Minor treaty actions
4.1
Minor treaty actions are generally technical amendments to existing treaties which do not impact significantly on the national interest.
4.2
Minor treaty actions are presented to the Committee with a one-page explanatory statement and are listed on the Committee’s website. The Committee can choose to formally inquire into these treaty actions, or accept them without a formal inquiry and report.
Amendment to Annex 3 of the Marrakesh Agreement Establishing the World Trade Organisation
4.3
The proposed treaty action amends Annex 3 to the Marrakesh Agreement Establishing the World Trade Organization as agreed on 15 April 1994 (the Marrakesh Agreement).
Background
4.4
The trade policies of all WTO Members are reviewed regularly under the WTO Trade Policy Review Mechanism (TPRM). The TPRM was provisionally established in 1988 and placed on a permanent footing in 1994 as one of the WTO’s basic functions.
4.5
The peer-reviews are undertaken by the WTO General Council sitting as Trade Policy Review Body. This Body is established by Annex 3 of the Marrakesh Agreement.
4.6
The Department of Foreign Affairs and Trade (DFAT) states that the objective of the TPRM is to ‘contribute to improved adherence by all Members to WTO rules, disciplines and commitments’. DFAT further notes:
It provides a forum for Members to openly discuss and provide objective analysis of each other's trade policies and practices. Reviews take into account the Member's wider economic and developmental needs, policies and objectives as well as the external trading environment. They are not intended to serve as a basis for the enforcement of WTO obligations, for WTO dispute settlement procedures, or to impose new trade policy commitments.
4.7
The WTO states that surveillance of national trade policies is ‘fundamentally important’ to the work of the WTO.
4.8
The review process includes:
a detailed report on the trade policies and practices of the Member under review;
a report by the government of the Member under review;
a written question and answer process, whereby the Member under review must respond to detailed questions from other Members regarding its trade policies and practices; and
a formal meeting in Geneva of the WTO Trade Policy Review Body.
4.9
The review’s outcomes and findings are made publicly available following the formal meeting of the WTO Trade Policy Review Body.
Proposed amendments
4.10
The proposed amendments would lengthen the review cycle periods of WTO Members. Review periods are defined in terms of the share of world trade. Under current arrangements:
the largest four trading countries are reviewed every two years;
the next 16 largest trading countries are reviewed every four years; and
all other trading countries are reviewed every six years.
4.11
The proposed amendments alter these review periods to three, five and seven years respectively.
4.12
In December 2016, WTO Members agreed to launch the necessary procedures to amend the TPRM periods. Australia joined the consensus of WTO Members agreeing in principle to the proposed amendment. The General Council – consisting of all WTO Members – is expected to take a decision on the proposed amendments ‘at one of its forthcoming meetings’.
4.13
The Explanatory Statement notes that the decision to adopt the amendments will be arrived at by consensus, or if this is not possible, by voting, with a majority required to carry the motion.
4.14
Therefore, if Australia objects, but is in the minority in a vote, Australia will nevertheless be bound.
Australia and WTO Trade Policy Reviews
4.15
Australia is subject to a WTO trade policy review every four years. The proposed amendment would extend this review period to five years.
4.16
Australia’s national trade policies were last reviewed by the Trade Policy Review Body in 2015. It was the seventh such review.
4.17
In that 2015 review, the WTO Trade Policy Review Body report concluded by noting the following:
Australia's economic growth is expected to pick up to an above-trend pace over 2015/16. Despite its solid economic fundamentals, downside risks to the economic outlook are posed by, inter alia, its vulnerability to terms-of-trade shocks due to the increased role of the mining sector, as well as the balance, timing and strength of the decline in mining investment and the pick-up in activity in the non-mining economy. A major economic challenge confronting Australia, with potential trade policy implications, is to formulate appropriate macroeconomic and structural policies to facilitate market-driven adjustment to the effects of its declining terms-of-trade, the appreciation of the Australian dollar and the rising proportion of older people, as well as to enhance economic diversification away from mining. Confronting these challenges will require much faster MFP [multi-factor productivity] growth to enable Australia to strengthen its international competitiveness and continue meeting its economic and welfare objectives.
Reasons for Australia to take proposed treaty action
4.18
The Explanatory Statement notes that the proposed amendments are ‘intended to reduce the pressure of the trade policy review process on both WTO Members and the WTO Secretariat’.
4.19
The Explanatory Statement argues that the changes:
… would not have more than a negligible practical, legal and financial effect within Australia and the proposed amendment would result in a more time and cost efficient review process for all WTO Members.
Fourth Protocol Establishing the Prolongation of the Treaty between Australia and the Kingdom of the Netherlands on the Presence of Australian Personnel in the Netherlands for the Purpose of Responding to the Downing of Malaysia Airlines Flight MH17
4.20
The proposed treaty action extends the Treaty between Australia and the Kingdom of the Netherlands on the presence of Australian personnel in the Netherlands for the purpose of responding to the downing of Malaysia Airlines Flight MH17 (the Treaty) which entered into force on 1 August 2014, until 30 June 2018.
4.21
This is the fourth (proposed) prolongation of the Treaty, which was initially extended to 1 August 2016, then 31 December 2016, and finally, 30 June 2017. The duration of each treaty action has been limited to a maximum of twelve months, due to the domestic requirements of the Netherlands.
4.22
On 7 June 2017, The Hon Julie Bishop, Minister for Foreign Affairs, requested expedited consideration of the proposed treaty action, in order to sign the new Agreement by the current expiration date of 30 June 2017.
Background
4.23
On 17 July 2014, Malaysian Airlines Flight MH17 from Amsterdam to Kuala Lumpur was shot down over the territory of the Ukraine with 298 people on board. There were no survivors.
4.24
Out of the 283 passengers, there were 28 Australians, nine permanent residents of Australia and one New Zealand citizen who was a long term resident of Australia.
4.25
On 22 July 2017, the Australian Government launched ‘Operation Bring Them Home’, Australia’s contribution to international efforts to secure and identify the remains of the victims, and investigate the cause of the incident. The operation involved the deployment of Australian personnel to both the Netherlands and the Ukraine.
The Joint Investigation Team Operation
4.26
The Joint Investigation Team (JIT) includes Australia, Belgium, Malaysia, the Netherlands and the Ukraine.
4.27
The investigation, undertaken by up to 200 investigators, has involved the examination of thousands of wreckage parts, 60 requests for legal assistance, 5 billion internet pages, 500 000 videos and photographs, more than 200 witnesses, 150 000 telephone calls and 6000 official reports.
4.28
JIT released its interim conclusions of the criminal investigation on 28 September 2016.
4.29
According to the Explanatory Statement, the interim conclusions of the JIT highlight that the investigation would continue throughout 2017, and Australian personnel would be remaining in the Netherlands past 30 June 2017, when the third protocol for prolongation will expire.
4.30
The JIT interim report concludes that MH17 was shot down by a 9M38 series missile launched by a BUK-TELAR missile system. The JIT concludes that the missile system was brought into the Ukraine from Russia, and was set up in an agricultural field near Pervomaiskiy. At the time of the launch, the area was controlled by pro-Russian fighters. According to JIT, The BUK-TELAR was returned to Russian Territory after the missile launch.
4.31
JIT has identified approximately 100 persons who can be linked to the crash of MH17 or the transport of the missile system, although those identified are not automatically suspects.
4.32
JIT states that it is important ‘to gain more insight into the role of the different parties involved.’
Overview of the Treaty
4.33
The Treaty initially entered into force of 1 August 2014, without observing the usual 20 joint parliamentary sitting days. The entry into force of the Treaty was expedited using the National Interest Exemption.
4.34
The treaty defines the rights, obligations and arrangements between Australia and the Netherlands necessary to facilitate Australia’s deployment and operations in the Netherlands.
4.35
The Committee examined and reported on the original Treaty in February 2015. The Treaty was tabled in the Parliament on 30 September 2014, after its entry into force. The First Protocol extending the Treaty was also given expedited consideration by the Committee at the Minister’s request. The second and third Protocols, which only extended the term by five and six months respectively, were presented as minor treaty actions.
Reasons for Australia to take proposed treaty action
4.36
The proposed treaty action is required to ensure Australian personnel are accorded the appropriate protections in the Netherlands, pending a decision on the nature and scope of future Australian involvement.
4.37
According to the explanatory statement, the treaty action does not require legislative change and has negligible legal and financial effects.
Committee conclusion
4.38
The Committee determined not to hold a formal inquiry into either of the minor treaty actions, and agreed that binding treaty action may be taken in each case.
The Hon Stuart Robert MP
Chair
2 August 2017