Chapter 3 Treaties Ratification Bill 2012
Introduction
3.1
The Treaties Ratification Bill 2012 (the Bill) introduced into
the House of Representatives on Monday, 13 February 2012, by the Hon Robert
Katter MP, (Kennedy), has only one substantive provision:
The Governor-General must not ratify a treaty unless both
Houses of the Parliament have, by resolution, approved the ratification.
3.2
This chapter will analyse the Bill from three perspectives:
n constitutional;
n practical; and
n political.
3.3
Although other models of Parliamentary review exist overseas which may be
drawn upon to reform the Australian scrutiny of treaties process, the Bill is a
very short document which allows no room for amendment without a comprehensive
change of its intent.
Constitutional questions
3.4
Section 61 of the Constitution places the formal responsibility for treaty-making
with the executive rather than the Parliament and the constitutionality of the
Parliament’s ability to override the executive Government drew informed
comment.
3.5
Dr Anne Twomey provided an overview of the arguments that were put
forward during the previous debates on parliamentary scrutiny of the treaties
making process. In 1995, former Solicitor-General, Sir Maurice Byers, argued
that while the Parliament may have the power to legislate to regulate the
manner in which the executive exercises its powers to enter into treaties, it
cannot take away the power of the executive to enter into treaties or make the
exercise of that power conditional upon parliamentary consent.[1]
3.6
Other experts disagreed. For example:
n Professor Winterton
observed that the power to enter into treaties is a prerogative power, which
can be abrogated or controlled by legislation; and
n Professor Enid
Campbell agreed that section 61 of the Constitution does not entrench
prerogative power, but she also qualified that, while the Parliament could
abrogate a prerogative power, it could not confer that power upon itself.[2]
3.7
Because the Commonwealth Parliament has legislative power, not executive
power, any attempt by the Parliament to ratify a treaty would threaten the
constitutionality of that ratification. However:
…if… the Parliament did not purport to exercise the power to
ratify treaties, but instead made the approval of its two houses a condition
precedent to the exercise by the Government of its executive power to do so (as
proposed under this Bill) then Professor Campbell thought that this would not
give rise to any separation of powers problems.[3]
3.8
Dr Twomey agrees with both Professors Zines and Lindell who expressed
the view that legislation requiring parliamentary approval prior to the executive
ratifying a treaty would most likely be constitutionally valid.[4]
3.9
Dr George Williams also agreed with Dr Twomey:
I have also looked at the submission of Professor Twomey and
I agree with her conclusions and the statements made… I think it is possible
for parliament to legislate to not take over the ratification function but to
make it subject to a decision of parliament whether that ratification should go
ahead. That leaves the function where it should be, with the executive, but
just makes the exercising of that function conditional upon parliament not
indicating that it wants to veto that. That, I think, is consistent with other
areas where the High Court has indicated very clearly that the prerogatives of
the Crown, the executive functions, can be subject to parliamentary
modification. I do not think there is anything particular in this area that would
indicate strongly against that. Certainly, the prevailing opinion is that, so
long as it does not go beyond that conditional nature, that is something that
is very likely to be upheld by the High Court.[5]
3.10
Although the Committee has not sought a formal legal opinion on this
question, informed comment supports the argument that the Bill would likely be
constitutional.
Practical issues
3.11
Although the Bill may be constitutional, there are a number of practical
difficulties that would be encountered should this Bill pass. First, the large
number of treaties that are signed annually and second, the need for the executive
to be able to act promptly should a treaty need to be signed and ratified
quickly due to an international crisis.
Number of treaties
3.12
Since the Joint Standing Committee on Treaties was established in 1996,
it has reviewed over 600 treaty actions at an average of almost 40 treaties per
year. Given the existing time constraints on the Parliament, needing to have
both Houses of the Parliament, by resolution, approve the ratification of each
treaty as the Bill demands would be unwieldy and impractical.
3.13
Dr Twomey explained:
…the majority of treaties are of a standard form where the
main issues have already been negotiated in the past and there are duplicating
issues: extradition treaties or treaties concerning pacts and all those sorts
of things. The difficulty is dealing with parliamentary time—how much time
needs to be taken up in approving these things and doing it in a timely manner.
Other countries in practice have found that it is very difficult if parliaments
have to give positive approval by way of a resolution in each house for each
particular treaty before it can be ratified. There have been difficulties in
achieving that in a timely manner.[6]
3.14
Even the sponsor of the Bill, Mr Bob Katter MP (Kennedy), conceded that
this was the likely outcome of the Bill:
If every one of these treaties has to go into the parliament,
it will gum up the operations of the Parliament of Australia.[7]
3.15
Mr Katter may be proposing his Bill as a mechanism to severely reduce
the number of treaties into which Australia enters. The Committee thinks that
an isolationist approach by Australia in the twenty-first century is
unrealistic and counter to Australia’s national interest. On this basis, Mr
Katter’s Bill should not be passed or, at the very least, be substantially amended
from its original form or intent.
Emergency treaties
3.16
A further criticism of the Bill – which, again was also canvassed in the
mid-1990s debate – was that of treaties that needed to be signed and ratified
at short notice. Dr Twomey again provides a pertinent example:
At the time, when the Trick or Treaty report was being
developed by the Senate legal and constitutional committee, the example that
was used by the government was: 'What if there's an emergency in, say, East
Timor and we need instantly to be able to put in a peace-keeping force in order
to avoid some horrible escalation of violence and we need to negotiate a treaty
immediately to support that and parliament's not sitting for three months—what
do we do then?' Although those sorts of emergencies happen very rarely, when
they do happen you want to have some facility to allow you to deal with that.[8]
3.17
Given the basic nature of the Bill, there is no provision to address
this type of short term requirement. This inflexibility again hints at the
Bill’s intention to severely restrict Australia’s ability to enter into
treaties.
Political issues
3.18
The political composition of the Parliament, and in particular the
Senate, also makes this Bill’s operation, should it be passed, very difficult.
Although the government-of-the-day has, by definition, control of the House of
Representatives it seldom has a majority in its own right in the Senate.
3.19
In recent times, there has been a third political party or grouping that
has the balance of power in the Senate – such as the Australian Democrats in
the 1990s or The Greens in the current Parliament. The government-of-the-day
has to negotiate with these parties or groupings to get its legislation enacted
into law. In one case, Senator Brian Harradine of Tasmania, effectively held
the balance of power by himself in the late 1990s. One individual could, along
with the political opposition, frustrate the legislative agenda of an elected
government.
3.20
While this is generally considered appropriate for the review of domestic
legislation passed in the House of Representatives, it is unsuitable for the
approval of treaties as it is the executive – not the Parliament – that has the
authority to negotiate international agreements. Dr Twomey explained:
If the approval of both Houses were required before a treaty
could be ratified by the executive, this would potentially take control of a
significant part of Australia’s foreign policy out of the hands of the
Government and place it in the hands of whoever holds the balance of power in
the Senate. This could make it extremely difficult for the Government to
develop and implement Australia’s foreign policy in a consistent and considered
manner and would potentially result in conflicting messages being sent about
Australia to foreign nations. It might also be economically detrimental to
Australia if it is shut out of international trade blocs and organizations and
impeded from fully implementing Australia’s economic policy.
The Constitutional Commission, when considering a proposal
for the parliamentary approval of treaties, rejected it on the ground that:
A requirement that Parliament
or its Houses consent to the ratification of all treaties would therefore give
non-government supporters in the Senate the power to override executive policy
supported by the Government and the House of Representatives.
Questions also arise as to what would be achieved by such a
change. The reality is that treaties are negotiated between governments. Realistically,
a Parliament is not capable of negotiating a treaty as this is inconsistent
with its status, role and method of operation.[9]
3.21
The Bill’s sponsor, Mr Katter MP, agreed with this conclusion as this
following exchange demonstrates:
Mr Laurie Ferguson: Minor political parties are
determining their position on other things—let us put food to one side; your
main concern is trade in food—but there are thousands of these treaties. We
start to have a situation where minor parties in the Senate hold the government
to ransom—I am talking about negotiations—and the whole thing comes to a
standstill. I think there are some very negative outcomes to this. I put that
to you…
… do we not have a situation here where this country's
international negotiating situation, its ability to agree to things et cetera
is basically held to ransom by who-knows-who in the Senate?
Mr Katter: Well, I agree with your point. Undoubtedly,
there is an argument there. I think it is morally wrong that the argument
should be there but the truth of the matter is that it is.... So I have to go
along with you and say that that is reality. Yes, it is a
good point that you make.[10]
3.22
This exchange suggests that no Government is going to reduce its
treaty-making powers to the extent suggested by this Bill.
Other international practices
3.23
The brevity of the Bill makes it essentially impossible to amend without
a major change to its intent. Had the possibility to amend existed, perhaps
some of the reform attempts made in other countries could have been used to
improve the Bill and with it the treaties review process.
The United Kingdom
3.24
The Australian Parliament is derivative of, though not entirely the same
as, the Westminster Parliament in the United Kingdom and thus it is worth
reviewing the reforms made there.
3.25
In 2010, the UK significantly reformed its system of parliamentary
scrutiny of treaties. The reforms provide that the Government must table
certain types of treaties in the Parliament, and may not ratify them if, within
21 days, either House has resolved the treaty not be ratified.[11]
3.26
If the House that resolves that the treaty not be ratified is the House of
Commons, the relevant Minister may table a statement indicating why the treaty should
be ratified with a further 21 day period for the House to resolve not to ratify
the treaty. If the House continues to resolve not to ratify the treaty, then
the process may continue indefinitely.[12]
3.27
If the House that resolves that the treaty not be ratified is the House
of Lords, the Minister may move to ratify the treaty after tabling a statement
indicating why the treaty should be ratified.[13]
3.28
The reforms specify that the above process will not apply to a treaty if
the relevant Minister is of the opinion that the treaty should be ratified
without parliamentary scrutiny. If the Minister takes this path, they must at
a later date, table the treaty in both Houses along with an explanation as to
why it needed to be ratified without parliamentary scrutiny. This is intended
to apply to treaties that are urgent or particularly sensitive.[14]
Ireland
3.29
Amongst the nations that permit a degree of parliamentary involvement in
the treaty process is the Republic of Ireland. Ireland’s Constitution requires
that all treaties entered into shall be presented in the Irish lower house and that
the Republic will not be bound to the treaty if it involves a charge on public
funds until it has been approved by the Irish lower house. These provisions do
not apply to treaties that are technical or administrative in nature.[15]
3.30
In Ireland, treaties are not self-executing (i.e. the treaty becomes part of the law simply by
virtue of its ratification), so the Parliament will also have the opportunity
to implement a treaty through domestic legislation.[16]
3.31
Before a treaty can be tabled in the Irish lower house it must have been
ratified by the executive. The effect of a rejection by the lower house is
that the treaty will not be domestically binding. However, it will still be
binding in international law. In other words, the Irish parliament does not
have the power to veto the ratification of treaties by the executive.[17]
Continental Europe
3.32
Another approach would be to require parliamentary approval for only a
certain class of treaties. This approach has been adopted in countries where
parliamentary approval is required, such as France, Italy and Germany.[18]
The risk with this approach is that the treaty will be classified wrongly, and
then be subject to constitutional appeal on the basis of that wrong
classification.[19]
South Africa
3.33
South Africa is an example of a country that has a partial
self-executing treaty system. Although the executive is responsible for negotiating
and signing treaties, treaties cannot be ratified without the approval of both
Houses of Parliament. Technical and administrative treaties are exempt from
this requirement. Initially, approval by Parliament was required for all
treaties. Such approval was amended in practice because it was too difficult
to present all the treaties South Africa entered into to the Parliament in a
timely manner.[20] This change is, of
course, highly relevant to the Committee’s deliberation on this Bill and adds
strength to the arguments canvassed above.
Conclusion
3.34
The Bill, if passed as presented, would present problems to both the
Parliament and the executive. The sheer number of treaties along with the
political nature of the Senate has the potential to overwhelm the Parliamentary
process. This, and the Bill’s lack of a provision for short-term emergency
treaties, makes the Bill unworkable.
3.35
Although other models exist overseas which may add a greater degree of
Parliamentary scrutiny to the treaties review process, the Bill is a very brief
document which allows little room for amendment without a comprehensive change
of its intent.
3.36
It would appear that the Bill is likely to be constitutional. However,
given the practical and political difficulties the Bill would pose for the executive,
the Parliament and the treaty making process generally, the Committee cannot
support the Bill.
Recommendation 2 |
| |
That the Treaties Ratification Bill 2012 not be
passed by the House of Representatives or the Senate. |
Kelvin Thomson MP
Chair