Journal of Law, Information and Science
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Journal of Law, Information and Science |
|
‘Deliberative democratising’ of Australian treaty making: Putting into context the significance of online access to the treaty process
DAVID MASON[*]
Traditionally, sovereign states have been the primary actors in a formalised process of negotiating and concluding international treaties. While that still remains the case it is also clear that other, non-state actors (NGOs) are increasingly influencing treaty-making and the processes by which treaties are constructed. Against that backdrop an important issue arises regarding to what extent treaty-making could or should be influenced by actors outside the executive branch of government, the body traditionally having the exclusive prerogative power to make treaties. Indeed, that precise question was the focus of an intense political and legal debate in 1990s Australia—and to varying degrees in the United Kingdom, Canada and New Zealand—concerning an alleged ‘democratic deficit’, or lack of proper accountability in the treaty making processes of those countries. It was claimed at the time that the ‘deficit’ arose because the subject matter covered in modern treaties had expanded to such an extent that treaties were in effect becoming a form of ‘global legislation’ for which the legislative branch of government was not accountable. There was concern that no Parliamentarians—let alone civil society (NGOs)—effectively were able to make any meaningful input into the development of treaties.
Thus some 20 years ago, a newly elected Australian Government announced in May 1996 its intention to introduce reforms to existing Australian treaty-making processes in order, it was claimed, to overcome this perceived ‘democratic deficit’ in treaty-making. Those reforms sought to ensure enhanced accountability for, and increased transparency about, all future treaties to which Australia intended becoming a party: the reforms included inter alia the introduction of comprehensive parliamentary—and related civil society—scrutiny of treaties prior to each treaty being ratified or acceded to. This was to be achieved by establishing a Parliamentary Joint Standing Committee on Treaties (JSCOT) tasked with publicly examining ‘National Interest Analyses’ of all treaties and recommending whether their ratification was in Australia’s national interest. A further pillar of the suite of reforms to be introduced was the establishment of online treaties service giving online access to treaties and related materials, in order to make them immediately available to all members of civil society interested in examining them. This last pillar has proved crucially important to enhancing the transparency of Australia’s treaty making, along with the introduction of JSCOT and its associated national interest analyses (NIAs).
This article will place these developments in historical and theoretical context. It will trace the long intellectual debate, fought over more than two centuries, dating back to Sir William Blackstone’s Commentaries on the Laws of England (1765–1769), concerning whether that most quintessentially sovereign act – the making of a treaty with another sovereign state – could or should ever be allowed to be subject to the ‘democratising’ influences of civil society, however expressed. It will be argued that not only is that theoretically possible, but that the 1996 reforms to the Australian treaty making process in fact went a long way towards applying ‘deliberative democracy’ principles to how Australia goes about making treaties. In so doing these reforms brought Australian practices at least to the international norm, and in some respects well ahead of what like-minded Westminster-style democracies have achieved.
Treaties – written, legally binding agreements between governments – have long been a feature of international relations. While their negotiation has historically been seen as requiring secrecy—and consequently as only capable of being negotiated by officials working in secret—the need for that secrecy has been increasingly contested in Australia and elsewhere. Thus, against the backdrop of (European) ‘secret treaties’ being widely regarded as contributing to miscalculations leading to the First World War, United States President Woodrow Wilson famously asserted in 1918, as the first of his ‘Fourteen Points for Peace’, that there should in future only be ‘open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind, but diplomacy shall proceed always frankly and in the public view.’[1] Consistent with at least the spirit of that principle, the Australian government in 1996 instituted treaty reforms designed explicitly to address a perceived ‘democratic deficit’ in Australian treaty making. Whether actors outside government (civil society) should have some visibility of, and even input into, the treaty making process was an issue barely addressed at the 1919 Versailles Peace Conference following World War One: today it clearly has greater significance. In 1919, those seeking access to the treaty making deliberations at Versailles were primarily journalists: today thousands of individuals and organisations are potentially affected and press to ensure that their views are heard. Moreover, notions of what might constitute more ‘open and democratic’ forms of treaty making have developed beyond simply ensuring that the public is informed by the issuing of bland, formal, iterative communiques (as occurred at Versailles), to establishing mechanisms which enable civil society potentially to have some actual influence on the content of the treaties themselves.
Traditionally, democracy was held to be inimical to good foreign policy; but, from the perspective of modern international relations, this view has little salience. Indeed, this article examines the view that the concept and reach of democracy needs to expand. It must be more than government by elected representatives. It must moreover be more than mandatory consultations between the executive and legislative branches on policy formulation. It is argued that an additional attribute of democracy should be the right of ordinary constituents to be heard by law-makers on prospective laws, including those emanating from treaties. This ‘opportunity for interlocution’ is depicted as fundamental ‘political capital’ for a liberal, pluralist society – especially because it ensures that the views of minorities are heard. Therefore, the argument is made that the structures of any liberal, pluralist society are likely to be improved if they incorporate principles of what has been characterised as ‘deliberative democracy’[2] in their law making, including their treaty making processes.
Traditionally treaty making was not in any way connected with democracy.[3] Indeed the very concept of ‘democracy’ is semantically fraught. As John Dunn noted in his semantic history of democracy, Setting the People Free, the term ‘democracy’ derives from the Greek word demokratia. Demokratia—according to Dunn—described a particular form of government, which was, for almost two millennia, overwhelmingly judged to be ‘grossly illegitimate in theory and every bit as disastrous in practice.’[4]
Even the great publicist for early American democracy Alexis de Tocqueville considered that democracy vitiated foreign policy. Indeed, he saw democracy as, systemically, quite deficient in matters of external affairs. To quote him:
Foreign policy demands scarcely any of those qualities which are peculiar to a democracy; on the contrary it calls for the perfect use of almost all those qualities in which a democracy is deficient. Democracy ... fortifies the respect for law in all classes of society, but it can only with great difficulty regulate the details of an important undertaking, persevere in a fixed design, and work out its execution in spite of serious obstacles. It cannot combine its measures with secrecy or await their consequences with patience. These are qualities which are more characteristic of an individual or an aristocracy.[5]
In short, to De Tocqueville, democracy was inimical to good foreign policy making. He was by no means alone in this view. Over the centuries, howls of derision erupted whenever diplomatic method took a seemingly democratic turn. And much of this howling has come from ‘the best and the brightest’ of the day. For example, the legendary 18th century lawyer Sir William Blackstone in his legal classic Commentaries on the Laws of England (1765-1769) expressed a common view of the time that legislative assemblies should never be involved in the conclusion of treaties. Rather, such activities should be left exclusively to the Executive Branch of government.
To put it in Sir William’s words:
It is impossible that individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels. In the king therefore, as in a centre, all the rays of his people are united, and form by that union a consistency, splendor, and power, that make him feared and respected by foreign potentates; who [Sir William asked] would scruple to enter into any engagements, that must afterwards be revised and ratified by a popular assembly.[6]
Thereafter—as if to spite him—the American colonies revolted and installed a constitution which gave their president the powers to make treaties ‘by and with the Advice and Consent of the Senate ... provided two thirds of Senators present concur.’[7]
As the commentator Hayden put it:
The United States, in fact, was introducing a new principle into the diplomatic practice of the world. She had made her treaties a supreme part of the law of the land and therefore had given the [Senate] ... a part in enacting them. ... She was a democracy and as such had declined to entrust the superlatively important function of treaty-making to the executive alone ... And in due time the world consented to deal with the United States in the manner made necessary by her form of government.[8]
Actually, the Founding Fathers’ ideal was not easily realised. George Washington (in keeping with the spirit of the new United States Constitution (‘Constitution’)) entered the Senate in August 1789, presented a paper on his proposed treaty with the southern Indians, and then asked Senators certain questions regarding their advice and consent on the treaty. This was because ideally the Senate was supposed to advise on the content of prospective treaties. Ironically, Washington fretted over the Senators’ advice and their possible delays in consent for his treaty. As John Quincy Adams recalls: Washington left the Senate Chamber saying he would be damned if he ever went there again.[9] But Washington did return to the Senate and a new system of treaty making evolved. The Senate never turned into the council of advisers for proposed treaties that Washington and his compatriots had hoped for. Such ‘deliberative micro-management’ proved impractical. But the Constitution was ‘adapted’, so to speak, in a manner which meant that the Senate was eventually regarded as having a power (under art II of the Constitution) which was tantamount to that of a veto over treaties.[10] Conversely, the President was recognised as having the power to enter into compacts with foreign governments without the advice and consent of the Senate. Many such compacts were legally treaties on the international plane; but were deemed not to be ‘treaties’ for the purposes of municipal American law.[11] These treaties ‘which dared not speak their name’ became known as ‘Executive Agreements.’
In some ways, then, the vision of the American Founding Fathers prevailed.[12] Two centuries after their War of Independence it was unexceptional for constitutions around the world to provide for intervention by the legislature prior to the Head of State ratifying a treaty.[13] Even back in 1919 Hayden trumpeted:
England and practically every other democracy have now provided some method by which the representatives of the people may have a voice in determining what manner of treaties shall be made. The success of the American experiment demonstrated the practicability of such a system, and paved the way for similar democratic developments in other nations.[14]
It has been claimed that the US Senate’s participation in treaty making epitomised a broader vision of the American Founding Fathers and a recurrent purpose of their Constitution. The then US Senator, Barack Obama, explained this ideal neatly:
What the framework of our Constitution can do is organize the way by which we argue about our future. All of its elaborate machinery – its separation of powers and checks and balances and federalist principles and Bill of Rights – are designed to force us into a conversation, a ‘deliberative democracy’ in which all citizens are required to engage in a process of testing their ideas against an external reality, persuading others of their point of view, and building shifting alliances of consent. Because power in our government is so diffuse, the process of making law in America compels us to entertain the possibility that we are not always right and to sometimes change our minds; it challenges us to examine our motives and our interests constantly, and suggests that both our individual and collective judgments are at once legitimate and highly fallible.[15]
In other words, American democracy is more than the right to elect a government; it is, or should be, a process which makes people ‘have a conversation’ about what is important.[16] This ‘forced conversation’, this institution of public deliberation, is intended to determine how ‘the majority’ should form in a democracy; which—by virtue of this defining process—saves majority rule from its own base nature.[17]
Democracy’s genius is arguing about what matters. Foreign policy matters. Therefore, it should not be surprising that democracies have seen ‘deliberative’ public opinion steadily increase its influence over their foreign policy. Historically, not everyone has accepted this as a good thing. The renowned British diplomatic theorist Sir Harold Nicholson—in the middle of the twentieth century—wrote a polemic against both transparent diplomacy and the ratification of treaties by legislatures.[18] He argued that they were blights on modern diplomatic method. This argument was largely premised on how the ordinary masses, in matters of foreign policy, displayed a lack of knowledge and understanding which cruelled their national interests.[19] In Nicholson’s lifetime, however, diplomacy’s remit moved from rudimentary statecraft to complex law-making. Nicholson never saw how this shift would capture—indeed demand—the involvement of popular opinion in diplomacy. Presumably, he saw treaty making as a process of governmental negotiation. Therefore, secrecy was desirable not only because it facilitated frankness and compromises, but also because it excluded the glare of uninformed public opinion which might skew objectives.
Of course, parliamentary democracy has many institutions which deliberate secretly in order to govern. It is unremarkable for the important deliberations of executive government to be confidential[20] (Cabinet being a prime example). So there is nothing peculiar in deliberations about the quintessentially executive power of treaty making being done in secret. By way of contrast, the parliamentary forum is distinctive in that its ‘deliberations’ are nearly always public.[21] The assumption is that they are public because law making is better done in public.[22] A procedure for public debate about law making makes for better laws.[23]
An intriguing constitutional aspect of treaty making is that it fuses both law making and executive power; which raises a question debated over the centuries: whether or not such international law making should include direct public scrutiny and debate as part of its deliberative process? In considering this further, we must turn to the science of decision-making. There is empirical evidence that groups of exclusive like-minded decision makers deliberating among themselves do not reach equable compromises; rather they radicalise.[24] Ironically, they stray from ‘the Wisdom of the Crowd’ and tend towards the extremes of their ‘like-mindedness.’[25] Therefore, engaging inclusive, unlike-minded individuals in deliberations who contest each other’s views lessens polarisation, generates better options and fosters the golden mean of compromise.[26]
These examples vindicate the spirit of what President Obama has called ‘deliberative democracy’; but they fall well short of his definition of the term. By ‘deliberative democracy’ we must surely be referring to a system where any individual or group in civil society has the institutional right to be heard by government and thereby to assist government[27] explore morally justifiable ways for solving problems that matter.[28] This ‘deliberative system’ of democracy rests upon two premises:
a) The first premise is philosophical, namely: that the essence of liberty is trust in our fallibility. Democracy cherishes doubt. Therefore, a democracy must aspire, philosophically, to a process that uses the collective wisdom of ‘the public’ to test the rightness of our decisions.
b) The second premise concerns practicalities. Good decision making springs from ‘the Wisdom of the Crowd‘. But the empirical evidence shows that this ‘wisdom’ is only induced when we aggregate the decisions of disparate individuals who have the courage to say what they really think because they are acting independently of each other.[29]
It is not just philosophy, but also practicalities which justifies democratic decision making. In this context, James Surowiecki, the author of The Wisdom of Crowds, epitomises the true wisdom and wise truth of democracy:
The decisions that democracies make may not demonstrate the wisdom of the crowd. The decision to make them democratically does.[30]
A conclusion that may be drawn from the two aforementioned premises of sceptical philosophy and epistemic practicalities is that in order to properly express our doubts about ‘the people’s assembled wisdom we must amass the ‘wisdom of the crowd.’ That is, the ‘majority opinion’ proposed by representative government—or represented by government proposals—must be challengeable by all the independent pluralities of ‘minority opinions’ (which, in aggregate, are taken to be ‘the public’). In short, a democracy must aspire to a system which not only assumes that its decisions may be wrong, but also supplies ample opportunity for its public to challenge and test their rightness.[31] This conclusion is supported by a cognate argument that fair procedures make for fair outcomes. The fairer laws are perceived to be the more likely it is that they will be accepted by those whom they govern.[32] It is arguable that in this light, perhaps ‘deliberative democracy’ attempts to do no more than make procedural systems of governmental decision making fairer.[33]
It is said that public participation in the deliberative processes of treaty making tests and proves the utility of ‘deliberative democracy.’ Formal parliamentary ‘Q&A‘ on foreign policy presents governments with new demandeurs: ordinary constituents. This educates both governments and constituents. Such education is argued to be a primary advantage of democracy. The best education teaches us to ask the right questions; which, in turn, so often averts the dearest education: missing the right answers. Public deliberation draws out better questions and answers. From this it is concluded that parliamentary deliberation about foreign policy increases public policy making discipline. Logically, the more informed public opinion is the better its contribution to good policy. But increasing social complexity makes it harder for the public to be well informed. [34] Nowadays, public opinion needs to be apprised by more than the roar of a bullhorn soaring above a soap-box.[35] Those best positioned to inform the public about policy are those who make policy. Public opinion empowers policy making; so, it is argued, policy makers should empower public opinion.[36]
Australia provides an interesting example of the general trend by legislatures towards adopting more so called ‘democratic’ forms in the process of treaty making, including through the application of ‘deliberative democracy’ principles to its treaty making processes in May 1996.
As with so much of our constitutional development, its origins lay in the British experience. In 1924, the United Kingdom instituted a constitutional policy known as ‘the Ponsonby Rule’: by which every treaty which required ratification by the Crown would, after signature, be laid on the tables of both Houses of Parliament for a period of 21 days prior to the treaty’s ratification.[37] Subsequently, in Australia in 1961, Prime Minister Menzies followed the British lead by making a commitment that henceforth the texts of treaties, which until then had not normally been brought to the attention of Parliament, would be tabled in both Houses.[38]
Still, many Australian parliamentarians regarded this mere tabling – without provision for parliamentary consideration or debate – as an inadequate form of review. So, they called for a more comprehensive system of parliamentary scrutiny of treaties.[39] In particular, the criticism of the treaty making process began to grow among the States and Territories of Australia. A focus of this criticism was that a treaty may expand the legislative power of the Federal Parliament with respect to external affairs[40] and thereby confine the States’ exercise of their executive and legislative powers. This developed with the High Court’s interpretation of this legislative power in a way which the States saw as a threat to their own powers.
Although the states had an important role in treaty making, prior to 1980 there was little judicial deliberation on the constitutional extent of this capacity of the Federal Parliament to implement treaties and how that implementation may encroach on states’ functions.[41] Nonetheless, it was clear enough—even back in the late 1930s—that the Australian Constitution differed radically from the US and Canadian Constitutions in the way it delimited powers over foreign policy. Unlike the US Constitution[42] Australia’s Constitution did not grant the federal government exclusive jurisdiction over foreign policy.
Therefore, actions or laws of an Australian state government are not unconstitutional—and consequently invalid—simply because they encroach on matters of foreign policy.[43] Unlike the Canadian Constitution[44] Australia’s Constitution did not grant the Australian states legislative powers which are expressly defined and exclusively reserved to those states. Therefore, our federal government does not have to rely on state laws to implement treaties on certain subjects which are the constitutional preserve of the states.[45] Instead, Australia could, and did, follow a system of ‘co-operative federalism’ in which our states voluntarily played an important role in Australian treaty making. This co-operative system rested upon both a constitutional fact and a political rationale: the constitutional fact is that only a few legislative powers are vested exclusively in the Australian Parliament. Consequently, legislation passed under the Federal Parliament's external affairs may exist concurrently with state legislation unless the state legislation is inconsistent. But federal legislation, if constitutionally valid, will prevail over inconsistent state legislation to the extent of such inconsistency.[46]
Accordingly, although the federal parliament has the power—through its own federal legislation—to implement treaties and other matters concerning ‘external affairs’—Australia may also implement treaties through state laws. The political rationale—obtaining for Australia’s Parliament as a corollary of this constitutional fact—was that federal laws should not implement treaties regarding those matters which were traditionally administered by the states.[47] This unsettled state of affairs ended in the 1980s, largely as a consequence of the decisions in three key High Court cases. All three cases were challenges to the Federal Parliament’s right to legislate in areas that were traditionally reserved to the states. All three failed. In Koowarta v Bjelke-Petersen[48] the High Court upheld the Racial Discrimination Act 1975 (Cth) which implemented the International Convention on the Elimination of All Forms of Racial Discrimination 1966.[49] In Commonwealth v Tasmania[50] and Richardson v Forestry Commission of Tasmania[51] the High Court upheld federal Acts implementing the UNESCO Convention for the Protection of the World Cultural and Natural Heritage 1972.[52] After those cases, in the 1980s, complaints about the treaty-making process in Australia began to grow – especially among state governments.
That growing concern was exacerbated by the decision of the Australian High Court in Minister of State for Immigration and Ethnic Affairs v Teoh[53] where it was held that the ratification of a treaty created a legitimate expectation that the executive and its agencies would act in conformity with that treaty, even when the treaty had not been implemented into domestic law. The Teoh’s Case principle was quickly repudiated by the Commonwealth Government[54] but nevertheless fuelled a passionate debate then taking place about Australia’s involvement in international affairs and the lack of parliamentary oversight. This debate had focused on the decision of Toonen v Australia [55] by the United Nations (UN) Human Rights Committee, which found Australia in breach of the International Convention on Civil and Political Rights[56] because of a criminal ban on homosexuality in the state of Tasmania. The case raised political issues, with some expressing concern about the impact of UN bodies on Australian sovereignty, as well as federation issues, given the Commonwealth ability to use the external affairs power to over-ride Tasmanian law to achieve treaty compliance.[57]
In 1995 the Federal Parliament’s Senate Legal and Constitutional References Committee conducted hearings into the treaty making process, which ventilated criticisms of that process. In November that year the Committee recommended that legislation be enacted to establish a parliamentary committee which would, among other things, report on proposals by Australia to join any treaty. By then it was widely considered that there was a ‘democratic deficit’ in the way that the Executive entered into treaties; so some changes had to be made,[58] and there was widespread and growing political support for such changes.
In consequence, on 2 May 1996, Alexander Downer, the Minister for Foreign Affairs in the newly elected Coalition Government, set out in Parliament the government’s reform policy, to restore confidence in the Australian treaty making process by eliminating ‘the democratic deficit’ in that process.[59] These implemented many of the reforms recommended by the Senate inquiry, introducing five key reforms to Australia’s treaty-making processes:
• Tabling in Parliament of all treaty actions proposed by the government for at least 15 joint sitting days before binding treaty action is taken.
• Preparation of a National Interest Analysis (NIA) for each treaty, outlining information regarding including the obligations contained in the treaty and the benefits for Australia of entering into the treaty. The NIA must be tabled in Parliament and published on the Internet.
• Establishment of the parliamentary JSCOT comprising 16 members from government, opposition and minority parties, to inquire into and make recommendations in relation to Australia’s entry into treaties.
• Establishment of the Treaties Council comprising the Prime Minister, Premiers and Chief Ministers and an enhanced role for the Commonwealth/State and Territories Standing Committee on Treaties (SCOT) to improve the quality of State and Territory participation in the treaty-making process.
• Establishment of the Australian Treaties Library and the provision of an online treaties service (via AustLII).[60]
This last reform was particularly significant insofar as it made possible the addressing of the ‘lack-of-information’ side of the ‘democratic deficit.’ The stated aim of the government’s treaty process reform policy was to restore confidence in the process by eliminating the ‘democratic deficit’ inherent in it. Specifically, the new policy provided that the arrangements for parliamentary scrutiny of treaties, through tabling them in Parliament, would apply to all treaty actions, multilateral as well as bilateral, and extend not only to new treaties but to all actions to amend, terminate or withdraw from treaties.
The effect of this policy—which has been reaffirmed by successive incoming Australian governments since 1996—is that parliamentarians make considered reports on proposed treaties before the government decides whether Australia should join them. Nonetheless, the government does not have to follow these reports; it can take a treaty action even where JSCOT recommends against that. This parliamentary approval is not formally required before the executive branch of government agrees to take a treaty action. In this respect, the prerogative power of the executive under s 61 of the Constitution has been regulated through the adoption of the 1996 procedures, but has not been formally limited in scope.
So, put simply: Australia's treaty making process normally[61] means that before Australia ratifies a treaty, that treaty will be tabled in Parliament with an explanation from the relevant department on why the treaty will serve the national interest. JSCOT—the parliamentary committee responsible for treaties—considers the treaty, invites views from the general public, holds public hearings. Importantly, it also considers the views of states and territories. JSCOT then writes a report recommending whether (or not) the treaty should be ratified—which is submitted to parliament and published. The government then takes a decision whether to proceed with ratification of the treaty.
Initially, before the new committee had even been set up, these sweeping proposals were subjected to a degree of criticism. There were objections to opening up the government’s executive treaty making responsibility to parliamentary scrutiny and public consultation in this way. There were suggestions that the Coalition was seeking to limit international engagements through new treaty obligations because it believed that such commitments somehow diminished Australian sovereignty. It was said, moreover, that a cloud of uncertainty and inefficiency would hang over our treaty negotiations; that Australian diplomacy would be hamstrung by the legislature; that JSCOT would simply add a further layer of useless bureaucracy to the treaty-making process; and so on.
None of those criticisms were in fact borne out, and have not been repeated in the last twenty years. Rather, over the twenty years that the treaty reforms have been in place, a range of different criticisms have been made, culminating in those aired before a Senate Foreign Affairs, Defence and Trade References Committee enquiry in 2015 into Australia’s treaty making process.[62] That Committee’s Report entitled Blind Agreement: Reforming Australia’s Treaty Making Process was tabled in Parliament on 25 June 2015.[63] Its conclusion acknowledged the successes of implementation of the five pillars of reform but argued more was now needed, particularly with respect to trade treaties. As its Report put it:
Much was made 20 years ago of a so-called 'democratic deficit' surrounding treaty-making. The reforms introduced in the mid-1990s, following the landmark Trick or Treaty? Report, strengthened the treaty-making process and gave parliament a greater say through the establishment of the Joint Standing Committee on Treaties (JSCOT) and the mandatory tabling of treaties in both houses of parliament. However, a ‘democratic deficit’ has remained a feature of the process, albeit with a different complexion today as the scope and reach of trade agreements into domestic law is unlike anything previously seen. While the 1996 reform package was undoubtedly ground-breaking at the time, twenty years on the global environment in which trade agreements are negotiated and community expectations of transparency and accountability have changed to such an extent that the case for review and further reform is compelling ... . Three key points were raised in evidence to the inquiry. First, that there needs to be a significantly higher level of consultation in treaty-making before agreements are signed and that more information should be communicated to stakeholders and the public about how agreements will affect them. Second, that parliament should have opportunities to play a constructive role during negotiations that goes beyond rubber-stamping agreements after they are signed. Third, that proposed treaty action should be subject to independent assessment at the commencement of negotiations and monitoring and evaluation after implementation, to ensure that mistakes and unintended consequences are not repeated.[64]
Unsurprisingly, Coalition Senators took a notably divergent view about the need for further reform of the treaty-making process. In its dissenting report to the majority findings—released under the name of the Committee Deputy Chairman Senator Chris Back—the Government Senators stated the following:
Coalition members of the committee disagree with all of the findings and recommendations of the majority report. We do not believe that the evidence received by the Committee during the inquiry leads to the argument that Australia’s treaty making process is in need of reform ... . Since its introduction by the Coalition government in 1996, Australia’s treaty-making process has been subject to only minor alterations. Government of either persuasion has made use of the systems accepting the balance between the respective role of parliament and the executive which is mandated by the Australian Constitution... The process in place in Australia closely resembles those operating in countries with comparable political system, such as Canada and New Zealand ... . The Coalition agrees that effective consultation is essential to getting the best outcomes from negotiations, but considers that opposition criticism of DFAT’s consultation process is over blown and borderline insulting. DFAT has convened over 1000 briefing sessions with stakeholders on the Trans-Pacific Partnership (TPP) alone since May 2011 ... . In short, the Coalition members of the Committee see no reason to proceed with an extensive reform agenda when the current treaty making system is working well.[65]
The divergence of views reflected in the above quotations is a relatively recent phenomenon. They contrast in tone with the flavour of the 1999 Government review of the reforms which was widely advertised and attracted 66 submissions. That review found that the 1996 reforms had greatly increased scrutiny, transparency and consultation in the treaty-making process and community awareness of treaties.[66] Later some further reforms were made to the process. In reforms announced on 20 August 2002 the tabling period for treaty texts and NIAs was increased from 15 to 20 sitting days for a subset of treaties—those of major political, economic or social significance. As well, NIAs were required to be accompanied by additional background reports and an enhanced treaties database was launched.[67] A further refinement came in 2008 with the introduction of a mechanism by which minor treaty actions with negligible financial or legal effect would be referred to JSCOT without tabling unless JSCOT deemed tabling necessary and with an Explanatory Statement rather than a National Interest Analysis. Other improvements since 1996 have included the requirement for each National Interest Analysis to include a comprehensive attachment on consultation.[68]
Evaluating the success (or otherwise) of the five key reforms of 1996, it should be noted that over the past 20 years, JSCOT has considered over 800 treaties and produced over 160 Reports[69] and, as was asserted in a 2001 Australian International Law Journal article by Glen Cranwell:[70]
The depth and effectiveness of the consultative process appear[ed] to have [been] improved by allowing interested organisations and individuals access to a process that was previously difficult to influence and perceived to be quite off-limits. In a debate in the House of Lords in 1999, Lord Lester of Herne Hill noted that Australia was well ahead of the United Kingdom in the scrutiny of the treaty making process because the ‘Australian Senate (sic) has a well-developed treaty scrutiny committee.’[71]
Cranwell also cited Professor James Crawford as assessing ‘the changes introduced in 1996 were no doubt useful and they certainly entail a greater level of formal consultation and communication with the federal Parliament and state governments then previously obtained.’[72]
It therefore seems reasonable to conclude that most of the goals of the 1996 treaty reforms have been achieved, particularly those relating to consultation and transparency. In respect of the former, the workings of JSCOT—and the use of improved NIAs—have been of significance. Regarding the latter—transparency—the ‘fifth’ pillar of the reforms (provision of an online treaties via AustLII) has led to the establishment of a world-leading and uniquely Australian Treaties database.[73] As the Canadian academic, Joanna Harrington, has commented:
to bolster these reforms, Australia also created an excellent online treaty database, providing free access to treaty texts, their ratification records, NIAs and detailed information on multilateral treaty actions currently under negotiation, consideration or review by the Australian government.[74]
It is concluded, therefore, that to the extent implementation of the five ‘pillars of reform’ have contributed to a measure of ‘deliberative democratising’ of Australian treaty-making, providing online access (via AustLII) to the treaty process has been of particular significance.
All of which compels us to return to part of that quote of Sir William Blackstone cited earlier in this article, namely his cri de coeur who would scruple to enter into any engagements, that must afterward be revised and ratified by a popular assembly?[75]
The answer today can be gleaned from the fact that intervention by legislatures and input by civil society into the treaty-making process is increasingly the norm around the world, and that such intervention to achieve, among other things, an opportunity for civil society representatives to have their views heard about the content of treaties before they become binding, reflects an application of ‘deliberative democratic’ principles to treaty-making processes around the world, including Australia. And the development in Australia of online access to the treaty-making process (via AustLII) has contributed significantly to that achievement.
[*] Executive Director, Treaties Secretariat, Department of Foreign Affairs and Trade, Australia
[1] Woodrow Wilson, ‘Address to a Joint Session of Congress’ (Speech delivered at Joint Session of Congress, 8 January 1918) quoted in Arthur S Link (ed), The Papers of Woodrow Wilson (Princeton University Press, 1984) vol 45, 536. This passage comes from the first of Wilson’s famous ‘Fourteen Points’.
[2] See definition of ‘deliberative democracy’ by two of its major proponents, Amy Gutmann and Dennis Thompson, who define it as ‘a form of government in which free and equal citizens (and their representatives), justify decisions in a process in which they give one another reasons which are mutually acceptable and generally accessible, with the aim of reaching conclusions that are binding in the present on all citizens but open to challenge in the future.’ Amy Gutmann and Dennis Thompson, Why Deliberative Democracy (Princeton University Press, 2004) 7.
[3] The modern definition of the term ‘democracy’ springs from the example of the United States, which evolved representative liberal democracy where elected rulers’ power was alloyed by respect for individuals’ inalienable civil rights. (Cf Jurgen Habermas, ‘Popular Sovereignty as Procedure’, in James Bohman and William Rehg (eds), Deliberative Democracy: Essays on Reason and Politics (MIT Press, 1997) 35–65.)
The cornerstone for debates about the form that this new American democracy would take was ‘classical democracy’ (that is, the ancient form of government founded in Athens by Kleisthenes in 507BC). Nonetheless, classical democracy differed from liberal democracy (where individuals’ civil rights are legally protected). The demokratia of the ancient Greek republics established community rule; but did not guarantee their citizens any legal rights against those communities. See: Paul A Rahe, Republics Ancient and Modern (University of North Carolina Press, 1st ed, 1992) 19; John Uhr, Deliberative Democracy in Australia (Cambridge University Press, 1998) 21.
The ‘Founding Fathers’ of the United States were opposed to the tyrannical majoritarianism of such ‘classical’ democracy, albeit their approaches differed on how civil rights might trammel majoritarianism. Three examples will suffice:
a) Thomas Jefferson saw a government ruled by elected representatives as a compromise between the ‘Leviathan’ of absolute monarchy and the majoritarianism of pure democracy; but he feared that even this ‘middle way’ faced the pitfall of elected politicians acting unjustly. Therefore, he supported a bill of rights as a bulwark against congressional tyrants. Paul A Rahe, above n 3, 718–20; See also Thomas L Pangle, The Spirit of Modern Republicanism (University of Chicago Press, 1988) 124–7.
b) Alexander Hamilton execrated ancient ‘direct’ democracy as follows:
‘It has been observed that a pure democracy if it were practicable would be the most perfect government. Experience has proved that no position is more false than this. The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny; their figure deformity.’ Alexander Hamilton, ‘Speech Urging Ratification of the US Constitution)’ (Speech delivered in New York, 21 June 1788). It is received wisdom that Hamilton objected to a bill of rights in the US Constitution for example Alexander Hamilton. But, to be fair to him, he argued that ‘that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.’ This was because some civil rights—like habeas corpus—were guaranteed in the Constitution. Alexander Hamilton, The Federalist No. 84 ‘Certain General and Miscellaneous Objections to the Constitution Considered and Answered’ Independent Journal, July 16, July 26, August 9, 1788, <http://www.constitution.org/fed/federa84.htm> .
c) James Madison was even more disparaging of classical democracy than Hamilton. Madison wrote: ‘Had every Athenian citizen been a Socrates ... every Athenian assembly would still have been a mob.’ Rahe, above n 3, 324. Madison initially opposed a bill of rights for the United States because (like Hamilton) he believed the US Constitution was a bill or rights. But (like Jefferson) he became a champion for such a bill as an adjunct to that constitution. See generally Robert A Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save The Constitution (Aei Press, 1997).
Accordingly the United States adopted a ‘bill of rights.’ See generally Herbert J Storing, ‘The Constitution and the Bill of Rights’, in Robert A Goldwin and William A Schambra (eds), How Does the Constitution Secure Rights? (American Enterprise Institute, 1985).
[4] ‘What is very strange indeed (in fact, quite bizarre) is the fact that this single term [democracy] ... should turn out to be the ancient Greek noun demokratia, which originally meant ... one particular form of government ... overwhelmingly judged ... grossly illegitimate in theory and every bit as disastrous in practice.’ John Dunn, Setting the People Free (Atlantic Books, 2005) 15.
[5] Alexis de Tocqueville, Democracy in America (1835) Part 1, Chapter XIII. See also Charles de Montesquieu, The Spirit of Laws (1748) Book XI (on ‘the separation of powers’ to enforce a society’s security); Thomas Hobbes, Leviathan (1651) Chapters 17 and 18; John Locke, Two Treatises on Civil Government (1689) Vol. II, Chapter 12.
[6] William Blackstone, Commentaries on the Laws of England (1765-1769) (Clarendon Press, Oxford, UK), Book 1, Chapter 7, <http://www.lonang.com/exlibris/blackstone/bla-107.htm> . Cf the view of John Locke (the preceptor of rational liberalism) that continuous purely lawful rule was impossible in foreign affairs (which were in ‘a state of nature’) and, accordingly, executive governmental power should be broad. Pangle, above n 3, pp 255–6. Further, Locke insisted that foreign policy should be conducted by a single man. Rahe, above n 3, pp 474–5.
[7] United States Constitution art II (2). For an analysis of the legal consequences of the US President signing a treaty which remains unratified. See Curtis A Bradley, ‘Unratified Treaties, Domestic Politics, and the U.S. Constitution’ (2007) 48 Harvard International Law Journal H307 <http://www.harvardilj.org/print/117> .
[8] Ralston Hayden, The Senate and Treaties, 1789-1817 (Macmillan, 1920) 155–6.
[9] United States Congress, Senate Committee on Foreign Relations, The Role of the Senate in Treaty Ratification A Staff Memorandum to the Committee on Foreign Relations United States Senate (University of Michigan Library, 1977) (Chair, J Sparkman) 34.
[10] Ibid 1–4, 36–49.
[11] See Amy Gilbert, Executive Agreements and Treaties (Thomas-Newell, 1st ed, 1973). Chapter 1 for a taxonomy of Executive Agreements.
[12] Alexander Hamilton wrote that the power to make treaties is neither a wholly executive nor wholly legislative function and that the joint possession of that power ‘would afford a greater prospect of security, than the separate possession of either of them.’ Alexander Hamilton, The Federalist No. 65 ‘The Powers of the Senate’ New York Packet, March 7, 1788, <http://www.constitution.org/fed/federa64.htm> . The American constitutional vision of the executive and legislative branches exercising overlapping powers in the realm of foreign policy remains controversial to this day. See Norman J Ornstein and Thomas E Mann, ‘When Congress Checks Out’ (2006) 85(6) Foreign Affairs 67–82.
[13] ‘A comparative study of the constitutions in force shows that in most countries the intervention of parliament is required before final ratification by the Head of State.’ Jose Marie Ruda, The Final Acceptance of International Conventions (Stanley Foundation, 1976) 23.
[14] Hayden, above n 8, 156
[15] Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (Crown, 2006) 92–3.
[16] The relationship of liberal representative democracy to ‘deliberative democracy’ is theoretically controversial. Russell Hardin argues that democratic representative government of a large society ‘subverts deliberation.’ Russell Hardin, ‘Deliberation: Method Not Theory’, in Stephen Macedo (ed), Deliberative Politics (Oxford University Press, 1999) 103–19, 115. Cf Jurgen Habermas, ‘Popular Sovereignty as Procedure’, in Bohman and Rehg (eds), above n 3, 67–91; Iris Marion Young, ‘Justice, Inclusion, and Deliberative Democracy’, in Macedo (ed), Deliberative Politics (Oxford University Press, 1999) 151–69.
[17] Obama (above n 15, 92) does not claim that his insight about the US Constitution is original to him. A strong case can be made that the herald of Obama’s concept of ‘deliberative democracy’ is John Dewey, who wrote:
the strongest point to be made on behalf of even such rudimentary political forms as democracy has attained, popular voting, majority rule and so on, is that to some extent they involve a consultation and discussion which concerns social needs and troubles. .... De Tocqueville ... pointed out in effect that popular government is educative as other forms of political regulation are not. It forces recognition that there are common interests, even though the recognition of what they are is confused; and the need it enforces of discussion and publicity brings about some clarification of what they are.’ John Dewey, The Public and its Problems (Holt, 1936) 206–7.
But Dewey not only saw popular government as enforcing the need for deliberation, (cf Obama, above n 15) he also argued that such deliberation gives minorities purchase against the majority, and the masses leverage against technocrats. As Dewey put it:
Majority rule, just as majority rule, is as foolish as its critics charge it with being. But it never is merely majority rule. As a practical politician, Samuel J. Tilden, said ... ‘The means by which a majority comes to be a majority is the important thing:’ antecedent debates, modifications of views to meet the opinions of minorities, the relative satisfaction given the latter by the fact that it has had a chance and that next time it may be successful in becoming a majority. Think of the meaning of the ‘problem of minorities’ in certain European states, and compare it with the status of minorities in countries having popular government. It is true that all valuable as well as new ideas begin with minorities, perhaps a minority of one. The important consideration is that opportunity be given that idea to spread and to become the possession of the multitude. No government by experts in which the masses do not have the chance to inform the experts as to their needs can be anything but an oligarchy managed in the interests of the few. And the enlightenment must proceed in ways which force the administrative specialists to take accounts of needs. The world has suffered more from leaders and authorities than from the masses.’ John Dewey, The Public and its Problems (1936) 207–8.
Cf James Madison The Federalist No 10 ‘The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection’ Daily Advertiser, November 22 1787 <http://www.constitution.org/fed/federa10.htm> and James Bohman, Public Deliberation: Pluralism, Complexity and Democracy (MIT Press, 1996) 1–2.
[18] For an example of how ratification of treaties by a legislature can complicate diplomacy see Lloyd E. Ambrosius, Woodrow Wilson and the American Diplomatic Tradition: The Treaty Fight in Perspective (Cambridge University Press, 1990).
[19] Harold Nicholson, The Evolution of Diplomatic Method: being the Chichele lectures delivered at the University of Oxford in November 1953 (MacMillan, 1954) 89–90.
[20] Hardin, above n 16, 103–19, 115–16 draws a distinction between deliberations on public policy by officials and by ordinary citizens; concluding that the former is not democratic and the latter is impracticable as a method for governmental decision making. However, in asserting that the theory of deliberative democracy focuses on legislative and popular deliberation, he seemingly excludes from that ‘focus’ ordinary methods for giving citizens formal rights to a hearing by governmental agencies.
[21] Some parliamentary deliberations are done in camera.
[22] Bohman argues that political deliberation is best carried out in an open public forum, because the quality of the reasons for political decisions is likely to improve, which naturally improves the outcomes of those decisions. James Bohman, above n 16, 27.
[23] For a discussion of how discussion ‘adds value’ to decisions see James D Fearon, ‘Deliberation as Discussion’, in Jon Elster (ed), Deliberative Democracy (Cambridge University Press, 1997) 44–68; Gutmann and Thompson, ‘Democratic Disagreement’, in Stephen Macedo (ed), Deliberative Politics (Oxford University Press, 1999) 243–79; Thomas Christiano, ‘The Significance of Public Deliberation,’ in Bohman and Rehg (eds), above n 3, 243–77, 244–58 (who emphasises the intrinsic worth of public deliberation); Christian F Rostboll, Deliberative freedom: deliberative democracy as critical theory (State University of New York Press, 2008) 206–7, 151 (who posits the epistemic value of public deliberation, which ‘frees’ us); Michael Rabinder James, Deliberative Democracy and the Plural Polity (University Press of Kansas, 2004) (who argues that ‘plural’ deliberation provides ‘specifications for reforming processes and redesigning institutions’); Stanley Fish, ‘Mutual Respect as a Device of Exclusion’, in Stephen Macedo (ed), Deliberative Politics (Oxford University Press, 1999) 88–102.
[24] James Surowiecki, The Wisdom of Crowds (Doubleday, 2004) 184–6.
[25] Cass R Sunstein, ‘Misery and Company’ (22 October 2008) The New Republic 39–43, <https://newrepublic.com/article/61718/misery-and-company>.
[26] Where decisions are made in what have been properly assessed as simple contexts (‘the realm of known knowns’) or, their polar opposite, chaotic contexts (‘the realm of unknowables’) ‘command-and-control’ decision making generally works best: David J Snowden and Mary E Boone, ‘A Leader’s Framework for Decision Making’, Harvard Business Review (Watertown, Massachusetts, 2007) 68–76. Nonetheless, all decision making is a process—which should include properly assessing the context in which a decision must be made—and open inquisitive decision making processes usually make for better decisions. David A Garvin and Michael A Roberto, 'What You Don't Know About Making Decisions' (2001) 79(8) Harvard Business Review 108, 110–1. Cf Jack Night, ‘Constitutionalism and Deliberative Democracy,’ in Stephen Macedo (ed), Deliberative Politics (Oxford University Press, 1999) 15969; Amy Gutmann and Dennis Thompson, ‘Democratic Disagreement’ (Belknap Press of Harvard University, 1996); Stephen Macedo (ed), Deliberative Politics (Oxford University Press, 1999) 243–79 (see especially at 245); cf Snowden and Boone, above n 26, 68–76, 74–5.
[27] See generally Dewey, The Public and its Problems, above n 17, 166–219 on how true liberty springs from the social communion of democracy (namely, individuals cooperating democratically with each other to improve society and enjoying the benefits of such cooperation). Cohen argues in a similar vein (albeit more prosaically than Dewey) that when properly conducted ‘democratic politics involves public deliberation focused on the common good.’ Joshua Cohen, 'Deliberation and Democratic Legitimacy,' in James Bohman and William Rehg (eds), Deliberative Democracy: Essays on Reason and Politics (MIT Press, 1997) 69.
[28] James D Fearon notes that a major argument for ‘deliberation’ about political decisions is that such deliberation is inherently moral: the right of all to participate in the deliberation legitimises the cognate decision. Elster, above n 23, 44–68, 60–1. However, according to Bohman, above n 16, at 27, ‘public deliberation’ is not so much a form of discourse or argumentation as a joint, cooperative activity, which—by definition—excludes much deliberation in public forums. (Cf Ian Shapiro ‘Enough of Deliberation: Politics is about Interests and Power’ in Stephen Macedo (ed), Deliberative Politics: Essays on Democracy and Disagreement (Oxford University Press, 1999) 28–38; Fish, above n 23, 88–102.)
[29] Surowiecki, above n 24, 40–65.
[30] Ibid 271.
[31] John Rawls posits that democracies’ constitutional ‘need for dubiety’ is an attribute of their ‘reasonable pluralism.’ Rawls argues that, although there are no absolute truths, as a matter of ‘public reason’ there must still be a peremptory acceptance of ‘a constitutional democratic regime and its companion idea of legitimate law.’ John Rawls, ‘The Idea of Public Reason Revisited,’ in John Rawls, The Law of Peoples: The Idea of Public Reason Revisited (Harvard University Press, 2001) 131–2. Cf Peter G Danchin ‘Whose public? Which Law? Mapping the internal/external distinction in international law’, in Jeremy Farrall and Kim Rubenstein (eds), Sanctions, Accountability and Governance in a Globalised World (Cambridge University Press, 2009) 27–52, 40–6.
[32] Cf John Rawls’ ‘common good idea of justice’, which envisages ‘a family of representative bodies’ whose role in society’s hierarchy is to participate in consultation procedures. Rawls, above n 31, 71.
[33] Cf Iris Marion Young, ‘Justice, Inclusion and Deliberative Democracy’, in Stephen Macedo (ed), Deliberative Politics: Essays on Democracy and Disagreement (Oxford University Press, 1999) 151–8; Night, above n 26, 159–69.
[34] ‘Expertise, the high degree of division of labour, new technologies, and many more factors also seem to put many current issues beyond the grasp of even the best-informed citizens. Popular sovereignty ... seems to be the first casualty of complexity.’ Bohman, above n 16, 151. Further, given that a single electoral vote rarely effects an election result the rational voter cannot be expected to try that hard to master such complexity, Macpherson, above n 3, 188–9.
[35] ‘There can be no public without full publicity in respect to all consequences which concern it. Whatever obstructs and restricts publicity, limits and distorts public opinion and checks and distorts thinking on social affairs.’ Dewey, above n 17, 167.
[36] Cf Uhr, above n 3, 224–7.
[37] For a history of the constitutional evolution of the Ponsonby rule see Ministry of Justice, United Kingdom, The Governance of Britain: War Powers and Treaties: Limiting Executive Powers (Consultation Paper CP26/07) (2007) [122–30]. See also Ministry of Justice, United Kingdom, ‘Governance of Britain – Views Sought on Strengthening the Role of Parliament’ (Media Release, 25 October 2007). A government paper The Governance of Britain presented to Parliament (by Jack Straw MP, the Secretary of State for Justice and Lord Chancellor) in July 2007 proposed consultations on appropriate means to put the Ponsonby Rule on a statutory footing. See John Straw, United Kingdom, The Governance of Britain (Paper presented to Parliament, July 2007).
[38] Commonwealth, Parliamentary Debates, House of Representatives, 10 May 1961, 1693-4 (Robert Menzies, Prime Minister and Minister for External Affairs).
[39] Brian Opeskin, ‘The Role of Government in the Conduct of Australia’s Foreign Affairs’ [1994] AUYrBkIntLaw 4; (1994) 15 Australian Year Book of International Law 129, 138–9.
[40] For example, Ninian Stephen, ‘Making Rules for the World’ (1995) 30(2) Australian Lawyer, 13–14.
[41] For an historical summary of legal views on this capacity see David Solomon, The Political Impact of the High Court (Allen & Unwin, 1992) 29–33.
[42] See US v Belmont, [1937] USSC 98; 301 US 324 (1937).
[43] Cf the opposite consequence in the United States in, for example, the case of Bethlehem Steel Corporation v Board of Commissioners 276 Cal App 2d 299. See also National Foreign Trade Council, Appellate Brief Filed by the National Foreign Trade Council in its Case Against the State of Massachusetts' Burma Law (9 March 1999) <http://archives.usaengage.org/archives/background/lawsuit/NFTCbrief.html> .
[44] See Canada (AG) v Ontario (AG) [1937] AC 326 (‘Labour Conventions’). See also MacDonald v Vapor Canada Ltd [1977] 2 SCR 134 at 168–9; C Wilfred Jenks, ‘The Constitutional Capacity of Canada to Give Effect to International Labour Conventions’ (1935) 17 (1) Journal of Comparative Legislation and International Law 12, 12–30. Friesen observes that ‘the Labour Conventions model’ of treaty-making creates many difficulties and suggests (at 1450) that a ‘workable improvement’ would be to give a federal government the power to pass laws to implement treaties, from which the ‘sub-federal units’ (provinces) may ‘opt out.’ Jeffrey L Friesen, ‘The Distribution of Treaty-implementing Powers in Constitutional Federations: Thoughts on the American and Canadian Models’ (1994) 94 (4) Columbia Law Review 1415, 1415–50.
[45] But cf Allan Gottlieb, Canadian Treaty-Making (Butterworths, 1968) 74–9.
[46] ‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’ Australian Constitution s 109.
[47] Opeskin, above n 39, 142.
[48] [1982] HCA 27; (1982) 153 CLR 168.
[49] International Convention on the Elimination of All Forms of Facial Discrimination, open for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).
[50] [1983] HCA 21; (1983) 158 CLR 1.
[52] Convention for the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972, 1037 UNTS 151 (entered into force 7 December 1975).
[53] [1995] HCA 20; (1995) 183 CLR 273 (‘Teoh’s Case’).
[54] Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans QC, and the Attorney-General Michael Lavarch MP: International Treaties and the High Court in Teoh, 10 May 1995. See further W Lacey ‘In the Wake of Teoh: Finding an Appropriate Government Response’ [2001] FedLawRw 10; (2001) 29(2) Federal Law Review 219.
[55] Communication No 488/1992, 50th sess, UN Doc CCPR/50/D/488/1992 (5 November 1992).
[56] International Covenant on Civil and Political Rights, signed 16 December 1966, 999 UNTS 171, (1967) 6ILM368 (entered into force 23 March 1976).
[57] See further Brian Opeskin and Donald Rothwell, ‘The Impact of Treaties on Australian Federalism’ (1995) 27 Case Western Reserve Journal of International Law 1, 49–54.
[58] For example, Stephen, above n 40, 13–14. Cf Daryl Williams, ‘Australia’s Treaty-Making Processes: The Coalition’s Reform Proposals’, in Philip Alston and Madelaine Chiam (eds), Treaty-Making and Australia: Globalisation versus Sovereignty (Federation Press, 1995) 185–95. The term ‘democratic deficit’ was reportedly coined in the context of European Community institutions (see Australian Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (1995) 229).
[59] Department of Foreign Affairs and Trade (Cth) ‘Government Announces Reform of Treaty-Making (Media Release, FA29, 2 May 1996 <http://foreignminister.gov.au/releases/1996/fa29.html> .
[60] Ibid.
[61] Where the Foreign Minister considers that delaying a treaty action would be detrimental to the national interest then that treaty action may be taken before it is tabled.
[62] Foreign Affairs, Defence and Trade References Committee (Cth), Defence and Trade Inquiry into the Commonwealth’s Treaty-making Process, (Senate, 18 June 2015) <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/Treaty-making_process> .
[63] Foreign Affairs, Defence and Trade References Committee (Cth), Blind Agreement: Reforming Australia’s Treaty-making Process (Senate, 2015).
[64] Ibid ch 6, 6.2, 6.5.
[65] Ibid ‘Dissenting Report by Coalition Senators.’
[66] The reforms were reviewed in 1999. See Department of Foreign Affairs and Trade, Review of the Treaty-making Process (Department of Foreign Affairs and Trade, Canberra, 1999).
[67] Department of Foreign Affairs and Trade, Submission No 59 to Senate Standing Committee on Foreign Affairs Defence and Trade, Inquiry into the Commonwealth’s Treaty-making Process, 25 February 2015, 9.
[68] Ibid.
[69] Joint Standing Committee on Treaties (Cth), ‘A History of the Joint Standing Committee on Treaties: 20 Years’ Forward (Australian Government Publishing Service, Canberra, 2016) vi.
[70] Glen Cranwell, ‘The Treaty Making Process in Australia’ (2001) 8 Australian International Law Journal 177.
[71] Ibid 206, citing Lord Lester of Herne Hill statement in the House of Lords, United Kingdom, Hansard, House of Lords, 12 January 1999, Column 131.
[72] James Crawford, ‘International Law and Australian Federalism: past, present and future’, in Brian Opeskin and Donald Rothwell (eds), International Law and Australian Federalism (Melbourne University Press, 1997) 325, 336–7.
[73] See Department of Foreign Affairs and Trade (Cth) The Australian Treaties Database <http://www.info.dfat.gov.au/treaties> (via DFAT) and Australasian Legal Information Institute AustLII <http://www.austlii.edu.au/dfat/> (via AustLII).
[74] Joanna Harrington, ‘Redressing the Democratic Deficit in Treaty Law Making: (Re) Establishing a Role for Parliament’ (2005) 50(3) McGill Law Journal 465. See also Harrison’s suggestion that JSCOT should be used as a model for other Commonwealth countries, ibid 491.
[75] See Blackstone, above n 6.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/JlLawInfoSci/2016/2.html