissemination.
The reforms I have described represent a significant enhancement in treaty scrutiny and consultations at all levels in the Australian government and the community. Implementing them will be a major endeavour, and my Department has already established a new Treaties Secretariat with responsibility for managing the reforms and coordinating their implementation. The Treaties Secretariat will also be responsible for monitoring public reactions to the reforms and reporting to me on ways in which they might be further enhanced.
I am proud to say that the reforms give Australians unparalleled access to the work of governments in the making of new international laws. I firmly believe that the impact of international laws in the domestic context make it imperative that we continue to improve that transparency and recognise the fundamental right of people to scrutinise the way international law is made.
The Government foreshadowed these reforms in both its Foreign Policy and Law and Justice Policy Statements. I am happy to be able to announce today that the Government has delivered on these election promises within two months of being elected to office. The Government's response to the Senate Committee's Report is scheduled for tabling in the Senate today.
Recommendation 1 Audit of treaties
Recommendation 2 Report on Treaty Implementation
Recommendation 3 Publication on Treaties under Consideration by the Government
Recommendation 4 Treaties Database
Recommendation 5 Travaux Preparatoires Project
Recommendation 6 Consultation
Recommendation 7 Treaties Council
Recommendation 8 Tabling of Treaties
Recommendation 9 Joint Parliamentary Committee on Treaties
Recommendation 10 Treaty Impact Statements
Recommendation 11 Parliamentary Approval of Treaties
The Government expresses its appreciation to the Senate Legal and Constitutional References Committee for its comprehensive and detailed report on the treaty making power and the external affairs power. The Government considers that the Committee's report provides a sound basis for the reform of aspects of the treaty-making process as it affects Australia, particularly as the Committee was able to reach unanimity on the recommendations put forward.
The Committee's hearings took place during a period of profound debate on the place of treaties in Australian domestic law and process. The Government has also taken account of that debate in framing its response, paying particular regard to submissions made by the States and Territories as well as concerned non-governmental groups and individuals.
It is the Government's intention that treaty-making should be accepted as playing a legitimate part in the development of Australia's place in the economic, political and social framework which is evolving in the modern post-Cold War world. It is neither possible nor sensible for Australia to stand aside from this evolution. It is, however, equally necessary for the Parliament, the States and Territories and the Australian community to participate in the task of finding the best way for Australia to participate constructively in international law making and negotiate treaties which serve Australia's national interests.
The Government will augment the existing treaties unit within the Department of Foreign Affairs and Trade to coordinate information dissemination and consultation and ensure that by the time Australia enters into a treaty there will have been the fullest possible opportunity for all Australians with an interest to participate in the consultation process. The development of National Interest Analyses (NIAs) for all treaties to which Australia is considering becoming a party will assist decision making and provide a further source of information to all interested parties.
The Government has also noted that the Committee's report envisages an enhanced role for Parliament in scrutinising Australia's treaties. The Government will introduce a new tabling arrangement whereby all treaties, with the exception of urgent and sensitive treaties, will be tabled at least 15 sitting days to allow for Parliamentary scrutiny before binding treaty action is taken. The Government will also support the creation of a special Joint Standing Committee on Treaties. The Secretariat to be formed within the Department of Foreign Affairs and Trade will also be tasked with coordinating the provision of treaty materials to the Parliament and the Committee.
Successive Governments have recognised the importance of consultation with the States and Territories. The Government agrees with the States and Territories that a Treaties Council should be created and will consult further with the States and Territories on this.
Many of the Senate Committee recommendations envisage legislation. The Government believes that it is important to move quickly to put the new processes in place and that this is best done through non- legislative means. It will, however, review the new tabling arrangements after two years and this would be the most appropriate time to consider the need for legislation and the suggestion that there should be further examination of a parliamentary approval procedure.
That the Government should conduct an audit of treaties to provide the following information:
. a list of treaties to which Australia is currently a party;
. a list of which Departments administer the treaties to which Australia is currently a party; and
. the manner in which treaties have been implemented in Australia, i.e. whether they have been implemented by executive action or by legislation, and if implemented by legislation, which legislation.
Accept the need to provide more accessible information about treaties.
Treaties in force for Australia
Successive Governments have sought to clearly identify Australia's obligations in relation to international treaties. The fully revised Australian Treaty List, published in 1990, included all treaties to which Australia was formally a party. A detailed examination was made in its preparation of available archival and filed material and notifications to depositaries for multilateral treaties. This information was published under the entry for each treaty. If no evidence was available to the contrary, it was assumed that the treaty was still formally in force.
The first Supplement to the List, published in 1995, while adding subsequent treaties to the List, also updated existing entries where further information had become available. This is an ongoing process. Updates to the List are published monthly as ´´Treaty Action'' in the Departmental magazine Insight1 and annually in the Australian Treaty Series.
The introduction to the 1990-1994 Supplement contained a detailed analysis of the number of treaties in force for Australia. It explained that the precise number of treaties in force for Australia is not easily established, because some treaties may still be formally in force but of no practical effect. These include a number of treaties whose purpose has expired and some colonial and pre- World War 2 treaties inherited from the United Kingdom. There are also a number of treaties entered into with the former Soviet Union and the former Yugoslavia whose status remains to be clarified. In this regard, Australia is in a similar position to other countries. The extent of this uncertainty should not be overstated. The status of the great bulk of treaties is clear. The Department of Foreign Affairs and Trade as part of its ongoing responsibilities seeks to terminate or replace treaties which are no longer practically operative, as well as undertaking diplomatic efforts to resolve the status of those treaties whose status is unclear. However, the allocation of the additional resources required to undertake a full scale audit to produce a list of treaties in force, for example, in terms of consultations with depositaries for multilateral treaties or other parties would be substantial, while the benefits would be questionable. Moreover, such an audit would probably take a number of years to complete since it would depend on the responsiveness of other countries, who would not necessarily regard it as a priority.
Nonetheless, the Government accepts the need to present in a more accessible way information about Australian treaty making. An explanation of the sources of information and a general description of Australian treaty practice will be included in revisions of the Department of Foreign Affairs and Trade's publication Australia and International Treaty Making: Information Kit (1994), as well as in future electronic information retrieval initiatives (see recommendation 4).
Identification of Departments/agencies responsible for treaties
Under the Administrative Arrangements Order, the Foreign Minister is responsible for treaties. Responsibility for particular treaties is allocated by subject matter, e.g. the Department of Industrial Relations is responsible for International Labour Organisation treaties. However, there are a number of instances where several Departments or agencies will have a shared involvement in or responsibility for a particular treaty or a category of treaty. The Government will prepare a general outline of responsibilities for inclusion in the new Australia and International Treaty Making: Information Kit, the Commonwealth Government Directory which is published quarterly by the Commonwealth Government, and in other publicly accessible sources. The Department of Foreign Affairs and Trade will continue to publish twice annually a list of treaties currently under negotiation, with the names of contact officers in relevant agencies.
Manner of implementation of treaties
Information on legislation and other means of implementing treaties is available from relevant administering Departments and agencies. As part of fulfilling reporting requirements under particular treaties, agencies publish detailed reports on the implementation of treaties and, in future, these will be tabled in Parliament (see recommendation 2). The Attorney-General's Department will also table annually a list of Commonwealth legislation specifically implementing treaties. The Government will look at making more information on the implementation of treaties available in the context of future electronic information retrieval initiatives.
That legislation provide that the Government report to the Parliament annually on actions taken in the course of the previous year to implement treaties to which Australia is a party.
The Government agrees to table annually a list of Commonwealth legislation specifically implementing Australia's treaty obligations. In addition, the Government undertakes to table the comprehensive, periodic implementation and update reports which are prepared in order to comply with Australia's reporting obligations under various treaties.
In Australia treaties are implemented by a myriad of legislative, judicial and everyday administrative actions at both the Commonwealth and State and Territory levels. In addition, where treaties set standards, for example, there may be no need for any action to implement a particular obligation where the standard is already met in Australia. It does not seem feasible, therefore, to produce an annual report to Parliament setting out all the actions taken in a year to implement all the treaties to which Australia is a party.
However, each year, a list of Commonwealth legislation specifically implementing Australia's treaty obligations is prepared for the Australian Year Book of International Law. A similar list will be tabled annually.
In addition, as the Committee noted in its report, Australia is required to prepare comprehensive, public, periodic reports on implementation under a range of multilateral treaties including the major human rights and environment treaties. Current practice is to table the reports prepared under the six major human rights treaties in Parliament. The Government agrees that it would also be appropriate to table similar reports prepared under other treaties to meet the Committee's concern 'that the Australian Parliament is provided with at least as much information about the implementation of treaties as are international organisations.' [Paragraph 11.35]
With respect to treaties of the International Labour Organisation, Australia prepares a comprehensive First Report shortly after their entry into force, but subsequent reports (either every two or every five years) usually simply update the First Report. In order to supplement the information provided in these updated reports, reference could be made to the publication Status of ILO Conventions in Australia 1994 (SICA), which was tabled in Parliament in August 1995. Under the entry for each ratified ILO Convention, SICA includes a list of the major legislation which implements it. Legislation is not required to enable the tabling of the legislation list and reports.
That the Department of Foreign Affairs and Trade prepare a special publication which provides information on the treaties under consideration by the Government and make it available, free of charge, to all public libraries in Australia.
The Department of Foreign Affairs and Trade already substantially meets Recommendation 3, as a list of multilateral treaties under negotiation or review is published twice a year in Insight2 . New treaties under negotiation, amendments to existing treaties, finalised treaties under review and treaties to which Australia is already a party, but for which further action is under consideration, are all listed. In keeping with international practice, the negotiation of bilateral treaties is considered confidential between the parties until the signature of the treaty, and therefore they do not appear. In its hard copy form, Insight has a circulation of over 8000 readers and is currently sent out to 235 public libraries. In future, it will be sent to any public library which does not currently receive it.
The Department also distributes treaty information by electronic means on the Department's Internet homepage, the address of which is http://www.dfat.gov.au./ Both means of distribution occur free of charge.
The Government supports the establishment of a treaties database on the Internet (see Recommendation 4). The electronic provision of both a list of all multilateral treaties under negotiation or review and a treaties database to all public libraries via the Internet will enable the public to obtain the most up-to-date information on treaties as the list will be continually amended by the Government.
That the Government fund a project for the establishment of a treaties database, which would include:
· the full text of all multilateral treaties included in the Department of Foreign Affairs and Trade's publication Select Documents on International Affairs;
· any available explanatory material on these treaties; and
· decisions of international bodies which interpret these treaties, such as the United Nations Human Rights Committee and the complaints bodies of the International Labour Organisation.
The treaties database should be made available, free of charge, on the Internet (so that Commonwealth, State and local governments, universities, schools, libraries and the general public may access it) and should also be able to be accessed through Commonwealth Government bookshops, in the same manner as the SCALE database which is maintained by the Attorney-General's Department.
The Government supports the establishment of a treaties database which would be accessible free of charge through the Internet3 . Given the enormous volume of treaty information available the only viable way of making this information accessible to the widest range of people is via the Internet. The Government indicated in its statement entitled Australia On-Line that it supported the Electronic Links for Public Libraries Program, announced in December 1995, which aims to provide Internet access to all public libraries in Australia. The Department of Social Security also has a pilot program under way (Community Information Network) designed to provide 400 Internet access points in DSS offices and community centres in selected states and towns. In addition, Internet access is being provided at other outlets, including Commonwealth Government Bookshops. Discussions with academics, industry, and NGOs suggest that the use of this dissemination resource will meet the needs of most of those with whom consultative relationships would be established. The Government will, however, continue to produce hard copies of certain treaty information such as the Australian Treaty Series and the Select Documents.
Initially, the following treaty information would be placed on the database: the Australian Treaty List; the Australian Treaty Series (1948- present); Select Documents on International Affairs: Treaties and Conventions (1966- present); explanatory material being prepared in relation to forthcoming multilateral treaty action; and National Interest Analyses that are tabled in Parliament. The Department of Foreign Affairs and Trade will form a Government Treaties Database Committee to manage what treaty information goes onto the database. The Committee would also establish guidelines on the management of the database and the development of complete and up-to-date treaty information.
The Senate Committee also recommended that the decisions of international bodies which interpret these treaties, such as the United Nations Human Rights Committee and the complaints bodies [supervisory machinery] of the International Labour Organisation be placed on the database. The selection of an appropriate service provider will facilitate this task (some material is already available through the Australasian Legal Information Institute, an institution referred to in the Senate Committee's Report). The Government will work toward placing the decisions of international treaty bodies on the database in line with the resources allocated to this task. Initial indications from the United Nations and its agencies is that the UN is currently considering the exchange of information through the Internet, including in relation to treaties. The Government will work towards ensuring that as much UN information as possible is available to the public through the Internet4 . Seed funding has also been provided by the Attorney-General's Department for the Australian Human Rights Information Centre (AHRIC) for the purpose of establishing an Internet site which holds international human rights materials. AHRIC proposes that the second stage of the project will expand the core collection of human rights documentation, however, this would require further funding.
The treaty information database should be integrated into an existing domestic legal database so that it would be possible to cross-reference domestic legal materials (i.e. federal or state implementing legislation, Hansard references, case law, legal articles) relating to a particular treaty. The treaties database would hold certain information on the database site but would also provide access via hypertext links to other treaty information on other global Internet sites.
That funding be provided to the Department of Foreign Affairs and Trade and the Attorney-General's Department for a joint project to publish information on the meaning and interpretation of treaties, including collections of interpretative decisions and the travaux preparatoires (records of the negotiation proceedings) of treaties.
Much of the information referred to by the Senate Committee in this recommendation, and in the elaboration of it in paragraph 12.50 of the Report, is either already available, or will be available as a result of the implementation of responses to other recommendations made by the Senate Committee.
Information in relation to multilateral treaties under negotiation or in relation to which treaty action, such as signature or ratification, is being considered will be placed on the Department of Foreign Affairs and Trade homepage on the Internet and thus be made available to the public. It is already available to the public in the Foreign Affairs magazine Insight. The text of treaties to which Australia is already a party will also be placed on the Internet. The National Impact Analyses which will be prepared in relation to each treaty to be tabled in Parliament will include material relevant to the meaning and interpretation of treaties.
There are also existing texts which collect or summarise the travaux preparatoires of many major treaties and these are already available through libraries (including on Inter-Library loan). However the gathering of information on the meaning and interpretation of treaties, including collection of interpretative decisions and the travaux preparatoires, if undertaken independently by the Department of Foreign Affairs and Trade and the Attorney-General's Department would require a large injection of funds. In particular, the collection of the travaux preparatoires of the treaties to which Australia is a party would be extremely resource intensive and of little practical benefit to the general community.
Nevertheless, in order to improve access to the travaux preparatoires for future treaties, the Government will give consideration to sponsoring a resolution in the United Nations General Assembly urging all United Nations agencies and bodies to keep comprehensive records of treaty negotiations for which they are responsible and to make such information available in electronic form, preferably on the Internet.
That the Government increase its efforts to identify and consult the groups which may be affected by a treaty which Australia proposes entering into, and groups with expertise on the subject matter of the treaty or its likely application to Australia.
The Committee received a variety of views about the efficacy of the consultative process now undertaken with industry, NGO's and the wider community. It noted, however, that "there seemed to be some agreement that the Government was making a greater effort to consult industry on relevant Conventions'' (paragraph 12.12). It also stated that "there appears to be some evidence that the Commonwealth has done much more in recent years in consulting relevant non-government organisations and industry groups'' (paragraph 12.24). It did, however, receive evidence indicating that the consultations process was conducted unevenly, and that there was a lack of transparency in the treaty process from the viewpoint of community groups and individuals.
The Government considers that it is important to ensure that all those groups and individuals which might be affected by a treaty or which could contribute expertise to the preparation of Australian positions on treaty issues are able to present their views at appropriate stages in the negotiation process. Consultation with such groups and individuals not only promotes community understanding of treaties and their potential value or impact, but also enables Australian Delegations to attend conferences with stronger briefing taking account of Australia's strengths in different fields. Representatives from State and Territory Governments, industry and NGO's have, where appropriate, been included on Australian government delegations attending treaty negotiations.
The Government seeks, with the assistance of peak organisations and known players, to bring the significance of treaty issues to the notice of all parties who might have an interest. Well-developed mechanisms for consultation with industry and NGO's already exist, such as in the international environment arena, which discuss proposed treaties, treaties under negotiation and possible adherence by Australia to treaties. Hundreds of consultations are undertaken every year. The Government has also relied on publications like Insight to let the wider community know of treaties under negotiation, and has responded to enquiries generated as a result. It also uses public affairs opportunities in centres around Australia to discuss treaty issues and seek reactions and views. Nonetheless, in some areas, there is the perception that the existing arrangements are not sufficient.
The Department of Foreign Affairs and Trade has already begun a review of the consultation process with the aim of identifying ways of improving it. This will extend to considering the value of formal meetings with representatives of interested peak organisations (as now happens with respect to Environment, Human Rights and Peace and Disarmament treaties). It will also consider the value of treaty-specific consultations, which are common with the various environment and ILO conventions and the need for additional consultations with community groups. It will also consider the work done by peak bodies to disseminate treaty information to their constituents.
The review will also discuss the capacity of private sector groups to digest and provide advice on the volume of information which is available on treaty issues. The delivery of information through electronic media, both by Government and by other agencies, is transforming the consultative process and raising the possibility that Government needs to see itself more as a provider of analysis rather than of raw information for consultation processes, at least where peak organisations and specialist groups are concerned. It is, however, important to bear in mind the importance of ensuring that treaty consultation is not made so complicated that it cannot be accessed by community groups who might be affected.
The diverse subject matter of modern treaties makes it difficult to respond with a single answer to the identified need for increased efforts in this field. The Government does, however, anticipate that the creation of the treaty database, and the wider dissemination of treaty information to the public through libraries and increased contact with the media, will encourage more interested groups and individuals to seek involvement in the consultation processes relevant to particular treaties. Officers of functional Departments will work with the groups and persons to find a way to assist the presentation of views to the consultative process relevant to the treaty in question.
The Committee also heard evidence that in some cases consultations took place at short notice, and with insufficient time for the presentation of considered views. The Government endeavours in all cases to allow all potential consultative partners sufficient time to provide their views, but there are times when the international processes move at a speed which makes this impossible. The Government trusts that continual improvements to dissemination procedures will ensure that community groups wishing to involve themselves in consultations will be in a position to do so from the beginning of negotiations, obviating the problem that some experience because they only learn of consultation opportunities at the eleventh hour.
The National Interest Analysis presented to Parliament in respect of treaties will identify the consultative process used for each treaty for which an NIA is presented, affording Parliament an opportunity to review the adequacy of the consultations undertaken.
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.
The Government accepts the need to establish a Treaties Council.
The Government supports the formation of a Treaties Council with an advisory function to enhance Commonwealth/State consultation on treaties. However, the composition and the role of that Council are matters which need to be agreed between the Commonwealth and the States and Territories. In their Position Paper presented to the Council of Australian Governments (COAG) the States and Territories recommended a Treaties Council comprised of all Premiers and Chief Ministers and chaired by the Prime Minister. The Government proposes to consult with the States and Territories in COAG on the formation of a Treaties Council and on other Commonwealth/State consultative procedures and bodies including the role of the Standing Committee on Treaties.
That legislation be enacted which requires the tabling of treaties in both Houses of the Commonwealth Parliament at least 15 sitting days prior to Australia entering into them (whether by signature or ratification). This should be subject to an exception for urgent and sensitive treaties, in circumstances where it is not possible or not in the national interest to table them before Australia becomes a party to them. In such cases, the treaty must be tabled as soon as practicable after Australia has become a party to it, accompanied by a statement explaining the reason why it could not be tabled before Australia became a party.
The recommendation is accepted and will be implemented at present by non-legislative means. The issue of legislation will be considered in the light of practical experience with the new tabling arrangements.
The Government gives a firm commitment to the tabling of treaties to allow for Parliamentary scrutiny but believes that the new arrangements should be implemented for the time being by non-legislative means. Under the new arrangements, all treaties will be tabled in the Parliament at least 15 sitting days before the Government takes definitive treaty action, that is action to become a full party. The new arrangements will apply to all treaties i.e. bilateral treaties, as well as multilateral treaties. The Senate Committee accepted that a requirement to table bilateral treaties before signature was problematic because of the international convention that such treaties are confidential until signed. It recommended that all bilaterals be drafted to come into force through a two step mechanism of signature and ratification and be tabled before ratification. The same end can be achieved through Australia's normal practice of signature and exchange of notes (the exchange of notes procedure differs from formal ratification in that it is not necessary to refer the treaty to the Federal Executive Council for approval a second time). Under this proposal, the exchange of notes would be the definitive treaty action and treaties would be tabled between signature and exchange of notes. The tabling procedure will apply to all treaty actions, including amendments to, or termination of, treaties.
The only exceptions will be for urgent and sensitive treaties. The Senate Committee acknowledged the need for this. Acceptance of a requirement for tabling must be accompanied by provision for those inevitable urgent or sensitive treaty cases where it is desirable to take binding treaty action either before tabling or where a treaty has been tabled but the 15 sitting days have not expired. This seems essential in any new procedure. The Senate Committee acknowledged 15 sitting days might be 30-100 calendar days. The Government accepts that for ´´sensitive'' treaties or cases where urgent treaty action is required the treaty should be tabled later with an explanation to Parliament.
It is possible to implement the Government's new tabling policy immediately under existing arrangements, pending consideration of legislation. This would avoid delay in the Government's proceeding with treaty action. It would also make sense to defer any decision about legislation until the practical consequences of the new system have become clear and a the review of the desirability of a parliamentary ´´approval process'' foreshadowed in response to recommendation 11 is completed.
That legislation be enacted to establish a Joint Parliamentary Committee on Treaties. The functions and powers of the Committee should include:
a) the function of inquiring into and reporting on any proposals by Australia to ratify or accede to any treaty, proposed treaty, or other international instrument or proposed international instrument, including whether Australia should become a party to the treaty or instrument;
b) the function of inquiring into and reporting on whether Australia should make any reservation or declarations upon ratification or accession to any treaty;
c) the function of inquiring into and reporting on any other proposed treaty action, such as the removal of a reservation, or the making of a declaration which subjects Australia to additional obligations under a treaty;
d) the function of inquiring into and reporting on treaties to which Australia is already a party, including the method of their implementation and how they should be dealt with in the future;
e) the function of scrutinising treaty impact statements;
f) the power to hold public hearings and hold hearings in camera;
g) the power to call for documents and witnesses; and
h) the power to commence an inquiry into a treaty, proposed treaty, international instrument, proposed international instrument, or any other treaty action, at any time, regardless of whether it relates to a document that has been tabled in the Parliament.
The Government will seek to establish a Joint Standing Committee on Treaties by way of resolutions in both Houses of Parliament.
The Government fully accepts the importance of parliamentary scrutiny of treaties, facilitated by tabling at least 15 sitting days prior to Australia's entering into them. Accordingly, the Government proposes to move quickly to establish a Joint Standing Committee on Treaties by resolutions of both Houses rather than by using legislation, which would entail delay.
It is proposed that the Committee be established with functions and powers allowing inquiry on the full range of matters listed in Recommendation 9 arising from the tabling of treaty proposals and, for other treaty questions, on reference by either House or a Minister. Consistent with the exceptional considerations affecting tabling of urgent and sensitive treaties (Recommendation 8), consideration by the Committee of such treaties should take place only under procedures which will ensure the protection of national interests and observance of international comity, for example in camera hearings and restricted circulation of documentation. These considerations apply particularly to bilateral treaties, which international convention requires be confidential between the negotiating states during negotiation and until signed. The Minister for Foreign Affairs should be able to refer such treaties to the Committee and to prescribe terms of reference for their consideration.
That the legislation establishing the Joint Parliamentary Committee on Treaties require that treaty impact statements be prepared on each treaty tabled in Parliament. The impact statements should address the following matters:
a) reasons for Australia being a party to the treaty;
b) any advantages and disadvantages to Australia of the treaty entering into force in respect of Australia;
c) any obligations which would be imposed on Australia by the treaty;
d) any economic, social, cultural and environmental effects of the treaty, of the treaty entering in force in respect of Australia, and of the treaty not entering into force in respect of Australia;
e) the costs to Australia of compliance with the treaty;
f) the likely effects of any subsequent protocol to the treaty;
g) measures which could or should be adopted to implement the treaty, and the intentions of the government in relation to such measures, including legislation;
h) the impact on the Federal-State balance of the implementation of the treaty;
i) a statement setting out the consultations which have occurred between the Commonwealth, the States and the Territories and with community and interested parties in respect of the treaty; and
j) whether the treaty provides for withdrawal or denunciation.
The Government will prepare and table a ´National Interest Analysis' for each treaty to which Australia intends becoming a party.
A National Interest Analysis (NIA) will be tabled with each treaty tabled in Parliament. They will also be made available to the States and Territories and the general public.
In general, the size and complexity of NIAs will be tailored to particular treaties. More sensitive and complex treaties, such as the Energy Treaty, will require a more detailed statement. On the other hand, a number of bilateral agreements follow an approved model text. These are referred to as ´template treaties'. Such treaties include double taxation agreements, investment promotion and protection agreements and social security agreements. A standard form, simplified NIA will be prepared for this category of treaty.
NIA's will address the elements outlined in recommendation 10, however, several of the elements identified may be combined, for example, the economic, social, cultural and environmental effects of the treaty may be addressed in the reasons for Australia to become, or not to become, a party to the treaty.
In relation to future protocols, the NIAs will indicate whether a treaty foreshadows additional protocols or other legally binding instruments. Frequently, however, it is not possible to predict that a further related instrument will be negotiated or what form such an instrument will take. Where an additional instrument is negotiated, however, it is, in effect, a separate treaty. Therefore, under the new tabling arrangements it will be tabled before Australia takes final action to become a party to it and a separate NIA will be prepared at this time.
In constitutional terms, the impact on the Federal/State balance of entry into any treaty is fundamentally the same, that is, it brings the implementation of the treaty within the legislative competence of the Federal Government. In practice, however, the effect on the Federal/State balance will depend on how the treaty is implemented. NIAs will address this issue in the section on implementation.
The NIAs will be finalised in time for tabling in the Parliament as part of the new processes before Australia becomes a party to a treaty. They will also be made available to the State and Territory Governments and the wider community at this time. The States and Territories would be consulted in the development of NIAs in which they have a major interest, as would other interested groups. These views would be reflected in the NIA.
NIAs will be prepared for the information of Parliament and others and will represent the best understanding of the Commonwealth at the time that they are prepared, but they will not represent undertakings of any kind. Legislation is not required to enable the preparation and tabling of NIAs.
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.
The Government will review the initiatives taken to reform the treaty-making process after two years. It will give consideration at that time to whether the issue of an approval procedure should be referred to the new Treaties Committee.
This question was the subject of widely divergent views during the Senate Committee hearings. These included presentations arguing for either approval or disallowance requirements, and the question of whether the Constitution empowered the Parliament to restrict the power of the Executive to enter into treaties. It concluded that there was "little reason to doubt that the Legislature has the power to limit or regulate the Executive's power to enter into treaties, to make or remove reservations or to denounce treaties'' (para 16.99).
The Committee's report discusses difficulties which would need to be addressed if an approval or disallowance procedure were to be introduced, and concluded that the issue was of such importance that it should be the subject of further public debate and consideration. It felt that the implementation of other recommendations could "assist in curing some of the problems which a system of parliamentary approval of treaties would also be designed to address'' (para 16.102).
The Government considers that it would be sensible to review the experience to be gained from the establishment of a Joint Committee and the implementation of other recommendations before moving to consider the need for an approval or disallowance procedure. Accordingly, the Government will review the initiatives taken to reform the treaty-making process after two years. It will give consideration at that time to whether the issue of an approval procedure should be referred to the new Treaties Committee.
1The Department no longer publishes Insight on a monthly basis. The List can therefore now be found on the Australian Treaties Library Internet site or annually in the Australian Treaty Series.
2 See previous footnote. The list of multilateral treaties under negotiation can also be found on the Australian Treaties Library on Internet.
3 The Australian Treaties Library is at http://www.austlii.edu.au/dfat and contains the list of multilateral treaties under negotiation, list of tabled treaty actions and National Interest Analyses, the full text of most treaties to which Australia is a party and other treaty information.
4 The Department drafted a UN General Assembly resolution on this subject which was adopted by consensus in December 1996
14 JUNE 1996
The sixth meeting of the Council of Australian Governments (COAG) completed today was the first to be held for more than a year and was held under the Chairmanship of the Prime Minister. Heads of Government have endorsed the historic package of reforms to national firearms controls agreed by Australian Police Ministers. The Council has also agreed to an agenda of major reform to re-align fundamentally Commonwealth, State and Territory activity in the health and community services and housing fields. The Council noted a report from the Gas Reform Task Force and agreed to settle outstanding issues at its next meeting.
Other major reforms include the creation of a Treaties Council which will enhance consultations between the Commonwealth and the States and Territories on treaties and other international instruments of sensitivity or importance to the States and Territories; and signature by the Prime Minister, Premiers and Chief Ministers of a Trans-Tasman Mutual Recognition Arrangement.
This Communique sets out the agreed outcomes of the discussions on these issues.
The Council agreed that the next meeting would be held on 15 November 1996 in Brisbane.
The Council agreed to the establishment of a Treaties Council and related improvements to the provision of information about, and consultation procedures concerning, treaties and other international instruments of sensitivity or importance to the States and Territories. Premiers and Chief Ministers welcomed this initiative and saw it as a potentially important new Federal institution.
The Treaties Council will have an advisory role, and will comprise the Prime Minister and all Premiers and Chief Ministers. The inaugural meeting of the Treaties Council will be held in conjunction with the next meeting of COAG.
The agreed changes are incorporated in revised Principles and Procedures for Commonwealth-State Consultation on Treaties which the Council agreed should be adopted in order to achieve the best possible outcome for Australia in the negotiation and implementation of international treaties. They update those adopted in 1992. The revised document is at Attachment C to the communique. Amongst other changes, it sets out in detail the role and functions of the Treaties Council.
The Council also noted the reforms to the treaty making process announced by the Commonwealth on 2 May 1996 which implement, to a considerable extent, the initiatives proposed by the States and Territories in their April 1995 Joint Submission to COAG. In particular, the reforms include:
(1) a new Parliamentary procedure for tabling treaties before they are ratified;
(2) the establishment of a Joint Parliamentary Committee on Treaties; and
(3) the enhanced provision of information on treaties, including National Interest Analyses.
The Commonwealth's intention is to review the initiatives taken to reform the treaty-making process after two years. The States and Territories recommend that the Treaties Council review the package of reforms (including the issue of parliamentary approval of treaties prior to their ratification) at that time, and the Commonwealth notes this recommendation.
[This Communique has been edited to only refer to the Treaties agenda item.]
Part A: INTRODUCTION AND PRINCIPLES
These principles and procedures are adopted subject to their operation not being allowed to result in unreasonable delays in the negotiating, joining or implementing of treaties by Australia.
1.1 The Council of Australian Governments agreed at its meeting in June 1996 that this set of Principles and Procedures should be adopted in order to achieve the best possible outcome for Australia in the negotiation and implementation of international treaties. They update those adopted in 1992.
2 Instruments covered by these Principles and Procedures
2.1 These Principles and Procedures relate to treaties of sensitivity and importance to the States and Territories.
2.2 Treaties are multilateral, limited party (plurilateral and trilateral) or bilateral agreements which create legally binding obligations under international law. Treaties pertaining to matters of national security are excluded from these Principles and Procedures.
2.3 Having regard to these Principles and Procedures, the Commonwealth will inform the States and Territories of other international instruments where they cover matters of sensitivity and importance to the States and Territories such as the United Nations Draft Declaration on the Rights of Indigenous Peoples.
3.1 In the interests of achieving the best possible outcome for Australia, and where a treaty or other international instrument is one of sensitivity and importance to the States and Territories, the Commonwealth should, wherever practicable, seek and take into account the views of the States and Territories,
· in formulating Australian negotiating policy, and
· before becoming a party to, or indicating its acceptance of, that treaty or instrument.
The Commonwealth should then also keep the States and Territories informed of the determined policy.
3.2 The consultative process will be continued through to and include the stage of implementation, if any.
3.3 The States and Territories will each be responsible for the timely development of their own whole of government position with respect to any aspect of the consultation and, where they choose, for the development of a consolidated States and Territories position.
3.4 The States and Territories will establish and advise the Commonwealth on the appropriate channels of communication, and persons responsible for consultation, to ensure that the Commonwealth can discharge its international responsibilities in a timely manner.
Part B: PROCEDURES
4.1 The Commonwealth will inform States and Territories in all cases and at an early stage of any treaty discussions in which Australia is considering participation. Where available, information on the long-term treaty work programs of international bodies will be provided to the States and Territories.
4.2 There will be various ways in which information on treaty negotiations is provided to the States and Territories.
(a) Information about treaty discussions is forwarded to Premiers'/Chief Ministers' Departments or Cabinet Offices on a regular basis through the Department of the Prime Minister and Cabinet and the Treaties Secretariat of the Department of Foreign Affairs and Trade. One vehicle for making information about current treaties and negotiations available will be the Treaties Schedule.
(b) The Commonwealth will provide the States and Territories every six months with a list of current and forthcoming negotiations (forecasting 12 months ahead) and of matters under consideration for ratification, accession etc. Updates of this list will be provided at three monthly intervals.
(c) National Interest Analyses (NIAs) will be prepared by the Commonwealth for all treaties. States and Territories will be consulted at an early stage in the preparation of NIAs in relation to those treaties in which they have a major interest. NIAs will be finalised in time for tabling in Parliament. NIAs will represent the best understanding of the Commonwealth at the time they are prepared. A National Interest Analysis which includes the elements in the NIA pro forma (Appendix 1) will accompany each treaty tabled in Parliament.
(d) the Commonwealth will whenever practicable provide States and Territories with a report on the outcome of international negotiating sessions which are of sensitivity and importance to the States and Territories. These may be provided on a confidential basis.
4.3 The provision of the above information will not affect the flow of information on treaties to the States and Territories which occurs on an ongoing basis from the time that negotiations begin.
5 Consultation mechanisms
The Treaties Council
5.1 There will be a Treaties Council consisting of the Prime Minister, Premiers and Chief Ministers. The Treaties Council will have an advisory function.
5.2 The role of the Treaties Council is to consider treaties and other international instruments of particular sensitivity and importance to the States and Territories either of its own motion, or where a treaty is referred to it by any jurisdiction, a Ministerial Council, an intergovernmental committee of COAG or by SCOT. Senior Officials will co-ordinate and prepare the agenda for the Treaties Council. The Treaties Council will also be able to refer treaties to Ministerial Councils for consideration.
5.3 The Treaties Council will meet at least once a year. The Prime Minister will chair the meetings, with the Minister for Foreign Affairs in attendance when appropriate. Meetings of the Treaties Council will normally take place at the same time and place as COAG.
Standing Committee on Treaties
5.4 There will be a Standing Committee on Treaties consisting of senior Commonwealth and State and Territory officers which will meet twice a year, or more often if required, to identify treaties and other international instruments of sensitivity and importance to the States and Territories and:
· decide whether there is a need for further consideration by the Treaties Council, a Ministerial Council, a separate intergovernmental body or other consultative arrangements;
· monitor and report on the implementation of particular treaties where the implementation of the treaty has strategic implications, including significant cross-portfolio interests, for States and Territories;
· ensure that appropriate information is provided to the States and Territories; and
· co-ordinate as required the process for nominating State and Territory representation on delegations where such representation is appropriate.
5.5 In identifying treaties and other international instruments of particular sensitivity and importance to the States and Territories, the Committee should have regard to their potential to affect the finances or current or future policy decisions of the States and Territories or the need for State and Territory participation in implementation, including legislation.
Ministerial Councils and other consultation mechanisms
5.6 Subject to any recommendation of the Standing Committee, as a general practice, consultation will be conducted by the functional Commonwealth/State and/or Territory Ministers for Departments concerned. Exceptions will exist where there are significant cross-portfolio interests.
5.7 In general, existing Commonwealth/State and Territory Ministerial Councils and consultative bodies will be used as the fora in which detailed discussions of particular treaties and other international instruments take place.
5.8 When issues are to be discussed that are of particular significance to either State and Territory or Commonwealth authorities other than those directly represented on the Commonwealth/State and Territory consultative bodies, representatives of such authorities may be invited to attend the meetings in an observer role.
5.9 The protocols relating to the operation of Ministerial Councils will apply to these consultations - including those relating to Representation of Constituent Governments and Liaison between Councils (Commonwealth-State Ministerial Councils, A Compendium, May 1994).
6 Participation on International Delegations
6.1 In appropriate cases, a representative or representatives of the States and Territories may be included in delegations to international conferences which deal with State and Territory subject matters. Subject to any special arrangements, the purpose is not to speak for Australia, but to ensure that the States and Territories are well informed on treaty matters and are always in a position to put a point of view to the Commonwealth. However, State and Territory representatives will be involved as far as possible in the work of the delegation.
6.2 The States and Territories will normally initiate moves for inclusion in a delegation, but the Commonwealth should endeavour to keep State and Territory interests in mind.
6.3 Unless otherwise agreed, the costs of the State and Territory representatives are a matter for State and Territory governments.
7.1 Before the Commonwealth becomes a party to any international treaty of particular sensitivity and importance to States and Territories, the Commonwealth and the States and Territories will consult in an effort to secure agreement on the manner in which the obligations incurred should be implemented.
7.2 Where the preparation of reports to international bodies on implementation action is required, States and Territories will be consulted and their views taken into account in their preparation.
8 "Federal - State'' Aspects
8.1 The Commonwealth does not favour including federal clauses in treaties and does not intend to instruct Australian delegations to seek to include them. In the Commonwealth's view, the international community sees the pursuit of federal clauses in treaties generally as an attempt by the ´´Federal State'' to avoid the full obligations of a party to the treaty. The Commonwealth's experience at a number of International Conferences has shown that these clauses are regarded with disfavour by almost the entire international community. Further, its experience is that a federal clause tailored to the needs of one federation will be unacceptable to other federations. The Commonwealth believes that instructing an Australian delegation to press for a federal clause only diverts its resources from more important tasks.
8.2 The Commonwealth does not object to Australia making unilaterally a short ´´Federal Statement'' when it signs or ratifies certain appropriate treaties, if this statement clearly does not affect Australia's obligations as a party. An ´´appropriate'' treaty would be one where it is intended that the States and Territories will play a role in its implementation. An appropriate form for a statement like this is at Appendix 2.
8.3 The normal practice is that Australia does not become a party to a treaty containing a federal clause until the laws of all States and Territories accord with the mandatory provisions of the treaty. However, where a suitable ´´territorial units'' federal clause is included in a treaty, the possibility of Australia acceding only in respect to those States and Territories which wish to adopt the treaty might be considered on a case by case basis where appropriate, perhaps in some private law treaties.
8.4 The Commonwealth will consider relying on State and Territory legislation where the treaty affects an area of particular concern to the States and Territories and this course is consistent with the national interest and the effective and timely discharge of treaty obligations. However, the Commonwealth does not accept that it is appropriate for the Commonwealth to commit itself in a general way not to legislate in areas that are constitutionally subject to Commonwealth power.
Joint Standing Committee on Treaties
The Treaties Committee comprises 16 members: 9 from the House of Representatives and 7 from the Senate. Nine members are from the Government (the Liberal and National Parties), 6 from the opposition (the Australian Labor Party) and 1 from the Australian Democrats.
Comments to: The Secretary of the Committee on PH: (02) 62774002 or FAX: (02) 62774827
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