This booklet was prepared by the Department of Foreign Affair and Trade ithe interests of improving public understanding of Australia’s participation in the treaty process. It includes the answers to a number of frequently asked questions about the nature of treaties and why it is important for Australia to be involved in their negotiation; information about the constitutional arrangements which underpin treaty making and about how you can have an input into the process. This section also includes information about the way in which treaties are negotiated and implemented.

There is information setting out Australia’s current priorities for treaty negotiations, an important Government policy statement about the relationship between treaties and the domestic law, a review of the treaty making process and a table setting out the various stages in the treaty making process. The document concludes with a list of Internet addresses holding treaty information and a glossary of terms.

For further information contact:
The Executive Director, Treaties Secretariat
International Organisations and Legal Division
Department of Foreign Affairs and Trade
R.G. Casey Building, Barton ACT 0221
telephone 02 62613509 fax 02 62612114

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'' (see Glossary). An agreement between an Australian State or Territory and a foreign Government will not, therefore, be a treaty. Even if a document is agreed between two or more sovereign countries, it will not be a treaty unless those countries intend the document to be binding at international law. 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.

Treaties can be bilateral - between Australia and one other country. An aviation agreement between Australia and the United States is one example.Multilateral treaties are those between three or more countries: an example is the United Nations Charter. Multilateral treaties are generally developed under the auspices of international (inter-governmental) organisations such as the United Nations or the International Labour Organisation, but regional multilateral treaties (like the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region "SPREP'') are of growing importance for Australia.

Frequently, "declarations'', such as the Declaration on the Rights of the Child, are adopted by the UN General Assembly but those declarations are not treaties as they are not intended to be binding by reason of their adoption. Such declarations may, however, be part of a long process that leads ultimately to the negotiation of a UN convention such as the United Nations Convention on the Rights of the Child. They may also, in certain circumstances, assist in the interpretation of a treaty, as is the case with the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States.

Arguably, the need for treaties has increased as the world's interdependence has intensified. Continuing technological innovation, economic globalisation and the growth of transnationalism has resulted in an enormous increase in the frequency and rapidity of global interaction. Such challenges require both national and international responses. Where a problem cannot be adequately addressed by a country acting alone (for example, in relation to ozone depletion or the depletion of migratory fish stocks), acting cooperatively at the international level becomes essential for a country to protect its own interests.

In recent decades, the issues subject to treaties have expanded. Australia is a Party to agreements on postal, shipping and social security and health arrangements, defence and security, nuclear non-proliferation, the environment, civil aviation, maritime delimitation, technological exchanges, and agreements designed to establish universal standards in relation to the treatment of civilians in time of war. Australia has also invested considerable energy into outlawing the use of weapons of mass destruction, and into various aspects of law of the sea and the international trading system. The need for global rules on the protection and promotion of human rights, education, the environment, wildlife and the world's cultural and natural heritage is now widely accepted. Most recently, the establishment of effective international regimes to combat criminal activity which does not respect national borders, including terrorism, has taken on a new urgency.

Information about treaties is published in several sources, the most convenient of which is via the Australian Treaties Database on the Internet at http://www.info.dfat.gov.au/treaties

Treaty texts and other information available on the website is fully downloadable and may be freely printed. Copies of treaties included in the Australian Treaty Series may be purchased from Australian Government Info Shops.

From the Australian Treaties Database, which provides key data about individual Austraalian Treaty actions you can go to the Australian Treaties Library on the Internet which contains the following material:

Australia participates in treaty making because it is in the national interest to do so. If the projection of military and economic power were the main means by which national objectives were pursued, Australia would be vulnerable. Our geographic isolation and small population would be seen as a weakness. Nations, particularly States with a relatively small population such as Australia, benefit from a world where interaction between countries takes place within a framework based on fair, agreed and transparent rules as agreed in treaties. Australia is not a member of any single rigid regional grouping; rather, we build global or regional alliances and through them, seek to influence the standards by which international relations are conducted.

International conventions bring considerable benefits in a wide range of areas to individual nations, particularly small and middle-sized countries. Australia has its say in the drafting of these treaties by becoming involved in the international fora in which they are negotiated. As a middle ranking power, Australia’s negotiating resources are finite. As a consequence, successive Governments have often sought to build international coalitions to advance our national interests. For example, in the Uruguay Round of GATT negotiations, the Cairns Group, a coalition of likeminded agricultural exporting nations led by Australia, achieved a favourable outcome on agriculture, which brought Australia well over $1 billion per annum in increased agriculture exports and contributed to an increase in Australia's exports by $5 billion and in Australia's gross domestic product by $4.4 billion by 2002.

Australia has also helped shape a revised Law of the Sea Convention, in the process, gaining sovereign rights over extensive areas of sea and continental shelf. In the field of disarmament, Australia put together a comprehensive draft of a Chemical Weapons Convention and through active diplomacy, was instrumental in achieving a convention now approaching universal acceptance. Australia played a similar catalytic role in relation to the Comprehensive Test Ban Treaty, which aims to ban the testing of nuclear weapons.

Treaties also provide for international cooperation on law enforcement, such as in relation to drug trafficking; establish resource management regimes to encourage sustainable development, and enhance global and regional security, all of which benefit Australia.

Ratification of international treaties does not involve a handing over of sovereignty to an international body. Treaties may define the scope of a State's action, and treaties which Australia ratifies may influence the way in which Australia behaves, internationally and domestically. Implicit, however, in any Australian decision to ratify a treaty is a judgement that any limitations on the range of possible actions which may result are outweighed by the benefits which flow from the existence of a widely endorsed international agreement.

The Government also retains the right to remove itself from treaty obligations if it judges that the treaty no longer serves Australia's national and international interests.

Some treaties establish a committee, which receives reports and monitors the implementation of obligations flowing from the treaty by States Parties. One such treaty body is the United Nations Human Rights Committee, which is responsible, among other things, for monitoring States Parties' implementations of their obligations under the International Covenant on Civil and Political Rights (ICCPR). But any assessments such treaty bodies make are of an advisory nature only. They are not binding and the Human Rights Committee has no enforceable legal jurisdiction over nation states which have acceded to the ICCPR or its First Optional Protocol.

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 (see page 18 ) and in passing legislation to give effect to treaties and the judiciary's oversight of the system. This efficiency and certainty of process enables the Government to negotiate with its overseas counterparts with authority and credibility, and contributes to Australia becoming a source of influence in the treaty's negotiation.

Bilateral agreements that conform to a model text previously approved by Cabinet are normally not subsequently referred to Cabinet. These types of agreements include Investment Promotion and Protection Agreements, Mutual Assistance in Criminal Matters Treaties, Extradition Treaties and Aviation Agreements. They are, however, considered by Ministers prior to approval being given by Federal Executive Council for signature of the treaty.

Although the Constitution does not confer on the Parliament any formal role in treaty making, all treaties (except those the Government decides are urgent or sensitive) are tabled in both Houses of Parliament for at least 15 sitting days prior to binding treaty action being taken. A treaty is generally tabled after it has been signed for Australia, but before any treaty action is taken which would bind Australia under international law. Such action would include entering into a new treaty, negotiating an amendment to an existing treaty or withdrawing from a treaty.

Treaties are tabled in the Parliament with a National Interest Analysis 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

Treaties which affect business or restrict competition are also required to be tabled with a Regulation Impact Statement (RIS).

The Joint Standing Committee on Treaties (JSCOT) considers tabled treaties. The Committee can also consider any other question relating to a treaty or international instrument that is referred to it by either House of Parliament or a Minister. JSCOT reports, once tabled, are available through the Internet website at

Since negotiations for major multilateral treaties are generally a lengthy and quite public, parliamentary debate often takes place as the issues become publicly known. For example, as the Climate Change Convention was negotiated over a period of years, issues associated with the draft convention were the subject of questions without notice, questions on notice, and debate. In cases when implementing legislation is necessary prior to ratification, Parliament has a further opportunity to debate a treaty.

The Government's decision on whether a treaty is in the national interest is based on information obtained during consultations with relevant stakeholders. Consultation does not take place merely so that those with an interest feel included in the process. The practice is to provide information about the treaty in question and, if possible, develop a consensus within the community before taking definitive treaty action. Inevitably, the final decision necessarily involves a balancing of competing interests.

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. The peak consultative body is the Treaties Council consisting of the Prime Minister, the Premiers and the Chief Ministers.

Another important mechanism for federal/state consultation is the Commonwealth-State-Territory Standing Committee on Treaties (SCOT) which consists of representatives from the Premier's or Chief Minister's Departments in every State and Territory. SCOT is chaired by a senior official of the Prime Minister’s Department and also has representatives from the Department of Foreign Affairs and Trade and the Attorney-General’s Department. This committee receives on a 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.

Consultation with industry bodies and interest groups spans a wide range of processes, from standing bodies to informal methods. DFAT holds formal consultations twice a year with Non- Government Organisations (NGOs) interested in international human rights issues where international instruments are on the agenda. The National Consultative Committee on Peace and Disarmament considers arms control issues, and the Trade Policy Advisory Committee enables the business community's interests in trade policy negotiations to be reflected in Government positions. Community consultation outside these standing arrangements is, however, an ongoing process. There are numerous other occasions and forums offered by DFAT at which interest groups or individuals have opportunities to seek information or raise concerns about the treaty process.

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.

Since expert, technical views are often needed by officials at international negotiations, representatives from the States, Territories, industry groups and other NGOs often serve as advisers to Australian delegations. These advisers are in a position to report back to their organisations on the room for manoeuvre for Australian initiatives and positions. This process is 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 a country joins a treaty is determined by the treaty in question. All bilateral treaties have a two stage entry into force mechanism. This allows a bilateral treaty to be tabled in Parliament after its signature but before binding treaty action is taken that would bring the treaty into force.

Modern multilateral treaties typically do not provide that signature alone is sufficient to bind a country to the terms of a treaty. When the text of a multilateral treaty is finalised, the common practice is to have the treaty "open for signature'' for a specified period. Countries may sign the treaty within that period but are not legally bound by its provisions until ratification occurs. Where a country has not signed a multilateral treaty, it will nevertheless generally be able to become a party to it. This is typically called an act of accession.

If Commonwealth legislation is required to give effect to a treaty, the Government relies on the external affairs power in Section 51 (xxix) of the Constitution. 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. In certain specific cases, however, for example, in giving effect to air navigation and shipping treaties, the Government relies on the trade and commerce power as well as the external affairs power. In many other cases, there is no need to rely on the external affairs power because the subject of that treaty already lies within other Commonwealth powers or because State and Territory Governments will enact appropriate legislation.

The Constitution also limits the Commonwealth’s ability to exercise the external affairs power. For example, the Commonwealth Government may not remove constitutional rights, such as freedom of interstate trade, merely by relying on treaty provisions. Also, the Commonwealth's exercise of legislative powers, including the external affairs power, is subject to a principle that the continued existence of one or more States, or their capacity to function as States, must not be impaired.

Neither does the conclusion of a treaty automatically bring the entire subject matter within the legislative capacity of the Federal Government. For example, Australia's accession to the Convention on the Conservation of Nature in the South Pacific does not mean that the Commonwealth has thereby gained legislative power over the subject of "nature conservation." The external affairs power only enables legislation to be passed to give effect to the terms of the treaty, and for legislation to be valid, it must be reasonably considered to be appropriate and adapted to the implementation of a treaty.

Perhaps the most important constraint upon the Commonwealth is the fact that treaty making processes in Australia operate within a democratic context. This includes, ultimately, the knowledge that action by the Commonwealth Government which was widely perceived as contrary to Australia's interests could result in its defeat at the next election.

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.)

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.

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.

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 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.

Globalisation has changed the way all levels of Government interact with the international system. The States and Territories are increasingly aware of the benefit of having a global "voice'', and playing a greater role in the world's deliberations on international rule making. State tourism offices, premiers' trips overseas to raise finance or attract investment, relevant ministers working with their counterparts to develop specific trade opportunities are just some examples of these trends. The increased presence of State and Territory representatives on delegations to international meetings (including for the negotiation and implementation of international treaties) demonstrates the importance of treaties to the States and Territories.

The Principles and Procedures for Commonwealth-State-Territory Consultation on Treaties sets out the arrangements governing the provision of information, consultative mechanisms and the implementation of treaties and other international instruments that are of particular sensitivity and importance to the State and Territory Governments. Under these procedures, the Commonwealth may consider relying on State or Territory legislation where the treaty affects an area of particular concern to the States or Territories and adoption of that course is consistent with the national interest and the effective and timely discharge of treaty obligations.

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 assists Commonwealth/State consultation on treaties and less than treaty status arrangements by which Australia secures recognition for its export standards in potential markets.
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.

Australia is currently negotiating 85 separate international agreements of treaty status.

They cover a wide range of subject matter, and are at varying stages of completion.

Some are bilateral, others multilateral or regionally based.

I propose to focus on three treaty-level negotiations, each covering topics of vital importance to Australia’s interests.

They are:

Comprehensive Convention on Terrorism

The attacks on the United States on 11 September 2001 have brought cooperation against terrorism to the very top of the international agenda.


There are currently 12 UN anti-terrorism instruments covering a range of matters including hostage taking, terrorist bombings and terrorist financing.

Australia is a party to 9 of the 12 instruments.

In the year 2000, negotiations commenced in the UN on a Comprehensive Convention Against Terrorism to “fill the gaps”, but not to replace the existing conventions.

Australia has served as Vice-Chair, coordinating discussion on the most difficult aspects of the negotiations: the definition of the offence of terrorism, and the scope of the Convention.

These issues are politically charged, and have defied consensus for many years.

Members of the Non-Aligned Movement and the Organisation of the Islamic Conference argue that an armed struggle for national liberation, or against occupation or racist regimes, should not be considered terrorism, and are seeking a broad reference in the Convention to reflect this position.

They would classify such struggles as lawful armed conflict in the pursuit of the right of peoples to self-determination.


Many countries, including Australia, consider that an exclusion in these terms would create too many unacceptable ambiguities.

There have been two negotiating sessions on the Convention since September 11.

Australia had shared the hope of many that the renewed international will to combat terrorism, post September 11, would result in these differences being resolved.

This has not proved to be the case, despite intensive efforts by Australia and the UN Secretary General to broker a compromise.

It has to be said that the outlook for concluding the treaty is not positive, particularly while the Israel-Palestine crisis deepens.

Nevertheless, concluding the Comprehensive Convention Against Terrorism is an important objective, and one for which Australia will continue to work.

More positively, the recently concluded Memorandum of Understanding on Combating International Terrorism between Australia and Indonesia demonstrates that results can often be achieved more quickly through bilateral, non-binding, but nonetheless effective arrangements.

World Trade Organisation

There is a more encouraging story to tell about the launch of the new round of global trade negotiations by WTO members in Doha last November.

For a medium-sized exporting country like Australia, rules-based multilateral trade liberalisation offers, overall, the most effective route to improved access to global markets and secure trading conditions.

The Government’s key goals for the Doha Round are to achieve market access gains in agriculture, services and industrial products.

The mandates for industrial products and services provide a good basis for further liberalisation.

Negotiations should begin this year to reduce tariff and non-tariff barriers on industrial products.

And negotiations on services will commence early next year.

The most difficult negotiations are likely to be on agriculture, as well as environment and geographical indications.


Australia will continue efforts - begun under the auspices of the Cairns Group during the previous round of multilateral trade negotiations - to ensure that the Doha Round phases out agricultural export subsidies, and reforms other trade-distorting measures.

The challenge will be to realise significant gains from the agricultural negotiations by the mandated deadline of January 2005.

At Doha, Ministers also committed to negotiate on the relationship between WTO rules and multilateral environment agreements.

A key objective for Australia will be to ensure that multilateral environment agreements are not used as a way of increasing trade protection.

Australia will continue to oppose moves to extend the level of geographical indications protection currently accorded to wine and spirits to other products, including food.

This kind of protection could deprive Australian agricultural producers of the opportunity to use generic terms such as ‘basmati’ rice or ‘kalamata’ olives.


Timor Sea Treaty

The Government is negotiating an historic bilateral treaty on the Timor Sea with the UN Transitional Authority in East Timor (UNTAET) and East Timorese representatives.

An international legal regime governing the development of seabed resources between Australia and East Timor is a key objective for Australia.

The Timor Sea Treaty will be based on the ‘Timor Sea Arrangement’, which was endorsed by Australian Ministers, UNTAET and East Timorese representatives in Dili last July.

We hope to have the new treaty ready for signature on East Timor’s independence on 20 May this year. Negotiations are underway in Darwin as I speak.

There are strong commercial, legal and foreign policy reasons to conclude a treaty by this date.

It will provide a 90-10 revenue split in favour of East Timor, instead of the 50-50 split in the earlier Timor Gap Treaty between Australia and Indonesia.

This will give East Timor a secure and predictable revenue base, thus lessening its dependency on aid.


It will also provide legal and commercial certainty for investors, to enable continued development of the valuable resources of the Timor Sea.

And significantly, it will demonstrate – in important, symbolic terms - close relations between Australia and this fledgling nation.

All three sets of negotiations that I have mentioned demonstrate the crucial role that treaty-making plays in securing and promoting Australia’s long-term economic, political and foreign policy interests.

Between Negotiation and Ratification

Of course, you will be aware that completing negotiations on a treaty is not the end of the story: they do not enter into force until ratification requirements are met.

I will conclude, therefore, by mentioning briefly two treaties where the texts have been finalised and countries are now able to consider ratifying.

These treaties are the Kyoto Protocol to the United Nations Framework Convention on Climate Change, or UNFCC, and the Statute of Rome which establishes the International Criminal Court.

The Government regards the threat posed by climate change as very important, and is committed to maintaining a strong domestic climate change program.

Almost $1 billion have been invested in programs to reduce greenhouse gas emissions.

The Kyoto Protocol was finalised at the 3^rd Conference of the UNFCCC parties at Kyoto, Japan in 1997, after extensive negotiations.

Rules and procedures for implementing the Protocol were finalised at the 7^th Conference of the UNFCCC Parties (COP7) in Marrakesh in November 2001.

The Protocol must be ratified by at least 55 countries, including countries with targets representing at least 55 per cent of 1990 greenhouse gas emissions, before it can enter into force.

Forty six countries have ratified, and many others are completing domestic ratification processes this year.

A number of countries, including the EU and Japan, have signalled their intention to ratify before the World Summit on Sustainable Development in September 2002.

Reaching the 55 per cent of 1990 greenhouse gas emissions threshold, however, will be difficult in the absence of the largest emitter, the United States.

The United States is key to global efforts to deal with the serious, long-term threat posed by climate change. Although still a party to the UNFCCC, the U.S. has stood aside from the Protocol since early 2001, and will not ratify it.

One month ago, President Bush announced a comprehensive range of U.S. measures to reduce the greenhouse gas intensity of its economy.

The Government has welcomed the U.S. initiative, elements of which appear consistent with Australia’s long-standing views on how climate change can best be addressed.

In particular, the Government supports the emphasis in the President’s statement on the need for a workable climate change regime to be economically manageable, and to include developing countries.

And the Government believes that effective action to address climate change needs to include all major emitters, including the United States and developing countries.

Australia will maintain close dialogue with the United States and other key players such as the EU.

At the same time, Australia will continue to underline the importance of engaging developing countries on the level of their future emissions of greenhouse gases.

Australia and the US have recently announced the establishment of a bilateral ‘Climate Action Partnership’.

This ‘Partnership’ will focus on practical measures to address climate change - including emissions measurement, climate science, initiatives in sectors such as energy and agriculture, and engagement with business.

It will also address collaborating with developing countries to help build their capacity to deal with climate change.

The Government is analysing the implication of the COP7 package for Australia before making a decision on ratifying the Kyoto Protocol.

Obviously the approach outlined by President Bush will be a factor in developing Australia’s climate change strategy.

As I already mentioned, the EU, Japan and a number of other countries with Kyoto targets have announced that they intend to ratify the Protocol.

So the required threshold of 55 per cent of 1990 emissions - for the Protocol to enter into force - will depend on whether or not Russia (with 17.4 per cent of the total) ratifies.

Rome Statute of the International Criminal Court

I note that your distinguished Chair has commented in his Sydney Morning Herald column about the International Criminal Court.

You are probably aware that the Department does not necessarily share his assessment of the Court.

This seminar, however, underlines - and is consistent with - the Government’s commitment to encouraging a broad public debate about the Court.

Last year, the Joint Standing Committee on Foreign Affairs, Defence and Trade commended the Government for its contribution to the development of the International Criminal Court.

The same Committee recommended twice that the Government ratify the Statute of Rome as soon as possible.

The Government remains committed to ratifying the Rome Statute, once it has been able to consider any recommendations that the Joint Standing Committee on Treaties may make in relation to the Statute.

In addition to awaiting the outcome of the Joint Standing Committee on Treaties’ deliberations, the Government must also wait until Parliament has passed legislation to enable Australia to meet its obligations as a State Party, and to take full advantage of the Statute’s “complementarity regime”.

It appears almost certain – with 55 of a required 60 States having ratified – that the Statute will enter into force this year; and earlier this year rather than later.

The Preparatory Commission of the International Criminal Court has set a September 2002 date for the first meeting of the Court’s Assembly of States Parties.

Australia will only be able to participate actively at this Assembly if we have ratified the Statute in time to be a State Party by the time the meeting is held.

The Government still hopes this will be possible, but also thinks it is important that the process for ratifying accord fully with its reformed treaty-making policy.

Conclusion

In conclusion, a general point I should like to make is that the treaty-making agenda in which Australia is engaged at any time reflects the security, political, economic and social environment in which we operate internationally as a country.

Twelve months ago, I would have highlighted a different list of examples of our treaty-making activity at that time.
It is entirely natural for Australia’s priorities in treaty making to continue to shift in response to changing international and domestic circumstances.

I think you have before you a very stimulating and challenging agenda for the next two days, with the opportunity for some spirited discussions with some of Australia’s foremost experts on treaties issues.

This is a Parliamentary committee established by the Government in 1996 as part of a package of reforms to improve the openness and transparency of the treaty making process in Australia. Its role is to review and report on all treaty actions proposed by the Government before action is taken which binds Australia to the terms of the treaty.

Resolution of appointment

The Committee's resolution of appointment empowers it to inquire into and report upon:

(a) matters arising from treaties and related National Interest Analyses and proposed treaty actions presented or deemed to be presented to the Parliament;
(b) any question relating a treaty or other international instrument whether or not negotiated to completion, referred to the committee by:

i. either House of Parliament; or
ii. a Minister; and

(c) such other matters as may be referred to the committee by the Minister for Foreign Affairs and on such conditions as the Minister may prescribe.

The process of parliamentary review

The reformed treaty making process requires that all treaty actions proposed by the Government are tabled in Parliament for a period of at least 15 sitting days before action is taken that will bind Australia at international law to the terms of the treaty.
The phrase 'treaty actions' has a broad meaning. It covers bilateral and multilateral agreements and encompasses a range of actions including entering into new treaties, amendments to existing treaties and withdrawal from treaties.
The one exception to the rule that treaties be tabled before binding treaty action is where the Minister for Foreign Affairs certifies that a treaty is particularly urgent or sensitive, involving significant commercial, strategic or foreign policy interests.
When tabled in Parliament, the text of proposed treaty actions are accompanied by a National Interest Analysis (NIA) which explains why the Government considers it appropriate to enter into the treaty. An NIA includes information about:

The text and NIA for each proposed treaty are automatically referred to the Treaties Committee for review. The Committee advertises its reviews in the national press and on its web-site, inviting comments from anyone with an interest in the subject matter of the proposed treaty. The Committee also routinely takes evidence at public hearings from government agencies and people who have made written submissions.
At the completion of its inquiries the Committee presents a report to Parliament containing advice on whether Australia should take binding treaty action and on other related issues that have emerged during its review.

Seminars

The Committee convened seminars designed to improve public awareness of the opportunities that exist for everyone in the community to be involved in the process of making and reviewing Australia's international treaty obligations. Report 24 contains an overview of the main issues discussed at a seminar on 24 and 25 June 1999 in Canberra. A Hansard transcript of the seminar in Brisbane on 20 July 2000 can be found here.
Comments to: Committee Secretary on PH: 02 6277 4002 or FAX: 02 6277 4827
or email: jsct@aph.gov.au
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Parliament of Australia Web Site Privacy Statement

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.

2.1 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 Principles

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.

4 Information
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.

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.

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.

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).

6.1 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 Implementation

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.

8.1 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.

This statement addresses the consequences of the 7 April 1995 decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. In relation to administrative decisions made from today, it replaces the joint statement made on 10 May 1995 by the then Minister for Foreign Affairs and the then Attorney-General.

2. In the Teoh case the majority of the High Court held that entry into a treaty by Australia creates a `legitimate expectation' in administrative law that the Executive Government and its agencies will act in accordance with the terms of the treaty, even where those terms have not been incorporated into Australian law. The High Court held that, where a decision-maker proposes to make a decision which is inconsistent with such a legitimate expectation, procedural fairness requires that the person affected by the decision be given notice and an adequate opportunity to put arguments on the point. The High Court made clear that such an expectation cannot arise where there is either a statutory or executive indication to the contrary.

3. It is a longstanding principle that the provisions of a treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into domestic law by statute. The High Court in the Teoh case affirmed that principle but at the same time gave treaties an effect in Australian law, as described in the previous paragraph, which they did not previously have. The Government is of the view that this development is not consistent with the proper role of Parliament in implementing treaties in Australian law. Under the Australian Constitution, the Executive Government has the power to make Australia a party to a treaty. It is for Australian parliaments, however, to change Australian law to implement treaty obligations.

4. The purpose of this statement is to ensure that the executive act of entering into a treaty does not give rise to legitimate expectations in administrative law.

5. The act of entering into a treaty is unlike the considered statements of public policy which previously had been held by the courts to give rise to a legitimate expectation in administrative law. The prospect was left open by the Teoh case of decisions being challenged on the basis of a failure sufficiently to advert to relevant international obligations including where the decision-maker and person affected had no knowledge of the relevant obligation at the time of the decision. This is not conducive to good administration.

6. Therefore, we indicate on behalf of the Government that the act of entering into a treaty does not give rise to legitimate expectations in administrative law which could form the basis for challenging any administrative decision made from today. This is a clear expression by the Executive Government of the Commonwealth of a contrary indication referred to by the majority of the High Court in the Teoh Case.

7. Subject to the next paragraph, the executive indication in this joint statement applies to both Commonwealth and State and Territory administrative decisions and to the entry into any treaty by Australia in the future as well as to treaties to which Australia already is a party. In relation to administrative decisions made in the period between 10 May 1995 and today reliance will continue to be placed on the joint statement made by the then Minister for Foreign Affairs and the then Attorney-General on 10 May 1995.

8. Where a State or Territory government or parliament takes, or has taken, action to displace legitimate expectations arising out of entry into treaties in relation to State or Territory administrative decisions this statement will have no operation in relation to those decisions.

9. The Government will also introduce legislation to provide that the executive act of entering into a treaty does not give rise to legitimate expectations in administrative law.

© Commonwealth of Australia 1999
ISBN 0 642 20985 5
This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without written permission.

In 1996, the Government introduced wide-ranging reforms to the treaty-making process. The Government has now reviewed these reforms, and found that, overall, they are working well. By consulting with States and Territories, and the Joint Standing Committee on Treaties, and from the many submissions from the community, the Government has identified some areas for further improvement. These include, among other things, improving consultation between States and Territories and Commonwealth Departments and agencies. There is also scope for building on improvements already made to National Interest Analyses, and for enhancement of the internet Australian Treaties Library. The Government remains committed to an open and transparent treaty-making process.
The 1996 Reforms

The 1996 reforms had 5 pillars:
· the tabling of treaties in Parliament for at least 15 sitting days before binding action is taken;

· the preparation of a National Interest Analysis (NIA) for each treaty;

· the establishment of the Parliamentary Joint Standing Committee on Treaties (JSCOT);

· the establishment of the Treaties Council comprising the Prime Minister, Premiers and Chief Ministers; and
· the establishment on the internet of the Australian Treaties Library.

The Review Process − Wide Consultation

In 1996, the Government said it would review the reforms after they had been in place for 2 years. This process began in July 1998 with requests for submissions.

The Government consulted widely in conducting this Review. The Prime Minister wrote to all Premiers and Chief Ministers requesting their comments on the reforms and suggestions for improvement. The Minister for Foreign Affairs and the Attorney-General wrote in similar terms to JSCOT. The Department of Foreign Affairs and Trade (DFAT) and the Attorney-General's Department sought contributions from Commonwealth Departments and agencies, and persons and organisations who had made submissions to the 1995 report of the Senate Legal and Constitutional References Committee on treaties (the 1995 Senate Report),^[1] or to subsequent JSCOT inquiries.

The Review was advertised and submissions sought in nation-wide newspaper advertisements in July 1998, and through the DFAT and Attorney-General's Department internet sites.

A total of 66 submissions were received.

The majority of these submissions agreed that the reforms were both well-implemented and effective in practice. The Government also appreciates the suggestions for improvement contained in many submissions.

Assessing the reforms

Fifteen sitting day minimum tabling period

The requirement to table treaties in Parliament for a minimum of 15 sitting days has proved a good balance between the need for adequate Parliamentary and public scrutiny and the need for timely treaty action. The existing flexibility - for shorter tabling periods in very urgent circumstances and for longer periods in particularly complex matters - has worked well.

Parliamentary Joint Standing Committee on Treaties

JSCOT has been very effective. It has sought submissions from a wide range of people and organisations, and as at 30 June 1999 had considered 137 treaty actions and tabled 22 reports.

JSCOT has been able to expand consultation by holding hearings in a wide range of locations and by seeking submissions from a wide range of parliamentary, government, industry and community groups.

The second-largest and one of the most active joint Parliamentary committees, JSCOT has become the key medium for wide consultation on treaties. It has also greatly enhanced community awareness of treaties.

National Interest Analyses

The purpose of an NIA is to explain why a treaty action would be in Australia's national interest. NIAs describe the likely economic, social, cultural, environmental and legal impacts of proposed treaty action. They are tabled with their treaties for a minimum of 15 sitting days, and are available on the internet.

Some States and Territories expressed concern about the adequacy of the time made available for consultation with the Commonwealth agency preparing the NIA. The Government acknowledges this situation. However, in the 3 years of their operation, NIAs have evolved and improved, and this process will continue. JSCOT has played a valuable role in this. The Government is committed to the importance and value of the States' and Territories' role in this area, and encourages them to engage in treaty consultation at the earliest opportunity.

The Australian Treaties Library (www.austlii.edu.au/au/other/dfat)

The establishment on the internet of the Australian Treaties Library is one of the stand-out successes of the Government's 1996 reforms. It has already become the world's most advanced and up-to-date on-line national treaty information system, containing more than 26,000 pages of treaty texts. It has been enthusiastically endorsed by a very wide range of users.

Work is continuing on the Australian Treaties Library website to expand its already impressive subject and keyword search capabilities, create and improve links to NIAs and 'status lists' showing which countries have joined treaties to which Australia is a Party, and improve the overall user-friendliness of the site.

Australia is a leader in this field: it sponsored the United Nations General Assembly resolution that created the UN internet treaty database (www.un.org/Depts/Treaty).

The Government continues to provide printed hard copy versions of treaty texts.
Treaties Council and Standing Committee on Treaties (SCOT)

The Treaties Council consists of the Prime Minister, the Premiers and the Chief Ministers. Although it has so far met only once (in November 1997), the Commonwealth/State and Territory Standing Committee on Treaties (the SCOT) meets twice each year. The SCOT has significantly enhanced the coordination of consultation between the Commonwealth and the States and Territories.

Other State and Territory Concerns

State and Territory submissions raised a number of specific proposals which the Government has noted:

· State and Territory approval of treaties: the Government considers that the reformed treaty processes are sufficient to enable the views of States and Territories to be taken into account in treaty negotiations. However, the Government is committed to improving existing consultation in order to make the present system work as effectively as possible.

· Federal Clauses: Federal clauses limit the application of a treaty to areas of a federal government's constitutional authority. The 1995 Senate Report found that for Australia they would present considerable practical and political difficulties. There are no plans to seek federal clauses in future treaties, although the Government will continue to make a federal statement upon signature of a treaty when appropriate.

· State and Territory representation at treaty negotiations: the Government acknowledges that States and Territories often participate in treaty negotiations, and this can assist in informing the delegation of State and Territory views and provide the delegation with expert technical assistance. The Government supports State and Territory-funded participation in relevant treaty negotiations.

Looking to the Future

The Government considers that the treaty-making process has worked well since the reforms were introduced. It is committed to maintaining these high standards and initiating improvements where appropriate:

· consultation with States and Territories: the Government will continue to ensure that Commonwealth agencies consult promptly so that States and Territories can make the best possible use of the existing Ministerial Councils and consultation mechanisms;

· National Interest Analyses: the Government is committed to maintaining the quality and utility of NIAs, and values the feedback of JSCOT and the States and Territories;

· Australian Treaties Library - staying at the leading edge: the Australian Treaties Library website is the world's best national treaties website - the Government is committed to keeping it that way.

Continuing the Success of the 1996 Reforms

The Government has been pleased with the positive response to its reforms of the treaty-making process. It is committed to further improving the way Australia enters into treaties, and working towards the most effective combination of scrutiny, transparency and consultation.

1.1 The Government is proud of the success of the landmark 1996 treaty reforms. As the submissions to this Review acknowledged, the reforms have greatly improved scrutiny, transparency and consultation in the treaty-making process, and community awareness of treaties.

1.2 The key initiatives were:

· the tabling of treaties in Parliament for at least 15 sitting days before binding action is taken;

· the preparation of a National Interest Analysis (NIA) for each treaty;

· the establishment of the Parliamentary Joint Standing Committee on Treaties (JSCOT);

· the establishment of the Treaties Council comprising the Prime Minister, Premiers and Chief Ministers; and

· the establishment on the internet of the Australian Treaties Library.

1.3 As at 30 June 1999 the Government had tabled 135 treaties since the introduction of the reforms. JSCOT has closely and constructively scrutinised the treaties. NIAs and the Australian Treaties Library have provided a new level of transparency. The Government has continued to improve the comprehensiveness of its consultations.

1.4 On 2 May 1996, the Minister for Foreign Affairs, the Hon Alexander Downer MP and the Attorney-General, the Hon Daryl Williams AM QC MP, announced the Government's reforms to the treaty-making process in Australia. In introducing those changes to Parliament the Minister for Foreign Affairs foreshadowed that the Government would review the initiatives taken to reform the treaty-making process. The Minister also noted the need to overcome the perceived "democratic deficit" in the treaty-making process and to ensure that every Australian individual and interested group has an opportunity to participate in the process. The reforms sought to establish an efficient approach to assessing the way proposed treaties meet our national interests. As this Review highlights, the objectives of the reforms have been achieved. Many submissions made suggestions for further adjustments, and these valuable contributions have been thoroughly considered.

1.5 The Government's guide to treaties, the Treaty Information Kit is available on the internet^[2] and from the Department of Foreign Affairs and Trade's Treaties Secretariat.

2.1 The 1996 reforms were fully operational by 14 June 1996, only 6 weeks after they were announced, highlighting the Government's commitment to its reforms. Most submissions to this Review agreed that the 5 main elements of the reforms have been successfully implemented.

2.2 The Treaties Secretariat, a new unit established within the Department of Foreign Affairs and Trade (DFAT), has been responsible for managing the reforms and coordinating their implementation.

Tabling

2.3 The first of the 5 reforms was the requirement that all proposed treaty actions be tabled for at least 15 sitting days in both Houses of Parliament prior to the Government taking the final step to bind Australia under international law. During this time, the Parliamentary Joint Standing Committee on Treaties (JSCOT) holds hearings and prepares a report about the treaty. Fifteen sitting days (30 to 100 calendar days) has proved a manageable timeframe for JSCOT to scrutinise treaties.

2.4 Both the Government and JSCOT acknowledge that some international events may demand treaty action by the Government before the expiry of 15 sitting days. This exception has been used sparingly, and only where necessary to safeguard Australia's national interest. For example it has been used in relation to:

· the Bougainville Peace Monitoring Agreement;^[3] and

· the 1996 Agreement with Japan concerning Tuna Long-Line Fishing.^[4]

2.5 Another aspect of the introduction of the 15 sitting day requirement was its impact on bilateral treaty negotiations. In its response to the 1995 Senate Report^[5] the Government recognised the need for a changed approach to negotiation of bilateral treaties, which usually entered force upon signature. Bilateral treaties are now implemented through a 2-stage process (signature followed by binding action) which accommodates JSCOT scrutiny.
National Interest Analyses

2.6 The second reform was the requirement for a National Interest Analysis (NIA) to be prepared for each treaty. An NIA analyses:

· the forseeable economic, environmental, social and cultural effects of
a treaty action;

· the obligations such action will impose;

· the direct financial costs to Australia;

· domestic implementation implications; and,

· the nature of consultation that has occurred.

2.7 The quality and content of NIAs has continued to evolve since the first NIAs were tabled on 21 May 1996. JSCOT has made valuable comments and recommendations about the need to include greater detail on consultation and improve the format of NIAs.

2.8 NIAs are tabled in Parliament, and are then made available on the internet with the treaty they accompany. They have proved to be both an important tool in the dissemination of information about treaty actions, and a valuable aid to JSCOT in its considerations. NIAs are discussed further at paragraphs 7.5-7.9.
Parliamentary Joint Standing Committee on Treaties

2.9 The third reform was the creation, on 30 May 1996, of JSCOT. Comprised of 16 members from both Houses, JSCOT is made up of Government, Opposition and minority parties as well as independent members. As at 30 June 1999, JSCOT had considered 137 treaty actions^[6] and has tabled 22 reports. It has served as a medium for the dissemination in Parliament of information about treaties, and has provided a key forum for the public, interested groups, and State and Territory governments to express their views.

2.10 JSCOT's Resolution of Appointment allows it to inquire into and report upon:

· matters arising from treaties and related NIAs and proposed treaty actions presented, or deemed to be presented, to the Parliament;

· any questions relating to a treaty or other international instrument, whether or not negotiated to completion, referred to it by:

- either House of the Parliament; or

- a Minister; and

· such other matters as may be referred to it by the Minister for Foreign Affairs and Trade and on such conditions as the Minister may prescribe.^[7]

2.11 JSCOT has interpreted its mandate broadly, and has taken the view that all treaties entered into before its creation have been tabled for its consideration. On this basis JSCOT has undertaken an inquiry into the implementation of a treaty that has been in force for Australia since January 1991 (the Convention on the Rights of the Child).^[8] The Minister for Foreign Affairs also referred the draft Multilateral Agreement on Investment (MAI) to JSCOT while that proposed treaty was still under negotiation.

2.12 JSCOT has held as many hearings as possible at locations convenient to interested groups, and this has served to make the treaty-making process more accessible to the public. Proceedings have been advertised in major newspapers and the JSCOT Secretariat has contacted groups which may be interested in each treaty under consideration.

2.13 The second largest of the Parliamentary committees, JSCOT has proved active, productive and efficient. The Government appreciates the constructive scrutiny of treaties undertaken by JSCOT.

Treaties Council

2.14 The fourth reform was the establishment on 14 June 1996 of the Treaties Council to facilitate greater consultation with the States and Territories. The Council consists of the Prime Minister, Premiers and Chief Ministers. It allows the States and Territories to draw to the Commonwealth's attention treaties of particular sensitivity and importance to them, and for the Commonwealth to maintain at the highest level its commitment to consultation. The Council has an advisory function to consider treaties and other international instruments of particular sensitivity and importance to the States and Territories. These may be considered by the Council on its own motion, or on reference from any State or Territory, a Ministerial Council, an intergovernmental committee of the Council of Australian Governments, or by the Commonwealth/State and Territory Standing Committee on Treaties (SCOT). The SCOT, which convenes twice each year, plays an important coordinating role for the Treaties Council. SCOT is comprised of officers representing the Premiers and Chief Minister's Departments of the States and Territories, and officers representing the Commonwealth Departments of Prime Minister and Cabinet, Foreign Affairs and Trade and Attorney-General's. Although the Treaties Council has met only once (in November 1997) it has the potential to improve consultation on treaty matters of importance to the States and Territories. The frequency of future meetings of the Treaties Council is a matter for agreement between the Commonwealth and the States and Territories.

Australian Treaties Library

2.15 The fifth reform was the establishment by the Department of Foreign Affairs and Trade (DFAT), in conjunction with the Australasian Legal Information Institute, of the Australian Treaties Library on the internet (www.austlii.edu.au/au/other/dfat/). This database is the world's most complete, freely-available national database of treaty information. It contains a wide range of documents and information about treaties, including:

· all treaties in force for Australia;

· NIAs for all tabled treaties;

· lists of multilateral treaties under negotiation; and

· treaties signed by, but not yet in force for, Australia.

2.16 The database represents a quantum leap in information distribution. Hard copy of all information is available from DFAT upon request for persons who do not have access to the internet.

2.17 Since the 1996 reforms were announced the Government has tabled 135 treaties. JSCOT has engaged in effective scrutiny of treaties, and the preparation of NIAs has led to greater transparency. The placing of the Australian Treaties Library on the internet has enabled the distribution of extensive information on treaty issues to the general community.

3.1 In its response to the 1995 Senate Report, the Government stated that it would conduct a review 2 years after the 1996 treaty reforms had been in place.

3.2 In July 1998 the Prime Minister wrote to the Premiers and Chief Ministers to invite them to provide comments about the reforms and to make suggestions for improvements. The Minister for Foreign Affairs, the Hon Alexander Downer MP and the Attorney-General, the Hon Daryl Williams AM QC MP, wrote in similar terms to the JSCOT. The Department of Foreign Affairs and Trade (DFAT) and the Attorney-General's Department wrote advising of the Review and seeking comments from persons and organisations who had made submissions to the 1995 Senate Report, or to subsequent JSCOT inquiries. Comments were also sought from Commonwealth Departments and agencies.

3.3 In addition, advertisements in national and State and Territory newspapers in July 1998 sought views on the operation of the new treaty-making process. The Review was also advertised on the internet sites of DFAT and the Attorney-General's Department.

3.4 On 9 February 1999 a meeting to provide information to JSCOT about the Review was held with DFAT and the Attorney-General's Department.

3.5 The Review received 66 submissions (listed in the Appendix), including submissions from all State and mainland Territory Governments and 13 submissions from Commonwealth Departments and agencies. The JSCOT also provided comments. The Government appreciates the contribution made by all those who participated in the Review.

3.6 The issues addressed in the submissions included the role of States and Territories in treaty negotiations, the role and procedures of JSCOT, Government consultation in relation to treaty negotiations, the role of Parliament in the treaty-making process, and whether the Parliamentary treaty-making process should be set out in legislation.

4.1 JSCOT's main role is to inquire into and report upon treaties. In fulfilling its role, the Committee has played an important part in overcoming the perceived ``democratic deficit'' of the treaty-making process. In particular, it has developed as a key forum through which comprehensive community consultation is facilitated, and has increased confidence in the treaty process.

Timing of JSCOT's involvement

4.2 JSCOT's practice has been to inquire into and report on treaties as they are tabled, before the Government takes binding action. There are, however, 2 other stages at which a treaty could be considered by JSCOT within the terms of its Resolution of Appointment.^[9]

4.3 Some submissions to this Review have suggested that it should be possible for JSCOT to inquire into a treaty during negotiations before the text, and Australia's position, have been finalised. This is provided for in the JSCOT Resolution of Appointment, and has already occurred during JSCOT's first term, with the consideration of the draft Multilateral Agreement on Investment, which was being developed by the members of the Organisation for Economic Cooperation and Development.

4.4 It may be appropriate, on occasion, for the Minister for Foreign Affairs to refer a treaty to the Committee during the negotiation stage, to assist the Government with making the decision whether to sign and subsequently ratify a treaty. Such a referral could only be effective if clear terms of reference were determined following close consultation with JSCOT (through its Chairman).

4.5 At the other end of the treaty-making process, in relation to treaties already in force, the Government notes that other Parliamentary committees may have specialised expertise on the subject-matter of these treaties, and there may be merit in considering this when determining the most suitable forum for reviewing such treaties. However, the Government is keen to strengthen the capacity of JSCOT to deal with current treaties and to address the new policy issues arising from them.

4.6 The Government is also aware of the limited resources of State and Territory governments, industry groups, interested groups and academics to monitor and contribute to JSCOT's consideration of treaties. The Government also seeks to make the best use of its resources, so it is prudent to avoid duplication of inquiries into a particular issue. This, or a premature inquiry, would unnecessarily stretch the resources of all participants in the treaty-making process.

Treatment of Minor Treaties

4.7 Many treaties are based on Government-approved ``templates''. These standard documents cover such bilateral issues as double taxation, extradition, law enforcement, mutual assistance, health and social security. Other treaties are subordinate to major multilateral treaties, simply implementing the policy under the main treaty. Examples include individual international organisations' operational agreements or technical arrangements. The characterisation of a treaty may be relevant in determining the intensity of the review process to be applied to it.^[10]

4.8 JSCOT itself has recognised this aspect of the treaty-making process. Its First Report noted that:

1.20 The Committee will not examine all tabled treaties in detail. Some treaties or executive agreements, such as extradition agreements or double taxation agreements, will not warrant separate scrutiny on each occasion. Nonetheless the Committee reserves the right to examine the operation of such arrangements in general terms, should it so desire.

4.9 The Government welcomed JSCOT's approach, in particular, that separate scrutiny may not be warranted for certain treaties, and notes that this would reduce the burden on resources of all participants in the treaty review process (in particular, industry and community groups).

4.10 This practice of determining the level of scrutiny to be applied to a treaty functions well when the NIA clearly and succinctly summarises the issues. In relation to template treaties, the Government's practice is to indicate in the NIA how the specific treaty varies from the template. This practice was developed in response to comments from JSCOT.

4.11 The Government considers that JSCOT's current Resolution of Appointment is appropriate for its key role in the treaty-making process, and that the discretion of the Committee to inquire into any treaty, when tabled, should remain unfettered.

Tabling Period

4.12 A number of submissions raised the issue of the adequacy of the period for tabling treaties in Parliament before binding action is taken. The period established in the 1996 reforms was at least 15 sitting days (usually 30 to 100 calendar days) of both Houses of Parliament. The period was recommended by the 1995 Senate Report and is consistent with other analogous Parliamentary tabling periods, for example, the period during which Parliament may consider a new regulation.

4.13 A tabling period of 15 sitting days provides a reasonable balance between the need to allow for sufficient Parliamentary scrutiny of treaty actions, and the need to implement a treaty as soon as possible. The Government notes that the `urgency' exception, discussed at paragraph 2.3, has worked well.

4.14 Many of the submissions that commented on this aspect of the reforms did not appear to reflect an understanding of the difference between sitting days and calendar days. The criticisms of the tabling period raised in submissions related to broader concerns over adequate consultations. Such concerns have been addressed in consideration of other elements of the treaty-making process.

4.15 The issue of the adequacy of the tabling period was addressed by JSCOT in its First Report:

4.16 The Government has, without exception, honoured this commitment and appreciates the consultative practices adopted by JSCOT to ensure there are no practical disadvantages caused by delayed reporting.

4.17 Accordingly, the Government considers that the balance currently struck in determining the length of the tabling period is adequate and appropriate.

5.1 The Government may, by ratifying a treaty, bind Australia at international law to the obligations under the treaty. The approval of the Parliament is not required for this ratification.^[11] Of course, the Parliament has a central role in relation to the implementation of the obligations under a treaty if Commonwealth legislation is required for Australia to fulfil those obligations.

5.2 The 1995 Senate Report considered the issue of whether to introduce a requirement for Parliamentary approval prior to Australia's ratification of treaties. That Report concluded that the issue be referred to JSCOT, noting that other reforms recommended by the review would assist in curing some of the problems that a Parliamentary approval process would be designed to address. The Government response to that Report indicated that the experience to be gained from the reforms should be assessed before determining this matter, and that the Government would consider the issue as part of this Review.

5.3 A number of submissions to the Review addressed the issue of Parliamentary approval of treaties. The views ranged from saying that Parliamentary approval was unnecessary, to arguing that ratification of some treaties should be subject to approval by referendum. The main argument in favour of some form of Parliamentary approval is, in essence, that it could result in improved accountability, consultation and community awareness in relation to Australia's proposed ratification of a treaty.

5.4 The Government has carefully considered this issue, and concluded that a requirement for Parliamentary approval of treaties is not justified. This is because the reformed treaty procedures have themselves sufficiently improved public consultation and Parliamentary scrutiny. In particular, the procedures require that prior to binding action being taken a treaty must be tabled in Parliament, together with an NIA. Moreover, those treaties that would directly affect the rights and duties of individuals in Australia already require Parliament's consideration of the implementing legislation.

5.5 Further, all treaties are subject to inquiry by JSCOT and the Government has been careful to take JSCOT's recommendations into account. The significant contribution of JSCOT since its inception has strengthened the Government's view that more restrictive and formal Parliamentary sanction would not provide any advantages. The Government considers it appropriate and useful that the Parliament have a full role in considering, commenting on and making recommendations about the purpose and consequences of the Government's treaty proposals, and existing treaty obligations.

5.6 A procedure of Parliamentary approval (as opposed to the current system of Parliamentary scrutiny) would result in significant delays in the treaty process, without any significant benefits additional to those already achieved as a result of the reformed treaty-making process.

5.7 Recommendation 8 of the 1995 Senate Report was that legislation be enacted to establish a Joint Parliamentary Committee on Treaties. However, that report did not discuss in any detail the specific issue of whether such legislation was warranted. The Government response to this recommendation proposed that JSCOT be established by resolutions in both Houses of Parliament, noting that enacting legislation would involve delay in the implementation of the recommendation.

5.8 A number of submissions to the Review raised the broader question of whether the reformed Parliamentary treaty-making process (not only the establishment of JSCOT but also the requirement to table treaties and NIAs) should be given a legislative basis. The Government notes that the arguments in favour of and against a legislative basis for the treaty-making process are finely balanced. On the one hand, legislation would make it less likely that the process could be altered over time. However, legislation could reduce the flexibility of the process, and its capacity to adapt to changes over time. The Government continues to give this issue careful consideration, in light of the issues and reforms discussed in this Review.

6.1 The 1996 reforms included a number of developments designed to improve the quality of State and Territory participation in the treaty-making process. These developments are set out in the 1996 Principles and Procedures for Commonwealth-State Consultation on Treaties (1996 Principles and Procedures), which were adopted at the Council of Australian Governments meeting on 14 June 1996, and include:

· the establishment of a Treaties Council consisting of the Prime Minister, Premiers and Chief Ministers, as a high-level advisory body to consider treaties of particular importance and sensitivity to the States and Territories; and

· an enhanced role for the Standing Committee on Treaties (SCOT) (which comprises senior Commonwealth and State and Territory officials), including the identification of treaties of particular sensitivity and importance to the States and Territories which might be considered by the Treaties Council.

6.2 In addition to these specific developments, there are also other opportunities for the States and Territories to contribute their views to the treaty-making process, most particularly by involvement in JSCOT inquiries.

6.3 Submissions were made to the Review by all of the States and mainland Territories. These submissions indicated that the 1996 reforms had resulted in a significant improvement in the nature and quality of State and Territory involvement in the treaty-making process, particularly in the nature and quality of consultations. However, some potential improvements were identified.

6.4 The primary concern raised by the State and Territory government submissions related to the adequacy of consultation on proposed treaty actions. In particular, there were concerns that States and Territories were provided with either too little or too much information, and that the time allocated for providing comments was sometimes inadequate, particularly in relation to NIAs.

6.5 Effective involvement in the treaty-making process by States and Territories largely depends on them having enough information at a sufficiently early stage to enable a substantive contribution to be made. Frequently, the Commonwealth itself only receives documents for international meetings at a late stage. Further, documents relevant to many international negotiations are available on the internet sites of various international organisations and links will be established through the Treaties Library for ease of access to these documents. Nevertheless, the Government will continue to ensure that, where appropriate, Commonwealth agencies that are leading treaty negotiations consult with States and Territories at a sufficiently early stage, consistent with the 1996 Principles and Procedures. This should improve the quality of State and Territory participation in treaty development. In this respect, the Government notes that the 1996 Principles and Procedures make provision for:

· using existing Ministerial Councils and consultation bodies for detailed discussions between the Commonwealth and States and Territories about treaties;

· providing States and Territories with a report on the outcome of negotiating sessions of sensitivity and importance to the States, whenever practicable.

6.6 A number of submissions suggested that State and Territory parliaments should have a formal role in approving treaties, at least those of particular interest to the States and Territories. The Government considers it would be inappropriate for State and Territory parliaments to have a formal role in the treaty-making process. The reformed treaty process is adequate to enable the views of the States and Territories to be taken into account in treaty negotiations (in particular, NIAs are required to address issues such as what consultation has occurred, the reasons it would be in Australia's interests to become a party to the treaty, and how the treaty will be implemented domestically). A formal approval role for State and Territory parliaments would impose lengthy delays on the treaty-making process. Further, State and Territory parliaments currently have a formal role in treaty implementation in those cases where it is appropriate for Australia's treaty obligations to be implemented through State and Territory legislation.

6.7 Another issue raised by the State and Territory submissions was whether Australia should require federal clauses^[12] to be inserted into relevant international conventions. Federal clauses limit the application of a treaty to areas of a federal government's constitutional authority. The 1995 Senate Report found that for Australia they would present considerable practical and political difficulties. There are no plans to seek federal clauses in future treaties, although the Government will continue to make a federal statement^[13] upon signature of a treaty when appropriate.

6.8 Some submissions suggested that the 1996 Principles and Procedures should be contained in an intergovernmental agreement. The Government does not consider there would be any advantage in changing the status of the current arrangements, although notes this issue could be considered by the Treaties Council.

6.9 Another issue raised by the submissions was the level of representation of State and Territory interests on Australian delegations at treaty negotiations. The Government acknowledges that such representation can assist both in informing the delegation of State and Territory views and in providing expert technical assistance. Consistent with the 1996 Principles and Procedures, the Government supports representation of State and Territory interests on delegations to international conferences that deal with relevant issues, provided that representation is funded by the States and Territories themselves.

7.1 Consultation was a key theme of the 1996 reforms. The Government has endeavoured to provide the wider community with opportunities to make meaningful contributions to the Government's assessment of the national interest. The standard process of consultation includes writing to Ministers and Parliamentarians, discussion in the media, and involvement of organisations active in the relevant fields. Special channels for public input on treaties include the twice-yearly tabling and publication of lists of multilateral instruments under negotiation or consideration (with contact details), consultation undertaken by Commonwealth Departments and agencies, and JSCOT's public inquiries and hearings into all proposed actions.

7.2 The current process aims to achieve thorough, well-targeted consultation at the earliest stage compatible with treaty law, international practice, and the need for expeditious policy development. This has been a theme of JSCOT reports, and improved consultation is increasingly evident in tabled NIAs. A comprehensive network of consultations exists. The Government response to JSCOT's recommendation about a treaty typically comprises the final formal stage of consultation and information dissemination about a particular treaty. The Government endeavours to complete its responses to JSCOT reports in a timely fashion. However, many treaty matters are complex and the Government places emphasis on thorough and careful consideration of all relevant issues. The Government is also mindful that the complexity of treaty issues affects JSCOT as well, and values JSCOT's cooperation in meeting practical deadlines.

7.3 Consultation processes are moulded for each particular treaty and its negotiations, so it is not constructive to prescribe a specific process for use in all cases. However, there are some key elements:

· applying technology to make consultation more effective and efficient (for example, using electronic mail to facilitate discussion, and internet webpages to distribute information about a proposed treaty);

· ensuring consultations occur at an appropriate time in the process (it will usually be appropriate for consultations to begin during the negotiation phase of a treaty's development);^[14]

· using the existing consultation networks of the Commonwealth Department or agency that is coordinating consultations about a particular treaty (these typically include State and Territory governments, and forums of industry and community groups);^[15] and

· using issue-specific consultative processes, which may be particularly useful where the impact of a proposed treaty is likely to be confined to identifiable groups, or the proposed treaty's subject-matter is unique.^[16]

7.4 The Government is committed to consultation that is comprehensive, flexible, and effective, and is responsive to new methods to include the broader community.
National Interest Analyses

7.5 The commitment to preparing a NIA for each treaty was a key element of the Government's 1996 reforms. As the Minister for Foreign Affairs stated when describing the reforms to Parliament on 2 May 1996, NIAs facilitate Parliamentary and community scrutiny of treaties, and set out the reasons for the Government's decision that Australia should enter into the particular treaty. These reasons will include the advantages of Australia entering into the treaty and the disadvantages if it does not do so.

7.6 The structure and content of NIAs has been evolving and continuously improving, and the Government has greatly appreciated the constructive approach taken by JSCOT to improving their quality. For example, the current NIA guidelines now suggest, for "template" treaties, that comparison be made with the template to assist JSCOT and others to quickly identify the key issues.

7.7 Some State and Territory submissions to this Review suggested there was a need for NIAs to specifically address the issue of the Federal/State balance of power. This issue, if relevant, is summarised in the consultation section of the NIA and can also be addressed in any submission made to JSCOT.

7.8 Other submissions have suggested, as part of a desire for early consultation, that draft NIAs be prepared and distributed as early as possible. Although it is not appropriate to prescribe a timeframe for the consultation process of each treaty, preparation and early distribution of information that might be contained in the NIA could assist with consultation.

7.9 NIAs bear some similarity to legislative Regulation Impact Statements and Explanatory Memoranda. In fact, it is possible that in implementing a particular policy, all 3 documents may be required. While some consistency between these documents may be useful, the purpose of each document is different. Government Departments and agencies have sought guidance on how to maintain an appropriate level of consistency between documents, and they are provided with regularly-updated guidance on preparing NIAs, including how to maintain an appropriate level of consistency between documents.
Treaties Information and Awareness

7.10 The establishment of the Australian Treaties Library on the internet (www.austlii.edu.au/au/other/dfat) was the fifth element of the 1996 reforms. The Australian Treaties Library website has been strongly endorsed by its users, which include Commonwealth, State and Territory governments, Members of Parliament, the legal profession, students, academics, libraries and the general public.

7.11 The Australian Treaties Library already contains the equivalent of more than 26,000 pages of treaty texts, and is considered by the Government to be the world's most advanced on-line national treaty information system. It provides free access to all treaties which Australia has since Federation become (or taken action to become) a party. It also includes treaties to which Australia is currently considering becoming a party, including details of multilateral treaties still under negotiation. Related NIAs are also available on the website. The Australian Treaty List, summarising the treaties, is linked to recently installed, easy-to-find, subject and keyword indexes. Links between the indexes and the treaty texts have also been established, thereby addressing suggestions for improving the "user friendliness" of the website made in some submissions to the Review. The Government will continue updating the data available on the website, with particular regard to user feedback. For example, in future the website will include improved links to NIAs and `status lists' showing which countries have joined treaties to which Australia is a Party.

7.12 The establishment of the JSCOT website^[17] containing the full text of JSCOT Reports, has complemented and expanded the distribution of treaties information in ways not foreseen by the original reform proposals, and represents a significant and welcome development.

7.13 The Treaties Secretariat of DFAT maintains a treaties information telephone service (telephone: 02-6261-3509) and provides texts of treaties to people unable to access them by other means. Much of the information is also tabled in Parliament or is available for purchase from Government bookshops.

7.14 Australia further demonstrated its commitment to the wide dissemination of treaty information when it sponsored the consensus resolution of the United Nations General Assembly in December 1996 which established an international database of treaties (www.un.org/Depts/Treaty). This database is continually being updated and expanded and currently contains the texts of over 30,000 bilateral and multilateral treaties. The treaty texts are available in their original languages as well as in English and French.

7.15 Another issue raised in submissions is the treatment of instruments of less than treaty status. These documents are often titled ``memoranda of understanding'', ``arrangements'' or "declarations". They are intended to have moral, political or practical effect, but as they are not intended to be legally binding, the rigorous scrutiny of the treaty-making process is not appropriate for them. The Government considers that appropriate public consultation and Parliamentary scrutiny of these arrangements can be more effectively achieved through other means, including consideration by subject-related Parliamentary committees.
FA114 20 August 2002

I am pleased to announce changes to the treaty-making process that will provide greater transparency and public accessibility.

Firstly, the timeframe for parliamentary consultation with interest groups will be extended. Secondly, more official information on treaties and the treaty-making process will be made available on the Department of Foreign Affairs and Trade’s website.

Public submissions to the Joint Standing Committee on Treaties (JSCOT) have almost doubled in the past three years and the increased workload has threatened to detract from the quality of the committee’s reports.

In response to this, treaty actions to be considered by JSCOT will now be divided into two categories: those of major political, economic or social significance which are likely to attract considerable public interest and debate. The timeframe for consultation on these will be increased from 15 sitting days to 20 sitting days.

Based on parliamentary sitting patterns, this effectively boosts the real consultation time from five to eight weeks.

The remainder of the treaty actions, representing about two-thirds of those currently under consideration, will continue to be dealt with within the current 15 sitting day period (see attachment overleaf).

Our second initiative is the formation of an Australian Treaties Database with a powerful search engine and report-generating capacity.

The database will also summarise key treaty action dates and and will be linked to treaty texts in the Australian Treaties Library. It can be found at at www.info.dfat.gov.au/treaties.

The database will be a valuable research tool for officials, students, academics, the legal professional and the public.

These initiatives are part of the on-going process to facilitate parliamentary scrutiny of the treaty-making process and public accountability and reflect the Government’s determination to ensure continuous improvement.


Media inquiries: Chris Kenny (Ministerial) 0419 206 890
Julie McDonald (Departmental) 02 6261 1555

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