Author:	Glen Cranwell BSc, LLB(Hons) (Qld), LLM (Melb), GDipBA (QUT) Solicitor, Clayton Utz
Subjects:	Australia -- Foreign relations -- Treaties Australia Politics And Government International law (Other articles)
Issue:	Volume 8, Number 4 (December 2001)
Category:	Comment

Contents:

• Introduction
• Need for parliamentary approval
• Historical arguments
• United States experience
• Identifying the most appropriate time for parliamentary involvement
• Whether parliamentary approval of ratification should also have the effect of making the treaty directly applicable
• Whether the consent of one or both Houses should be required
• Lessons for Australia
• Parliamentary approval should be a municipal precondition of ratification
• Parliamentary ratification of treaties should not result in the automatic implementation of self-executing treaties
• A system that makes ratification of a treaty conditional upon the prior approval of both Houses of Parliament
• The Parliamentary Approval of Treaties Bill
• Conclusion
• Notes

Introduction

1. In its decision in Minister for Immigration and Ethnic Affairs v Teoh,[1] the High Court held that the executive's ratification of an international convention created a legitimate expectation that the executive government and its agencies would act in conformity with that convention. This decision has fuelled debate on Australia's current system for entering into treaties. Criticism of the present system has primarily focused on the perceived lack of public or parliamentary scrutiny of international instruments that the executive government signs and ratifies. In recent years, a number of options have been canvassed to reform the treaty-making and consultative mechanisms in Australia. These range from:
   • parliamentary approval prior to signature;
   • making parliamentary approval a prerequisite for ratification;
   • a Treaties Council of experts in inter-governmental relations and international law reporting to Parliament;
   • the tabling of treaties prior to ratification.[2]

2. The Senate Legal and Constitutional References Committee conducted a review of the treaty-making power and tabled a report with a number of recommendations entitled Trick or Treaty? Commonwealth Power to Make and Implement Treaties.[3] These recommendations were aimed at improving access to information about treaties, improving consultation with the States and with non-government organisations, and improving the scrutiny of treaties by Parliament.[4]

3. On 2 May 1996, the Minister for Foreign Affairs, Alexander Downer, announced changes to the treaty-making process that 'will provide proper and effective procedures enabling Parliament to scrutinise intended treaty action'.[5] While the government accepted many of the Committee's recommendations, it watered down the impact of the report by declining to enact the proposals in legislative form, and rejecting recommendations which involved the use of significant government resources.

4. The Trick or Treaty? report left open the question whether legislation should be introduced to require parliamentary approval of treaties as opposed to parliamentary consideration of treaties. The Committee recommended 'that the issue of what legislation, if any, should be introduced to require the Parliamentary approval of treaties be referred to the proposed Treaty Committee for further investigation and consideration'.[6]

5. In response, the government also stated that: The Government considers that it would be sensible to review the experience to be gained from the establishment of a Joint Committee and the implementation of other recommendations before moving to consider the need for an approval or disallowance procedure. Accordingly, the Government will review the initiatives taken to reform the treaty-making process after two years. It will give consideration at that time to whether the issue of an approval procedure should be referred to the new Treaties Committee.[7]

6. The Department of Foreign Affairs has recently conducted a review of the treaty reforms to consider, among other things, whether there should be a procedure for the parliamentary approval of treaties. The report, published in August 1999, concluded that the reforms are operating well and there is no need for further changes.[8]

   Need for parliamentary approval

7. There are two major deficiencies in the system as it currently operates. The first relates to what is perceived to be the excessive power of the executive in the field of foreign affairs. The concern is that the practice, whereby treaties were entered into by the executive without significant parliamentary involvement, is 'undemocratic', as treaties can have a range of significant effects on the Australian legal and administrative systems; the Australian economy and indeed the way Australians live.

8. Parliamentary approval of legislation which implements treaties is not a satisfactory form of accountability. Even when treaties are not implemented by legislation, they may still have domestic consequences. Treaties can affect the interpretation of law, by being used to resolve ambiguities in legislation or gaps in the common law. They are considered by the courts to be a legitimate source of influence on the development of the common law, and may be the source of a 'legitimate expectation' under administrative law, that government officials will comply with the treaty when making administrative decisions which affect the rights of people.[9]

9. Nor is adequate accountability ensured by Australia's practice of not ratifying a treaty unless its legislation already complies with the treaty. That practice is not always followed.[10] It is in any case an inadequate safeguard: Australia may be bound by subsequent amendments to the treaty or interpretations of the treaty inconsistent with Australia's understanding of the treaty when it ratified it.

10. Even the decision made by the executive to enter into a treaty may not be subject to sufficient scrutiny by the executive itself. Senator Evans recently described the current ratification process, stating that: It is a matter of relevant ministerial approval followed by Executive Council determination. It invariably involves the Minister for Foreign Affairs and Trade and such other subject ministers as are associated with that particular issue ... On occasions there may be a formal Cabinet decision, but far more often than not it is dealt with at the ministerial level, but with formal ratification being a matter for Executive Council approval.[11]

11. Information provided to the Senate Estimates Committee A in May 1994 stated that 49 agreements had received Cabinet approval for final consent since 1990, as opposed to 186 which had been approved by relevant Ministers. The criticism can be made that procedures should be in place so that important national issues dealt with by treaties should at least be subject to systematic scrutiny.

12. Adequate accountability is also desirable from the standpoint of international law. Conflict over the domestic treaties process may undermine the legitimacy of international law itself in Australia, and result in a lack of public support for treaties and their results.[12]

13. The second problem with the current system is that Parliament is involved only after there is an internationally binding treaty, and is very often placed in a position where failure to pass proposed legislation will violate a treaty, leaving Australia internationally responsible. Parliaments may have little effective choice but to enact implementing legislation once an international commitment is made. In The Parlement Belge, Robert Phillimore quoted Kent's views, in 1873, that it is 'morally obligatory upon the legislature to pass the law, and to refuse it would be a breach of public faith'.[13]

14. An example of how adoption of a treaty can lead to a change in domestic law is the Human Rights (Sexual Conduct) Act 1994 (Cth). The Human Rights (Sexual Conduct) Act was passed by the Commonwealth Parliament in response to the finding by the United Nations Human Rights Committee in the Toonen case[14] that Australia was in breach of its obligations under the International Covenant on Civil and Political Rights ('ICCPR').

15. Australia became a party to the First Optional Protocol to the ICCPR in 1991. The Protocol allows Australian individuals, who have exhausted all domestic remedies, to submit complaints alleging breach of the Covenant to the Human Rights Committee. This provided a new avenue for gays and lesbians in Tasmania who were seeking the repeal of ss 122 and 123 of the Tasmanian Criminal Code. These sections made sexual activity 'against the order of nature' and sexual activity between men a criminal offence.

16. The Tasmanian Gay and Lesbian Rights Group submitted to the Human Rights Committee that the Tasmanian laws contravened article 17 of the Covenant. Article 17 of the Covenant states: 'No one shall be subjected to arbitrary or unlawful interference with his privacy.' Mr Toonen, in whose name the complaint was submitted, argued that although he had not been charged under the law, the mere existence of the law, and the possibility of his conduct being investigated and found criminal, constituted an abridgment of his right to privacy. He drew the Human Rights Committee's attention to similar cases heard by the European Court of Human Rights. The Committee found that the Tasmanian laws were in violation of article 17. The Committee's view was communicated to the Commonwealth government on 4 April 1994. A state party to the Covenant has a duty to ensure an 'effective remedy' to the victim of a human rights violation.[15] In Toonen the Committee recommended the repeal of the offending Tasmanian laws as the appropriate effective remedy. Australia was duly called upon to report within 90 days of the measure to be taken to give effect to the Committee's views. There was of course only one way of so acting, ie to overrule or otherwise change the State law. This was not a course amenable to the Tasmanian government. Hence, the stage was set for the controversial use of the Commonwealth's external affairs power to enact the Human Rights Sexual Conduct Act which took effect on 19 December 1994. The Act confirms the findings of the Committee and gives effect to its interpretation of article 17 of the Covenant throughout Australia. It is arguable that there would not have been the same pressure to enact the Human Rights (Sexual Conduct) Act if it were not for the fact that the Human Rights Committee had alerted the world to Australia's breach of the treaty obligation.[16]

17. Similarly, despite the doubts of some government Senators about the substance of the legislation, the government would have preferred to retain the prohibition of inciting racial hatred in the Racial Discrimination Bill 1974 (Cth) 'so that requirements of the international convention could have been more closely followed in Australian law'.[17] Australia has maintained a reservation to the clause in the Convention on the Elimination of All Forms of Racial Discrimination requiring the prohibition of words or acts which incite racial hatred. However, the fact that such a provision is contained in the Convention is sometimes given as a reason for enacting such legislation.[18]

18. A better approach would be to radically re-define the respective powers of the executive and legislature, removing the power to ratify treaties from the executive until approval has been granted by the legislature. Such a system would have a number of advantages. First, it would reduce the ability of the executive to make profound changes to Australian society without the assent of Parliament. Second, it would ensure that Parliament was not placed in the position of putting Australia in breach of its international obligations if it refuses to pass implementing legislation. Parliamentary approval of ratification would make a breach of Australia's international obligations less likely. Under the present system it is possible for the executive to incur obligations which the Parliament is not prepared to implement. As Hendry said: The great disadvantage of the English system is that, if the executive cannot obtain the necessary parliamentary approval for a treaty, or if the courts declare the treaty unconstitutional, the state is internationally in default.[19]

    Historical arguments

19. The proposal that Parliament should approve treaties before they are ratified is not new.[20] The arguments advanced against parliamentary approval of treaties include the following:[21]
    1. The proposal is unnecessary because Parliament's participation is already assured in relation to legislation needed to implement a treaty.

       Legislation is often required to implement international obligations after treaties have been ratified. As mentioned above, Parliament's involvement in legislation to implement treaties does not provide adequate accountability.[22]

    2. The approval of the Senate may not be easy to obtain since governments do not always have a majority in that House.

       Against this argument it can be considered that a Senate role in the ratification process is democratic under the Australian Constitution as it was the intention of the framers of the Constitution to establish a States' House. Since federation, the Senate has also developed an important role of review. As treaties may have important implications for the States and the federal system, it may be argued that it is singularly important that the Senate have a role in the treaty making process.[23]

       Some have expressed fears that parliamentary ratification would allow a small interest group holding the balance of power in the Senate to control the fate of treaties. This fear confuses balance of power with power. A treaty would be ratified unless rejected by a majority of the Senate. It is highly unlikely that a major party in opposition would, for example, oppose a trade treaty with quantifiable economic benefits - the political cost would be unsustainable. Similarly it is unlikely that a pro-conservation group would oppose an environmental treaty because it did not go far enough: international treaties must usually be accepted as a package, and a pro-conservation group would gain little from opposing a treaty because it did not go far enough.[24]

       It is stressed that by pursuing the path of ordinary legislation rather than constitutional amendment there will be sufficient flexibility to enable the operation of the proposed change to be evaluated in the event, for example, of unreasonable obstruction by the Senate. A further safeguard against unreasonable obstruction by the Senate could be provided by the insertion of a time limit on the operation of the legislation.[25]

    3. The proposal is based on the United States system of government which is different from that which prevails in Australia. In the United States (self executing) treaties automatically become part of the domestic law of the land, and in any event congressional approval is not required for 'executive agreements'.

       This was disputed by Daley, who argued that Australia could set up a system of parliamentary approval without self-executing treaties, and who noted that in the United States the Senate often agrees to the ratification of human rights treaties only on the condition that they not be treated as self-executing.[26] As Wildhaber has commented: Legislative approval and the concept of transformation are not inescapably interconnected. In so far as the concept of transformation legitimately endeavours to preserve parliamentary prerogatives against executive encroachments, it must surely be welcomed. However, mere approval is absolutely sufficient to achieve this aim. To grant a legislature room for obstructionism (and transformation with its emphasis on national sovereignty brings with it such an eventuality) leads only to simplified procedures evading the legislature.[27]

       The United States system will be further discussed below.

    4. The point is sometimes made that treaty making, as distinct from implementation, is inherently an executive function.

       Treaty negotiation may be an inherently executive function, but treaty ratification is not. Treaty ratification is akin to law-making. As with ordinary legislation, the approval of treaties involves the consideration by Parliament of a text largely completed by the executive. The large number of countries which have legislative involvement in treaty ratification suggests that it is not inherently an executive concern.[28]

       Treaty negotiation will inevitably be dominated more by the executive than the legislature. It is difficult for Parliament to be involved with ongoing treaty negotiations: their basis shifts from day to day; and they are usually conducted in foreign countries by professional negotiators from the Department of Foreign Affairs and Trade.[29] It would not be practicable for the Joint Standing Committee on Treaties to monitor lengthy negotiations and efficient use of time and resources suggests that any inquiry be conducted when the final draft has been settled.

    None of these arguments is so substantial that it negates the case for parliamentary approval of treaties.

    United States experience

20. The United States of America is a constitutional republic with a democratic system of government. Powers are divided among three federal branches and between the federal and State governments. The President is the head of state. The federal executive branch consists of the President and the Cabinet. The federal legislative branch consists of a bicameral Congress: the Senate and the House of Representatives. The federal judicial branch is headed by the Supreme Court.

21. The following survey of the practice in the United States serves to highlight the variety of options available to Australia if Parliament were to seek to adopt some role in the treaty process.[30] The object of the reform process should be to ensure that the federal Parliament is able to participate in the process in a way that ensures that the Commonwealth is not unduly hampered in its ability to participate in foreign affairs and meet its international legal and other obligations. Three major issues arise: * The first is identifying the most appropriate time for parliamentary involvement. * The second issue is whether parliamentary approval of ratification should also have the effect of making the treaty directly applicable in domestic law. * The third issue is whether the consent of one or both Houses of Parliament should be required.

    Identifying the most appropriate time for parliamentary involvement

22. By Australian law treaties are negotiated by the executive, and ratified by the executive in the name of the Crown.[31] Clause 2 of article II, s 2 of the United States Constitution provides that the President shall have power, by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur. This allocation of power is unique in the American constitutional system in that it is the only area of unicameral law-making. Hamilton suggested that treaty making might be seen as a function of a fourth branch of government, the President-and-Senate.[32] Dissatisfaction with the omission of the House of Representatives from a share in the treaty making power has given rise to proposals that the Constitution be amended to require that treaties be approved by both Houses of Congress.[33]

23. As originally conceived, no doubt, the Senate was to be a kind of presidential council affording him or her advice throughout the treaty making process and on all aspects of it - whether to enter negotiations, who shall represent the United States, what should be the scope of negotiations, the positions to be taken, the responses to be made, the terms to be accepted.[34] But since the time of George Washington, the negotiation of treaties has been taken over exclusively by the President. As Sutherland J observed in United States v Curtiss-Wright Export Corporation, the President 'alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.'[35] The Senate can recommend the initiation of negotiations with other nations, but cannot compel their inauguration or continuance. Nevertheless, members of the Senate are often personally consulted during the negotiation stage, and sometimes act as advisers to the negotiation delegations of the government.[36]

24. After a treaty has been negotiated by the executive branch, it is transmitted to the Senate for its advice and consent. In the Senate, treaties are referred to the Foreign Relations Committee which has exclusive jurisdiction over treaties. The Committee conducts an inquiry, holds public hearings, and recommends whether the Senate should approve the treaty, conditionally approve it or reject it.[37] In effect, the Senate has four options when a treaty is presented:
    • It may consent unconditionally to the treaty as it has been proposed.
    • It may reject the treaty.
    • It may request amendments to the treaty. These require the consent of the other party or parties before the treaty becomes effective.
    • It may attach reservations which affect the substance of the proposed treaty. These are binding only on the United States, but the other signatories may reject the treaty because of US reservations.[38] A Congressional Research Study suggested that '[i]n the case of large, multilateral agreements, amendments are seldom realistic'.[39]

25. Votes are taken on the treaty and any proposed amendments or conditions to ratification. The only vote which requires a two thirds majority of the members present is on the resolution of ratification itself. All other votes are by majority.[40] The formal ratification of a treaty is a presidential act and has the effect of binding the United States internationally. A President is not bound to ratify a treaty that the Senate has agreed to and may simply abandon it. The Senate can authorise or block, but cannot require, consummation of agreements.

    Whether parliamentary approval of ratification should also have the effect of making the treaty directly applicable

26. As, at no stage, is parliamentary intervention necessary in the making of a treaty, the Australian courts have taken the view that a treaty cannot affect private rights without enabling legislation.[41] In the United States, on the other hand, article VI, s 2 of the Constitution provides that: [A]ll Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

27. Not all treaties, however, are in fact law of the land of their own accord. American doctrines as to the understanding of treaty law are founded upon a distinction drawn by American courts between 'self-executing' and 'non-self-executing' treaties. The former are able to operate automatically within the domestic field without the need for any municipal legislation, while the latter require enabling Acts before they can function inside the country and bind American courts.[42] Treaties may be self-executing in some parts and not in others. The leading case on this question is Foster v Neilson.[43] In oft-quoted words, commonly cited as the origin of the doctrine of self-executing treaties in US constitutional law, Marshall CJ, delivering the opinion of the court, wrote: A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial [sic]; but is carried into execution by the sovereign powers of the respective parties to the instrument. In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court.[44]

28. Thus in US law a treaty is 'self-executing' and may be applied in a case by the US courts without any legislative act so long as its provisions are interpreted as being aimed directly at the courts and not at the Congress requiring legislative action.

29. The later Head Money Cases embellished this approach with the following language: A treaty, then, is a law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would a statute.[45]

30. This would seem to mean that an international convention would become a law of the land, where its terms determine the rights and duties of private citizens, and contrasts with the position where a political issue is involved and the treaty thereby treated as non-self-executing. In a recent case, Judge Mikva, writing for the Court of Appeals for the District of Columbia Circuit, said: This court has noted that, in 'determining whether a treaty is self-executing' in the sense of creating private enforcement rights, courts look to the intent of the signatory parties as manifested by the language of the contract.[46]

31. The United States courts have expressed the view that certain types of treaty obligations can never be self executing because the Constitution reserves certain powers, such as the power to appropriate funds or the power to declare war to the Congress. The courts have also held that constitutional requirements prevent any treaty obligation purporting to define a crime from being self-executing.[47] In some cases the Senate will qualify its consent to the ratification of a treaty with a declaration that the treaty shall not be self-executing.[48] This was done in the case of the ICCPR.

32. The trouble with the notion of 'self-executing' is its complexity. In 1948, an Attorney Adviser in the Legal Adviser's Office of the Department of State prepared a memorandum on the 'Definition of "Self-Executing" Treaty'. He concluded that 'an examination of the adjudicated cases and of some of the law reviews has failed to disclose a clear definition of the term "self-executing treaty"'. [49] The substantial volume of scholarly writing on this issue has not resolved the confusion[50] and the Court of Appeals of the Fifth Circuit stated in United States v Postal, 'the self-executing question is perhaps one of the most confounding in treaty law'.[51] The difficulty in determining whether a treaty provision will be directly applied has led McDougal to conclude that 'this word "self-executing" is essentially meaningless, and ... the quicker we drop it from our vocabulary the better for clarity and understanding'.[52]

33. The difficulty of distinguishing between provisions that are self-executing and those which are not, has been particularly vexing in relation to contemporary multilateral treaties containing guarantees of human rights. In Sei Fujii v California,[53] a District Court of Appeal struck down the provision of the California Alien Land Law under which real property transferred to persons ineligible to become United States citizens would escheat. The court based its reasoning, not on the Fourteenth Amendment of the United States Constitution, but on articles 55 and 56 of the UN Charter which it took to be self-executing. The Supreme Court of California ordered the case to be transferred to itself, affirmed the result of the judgment below, but reversed its reasoning, holding that while articles 55 and 56 were non-self-executing, the statute violated the Fourteenth Amendment. Part of the judgment of Gibson CJ admirably described the judicial approach to the problem: A treaty ... does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing ... In determining whether a treaty is self-executing, courts look to the intent of the signatory parties as manifested by the language of the instrument, and, if the instrument is uncertain, recourse may be had to the circumstances surrounding its execution ... In order for a treaty provision to be operative without the aid of implementing legislation and to have the force and effect of a statute, it must appear that the framers of the treaty intended to prescribe a rule that, standing alone, would be enforceable in the Courts.[54]

34. The Chief Justice went on to point out that the language used was not of the type usually to be found in treaties held to be self-executing and contrasted it with the clear language employed by articles 104 and 105 of the Charter. He concluded: The provisions in the Charter pledging co-operation in promoting observance of fundamental freedoms lack the mandatory quality and definiteness which would indicate an intent to create justiciable rights in private persons immediately upon ratification. Instead, they are framed as a promise of future action by the member nations.[55]

    Whether the consent of one or both Houses should be required

35. The 'advice and consent' process provided for in article II of the US Constitution is not the exclusive procedure for the making of treaties, nor is it the most frequently used procedure. International law would also recognise some accords reached by the President without Senate approval, so-called 'executive agreements', as treaties. From the earliest days of the first Congress, the United States has entered into executive agreements with other countries concerning such matters as postal rates, trademark and copyright, and reciprocal trade agreements. There are basically four types of executive agreements:
    • Congressional-executive agreements, ie agreements either
      (a) negotiated by the President or other executive officers pursuant to authority conferred in an Act or joint resolution of both Houses of Congress or in effectuation of a general policy enunciated in legislation, or
      (b) sanctioned by the Congress after the fact of negotiation.

    • Agreements made pursuant to authority conferred in an existing treaty and agreements in effectuation of a policy enunciated in a treaty.

    • Presidential agreements, ie agreements made by the President
      (a) pursuant to his explicit granted authority as 'the Executive' and as 'Commander in Chief of the Army and Navy' and
      (b) as 'the sole organ of the nation in its external relations, and its sole representative with foreign nations'.[56]

    • Agreements made by the President pursuant to overlapping authority, ie where Congress authorises agreements dealing with questions which under the Constitution are also subject to independent presidential control.[57]

36. Under international law, they are effective to bind the United States, and during the successive terms of President Franklin D Roosevelt, they were used extensively, 'at times threatening to replace the treaty-making power, if not formally yet actively, as a determinative element in the field of foreign policy'.[58] A study of all international agreements entered into by the United States between 1946 and 1972 found that only 6 percent were treaties sent to the Senate for its formal advice and consent; 86.7 percent were so-called statutory agreements or 'congressional-executive' agreements where the President acted pursuant to ordinary legislation, ie, statutes passed by a majority of both the House of Representatives and the Senate; and 7.4 percent were 'executive' agreements, ie, compacts concluded by the President alone without any congressional participation.[59] Only a very small minority of all the executive agreements entered into were based solely on the powers of the President as Commander-in-Chief and organ of foreign relations; the remainder were authorised in advance by Congress by statute or by treaty provisions ratified by the Senate.

37. There is much to commend the congressional-executive agreement. By permitting approval of an agreement by simple majority of both Houses, it eliminates veto by one-third-plus-one of the Senators present which in the past had effectively buried important treaties. It gives an equal role to the House of Representatives which has long resented the 'undemocratic' anachronism that excludes it from the treaty-making process. Especially since so many treaties require legislative implementation if only by appropriation of funds, it assures approval of the agreement by both Houses before ratification, virtually eliminating the danger that the House of Representatives might later refuse to join in giving effect to the agreement.[60]

38. The control of Congress over congressional-executive agreements is at least as strong as that of the Senate over treaties. In approving agreements by joint resolution Congress has sometimes entered conditions or reservations. In 1962, Congress required the inclusion of members of prescribed Congressional committees on delegations for trade agreement negotiations.[61] The Department of State's internal procedures for negotiating and signing treaties and executive agreements contained in the Department's Foreign Affairs Manual require that Congress be consulted and, in particular, on the form an agreement should take, for example, whether it should be concluded as an executive agreement or a treaty. The Senate Foreign Relations Committee and the House Foreign Affairs Committee are closely involved in this procedure.[62]

39. The procedure also requires diligence in complying with the provisions of the Case Act 1972 (USA) which requires that the text of any international agreement other than a treaty to which the United States is a party be transmitted to the Congress within 60 days after entry into force. The enactment, which amends title 1 of the United States Code by inserting after s 112a a new s 112b, provides in relevant part as follows: The Secretary of State shall transmit to the Congress the text of any international agreement, other than a treaty to which the United States is a party, as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. This ensures that Congress is aware of commitments made by the executive branch on behalf of the United States government.

40. As the House of Representatives Foreign Affairs Committee put it, 'the right of the President to conclude executive agreements is not in question here' but the Bill was 'a step toward restoring a proper working relationship between the Congress and the executive branch in the area of foreign affairs. By establishing in law a formal procedure for the transmittal to Congress of all executive agreements, the bill would eliminate one potential source of friction.'[63] The Case Act was amended in 1977 and 1978 to make it applicable to agreements made by any department or agency of the United States government and to make it applicable to oral as well as written agreements. It is not clear that there is serious scrutiny of these agreements, but perhaps the need to report helps deter the executive from making agreements that would arouse Senate ire and invite its adverse reaction.[64]

    Lessons for Australia

41. The constitutional, legal and administrative arrangements for treaty making in the United States provides an example of legislative involvement in a nation's treaty making process. The role played by the Congress, and particularly the Senate, in the scrutiny and approval of United States treaties, ensures that treaty making in the United States creates no democratic deficit.

42. The system which exists in the United States is interesting as an example of how parliamentary involvement in ratification would be likely to operate in Australia:

    Parliamentary approval should be a municipal precondition of ratification

43. This overcomes the problem of Australia being handicapped during the negotiation process that may occur with requiring parliamentary approval prior to signature. After negotiation and signature, the treaty project is complete without being legally binding, except for the obligation under article 18 of the Vienna Convention on the Law of Treaties not to frustrate the objects and purposes of a treaty a state has signed. Ratification is the step that renders the treaty internationally binding in a substantive way.

    Parliamentary ratification of treaties should not result in the automatic implementation of self-executing treaties

44. If self-executing treaties are automatically implemented in Australia, there would be significant legal argument about whether some treaties were intended to be self-executing. The broad terms of international treaties also present a challenge for Australian courts accustomed to legislation drafted in more precise terms. For example, Dawson J in Gerhardy v Brown, when discussing the Convention on the Elimination of All Forms of Racial Discrimination said: [I]t is not an instrument in such a form that its implementation is possible by the simple enactment of its provisions as domestic law. To a large extent it is a statement of policy requiring specific measures to be devised and taken by the State parties in order to give effect to the declared policy.[65]

45. Self executing treaties would create problems for the Australian federation in which States and Territories have minimal control over the ratification of treaties. Broadly drafted treaty terms might be implemented in a number of ways. Often in Australia they are in fact implemented by different States in different ways, all consistent with Australia's treaty obligations. This possibility would not be available if these treaties were self-executing.

    A system that makes ratification of a treaty conditional upon the prior approval of both Houses of Parliament

46. In light of the very strict party discipline that prevails in Australia, House of Representatives review would be likely to be a fairly meaningless process, although it is unlikely to do any harm from a democratic perspective. Senate review is likely to have much greater impact, particularly as in recent years minority parties have tended to hold the balance of power in the Senate so neither major party will be able to control the debate.[66]

    The Parliamentary Approval of Treaties Bill

47. Senator Bourne introduced the Parliamentary Approval of Treaties Bill 1995 (Cth) into the Senate on 31 May 1995. In her second reading speech Senator Bourne described this as 'an improved version of the Parliamentary Approval of Treaties Bill 1994' which was introduced on 29 June 1994.[67] The Bill would encompass both multilateral and bilateral treaties, as it would apply to 'any agreement or proposed agreement in writing between two or more countries'.[68] Clause 4 of the Bill provided that '[a]ction by which a treaty would enter into force in respect of Australia must not be taken before the treaty is approved in accordance with this Act'.

48. Under the Bill the Minister would be required to publish a declaration in the Gazette when it was proposed that Australia enter into a treaty. In addition, the treaty would then have to be tabled in each House of Parliament within 15 sitting days of gazettal.[69] The members of each House would then have fifteen sitting days to give a notice of motion requesting that the treaty be considered by that House. If no notice of motion was given within the 15 sitting days, the treaty would be deemed to have been approved.[70] If a notice of motion was given, no action could be taken by the executive to bring the treaty into effect until the treaty had been approved by the relevant House of the Parliament. If the treaty was not approved, then the executive would not have the power to enter into the treaty. Provision was also made for approval of reservations to treaties.[71]

49. A number of submissions to the Senate Legal and Constitutional References Committee expressly supported Senator Bourne's Bill for parliamentary approval of ratification. Other saw it as a 'good starting point', upon which improvements could be made.[72]

50. The Bill did not make any exceptions for sensitive treaties. There may be cases where it is not in the public interest for a treaty to be tabled in the Parliament, and generally publicised, prior to its ratification. It would be appropriate for these agreements to be examined first by the Joint Standing Committee on Treaties in confidential proceedings similar to those used for the Australian Security Intelligence Organisation.[73] Unless the Committee recommended otherwise, defence or security agreements would not be tabled in Parliament. In practice if the Committee had concerns about a treaty it is probable that the government would seek to amend the treaty rather than table it in Parliament.

51. A further criticism which has been made of the Bill is that it did not deal with the issue of urgent treaties. Very occasionally international treaties must be completed, ratified and implemented very quickly. This would not be possible if they were first laid before Parliament and only subsequently ratified. A treaty ratified without parliamentary approval as a matter of genuine urgency should be subsequently tabled in Parliament along with a statement justifying the urgency. The Joint Standing Committee on Treaties should report to the Parliament on whether the urgency was justified. If the treaty is not approved by Parliament, the executive should be obliged to withdraw from the treaty as soon as it is able to do so under the treaty. Many treaties allow a nation to withdraw from them, although the process is usually time consuming.[74]

52. Clause 9 of the Bill provided that: When there is a reservation by Australia in respect of a treaty proposed to enter into force in respect of Australia, this Act applies to the reservation as if the reservation were a treaty.

53. It is not clear how this provision would operate in practice. For example, it is not clear whether if a treaty were approved but a proposed reservation were not approved, the government could proceed to ratify without the reservation. This might be possible, but it would be anomalous if the reason Parliament disallowed the reservation was because it believed that it was not wide enough. Perhaps the most significant point to note about the provision is that it did not provide a mechanism for Parliament to amend a reservation. The Bill provided for a reservation to be either approved or not approved by Parliament.[75]

54. The other problem with clause 9 of the Bill is that each reservation would be subject to a separate gazettal and disallowance procedure. It is conceivable that there may be a number of proposed reservations to any treaty and that some may be interrelated. In addition, the Bill did not provide for the linking of the disallowance motion for a reservation with any disallowance motion for a treaty. This results in conceptual problems as a valid reservation must be attached to a treaty. It would be preferable to introduce a process which clearly links the process of reservation making with the process of ratification.[76]

55. The Bill did not appear to apply to the withdrawal of a reservation. If the executive subsequently wishes to withdraw or alter a reservation, that should first be subject to parliamentary approval. Otherwise the executive could present a treaty to Parliament subject to a reservation, have the treaty approved, and then subsequently increase Australia's international obligations, without reference to Parliament, by withdrawing the reservation.

56. Furthermore the requirement in the Bill for a treaty impact statement which was expressed in mandatory language could give rise to problems. For example, if a treaty impact statement inadvertently failed to mention all of the advantages and disadvantages of the relevant treaty, there is a slight possibility that this might ultimately lead to a domestic legal challenge to the validity of Australia's ratification of the treaty. While such a challenge could not undo the act of ratification on the international plane, it could well cause problems domestically. If the matters relating to treaty impact statements were stated in less mandatory terms in the Bill, it would still be open to a House of Parliament to refuse to give its approval unless and until the relevant information was provided.[77]

    Conclusion

57. It is becoming increasingly obvious that the Australian community desires greater parliamentary involvement in the treaty-making process. This is probably a consequence of the growing realisation of the impact that international agreements can have, combined with a desire on the part of a range of interest groups to be able to influence this impact in a way that furthers their own interests. Parliament seems more accessible to this type of lobbying than is the executive, particularly in light of its more public processes and the wider range of interests represented in Parliament.

58. The following scheme has been suggested, with the aid of a comparative analysis, as a possible method for parliamentary approval of treaties:
    • Legislation creates the requirement for Commonwealth parliamentary approval before treaties are ratified. If within 15 sitting days no member of Parliament gives notice that a treaty should be debated, Parliament is deemed to have approved the treaty. If a majority of either House of Parliament votes not to approve the treaty, the executive must not ratify the treaty.

    • Parliamentary approval is required for all treaties binding on Australia at international law.

    • Treaties with defence or security implications are examined by the Joint Standing Committee on Treaties in camera and are deemed approved unless the Committee recommends otherwise.

    • The executive has power to ratify a treaty as a matter of urgency, provided that it subsequently tables the treaty and the reasons for the urgency. If Parliament subsequently fails to approve the treaty, the executive is obliged to withdraw from the treaty as soon as possible.

    • Parliament can add reservations to a treaty where permissible at international law.[78]