4C Hilary Charlesworth, Madelaine Chiam, Devika Hovell & George Williams ‘Deep Anxieties Australia and the International Legal Order’ (2003 ) 25 Syd LR 423, 424– 446 PDF

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Seminar 12 Daniella Abal Tut 12 SID 490401147 4C Hilary Charlesworth, Madelaine Chiam, Devika Hovell & George Williams ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25 Syd LR 423, 424– 446 Reading 4C discusses some interesting points on the anxieties of the executive towards international law, and the relative flexibility they have in the enforcement of treaties and their obligations. The authors highlight that reforms to the treaty making process in 1996 did bring some improvements, such as the implementation of JSCOT, NIA and the tabling in Parliament of all treaty actions, which give greater awareness and scrutiny to the accompanying obligations. However, even such changes have seen little review themselves, and it is clear that there still exists a lack of enforceability of recommendations of JSCOT and the obligations themselves, given Parliament does not have to implement any reviews made by these independent bodies. Whilst the executive and Parliament are not acting ‘outside’ the law, given the flexibility of the Constitutional framework and their governing powers, there is a superseding of what is meant to be the ‘normal practice’ in current treaty making processes. In my opinion, it highlights the following question; should the Parliament be made accountable to the public to fulfill treaty requirements, and if so, who/what can hold them accountable if they fail to do so? In my opinion, I do believe that given the Parliament is acting on behalf of public interest, it follows that there is an equal failure both to the international body the treaty is sourced, as well as the greater Australian public. As the authors mention in 4C, Australia is relatively Janus faced, an approach that I believe needs to be broken down and given greater scrutiny and consequence. It is clear that international governing bodies like the UN lack of enforceability have in ensuring the fulfillment of treaties, so bestowing power to them is not likely. Perhaps a better solution would be to bestow greater authority to review bodies like JSCOT and their recommendations, so that if not adhered to by Parliament there can be some identifiable consequence. However, I am unsure how to legally enforce this, given the lack of definitional outline in the Constitutional framework surrounding international law. In saying this, something does need to be done to deter the unfulfillment of international treaties and obligations through domestic law, as there is a need for greater accountability and transparency in the treaty making process.

Should there be penalty/consequence?? due to these anxieties associated within international law. reinforces that there is a lack of transparency ●

Highlights question; Beyond the treaty itself, is the executive accountable to the public to fulfill treaty requirements in domestic law? ○ Who can hold the government accountable, given that the drawbacks of international governing bodies like the UN lack enforceability. ○ Should there be penalty/consequence?? ■ JSCOT provides recommendations, if not adhered to no consequence etc. → should it hold higher authority in enforcement? ○ I think there does need to breakdown this Janus approach to international law, given that it is act of empty promises for reputation or other disingenuous agendas. However, I also understand that it may be difficult to punish under Constitution given it lacks definition or outline. But in increasing enforceability of obligations, it in turn suggests some form of consequence for not doing this to deter the unfulfillment of international treaties and obligations through domestic law.

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Constitutional Framework ○ Constitution says little about international law ■ S51 ● Federal parliament has power to enact legislation in respect to ‘external affairs ■ S75 High Court has original jurdicition in relation to ‘matters arising under a treaty’ ■ Does not make reference to: ● The method of Australia’s entry into binding legal relationships on the international stage ● The legal effect of international law within the domestic legal system ● Responsibility for enforcement of such obligations at the domestic level

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Done so due to ■ Imperial government had exclusive control over Australia’s foreign relations → drafters did not want to include any provision that might suggest Australia was entitled to enter into treaties on its own behalf ■ Concern for the international law nature → perceived as not actualy law, but discretionary norms that states could neglect at will → could not be enforced ○ Lack of provision in the Australian Constitution means that the Australian legal system is able to accomodate such changes although manner in which it should be done is not specificed → left to executive, legislature and judiciary Executive and international law ○ Central role in determining extent international law affects the domestic legal system ■ Governor General exercises powers of the Queen ○ Executive has power to assume international obligations ■ Not subject to legislative or constitutional limits ■ Maintained through procedural mechanisms → negotiations taken at ministerial level, in many cases by the Cabinet ■ Introduction of reforms to Australia’s treaty making process in 1996 → ratification has also become contingent on fulfilment of the parliamentary scrutiny procedures. ● Does not legally constrain the executive in its decisions as to whether or not to ratify a treaty ■ Can also withdraw from a treaty according to treaty obligations ■ 2000 → government review of the operation of UN treaty committee system as it affects Australia ● Results never released to public, but prompted the creation of two interdepartmental committees to review Australia’s ongoing interactions with the UN ● Highlights the anxieties prompted by invocations of international law, and review of public interest was conducted privately → require greater transparency and accountability with treaty making process ● Left australian in uncertain position in its international human right obligations ■ Protecting Australian sovereignty key argument in Australian unease about accepting international obligation ○ Executive has power to outline implementation domestically ■ Can occur inter alia, through the introduction of executive control of Parliament through reliance on existing Commonwealth or state legislation ■ If treaty imposes obligatyions only on gov can occur through adminisrative measures made under the executive power.

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Australia can be described as ‘Janus-faced’ ● Will enter treatties but fails to implement ● International vs domestic face ■ Attorney General’s department responsible for determining if existing legislation is sufficient or new legislation is necessary to give effect to a treaty ■ Commonwealth gov must decide whether to engage the states in co-op implementation or impose relevant changes on states through s51 (tends to avoid latter) ■ Domestic implementation is usubject to political priorities of the day and anziety generated by internatinal law → inconsistencies ● Yet commonwealth governments of different political views united in negative reaction to a judicial decision that gave international obligations to domestic force ○ In Teoh → Vision of international law functioning without restraint within Aus, considerable poltical anxiety ○ Belief Australian law should be made by Australians The Legislature and International Law ■ Reforms in 1996 ● Five aspects ○ Tabling in Pariament of all treaty actions proposed by the Government in Parliament for at least 15 sitting days before binding action is taken → 2002 extended to 20 days ○ Preparation of a National Interest Analysis for each treaty, outlining information including the obligations contained in the treaty and the benefits for Australia of entering into the treaty ○ Establishment of the parliamentary Joint Standing Committee on Treaties ■ Most influential ■ Prior to JSCOT, treaties could be referred to existing Senate Standing Committees, but usually failed due to political reasons ■ Dedicated to scrutinising treaties→ empower to inquire into and report on ● Matters arising from treates ● Any wuestion relation to a treaty or other International instrument, ■ Has recommended the taking of binding treaty action by the executive ■ Usuaully takes consensus outcomes as opposed to dissenting reports against the government → takes politic approach to its reports, makes

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recommendations that will be adopted by government than take a strong stance that may be ignored ■ Committee does not consider itself to be a rubber stamp for executive action → takes its role seriously, with concern ● Coalition gov generally enthusiatic to JSCOT but slow response to recommendations ■ No independent or systematic review of JSCOT or the 1996 reforms → unquestioning acceptance of the success of the reforms at improving transparency and accountability within Australia’s treaty making process ● Parliament embrace of improvements not clear ■ JSCOT → used as a toool of political management → executive can channel protest, deflect opposition and in essence legitimise its own policy preferences ■ JSCOT does not seem to reduce executive anxieties about international law→ executive still maintains dominant role in Aus relationship with international law ○ Establishment of Treaties Council → PM, premiers and chief ministers ■ Has only met once to date to disucss international instruments including the World Trade Organisation Agreement on Government Procurement and the Draft Declaration on the Rights of Indigenous Peoples ■ Lack of activity due to overlap and confusion with the role of Commonwealth/State and Territory Standing Committee on Treaties ● Mandated to meet twice a year, identify treaties and other international instruments of importance to the states and follow negotiation and implementation process ○ Australian Treaties Library Implementing Legislation ● Parliament has important role in determining the form and content of legislation to implement certain international obligaions

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Does not itself draft the legislation, but exercises considerable control over the terms of that legislation through the debate and amendment process. ● Normal practice requires legislation be passed before seeking Executive Council approval to enter treaty → ensure avoidiance of risk that Australia could enter a treaty and becoming internationally obliged to treaty it cannot fulfill ● Unclear how closely the gov adheres to this process of treaties being ratified before being tabled ● JSCOT has raised concerns that legislation implementing treaties is being introduced or passed before JSCOT has completed its inquiries into the relevant treaties Inconsistencies in practice in relation to parliamentary scrutiny and impementing legislation leave Parliament with an uncertain role Despite Parliament’s formal powers of scrutiny, both through treaty tabling and JSCOT, it is open to executive to ignore the recommendations of JSCOT and the parliamentary process in general. If the executive also consistently fails to put implementing legislation in place before binding treaty action, or if it introduces implementing legislation before JSCOT has completed its inquiries, the impact of any parliamentary scrutiny is undermined....