- Role of the Parliament
Current role of the Parliament
4.1In its submission, the Department of Foreign Affairs and Trade (DFAT) observed that the power to enter into treaties is an executive power under Section 61 of the Australian Constitution. However, political practice has provided the Australian Parliament with a role in the oversight and scrutiny of treaties.
4.2Decisions about the negotiation of international agreements, including determination of objectives, negotiating positions, and the parameters within which the Australian negotiators can operate, are made at Ministerial level, and in some cases, by Cabinet. In the case of most trade and investment agreements, DFAT leads a cabinet submission process to seek authority from Cabinet on a negotiating mandate and to commence negotiations.
4.3The final decision as to whether a trade or investment agreement should be signed and binding treaty action taken is made by Cabinet, which is then carried out by the Federal Executive Council (ExCo).
4.4Generally, all treaties, including trade and investment agreements, are tabled in both Houses of Parliament after they have been signed but before binding treaty action is taken, for a period of 15 to 20 joint sitting days.
4.5DFAT further explained that at this stage, all treaties are submitted to the Joint Standing Committee on Treaties (JSCOT) for scrutiny and review through a public inquiry prior to ratification and entry into force: ‘JSCOT considers tabled treaties, inquires into whether the proposed treaty action is in Australia’s national interest, and reports to the Parliament.’ The Parliament may then be required to consider enabling legislation.
4.6DFAT also noted in addition to JSCOT, other parliamentary committees may consider specific treaty actions.
4.7DFAT advised that it provides briefings to both JSCOT and the trade sub-committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT).
4.8DFAT further outlined the ongoing engagement it has with the Parliament throughout the trade negotiation process.
DFAT engages closely with Parliamentarians throughout the treaty making process for trade agreements. DFAT briefs shadow Ministers and parliamentarians throughout the negotiation and treaty making process when formal requests have been made. Senior DFAT officials also participate in Senate estimates hearings to address questions relating to FTA [free trade agreements] negotiations.
Greater role for the Parliament
4.9Many submitters suggested the current role of the Parliament in providing oversight and scrutiny in the development of trade and investment agreements as limited because the Parliament does not consider a negotiating mandate, does not vote on or authorise the text of an agreement, and does not see an agreement until after it is agreed and signed. It was often noted that the role of the Parliament is therefore primarily confined to voting on any implementing or enabling legislation required.
4.10Subsequently, it was suggested that there is a need for a greater role for the Parliament in providing oversight and scrutiny in the development of trade and investment agreements.
4.11Several submitters proposed that a greater role for the Parliament is required due to the expanding scope of trade and investment agreements, which have wide-ranging implications and increasingly contain issues that would usually be considered by the Parliament. For example, ActionAid Australia stated that:
Trade agreements are increasingly encroaching on domestic policy space, with trade rules impacting on a wide range of policy issues that should be decided by Parliament, such as health and environmental standards, and the management of public services. In order to uphold democratic standards, it is critical that Parliament is given a more active role in the development and ratification of trade agreements.
4.12The Australian Fair Trade and Investment Network (AFTINET) also reflected that [Trade and investment agreements] ‘… have increasingly complex commitments on laws and policy that should normally be decided through open democratic parliamentary processes.’ Similarly, PSI observed that agreements that have the potential to ‘… restrict Parliament’s core function of legislating…’ require greater transparency to the Parliament and increased parliamentary oversight
4.13The Northern Territory (NT) Government suggested that ‘[Trade]… agreements encompass an expanding array of commitments that extend beyond just tariffs. They touch on aspects of governance typically decided through open democratic parliamentary procedures.’
4.14The Australian Council of Trade Unions (ACTU) similarly explained that trade agreements ‘… increasingly deal with an expanding range of other regulatory issues which would normally be debated and legislated through the democratic parliamentary process and which have deep impacts on workers' lives.’
4.15The Australian Workers Union (AWU) expressed concern that the Parliament does not currently have sufficient opportunity to examine agreements that contain commitments that are legally binding on Australia from an international law perspective.
4.16It was also suggested that greater Parliamentary oversight of agreements both prior to commencement of negotiations and at the finalisation stage should involve consideration of independent economic analysis as well as assessments of impacts on other areas such as health, gender, the environment, labour, and First Nations peoples.
4.17Submitters proposed the need for a greater role for the Parliament across the development of a negotiating mandate, during the negotiation phase and at signing and ratification.
Joint Standing Committee on Treaties
4.18In their submission, DFAT explained the background and purpose of JSCOT:
JSCOT was established in 1996 following reforms that sought to create a formal role for the Parliament in overseeing treaties and treaty-making. Historically, parliamentary participation in the scrutiny and approval of treaties had been intermittent, and it was the evolution of Australia’s internationalism and its impacts on domestic law that motivated a coordinated effort to empower Parliament with the ability to consent to obligations imposed on Australian citizens under international law.
4.19Some submitters noted the contribution of JSCOT in relation to parliamentary oversight and scrutiny of trade and investment agreements. For example, the Red Meat Advisory Council (RMAC) stated that: ‘The formal Joint Standing Committee on Treaties scrutiny process to report and review all treaty actions and as applied to trade and investment agreements remains sound and effective.’
4.20Others reflected that the role of JSCOT in providing parliamentary oversight and scrutiny is limited, primarily because its review only commences once the agreement is agreed by Cabinet, signed and tabled in the Parliament. For example, ACTU stated that:
Only after a trade agreement has been signed does the Parliamentary Joint Standing Committee on Treaties (JSCOT) provide an opportunity for Parliament to properly scrutinise an agreement that has been years in the making. The experience of past trade agreements suggests the scope for meaningful changes to be made to deficiencies with any agreement once it is signed is limited.
4.21AFTINET advised that ‘… JSCOT reviews the agreement but it cannot make any changes to the text. It can only make recommendations which are not binding on the government.’
4.22AFTINET also suggested that: ‘The fact that the agreement has been signed before release of the text to the Committee gives momentum to the process.’ Both AFTINET and the ACTU noted that with one exception JSCOT always recommends in favour of the implementing legislation being passed.
4.23Dr Hazel Moir noted that while JSCOT does consider treaties in detail ‘… the government can, and does, ignore JSCOT's advice.’
4.24DFAT pointed out that JSCOT is unique in comparison to committees with similar roles in other countries in ‘… establishing a forum where both houses of the Australian Parliament could review, scrutinise and provide recommendations on Australia’s intentions for entering into treaties.’
4.25Several submitters specified that JSCOT could have an expanded role as part of a greater role for the Parliament in the development and scrutiny of trade and investment agreements.
Before negotiations commence
4.26DFAT advised that the development of negotiating mandates are made at the Ministerial and Cabinet level.
Decisions about the negotiation of international agreements, including determination of objectives, negotiating positions, and the parameters within which the Australian negotiators can operate, are made at Ministerial level, and in some cases, by Cabinet. In the case of most trade and investment agreements these decisions are taken by Cabinet.
4.27In their submission the Electrical Trades Union (ETU) contended that: ‘The decision to commence trade agreement negotiations, and the defined negotiating mandate and objectives to be pursued throughout negotiations, is not subject to any parliamentary oversight or democratic processes.’
4.28Some stakeholders suggested that the Australian Government should table in Parliament a statement of its priorities and objectives for the negotiation of each trade agreement. For example, the ACTU suggested that: ‘Prior to commencing negotiations for bilateral or regional trade agreements, the Government should table in Parliament a document setting out its priorities and objectives.’
4.29Others went a step further, suggesting that a negotiating mandate should be required to be considered and passed by the Parliament before trade negotiations commence.
During negotiations
4.30Submitters suggested more frequent engagement with relevant parliamentary committees during negotiations. For example, the Australian Industry Group (Ai Group) proposed that: ‘To improve transparency in negotiations, relevant parliamentary Committees should receive regular briefings to allow elected officials to monitor negotiations.’
4.31PSI agreed that ‘… relevant parliamentary committees should be informed as new developments take place.’ Similarly, the ETU proposed that DFAT should be required to provide comprehensive briefings to JSCOT following each round of trade negotiations to keep elected members informed of ongoing developments and proposals.
4.32More broadly, it was suggested that draft negotiating text should be regularly provided to members of Parliament, with some noting that this occurs in the EU and US. PSI specified that Parliament should be provided with regular opportunities to see and scrutinise the development of trade agreements:
At every parliamentary session, all members of parliament should be informed of trade negotiation developments and the concerned minister should answer questions raised by the members. This process should genuinely address concerns raised by the members.
Signing and ratification
4.33A number of submitters proposed a greater role for Parliament at the finalisation of an agreement, prior to signing and ratification. For example, Grail Australia submitted that: ‘Given the impacts of any trade agreement on the whole of Australian society we would strongly recommend that Parliament consider and debate the document in detail before it is signed.’
4.34Similarly, the PHAA suggested that: ‘The text of trade agreements should be released for public and parliamentary scrutiny before being signed off by Cabinet.’
4.35AFTINET, the ACTU and the ETU recommended that the Parliament should debate and vote on whether the Cabinet should approve the signing of a proposed agreement. It was also suggested JSCOT conduct an inquiry into a proposed agreement, making recommendations to inform the Parliament.
4.36In its submission, ACCI noted that any changes to the treaty making process must be consistent with the Australia legal context, in which the executive is empowered to enter into treaties and the legislature is empowered to legislate treaties entered into by the executive.
4.37JSCOT’s August 2021 Report 193: Strengthening the Trade Agreement and Treaty-Making Process in Australia established that ‘… the prerogative to negotiate and conclude treaties remains, under Australian constitutional arrangements, the fundamental preserve of the executive arm of government.’
4.38The report also observed that theconstitutional framework for treaty making provides that JSCOT, in addition to role of providing scrutiny of treaties after signature but before ratification, could ‘… undertake inquiries either prior to or during the negotiation phase of treaty making with the intention of providing guidance to the Executive on matters related to a proposed treaty.’ It also noted that JSCOT could undertake a Bills Inquiry into legislation implementing treaty obligations.
4.39The AMWU suggested that an enhanced role for the Parliament could be achieved through legislation.
While the authority to sign agreements rests with the executive, there is no barrier to an increased role for parliament in approving or rejecting the text of an FTA prior to its signing. The most transparent and effective way to achieve this, in our view, is through legislation.
Other similar countries
United States
4.40In the United States (US), trade and investment agreements are negotiated by the executive, however AFTINET outlined that there is a greater role for elected representatives in Congress:
… the Congress must approve the aims and objectives of the negotiation before they commence, can request regular reports on the negotiations, and must see and vote on the whole text of the trade agreement before signing, legislation and ratification.
4.41DFAT noted that the US Constitution designates Congress as the primary authority over trade policy. The ACTU also observed that ‘… Congress retains the authority to review and decide whether any proposed US trade agreement will be implemented.’
4.42It was also noted that members of congressional committees are permitted to see draft agreement text on the same confidential basis as the cleared advisers that are members of trade advisory committees.
Canada
4.43In Canada, similar to Australia, the executive explores proposals for potential trade and investment agreements and seeks authority from Cabinet before entering formal negotiations. Once negotiations have concluded trade and investment agreements must be approved by Cabinet and obtain legal authority from the Governor in Council (similar to the Federal Executive Council in Australia), before being signed by the Minister of Foreign Affairs.
4.44Since 2008, Canada’s Policy on Tabling Treaties in Parliament (tabling policy), requires international treaties to be tabled in the Canadian House of Commons for 21days following their signature or adoption, but prior to providing formal notification of an intention to be bound by the treaty. DFAT outlined additional tabling requirements following an update to the tabling policy in 2020:
The Minister of Foreign Affairs will table in the House of Commons a Notice of Intent to enter into negotiations towards a new free trade agreement at least ninety days prior to the commencement of such negotiations. At least thirty days prior to commencing negotiations towards a new free trade agreement, the Minister of Foreign Affairs will table a document in the House of Commons that lists the Government’s objectives for negotiations.
4.45Dr Joanna Harrington of the University of Alberta noted that Canada’s approach to parliamentary oversight of treaties is a policy rather than legislative approach and advised that the tabling policy did not change the role of the executive in negotiating treaties or its authority to enter into treaties.
4.46Dr Harrington explained that while Canada’s tabling policy was adopted as a measure to improve democracy and accountability through greater parliamentary oversight of treaties its impact has been limited. ‘Its limited impact, in practice, has failed to satisfy such expectations, and one is hard-pressed to find examples where treaty tabling in Canada has led to robust parliamentary engagement.’
4.47In Canada, standing committees in both Houses of Parliament can choose to examine a treaty, but Canada does not have a designated body for the parliamentary scrutiny of treaties such as JSCOT in Australia. DFAT described that ‘The work of parliamentary committees serves as the key instrument for parliamentarians to contribute to the development and refinement of Canada’s trade strategy.’
Committee comment
4.48The Committee recognises that the power to enter into treaties is an executive power in the Australian Constitution.
4.49The Committee notes that while the Parliament does not have a role in authorising treaties, there is benefit in the elected members of Parliament having visibility of the progress of trade and investment agreement negotiations. To this point, the Committee believes that the relevant parliamentary committees should be more regularly informed by DFAT of the status and progress of current trade negotiations as well as the potential for new agreements.
4.50Further, in the design of a trade advisory committee and cleared advisor framework consideration could be given to whether the relevant parliamentary committees could be given access to the same information and draft agreement text.
Recommendations
4.51The Committee recommends that the Australian Government be required to regularly brief the relevant parliamentary committees on the status and progress of current and potential future trade and investment agreements.