Chapter 18 - Documents tabled in the Senate
Treaties
The texts of treaties entered into by Australia are tabled as
government documents. This was to have been done at least 12 sitting days
before ratification or accession, in accordance with an undertaking given by
the government in 1961 (HRD, 10/5/1961, pp 1693-4).
Treaties may be considered in accordance with the same procedures as
apply to other government documents.
Australian governments consider that the making of treaties is a matter
for the executive government and does not require approval of the Parliament
(see, for example, statement by the Minister for Veterans’ Affairs, SD, 7/9/1983, pp 437-8). This
contrasts with the situation in the United States of America, where the President requires the
advice and consent of two-thirds of the Senate before making a treaty. In Britain treaties are not
ratified until 21 days after the text is laid before Parliament, although the
government may modify this procedure in cases of urgency or when other
important considerations arise.
Treaties may be incorporated or referred to in legislation where their
provisions are to be applied as part of the law of Australia.
Over many years efforts were made in the Senate to strengthen
parliamentary scrutiny of treaties. These efforts bore some fruit in 1996.
A notice of motion was given in the Senate in 1983 by Senator Harradine (Independent) for
the establishment of a Senate standing committee to consider and report in
respect of treaties:
-
whether Australia
should undertake to be bound by that treaty if that treaty is not already
binding upon Australia, and
-
the effect which Australia’s
being bound by that treaty has or would have upon the legislative powers and
responsibilities of the Australian States. (23/8/1983,
J.205-6)
This motion arose
from concern about the scope of the external affairs power under
section 51 of the Constitution, and the power of the Commonwealth
Parliament to legislate to enforce treaties entered into by the government, as
interpreted by the High Court in Commonwealth v State of Tasmania 1983 158 CLR 1. The
motion to establish the committee was not moved, but a notice in the same terms
was given in each session after 1983. The tabling of 36 treaties on 30 November 1994 led to a debate on
the need for some more formal means of scrutiny of treaties by the Senate (SD,
pp 3602-3). The establishment of a committee to scrutinise treaties was then
under consideration by senators. The treaties tabled on that day included those
under negotiation or active consideration for Australia.
Concern about
the lack of parliamentary scrutiny and control of treaties culminated in a
comprehensive examination of the subject and a report by the Legal and Constitutional References
Committee in 1995 (PP 474/1995). After the 1996 general election, the incoming
government responded favourably to the committee’s report and agreed to table
treaties in both Houses before ratification, establish a treaties council for
consultation with the states, and move for the establishment of a joint
committee for parliamentary scrutiny of treaties (SD, 2/5/1996, pp 217-247). The joint committee was subsequently
established. These measures fell short of provision for parliamentary approval
of treaties.
For a select committee on a treaty, see the Select Committee on the Free
Trade Agreement between Australia and the United States, 12/2/2004, J.2997-8.
It has been suggested that the Parliament could legislate to provide
that treaties not enter into force in respect of Australia until approved by
each House. In 1994 Senator Bourne introduced the Parliamentary Approval of Treaties Bill
which would provide for treaties to be approved in the absence of any
parliamentary action or, if raised for consideration in either House, by
resolution of that House (a revised version of this bill was introduced in
1995).
The Senate Foreign Affairs, Defence and Trade References Committee, in
its report Voting on Trade (PP 401/2003), suggested a scheme of parliamentary
involvement in negotiation of trade agreements and procedures for approval by
both Houses of such agreements.
Previous page | Contents | Next page
Website feedback: web.senate@aph.gov.au
Last reviewed 2 February 2010 by the Senate Web Administrator
© Commonwealth of Australia
Parliament of Australia Web Site Privacy Statement
Images courtesy of AUSPIC
|
