Introduction

Australia's role in the negotiation of treaties and the domestic implementation of treaty obligations has aroused considerable interest in the Parliament, among State and Territory Governments, and in the general community, including business and other non-government organisations (NGOs).

Since the first edition of this publication in October 1994, two separate reviews of the treaty making process in Australia have been undertaken (see below) and on 2 May 1996 the Government announced a number of changes to the treaty making process. The changes are designed to increase the opportunity for Parliamentary scrutiny of treaties; enhance the provision of information on treaties to States and Territory Governments, industry, non-government organisations and the wider community; and lead to greater consultation with interested parties before Australia becomes a party to a treaty.

The reforms to the treaty making process now mean that all treaties must be tabled in both Houses of the Commonwealth Parliament for at least 15 sitting days before the Government takes action to bring the treaty into force. All treaties that are tabled in Parliament under the new arrangements are now accompanied by a National Interest Analysis, which notes the reason why Australia should become a party to the treaty. A Parliamentary Joint Standing Committee on Treaties has been established which inquires into and reports on treaties and National Interest Analyses that are tabled as well as any other question relating to a treaty or international instrument that is referred to it. The Government's proposal for the creation of a Treaties Council comprised of the Prime Minister, Premiers and Chief Ministers was supported by the Council of Australian Governments at its meeting in June 1996. The Council, which met for the first time in 1997, has an advisory function in relation to treaties and other international instruments of particular sensitivity and importance to the States and Territories. In addition, the Government agreed to establish a treaties database to allow individuals and groups with an interest in treaties to obtain information free of charge via the Internet. The combined effect of these reforms should lead to an increased involvement by Parliamentarians, State and Territory Governments and the wider community in Australian treaty making. (The press release announcing the reforms is included herein.)

In April 1995, the States and Territories presented a Position Paper on Reform of the Treaties Process (the State Paper) to the Council of Australian Governments (COAG). The State Paper contained ten recommendations dealing with Commonwealth-State consultation on treaties and the provision of information on treaties to Commonwealth and State and Territory Governments, as well as the public. COAG decided that the Commonwealth-State Standing Committee on Treaties (SCOT) should consider the proposals for reform and report to the next COAG meeting. At the June 1996 COAG meeting, Heads of Government noted the reforms made to the treaty making process announced by the Government on 2 May 1996, and agreed to the establishment of a Treaties Council and to a revised set of Principles and Procedures for Commonwealth-State-Territory Consultation on Treaties (a copy is included herein).

A report on the Commonwealth's treaty making power and the external affairs power prepared by the Senate Legal and Constitutional References Committee entitled Trick or Treaty? Commonwealth Power to Make and Implement Treaties (the "Senate Report'') was tabled in Parliament on 29 November 1995. The unanimous Senate Report contains eleven recommendations, which deal with domestic consultation on proposed treaties, dissemination of information relating to treaties and parliamentary involvement in the treaty making process.

The Government tabled its response to the Senate Report in both Houses of Parliament on 2 May 1996. (The Government's response to the Senate report is included. It is also recorded in Hansard on 2 May 1996 which is accessible via the Internet on the Parliament of the Commonwealth of Australia's homepage. Refer to the list of useful Internet web site addresses, included herein.)

The following questions and answers look at the international context in which contemporary treaty making takes place, as well as the domestic legal environment in which treaties, particularly multilateral treaties, are given effect in Australia. Australia's policy-making processes and the domestic consultations undertaken as part of these processes are also explained.

International Treaties

What is a Treaty?

A treaty is an agreement between States (countries) which is binding at international law. (In some cases international organisations can be parties to treaties.) A treaty may be called a "treaty'', "convention'', "protocol'', "covenant'' or "exchange of letters'' (please see Glossary).

As a general statement, if a document is not concluded between countries it will not be a treaty. An agreement between an Australian State or Territory and a foreign Government will not, therefore, be a treaty. Furthermore, even if a document is agreed between two or more sovereign countries, it will not be a treaty unless those countries intend the document to be binding at international law. For example, all countries might vote in favour of a resolution of the UN General Assembly, but that resolution is not a treaty because those voting for the document do not intend that it should be binding at international law. Frequently, "declarations'', such as the Declaration on the Rights of the Child, are adopted by the General Assembly but those declarations are not treaties as they are not intended to be binding by reason of their adoption. However, such declarations may be part of a long process that leads ultimately to the negotiation of a UN convention such as the United Nations Convention on the Rights of the Child. They may also, in certain circumstances, assist in the interpretation of a treaty, as is the case with the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (1970).

How can I find a copy of a treaty Australia is a party to?

There are a number of ways that individuals can obtain a copy of a treaty that Australia is a party to in either electronic format or hard copy. The Treaties Secretariat of the Department of Foreign Affairs and Trade established the Australian Treaties Library on the Internet in September 1996 (the Internet site is http://www.austlii.edu.au/dfat). The Treaties Library contains the Australian Treaty List, which will identify the year that the treaty is published in the Australian Treaty Series (ATS) and it is then possible to view or print the texts of Australian treaties for the years from 1901 through the ATS number. The Treaties Library is also the place where you can locate the National Interest Analyses that are now tabled in Parliament with treaties, the list of multilateral treaty actions under negotiation, the electronic version of this Treaty Information Kit as well as links to other treaty related Internet sites. While most public libraries will not have a hard copy of the ATS they will have Internet access and will therefore be able to print a copy of the treaty.

Where implementing legislation is required, the text of the treaty may be attached to the legislation. In these cases the Australian Treaty List specifies the year and number of the Commonwealth Acts the treaty appears in.

For those people who do not have access to the Internet, the Treaties Secretariat will continue to provide copies of treaties through the mail.

Why are Treaties necessary?

International relations are shaped by a wide range of factors, most desirably through rules formulated by international negotiation and agreement. A striking global trend in recent years has been the growth of technological innovation and its application in commerce, transport and communications, resulting in an enormous increase in the frequency and rapidity of global interaction. Another interrelated development is the tendency for problems to occur on a global scale, beyond the scope of any one nation to resolve. Such challenges require both national and international responses.

Treaties cover a wide range of subjects. Australia, for example, is a Party to agreements on defence and security, nuclear non-proliferation, trade, the environment, civil aviation, reciprocal social service and health arrangements, technological exchanges, and agreements designed to establish universal standards in relation to the treatment of civilians in time of war. Treaties can be bilateral - between Australia and one other country. An aviation agreement between Australia and the United States is one example. Multilateral treaties are those between three or more countries: an example is the United Nations Charter. Multilateral treaties are generally developed under the auspices of international (inter-governmental) organisations such as the United Nations or the International Labour Organization, but regional multilateral treaties (like the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region "SPREP'') are of growing importance for Australia.

Treaties and conventions are important as they reflect agreements and understandings between national Governments. Arguably their importance is being accentuated as international relations grow in their complexity and sensitivity and as the world's interdependence intensifies. In the past few decades, the scope of issues subject to treaties has expanded. Australia has invested considerable energy into outlawing the use of weapons of mass destruction, into various aspects of law of the sea and into the international trade system.

The need for global rules on the protection and promotion of human rights, the environment, wildlife and the world's cultural and natural heritage is now widely accepted. Each is now recognised as an area of interest beyond the nation states most directly affected, and as an issue which does not respect national borders. So where a problem cannot be adequately addressed by a country acting alone (for example, in relation to ozone depletion or the depletion of migratory fish stocks), acting cooperatively at the international level becomes essential for a country to protect its own interests. Treaties reflect the agreements reached between sovereign Governments.

Treaties and Australia's National Interests

Why are international treaties important to Australia?

Australia participates in international standard setting processes because it is in the national interest to do so. Nation states, particularly States with a relatively small population such as Australia, benefit from a world where interaction between countries takes place within a framework based on fair, agreed and transparent rules.

In a world where the projection of military and economic power was the main means by which national objectives were pursued, Australia would be vulnerable. Our geography would be seen as a point of isolation and our small population would be seen as a weakness. However, in a world governed by effective rules, Australia can have an influence beyond what our military and economic strength might suggest. We can advance our national objectives through shaping the standards and rules by which international relations are conducted. Indeed, geography can be an advantage. As Australia is not a member of a rigid regional grouping, we can build global or regional alliances to meet our needs. Our multicultural character means we can identify common cause more easily with other countries because of aspects of a shared value system.

International conventions bring considerable benefits in a wide range of areas to individual nations, particularly small and middle sized countries. Australia has used multilateral diplomacy to advance our national interests in specific ways. In the GATT Uruguay Round, we were successful in having agriculture included on the agenda of global trade liberalisation. Australia led the influential Cairns Group, a key participant in achieving a favourable outcome on agriculture in the Uruguay Round, bringing Australia well over $1 billion per annum in increased agriculture exports once the full effects of the agreement are felt. And the overall package of multilateral agreements concluded as part of the Uruguay Round (incorporated in the 1994 Marrakesh Agreement) is estimated to contribute to an increase in Australia's exports by $5 billion and in Australia's gross domestic product by $4.4 billion by 2002.

Australia has also helped shape a revised Law of the Sea Convention, in the process gaining sovereign rights over extensive areas of sea and continental shelf through diplomacy. In the field of disarmament, Australia put together a comprehensive draft of a Chemical Weapons Convention and through active diplomacy, was instrumental in achieving a convention now approaching universal acceptance. Australia played a similar catalytic role in relation to the Comprehensive Test Ban Treaty, which aims to ban the testing of nuclear weapons.

Treaties also provide for international cooperation on law enforcement, such as in relation to drug trafficking, establish resource management regimes to encourage sustainable development, and enhance global and regional security, all of which benefit Australia.

How can Australia influence the terms of these treaties?

Australia has its say in the drafting of these treaties through active participation in the international fora in which they are negotiated. Maximising our influence requires a commitment to equitable arrangements, which bring the greatest possible benefit to the largest possible number. In the great majority of cases, their final content is acceptable to Australia. In some cases, of course, we (and others) may have to accept compromises if they are necessary to achieve equitable global rules. If our concerns are serious, Australia would consider remaining outside the treaty, or joining after entering a reservation in relation to a part of the treaty, should that avenue be open (the term "reservation'' is defined in the glossary contained herein).

Does ratification of international treaties result in a loss of sovereignty?

Ratification of international treaties does not involve a handing over of sovereignty to an international body. Certainly, treaties may define the scope of a State's action, and treaties, which Australia ratifies, may influence the way in which Australia behaves, internationally and domestically. However, implicit in any Australian decision to ratify a treaty is a judgement that any limitations on the range of possible actions which may result are outweighed by the benefits which flow from the existence of a widely endorsed international agreement.

Where issues extend beyond the boundaries of any one country and management of an issue or problem cannot be achieved by a state acting alone a cooperative approach to the issue is essential. In this way, a state is able to exercise effective control within its own borders by strengthening its capacity to manage the broader environment in which it must function. But, ultimately, formal legal sovereignty is retained, as the power to enter into such arrangements remains with Government. The Government also retains the right to remove itself from treaty obligations if it judges that on balance the treaty no longer serves Australia's national and international interests. (Since 1996 Australia has tabled documents in Parliament foreshadowing its withdrawal from several treaties on the basis that these treaties no longer served Australia's interests.)

Some treaties establish a committee, which receives reports and monitors the implementation of obligations flowing from the treaty by States Parties. One such treaty body is the United Nations Human Rights Committee, which is responsible, among other things, for monitoring States Parties' implementations of their obligations under the International Covenant on Civil and Political Rights (ICCPR). But any assessments such treaty bodies make are of an advisory nature only. They are not binding and the Human Rights Committee has no enforceable legal jurisdiction over nation states which have acceded to the ICCPR or its First Optional Protocol. Nonetheless, ratification of a treaty does require a State to perform its obligations in good faith. But this is an exercise, not a relinquishing, of sovereignty.

Treaties and the Australian Government

What are the Australian Constitutional arrangements for Treaties?

Executive

Under the Australian Constitution, treaty making is the formal responsibility of the Executive rather than the Parliament. Decisions about the negotiation of multilateral conventions, including determination of objectives, negotiating positions, the parameters within which the Australian delegation can operate, and the final decision as to whether to sign and ratify are taken at Ministerial level, and in many cases, by Cabinet. As well as providing certainty, Australia's constitutional system also ensures that checks and balances operate. This occurs through Parliament's role in examining all proposed treaty actions and in passing legislation to give effect to treaties and the judiciary's oversight of the system. This efficiency and certainty of process enables the Government to negotiate with its overseas counterparts with authority and credibility, and contributes to Australia becoming a source of influence in the treaty's negotiation.

Bilateral agreements that conform to a model text previously approved by Cabinet are normally not subsequently referred to Cabinet. These types of agreements include Investment Promotion and Protection Agreements, Mutual Assistance in Criminal Matters Treaties, Extradition Treaties, Aviation Agreements etc. They are, however, considered by Ministers prior to approval being given by Federal Executive Council for signature of the treaty.

Parliament

The Constitution does not confer on the Parliament any formal role in treaty-making. Notwithstanding this, on 2 May 1996, the Government announced a number of changes to the treaty making process designed to enhance Parliamentary scrutiny of treaties. All treaties are now tabled in both Houses of the Commonwealth Parliament for at least fifteen sitting days prior to binding treaty action being taken, with exceptions for urgent or sensitive treaties (examples of urgent treaty action were the Agreement of 5 December 1997 concerning the Neutral Truce Monitoring Group for Bougainville and the 29 April 1998 Protocol concerning the Peace Monitoring Group (made pursuant to and amending that Agreement).

The term "treaty action'' includes entering into a new treaty, negotiating an amendment to an existing treaty or withdrawing from a treaty. Treaties are generally tabled after the treaty has been signed for Australia, but before action is taken which would bind Australia under international law. Treaties are tabled in the Parliament with a National Interest Analysis which notes the reasons why Australia should become a party to the treaty. Where relevant, this includes a discussion of the foreseeable economic, environmental, social and cultural effects of the treaty action; the obligations imposed by the treaty; its direct financial costs to Australia; how the treaty will be implemented domestically; what consultation has occurred in relation to the treaty action and whether the treaty provides for withdrawal or denunciation. Tabled NIAs are included in the treaties library at www.austlii.edu.au/dfat The Joint Standing Committee on Treaties (JSCOT) was established in June 1996 to consider tabled treaties and National Interest Analyses. The Committee can also consider any other question relating to a treaty or international instrument that is referred to it by either House of Parliament or a Minister. To date, the Committee has provided detailed scrutiny and examination of all treaties tabled in Parliament. JSCOT reports, once tabled, are available through the Internet website at http://www.aph.gov.au/house/committee/jsct/index.htm or on LH OilWeb.

A list of multilateral treaties that are currently under negotiation or review is also tabled approximately twice a year and published on Internet in the Australian Treaties Library.

Where Commonwealth implementing legislation is necessary, Parliament will have a further opportunity to debate a treaty prior to action to become a party given the practice of passing implementing legislation before agreeing to a treaty. The Montreal Protocol on Substances that Deplete the Ozone Layer was not ratified by Australia until implementing legislation and regulations had been debated and enacted. As the negotiation process for major multilateral treaties is generally a drawn out and quite public process, parliamentary discussion on key issues often takes place during negotiations as the issues become publicly known. For example, the Climate Change Convention was negotiated over a period of years, during which time issues associated with the draft convention were the subject of questions without notice, questions on notice, and debate in the Parliament.

Isn't there something undemocratic about treaty-making being in the hands of the Executive?

The 1996 reforms to the treaty-making process have increased Parliament's role in the treaty process and ensured that it is both an open and democratic process. Furthermore, the Government conducting treaty negotiations on behalf of Australia having been democratically elected, has a duty of public disclosure to the Australian people, and is morally obliged to be responsive to popular wishes. Moreover, Australia's practice in recent years has been to include key "stakeholders'' such as business or NGOs on delegations attending treaty negotiations, ensuring that the views of interested sections of the community are available during the process of framing international obligations. Further, as discussed below, the Government engages in wide ranging consultation with interested parties from the Australian community at all stages through the negotiations.

Consultation

How does the Government determine whether to become a party to a Treaty?

The key issue in determining whether to become a party to an international treaty is whether it is consistent with Australia's national interests. At the same time, because of their crucial importance and far-reaching effects, the practice is to consult widely before taking definitive treaty action.

The Government's decision on whether a treaty is in the national interest is based on information obtained from all relevant sections of the community. Consultation does not take place merely so that those with an interest feel included in the process, but more importantly because their views are an essential part of the judgement made by the Government as to whether a treaty is in the national interest.

With whom does the Commonwealth consult?

Wide-ranging consultations are the best means of ensuring broad community support for a multilateral treaty as well as specific support for a balanced outcome from those groups interested in the issues being negotiated. They also serve as a mechanism for the Government to provide information about the treaty in question and, if possible, develop a consensus within the Australian community.

The States and Territories

The State and Territory Governments are a primary focus of the consultation process. Many international treaties need State and Territory cooperation for their domestic implementation and, accordingly, discussions with State and Territory Governments occur at many levels ranging from that of experts to standing Ministerial Committees. In 1996, Heads of Government agreed to the establishment of a Treaties Council with an advisory function consisting of the Prime Minister, Premiers and Chief Ministers. The Treaties Council is an adjunct to COAG and considers treaties and other international instruments of particular sensitivity and importance to the States and Territories. Another important mechanism for federal/state consultation is the Commonwealth-State-Territory Standing Committee on Treaties which consists of representatives from the Premier's or Chief Minister's Departments in every State and Territory. This committee receives on a quarterly basis a Treaties Schedule listing all international treaties that Australia is currently negotiating or which are under review. State and Territory representatives have the opportunity to seek further details, offer views and comments, and flag those matters on which they wish to be consulted or to improve the consultative mechanism.

Industry and other interest groups

Consultation with industry bodies and interest groups spans a wide range of processes from standing bodies to informal methods. DFAT holds consultations twice a year with NGOs interested in international human rights issues where international instruments are on the agenda. The National Consultative Committee on Peace and Disarmament considers arms control issues, and the Trade Policy Advisory Committee enables the business community's interests in trade policy negotiations to be reflected in Government positions. However, consultation with all relevant groups in the community takes place outside such standing bodies where proposed treaty action is of interest to such groups. There are also numerous other occasions where the opportunities and forums offered by DFAT for consultation can be used to raise concerns that representatives may have about the treaty process.

Balancing competing interests

Consultation does not mean that any single group consulted can determine Australia's negotiating position. Indeed, this could never be the case because the groups consulted may support differing and at times opposing positions. The aim of the consultations is to give decision-makers, ultimately Ministers, access to a wide range of information and to provide relevant groups with the opportunity to present their positions to the Government. The final decision necessarily involves a balancing of competing interests with the aim of upholding a broader national interest.

Enhancing consultations

Because it is not always possible to know all the community groups which might wish to contribute to the process of setting Australia's objectives and positions, the Government prepares a list of all multilateral treaties currently under negotiation or review which can be found on the Australian Treaties Library Internet site. The list is updated approximately twice a year and tabled in both Houses of the Commonwealth Parliament. The list includes the name of the contact officer in the responsible Department to whom comments or questions can be directed for each treaty under negotiation. This provides greater transparency in the treaty making process and ensures that interested groups and individuals are in a position to contribute freely to Australia's negotiating position.

Negotiation

NGO and State and Territory Participation

Because developments at international conferences can be quite fast moving at times and expert views are needed on the spot to assist delegations, representatives from the States, Territories, industry groups and other NGOs often serve as advisers to Australian delegations. Apart from assisting the various delegations, these advisers are in a position to report back to their organisations on the room for manoeuvre for Australian initiatives and positions. The Government also seeks advice from affected groups on technical issues in the course of negotiations. This process is particularly heavily employed when key new multilateral regimes are being negotiated in areas like the environment, trade, human rights and the law of armed conflict.

Implementation

How does Australia become a party to a Treaty?

How a country joins a treaty is determined by the treaty in question. As a result of the 1996 reforms to the treaty making process, all bilateral treaties have a two stage entry into force mechanism. This allows a bilateral treaty to be tabled in Parliament after its signature but before binding treaty action is taken that would bring the treaty into force.

Modern multilateral treaties typically do not provide that signature alone is sufficient to become bound by a treaty. When the text of a multilateral treaty is finalised, the common practice is to have the treaty "open for signature'' for a specified period. Countries may sign the treaty within that period; however, signature is generally made subject to the deposit of an instrument of ratification, and a country is not legally bound by the treaty's provisions until ratification occurs. Where a country has not signed a multilateral treaty, it will nevertheless generally be able to become a party to it. This is typically called an act of accession.

What is the scope of the Commonwealth's power to legislate?

If Commonwealth legislation is required to give effect to a treaty, reliance can be placed on the external affairs power in s.51 (xxix) of the Constitution. The Tasmanian Dam Case and others establish that legislation based on the external affairs power, which is reasonably appropriate and adapted to giving effect to a treaty, will be constitutionally valid. However, when the Commonwealth is considering legislation to implement a treaty, it will normally rely on a range of available Commonwealth powers. For example, in giving effect to air navigation and shipping treaties, reliance is placed upon the trade and commerce power as well as the external affairs power. In many cases, there is no need to rely on the external affairs power to give effect to a treaty because the subject of that treaty already lies within other Commonwealth powers or because agreement has been reached with State and Territory Governments that they will enact appropriate legislation.

Are there any limits to the Commonwealth's treaty-making powers?

The Constitution grants powers, including the external affairs power, to the Commonwealth but also provides some limitations on the exercise of those powers. For example, the Commonwealth Government may not remove constitutional rights, such as freedom of interstate trade, merely by relying on treaty provisions. Also, the Commonwealth's exercise of legislative powers, including the external affairs power, is subject to a principle that the continued existence of one or more States, or their capacity to function as States, must not be impaired.

Finally, the conclusion of a treaty does not automatically bring the entire subject matter within the legislative capacity of the Federal Government. For example, Australia's accession to the Convention on the Conservation of Nature in the South Pacific does not mean that the Commonwealth has thereby gained legislative power over the subject of "nature conservation". The external affairs power only enables legislation to be passed to give effect to the terms of the treaty, and for legislation to be valid, it must be reasonably considered to be appropriate and adapted to the implementation of a treaty.

However, perhaps the most important constraint of all is the fact that treaty making processes in Australia operate within a democratic context which places a range of effective constraints on all exercises of executive authority. This includes, ultimately, the knowledge that action by the Commonwealth Government which was widely perceived as contrary to Australia's interests could result in defeat at the next election.

What happens once the Government has decided to enter into a Treaty?

Once an in-principle decision has been taken to agree to a treaty, the Commonwealth Government considers whether:

(a) specific implementing action is required;

(b) if so, whether existing legislation (Federal or State) is adequate; and

(c) if not, whether the treaty should be implemented by legislation at the Commonwealth or State/Territory level.

The prior approval of the Federal Executive Council is also required for Australia to enter into a treaty. (The Executive Council comprises the Governor-General and all serving Ministers and Parliamentary Secretaries. A meeting of the Executive Council requires the presence of the Governor-General plus two Ministers and/or Parliamentary Secretaries. The Executive Council requires certain documentation be presented to it showing that the decision to accept the rights and responsibilities associated with a treaty has been approved by Cabinet or by the relevant Ministers.)

Do all treaties require legislation to operate in Australia?

The general position under Australian law is that treaties which Australia has joined, apart from those terminating a state of war, are not directly and automatically incorporated into Australian law. Signature and ratification do not, of themselves, make treaties operate domestically. In the absence of legislation, treaties cannot impose obligations on individuals nor create rights in domestic law. Nevertheless, international law, including treaty law, is a legitimate and important influence on the development of the common law and may be used in the interpretation of statutes.

New legislation is not always necessary

Many treaties do not require new or prior legislation, as they can be implemented through executive action (for example, trade cooperation, defence logistics and procurement treaties). Other treaties, including a number of international human rights and industrial relations treaties, have been ratified on the basis of an assessment by the Commonwealth that existing Commonwealth or State/Territory legislation is sufficient to implement the provisions of the convention (in other words, we are already meeting domestically the terms of the convention and no further action is necessary), or that the particular treaty obligations can be implemented progressively and without radical change to existing laws. However, even in cases where a treaty does not involve new or different standards or actions beyond those already enshrined in domestic law, the treaty and a National Interest Analysis are now tabled in Parliament and referred to the Joint Standing Committee on Treaties.

But relying on existing legislation can sometimes be a problem

Difficulties can arise if ratification relies on existing State or Territory legislation and that legislation is subsequently altered in a way that is incompatible with the relevant treaty. In such cases, consideration may be given to the Commonwealth passing legislation to bring Australia's laws back into line with its international obligations. Sometimes the interpretation of obligations under a treaty may evolve to the extent that the existing State/Territory law is no longer adequate to give effect to those obligations. Again, if a State or Territory is unwilling to effect necessary amendments to its own law, the Commonwealth may consider passing its own legislation.

If obligations are not fully covered by existing legislation, new laws may be needed

If new legislation is required to implement the treaty, the normal practice is to require that it be passed before seeking Executive Council approval to enter the treaty. This is because subsequent Parliamentary passage of the necessary legislation cannot be presumed, entailing a risk that Australia could find itself legally bound by an international obligation which it could not fulfil.

Examples of treaties where specific legislation will be necessary are those requiring specific outcomes which can only be achieved by imposing legislative requirements on individuals. For example, legislation was necessary to give effect to an obligation under the Montreal Protocol to ban the manufacture of, and trade in, certain products containing harmful ozone depleting substances.

Is treaty-making being used by the Commonwealth to grab power from the States?

The blurring of national and international issues as a consequence of the globalisation of economic and political life has had a range of consequences in Australia. Treaties, as the fundamental instruments of international law, are therefore an increasingly important component of international relations and of Australia's own legal development. The Commonwealth's use of its powers to implement treaties domestically allows Australia to function as a full and constructive member of the international community.

Simultaneously, however, the States and Territories are also increasingly aware of the benefit in having a global "voice'', and playing a greater role in the world's deliberations on international rule making. State tourism offices, premiers' trips overseas to raise finance or attract investment, relevant ministers working with their counterparts to develop specific trade opportunities are just some examples of these trends. The increased presence of State and Territory representatives on delegations to international meetings (including for the negotiation and implementation of international treaties) demonstrates the importance of treaties to the States and Territories. The globalisation of issues has seen changes in the way all levels of Government interact with the international system, and an increasing focus outward to the world.

At their June 1996 meeting, Australian Heads of Governments agreed to a revised set of Principles and Procedures for Commonwealth-State-Territory Consultation on Treaties which reflect the treaty-making reforms introduced by the Government in May 1996. This document sets forth the arrangements governing the provision of information, consultative mechanisms and the implementation of treaties and other international instruments that are of particular sensitivity and importance to the State and Territory Governments. Under these procedures, the Commonwealth may consider relying on State or Territory legislation where the treaty affects an area of particular concern to the States or Territories and adoption of that course is consistent with the national interest and the effective and timely discharge of treaty obligations. In their June 1996 COAG Communique, Premiers and Chief Ministers welcomed the treaty reforms and viewed the Treaties Council as a potentially important new Federal institution.

In addition to the Principles and Procedures there may be Commonwealth-State-Territory arrangements covering a particular subject area. For example, the 1992 Intergovernmental Agreement on the Environment sets out detailed Commonwealth-State-Territory mechanisms relating to the negotiation and implementation of environmental treaties. The Consultative Forum on Mutual Recognition Agreements was formed in 1996 to assist Commonwealth/State consultation on treaties and less than treaty status arrangements by which Australia secures recognition for its export standards in potential markets.

Following this introduction is a list setting out a range of bilateral and multilateral treaties from which Australia gains palpable benefits in a wide range of areas, benefits derived not only from the more obvious security and trade treaties, but also from international agreements which affect the daily lives of its nationals. For example, since colonial times, Australia has gained from postal treaties, shipping agreements and health treaties.

Since the Second World War, the pace of international activity, and thus the need for international agreements to regulate that activity, has increased. This trend towards globalisation is well documented, as a growing number of activities are conducted on a transnational basis, and national actions increasingly have international ramifications. Due to the rate at which contact takes place today between people at economic, political and social levels, without regard to national borders, policy makers in individual countries cannot afford to ignore international developments in any of these areas. Rather, they must try to influence those developments in order to protect and to promote their national interests. The growth of multinational corporations is one example of the globalisation trend, their success demonstrating how international cooperation has the potential to deliver a wider range of benefits than is possible for action planned and carried out wholly within national borders.

For these reasons, it is simply not realistic for Australia to opt out of the international system. Where the rest of the world is committed to setting up international networks in particular areas, such as trade, Australia cannot expect to maintain its rate of progress by acting alone. Australia, for example, has always been, and remains, heavily dependent on international trade, and, because of our relatively isolated geographical position, reliant upon efficient transport and communications systems. Australia can gain enormously from technological innovation and its application in trade, commerce, transport and communications and, in many areas, technological advances provide the most benefit where they are implemented cooperatively. The Government therefore needs to ensure that Australia has an effective handle on the international system, so that Australian industry can develop global markets. The treaties establishing the World Trade Organization demonstrate how much intergovernmental cooperation can benefit international commerce.

Access to the world's natural resources is more than ever governed by international agreements. For example, the United Nations Convention on the Law of the Sea (UNCLOS) establishes globally accepted regimes for access to the resources of the sea and the seabed. Australia played an important role in the negotiation of this Convention, and was able to ensure that Australian interests were and would continue to be protected. Along with specific bilateral treaties delimiting maritime boundaries between Australia and its neighbours, UNCLOS creates a stable climate in which Australian industries may formulate strategies for the development of this country's natural resources. The provisions of the Convention and the international agreements to which Australia is a party ensure that these resources are exploited and developed in a sustainable manner.

Our multicultural society and the increased contact between Australians and people from other countries have heightened Australian awareness of, and interest in, the social welfare of people around the world. The responses by Australians to the crisis in Rwanda and the conflict in the former Yugoslavia are indicative of Australian concern for problems which are geographically remote from Australia. International agreements can also assist with the protection of the rights of individuals, such as, for example, the International Covenant on Civil and Political Rights which has been accepted by countries in all regions. The Covenant provides for a basic level of human rights and forms the platform for building a greater global commitment to rights which we may take for granted.

Australians themselves have also gained directly from international agreements dealing with social issues. The Convention on the Elimination of All Forms of Discrimination Against Women is the basis for our Sex Discrimination Act, which provides Australian women with more opportunities and greater choice in many areas of their lives, and strengthens protection from discrimination. The Convention on the Elimination of Racial Discrimination performs a similar role in combating discrimination on the grounds of race. Australia is also party to a number of labour conventions, which enshrine basic rights for Australian workers.

Finally, it is clear that some problems can only be solved by concerted international action. To this end, treaties on extradition and drug trafficking, for example, have been concluded, recognising the fact that criminals do not respect national borders. Countries have also shown a greater tendency to address pressing environmental problems such as global warming and the depletion of the ozone layer through cooperative action. If Australia did not participate in the negotiation of environmental treaties, it would have no way of ensuring that Australians' interests, including those interests of industry, were taken into account in formulating solutions to environmental and other problems.

EDUCATION

UNESCO Regional Education Conventions (1979 and 1983)

The Conventions set out, and encourage States Parties and their educational institutions to practise, principles for recognition of studies and qualifications for entry to higher education. The aim is to ensure that a qualification issued by one member Party is recognised by another member Party provided that it is comparable. The Conventions therefore provide a gateway for recognition of Australian qualifications for academic purposes by other Convention Parties. This potentially has positive implications for Australians who wish to study overseas and for the marketing of Australian education to overseas students.

The Conventions also encourage Parties to make information about higher education institutions as widely accessible as possible to each other's students and researchers.

ENVIRONMENT

Many of the major threats to the world's environment extend beyond national borders, and require solutions to be worked on a global scale if they are to be effective. Issues such as global warming, depletion of the ozone layer and threats to biodiversity are problems that must be resolved by agreement among the global community but have a direct impact on individual states such as Australia. Environmental conventions are therefore concerned with problems of an international, and often global, dimension for which public opinion expects solutions but which no country can solve unilaterally. Only by contributing to the multilateral protection of the global commons can each country maximise and benefit from global ecological security. This collective and individual security can best be achieved through arrangements involving the greatest possible number of countries.

Framework Convention on Climate Change (1992) and Kyoto Protocol (1997)

The United Nations Framework Convention on Climate Change (UNFCCC) was signed at the Rio Earth Summit in June 1992. The Convention's ultimate objective is to stabilise "greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic (human-induced) interference with the climate system". The Convention also established the implied target for Annex I countries, comprising OECD countries, Russia and Eastern Europe, of stabilising greenhouse gas emissions at 1990 levels by 2000. The Convention entered into force in March 1994, with Australia as an original party.

The commitments under the Convention were reviewed at the First Conference of the Parties in Berlin (1995) and agreement was reached on the need for stronger long term action in order to help meet the Convention's ultimate objective. As a result, in April 1995, the Berlin Mandate was established for Annex I countries to negotiate a protocol containing strengthened commitments by 1997. The end result of these negotiations was the Kyoto Protocol, adopted at the Third Conference of the Parties (Kyoto, 1997), which provides for differentiated country commitments and a commitment by developed countries to reduce their collective emissions by 5.2%, on 1990 levels, by 2008-2012. Australia signed the Kyoto Protocol in April 1998.

Australia has important interests at stake in relation to greenhouse gas emissions. Through the Convention and the Protocol, Australia participates in global action to protect both our own interests and those of the global environment. These instruments provide opportunities for the use of Australian expertise which is of particular relevance for developing countries. The three Kyoto (flexibility) mechanisms for achieving greenhouse gas reductions included in the Protocol - international emissions trading, the Clean Development Mechanism (CDM), and joint implementation - offer the potential to engage the energies of the market place and the private sector in achieving emissions reductions in a cost effective manner. For example, through the CDM, developed countries can implement cooperative projects in developing countries which assist in reducing emissions of greenhouse gases or enhancing sinks for greenhouse gases, with provision for the transfer of emission credits. The Convention and Protocol also provide opportunities for the export of Australian alternative energy products, such as solar or wind power units. Australia is a world leader in the development of such projects.

Desertification Convention (1994)

The objective of the Desertification Convention is to combat desertification and mitigate the effects of drought. The Convention provides an opportunity for Australia to participate in finding solutions to a global problem which is estimated to affect the lives of 900 million people. In the negotiation of the Convention, which Australia ratified in 2000, Australia has been able to demonstrate ways to provide a high standard of land stewardship in areas which for many Australians represent "the real Australia".

Convention on Biological Diversity (1992)

The objectives of the Convention on Biological Diversity are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources. The conservation and sustainable use of biodiversity is an indispensable foundation of ecologically sustainable development and is vital for maintaining the planet's life support system. Australia's future economic, trading and social well being depend on maintenance of Australia's and the world's biological resources.

The Convention helps Australia, as one of the world's twelve biologically megadiverse countries, to preserve its natural heritage. It also enables Australians to benefit from the prevention of further loss of diversity of flora and ecosystems, and from the sustainable use of biological resources, both in Australia and globally.

The Convention assists all Australians in receiving a fair return from the commercial development of Australia's genetic resources, and establishes the principles of an international framework through which Australia can be assured of access to the genetic resources of other countries on which Australia depends. Greater international commitment to conservation and sustainable use of biological diversity creates opportunities for research involvement by the Australian scientific community and export opportunities for the Australian environment and biotechnology industries.

In January 2000 Parties agreed to a Protocol to the Convention on Biosafety. The Cartagena Protocol establishes an international regime to ensure countries have sufficient information to take decisions on the environmental impact of trade in living (genetically) modified organisms. The Protocol opened for signature in June 2000 and will enter into force following ratification by 50 countries.

Other important areas identified for priority treatment under the Convention's work program include marine and coastal biodiversity, access to genetic resources, the relationship between agriculture and biodiversity, the role of indigenous and local communities in the conservation and sustainable use of biodiversity, and the establishment of a clearing house for scientific and technical cooperation.

Convention for the Protection of the World Cultural and Natural Heritage (1975) (under the auspices of UNESCO)

The objective of the World Heritage Convention is to promote cooperation among nations in order to protect heritage which is of such universal value that its conservation is concern of all people. Countries commit themselves to ensuring the identification, protection, conservation, preservation and transmission to future generations of world heritage properties.

Australia has played a leading role in the development of the Convention and ongoing associated activities. A number of significant heritage conservation actions have been undertaken in Australia as a result of the Commonwealth making decisions that contribute to Australia fulfilling its obligations under the Convention.

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989)

The objective of the Basel Convention is to ensure the sound management of international movements of hazardous wastes. It is intended primarily to prevent irresponsible waste-brokering operations, which dump waste in developing countries. Australia's involvement in the Convention maintains our international standing on hazardous wastes issues and so allows Australia to influence international trade policy to promote environmental protection. It also promotes regional environment protection.

International Tropical Timber Agreement (1983) (ITTA)

This Agreement is aimed at promoting stability in the international tropical timber trade and assisting tropical timber producers in developing countries.

Australia imports about one fifth of its sawnwood needs, including almost all of its tropical timber (which amount to about 15% of timber imports). The availability of tropical timber will decline rapidly unless sustainable forest management practices are implemented soon. Australian timber importers and users benefit from our ITTA membership through the Agreement's provision of technical assistance on sustainable forest management, which helps assure a continued supply of tropical timbers. Wider environmental concerns in the community such as climate change (because of forests' role as "carbon sinks'') and biodiversity are addressed by improved forest management practices in tropical timber producer countries.

A successor agreement to the 1983 ITTA was concluded in January 1994 and provisionally came into force on 1 January 1997. ITTA 1994 further integrates sustainability considerations into tropical timber production, particularly through the commitment by tropical timber producers to the Year 2000 target. By this time, all exports of tropical timbers should come from sustainably managed sources.

Vienna Convention on Substances that Deplete the Ozone Layer (1985) and Montreal Protocol (1987)

The Convention and Protocol phase out ozone depleting substances, which are of particular benefit to Australians, given our geographical position. Australians are often especially vulnerable to the type of skin damage which results from ozone layer depletion in the southern hemisphere and can lead to melanoma and other types of skin cancers .

Convention on Nuclear Safety (1994) and the Liability Regime for Civil Nuclear Damage

The Nuclear Safety Convention and the Liability Regime for Civil Nuclear Damage are intended to minimise the prospects of a recurrence of Chernobyl-type accidents and ensure that proper compensation is payable by nuclear power generating companies and States for loss caused by their activities. With the possibility of a growing nuclear power industry and related activities in our region, these are important developments for all Australians.

Convention on Wetlands of International Importance (1971) (Ramsar Convention)

The Convention originated as a means of protection of wetland habitats important to migratory birds. In 1990, the name was changed to reflect the Convention's interest in all wetland value and in encouraging the management of wetlands based on ecologically sustainable principles. The Convention is important to Australia because of our many species of migratory birds reliant on wetland habitat.

The Convention has heightened public awareness of the ecological importance of wetlands and facilitated the development of programs, in Australia and elsewhere, to designate sites as Wetlands of International Importance. Wetlands have significant economic importance as, for example, fishery breeding grounds. Preservation of wetlands and development of management plans also contribute to the preservation of flora and fauna and ecosystems, which are valuable to the community both for public enjoyment and as a scientific resource.

International Plant Protection Convention (1951)

This Convention aims to prevent the spread of plant pests and diseases through international trade. It gives Australia access to overseas material, such as resources important for the development of Australian horticulture, with a reduced risk of important pests and diseases.

International Convention for the Regulation of Whaling (1946) and Protocol (1956)

This Convention began as an instrument for the controlled harvesting of whales and has since evolved into an effective channel for the progressive ending of whaling. The 1982 moratorium on commercial whaling was enacted under this Convention, as was the 1994 Southern Ocean Whale Sanctuary. Australia and New Zealand have jointly proposed the creation of a South Pacific Whale Sanctuary under the Convention.

As a result of these and other measures under the Convention, the number of whales is increasing and several endangered species of whale can now be seen in growing numbers off the Australian coast.

Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973) (CITES)

This Convention and its Appendices help protect endangered species which are, or may be, affected by trade. It thus assists in the continued existence of unique Australian flora and fauna and the preservation of global diversity.

Convention on the Conservation of Migratory Species of Wild Animals (1979) (CMS or Bonn Convention)

This Convention commits range states to take action to conserve migratory species, especially those under threat of existence. It thus contributes to the conservation of migratory wildlife. Australia hosted an international meeting in Hobart in July 2000 aimed at securing agreement to a framework for international cooperation to conserve southern hemisphere albatross.

Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (1978)

The Convention prohibits military or other hostile uses of environmental modification techniques which can cause "widespread, long-lasting or severe'' damage to the environment. The Convention protects Australians by prohibiting in armed conflict situations the use of scientific techniques for environmental modification which might otherwise be harmful to the environment and human welfare.

Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals & Pesticides in International Trade, 1989 (PIC Procedure)

The Convention seeks to provide for the identification of banned or severely restricted chemicals in international trade and the formalisation of existing, voluntary arrangements to secure consent to their continued import and use. It has yet to enter into force, but all Parties agreed to apply its provisions on an interim, voluntary basis. The existing voluntary arrangements cover industrial chemicals and pesticides and comprise a number of straightforward steps which enable importing States to indicate whether they wish to continue to receive chemicals which have been banned or severely restricted, by another country, on the basis of the health and/or environmental risk they pose. Australia signed the Convention in July 1999, subject to ratification.

Regional Environmental Conventions

The five South Pacific environmental conventions listed immediately below were negotiated over a fifteen year period and provide a number of benefits to Australians, including:

- the sustainable development of local and regional industries, which will promote regional security and provide the greater economic and social independence of the countries in the South Pacific region, leading to the reduction of their dependence on foreign aid, principally from Australia.

- the preservation of local ecosystems, retaining the aesthetic beauty of our region.

- the addressing of environmental problems facing the South Pacific at a regional, as opposed to national, level thereby assisting the prevention of environmental degradation on a scale which could lead to environmental refugees looking to Australia for resettlement.

Convention on the Conservation of Nature in the South Pacific (1976)

The purpose of the Convention is the conservation, utilisation and sustainable development of the natural resources of the South Pacific region from nutritional, scientific, educational, cultural and aesthetic points of view, including indigenous customs and traditional cultural practices. The Convention facilitates good relations between Australia and other countries of the South Pacific, enabling them to share their nature conservation expertise, and work together to solve management problems.

Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (1986)

The purpose of the Convention is to prevent, reduce and control pollution of the marine and coastal environment of the South Pacific region from any source, and to ensure sound environmental management and development of natural resources. The Convention preserves the sovereign rights of states to exploit, develop and manage their own natural resources, whilst recognising their duty to protect and preserve the environment and ensuring that activities within their jurisdiction or control do not cause damage to the environment elsewhere. In particular, it provides that states should harmonise their environmental policies at the regional level.

Agreement establishing the South Pacific Regional Environment Programme (1990) (SPREP)

The purposes of SPREP are to promote cooperation in the South Pacific region and to provide assistance in order to protect and improve the regional environment and ensure sustainable development for present and future generations. The SPREP Convention and its Protocols also set down rules about dumping and cooperation in combating pollution emergencies. These instruments are especially useful for Australia, because although some of the Pacific island states are not parties to the relevant international conventions, under the regional SPREP Convention they are nevertheless subject to obligations similar to those applied to Australia by the international conventions (see also Marine Pollution).

Convention for the Prohibition of Fishing with Long Drift-nets in the South Pacific (1989)

Parties to this Convention are required to ensure that their nationals and vessels are prohibited from engaging in drift-net fishing activities within the Convention Area in the South Pacific (Articles 2 and 3). The increasing fishing capacity induced by large scale drift-net fishing threatens fish stocks in the South Pacific region. This particular method of fishing also endangers the lives of non-target species including dolphins, sea turtles and sea birds. By outlawing this method of fishing, the Convention contributes to the conservation and better management of the marine living resources of the South Pacific region and limits the possibility of by-catch of dolphins, sea turtles and sea birds.

Regional Convention on the Transboundary Movement of Hazardous Wastes (1995) (Waigani Convention)

The main purpose of this Convention is to impose a ban on the importation of all hazardous and radioactive wastes from outside the Convention Area to Pacific Island Developing Parties. It also ensures that any transboundary movements of hazardous wastes within the Convention Area are completed in a controlled and environmentally friendly manner. Australia ratified the Convention in 1998.

Plant Protection Agreement for the South-East Asia and Pacific Region (1956)

This Agreement aims to limit the spread of plant pests and diseases within the region through cooperation between its parties on plant matters. The development of plant material under reduced pest/disease risk conditions increases the potential commercial benefits for the Australian horticultural industry by increasing our ability to access regional and international markets.

Bilateral Agreements on the Protection of Migratory Birds

Australia has negotiated bilateral agreements with Japan (1974) and China (1986) to protect species of birds which migrate between Australia and those countries. The nature of these species obviously means that unilateral action by Australia would be insufficient to ensure their conservation. The agreements foster scientific and cultural interchanges between the countries involved.

Torres Strait Treaty (1978)

One element of this treaty provides that within an area described as the Protected Zone, Australia and Papua New Guinea take special measures to protect the marine environment. This is particularly important for Australia as activities within Papua New Guinea's territorial waters may have effects in Australian coastal areas, including the Great Barrier Reef.

Antarctica

Multilateral conventions provide the framework for extensive international cooperation in Antarctica, more than one-third of which is claimed as the Australian Antarctic Territory.

Antarctic Treaty (1959)

This treaty designates Antarctica as an area which is to be used for peaceful purposes only. It benefits Australians through the prohibition of military activity in Antarctica and the promotion of international cooperation in science. The latter is of particular importance in the context of renewed concern over climate change. The Treaty prohibits nuclear explosions and the disposal of radioactive waste material in the Antarctic region.

Protocol on Environmental Protection to the Antarctic Treaty (1991) (the Madrid Protocol)

The Madrid Protocol and its Annexes commit the Parties to the comprehensive protection of the Antarctic environment, designating Antarctica as a natural reserve, devoted to peace and science. It prohibits any mining in Antarctica for at least 50 years.

Convention on the Conservation of Antarctic Marine Living Resources (1980) (CCAMLR) and Headquarters Agreement (1986)

CCAMLR protects the ecosystem of the seas surrounding Antarctica and promotes the sustainable use of the resources of these seas. The location of the secretariat is Hobart, which enhances that city's status as a centre of Antarctic expertise. CCAMLR helps ensure that the Antarctic waters are not over-fished and that the wildlife of the Antarctic region is maintained for the enjoyment of all.

Marine Pollution

Multilateral conventions have been concluded to address the problems of marine pollution. As an island continent with a long coastline and unique offshore fauna and flora, Australia especially benefits from the rules established by the following Conventions. In one sense, the less these Conventions need to be used, the more successful they can be seen to have been.

UN Convention on the Law of the Sea (UNCLOS) (1982)

Part XII of UNCLOS sets up a general legal framework for marine environment protection. The Convention imposes obligations on States Parties to prevent, reduce and control marine pollution from the various major pollution sources, including pollution from land, from the atmosphere, from vessels and from dumping (Articles 207 to 212). Subsequent articles provide a regime for the enforcement of national marine pollution laws in the many different situations that can arise.

Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (1972) (the London Convention)

The London Convention regulates the dumping of wastes and other matter at sea. Article 4 provides a general prohibition on dumping of wastes except as specified in the Convention. The Convention has annexed to it two lists of substances, the "black list'' of substances which may not be dumped at all, and the "grey list'' of substances which may only be dumped under a specific permit. The Convention has been highly successful in prohibiting the dumping of environmentally harmful substances.

International Convention for the Protection of Pollution from Ships (1973) and Protocol (1978)

This Convention and Protocol (together known as MARPOL 73/78) build on earlier conventions on the same subject. MARPOL is concerned with operational discharges of pollutants from ships. It contains five Annexes, dealing respectively with oil, noxious liquid substances, harmful packaged substances, sewage and garbage. Detailed rules are laid out as to the extent to which (if at all) such substances can be released in different sea areas.

Specific provisions dealing with the protection of the Great Barrier Reef are contained in Annexes I, II, IV and V of MARPOL, whereby the outer edge of the Great Barrier Reef is treated as the coastline for measuring distances under MARPOL. This allows for greater Australian legislative protection of the Great Barrier Reef than would otherwise be permitted at international law, and so contributes to the preservation of a unique environmental resource.

Prevention and Remediation of Accidents at Sea

International Convention on Oil Pollution Preparedness, Response and Cooperation (1990)

The Convention was a response to the Exxon Valdez oil spill in Alaska in 1989. It sets up a system of oil pollution contingency plans and cooperation in fighting oil spills.

International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969)

The Convention gives States Parties powers to intervene on ships on the high seas when their coastlines are threatened by an oil spill from that ship.

International Convention on Civil Liability for Oil Pollution Damage (1969)

The Convention and the associated International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1971) set up a system of compulsory insurance and strict liability, up to a certain figure, for damages suffered as a result of an oil spill accident. Any damage suffered as a result of major oil spills is potentially so large that, in the absence of such an international system, it is unlikely that sufficient money could ever be recovered from owners to compensate effectively for the environmental degradation caused.

HEALTH

Bilateral Reciprocal Health Care Agreements

Australia is currently party to a number of reciprocal Health Care Agreements, for example with the United Kingdom, New Zealand, Italy, Malta, Sweden, the Netherlands and Finland.

Under these Agreements, short term visitors who need immediate and necessary medical treatment have access to the host country's public health care system as public patients on the same basis as residents of that country. This means they receive treatment with the same privileges and liabilities in terms of any patient payments (for example, in Australia patient "gaps" for medical services or patient contributions for pharmaceutical benefits).

Australians travelling in those countries are therefore protected from exorbitant medical bills if they are injured or fall ill.

HUMAN RIGHTS

International Covenant on Civil and Political Rights (1966) (ICCPR)

Following Australia's ratification of the ICCPR in 1980, the Human Rights Commission was established the following year. In 1986, the Human Rights and Equal Opportunity Commission (HREOC) replaced the original Commission, and now acts as Australia's national authority in the field of human rights. Through its activities, it increases understanding, acceptance and observance of human rights in Australia and promotes social justice and equal opportunity. It handles complaints from individuals and conducts educational, promotional and research programs in relation to a wide variety of legislation dealing with civil and political rights. HREOC also has cooperative arrangements with state Equal Opportunity bodies, non-governmental organisations and various legal institutions.

Optional Protocol to the ICCPR (1966)

The Optional Protocol enables the UN Human Rights Committee, established pursuant to Article 28 of the ICCPR, to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the ICCPR. Australia acceded to the Optional Protocol in 1991, giving people in Australia the right to bring complaints of human rights violations before the Committee. As at June 2000, 30 cases had been lodged against Australia. Eleven complaints have been declared inadmissible, four have been withdrawn or discontinued and the merits of four have been considered. Of these the Committee was of the view that the individuals' rights under the ICCPR had been breached by Australia in two instances.

Second Optional Protocol to the ICCPR (1989)

The Second Optional Protocol was adopted in 1989 with the objective of eliminating the death penalty. Australia acceded to the Protocol in 1990 after ensuring that capital punishment had been abolished by law in all its States and Territories. Australia therefore has undertaken an international obligation not to execute any person within its territory (no execution has taken place in Australia since 1967).

International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR)

The ICESCR recognises, inter alia, the right to health, education, housing, work, form and join trade unions, social security, an adequate standard of living, and a cultural life. The ICESCR requires progressive realisation of the rights recognised in it by States Parties. Australia submitted its first comprehensive report under the ICESCR in June 1998.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (CAT)

Australia acceded to the CAT in 1989 and accepted the competence of the Committee against Torture, under articles 21 and 22 of the CAT, to consider matters relating to inter-state disputes and communications from or on behalf of individuals in 1993. Fifteen cases have been lodged under article 22: of these only two have proceeded to consideration on the merits, with the Committee reaching the view in one of these cases that there was a substantial risk to individual's rights would be breached if he were returned to Somalia. The CAT is set out in the Schedule to the Crimes (Torture) Act 1988 (Cth). This provides that if a person who is acting as a public official in an official capacity commits an act of torture outside Australia which would have been punishable if committed within Australia, that person may be tried for the relevant offence.

Convention on the Elimination of All Forms of Racial Discrimination (1966) (CERD)

The Convention provides the basis for the Racial Discrimination Act 1975, which makes racial discrimination illegal. Article 14 of the CERD also provides for individual complaints procedures to be received by the Committee on the Elimination of Racial Discrimination. To date, four cases have been lodged under article 14. The Committee declared one case inadmissible and that the other two revealed no violation.

The Office of International Law in the Commonwealth Attorney-General's Department is responsible for the preparation of Australia's response to communications lodged under the international complaints mechanisms.

Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW)

The Convention provides the basis for the Sex Discrimination Act 1984. The Act provides the legislative basis for more choices, better opportunities and freedom from discrimination for women in Australia. Through the Act, the Convention has helped to bring about a change in Australia's cultural infrastructure, leading to a better Australia for both women and men.

Convention on the Rights of the Child (1989) (CROC)

The Convention on the Rights of the Child has been the impetus for a number of government measures to protect the rights of children, including the establishment of the National Child Protection Council.

Labour Conventions

ILO Convention 29: Forced Labour (1930)

The Convention provides that each ratifying Member shall undertake to suppress the use of forced or compulsory labour in all its forms within the shortest possible period with a view to complete suppression. During the transitional period, recourse to forced or compulsory labour may have been had for public purposes only and as an exceptional measure, subject to conditions and guarantees laid down in the Convention.

ILO Convention 87: Freedom of Association and Protection of the Right to Organise (1948)

The Convention provides that all workers and employers shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing, without previous authorisation.

ILO Convention 98: Right to Organise and Collective Bargaining (1949)

The Convention provides that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment, particularly in regard to acts calculated to make employment subject to non-membership of a trade union or to cause dismissal of, or prejudice to, a worker by reason of union membership or participation in union activities.

ILO Convention 100: Equal Remuneration (1951)

The Convention requires parties to ensure the application to all workers of the principal of equal remuneration for men and women workers for work of equal value. The term ´equal remuneration for men and women workers for work of equal value'' refers to rates of remuneration established without discrimination on the grounds of sex. This principle may be applied by means of national laws or regulations, legally established or recognised machinery for wage determination, collective agreements between employers and workers or a combination of these various means.

ILO Convention 105: Abolition of Forced Labour (1957)

The Convention requires parties to undertake to suppress and not to make use of any form of forced or compulsory labour as a means of suppressing political views or views ideologically opposed to the established political, social or economic system; or as a method for mobilising and using labour for purposes of economic development; as a means of labour discipline; as a punishment for having participated in strikes; or as a means of racial, social, national or religious discrimination.

ILO Convention 111: Discrimination (Employment and Occupation) (1958)

The Convention requires each party to declare and to pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating discrimination.

ILO Convention 135: Workers' Representatives (1971)

The Convention is concerned with the protection of, and facilities to be afforded to, workers' representatives.

ILO Convention 156: Workers with Family Responsibilities (1981)

The Convention applies to men and women workers with responsibilities for their dependent children or other members of their immediate family where such responsibilities restrict their possibilities of participating in economic activity. It provides that each party shall make it an aim of national policy to enable these persons to exercise their right to work, without discrimination, and as far as possible without conflict between employment and family responsibilities.

Rights of Indigenous Australians

Torres Strait Treaty (1978)

The Treaty allows the continuation of traditional activities and freedom of movement by the Torres Strait Islanders and coastal Papua New Guineans in the Protected Zone between Australia and Papua New Guinea.

LAW ENFORCEMENT

There are a broad range of treaties, both bilateral and multilateral, which deal with various aspects of law enforcement. These treaties create a framework for international cooperation in the area of law enforcement and in certain cases provide for the suppression of crimes of particular international concern. Participation in cooperative law enforcement treaties is essential to avoid the creation of a criminal haven in Australia. For this reason, the Australian Government participates actively in regimes which promote international cooperation on law enforcement issues.

Bilateral Mutual Assistance Treaties

Such treaties are important tools in the arsenal of Australian law enforcement agencies in dealing with sophisticated and complex criminal activity. Organised crime groups are not constrained by national borders. Efforts to combat these groups would be seriously hampered if Australian agencies could not seek the assistance of their counterparts in other countries in investigations. The provision of such assistance is facilitated where Australia has a bilateral treaty regarding mutual assistance in criminal matters with the country concerned. Where evidence exists in those countries which is wanted for use in prosecutions in Australia, it can also be obtained pursuant to such a treaty. If proceeds of a crime committed in Australia are located in another country, such a treaty can facilitate the seizure and confiscation of those proceeds. Australia has mutual assistance treaties with 18 countries.

Bilateral Extradition Treaties

There are occasions where an alleged offender is wanted for trial in Australia but is outside the country. In such cases, if the alleged offender is located in a country with which Australia has a bilateral extradition treaty, then steps can be taken to seek the alleged offender's extradition to stand trial in Australia. If Australia did not have an extensive network of extradition treaties with other countries, persons who had committed serious crimes, but had managed to leave the country, could well escape prosecution. Australia currently has over 28 modern bilateral extradition treaties, and other extradition arrangements which cover more than 60 countries world-wide.

United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)

The Convention is intended to suppress the production, sale and trafficking of narcotic drugs and psychotropic substances. The Convention, among other things, imposes obligations on parties in relation to extradition, mutual assistance in criminal matters and the confiscation of proceeds of crime. Failure by Australia to participate in these conventions would increase the amount and availability of narcotics in Australia. These anti-narcotics treaties are a crucial part of addressing the drug problem at its source.

The Hague Convention on the Civil Aspects of International Child Abduction (1980)

The Hague Convention requires contracting states to take appropriate measures to ensure the prompt return of children abducted from one country to another.

NATIONAL SECURITY

A positive strategic environment is essential to Australia and, therefore, treaty regimes which contribute to our national security enhance the lives of all Australians.

The UN Charter itself is obviously the most important of these treaty regimes.

The ANZUS Treaty (1951) which formalises the Australia-US defence alliance remains vitally important to Australia's security. The alliance is based on a close alignment of enduring strategic interests with the United States, in particular our shared interests in a stable and secure Asia-Pacific region. The alliance also provides a framework for valuable practical cooperation in areas such as intelligence, access to leading edge defence technologies, and privileged logistics and support arrangements. The United States suspended its ANZUS Treaty obligations to New Zealand in 1986, but for Australia the Treaty continues to provide the framework for our bilateral defence cooperation with New Zealand as well as with the United States.

The Five Power Defence Arrangements (1971) were established as a consultative arrangement between Australia, Malaysia, New Zealand, Singapore and the United Kingdom to provide a practical basis for continued bilateral and multilateral cooperation between the defence forces of the participating countries. While the focus of the FPDA is on the external defence of Malaysia and Singapore, the cooperative activities conducted under the Arrangements contribute positively to the regional security environment and thereby to Australia's security interests and objectives.

Global security regimes

Treaty on the Non-Proliferation of Nuclear Weapons (1968) (NPT)

The Nuclear Non-Proliferation Treaty commits non-nuclear weapon states to not acquiring nuclear weapons and prohibits the transfer of nuclear weapons (or the know-how to make nuclear weapons) to non-nuclear weapon states.

The wide adherence to the Treaty demonstrates a global commitment to its objectives, which has discouraged States from acting inconsistently with those objectives, and has facilitated a cooperative global response when those objectives have been threatened by individual States.

The Treaty is backed up by an effective system of on-site verification in the form of International Atomic Energy Agency safeguards. Australia's system of bilateral nuclear Safeguards Agreements also supports the NPT regime and ensures that Australian uranium exports can only be used for peaceful non-explosive purposes and used only by carefully selected bilateral partners.

The 1995 NPT Review and Extension Conference decided without recourse to a vote to extend the Treaty indefinitely. This very broad support for indefinite extension was facilitated by agreement on an accompanying package of decisions to strengthen the treaty review process and to adopt a set of principles and objectives on nuclear non-proliferation and disarmament.

Comprehensive Test Ban Treaty (1997) (CTBT))

The Comprehensive Test Ban Treaty, which outlaws nuclear explosions for all time, was adopted by the United Nations General Assembly in New York on 10 September 1996 and opened for signature on 24 September 1996. Australia signed on that day as did the five nuclear weapon states. Signature of the Treaty constitutes a political and moral commitment to renounce nuclear testing and is a vital step in the nuclear non-proliferation and disarmament process.

The CTBT represents the culmination of decades of effort by Australia and other countries to stop nuclear testing. Australia led international action to have the Treaty adopted by the UNGA when the Conference on Disarmament reached stalemate in the final stages of the negotiations. Pending entry into force, a CTBT Preparatory Commission has been established to carry out the necessary preparations for the Treaty's effective implementation, including the establishment of the International Monitoring System.

Chemical Weapons Convention (1993) (CWC)

The Chemical Weapons Convention, which entered into force on 29 April 1997, provides for a global ban on all aspects of chemical weapons development, production and transfer, as well as for the destruction of all existing chemical weapon stocks and production facilities. It is the first comprehensively verifiable multilateral treaty to ban an entire class of weapons and includes verification procedures to ensure that all states parties comply with the provisions of the Convention. The verification machinery is administered internationally by the Organisation for the Prohibition of Chemical Weapons (OPCW) located in the Hague. The Chemical Weapons Convention Office (CWCO) in Canberra is responsible for implementing the provisions of the treaty in Australia and maintains regular contact with the Australian chemical industry.

Australia played a leading role in the negotiation of the Convention and will continue to play an active role in the operation of the OPCW. This level of involvement enhances Australia's image internationally as a country which can contribute constructively to the resolution of global security problems.

Biological Weapons Convention (1972)

The control, and if possible the final elimination, of weapons of mass destruction, is high on the international agenda. The Biological Weapons Convention was signed on 10 April 1972, and entered into force for Australia on 5 October 1977. The Convention bans the production, development, stockpiling and acquisition of biological weapons and their delivery systems.

Australia attaches great importance to the Convention as the sole global instrument for the abolition of biological weapons. Biological weapons are not only inhumane but also capable of causing large scale casualties. The mere possession of such weapons by one or more countries in a region would seriously erode the trust in that region. Biological weapons proliferation within Asia, for example, would harm the development of the productive economic and international security environment which Australia and others in the region are seeking. Biological weapons proliferation in other regions would weaken global security as a whole, and could possibly encourage interest in biological weapons in our own region.

Australia will continue to work to strengthen the Biological Weapons Convention to ensure that Australians can continue to enjoy an environment free of the risk of biological weapons proliferation. Australia is playing leading role with respect to negotiations on a verification protocol to the Convention.

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines, and on their Destruction (1997) (the Ottawa Convention)

This Convention was opened for signature on 3 December 1997. Australia signed it on that day and ratified it on 14 January 1999 following parliamentary scrutiny of the Convention and the enactment of legislation to enforce its provisions nationally. The Convention entered into force generally on 1 March 1999 and for Australia on 1 July 1999. The First Conference of States Parties to the Convention was held in Maputo, Mozambique 3-7 May 1999, and the second will be held in September 2000.

States adhering to the conditions of the Convention agree never to use, develop, produce, stockpile or transfer anti-personnel mines. Each state must agree also to the destruction of stockpiled anti-personnel mines under its jurisdiction or control within 4 years of the Convention's entry into force for that state. Australia destroyed the bulk of its stockpile in September and October 1999. A minimum number of mines may be retained for the development of and training in mine detection, mine clearance, or mine destruction techniques - Australia has maintained 10,000 mines. Each ratifying state must destroy emplaced anti-personnel mines within its territory within 10 years of the date of entry into force of the Convention (Australian does not have anti-personnel mines emplaced within its territory). There are provisions for extensions of this time period for severely mine-affected states. States in a position to do so are under a general obligation to provide support for mine clearance and mine awareness programs, and assistance to mine victims. Australia contributes to these activities through its commitment to provide $100 million by 2005 for demining and victim assistance programs, focusing on our region. States also undertake to provide information to a United Nations database on mine clearance technologies and expertise.

The Convention provides for monitoring of compliance with its provisions by means of annual reports to the United Nations Secretary-General, the depositary of the Convention.

Geneva Conventions for the Protection of War Victims and Additional Protocols (1949 and 1977)

The four 1949 Geneva Conventions and the 1977 Additional Protocols regulate and control the conduct of international and non-international armed conflicts. The Conventions and Additional Protocols establish a humanitarian law regime which is designed to protect Australian Defence Force personnel, belligerents and civilians (whether Australian or otherwise) in armed conflict situations by specifying rules for the humane conduct of the conflict.

The Conventions and Protocols also benefit Australians by promoting international peace and security by seeking to prevent abuses and excesses which might otherwise prolong a conflict, whether involving Australia or not, or sow the seeds of a future conflict. Moreover, they contain enforcement provisions which are intended to deter individuals and states from inhumane conduct and thus contribute to the restoration of peace.

Inhumane Weapons Convention (1980)

The Convention and its Protocols prohibit or restrict the use of certain specific categories of the conventional weapons (including anti-personnel landmines, booby traps, incendiary weapons and fragmentation weapons) which can be characterised as causing "unnecessary suffering" or have indiscriminate effects. The Conventions and Protocols seek to protect Australian service personnel, Australian civilians and other parties from weapons which are excessively injurious or weapons which have indiscriminate effects. In 1996, the Inhumane Weapons Convention Review Conference adopted an amended Protocol II which contains much stronger restrictions and prohibitions on anti-personnel landmines use and transfers as well as a new Protocol IV which outlaws the use of blinding laser weapons.

Australia ratified these two Protocols on 22 August 1997, and was among the first states to do so. Following the twentieth ratification of amended Protocol II, the Protocol entered into force on 1 December 1998. As a result of its entry into force, the first annual implementation conference on amended Protocol II was held in 1999, leading to a further review Conference in 2001.

Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1956)

The Convention provides both for preparations in peacetime for safeguarding cultural property against foreseeable effects of armed conflict, and also for respect for such property in time of war/or military occupation.

Regional security regimes

Treaty of Rarotonga (1986)

In addition to the global regimes, a regional regime has been established under the Treaty of Rarotonga, which creates a South Pacific Nuclear Free Zone (SPNFZ).

Australia played a leading role in the negotiation of SPNFZ which came into force in 1986 and prohibits the testing, production, acquisition, possession or stationing of nuclear weapons in the region.

The SPNFZ Treaty has contributed generally to the establishment of an international norm against the proliferation of nuclear weapons, and more specifically, was the first international agreement to require full scope safeguards as a condition of nuclear supply to non-nuclear weapon states. SPNFZ is widely regarded as a good model of a regional NWFZ Treaty.

The signing of the Protocols of the SPNFZ Treaty by France, the United States and the United Kingdom on 25 March 1996 marked the end of more than 40 years of nuclear testing in the South Pacific. (China and the then USSR were early signatories of the Protocols.) Under the Protocols, the nuclear weapon states agree not to use or threaten to use nuclear explosive devices against any party to the Treaty or against any territory in the Zone for which nuclear weapon states party to the Protocols are responsible.

Truce and Peace Monitoring on Bougainville, Papua New Guinea (1997 and 1998)

There are Agreements between Australia, Papua New Guinea, New Zealand, Fiji and Vanuatu concerning the establishment and operations of the neutral Truce (and subsequently Peace) Monitoring Group on Bougainville.

POSTAL AGREEMENTS

Universal Postal Union and Asia Pacific Postal Union

The Universal Postal Union sets globally accepted standards for the international carriage of mail, allowing reciprocal use of mail systems of countries all around the world, for the exchange of letters and parcels. Agreements concluded under the auspices of the UPU cover areas such as standardisation of forms and systems for international transit of letters and parcels, charges for international delivery of mail and determination of liability for registered international mail and parcels.

The global system is supplemented by the Asia-Pacific Postal Union, which is responsible for the establishment of rules for postage in this region.

SOCIAL SECURITY

International Social Security Agreements are intended to close gaps between the social security systems of the countries which are party to them. Australia's social security system is based on residence and need. A claimant for an Australian benefit must generally have lived in Australia for a specified minimum period of time and cannot claim a benefit whilst residing overseas. In contrast, most other countries have social security systems that are based on compulsory contributions made by the working population from salaries or wages. A minimum number or period of contributions is usually required before a benefit can be drawn from such a system.

International Social Security Agreements:

- allow people to add together their periods of residence in Australia and periods of coverage in the other country to meet the minimum periods needed to qualify them for a pension from either country;

- guarantee that pensions can be transferred from one agreement country to the other; and

- allow former Australian residents now living in the other country to claim Australian pensions without returning to Australia to live.

Australia has agreements of this type with Austria, Canada, Cyprus, Ireland, Italy, Malta, the Netherlands, Portugal and Spain.

In addition, Australia has a long-standing agreement with New Zealand under which the country in which the person lives has the responsibility for payment of the benefit.

The Agreement between Australia and the United Kingdom is also a special case. It will be terminated from 1 March 2001. However the Government has announced that it will allow people who migrated to Australia on or before 1 March 2000, and who do not qualify for Age Pension until after the Agreement terminates, to be able to claim Age Pension as if the agreement was still operating. This means that people in this situation will not have to wait until they accrue ten years' qualifying residence before they can qualify for Age Pension.

TELECOMMUNICATIONS

International Telecommunications Union

The ITU allows countries to cooperatively address global telecommunication needs and to set rules and standards which allow for quick and easy telecommunications access to virtually the whole world. Members have concluded agreements which expand and improve telecommunications services to the public, prevent interference with telecommunications from other countries and organise frequency bands for radio services.

Agreement relating to the International Telecommunications Satellite Organisation (1971) (INTELSAT)

The INTELSAT Agreement has as its primary objective the establishment, on a commercial basis, of a system of satellites for international public telecommunications. Australia is a part owner in the INTELSAT system from its initial investment under this Agreement.

Convention on the International Maritime Satellite Organization (1976) (INMARSAT)

The INMARSAT Convention provides a universal satellite communications organisation primarily directed at maritime users with particular emphasis on safety considerations. Australia is also a part owner of the INMARSAT system from its initial investment under this Convention.

UN Convention on the Law of the Sea (1982)

The Convention permits Australian companies to lay submarine cables in certain maritime zones of other countries, such as optical fibre cables vital for Australia's telephone communications system.

TRADE AND INDUSTRY

Multilateral trade regimes are delivering increasing benefits more widely than ever before, and such treaties underpin Australia's economic prosperity by facilitating trade and investment flows.

Trade liberalisation

The World Trade Organization (WTO), which flowed from the Uruguay round of the GATT trade negotiations, constitutes the major multilateral trade body to which Australia belongs. The agreements established under the auspices of the WTO cover trade in agricultural products, trade related investment measures, services and intellectual property, the most rapidly expanding areas of international trade.

Agreement establishing the World Trade Organization (1994)

The World Trade Organization (WTO) administers a series of agreements on rules and disciplines that should be applied by members in their policies relating to international trading activities. Those agreements provide middle-sized economies like Australia that do not belong to any geo-political trading blocs, with a system that establishes a more equitable and predictable global trading environment.

The WTO is a forum in which trade concerns can be addressed (including through a formal dispute settlement process where necessary). It also facilitates multilateral trade negotiations. Such negotiations have always included tariff reductions but can, subject to a consensus among the membership, involve a wide range of trade-related issues. Successive rounds of multilateral trade negotiations have led to significant improvements in market access arrangements. These include reductions in tariffs, the development of disciplines on non-tariff measures and agreements on the reduction of trade-distorting subsidies in agriculture and other sectors - all of which have supported a continuing rapid expansion of global trade.

The major agreements under the World Trade Organization Agreement are:

- the revised General Agreement on Tariffs and Trade (1994), which incorporates the provisions of the 1947 GATT;

- the General Agreement on Trade in Services (GATS), which brings services trade under multilateral rules for the first time, providing Australian services exporters with improved international trading opportunities in the telecommunications, financial services, insurance, business and professional services sectors;

- the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (see Intellectual Property); and

- the Agreement on Trade-Related Aspects of Investment Measures (TRIMS), which provides a basic framework for the flow of investment between countries.

Regional trade

South Pacific Regional Trade and Economic Co-operation Agreement (1980) (SPARTECA)

SPARTECA provides a mutually beneficial framework for trade among South Pacific countries. It also contributes to the prosperity and stability of the region.

Bilateral trade

As a complement to the multilateral trade regimes in which Australia participates, Australia has also concluded a number of bilateral trade agreements. For example:

- the Closer Economic Relations (CER) Agreement and amending documents, which are politically and economically central to the Australia-New Zealand relationship;

- the Nara Agreement (1976), which is the cornerstone of our trading relationship with Japan, which is Australia's largest export destination;

- a number of agreements with countries that are not members of GATT, which ensure that Australia has the same access to those markets as our competitors. Examples are Trade Agreements with several of the Newly Independent States of the former Soviet Union.

- the Agreement on Trade and Commercial Relations with Papua New Guinea (1976 and 1991) (PATCRA), which governs Australia's trade relations with Papua New Guinea, and contributes to the prosperity and stability of both parties.

Commercial contracts

The United Nations Convention on Contracts for the International Sale of Goods (1980) provides a fair legal framework and greater certainty for Australians engaged in international trade in goods.

Taxation

Double Taxation Agreements increase our international competitiveness by reducing to fair levels the tax burdens of companies with international operations. These agreements also encourage international investment in Australia.

Customs

Under the auspices of the international World Customs Organization, a number of conventions have been concluded to which Australia has become a party. Those conventions variously provide for the harmonisation of certain customs procedures, systems and descriptions, which together facilitate international trade to and from Australia and will ultimately lead to more competitive markets. The Conventions are the International Convention on the Harmonized Commodity Description and Coding System (1983); the International Convention on the Simplification and Harmonization of Customs Procedures (1973); and the (Customs) Convention on Temporary Admission (1990).

Under the UN Convention on the Law of the Sea (1982), Australia is given the right to exercise customs and sanitary regulation in its contiguous zone, which extends 24 nautical miles from the coast.

Investment

Australia has concluded bilateral Investment Promotion and Protection Agreements with countries including Argentina, Chile, China, the Czech Republic, Hong Kong, Hungary, India, Indonesia, Laos, Papua New Guinea, Peru, the Philippines, Poland, Romania and Vietnam. The agreements encourage international investment in Australia and protect the interests of Australian investors overseas. They are significant confidence building mechanisms for investors and also provide agreed dispute resolution procedures.

Resources access

UN Convention on the Law of the Sea (1982)

Parts II, V and VI of the Convention provide for extensive maritime zones in which Australia can exercise sovereign rights. Under the Convention, Australia has sovereign rights over marine and seabed resources within its exclusive economic zone (EEZ), which extends 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. Australia also has the right to regulate the exploration and exploitation of the natural resources of its broad continental shelf.

Part XIII of the Convention permits Australia, within its EEZ, to regulate marine scientific research, through the participation of Australian scientists, the conducting of research cruises by other countries and the sharing of research project results with Australia. As a result, Australian scientists and companies are better positioned to obtain knowledge concerning our marine environment and resources.

Part XI of the Convention, read with the New York Agreement of 28 July 1994 on its implementation, regulates mining activities on the deep seabed beyond national jurisdiction. This aspect of the Convention is far sighted, providing that when deep seabed mining becomes viable, it will not be subsidised. This will ensure that Australian land-based mining activities will operate in a fair and competitive environment.

Timor Gap Treaty (1989)

The Treaty between Australia and Indonesia on the Zone of Cooperation in the area between northern Australia and East Timor, which entered into force in February 1992, established a legal basis for exploration for and exploitation of petroleum resources which would otherwise have been indefinitely delayed because of the difficulty of negotiating a permanent seabed boundary. The legal regime has been continued since Indonesia's withdrawal from East Timor by agreement between Australia and the United Nations Transitional Administration in East Timor (UNTAET), and further negotiation will be needed in preparation for East Timor's independence.

Part I of the Treaty establishes a Zone of Cooperation in the Timor Gap area which is made up of three component parts, dividing areas of access and responsibility between Australia and its Treaty partner. As a result of the Treaty, investors and companies have been able to explore this resource-rich area with certainty and return substantial revenues to governments deriving from the petroleum resources of the Timor Gap.

Agreement between Australia and Indonesia Relating to Cooperation in Fisheries (1992)

This Agreement facilitates fisheries cooperation between Australia and Indonesia. It promotes trade in the fisheries sector by encouraging and facilitating joint ventures in the processing and marketing of fish products and in related enterprises (Article 10).

The Agreement further facilitates the exchange of information on technological developments related to fisheries (Article 5) and scientific data on fish stocks (Article 2) and through the exchange and training of fisheries and marine conservation personnel (Article 4). The development of sustainable fishing techniques and better management of marine resources ensures the conservation of shared stocks.

Agreements between Australia and Indonesia Establishing Certain Seabed Boundaries (1971 and 1972)

These Agreements permanently delimit the boundaries of certain areas of seabed between Australia and Indonesia. In so doing, the Agreements create a climate of certainty about the extent of the seabed areas over which Australia exercises sovereign rights, including rights to mineral resources.

Treaty with Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries (signed on 14 March 1997 but not yet in force)

The Treaty establishes the remaining maritime boundaries between Australia and Indonesia and provides Australia with security of jurisdiction over its maritime boundaries.

The sectors of maritime boundary in question are:

. the water column (i.e. exclusive economic zone - "EEZ'') and seabed boundary between Java and Christmas Island;

. the complete water column (EEZ) boundary between Australia and Indonesia; and

. the extension of the seabed boundary between Australia and Indonesia west of the point reached in the 1972 Treaty.

The Treaty also contains a range of provisions that govern the rights and obligations of the Parties in areas where the sovereign rights and seabed jurisdiction of one overlap the water column jurisdiction of the other.

Torres Strait Treaty (1978)

This Treaty delimits the boundary between Australia and Papua New Guinea and provides certainty for Australian investors in the Torres Strait region, both in relation to fisheries and the seabed.

Convention for the Conservation of Southern Bluefin Tuna (1993)

Over-fishing of Southern Bluefin Tuna (SBT) has caused serious depletion of the stock. This Convention entered into by Australia, Japan and New Zealand provides a legally binding international regime for the conservation and sustainable management of SBT.

The Convention creates the Commission for the Conservation of SBT (with its Secretariat in Canberra) which is required to meet annually to determine a global total allowable catch and national quota allocations for the SBT fishery. Each Party is required to ensure that the catch of SBT by vessels operating under its jurisdiction does not exceed its agreed national quota allocation.

The conservation, sustainable management and optimum utilisation of SBT have both economic and environmental benefits for Australians. The fishery is worth approximately $100 million per year to Australian companies. International legal proceedings are currently in train to ensure that Japan does not continue to exceed its recently agreed national quota by pursuing fishing unsanctioned by the convention and in breach of UNCLOS.

Intellectual Property

Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS)

The TRIPS Agreement, concluded under the Agreement establishing the World Trade Organization as part of the GATT Uruguay Round, will provide for Australia a stronger, more comprehensive and predictable system of international protection for a range of intellectual property rights. It will thereby boost Australia's performance as an innovator and exporter of intellectual property, including computer software, films, television, music and video, creative design and patents. The value of export of these items are moving towards $A500 million per annum.

International Union for the Protection of New Varieties of Plants (1991) (UPOV)

UPOV establishes an internationally harmonised sui generis system of intellectual property protection for plant breeders. It provides breeders with incentives to develop improved varieties which provide significant environmental, social and economic benefits. The benefits to Australia of participation in the Convention include improved access to varieties developed overseas and reciprocal access for Australian breeders to protection of their intellectual property in member States.

Berne Convention for the Protection of Literary and Artistic Works (1886, revised 1971)

The Berne Convention is the foundation treaty for the protection of literary and artistic works and has widespread international support. It is based on national treatment, which enables the works of Australians to be given the same treatment in member countries as those of nationals of the member countries, and sets down minimum standards for the protection of literary and artistic works. The importance of the Berne Convention is underlined by the fact that the TRIPS Agreement obliges member states to comply with the substantive provisions of the Berne Convention.

Paris Convention for the Protection of Industrial Property (1883, revised 1967)

The Paris Convention, like the Berne Convention, is also a foundation treaty, concerning industrial property such as patents, trademarks and industrial designs. It provides for national treatment, right of priority and independence of protection. It gives a right of priority to a person filing a patent application in Australia to file a patent application in any other member country, thereby providing Australians with a means of access to different national systems for patentees. The Convention has widespread international support. As with the Berne Convention, TRIPS member states must comply with the substantive provisions of the Paris Convention.

TRANSPORT

Civil Aviation

Chicago Convention on Civil Aviation (1944)

The Chicago Convention provides the framework for international civil aviation, while recognising that each Contracting Party has complete and exclusive sovereignty over the airspace above its territory (Article 1). The Convention provides a right to fly over the territory of other countries (Article 5), and is the basis for the bilateral negotiation of traffic rights between countries. Countries are required to facilitate air navigation (Article 22), including by the provision of assistance to aircraft in distress (Article 25) and by the investigation of accidents (Article 26). The Convention also establishes international standards and recommended practices in relation to safety, regularity and efficiency of air navigation (Chapter VI).

Participating in the Chicago regime facilitated the establishment of a broad network of aviation links - which is crucial given the distance between us and many of our markets. It has also been an essential ingredient to Australia's viability as a tourist destination.

Bilateral Aviation Agreements

The details of air schedules - for example, rights to fly a specified number of flights on particular routes - are provided by bilateral aviation agreements. Without those agreements Australian carriers would have no rights to use overseas airports; nor would overseas carriers be able to land at Australian airports.

Warsaw Convention on Certain Rules relating to International Carriage by Air (1929) and Hague Protocol (1955)

The Convention and Protocol establish an international liability regime for death, injury or damage caused by international air travel. It is to be noted that there has been discussion in the Senate of the inadequacy of limits of compensation which are set down in the Convention, and proposals that the limits be raised.

The Hague Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1970)

The Convention provides that hijacking offences should be made punishable by severe penalties (Article 2) and provides for cooperation among contracting states for punishment or extradition of offenders (Article 10).

A regime of four treaties has been negotiated over 25 years to cover a range of terrorist acts on aircraft and at airports. The Hague Convention, as well as the Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963), the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971) and the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (1988). This series of treaties provides a secure travelling environment to Australians around the world, and makes Australian aircraft and airports safer.

Maritime Transport

UN Convention on the Law of the Sea (1982)

Parts II, III and IV of the Convention ensure navigation and overflight rights for Australia vessels and aircraft through and over other States' maritime zones. This provides certainty and freedom of movement for Australian vessels and aircraft as well as their passengers and cargo. The inclusion in the Convention of rights to travel through archipelagic sea lanes preserves our access to Asian markets, for example, via Indonesia.

Torres Strait Treaty (1978)

The Treaty provides for freedom of navigation and overflight by vessels and aircraft of Australia and Papua New Guinea in the region, and for cooperation in the maintenance of navigational aids. These provisions ensure the free and safe movement of Australian vessels and aircraft in the Torres Strait.

General Treaty Information

Details of the treaties to which Australia is known to have been, is, or has taken action to become a party, or which have affected Australia, are contained in the Australian Treaty List. The List is available through the Australian Treaties Library on the Internet (at http://www.austlii.edu.au/dfat), and is complete at the end of each year. The List is updated monthly in the current year under Australian Treaty List - Monthly Updates. Texts of treaties which have entered into force for Australia can be found in the Australian Treaty Series (ATS) - texts from 1925 on may be accessed through the Internet (ATS number can be found in the Australian Treaty List), under the Australian Treaty Series (Full Text) heading. Texts of treaties where some action has been taken (e.g. signature) but which are not yet in force for Australia, also appear under the Australian Treaty Series (Full Text) entry, as Australian Treaties not yet in force. Texts of those multilateral treaties in the development of which Australia participated, but to which Australia is not yet a Party, are published in Select Documents on International Affairs: Treaties and Conventions which are also available on the Internet under Related Materials.

INSERT

Introduction

The sixth meeting of the Council of Australian Governments (COAG) completed today was the first to be held for more than a year and was held under the Chairmanship of the Prime Minister. Heads of Government have endorsed the historic package of reforms to national firearms controls agreed by Australian Police Ministers. The Council has also agreed to an agenda of major reform to re-align fundamentally Commonwealth, State and Territory activity in the health and community services and housing fields. The Council noted a report from the Gas Reform Task Force and agreed to settle outstanding issues at its next meeting.

Other major reforms include the creation of a Treaties Council which will enhance consultations between the Commonwealth and the States and Territories on treaties and other international instruments of sensitivity or importance to the States and Territories; and signature by the Prime Minister, Premiers and Chief Ministers of a Trans-Tasman Mutual Recognition Arrangement.

This Communique sets out the agreed outcomes of the discussions on these issues.

The Council agreed that the next meeting would be held on 15 November 1996 in Brisbane.

Treaties

The Council agreed to the establishment of a Treaties Council and related improvements to the provision of information about, and consultation procedures concerning, treaties and other international instruments of sensitivity or importance to the States and Territories. Premiers and Chief Ministers welcomed this initiative and saw it as a potentially important new Federal institution.

The Treaties Council will have an advisory role, and will comprise the Prime Minister and all Premiers and Chief Ministers. The inaugural meeting of the Treaties Council will be held in conjunction with the next meeting of COAG.

The agreed changes are incorporated in revised Principles and Procedures for Commonwealth-State Consultation on Treaties which the Council agreed should be adopted in order to achieve the best possible outcome for Australia in the negotiation and implementation of international treaties. They update those adopted in 1992. The revised document is at Attachment C to the communique. Amongst other changes, it sets out in detail the role and functions of the Treaties Council.

The Council also noted the reforms to the treaty making process announced by the Commonwealth on 2 May 1996 which implement, to a considerable extent, the initiatives proposed by the States and Territories in their April 1995 Joint Submission to COAG. In particular, the reforms include:

(1) a new Parliamentary procedure for tabling treaties before they are ratified;

(2) the establishment of a Joint Parliamentary Committee on Treaties; and

(3) the enhanced provision of information on treaties, including National Interest Analyses.

The Commonwealth's intention is to review the initiatives taken to reform the treaty-making process after two years. The States and Territories recommend that the Treaties Council review the package of reforms (including the issue of parliamentary approval of treaties prior to their ratification) at that time, and the Commonwealth notes this recommendation.

[This Communique has been edited to only refer to the Treaties agenda item.]

Part A: INTRODUCTION AND PRINCIPLES

These principles and procedures are adopted subject to their operation not being allowed to result in unreasonable delays in the negotiating, joining or implementing of treaties by Australia.

1 Introduction

1.1 The Council of Australian Governments agreed at its meeting in June 1996 that this set of Principles and Procedures should be adopted in order to achieve the best possible outcome for Australia in the negotiation and implementation of international treaties. They update those adopted in 1992.

2 Instruments covered by these Principles and Procedures

2.1 These Principles and Procedures relate to treaties of sensitivity and importance to the States and Territories.

2.2 Treaties are multilateral, limited party (plurilateral and trilateral) or bilateral agreements which create legally binding obligations under international law. Treaties pertaining to matters of national security are excluded from these Principles and Procedures.

2.3 Having regard to these Principles and Procedures, the Commonwealth will inform the States and Territories of other international instruments where they cover matters of sensitivity and importance to the States and Territories such as the United Nations Draft Declaration on the Rights of Indigenous Peoples.

3 Principles

3.1 In the interests of achieving the best possible outcome for Australia, and where a treaty or other international instrument is one of sensitivity and importance to the States and Territories, the Commonwealth should, wherever practicable, seek and take into account the views of the States and Territories,

· in formulating Australian negotiating policy, and

· before becoming a party to, or indicating its acceptance of, that treaty or instrument.

The Commonwealth should then also keep the States and Territories informed of the determined policy.

3.2 The consultative process will be continued through to and include the stage of implementation, if any.

3.3 The States and Territories will each be responsible for the timely development of their own whole of government position with respect to any aspect of the consultation and, where they choose, for the development of a consolidated States and Territories position.

3.4 The States and Territories will establish and advise the Commonwealth on the appropriate channels of communication, and persons responsible for consultation, to ensure that the Commonwealth can discharge its international responsibilities in a timely manner.

Part B: PROCEDURES

4 Information

4.1 The Commonwealth will inform States and Territories in all cases and at an early stage of any treaty discussions in which Australia is considering participation. Where available, information on the long-term treaty work programs of international bodies will be provided to the States and Territories.

4.2 There will be various ways in which information on treaty negotiations is provided to the States and Territories.

(a) Information about treaty discussions is forwarded to Premiers'/Chief Ministers' Departments or Cabinet Offices on a regular basis through the Department of the Prime Minister and Cabinet and the Treaties Secretariat of the Department of Foreign Affairs and Trade. One vehicle for making information about current treaties and negotiations available will be the Treaties Schedule.

(b) The Commonwealth will provide the States and Territories every six months with a list of current and forthcoming negotiations (forecasting 12 months ahead) and of matters under consideration for ratification, accession etc. Updates of this list will be provided at three monthly intervals.

(c) National Interest Analyses (NIAs) will be prepared by the Commonwealth for all treaties. States and Territories will be consulted at an early stage in the preparation of NIAs in relation to those treaties in which they have a major interest. NIAs will be finalised in time for tabling in Parliament. NIAs will represent the best understanding of the Commonwealth at the time they are prepared. A National Interest Analysis which includes the elements in the NIA pro forma (Appendix 1) will accompany each treaty tabled in Parliament.

(d) the Commonwealth will whenever practicable provide States and Territories with a report on the outcome of international negotiating sessions which are of sensitivity and importance to the States and Territories. These may be provided on a confidential basis.

4.3 The provision of the above information will not affect the flow of information on treaties to the States and Territories which occurs on an ongoing basis from the time that negotiations begin.

5 Consultation mechanisms

The Treaties Council

5.1 There will be a Treaties Council consisting of the Prime Minister, Premiers and Chief Ministers. The Treaties Council will have an advisory function.

5.2 The role of the Treaties Council is to consider treaties and other international instruments of particular sensitivity and importance to the States and Territories either of its own motion, or where a treaty is referred to it by any jurisdiction, a Ministerial Council, an intergovernmental committee of COAG or by SCOT. Senior Officials will co-ordinate and prepare the agenda for the Treaties Council. The Treaties Council will also be able to refer treaties to Ministerial Councils for consideration.

5.3 The Treaties Council will meet at least once a year. The Prime Minister will chair the meetings, with the Minister for Foreign Affairs in attendance when appropriate. Meetings of the Treaties Council will normally take place at the same time and place as COAG.

Standing Committee on Treaties

5.4 There will be a Standing Committee on Treaties consisting of senior Commonwealth and State and Territory officers which will meet twice a year, or more often if required, to identify treaties and other international instruments of sensitivity and importance to the States and Territories and:

· decide whether there is a need for further consideration by the Treaties Council, a Ministerial Council, a separate intergovernmental body or other consultative arrangements;

· monitor and report on the implementation of particular treaties where the implementation of the treaty has strategic implications, including significant cross-portfolio interests, for States and Territories;

· ensure that appropriate information is provided to the States and Territories; and

· co-ordinate as required the process for nominating State and Territory representation on delegations where such representation is appropriate.

5.5 In identifying treaties and other international instruments of particular sensitivity and importance to the States and Territories, the Committee should have regard to their potential to affect the finances or current or future policy decisions of the States and Territories or the need for State and Territory participation in implementation, including legislation.

Ministerial Councils and other consultation mechanisms

5.6 Subject to any recommendation of the Standing Committee, as a general practice, consultation will be conducted by the functional Commonwealth/State and/or Territory Ministers for Departments concerned. Exceptions will exist where there are significant cross-portfolio interests.

5.7 In general, existing Commonwealth/State and Territory Ministerial Councils and consultative bodies will be used as the fora in which detailed discussions of particular treaties and other international instruments take place.

5.8 When issues are to be discussed that are of particular significance to either State and Territory or Commonwealth authorities other than those directly represented on the Commonwealth/State and Territory consultative bodies, representatives of such authorities may be invited to attend the meetings in an observer role.

5.9 The protocols relating to the operation of Ministerial Councils will apply to these consultations - including those relating to Representation of Constituent Governments and Liaison between Councils (Commonwealth-State Ministerial Councils, A Compendium, May 1994).

6 Participation on International Delegations

6.1 In appropriate cases, a representative or representatives of the States and Territories may be included in delegations to international conferences which deal with State and Territory subject matters. Subject to any special arrangements, the purpose is not to speak for Australia, but to ensure that the States and Territories are well informed on treaty matters and are always in a position to put a point of view to the Commonwealth. However, State and Territory representatives will be involved as far as possible in the work of the delegation.

6.2 The States and Territories will normally initiate moves for inclusion in a delegation, but the Commonwealth should endeavour to keep State and Territory interests in mind.

6.3 Unless otherwise agreed, the costs of the State and Territory representatives are a matter for State and Territory governments.

7 Implementation

7.1 Before the Commonwealth becomes a party to any international treaty of particular sensitivity and importance to States and Territories, the Commonwealth and the States and Territories will consult in an effort to secure agreement on the manner in which the obligations incurred should be implemented.

7.2 Where the preparation of reports to international bodies on implementation action is required, States and Territories will be consulted and their views taken into account in their preparation.

8 "Federal - State'' Aspects

8.1 The Commonwealth does not favour including federal clauses in treaties and does not intend to instruct Australian delegations to seek to include them. In the Commonwealth's view, the international community sees the pursuit of federal clauses in treaties generally as an attempt by the ´´Federal State'' to avoid the full obligations of a party to the treaty. The Commonwealth's experience at a number of International Conferences has shown that these clauses are regarded with disfavour by almost the entire international community. Further, its experience is that a federal clause tailored to the needs of one federation will be unacceptable to other federations. The Commonwealth believes that instructing an Australian delegation to press for a federal clause only diverts its resources from more important tasks.

8.2 The Commonwealth does not object to Australia making unilaterally a short ´´Federal Statement'' when it signs or ratifies certain appropriate treaties, if this statement clearly does not affect Australia's obligations as a party. An ´´appropriate'' treaty would be one where it is intended that the States and Territories will play a role in its implementation. An appropriate form for a statement like this is at Appendix 2.

8.3 The normal practice is that Australia does not become a party to a treaty containing a federal clause until the laws of all States and Territories accord with the mandatory provisions of the treaty. However, where a suitable ´´territorial units'' federal clause is included in a treaty, the possibility of Australia acceding only in respect to those States and Territories which wish to adopt the treaty might be considered on a case by case basis where appropriate, perhaps in some private law treaties.

8.4 The Commonwealth will consider relying on State and Territory legislation where the treaty affects an area of particular concern to the States and Territories and this course is consistent with the national interest and the effective and timely discharge of treaty obligations. However, the Commonwealth does not accept that it is appropriate for the Commonwealth to commit itself in a general way not to legislate in areas that are constitutionally subject to Commonwealth power.

Joint Standing Committee on Treaties

Committee members

August 1999

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without written permission.

In 1996, the Government introduced wide-ranging reforms to the treaty-making process. The Government has now reviewed these reforms, and found that, overall, they are working well. By consulting with States and Territories, and the Joint Standing Committee on Treaties, and from the many submissions from the community, the Government has identified some areas for further improvement. These include, among other things, improving consultation between States and Territories and Commonwealth Departments and agencies. There is also scope for building on improvements already made to National Interest Analyses, and for enhancement of the internet Australian Treaties Library. The Government remains committed to an open and transparent treaty-making process.

THE 1996 REFORMS

The 1996 reforms had 5 pillars:

· the tabling of treaties in Parliament for at least 15 sitting days before binding action is taken;

· the preparation of a National Interest Analysis (NIA) for each treaty;

· the establishment of the Parliamentary Joint Standing Committee on Treaties (JSCOT);

· the establishment of the Treaties Council comprising the Prime Minister, Premiers and Chief Ministers; and

· the establishment on the internet of the Australian Treaties Library.

THE REVIEW PROCESS - WIDE CONSULTATION

In 1996, the Government said it would review the reforms after they had been in place for 2 years. This process began in July 1998 with requests for submissions.

The Government consulted widely in conducting this Review. The Prime Minister wrote to all Premiers and Chief Ministers requesting their comments on the reforms and suggestions for improvement. The Minister for Foreign Affairs and the Attorney-General wrote in similar terms to JSCOT. The Department of Foreign Affairs and Trade (DFAT) and the Attorney-General's Department sought contributions from Commonwealth Departments and agencies, and persons and organisations who had made submissions to the 1995 report of the Senate Legal and Constitutional References Committee on treaties (the 1995 Senate Report),[1] or to subsequent JSCOT inquiries.

The Review was advertised and submissions sought in nation-wide newspaper advertisements in July 1998, and through the DFAT and Attorney-General's Department internet sites.

A total of 66 submissions were received.

The majority of these submissions agreed that the reforms were both well-implemented and effective in practice. The Government also appreciates the suggestions for improvement contained in many submissions.

ASSESSING THE REFORMS

Fifteen sitting day minimum tabling period

The requirement to table treaties in Parliament for a minimum of 15 sitting days has proved a good balance between the need for adequate Parliamentary and public scrutiny and the need for timely treaty action. The existing flexibility - for shorter tabling periods in very urgent circumstances and for longer periods in particularly complex matters - has worked well.

Parliamentary Joint Standing Committee on Treaties

JSCOT has been very effective. It has sought submissions from a wide range of people and organisations, and as at 30 June 1999 had considered 137 treaty actions and tabled 22 reports.

JSCOT has been able to expand consultation by holding hearings in a wide range of locations and by seeking submissions from a wide range of parliamentary, government, industry and community groups.

The second-largest and one of the most active joint Parliamentary committees, JSCOT has become the key medium for wide consultation on treaties. It has also greatly enhanced community awareness of treaties.

National Interest Analyses

The purpose of an NIA is to explain why a treaty action would be in Australia's national interest. NIAs describe the likely economic, social, cultural, environmental and legal impacts of proposed treaty action. They are tabled with their treaties for a minimum of 15 sitting days, and are available on the internet.

Some States and Territories expressed concern about the adequacy of the time made available for consultation with the Commonwealth agency preparing the NIA. The Government acknowledges this situation. However, in the 3 years of their operation, NIAs have evolved and improved, and this process will continue. JSCOT has played a valuable role in this. The Government is committed to the importance and value of the States' and Territories' role in this area, and encourages them to engage in treaty consultation at the earliest opportunity.

The Australian Treaties Library (www.austlii.edu.au/au/other/dfat)

The establishment on the internet of the Australian Treaties Library is one of the stand-out successes of the Government's 1996 reforms. It has already become the world's most advanced and up-to-date on-line national treaty information system, containing more than 26,000 pages of treaty texts. It has been enthusiastically endorsed by a very wide range of users.

Work is continuing on the Australian Treaties Library website to expand its already impressive subject and keyword search capabilities, create and improve links to NIAs and 'status lists' showing which countries have joined treaties to which Australia is a Party, and improve the overall user-friendliness of the site.

Australia is a leader in this field: it sponsored the United Nations General Assembly resolution that created the UN internet treaty database (www.un.org/Depts/Treaty).

The Government continues to provide printed hard copy versions of treaty texts.

TREATIES COUNCIL AND STANDING COMMITTEE ON TREATIES
(SCOT)

The Treaties Council consists of the Prime Minister, the Premiers and the Chief Ministers. Although it has so far met only once (in November 1997), the Commonwealth/State and Territory Standing Committee on Treaties (the SCOT) meets twice each year. The SCOT has significantly enhanced the coordination of consultation between the Commonwealth and the States and Territories.

OTHER STATE AND TERRITORY CONCERNS

State and Territory submissions raised a number of specific proposals which the Government has noted:

· State and Territory approval of treaties: the Government considers that the reformed treaty processes are sufficient to enable the views of States and Territories to be taken into account in treaty negotiations. However, the Government is committed to improving existing consultation in order to make the present system work as effectively as possible.

· Federal Clauses: Federal clauses limit the application of a treaty to areas of a federal government's constitutional authority. The 1995 Senate Report found that for Australia they would present considerable practical and political difficulties. There are no plans to seek federal clauses in future treaties, although the Government will continue to make a federal statement upon signature of a treaty when appropriate.

· State and Territory representation at treaty negotiations: the Government acknowledges that States and Territories often participate in treaty negotiations, and this can assist in informing the delegation of State and Territory views and provide the delegation with expert technical assistance. The Government supports State and Territory-funded participation in relevant treaty negotiations.

LOOKING TO THE FUTURE

The Government considers that the treaty-making process has worked well since the reforms were introduced. It is committed to maintaining these high standards and initiating improvements where appropriate:

· consultation with States and Territories: the Government will continue to ensure that Commonwealth agencies consult promptly so that States and Territories can make the best possible use of the existing Ministerial Councils and consultation mechanisms;

· National Interest Analyses: the Government is committed to maintaining the quality and utility of NIAs, and values the feedback of JSCOT and the States and Territories;

· Australian Treaties Library - staying at the leading edge: the Australian Treaties Library website is the world's best national treaties website - the Government is committed to keeping it that way.

CONTINUING THE SUCCESS OF THE 1996 REFORMS

The Government has been pleased with the positive response to its reforms of the treaty-making process. It is committed to further improving the way Australia enters into treaties, and working towards the most effective combination of scrutiny, transparency and consultation.

1.1 The Government is proud of the success of the landmark 1996 treaty reforms. As the submissions to this Review acknowledged, the reforms have greatly improved scrutiny, transparency and consultation in the treaty-making process, and community awareness of treaties.

1.2 The key initiatives were:

· the tabling of treaties in Parliament for at least 15 sitting days before binding action is taken;

· the preparation of a National Interest Analysis (NIA) for each treaty;

· the establishment of the Parliamentary Joint Standing Committee on Treaties (JSCOT);

· the establishment of the Treaties Council comprising the Prime Minister, Premiers and Chief Ministers; and

· the establishment on the internet of the Australian Treaties Library.

1.3 As at 30 June 1999 the Government had tabled 135 treaties since the introduction of the reforms. JSCOT has closely and constructively scrutinised the treaties. NIAs and the Australian Treaties Library have provided a new level of transparency. The Government has continued to improve the comprehensiveness of its consultations.

1.4 On 2 May 1996, the Minister for Foreign Affairs, the Hon Alexander Downer MP and the Attorney-General, the Hon Daryl Williams AM QC MP, announced the Government's reforms to the treaty-making process in Australia. In introducing those changes to Parliament the Minister for Foreign Affairs foreshadowed that the Government would review the initiatives taken to reform the treaty-making process. The Minister also noted the need to overcome the perceived "democratic deficit" in the treaty-making process and to ensure that every Australian individual and interested group has an opportunity to participate in the process. The reforms sought to establish an efficient approach to assessing the way proposed treaties meet our national interests. As this Review highlights, the objectives of the reforms have been achieved. Many submissions made suggestions for further adjustments, and these valuable contributions have been thoroughly considered.

1.5 The Government's guide to treaties, the Treaty Information Kit is available on the internet[2] and from the Department of Foreign Affairs and Trade's Treaties Secretariat.

2.1 The 1996 reforms were fully operational by 14 June 1996, only 6 weeks after they were announced, highlighting the Government's commitment to its reforms. Most submissions to this Review agreed that the 5 main elements of the reforms have been successfully implemented.

2.2 The Treaties Secretariat, a new unit established within the Department of Foreign Affairs and Trade (DFAT), has been responsible for managing the reforms and coordinating their implementation.

TABLING

2.3 The first of the 5 reforms was the requirement that all proposed treaty actions be tabled for at least 15 sitting days in both Houses of Parliament prior to the Government taking the final step to bind Australia under international law. During this time, the Parliamentary Joint Standing Committee on Treaties (JSCOT) holds hearings and prepares a report about the treaty. Fifteen sitting days (30 to 100 calendar days) has proved a manageable timeframe for JSCOT to scrutinise treaties.

2.4 Both the Government and JSCOT acknowledge that some international events may demand treaty action by the Government before the expiry of 15 sitting days. This exception has been used sparingly, and only where necessary to safeguard Australia's national interest. For example it has been used in relation to:

· the Bougainville Peace Monitoring Agreement;[3] and

· the 1996 Agreement with Japan concerning Tuna Long-Line Fishing.[4]

2.5 Another aspect of the introduction of the 15 sitting day requirement was its impact on bilateral treaty negotiations. In its response to the 1995 Senate Report[5] the Government recognised the need for a changed approach to negotiation of bilateral treaties, which usually entered force upon signature. Bilateral treaties are now implemented through a 2-stage process (signature followed by binding action) which accommodates JSCOT scrutiny.

NATIONAL INTEREST ANALYSES

2.6 The second reform was the requirement for a National Interest Analysis (NIA) to be prepared for each treaty. An NIA analyses:

· the forseeable economic, environmental, social and cultural effects of a treaty action;

· the obligations such action will impose;

· the direct financial costs to Australia;

· domestic implementation implications; and,

· the nature of consultation that has occurred.

2.7 The quality and content of NIAs has continued to evolve since the first NIAs were tabled on 21 May 1996. JSCOT has made valuable comments and recommendations about the need to include greater detail on consultation and improve the format of NIAs.

2.8 NIAs are tabled in Parliament, and are then made available on the internet with the treaty they accompany. They have proved to be both an important tool in the dissemination of information about treaty actions, and a valuable aid to JSCOT in its considerations. NIAs are discussed further at paragraphs 7.5-7.9.

PARLIAMENTARY JOINT STANDING COMMITTEE ON TREATIES

2.9 The third reform was the creation, on 30 May 1996, of JSCOT. Comprised of 16 members from both Houses, JSCOT is made up of Government, Opposition and minority parties as well as independent members. As at 30 June 1999, JSCOT had considered 137 treaty actions[6] and has tabled 22 reports. It has served as a medium for the dissemination in Parliament of information about treaties, and has provided a key forum for the public, interested groups, and State and Territory governments to express their views.

2.10 JSCOT's Resolution of Appointment allows it to inquire into and report upon:

· matters arising from treaties and related NIAs and proposed treaty actions presented, or deemed to be presented, to the Parliament;

· any questions relating to a treaty or other international instrument, whether or not negotiated to completion, referred to it by:

- either House of the Parliament; or

- a Minister; and

· such other matters as may be referred to it by the Minister for Foreign Affairs and Trade and on such conditions as the Minister may prescribe.[7]

2.11 JSCOT has interpreted its mandate broadly, and has taken the view that all treaties entered into before its creation have been tabled for its consideration. On this basis JSCOT has undertaken an inquiry into the implementation of a treaty that has been in force for Australia since January 1991 (the Convention on the Rights of the Child).[8] The Minister for Foreign Affairs also referred the draft Multilateral Agreement on Investment (MAI) to JSCOT while that proposed treaty was still under negotiation.

2.12 JSCOT has held as many hearings as possible at locations convenient to interested groups, and this has served to make the treaty-making process more accessible to the public. Proceedings have been advertised in major newspapers and the JSCOT Secretariat has contacted groups which may be interested in each treaty under consideration.

2.13 The second largest of the Parliamentary committees, JSCOT has proved active, productive and efficient. The Government appreciates the constructive scrutiny of treaties undertaken by JSCOT.

TREATIES COUNCIL

2.14 The fourth reform was the establishment on 14 June 1996 of the Treaties Council to facilitate greater consultation with the States and Territories. The Council consists of the Prime Minister, Premiers and Chief Ministers. It allows the States and Territories to draw to the Commonwealth's attention treaties of particular sensitivity and importance to them, and for the Commonwealth to maintain at the highest level its commitment to consultation. The Council has an advisory function to consider treaties and other international instruments of particular sensitivity and importance to the States and Territories. These may be considered by the Council on its own motion, or on reference from any State or Territory, a Ministerial Council, an intergovernmental committee of the Council of Australian Governments, or by the Commonwealth/State and Territory Standing Committee on Treaties (SCOT). The SCOT, which convenes twice each year, plays an important coordinating role for the Treaties Council. SCOT is comprised of officers representing the Premiers and Chief Minister's Departments of the States and Territories, and officers representing the Commonwealth Departments of Prime Minister and Cabinet, Foreign Affairs and Trade and Attorney-General's. Although the Treaties Council has met only once (in November 1997) it has the potential to improve consultation on treaty matters of importance to the States and Territories. The frequency of future meetings of the Treaties Council is a matter for agreement between the Commonwealth and the States and Territories.

AUSTRALIAN TREATIES LIBRARY

2.15 The fifth reform was the establishment by the Department of Foreign Affairs and Trade (DFAT), in conjunction with the Australasian Legal Information Institute, of the Australian Treaties Library on the internet (www.austlii.edu.au/au/other/dfat/). This database is the world's most complete, freely-available national database of treaty information. It contains a wide range of documents and information about treaties, including:

· all treaties in force for Australia;

· NIAs for all tabled treaties;

· lists of multilateral treaties under negotiation; and

· treaties signed by, but not yet in force for, Australia.

2.16 The database represents a quantum leap in information distribution. Hard copy of all information is available from DFAT upon request for persons who do not have access to the internet.

Summary

2.17 Since the 1996 reforms were announced the Government has tabled 135 treaties. JSCOT has engaged in effective scrutiny of treaties, and the preparation of NIAs has led to greater transparency. The placing of the Australian Treaties Library on the internet has enabled the distribution of extensive information on treaty issues to the general community.

3.1 In its response to the 1995 Senate Report, the Government stated that it would conduct a review 2 years after the 1996 treaty reforms had been in place.

3.2 In July 1998 the Prime Minister wrote to the Premiers and Chief Ministers to invite them to provide comments about the reforms and to make suggestions for improvements. The Minister for Foreign Affairs, the Hon Alexander Downer MP and the Attorney-General, the Hon Daryl Williams AM QC MP, wrote in similar terms to the JSCOT. The Department of Foreign Affairs and Trade (DFAT) and the Attorney-General's Department wrote advising of the Review and seeking comments from persons and organisations who had made submissions to the 1995 Senate Report, or to subsequent JSCOT inquiries. Comments were also sought from Commonwealth Departments and agencies.

3.3 In addition, advertisements in national and State and Territory newspapers in July 1998 sought views on the operation of the new treaty-making process. The Review was also advertised on the internet sites of DFAT and the Attorney-General's Department.

3.4 On 9 February 1999 a meeting to provide information to JSCOT about the Review was held with DFAT and the Attorney-General's Department.

3.5 The Review received 66 submissions (listed in the Appendix), including submissions from all State and mainland Territory Governments and 13 submissions from Commonwealth Departments and agencies. The JSCOT also provided comments. The Government appreciates the contribution made by all those who participated in the Review.

3.6 The issues addressed in the submissions included the role of States and Territories in treaty negotiations, the role and procedures of JSCOT, Government consultation in relation to treaty negotiations, the role of Parliament in the treaty-making process, and whether the Parliamentary treaty-making process should be set out in legislation.

4.1 JSCOT's main role is to inquire into and report upon treaties. In fulfilling its role, the Committee has played an important part in overcoming the perceived ´´democratic deficit'' of the treaty-making process. In particular, it has developed as a key forum through which comprehensive community consultation is facilitated, and has increased confidence in the treaty process.

TIMING OF JSCOT'S INVOLVEMENT

4.2 JSCOT's practice has been to inquire into and report on treaties as they are tabled, before the Government takes binding action. There are, however, 2 other stages at which a treaty could be considered by JSCOT within the terms of its Resolution of Appointment.[9]

4.3 Some submissions to this Review have suggested that it should be possible for JSCOT to inquire into a treaty during negotiations before the text, and Australia's position, have been finalised. This is provided for in the JSCOT Resolution of Appointment, and has already occurred during JSCOT's first term, with the consideration of the draft Multilateral Agreement on Investment, which was being developed by the members of the Organisation for Economic Cooperation and Development.

4.4 It may be appropriate, on occasion, for the Minister for Foreign Affairs to refer a treaty to the Committee during the negotiation stage, to assist the Government with making the decision whether to sign and subsequently ratify a treaty. Such a referral could only be effective if clear terms of reference were determined following close consultation with JSCOT (through its Chairman).

4.5 At the other end of the treaty-making process, in relation to treaties already in force, the Government notes that other Parliamentary committees may have specialised expertise on the subject-matter of these treaties, and there may be merit in considering this when determining the most suitable forum for reviewing such treaties. However, the Government is keen to strengthen the capacity of JSCOT to deal with current treaties and to address the new policy issues arising from them.

4.6 The Government is also aware of the limited resources of State and Territory governments, industry groups, interested groups and academics to monitor and contribute to JSCOT's consideration of treaties. The Government also seeks to make the best use of its resources, so it is prudent to avoid duplication of inquiries into a particular issue. This, or a premature inquiry, would unnecessarily stretch the resources of all participants in the treaty-making process.

TREATMENT OF MINOR TREATIES

4.7 Many treaties are based on Government-approved ´´templates''. These standard documents cover such bilateral issues as double taxation, extradition, law enforcement, mutual assistance, health and social security. Other treaties are subordinate to major multilateral treaties, simply implementing the policy under the main treaty. Examples include individual international organisations' operational agreements or technical arrangements. The characterisation of a treaty may be relevant in determining the intensity of the review process to be applied to it.[10]

4.8 JSCOT itself has recognised this aspect of the treaty-making process. Its First Report noted that:

1.20 The Committee will not examine all tabled treaties in detail. Some treaties or executive agreements, such as extradition agreements or double taxation agreements, will not warrant separate scrutiny on each occasion. Nonetheless the Committee reserves the right to examine the operation of such arrangements in general terms, should it so desire.

4.9 The Government welcomed JSCOT's approach, in particular, that separate scrutiny may not be warranted for certain treaties, and notes that this would reduce the burden on resources of all participants in the treaty review process (in particular, industry and community groups).

4.10 This practice of determining the level of scrutiny to be applied to a treaty functions well when the NIA clearly and succinctly summarises the issues. In relation to template treaties, the Government's practice is to indicate in the NIA how the specific treaty varies from the template. This practice was developed in response to comments from JSCOT.

4.11 The Government considers that JSCOT's current Resolution of Appointment is appropriate for its key role in the treaty-making process, and that the discretion of the Committee to inquire into any treaty, when tabled, should remain unfettered.

TABLING PERIOD

4.12 A number of submissions raised the issue of the adequacy of the period for tabling treaties in Parliament before binding action is taken. The period established in the 1996 reforms was at least 15 sitting days (usually 30 to 100 calendar days) of both Houses of Parliament. The period was recommended by the 1995 Senate Report and is consistent with other analogous Parliamentary tabling periods, for example, the period during which Parliament may consider a new regulation.

4.13 A tabling period of 15 sitting days provides a reasonable balance between the need to allow for sufficient Parliamentary scrutiny of treaty actions, and the need to implement a treaty as soon as possible. The Government notes that the ´urgency' exception, discussed at paragraph 2.3, has worked well.

4.14 Many of the submissions that commented on this aspect of the reforms did not appear to reflect an understanding of the difference between sitting days and calendar days. The criticisms of the tabling period raised in submissions related to broader concerns over adequate consultations. Such concerns have been addressed in consideration of other elements of the treaty-making process.

4.15 The issue of the adequacy of the tabling period was addressed by JSCOT in its First Report:

1.21 On 18 June 1996, the Committee advised the Minister for Foreign Affairs of its concerns that, in some circumstances, the 15 sitting day period in which treaties remain tabled could be insufficient for an inquiry and report to Parliament before binding treaty action is taken.

1.22 The Committee therefore intends to advise the Minister as early as practicable after each tabling that:

· if it is not possible to report within the 15 sitting day period on a particular treaty or treaties in a group, that a report will be tabled as soon as practicable.

...

1.23 It remains the Committee's expectation that binding action in the latter cases would be delayed until its report has been tabled.

1.24 The Minister's reply agreed with the approach set out above, noting the Committee's concern about the adequacy of 15 sitting days for inquiry and report. In many such cases, the Minister indicated it would be possible for the treaty action to be delayed. Such delays, he noted, would not be necessary often and the Government would accommodate requests for delays to taking binding action where compatible ´with national interests'.

4.16 The Government has, without exception, honoured this commitment and appreciates the consultative practices adopted by JSCOT to ensure there are no practical disadvantages caused by delayed reporting.

4.17 Accordingly, the Government considers that the balance currently struck in determining the length of the tabling period is adequate and appropriate.

5.1 The Government may, by ratifying a treaty, bind Australia at international law to the obligations under the treaty. The approval of the Parliament is not required for this ratification.[11] Of course, the Parliament has a central role in relation to the implementation of the obligations under a treaty if Commonwealth legislation is required for Australia to fulfil those obligations.

5.2 The 1995 Senate Report considered the issue of whether to introduce a requirement for Parliamentary approval prior to Australia's ratification of treaties. That Report concluded that the issue be referred to JSCOT, noting that other reforms recommended by the review would assist in curing some of the problems that a Parliamentary approval process would be designed to address. The Government response to that Report indicated that the experience to be gained from the reforms should be assessed before determining this matter, and that the Government would consider the issue as part of this Review.

5.3 A number of submissions to the Review addressed the issue of Parliamentary approval of treaties. The views ranged from saying that Parliamentary approval was unnecessary, to arguing that ratification of some treaties should be subject to approval by referendum. The main argument in favour of some form of Parliamentary approval is, in essence, that it could result in improved accountability, consultation and community awareness in relation to Australia's proposed ratification of a treaty.

5.4 The Government has carefully considered this issue, and concluded that a requirement for Parliamentary approval of treaties is not justified. This is because the reformed treaty procedures have themselves sufficiently improved public consultation and Parliamentary scrutiny. In particular, the procedures require that prior to binding action being taken a treaty must be tabled in Parliament, together with an NIA. Moreover, those treaties that would directly affect the rights and duties of individuals in Australia already require Parliament's consideration of the implementing legislation.

5.5 Further, all treaties are subject to inquiry by JSCOT and the Government has been careful to take JSCOT's recommendations into account. The significant contribution of JSCOT since its inception has strengthened the Government's view that more restrictive and formal Parliamentary sanction would not provide any advantages. The Government considers it appropriate and useful that the Parliament have a full role in considering, commenting on and making recommendations about the purpose and consequences of the Government's treaty proposals, and existing treaty obligations.

5.6 A procedure of Parliamentary approval (as opposed to the current system of Parliamentary scrutiny) would result in significant delays in the treaty process, without any significant benefits additional to those already achieved as a result of the reformed treaty-making process.

5.7 Recommendation 8 of the 1995 Senate Report was that legislation be enacted to establish a Joint Parliamentary Committee on Treaties. However, that report did not discuss in any detail the specific issue of whether such legislation was warranted. The Government response to this recommendation proposed that JSCOT be established by resolutions in both Houses of Parliament, noting that enacting legislation would involve delay in the implementation of the recommendation.

5.8 A number of submissions to the Review raised the broader question of whether the reformed Parliamentary treaty-making process (not only the establishment of JSCOT but also the requirement to table treaties and NIAs) should be given a legislative basis. The Government notes that the arguments in favour of and against a legislative basis for the treaty-making process are finely balanced. On the one hand, legislation would make it less likely that the process could be altered over time. However, legislation could reduce the flexibility of the process, and its capacity to adapt to changes over time. The Government continues to give this issue careful consideration, in light of the issues and reforms discussed in this Review.

6.1 The 1996 reforms included a number of developments designed to improve the quality of State and Territory participation in the treaty-making process. These developments are set out in the 1996 Principles and Procedures for Commonwealth-State Consultation on Treaties (1996 Principles and Procedures), which were adopted at the Council of Australian Governments meeting on 14 June 1996, and include:

· the establishment of a Treaties Council consisting of the Prime Minister, Premiers and Chief Ministers, as a high-level advisory body to consider treaties of particular importance and sensitivity to the States and Territories; and

· an enhanced role for the Standing Committee on Treaties (SCOT) (which comprises senior Commonwealth and State and Territory officials), including the identification of treaties of particular sensitivity and importance to the States and Territories which might be considered by the Treaties Council.

6.2 In addition to these specific developments, there are also other opportunities for the States and Territories to contribute their views to the treaty-making process, most particularly by involvement in JSCOT inquiries.

6.3 Submissions were made to the Review by all of the States and mainland Territories. These submissions indicated that the 1996 reforms had resulted in a significant improvement in the nature and quality of State and Territory involvement in the treaty-making process, particularly in the nature and quality of consultations. However, some potential improvements were identified.

6.4 The primary concern raised by the State and Territory government submissions related to the adequacy of consultation on proposed treaty actions. In particular, there were concerns that States and Territories were provided with either too little or too much information, and that the time allocated for providing comments was sometimes inadequate, particularly in relation to NIAs.

6.5 Effective involvement in the treaty-making process by States and Territories largely depends on them having enough information at a sufficiently early stage to enable a substantive contribution to be made. Frequently, the Commonwealth itself only receives documents for international meetings at a late stage. Further, documents relevant to many international negotiations are available on the internet sites of various international organisations and links will be established through the Treaties Library for ease of access to these documents. Nevertheless, the Government will continue to ensure that, where appropriate, Commonwealth agencies that are leading treaty negotiations consult with States and Territories at a sufficiently early stage, consistent with the 1996 Principles and Procedures. This should improve the quality of State and Territory participation in treaty development. In this respect, the Government notes that the 1996 Principles and Procedures make provision for:

· using existing Ministerial Councils and consultation bodies for detailed discussions between the Commonwealth and States and Territories about treaties;

· providing States and Territories with a report on the outcome of negotiating sessions of sensitivity and importance to the States, whenever practicable.

6.6 A number of submissions suggested that State and Territory parliaments should have a formal role in approving treaties, at least those of particular interest to the States and Territories. The Government considers it would be inappropriate for State and Territory parliaments to have a formal role in the treaty-making process. The reformed treaty process is adequate to enable the views of the States and Territories to be taken into account in treaty negotiations (in particular, NIAs are required to address issues such as what consultation has occurred, the reasons it would be in Australia's interests to become a party to the treaty, and how the treaty will be implemented domestically). A formal approval role for State and Territory parliaments would impose lengthy delays on the treaty-making process. Further, State and Territory parliaments currently have a formal role in treaty implementation in those cases where it is appropriate for Australia's treaty obligations to be implemented through State and Territory legislation.

6.7 Another issue raised by the State and Territory submissions was whether Australia should require federal clauses[12] to be inserted into relevant international conventions. Federal clauses limit the application of a treaty to areas of a federal government's constitutional authority. The 1995 Senate Report found that for Australia they would present considerable practical and political difficulties. There are no plans to seek federal clauses in future treaties, although the Government will continue to make a federal statement[13] upon signature of a treaty when appropriate.

6.8 Some submissions suggested that the 1996 Principles and Procedures should be contained in an intergovernmental agreement. The Government does not consider there would be any advantage in changing the status of the current arrangements, although notes this issue could be considered by the Treaties Council.

6.9 Another issue raised by the submissions was the level of representation of State and Territory interests on Australian delegations at treaty negotiations. The Government acknowledges that such representation can assist both in informing the delegation of State and Territory views and in providing expert technical assistance. Consistent with the 1996 Principles and Procedures, the Government supports representation of State and Territory interests on delegations to international conferences that deal with relevant issues, provided that representation is funded by the States and Territories themselves.

CONSULTATION

7.1 Consultation was a key theme of the 1996 reforms. The Government has endeavoured to provide the wider community with opportunities to make meaningful contributions to the Government's assessment of the national interest. The standard process of consultation includes writing to Ministers and Parliamentarians, discussion in the media, and involvement of organisations active in the relevant fields. Special channels for public input on treaties include the twice-yearly tabling and publication of lists of multilateral instruments under negotiation or consideration (with contact details), consultation undertaken by Commonwealth Departments and agencies, and JSCOT's public inquiries and hearings into all proposed actions.

7.2 The current process aims to achieve thorough, well-targeted consultation at the earliest stage compatible with treaty law, international practice, and the need for expeditious policy development. This has been a theme of JSCOT reports, and improved consultation is increasingly evident in tabled NIAs. A comprehensive network of consultations exists. The Government response to JSCOT's recommendation about a treaty typically comprises the final formal stage of consultation and information dissemination about a particular treaty. The Government endeavours to complete its responses to JSCOT reports in a timely fashion. However, many treaty matters are complex and the Government places emphasis on thorough and careful consideration of all relevant issues. The Government is also mindful that the complexity of treaty issues affects JSCOT as well, and values JSCOT's cooperation in meeting practical deadlines.

7.3 Consultation processes are moulded for each particular treaty and its negotiations, so it is not constructive to prescribe a specific process for use in all cases. However, there are some key elements:

· applying technology to make consultation more effective and efficient (for example, using electronic mail to facilitate discussion, and internet webpages to distribute information about a proposed treaty);

· ensuring consultations occur at an appropriate time in the process (it will usually be appropriate for consultations to begin during the negotiation phase of a treaty's development);[14]

· using the existing consultation networks of the Commonwealth Department or agency that is coordinating consultations about a particular treaty (these typically include State and Territory governments, and forums of industry and community groups);[15] and

· using issue-specific consultative processes, which may be particularly useful where the impact of a proposed treaty is likely to be confined to identifiable groups, or the proposed treaty's subject-matter is unique.[16]

7.4 The Government is committed to consultation that is comprehensive, flexible, and effective, and is responsive to new methods to include the broader community.

NATIONAL INTEREST ANALYSES

7.5 The commitment to preparing a NIA for each treaty was a key element of the Government's 1996 reforms. As the Minister for Foreign Affairs stated when describing the reforms to Parliament on 2 May 1996, NIAs facilitate Parliamentary and community scrutiny of treaties, and set out the reasons for the Government's decision that Australia should enter into the particular treaty. These reasons will include the advantages of Australia entering into the treaty and the disadvantages if it does not do so.

7.6 The structure and content of NIAs has been evolving and continuously improving, and the Government has greatly appreciated the constructive approach taken by JSCOT to improving their quality. For example, the current NIA guidelines now suggest, for "template" treaties, that comparison be made with the template to assist JSCOT and others to quickly identify the key issues.

7.7 Some State and Territory submissions to this Review suggested there was a need for NIAs to specifically address the issue of the Federal/State balance of power. This issue, if relevant, is summarised in the consultation section of the NIA and can also be addressed in any submission made to JSCOT.

7.8 Other submissions have suggested, as part of a desire for early consultation, that draft NIAs be prepared and distributed as early as possible. Although it is not appropriate to prescribe a timeframe for the consultation process of each treaty, preparation and early distribution of information that might be contained in the NIA could assist with consultation.

7.9 NIAs bear some similarity to legislative Regulation Impact Statements and Explanatory Memoranda. In fact, it is possible that in implementing a particular policy, all 3 documents may be required. While some consistency between these documents may be useful, the purpose of each document is different. Government Departments and agencies have sought guidance on how to maintain an appropriate level of consistency between documents, and they are provided with regularly-updated guidance on preparing NIAs, including how to maintain an appropriate level of consistency between documents.

TREATIES INFORMATION AND AWARENESS

7.10 The establishment of the Australian Treaties Library on the internet (www.austlii.edu.au/au/other/dfat) was the fifth element of the 1996 reforms. The Australian Treaties Library website has been strongly endorsed by its users, which include Commonwealth, State and Territory governments, Members of Parliament, the legal profession, students, academics, libraries and the general public.

7.11 The Australian Treaties Library already contains the equivalent of more than 26,000 pages of treaty texts, and is considered by the Government to be the world's most advanced on-line national treaty information system. It provides free access to all treaties which Australia has since Federation become (or taken action to become) a party. It also includes treaties to which Australia is currently considering becoming a party, including details of multilateral treaties still under negotiation. Related NIAs are also available on the website. The Australian Treaty List, summarising the treaties, is linked to recently installed, easy-to-find, subject and keyword indexes. Links between the indexes and the treaty texts have also been established, thereby addressing suggestions for improving the "user friendliness" of the website made in some submissions to the Review. The Government will continue updating the data available on the website, with particular regard to user feedback. For example, in future the website will include improved links to NIAs and ´status lists' showing which countries have joined treaties to which Australia is a Party.

7.12 The establishment of the JSCOT website[17] containing the full text of JSCOT Reports, has complemented and expanded the distribution of treaties information in ways not foreseen by the original reform proposals, and represents a significant and welcome development.

7.13 The Treaties Secretariat of DFAT maintains a treaties information telephone service (telephone: 02-6261-3509) and provides texts of treaties to people unable to access them by other means. Much of the information is also tabled in Parliament or is available for purchase from Government bookshops.

7.14 Australia further demonstrated its commitment to the wide dissemination of treaty information when it sponsored the consensus resolution of the United Nations General Assembly in December 1996 which established an international database of treaties (www.un.org/Depts/Treaty). This database is continually being updated and expanded and currently contains the texts of over 30,000 bilateral and multilateral treaties. The treaty texts are available in their original languages as well as in English and French.

Instruments of less than treaty status

7.15 Another issue raised in submissions is the treatment of instruments of less than treaty status. These documents are often titled ´´memoranda of understanding'', ´´arrangements'' or "declarations". They are intended to have moral, political or practical effect, but as they are not intended to be legally binding, the rigorous scrutiny of the treaty-making process is not appropriate for them. The Government considers that appropriate public consultation and Parliamentary scrutiny of these arrangements can be more effectively achieved through other means, including consideration by subject-related Parliamentary committees.

1. Accession - Accession in a single act whereby a State expresses its consent to be bound, instead of signature followed by ratification. Accession is only used in the case of multilateral agreements, usually when the agreement has been previously signed by other States.

2. Agreed Minute - Agreed Minutes usually record briefly decisions reached between two delegations. It may be annexed to an agreement to deal with administrative details.

3. Agreement - International agreements are binding documents under international law. These agreements may take a variety of forms and titles, for example, "convention", "protocol", "treaty'', "executive agreement'',"exchange of notes'', "exchange of letters'' or simply "agreement''. They can be bilateral (between two parties) or multilateral (among more than two parties). A particular agreement is binding under international law if the parties to it intend it to be so.

4. Arrangements of less than treaty status - Most countries, including Australia, in dealings between states, governments and agencies of government and international organisations use instruments in which the parties do not intend to create, of their own force, legal rights or obligations, or a legal relationship, between themselves. Such instruments, whether in the name of the government or agencies, are termed "arrangements of less than treaty status''. The most appropriate form for an arrangement of less than treaty status is often a memorandum of understanding, although records of discussion, joint communiques and exchanges of notes or letters recording understanding are common.

5. Consent to be bound - A party is obliged to observe the provisions of a treaty once it has consented to be bound by it, or from a specified time after that consent. There are several ways of consenting to be bound by a treaty:

· signature alone (definitive signature);

· signature confirmed later by the exchange of third person Notes;

· the exchange of Notes or Letters which together constitute a treaty;

· signature confirmed by a later step such as ratification or approval;

· accession (also sometimes called acceptance or adhesion).

6. Contracting State - Contracting State means a State which has consented to be bound by a treaty whether or not the treaty has entered into force.

7. Convention - This term is frequently employed for agreements to which a large number of countries are parties.

8. Exchange of Notes constituting an Agreement - As a general rule this form is used for inter-Governmental agreements of lesser importance. The exchange may be used to make a new agreement, to modify, amend, terminate or extend an existing bilateral agreement, etc. The Exchange of Notes consists of an exchange of diplomatic correspondence in formal terms usually between a Minister and the Ambassador/High Commissioner or Chargé d'Affaires. Notes are drafted in consultation with the Department of Foreign Affairs and Trade Legal Adviser, and it is customary for both Notes to be approved in draft by the Governments before they are exchanged.

9. Full Powers - Full powers are formal instruments signed by the head of State or Government or the Foreign Minister empowering the person (or persons) named to sign a treaty on behalf of the State he or she represents.

10. Initialling - Initialling signifies provisional assent to the text of a treaty by delegates following negotiation. It authenticates the text but does not bind governments to its provisions.

11. Memorandum of Understanding (see paragraph 4)

12. Negotiation of Treaties - The text of a bilateral treaty is negotiated by officials of the two countries; that of a multilateral treaty is usually negotiated at a diplomatic conference.

13. Notification of completion of procedures - Bilateral agreements are sometimes signed before a Government has the necessary legislation in place to enable it to implement the provisions. In such cases the text will provide for each country to notify the other when the internal procedures required to be undertaken have been completed. These agreements usually come into force on the date of the Note containing the later notification.

14. Obligations under a Treaty - Once a treaty has entered into force, the parties' obligations are those set out in the text of the treaty. A signatory of a treaty which has not yet entered into force is obliged to refrain from acts which would defeat the purpose and object of the treaty.

15. Party - Party means a State which has consented to be bound and for which a treaty is in force.

16. Procès-verbal - Proces-verbal in the treaty context is used to set out agreed corrections to a treaty already signed. This procedure is also known as rectification.

17. Protocol - This usually denotes an agreement amending or supplementing an existing convention or agreement.

18. Ratification - Ratification is confirmation of signature and signifies the intention to be bound by the provisions of a treaty.

19. Registration of treaties - In accordance with Article 102 of the United Nations Charter, treaties are registered with the United Nations, which publishes the texts and maintains treaty records.

20. Reservations - A reservation is a means by which a state purports to exclude or modify the legal effect of specified provisions of a treaty. Reservations arise in practice only in connection with multilateral treaties when there is an aspect of the treaty which a state finds unacceptable. Some multilateral treaties may expressly prohibit the making of reservations. They are inapplicable to bilateral treaties because any concern by a party about the acceptability of a provision should have resulted in its redrafting in the negotiating process.

21. A Signatory - A signatory is a State which has signed an agreement. The agreement may not necessarily be in force for that State, or generally.

22. Signature - Signature is the act whereby a State expresses its consent to the text of a treaty but not necessarily its consent to be bound by its provisions. Once a State has signed a treaty it is not obliged to ratify it. However, the Australian government's policy is not to sign a treaty without the intention to ratify it at a later date.

23. Statements and declarations which are not reservations (see also paragraph 20) - A "statement of interpretation", a "declaration" or a "statement'' are unilateral instruments. Generally they will not be reservations in that they do not purport to modify the application of a treaty. Thus a "statement of interpretation" made by a party to a treaty which sets out a state's opinion on the meaning of a provision of a treaty will not be a reservation so long as it is a plausible explanation. So too a "declaration" or a "statement" about how a party intends to implement a treaty is not a reservation if the method of implementation is not constrained by the treaty itself. On the other hand, the definition of a reservation makes it clear that any of these unilateral instruments would be a reservation if it were to go beyond its ostensible purpose and purport to change or modify the legal effect of the treaty. For this reason, their wording requires careful consideration.

24. Treaty - a treaty is an international agreement concluded in written form between two or more States (or other entities such as an international organisations having international personality) and governed by international law. A treaty, which (see above) may take the form of a convention, an agreement or a protocol, usually consists of a title, a preamble, recitals, a series of numbered articles and a conclusion, which is immediately followed by the signatures.

25. Withdrawal from a Treaty - A treaty usually includes provision for its termination or for the withdrawal of a party, as appropriate to the subject matter of the treaty. Multilateral treaties typically provide that parties may withdraw on twelve months notice. Some bilateral treaties terminate automatically after a fixed period or when the projects they deal with are completed. Notice periods for termination by one side will usually be the minimum required for an orderly winding up of activities under the treaty.

¹ This paper is based on Appendix 2 "Glossary of terms used in connection with international instruments" to the UK Foreign and Commonwealth Office's International Agreements: Practice and Procedures - Guidance Notes, published in September 1992, and has been expanded and adapted to reflect Australian practice. (Appendix 2 of the "Guidance Notes" is cited in the British Yearbook of International Law, Vol 63, 1992 at page 629.)

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U.S. Department of State Home Page http://www.state.gov/

- Private International Law Database http://www.his.com/~pildb/contents.html

- Treaties and Other Legal Issues gopher://dosfan.lib.uic.edu:70/1D-1%3A7636%3A6Treaties

- Treaties in Force http://www.acda.gov/state/

U.S. House of Representatives - Internet Law Library - Treaties and international law http://law.house.gov/89.htm

Western European Union http://www.weu.int/eng/home.html

- Treaties http://www.weu.int/eng/treaties.htm

Wiretap Electronic Text Archive http://wiretap.spies.com/

 - Gopher Menu gopher://wiretap.spies.com:70/11/Gov/Treaties/Treaties

World Intellectual Property Organization http://www.wipo.org/eng/index.htm

- Contracting Parties or Signatories of Treaties Administered by WIPO; Members of the WIPO Governing Bodies and Committees http://www.wipo.org/eng/ratific/index.htm

- Texts of Treaties Administered by WIPO http://www.wipo.org/eng/iplex/index.htm

World Trade Organization http://www.unicc.org/wto/

 - Summary of the Final Act of the Uruguay Round http://www.unicc.org/wto/ursum_wpf.html

World War I Document Archive (World War I Military History List) http://www.lib.byu.edu/~rdh/wwi/

 - Conventions and Treaties http://www.lib.byu.edu/~rdh/wwi/treaties.html

[1] Senate Legal and Constitutional References Committee Trick or Treaty? Commonwealth Power to Make and Implement Treaties November 1995.

[2] See: www.austlii.edu.au/au/other/dfat/infokit.html.

[3] Protocol Concerning the Peace Monitoring Group Made Pursuant to the Agreement between Australia, Papua New Guinea, Fiji, New Zealand and Vanuatu Concerning the Neutral Truce Monitoring Group for Bougainville Done at Port Moresby on 5 December 1997 (ATS (1998) 12).

[4] Subsidiary Agreement between the Government of Australia and the Government of Japan concerning Japanese Tuna Long-Line Fishing (ATS (1996) 11).

[5] Senate Legal and Constitutional References Committee Trick or Treaty? Commonwealth Power to Make and Implement Treaties November 1995.

[6] This figure includes a treaty tabled prior to May 1996 (the Convention on the Rights of the Child (under the auspices of the UN) (ATS (1991) 4)) and a treaty signed although not ratified by Australia prior to May 1996 (the United Nations Convention to Combat Desertification in those Countries experiencing Serious Drought and/or Desertification, particularly in Africa) but does not include the draft Multilateral Agreement on Investments.

[7] House of Representatives, Votes and Proceedings, No. 15, 30 May 1996, page 235

[8] Convention on the Rights of the Child (under the auspices of the UN) (ATS (1991) 4).

[9] The standard stages of the multilateral treaty making process are:

* negotiations, which conclude at a Diplomatic Conference, with a treaty's terms agreed in a Final Act;

* signature, available for a defined period, which may be quite short;

* ratification (or accession), which is the binding commitment to the obligations of the treaty; and

* entry into force, which is usually a specified time after a minimum number of ratifications.

[10] The characterisation of a treaty should not be a mechanical one. For example, the General Agreement on Trade in Services' (GATS) Fifth Protocol which is intended to reduce financial services barriers would facilitate substantial commercial benefits to Australia, despite being subsidiary to the GATS.

[11] The history and background of this issue is discussed at Chapter 16 of the 1995 Senate Report.

[12] A federal clause provides that international responsibility is accepted by federal Parties only for matters within the constitutional authority of the federal government.

[13] A federal statement would indicate, for example, that under Australia's constitution legislative, executive and judicial power are shared between the Australian Government and State and Territory governments, and that the implementation of the treaty in Australia will be effected by the various governments at various levels having regard to their respective constitutional powers.

[14] For example, the Government's current wide-ranging consultations regarding the agenda for further World Trade Organisation negotiations were begun at the very early stage of the negotiations.

[15] For example, DFAT's existing broad consultation network was successfully used to undertake negotiations on the question of whether Australia should ratify the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (ATS (1999) 3).

[16] Such processes have been used, for example, in relation to ascertaining Australia's position on the current multilateral negotiations for a draft convention relating to persistent organic pollutants.

[17] The address of the JSCOT website is: www.aph.gov.au/house/committee/jsct/index.htm.

The Timor-Leste Institute for Development Monitoring and Analysis (La’o Hamutuk)
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