Speech

at the Launch of the Australian Treaties Database

Canberra, 20 August 2002

Treaties and Community Debate: Towards Informed Consent

Introduction

The Chair of the Joint Standing Committee on Treaties, Julie Bishop MP.

Parliamentary colleagues, distinguished guests, ladies and gentlemen.

Three years ago, in 1999, the Government reviewed the operation of the reforms to the treaty making process it had initiated on assuming office in 1996.

You will recall that those reforms entailed:

• tabling of treaties in Parliament for a minimum of 15 sitting days before the Government takes binding action;
• tabling of a National Interest Analysis (NIA) for each treaty;
• a Joint Parliamentary Committee on Treaties to examine in detail those treaties that are of particular interest to Australians;
• a new Treaties Council chaired by the Prime Minister as an adjunct to the Council of Australian Governments;
• an Australian Treaties Library, the first of its kind in the world

The review received submissions from business organisations, other NGOs, Commonwealth and State Government Departments, academics, jurists and private individuals.

It found that overall, the reforms were working well, and that the new machinery had ‘greatly improved scrutiny, transparency and consultation in the treaty making process and community awareness of treaties.’ 

An uncharitable observer might contend that although we had no influence over the content of the submissions to the review, its findings were unsurprising.

I was, therefore, particularly gratified that essentially the same conclusion was reached by a cross-section of the community, earlier this year.

That group was the 100 participants who attended a seminar on treaties policy and practice organised by my department in March.  Some of you here today may have attended that seminar.

As I said, both the 1999 review and those at the seminar felt that the Government had got it pretty right with the 1996 reforms.

Neither group, however, thought the Government could rest on its laurels. 

In the 1999 review, looking to the future, the Government nominated three areas in which further improvements to the process were appropriate. Those areas were:

• The consultation process;
• National Interest Analyses and
• The Australian Treaties Library.

I am pleased to report today that the Government has addressed these issues.  Some of its responses are essentially procedural or administrative.

Others, such as the database we are here to launch, is a technological innovation best described as a way of working smarter.

Taken together, these innovations represent a tune up of the treaty making machinery that will facilitate more efficient parliamentary scrutiny of the process with corresponding outcomes in terms of public accountability.

One of the treaty actions most keenly discussed in recent years - certainly since the proposed Multilateral Agreement on Investment in the mid-1990s – has been whether Australia should ratify the Statute of Rome, which established the International Criminal Court.

I have paid tribute elsewhere to those who worked so hard to achieve what I consider as a major Australian human rights objective.  I would, however, like to discuss some aspects of the ratification issue.

At the treaty seminar I mentioned earlier, someone asked me what would happen if the Government declined to follow a unanimous position taken by JSCOT on a given treaty action.

I noted that JSCOT’s role was only advisory, but suggested any government would need to think very carefully of the political consequences before it ignored a unanimous JSCOT recommendation.

The role of JSCOT was an important factor in the Government’s consideration of whether Australia should ratify the ICC. 

The committee, which spent 18 months inquiring into all aspects of the court, served as a lightning rod for public debate.  It heard passionate arguments for and against ratification.

For the most part they were put sincerely by men and women of principle and honour.  On balance, the public submissions favoured ratification and this was reflected in the committee’s recommendations.

It is no secret that the committee’s unanimous report and Australia’s prominent international support for the court notwithstanding, debate within the Government was very evenly divided.

The ICC may not have been a core issue for a huge number of voters – our hip pocket nerve was not exposed and the detail of the treaty was complex.

But any treaty requires a government to address questions of State sovereignty.

And because the ICC debate was so fundamentally about the issue of sovereignty, those at either end of the spectrum could – and did – take some extreme positions.

As usual, it was often those at the extremes who had the loudest voices.

In any political debate, the bulk of public opinion will always lie at somewhere between two extreme positions.

Locating the correct point on the continuum is the challenge: every government has only a defined amount of capital it can afford to spend – it’s called your majority – making the wrong political judgements.

In the end, I believe that the public debate on the ICC – of which the JSCOT process was an integral and valuable part – has helped make Australia’s commitment to, and participation in the ICC more meaningful.

We went into the ICC with our eyes open – it’s like what lawyers call informed consent.

Which brings me to why we are here today.

When we established JSCOT six years ago the Government felt that 15 sitting days was an adequate period for the committee to be able to inquire into and report on a treaty action. 

Since the committee was established, but particularly since 1999, its workload has grown substantially.

In 1999 the committee received 76 submissions to 11 separate inquiries.

In this current year, the Committee has received 287 submissions to just three inquiries.

One of the conclusions we can draw from this is that not all treaty actions create the same level of interest: I will return to that point in a moment.

But when the figures are averaged out, the bottom line is this: since 1999, such has been the level of public interest in the Committee, that its workload, as measured by the average number of submissions it receives for every inquiry, has grown by 97 per cent.  

The Committee’s Chair, Ms Bishop, has expressed concern to my department that the administrative demands of its schedule of public hearings meant the Committee risked becoming overburdened, detracting from the quality of its reports.

That would have helped no-one.

If this or any other Government is to continue to get it right when considering contentious treaty action, it is essential that JSCOT’s finger is on the public pulse, and that the Committee is properly equipped to measure it.

Following consultations with the Attorney General, I am therefore announcing that treaty actions considered by JSCOT will henceforth be divided into two categories.

Category A treaties will continue to be dealt with within the current 15 parliamentary sitting day period.  Examples of such treaties include those relating to double taxation and air services.

These sorts of treaties represent about two thirds of Australia’s current treaty action and are for the most part uncontroversial in nature and relatively routine in form.

The remainder are, however, less routine – and sometimes may be controversial.  They can be of major political, economic or social significance and they often attract considerable public interest and debate. 

For the reasons I mentioned earlier the Government believes it important that the scrutiny of such Category B treaties should be as thorough and reasonable as possible.

Accordingly, the tabling period for Category B treaties will be extended from 15 to 20 sitting days.

Let me illustrate why the process needed to change.

In 2001, JSCOT received 4 public submissions to its inquiry on proposed treaty action relating to diplomatic privileges and immunities for the International Tribunal on the Law of the Sea. The committee also received 252 submissions to its inquiry into the ICC.

Now I’m sure that it is important that the good members of the Law of the Sea Tribunal enjoy the appropriate international status.  But in both of these cases the committee had 15 sitting days to inquire and report.   You can draw your own conclusions.

Under the new arrangements and based on current sitting patterns, for significant treaties, there will be an effective increase in the real time available for JSCOT to consult with interest groups from five to eight weeks.

But if JSCOT is to work to an optimal level, it is important that those from whom it considers submissions have easy access to accurate, up-to-date, unbiased and user-friendly information on treaties.  The same is of course true for a person who wants information about a treaty for any other reason.

The internet-based Australian treaties Library was an excellent start.  The Australian Treaties Database, Stage One of which I now officially launch, takes us to a new level.

My department devised the database originally as an internal management tool to replace a Dickensian system of filing cards and registers on which the entire record of Australian treaty action is inscribed. 

It was quickly realised however, that the database had wider application, especially if it could be linked to the Australian Treaties Library which is operated by the Australasian Legal Information Institute.

The result of that collaboration is displayed behind me.

The treaties database will be available to the public on my Department’s website.  It is a valuable research tool that will assist students, academics, the legal profession and interested members of the public to access key information about recent Australian treaty action.

The database will also assist the Commonwealth officials who prepare the key working document used by JSCOT – the National Interest Analysis.

As you know, the NIA argues the case for undertaking the proposed treaty action and as it title implies, sets out the implications for Australia of doing so.

From today, NIAs submitted to JSCOT will need to be accompanied by a series of additional background reports that can be generated from the Australian Treaties Database.

These reports will provide additional valuable background information that will assist JSCOT to do it work.

For bilateral NIAs, two reports will be required:  The first will be a list of countries with which Australia has similar treaties.  The second report will indicate all other treaties Australia has with the country in question.

This information will enable the Committee to make comparisons between similar types of treaty action and the countries with which that action has been undertaken.

In the case of multilateral treaties, NIAs will need to be accompanied by a current status list which will also be accessible from the database. 

The database will also allow users to jump direct to the text of a treaty and its subsidiary documents and to produce a range of other reports as well.

I understand that there will be a short demonstration in a couple of minutes of exactly what this system can do.

The Australian Treaties Database is a powerful tool and an excellent application of technical innovation in the public interest.

The database strengthens the institutional bonds between the Department of Foreign Affairs and Trade and the Australasian Legal Information Institute, which operates the Australian Treaties Library.

In stage two of this project, the database will become even more powerful.  From a single screen it will be possible to access the text of all publicly available documents relating to an individual treaty action.

Thus, the NIA; the Regulation Impact Statement (if required); the JSCOT report; Parliamentary tabling statements will all be ‘hot-linked’. 

Ultimately it will also be possible to access from this page all domestic legislation or Regulations passed to give domestic effect to treaties ratified by Australia and the Hansard texts of the relevant debates.

Conclusion   

Ladies and gentlemen; treaties, the raw material of world history, are core business for every nation state.  At Versailles, a treaty ended the first World War; the United Nations was created by treaty after the second.  And in 1995, a treaty done at Marrakesh gave birth to the World Trade Organisation. 

Since treaties are binding at international law, governments do not enter into them lightly.  But governments are cautious for another reason.  Treaties are sometimes also the product of big and controversial ideas, whose impact domestically governments must always be conscious of.

As it is in commerce, so it is in politics: pay attention to your core business.

Very early in its life, this Government saw that one way it could ensure that its treaty making business was running well, was to facilitate more informed public debate, greater transparency and more effective scrutiny of the process.

As I said at the outset, our objectives have been achieved. The measures and innovations I have announced today are simply a reflection of this Government’s determination to ensure that treaties reform remains a process of continuous improvement. 

Thank you.

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