Resolving Australia’s treaty-making ‘democratic deficit’

Australia’s treaty-making process completely bypassed the Commonwealth Parliament until the 1960s, when Prime Minister Menzies committed to tabling in both Houses of Parliament treaties that were signed but not yet ratified. Reforms in the 1990s attempted to involve Parliament more, but it has for the most part retained its lame duck status and Australia continues to suffer a democratic deficit.

Negotiating, entering into and ratifying treaties is the prerogative of the Australian Government. The signature of the Foreign Affairs or Trade Minister is a gesture that the Australian Government intends to commit Australia to obligations under international law. When the Government ratifies or accedes to an agreement, it becomes binding on Australia, confirming that Australia will comply with those obligations.

On some occasions, Parliament is required to pass legislation necessary to implement treaties if Australian law does not already comply. As the Department of Foreign Affairs and Trade (DFAT) notes, it is not always necessary for a treaty to be implemented through legislation: many treaties can simply “be implemented through executive action (for example, trade cooperation, defence logistics and procurement treaties).” Sometimes existing legislation meets the requirements already. Attempting to pass new legislation after ratifying an agreement is risky: the Government may be met with a hostile Parliament that refuses to pass the necessary legislation, causing Australia to fail to meet its new obligations. If the Government controls both Houses of Parliament, such as it did when passing the Australia-United States Free Trade Agreement (AUSFTA) into law, this does not present a significant obstacle.

By the late 1970s, treaties were being tabled in bulk at approximately six-month intervals. This meant that by the time a treaty appeared in Parliament, up to six months could have passed since it was signed. The efforts to keep Parliament informed hadn’t been adequately maintained, and tabled treaties had already been ratified in several cases. Australia had assumed new, often significant, international obligations with a token amount of Parliamentary oversight.

Parliament initiated reforms in the mid-1990s that would involve it more in the treaty process, resolving what was termed a ‘democratic deficit.’ Most of the recommendations of the Senate inquiry into treaty making were implemented under the Howard Government, the most significant being the creation of the Joint Standing Committee on Treaties (JSCOT).

JSCOT inquires into and reports upon issues relating to treaties and their national interest analyses, generally having the same 15 or 20 days as Parliament to prepare reports and issue recommendations. The review process usually includes an examination of national interest analyses, the acceptance of public submissions, and the conducting of public hearings with relevant Government departments, other organisations, and individuals such as experts in international law.

JSCOT is a bastion of democracy in Australia’s treaty-making process, but it is not enough. Although former Foreign Affairs Minister, Alexander Downer, said “any government would need to think very carefully of the political consequences before it ignored a unanimous JSCOT recommendation,” this reflects the non-binding nature of JSCOT recommendations. As critics have noted, “despite the enhanced transparency of the treaty-making process under JSCOT … it seems that the Executive has retained its dominant role in Australia’s relationship with international law.”

The value of the Committee was shown in June 2012, with Report 126 on the Anti-Counterfeiting Trade Agreement (ACTA). Australia, the United States and others signed ACTA in Tokyo in October 2011, with the European Union following in 2012. Neither the public nor its elected representatives — the Commonwealth Parliament — had access to the official text prior to signing.

Report 126 contained nine recommendations. The most significant were Recommendations 8 and 9.  JSCOT recommended that ACTA not be ratified until the Committee had received and considered an independent and transparent assessment of the economic and social benefits and costs of the Agreement (referred to in Recommendation 2) and until the Australian Government clarified terms of the Agreement that were found to be vague by the Committee. Recommendation 9 suggested that a future JSCOT should have regard to events related to ACTA in other relevant jurisdictions including the European Union.

Recommendation 9 was in response to significant shifts across the European Union. Despite being signed by the EU and 22 of its member states on 26 January 2012, barely a week later Poland announced it was putting the ratification of ACTA on hold to conduct further public consultations. February 2012 was not kind to ACTA, with enormous protests across the EU causing signatories to think twice about ratification.

On 4 July 2012, the European Parliament voted to reject ACTA, 478 votes to 39.

More than two years since ACTA was signed, only Japan has ratified it. JSCOT’s recommendations successfully halted ACTA in Australia, and movement appears to have stalled globally. Without JSCOT’s oversight, the Australian Government might well have gone ahead and ratified the Agreement, locking Australia into a binding agreement that the Committee described as lacking clarity and failing to adequately protect the rights of individuals.

The reality that a small delegation of bureaucrats negotiates treaties on behalf of Australia, and that the Australian Government (a small group of politicians) makes the decision to enter Australia into binding agreements under international law provides solid grounds for the argument that JSCOT should have greater power of inquiry and its recommendations should carry more weight.

Although treaties frequently do not require changes to domestic legislation, binding agreements create international obligations and must be renegotiated or withdrawn from if Australia decides to reform its domestic laws. Withdrawal or violation of a treaty risks enormous diplomatic damage and unknown penalties.

Vertical integration of treaties has meant that Australia is locked into several treaties that essentially impose the same obligations — layers upon layers of binding provisions. The Berne Convention imposes a minimum copyright term of life plus 50 years, the TRIPS Agreement imposes a minimum of 50 years or the life of the author, and AUSTFA imposes life plus 70 years. The Malaysia-Australia Free Trade Agreement requires that both nations ratify or accede to several intellectual property agreements, as well as ensuring they remain party to many others.

Leaks of the Trans-Pacific Partnership Agreement (TPP) indicate that half the negotiating parties are in favour of a provision requiring involved nations to maintain a copyright term of at least life plus 70 years. This would be yet another layer of the same obligation, making domestic law reform in this area lengthy and complicated at best, and impossible at worst.

It should not be unreasonable therefore to ask for greater Parliamentary oversight and involvement, particularly as it is Parliamentarians who will need to contemplate legislative change in the future. The short-sighted whims of the Government of the day should be kept under close watch and control. Already, JSCOT has been there to restrain the Government from taking binding action with regard to ACTA, and from the international reaction it would seem unwise for Australia to ratify an agreement that was rejected by one of the world’s largest legislatures.

Checks and balances are vital for democracy, and in our democracy it is Parliament that keeps the Government in check. Requiring that the Government acquire the support of JSCOT before ratifying an agreement, and giving the Committee the power to make binding edicts, not mere recommendations, would put in place a guarantee that the Government cannot sign away the ability for Australia to reform its own laws.

Governments come and go, policies and alliances change, but it is Australia that will have to live with the decisions. Proper oversight by our elected representatives would democratise the process and ensure Australia does not accumulate obligations without adequate consideration. Australia should not become isolationist or protectionist or anything of the sort. It should simply think long and hard before signing away its sovereignty.

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Author: Mozart Olbrycht-Palmer

Pirate Party Australia Deputy Secretary and Press Officer. Former member of the Pirate Parties International Court of Arbitration.