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September 2012

CRU intern, Sophie Maltabarow, has contributed the following blog:

Bob Katter’s campaign against free trade faced another set back in August, with the Joint Standing Committee on Treaties (JSCOT) recommending that his Treaties Ratification Bill 2012 not be passed. While academic opinion regards the Bill as likely to be constitutionally valid, it would present some serious practical and political implications for treaty-making in Australia.

Mr Katter introduced the private member’s bill on 13 February 2012. His Australian Party’s website expresses concern about free trade agreements and states that it ‘is committed to providing support and protection to Australian industries and reversing this madness, bringing jobs back home and reviving our once proud manufacturing and agriculture industries.’ The Treaties Ratification Bill forms part of the Australian Party’s policy platform, which also includes preventing any further free trade agreements and ensuring that, where practical, all Governments purchase only Australian goods.

The Bill has only one substantive provision. It states:

'The Governor-General must not ratify a treaty unless both Houses of Parliament have, by resolution, approved the ratification.’

The effect of the provision is to make positive approval by both Houses of Parliament a condition precedent to the ratification of any treaty by the executive government.

Treaty ratification in Australia – a democratic deficit?

Katter is not the first to raise the issue of parliamentary approval of treaty ratification. The power to enter into a treaty is an executive power, but many have raised concerns that there is a democratic deficit in treaty-making and proposed measures to ameliorate it. In 1983, Senator Harradine tried and failed to establish a Senate Standing Committee on Treaties. The Australian Democrats introduced a Parliamentary Approval of Treaties Bill in 1994, but it was not passed. The Senate Legal and Constitutional References Committee, in its Trick or Treaty? Report in 1995 considered the question of parliamentary approval of treaty ratification, but opted first to try greater parliamentary scrutiny through the establishment of JSCOT and other accountability measures such as the tabling of treaties and the publication of national interest analyses. These measures were introduced in 1996 and for a time quelled concerns about a democratic deficit in treaty-making.

Bob Katter believes that the current measures do not go far enough. His Bill requires positive approval by both Houses of Parliament before the executive may enter into any treaty. However, the Bill lacks the subtlety and flexibility of the current arrangement. It fails to address the different requirements of urgent or sensitive treaties, and also the large number of administrative or minor treaties. Further, it does not address parliamentary involvement in treaty amendments or withdrawals.

Constitutional questions

The question raised is whether Parliamentary approval as a condition precedent to treaty ratification by the executive is constitutionally valid. The power to enter into a treaty is an executive power, exercised under s 61 of the Constitution, whereas the power to implement the treaty by legislation is exercised by the Parliament under s 51(xxix) of the Constitution. While it is undisputed that the Parliament can legislate to abrogate the executive’s prerogative powers, it is unlikely that Parliament could go so far as to confer executive powers upon itself. This would threaten the separation of powers, to the extent that it exists, between the Parliament and the Executive.

Constitutional law experts Professor Twomey and Professor Williams, both witnesses at the JSCOT Inquiry’s public hearing, were of the opinion that parliamentary approval prior to treaty ratification would most likely be constitutionally valid. Legislating to create a condition precedent does not go so far as to usurp the executive’s prerogative power to negotiate and enter treaties themselves. The Bill merely modifies this power, and this modification is likely to be within the Parliament’s legislative powers.

Practical and political issues

Professor Twomey, in her submission to the Inquiry, noted that aside from constitutional issues the Bill raises a number of practical difficulties. First, requiring positive approval of all treaties by both Houses of Parliament would lead to an ‘unwieldy and impractical’ demand on Parliament’s time. JSCOT has reviewed over 600 treaties since 1996, an average of almost 40 treaties per year. The majority of these treaties are uncontroversial. Even Bob Katter conceded in Parliament on 25 June that the practical effect of the Bill would be to ‘gum up the operations of the Parliament of Australia,’ which suggests that Mr Katter intends to use this Bill to limit the number of treaties Australia enters into. The JSCOT report commented that this isolationist approach is ‘unrealistic and counter to Australia’s national interest’ in the 21st century. Second, the Bill’s blanket requirement for Parliamentary approval of treaties does not allow any flexibility to deal with urgent treaties. As it stands, the Bill would seriously limit Australia’s ability to act in the case of an international emergency.

The Bill raises further political difficulties because it requires the approval of both Houses of Parliament. In recent Australian politics, minor parties or independents have often held the balance of power in the Senate. Mr Laurie Ferguson voiced his concern during parliamentary debate, arguing that the effect of the Bill would enable minor parties in the Senate to hold the government to ransom and potentially cripple Australia’s capacity to conduct international negotiations. On this basis, JSCOT’s Inquiry into the Treaties Ratification Bill 2012 recommends that the bill should not be passed.

Mr Katter may have seen the Treaties Ratification Bill 2012 as an ingenious way to rein in the growing number of international free trade agreements. But the JSCOT report makes clear that the Bill’s one blanket provision is insufficient to deal with magnitude and complexity of Australia’s international agreements. The Bill is unlikely to pass.