Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the Joint Standing Committee on Treaties, I present two reports of the committee, report No. 77 on treaties tabled on 20 June and 8 August 2006, and report No. 78, Treaty scrutiny: a ten year review. I seek leave to move a motion in relation to the reports.

Leave granted.

I move:

That the Senate take note of the reports.

Report 77 contains the findings and binding treaty action recommendations of the committee’s review of six treaty actions tabled in parliament on 20 June and 8 August 2006. Report 78 contains a report of the seminar held in March this year to mark the 10th anniversary of the Joint Standing Committee on Treaties. I will comment on report 77 and then report 78.

The committee found all the treaties reviewed in report 77 to be in Australia’s national interest. The committee is continuing its review of the amendments to article 3 of the Australia New Zealand Closer Economic Relations Trade Agreement and a promotion and reciprocal protection of investments treaty with Mexico, tabled on 28 March and 20 June respectively. The committee is also inquiring further into the China uranium transfer and safeguards agreements tabled on 8 August. I will comment on the treaties reviewed in report 77.

The Agreement relating to Scientific and Technical Cooperation between the Government of Australia and the Government of the United States of America will build upon and strengthen the science and technology relationship between Australia and the US, established under its predecessor agreement. The agreement, by establishing guiding principles, will provide for shared responsibility in collaborative activities and the equitable sharing of costs and benefits. The agreement will also expand opportunities for collaboration between agencies and serve to enhance research links between Australia and the US.

The Amendments to the Convention on the Physical Protection of Nuclear Material amend the convention of the same name and will serve to strengthen the objectives of the convention, which ensures that nuclear material is adequately protected when transported internationally, in addition to extending this protection to nuclear facilities and material in peaceful domestic use, storage and transport. The amendments also provide for cooperation between and among states to assist in the detection and recovery of any stolen or smuggled nuclear material, mitigate any radiological consequences of sabotage and prevent and combat related offences.

The Exchange of Notes constituting an Agreement between the Government of Australia and the Government of Japan to replace the Delineated and Recorded Japanese Nuclear Fuel Cycle Program adds the UK’s Sellafield plant and Japan’s Rokkasho fuel fabrication plant at which Japan may undertake mixed oxide fuel fabrication. The delineated and recorded Japanese nuclear fuel cycle program is a treaty level implementing arrangement between the government of Australia and the government of Japan, was entered into as part of the Australia-Japan Nuclear Safeguards Agreement in 1982 and sets out how the Australia-Japan Nuclear Safeguards Agreement is to operate in practice. Australia ensures that Japan meets its obligations under the Australia-Japan Nuclear Safeguards Agreement through an established system of safeguards, including a permanent office of International Atomic Energy Agency inspectors located in Japan, and through the reconciliation of accounts.

The amendments to the Singapore-Australia and Australia-United States free trade agreements to ensure compliance with changes to the Harmonized Commodity Description and Coding System will, through changes to how goods are identified, seek to avoid possible confusion and subsequent delays in processing of goods by customs authorities.

The International Health Regulations 2005 will prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with, and restricted to, public health risks, and which avoid unnecessary interference with international traffic and trade.

Mr President, I would now like to comment on report 78. Report 78 contains a report of the seminar held in March this year to mark the 10th anniversary of the Joint Standing Committee on Treaties. The Joint Standing Committee on Treaties was established in 1996 as part of a package of reforms to the treaty making process. Since then, the committee has tabled recommendations on over 380 treaty actions in 77 reports. Prior to the establishment of JSCOT, during the 1970s treaties were tabled in parliament but often in a manner which prevented meaningful parliamentary scrutiny or input. Treaties were tabled in bulk, approximately every six months and often after they had entered into force.

By the 1990s Australia had entered into a period of negotiating a broader range of treaties—some of them quite controversial. There was also a growing awareness that international obligations affected domestic legal regimes and policy responses to a wide range of national issues. In recognition that parliament ought to be able to scrutinise Australia’s international treaty obligations, JSCOT was established in May 1996.

Four other key reforms were introduced at the same time that JSCOT was established. These consisted of: (1) the tabling of treaties in parliament for a minimum of 15 sitting days before the government takes binding treaty action; (2) the tabling of National Interest Analyses to explain the reasons for the government’s decision to enter into the treaty and to detail the impact the treaty would have on Australia; (3) the establishment of a treaties council as an adjunct to the Council of Australian Governments to consider treaties and other international instruments of particular sensitivity to the states and territories; (4) the establishment of a treaties information database for individuals and interested people to easily and freely obtain information on any treaty.

A fifth reform involved a change to the Standing Committee on Treaties, or SCOT as it is otherwise known. SCOT was not established as part of the 1996 reforms but its role and functions were formalised as a result. The treaties committee has a dual role in providing for the parliamentary scrutiny of treaties and in increasing the transparency of the treaty scrutiny process. As part of its role in providing a more transparent treaty making process, the committee also functions as a check that adequate consultation has taken place. After 10 years of JSCOT it was fitting that a seminar be conducted to assess the 1996 reforms and to look more broadly at the role of the legislature in the treaty making process, both here and overseas.

On 30 and 31 March this year, the committee held a seminar to consider the role and effectiveness of the committee, the treaty making reforms and the role of parliaments in the treaty making process. The seminar commenced with a reception hosted by the Presiding Officers of the Commonwealth parliament and a dinner addressed by the Minister for Foreign Affairs and the shadow minister for foreign affairs and trade and international security.

The following day the seminar heard from a diverse range of people who were involved or interested in the treaty scrutiny process. Some of the issues which participants considered were:

• has the Joint Standing Committee on Treaties made the treaty making process more democratic, transparent and accountable?
• how adequate is the consultation between the Commonwealth and the states and territories in relation to treaties? How could it be more effective?
• how has the failure of the Treaties Council to meet more than once since 1996 had an impact on the treaty making process?

The seminar also provided an opportunity to consider recent trends in treaty making, such as the increase in free trade agreements, treaties with regional neighbours and climate change treaties. Finally, the seminar provided the opportunity to consider the committee’s role, and Australia’s treaty making processes, in an international context.

It is clear from the seminar that the committee is a successful and effective body and was considered by seminar participants to be the strongest performer of the 1996 reforms. The report contains a detailed summary and analysis of the issues discussed at the seminar.

I commend both reports to the Senate.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I also would like to speak on reports Nos 77 and 78 of the Joint Standing Committee on Treaties, particularly on report No. 78, Treaty scrutiny: A ten year review. As Senator Wortley has pointed out, the report basically summarises a seminar or forum that was held to mark the 10th anniversary of the scrutiny of treaties. I was not able to attend that seminar because I was chairing a different committee hearing on that particular day.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Not any more: you’ve been dumped like the rest of us!

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

Thankfully I have now been freed of that onerous responsibility, Senator Marshall. It was very kind of the government to take that away from me. Perhaps I will have more opportunity in future. Report No. 78 is definitely worth reading for people who want a good overview of the history of this matter, of the work of the committee and various opinions on it over a 10-year period. I certainly do not dissent from it at all. I signed off on it as a member of the committee. I want to take the opportunity to make some comments of my own about the history of the committee’s role in reviewing treaties, the lead-up to its implementation and where it should go from here. I am currently a member of the committee; I have been on and off a few times over the period I have been in the Senate. Back through the early 1990s, the Democrats agitated quite regularly for a much stronger role for the parliament in reviewing the very large number of treaties that the Australian government enters into. There has often been a lot of fairly exaggerated talk about the Australian government handing away our sovereignty to international bodies when we enter into these treaties. The fact that this committee was established has been a mechanism to show that a lot of that rhetoric is completely unfounded. That is not to say that—

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

That is why it was established. You are completely off the point, Senator.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

Thank you for your usual erudite and typically ignorant contribution, Senator Kemp.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

The one thing I know about is why that committee was established.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

Thank you, Senator Kemp. I happen to recall as well. You try to say something positive about this government and they still have to come across and slag you off in a typical pig ignorant way. It is extraordinary; their arrogance is unbelievable. They cannot let you get to the end of a sentence without misinterpreting what you are saying, when you are about to give them a compliment, and they try to say that you do not know what you are talking about. You are right: sorry, I do not know what I am talking about and I do not know why I was trying to give you a compliment. Clearly, that was stupid of me! The treaties committee, when it was established, did go some way to enabling the scrutiny of treaties.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Mr President, on a point of order: normally I do not respond to these rather childish comments that Senator Bartlett makes. The history of this period is that there was a lot of concern in the Senate, including among members of the Democrats, which led to the establishment of this committee. They were not trite comments and they were not foolish comments that people made. The fact is, Senator Bartlett, that you do not understand the history.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Kemp, I have noted what you said but there is no point of order.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

The minister continues to display his ignorance by again misrepresenting what I was partly through saying and by demonstrating that he does not know what a point of order is. If, for once, the minister could actually listen, what I was saying is there are many people in the wider community who used to make quite outrageous statements about the distorted nature of international agreements and who used to suggest that such things were giving away Australia’s sovereignty. There were many people—including the Democrats, as I said—who agitated in this place throughout the early 1990s to give the parliament a greater role in scrutinising those agreements. Indeed, the Democrats suggested that the parliament should have the opportunity to vote down international agreements in the same way as we do with various regulations and delegated legislation.

It is a strange anomaly that we have the potential in this parliament to vote down minor details of subordinate legislation, regulations and minor ordinances but we do not have the power to vote down major international treaties, as of course many other parliaments around the world do. Nonetheless, the fact that this government went halfway towards allowing some scrutiny of treaties was a positive development. After the completely stupid and arrogant contribution by Senator Kemp just then, it pains me to note that Senator Kemp had a positive role to play in that. Obviously since then his overpowering arrogance has completely enabled him to ignore the contribution by anybody else except himself in that particular role.

It is very important to emphasise that, whilst this has provided some improvement in scrutiny and has allowed the parliament to demonstrate that the grossly overstated complaints of some in the community about the nature of international agreements was indeed overstated, it has nonetheless shown its limitations over the 10-year period. I think what we have seen over the period of 10 years is an indication that whilst the process to date has its positive mechanisms it could be made to be more positive. I would still like to see the parliament able to negate treaties—and I realise that would be a fairly significant shift—but regardless of that I do think the committee itself could take a more proactive role.

I would point to one of the lower points in the history of the Joint Standing Committee on Treaties over the 10-year period, when it refused to consider a reference from this Senate chamber to consider a proposed treaty action. In fact, it refused to do so more than once. I thought that was probably the lowest point in the committee’s history. The committee had a clear-cut reference from this Senate chamber asking it to examine a matter regarding the Australian government’s ongoing negotiations with the US government to see if the US could be exempted from the provisions of the International Criminal Court. It was on the public record a number of times that Mr Downer said he was pursuing the matter. This Senate passed a resolution asking the treaties committee to examine the matter, and the committee simply refused to do so. That is an example of a problem that occurs when a committee is government dominated and when you have the sort of arrogance from government members that Senator Kemp has so effectively demonstrated. Arrogance and ignorance are a pretty horrible combination to subject a parliament to, and it is unfortunate when it starts to infect parliamentary committees. Whilst the committee has performed a useful role, it has nonetheless fallen short of its potential.

It did take a proactive role on a few occasions—most particularly, for example, with the MAI, the Multilateral Agreement on Investment that was proposed at one stage. It was a clear time when the committee did not wait until the government had finished all its work in negotiating a treaty, wait until it was tabled and then look at it. What it did was to take account of the fact that there was consideration being given to a possible international agreement being adopted, and it initiated its own inquiry to take evidence from the government and to hear concerns from the community and the public on that issue. It enabled public input into the issue prior to the treaty being agreed to.

That is the area where I think the committee could do a lot more effective and proactive work. At the moment, most of the time but not all of the time—indeed, the hearings this morning would be one example—the committee waits until the process is completely finished and the treaty has been negotiated and tabled in this place prior to it being adopted and then it investigates. That is fine on the vast majority of occasions. A huge number of agreements are adopted each year, many of which are uncontroversial, and that is the right way to do things. But occasionally there are incidents where it would be beneficial even for the government—assuming that we had a government that listened to anybody, which of course we do not have at the moment; but one day we will have a government that feels as though it needs to listen to the community—to hear public input in advance of when a treaty is negotiated rather than at the end. I think that is the area where the treaties committee could move on to the next stage and be much more proactive in its work and much more involving of the community and community input. It is that aspect of the committee process that has always been the most beneficial and where I would urge the committee to go from here. I seek leave to continue my remarks later.

Leave granted.

Debate adjourned.