Democratising The Treaty-Making Process

Speech by the Hon Alexander Downer MP, Minister for Foreign Affairs, to the Conference on the Role of Parliament in Treaty-Making

Parliament House, Canberra, 24 June 1999

(Check Against Delivery)

Chairman and colleagues of the Joint Standing Committee on Treaties and the Australasian Study of Parliament Group; [names of any VIP guests]; ladies and gentlemen.

It is a pleasure to be here to address this seminar on The Role of Parliament in the Treaty making Process. Reform of Australia's treaty making process is a subject that has been the focus of much concerted effort on part of the Coalition Government since it was first elected to office in 1996. It is a subject, also, which I have taken great personal interest in during my time as Opposition Foreign Affairs spokesperson and, subsequently, as Foreign Minister. You could say that it is a subject dear to my heart.

The question of Parliament's role in the treaty making process is a particularly timely one with the imminent release of the findings of the Government's Review of its 1996 reform package. Tonight, I am pleased to be able to share with you the broad findings of that Review.

But firstly, I'd like to briefly revisit the rationale behind this Government's reform of Australia's treaty making process.

'Democratising' the treaty making process: the Coalition Government's commitment

Reform of the way treaty making is carried out was a key policy commitment that the Coalition took to the 1996 election campaign.

In our view, the changing nature of our world necessitated reform. Today, globalisation is the norm, not the exception. An increasing array of issues- trade flows, environmental concerns, international standards of human rights, and even international crime- are becoming the subject of treaty action. This is for the simple reason that such issues are beyond the scope of any one nation to resolve. They require not just national but international responses. As the fundamental instruments of international law, treaties are the means by which countries give binding undertakings to each other and, thereby, the means through which the Australian Government can shape approaches to issues that lie beyond our national borders.

Over time, as their number and scope has grown, treaties have become an increasingly important component of Australia's own legal development. This growing influence on our domestic legal system, in our view, necessitated that our treaty making procedures be reformed and updated in a way which provided greater accountability to the Australian public.

That is why, upon entering office in March 1996, we moved quickly to implement our election undertakings. Two months in to office, my first statement to the House as Minister for Foreign Affairs was to inform the Parliament of the Coalition Government's treaty reform initiatives.

Attorney-General Daryl Williams and I announced a package of reforms that marked a significant change in the way the Federal Government would disseminate information and conduct itself in the lead-up to concluding and implementing treaties. It was an historic move.

It was also a reform initiative that was long overdue. Responding to concerns expressed by State and Territory governments and across all sectors of the community, the reforms aimed to address the `democratic deficit' in the way treaty making had been carried out in the past- to change the fact that the whole process of Federal Government treaty action was both removed and shrouded in mystery.

Openness and transparency were the key elements of the reform package. Consultation was its underlying theme. The reforms sought to create an efficient domestic methodology by which our Parliament, State and Territory Governments and the general public could assess the way proposed international treaties met our own national concerns. Our reform initiatives promoted involvement of these three groups in the treaty making process in the following ways:

• Parliament was to play a much more prominent role in scrutinising intended treaty action. Debate over enabling legislation was not enough - Parliament also needed to be involved at the crucial earlier stages of the process.
• State and Territory governments were to be effectively involved in the treaty making process. Australia's treaty making process was to reflect the federal nature of our system of government and the reality that, in many cases, it was more efficient and appropriate for the states and territories to implement Australian obligations under international agreements.
• Finally, and perhaps most importantly, the public was to have greater involvement in the process. There should be scope for every Australian individual and interest group with a concern about treaty issues to have the opportunity to make that concern known directly.

Reviewing the 1996 reform package: process and findings

An important part of the Government's initial reform package was a pledge to conduct a review of the reformed treaty making process after two years.
This review began in July 1998 with requests for submissions. The Government undertook wide consultations on the implementation of these reforms with states and territories, JSCOT and the public. Comments were also sought from Commonwealth departments and agencies. Advertisements in national and State and Territory newspapers sought views on the operation of the new treaties procedure.

In total, 69 submissions were received, including submissions from all State and mainland Territory Governments and most Commonwealth departments and agencies.

The verdict of the vast majority of the public submissions was that the Government's reforms were both well implemented and effective in practice. All five of the fundamental reform pillars we committed to upon coming to Office had been successfully implemented. Allow me to briefly detail these five pillars and the corresponding Review findings.

1. Tabling of treaties

The first measure of the 1996 reform package was to provide for the tabling in Parliament of all bilateral and multilateral treaties at least 15 sitting days before the Government takes binding action - that is, after the treaty has been signed but before action is taken which would bind Australia under international law. The Government applied this procedure to other types of binding action as well, including termination or denunciation of a treaty, and amendment (if that step would alter obligations with a legally binding impact on Australia).

This tabling requirement contained inbuilt flexibility whereby the Government could strike a balance between adequate parliamentary scrutiny and the need for timely treaty action. In the exceptional circumstances where urgent treaty action was required to safeguard Australia's national interests, tabling in advance could be circumscribed, provided that the treaty was tabled as soon as possible along with an accompanying explanation.

The Review has found that this tabling initiative has significantly strengthened parliamentary scrutiny, a keystone objective of the 1996 reform package. In addition, the Review has revealed that the flexibility of this mechanism has provided a good balance and has worked well.

2. National Interest Analyses

A key element of the 1996 reform package was the requirement that tabling of treaties in Parliament be accompanied by National Interest Analyses (NIAs). These analyses would assess the likely economic, social, cultural and environmental impact of proposed treaty action and set out the reasons for the Government's view that Australia should enter into a particular treaty. They would provide Parliament and other interested parties with the information to allow them to make an informed judgement on the necessity for Australia to become a party to a treaty, and would alert them to all the possible consequences that could flow from its implementation.

The Review has found that the structure and content of NIAs has been evolving and continuously improving. JSCOT has played a valuable constructive role in improving the quality of these documents- for example, by providing that `template' treaties be compared with a standard model in order to assist JSCOT and others to quickly identify key issues.

3. Parliamentary Joint Standing Committee on Treaties (JSCOT)

The Government's reform package also proposed 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 was referred to it by either House of Parliament or a Minister. This Committee would provide detailed scrutiny and examination of all treaties tabled in Parliament.

Since it was set up in June 1996, the Committee has considered over 120 treaty actions in its 20 reports to date. Through holding hearings in a wide range of locations, and seeking submissions from a wide range of Parliamentary, government, industry and community groups, the Committee has extensively expanded consultation on treaties matters to an unprecedented level. Now the second-largest and one of the most active Parliamentary committees, the JSCOT has become the key forum through which comprehensive community contribution is facilitated. In this function, its role in overcoming the `democratic deficit' in treaty making has been significant and can not be understated.

4. Treaties Council

In response to particular concerns about Federal-State consultation in the treaty making process, the Government's reform package instituted a number of initiatives to improve the quality of State and Territory participation in the treaty making process. Two key initiatives were the formation of a Treaties Council, with an advisory function consisting of the Prime Minister, Premiers and Chief Ministers in June 1996, and an enhanced role for the Commonwealth-State Standing Committee on Treaties (SCOT) which comprises senior representatives from the Premier's or Chief Minister's Departments in every State and Territory.
The Review indicates that the reforms have resulted in a significant improvement in the nature and quality of State and Territory involvement in the process. The work of both the Treaties Council and the SCOT have led to greater identification and consideration of treaties of particular sensitivity and importance to the States and Territories.

I note here that the reaction of State and Territory governments to the new consultative mechanisms to date has been very positive. The Coalition Government has made it clear that we want to continue to coordinate the work of all levels of government in seeking the best outcomes for treaty action for Australia. We are determined that the reform package should usher in a new phase in Commonwealth-State consultation on treaty making.

5. Treaties Information Database

Establishment of a Treaties Library Database on the internet is one of the stand-out successes of the Government's 1996 reforms.

The Treaties database allows persons and groups interested in treaty information to obtain sought information free of charge, and the treaties database has already become the world's most advanced and up-to-date national treaty information system. Containing more that 26,000 pages of treaty texts, it details all the treaties to which Australia has been, is, or has taken action to become, a Party since Federation. It also includes treaties to which Australia is considering becoming a party and accompanying National Interest Analyses.

This website has been enthusiastically endorsed by a wide range of users, including Commonwealth, State and Territory Governments, Members of Parliament, the legal profession, academics, students and the general public.

Not only has it made Australia a world leader in this field, it has effectively provided extensive dissemination of treaty information, broadening the pool of participants involved in the scrutiny process.

So, ladies and gentlemen, overall the Review confirms that the objectives of the Government's reforms have been achieved. Through successful implementation of the five pillars I've just outlined, the following key principles have been enshrined in Australia's treaty making process:

• Enhanced openness and transparency
• Improved consultation between the Commonwealth and the States and Territories
• Improved parliamentary and public scrutiny of treaty actions (in particular through JSCOT's actions and NIAs); and
• Wide dissemination of treaty information

The Government's continued commitment: fine-tuning the reforms

There is no doubt that these successes signal a quantum shift in the consultative nature of Australia's treaty making process. We have seen a significant enhancement in treaty scrutiny and consultation at all levels of Australian Government and in the community. The effect of this revolution has been to make the treaty making process much more transparent and the government that much more accountable for its actions. Australians now have unparalleled access to the work of governments in making new international laws.

These successes do not, however, mean that the Government is resting on its laurels. Our commitment to reform of the process is a continuing one. Valuable suggestions for fine-tuning the existing system were made during the review process. Following consultations with the States & Territories, JSCOT and the community, the Government has identified several areas for further improvement. Such further reform will ensure even greater openness and transparency.
Our fine-tuning focuses on three main areas. An important priority will be further improving consultation with states and territories. Consistent with the 1996 Principles and Procedures for Commonwealth-State Consultation on Treaties, which were adopted at the June 1996 COAG meeting, the Government will continue to ensure that Commonwealth agencies consult promptly with States and Territories at a sufficiently early stage so that they can make the best possible use of the existing Ministerial Councils and consultation bodies.

The Government also understands the importance of representation of State and Territory views at treaty negotiations. Such participation can assist in providing delegations with expert technical assistance and in ensuring treaty negotiation delegations are informed of State and Territory views. We support such self-funded participation in relevant treaty negotiations where appropriate.

Another area for improvement concerns National Interest Analyses. The Government will be improving the quality and utility of NIAs, and, to this end, the Government recognises that State and Territory feedback is vital in achieving this goal.

Finally, the Government will be placing emphasis on expansion of the already highly successful and comprehensive Treaties database. The Treaties Library is by definition a work in progress. The Government will be improving its already impressive search capabilities, links to NIAs and the Australian Treaty List. We will continue to update the data available on the website, with particular regard to user feedback.

Conclusion

So, ladies and gentlemen, there is always work to be done. Our commitment to openness, transparency and consultation in Australia's treaty making process is a strong one.

But at this stage, I am proud to say that we have succeeded in providing the wider community with real opportunities to contribute to the Government's assessment of the national interest. We have ensured that the Parliament and the general community are the ultimate arbiters of whether international treaties are in Australia's national interest.

There is an appropriate quote by Dylan Thomas which aptly sums up from where we have come. In his poem The Hand That Signed the Paper Felled a City, he wrote:

The hand that signed the treaty bred a fever,
And famine grew, and locusts came;
Great is the hand that holds dominion over
Man by a scribbled name.

Today, great may be the hand that signs the treaty. But the Government has ensured that the name-scribblers must act under the full glare of Parliamentary and public scrutiny and that, if famines and locusts are to come, we will be forewarned. Ours were landmark reforms, and will be lasting reforms.

ENDS

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