Ratification of Treaties

The Abbott government is contemplating signing up to the Trans-Pacific Partnership Trade Agreement (about which there are serious worries, http://www.crikey.com.au/2011/11/14/beware-of-what-lurks-beneath-free-trade-agreements/) and to a “free trade” agreement to China. He seems to have told China that he will accept whatever is on offer at a certain date (http://www.macrobusiness.com.au/2013/10/open-for-business/).

Labor should propose legislation requiring Parliamentary approval for treaties before ratification. At present the executive government, by virtue of the royal prerogative, can commit Australia bindingly to a treaty and then ask Parliament to legislate to implement the commitment (http://en.wikipedia.org/wiki/Ratification#Australia). Instead, Parliament should have to authorise the commitment. The fact that under the US Constitution (art.2 para.2) the Senate has to approve a treaty gives US negotiators a strong hand.

See Hilary Charlesworth , Madelaine Chiam, Devika Hovell, and George Williams, No country is an island : Australia and international law (Sydney: University of New South Wales Press, 2006): “Australia’s obligations under a treaty stem from the terms of the treaty itself, not from the implementing legislation… there are legal ramifications for Australia if its domestic legislation does not implement the treaty obligations accurately”, p. 137. The implementation of the AUSFTA in respect of the PBS was a case in point: “If… the United States had determined that Australia’s legislation was not in conformity with the AUSFTA terms, it could have refused to ratify the treaty or it could have ratified the treaty and then brought an action against Australia for breach of the AUSFTA. Either situation would have involved serious consequences for Australia”, p. 138.