2.1
The treaty making process in Australia involves two different constitutional powers:
the power to enter into treaties, invested in the executive government by the Constitution; and
the power to implement treaties, a legislative power exercised by the Parliament.
2.2
The Committee is primarily concerned with how current practices may be extended, modified, or updated, and to that end this chapter gives a more practical outline of the current operation of the Joint Standing Committee on Treaties (JSCOT).
2.3
The Committee’s work is bound by its legal and procedural framework, including its Resolution of Appointment, which outlines the main authorities for the conduct of its work.
2.4
Since its establishment in 1996, the Committee has additionally established a range of precedents that provide a usefully broad range of methods of inquiry. These precedents allow the Committee to improve Parliamentary scrutiny of treaties, while fostering the commitment to consultation and scrutiny, but without changing the existing treaty making process.
The Constitution
2.5
It is well settled by the High Court that the power to enter into treaties is an executive power under s. 61 of the Constitution.
2.6
Section 51(xxix) of the Constitution confers on the Commonwealth Parliament the power to legislate with respect to 'external affairs'. This has been interpreted by the High Court to mean that the Commonwealth Parliament may legislate, under s. 51(xxix) of the Constitution, to implement in domestic law a treaty that has been entered into by the Executive pursuant to its power under s. 61 of the Constitution.
2.7
The constitutional framework for treaty making provides two possible avenues for the Committee to inquire into treaty making in Australia in addition to its primary role of providing Parliamentary scrutiny of treaties after signature but before ratification.
2.8
The first is to 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. The Committee has undertaken inquiries of this sort in the past, including:
a review of the Kyoto Protocol; and
an inquiry on greenhouse gas emission targets prior to the Copenhagen round of negotiations on the Kyoto Protocol.
2.9
The second avenue is to undertake a Bills Inquiry into legislation implementing treaty obligations. The Committee has not undertaken an inquiry of this sort in the past. Bills inquiries of this sort are normally the province of committees that deal with the relevant policy area.
Resolution of Appointment
2.10
The Committee’s Resolution of Appointment, made at the start of each Parliament, is largely unchanged since first agreed in 1996, and empowers the Committee to inquire into and report upon:
matters arising from treaties and related National Interest Analyses and proposed treaty actions and related Explanatory Statements presented or deemed to be presented to the Parliament;
any question relating to a treaty or other international instrument, whether or not negotiated to completion, referred to the Committee by:
either House of the Parliament; or
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.
2.11
The Committee’s work predominantly involves inquiries into signed treaty actions tabled in Parliament. Nevertheless, both the Australian Government and the Committee have, from time to time, interpreted the Resolution of Appointment in a broader sense, so as to include inquiries that may not be directly related to a newly or recently tabled treaty. For example, the Committee has:
conducted an extensive inquiry into nuclear non-proliferation; and
conducted a review into Australia’s law and policy on extradition.
2.12
There is scope for the Committee to consider treaty related matters of a more general nature, and the Committee may seek a referral from a Minister to conduct an inquiry according to agreed terms.
2.13
Inquiries of a general nature may serve to inform the Committee, the Parliament and the community on treaty-related issues. This current inquiry was referred after Committee consideration of trade-related treaties with Hong Kong and Indonesia.
Conventions
2.14
In addition to the written legal and procedural framework governing the Committee’s activities, several unwritten conventions exist. Conventions are informal agreements between the Committee and Executive, and while they may start as a simple management tool, over time they become entrenched.
2.15
Some are well-established and assist with management and predictability of the review process, and others demonstrate the extent of departure from the ‘norm’, and show why there is a need for flexibility in certain circumstances. In cases where conventions have changed around the Committee’s operation, notice has been given and decisions have been taken following consultation.
Categorisation
2.16
The most significant of these conventions is the categorisation of treaties into Category One, Category Two, and Category Three or ‘minor treaty’ actions, which sets a timeframe for review by the Committee.
2.17
Treaties are categorised by the Government and by convention, and the Committee generally accepts such categorisations. The details of these conventions have changed over time, largely to encompass changes to administrative practices. The main benefits of categorising treaties include:
the relative significance of a treaty action is identified – this assists in identifying which proposed treaties may require more in-depth assessment;
by setting a timeframe, there can be some certainty about the length of each of the Committee’s inquiries, and planning is more predictable for stakeholders, the Committee and the government seeking to ratify the treaty.
Category One
2.18
Category One treaties are all those treaties that do not fall into Category Two or minor treaty actions as listed below. These treaties are tabled for 20 joint sitting days (that is, days when both Houses of Parliament—the House of Representatives and the Senate—sit). Twenty sitting days may equate to several calendar months.
2.19
The majority of the proposed treaties referred to the Committee are Category One treaties. In the 46th Parliament, to date, 24 Category One treaties have been referred. In the 45th and 44th Parliaments, 36 and 37 Category One treaties were referred respectively.
2.20
Category One treaties are generally treaties that:
are expected to have some regulatory or economic impact; or
are expected to establish a new policy framework in relation to a particular issue; or
will benefit from extensive public consultation prior to ratification.
2.21
A number of submissions expressed the strong view that trade agreements in particular should always be classified as Category One treaties. For example, ActionAid recommended that:
The categorisation of trade agreements should not be changed in a way that would reduce scrutiny of trade agreements.
Category Two
2.22
Category Two treaties are for the most part uncontroversial in nature and relatively routine in form (often based on a standard ‘template’ agreement), and are tabled for 15 joint sitting days.
2.23
Category Two treaties include a number of treaties for which there is a standard text, such as double taxation agreements and air services agreements. Proposed treaties of this sort do not usually require an extensive inquiry by the Committee. The policy framework behind these treaties is well established and uncontroversial.
2.24
Typically, the number of Category Two treaties referred to the Committee is about half the number of Category One treaties. In the current Parliament to date, eight Category Two treaties have been referred to the Committee. In the 45th and 44th Parliaments, 17 and 18 Category Two treaties were referred respectively.
Category Three/Minor Treaty Actions
2.25
Category Three treaties or minor treaty actions do not impact significantly on the national interest and would be likely to have negligible financial or legal effect within Australia. Minor treaty actions are usually insignificant amendments to treaties to which Australia is already a party.
2.26
Minor treaty actions usually involve amendments to existing treaties where the matters covered are subject to regular change over time, such as lists of endangered species, prohibited chemical weapons, or performance enhancing drugs. Over time, this categorisation was developed in acknowledgement of the non-controversial and administrative nature of these proposed treaty actions.
2.27
Category Three treaties are not tabled, but they are referred to JSCOT, together with a one page Explanatory Statement that describes the practical and legal effect of the particular treaty action in question and why it is considered likely to have negligible impact.
2.28
The Committee does not usually conduct a public inquiry into minor treaty actions, but considers such treaties at its private meetings and its decisions are published in its reports. The Committee may, however, ask that the treaty be treated as a Category One or Category Two treaty, or use its powers under the Resolution of Appointment to conduct an inquiry into a minor treaty action. For the purposes of the inquiry, minor treaty actions are then treated as Category Two treaties: a National Interest Analysis (NIA) will need to be prepared and the treaty tabled.
When do strict categories not apply?
2.29
Categorisation is a convention and is not determined by the Committee. The Committee can, and occasionally does, disregard the Government’s categorisation.
2.30
The Committee may consider that a proposed treaty ought to be subject to a more rigorous inquiry process and therefore an extended timeframe. An example of this was the Committee’s inquiry into the Trans-Pacific Partnership Agreement. A decision to extend an inquiry beyond the timing established by convention is generally made in consultation with the Government.
2.31
Additionally, the Committee or the Executive may determine that specific categorisation requires review from time to time, and seek to make a change to established arrangements.
2.32
The Committee aims to operate with as much transparency around its process as possible. The Committee is aware of the relative lack of transparency within the current process for dealing with minor treaty actions. Although minor in nature, these actions are often of considerable concern to stakeholders directly involved.
2.33
To improve transparency and ensure the public is aware of proposed changes, the Committee recommends that the documents relating to minor treaty actions be uploaded to the Joint Standing Committee on Treaties website and so be publicly available.
National Interest Exemption
2.34
Also established by agreement and generally respected by all stakeholders is the convention that provides for urgent or sensitive treaties to be tabled under a National Interest Exemption (NIE).
2.35
Such treaties are exempt from the usual requirement to be tabled in Parliament for 15 or 20 sitting days before the government takes binding treaty action. However, any exempt treaty is to be tabled as soon as possible together with an explanation of the reasons for the urgent action.
2.36
At the time of the 1996 reforms, the government undertook to use the provisions ‘sparingly and only where necessary to safeguard Australia’s national interests, be they commercial, strategic or foreign policy interests’.
2.37
The NIE has been used eight times to date, often to protect Australian personnel deployed abroad at short notice. It was used most recently in connection with the suspension of extradition and mutual legal assistance agreements with Hong Kong (Report 190).
Conduct of inquiries and briefings
2.38
When a treaty is tabled in the Parliament, the Committee calls for submissions from interested parties and determines a public hearing program. It invites the government departments or agencies responsible for the treaty’s implementation to give evidence before the Committee, as well as other expert witnesses and affected stakeholders. The Committee also advises nominated representatives in State and Territory governments and invites submissions.
2.39
Public hearings are held usually in Canberra, although the Committee may travel to other locations if it sees fit, particularly if a treaty has attracted wide public or stakeholder interest. Occasionally, the Committee will conduct a site visit to better educate its members and understand the implications of the treaty for relevant stakeholders.
2.40
In some instances the Committee may consider that a public hearing is not warranted, for example when notification of minor treaty actions is given. In these cases, the Committee may seek a private briefing on an administrative detail. Such meetings are generally with relevant government agencies.
Reporting
2.41
The Committee prepares a report incorporating the evidence it has collected and makes any recommendations it sees fit, including whether or not binding treaty action should be taken.
2.42
The Chair tables the report in the Parliament, usually the House of Representatives and it is tabled in the Senate shortly afterwards.
2.43
Other members of the Committee may speak to the report when it is tabled. If the treaty implementation calls for changes to Australian legislation, the report may be referred to during the legislative debate.
2.44
Reports are published on the Committee’s website and are available electronically or in hardcopy. All of the Committee’s past reports are now available electronically on the website.
Government responses
2.45
The Government is expected to respond to the Committee’s recommendations, where required, within three months. Even when the Committee supports the ratification of a treaty it may make recommendations within the report that require a government response.
2.46
After the Government has considered the Committee’s report, it takes whatever steps remain for the treaty action to enter into force, including ratification and the introduction of enabling legislation.
The Committee’s record
2.47
The Committee has been operating for over 20 years and has developed a significant body of work in that time. It has also seen reforms in administrative processes, including the categorisation of treaty actions. These reforms saw the inclusion of ‘minor’ treaty actions that are referred directly to the Committee and ‘noted’ without the opportunity for public involvement. The Committee also actively pursued significant changes to the NIA, ensuring it provided more useful and extensive information. The Committee has considered nearly 900 treaty actions and produced 195 reports, at an average rate of 40 treaty actions per year. Statistics indicate that while the number of treaty actions being considered has decreased slightly, the average time for an individual inquiry is increasing. This reflects both the changing nature of treaties and of the Committee’s work.
2.48
The Government supports the current JSCOT process and considers that it is working well, providing appropriate oversight of the treaty making process.
Additional work
2.49
In addition to the regular review of treaties and oversight of general trends in treaty-making, the Committee has also undertaken international visits relevant to general and specific inquiries. The Committee welcomes the opportunity to meet with visiting delegations of international parliamentarians.
2.50
The Australian treaty-making process continues to provoke interest and the Committee takes seriously its responsibility to maintain general public awareness, education and outreach on treaty-related issues. On an administrative support level, secretariat staff are also involved in the design and delivery of information seminars and professional development activities in order to remain aware of domestic and international developments.