Dick Adams (Lyons, Australian Labor Party) Share this | Link to this | Hansard source

It is a pleasure to be here today to speak again on this report of the Joint Standing Committee on Treaties, Report 78: Treaty Scrutiny: a ten year review and the treaty-making process of the parliament. The 78th report deals with the seminar which the parliament and the treaties committee held on 30 and 31 March this year to mark 10 years of operation of the Joint Standing Committee on Treaties, which has become known as JSCOT.

Under the Australian Constitution, treaty making is the formal responsibility of the executive government. The Constitution does not confer on the parliament any formal role in treaty making. Nevertheless, through the work of JSCOT, the parliament plays an important role in examining all proposed treaty actions tabled in the parliament. The resolution of appointment of the Joint Standing Committee on Treaties allows it to inquire into and report upon: matters arising from treaties and related national interest analyses and proposed treaty action presented or deemed to be presented to the parliament; any questions relating to a treaty or other international instrument, whether or not negotiated or completed, referred to the committee by either House of the parliament or by a minister; and such other matters that may be referred to the committee by the Minister for Foreign Affairs and on such conditions as the minister may prescribe.

Prior to the establishment of JSCOT, during the 1970s treaties were tabled in parliament but often in a manner which prevented meaningful parliamentary scrutiny or input. Treaties were tabled in bulk approximately every six months and often after they had entered into force. By the 1990s Australia had entered into a period of negotiating a broader range of treaties, some of them quite controversial. There was also a growing awareness that international obligations affected domestic legal regimes and policy responses to a wide range of national issues, and a recognition that parliament ought to be able to scrutinise Australia’s international treaty obligations. JSCOT was established in May 1996. I was one of the original members of that committee.

After 10 years of JSCOT it was fitting that a seminar be conducted to assess the 1996 reforms and to look more broadly at the role of the legislation in the treaty-making process both here and overseas. Over the last 10 years significant steps have been taken to improve the openness and transparency of treaty making in Australia. Proposed treaty actions are tabled in parliament before they enter into force, and treaty texts and the rationale for entering into them are made readily accessible to the people of Australia. There are also mechanisms in place to ensure that the states and territories are consulted on actions which may affect them.

Although the mechanisms have existed for some time, few of the states have taken advantage of them and this may be because they are unaware of the significance some treaties have, particularly those that relate to trade. The Treaties Council has only met once and this was a mechanism set up to allow states to have input; however, this may not be the appropriate way to consult. In the view of Mrs Twomey, who wrote the original report for the Senate that facilitated the coming into being of JSCOT:

In some ways JSCOT seems to have taken over the functions of the Treaties Council to the extent that it is a public forum at which the states can make representations and matters can become public and discussed.

To some degree she is totally right.

It would be useful to have more information when we probe the reasons why such a treaty came to pass. But the resources of the committee are limited and really need some boosting. We are imposing costs on the Public Service, knowing that they are answerable to a parliamentary process and scrutiny and are a bit more inclined to make sure that they have the reason for why they are doing something. Members and senators should lobby for more resources for the committee to assist committee members to understand more clearly the impact that treaties can have.

A joint house committee is a very good idea and is of course a good mechanism for probing the public servants that come before it. It allows the analysis of why the treaties are being discussed and ratified. There is usually a year’s notice before they are finalised or changed and finished with. Some of the new treaties include many things that have appeared in need of a treaty since 9-11 and the increase in terrorism, with most of those areas dealing with things such as plastic explosives, money laundering, port security and giving a focus to national security in many ways. That committee has dealt with many of those treaties in that time. I am sure many more will be developed in coming years.

One of the suggestions I made to improve scrutiny was to allow members to speak to reports in this chamber, as I am doing now on this report. Many members do not get the opportunity to speak on treaties issues now. They only get time if the treaty becomes controversial and more time is allocated to it. Normally only the chair and the deputy chair get to speak on tabled reports. I remember the one on the WTO, which a lot of people had genuine concerns about and we needed plenty of information about. I think the committee played a very good role in taking public submissions and opening that up as a public debate. I think that was a very good one.

The Australia-US Free Trade Agreement was another one which was taken on. I get concerned about whether the resources of the parliament and the committee system are able to gather enough information or all the information that is received by this committee from the public. I think that is a weakness in the process. I think all the evidence in the submissions received by this committee when you get to a substantial matter like the US free trade agreement is just too much for a committee secretariat or the parliament to deal with. We need to have resources for that.

Being a member of the Publications Committee and someone who gave a tick to the closing of the government shops in our capital cities because we were going to put everything on the web, I think we are lacking in the process and we need to lift our game in that area so that the huge amounts of evidence and the matters that come before this parliament in the committee process can be put on websites so that the general public can have the transparency that I think we are all striving for. Australian citizens have a right to have that information and need an open committee system of the parliament to do that. As I said, the closure of the bookshops put some pressure on that.

There should be more public hearings on controversial issues. It is essential that the committee and JSCOT do so. The chair of that committee is in the chamber today. He is probably the least travelled chair of JSCOT we have had. I have often said to him that I think opening up and taking the committee out to the public to take submissions and evidence from right around Australia is an important part of this committee’s work—although he may have got caught up in a lot of treaties that have not had or needed to have public involvement or that the public have not wanted to be that much involved in. I am pleased to be able to continue here today and, as I said, I really think it is important that we have discussions here about the reports that come down from the treaties committee.

Andrew Southcott (Boothby, Liberal Party) Share this | Link to this | Hansard source

by leave—I am pleased to speak to Report 78: Treaty scrutiny: a ten year review, which covers a treaty seminar held by the Joint Standing Committee on Treaties on 30 and 31 March this year. We were very fortunate to have a whole range of speakers from the federal parliament, the state parliaments and the bureaucracy, as well as some international speakers. We kicked off with a function with the presiding officers—the Speaker and the President of the Senate—and we had some great addresses from the Minister for Foreign Affairs and the shadow minister for foreign affairs the previous night. The seminar was divided into four sections. Seminars like this play a very important role in reflecting on the parliament’s role in getting an interaction between academics who have this interest, the diplomatic corps, the bureaucracy, state and territory governments, international speakers and, of course, federal parliament.

First of all we had reflections on a decade. The previous speaker, the member for Lyons, has been on the committee for the 10 years of its history, so the corporate memory of the committee is tied up in the member for Lyons. He has been involved in all the treaties. I think he devastated the Treasury people when he said that the tax agreements were not terribly interesting.

Dick Adams (Lyons, Australian Labor Party) Share this | Link to this | Hansard source

Double taxation.

Andrew Southcott (Boothby, Liberal Party) Share this | Link to this | Hansard source

Double taxation agreements—and they have promised to address that and jazz up their presentation. Ms Devika Hovell from the Gilbert and Tobin Centre of Public Law at the University of New South Wales had a critical analysis of the committee and had a number of suggestions. She felt that it was important to have parliamentary ratification of treaties. This is done in some other jurisdictions. It has not been the practice in Australia, although to enter into force in Australian law it is often required that legislation be passed by the Australian parliament. Neil Roberts, from the Queensland parliament, spoke and he had a number of suggestions about NIAs, about looking at them being made available much earlier and involving the states at an earlier stage.

The second part looked at treaty making and review in a federal system. We heard from Petrice Judge, who has been involved in the Joint Standing Committee on Treaties. She is from the Office of Federal Affairs, Department of Premier and Cabinet in Western Australia. Then we heard from Anne Twomey, who was involved in the original Senate committee report in 1995 called Trick or treaty? Commonwealth power to make and implement treaties. Many of those reforms have been adopted. Probably the most important ones have been the adoption of the Joint Standing Committee on Treaties and the national interest analysis. We also heard from Richard Herr of the University of Tasmania.

At lunch we had a very challenging and, for some of the participants, very confronting address from Greg Sheridan. It was certainly a very lively address. Unfortunately that is not in the report—we did not have a transcript of it—but those who were there would certainly remember it. In the third session Michael L’Estrange spoke about free trade agreements and the resources being put into them. Greg Rose spoke about the treaties with our regional neighbours in the South Pacific, specifically from the point of view of seeing a much greater use of cooperation agreements. There was talk about the enhanced cooperation program with Papua New Guinea to provide policing to Papua New Guinea, which was struck down by the Supreme Court of PNG, and cooperation agreements between our departments helping people with finance and so on. They are many of the treaties that we see involving a degree of cooperation with countries in the region.

We also heard from Professor Aynsley Kellow from the University of Tasmania, who spoke about climate change treaties and looked at Kyoto and also at the Asia-Pacific Partnership on Clean Development and Climate, and who thought that this was probably the way to go in the future as it addressed the involvement of business, technology and so on. Lastly, we heard from two international speakers, Dr Palitha Kohona, an Australian and a former DFAT officer who was the head of the treaty section at the United Nations, and Ms Dianne Yates, who chairs the Foreign Affairs, Defence and Trade Committee in the New Zealand parliament. As is the case with many other Westminster parliaments, the New Zealand parliament does not have a specific treaties committee, so it is often done on a more ad hoc basis, and sometimes the treaties will be looked at by the foreign affairs committee.

In conclusion, the breadth of treaties that the treaties committee gets to consider is enormous. Some recent ones include scientific balloons being launched from Alice Springs, an agreement between Australia and the United States; and the optical telescope at Siding Spring, an agreement between Australia and the United Kingdom. We do see an enormous breadth of treaties. This is nothing new. Even before Australia became a federation we entered into treaties. Some of the oldest ones involve things like the International Postal Union—the International Telegraph Union, as it was then. Before we became a federation, many of our colonies were members of this organisation.

In its 10 years in operation the treaties committee has presented 77 reports. It has looked at something like 380 treaty actions. It has only ever knocked back one treaty—a treaty of amity and cooperation with Kazakhstan. The treaties committee has often delivered reports which are critical of either the national interest analysis or the consultation—they are a couple of the areas which have been focused on.

Debate (on motion by Ms Hall) adjourned.