Being an island has never been so irrelevant - Treaties and Sovereignty

Twenty years ago, the Australian Parliament established the Joint Standing Committee on Treaties with a view to improving the openness and transparency of the treaty-making process in Australia.

Australia is a signatory to many treaties and conventions. They can be bilateral (between Australia and another country) or multilateral (with several countries) or international (such as those arising from our membership of the United Nations).

As a nation, Australia exercises its sovereignty when it chooses to enter treaties. No-one forces Australia to enter into them, but the reality of growing interdependence among states, global economic integration and transnational technological innovation makes treaties necessary.

Being an island has never been so irrelevant to Australia’s place in the world.

In the human rights field alone, we have agreed to be bound by a dozen UN conventions ranging from women’s rights to the rights of the child and the status of refugees.

Australia’s commitment to United Nations’ conventions sometimes arouses disquiet. It is claimed that we lose national sovereignty when we ratify them: that ‘they’ end up telling ‘us’ what to do.

It is true that treaties, once ratified, bind us to international law, which imposes limitations on our behaviour as a state. However, the decision to ratify a treaty is based on an assessment by government of benefits in relation to limitations on possible actions.

Governments have the right to remove themselves from treaties they deem no longer in the national interest. And, most importantly, the people have the right at election time to remove from office any party they believe has entered into treaties or conventions that are not in their interests.

According to the Department of Foreign Affairs and Trade’s Treaty-making process:

‘The power to enter into treaties is an executive power within Section 61 of the Australian Constitution and accordingly, is the formal responsibility of the Executive rather than the Parliament. Decisions about the negotiation of multilateral conventions, including determination of objectives, negotiating positions, the parameters within which the Australian delegation can operate, and the final decision as to whether to sign and ratify are taken at Ministerial level, and in many cases, by Cabinet’.

But it doesn’t end there. Only the Parliament can pass laws that give effect to treaties and conventions; though this is not always required as existing laws are sometimes adequate.

Treaty laws are made possible by Section 51 (xxix) of the Constitution, pertaining to the ‘external affairs’ power.

The High Court is our ultimate interpreter of laws. In 1995, the Court gave unprecedented significance to the ratification of international treaties (specifically the Convention on the Rights of the Child) in the case of Minister for Ethnic Affairs v. Ah Hin Teoh. It found that, as far as possible, laws and their provisions should be interpreted consistently with international obligations:

‘…the fact that the Convention [on the Rights of the Child] has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party…’

And,

‘…ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention’.

The Minister for Foreign Affairs at the time, Gareth Evans, and the Attorney-General, Michael Lavarch, disagreed with that conclusion and issued a response saying that entry into a treaty was no reason for raising any expectation that government decision-makers would act in accordance with the treaty.

The tension between international treaty obligations voluntarily entered into, on one hand, and perceptions of national interest on the other, is ongoing.