Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Hansard source

I welcome Senator Wong's enthusiastic support for the findings of the committee. I suggest that Senator Wong take a look at some of the comments of the likes of the member for Hindmarsh on these topics. She might find that they are not in accordance with some of the strong views of the Minister for Trade or others.

The Treaties Committee considered these issues during its study of the Australia-Chile Free Trade Agreement in 2008. At the time, the committee recommended that there could be more thorough cost-benefit assessment of treaties provided by the government to ensure that there is a better understanding of the benefits that stem from these types of free trade agreements. The committee has reiterated this in this report in a broader sense, given that it covers more than just trade agreements, and recommended that, prior to commencing negotiations for any new agreements:

… the Government table in Parliament a document setting out its priorities and objectives, including the anticipated costs and benefits of the agreement.

This, we think, would provide greater transparency to the treaty-making process and allow the Treaties Committee to have the opportunity to engage with the government of the day on the treaty-making process before such treaty negotiations are finalised, which is an important point across all aspects of treaty making.

However, as I indicated, the member for Kennedy's bill is not, in the opinion of the committee, the solution to the concerns that it has indicated or to the concerns the committee may have about the lack of parliamentary involvement in the treaty-making process at its earlier stages. We see that the bill has a number of flaws and would be unworkable. The bill itself has only one substantive provision:

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

The committee received a number of excellent submissions and heard evidence from well-informed witnesses at the public inquiry that was held into the bill. From this evidence, the committee concluded that it appears that the bill is likely to be constitutional. Section 61 of the Constitution places formal responsibility of treaty making with the executive rather than the parliament. The wording of the bill indicates that the parliament is not taking over the ratification function, however, but rather makes the executive's decision to ratify conditional upon the parliament's prior approval.

However, the bill would present a number of practical and political problems to both the parliament and the executive if passed as presented. The sheer number of treaties, many of them dealing with administrative matters, along with, indeed, the nature of the parliament, would at times have the potential to overwhelm the parliamentary process if all treaties were subject to this arrangement. The bill's lack of a provision for short-term emergency treaties would make the bill unworkable. For example, the Joint Standing Committee on Treaties has, on behalf of the parliament, reviewed over 600 treaty actions at an average of almost 40 treaties per year since it was established in 1996. If both houses of parliament had to, by resolution, approve the ratification of each treaty, as the bill demands, the parliament would certainly need to sit more often and would have little time, perhaps, to complete its other business.

Although other models exist overseas which may add a greater degree of parliamentary scrutiny to the treaties review process, the bill is a very brief document which allows little room for amendment without a comprehensive change of its intent. That is why the committee has made the recommendation that I highlighted earlier; to give greater parliamentary oversight and involvement at an earlier stage of the negotiating process, which we believe would be a good step on the reforms that the Howard government instigated in establishing the Joint Standing Committee on Treaties originally.

I thank the committee secretariat for its work on both of these reports, and I commend both of the reports to the Senate.