|Executive Summary |
|1 ||The Committee has inquired into the administrative practices and procedures and parliamentary processes involving treaties entered into, or proposed to be entered into, by the Commonwealth Government.|
|2 ||As a result of its inquiries, the Committee has made the following findings in relation to Western Australia’s legal status in the treaty-making process:|
The negotiation and execution of treaties is a function of the Executive Government at either State or Commonwealth level.
Municipal legislation giving effect to treaties that have been duly executed by the Commonwealth Government is subject to the scrutiny of the Commonwealth Parliament.
Any statute of the Commonwealth Parliament that purports to be pursuant to a treaty executed by the Commonwealth Government is reviewable by originating summons in the High Court of Australia. The power to bring a High Court action on behalf of the Crown in right of the State of Western Australia is an executive power that resides with the Attorney General for Western Australia.
Any valid exercise of the treaty-making power of the Commonwealth Government, and a subsequent valid amendment to the municipal law of Australia by the Commonwealth Parliament, are binding on the Crown in right of the State of Western Australia, and are not justiciable.
|3 ||As a result of its inquiries, the Committee has made the following findings in relation to the current administrative processes and practices relating to treaties affecting Western Australia:|
There is a wide range of publicly available information relating to treaties to which the Commonwealth Government has acceded, or proposes to accede.
The Western Australian Government is consulted extensively by the Commonwealth Government in the treaty-making process and the process of implementing treaty obligations.
Noting that the majority of treaties to which the Commonwealth Government proposes to accede are only tabled in the Commonwealth Parliament 15-20 sitting days prior to execution, any period of notice subsequently given to the Legislative Council by the Commonwealth Parliament Joint Standing Committee on Treaties of that committees’ inquiries into treaties so tabled is not sufficient for any committee of the Legislative Council to participate meaningfully in such inquiries.
Western Australia is currently the only State in which a parliamentary committee is charged with the scrutiny of treaties to which the Commonwealth Government has acceded or proposes to accede.
In relation to other State and Territory parliaments, notice of treaties and any subsequent reports published by the Commonwealth Parliamentary Joint Standing Committee on Treaties are tabled only in the parliaments of Queensland and Victoria. Such tabling of notice and reports does not occur in any other State or Territory parliament.
|4 ||The Committee has made the following recommendations in this Report. Recommendations are grouped as they appear in the text at the page number indicated:|
Recommendation 1: The Committee recommends that the Responsible Minister table in the Legislative Council notice of all treaties tabled in the Commonwealth Parliament, and any subsequent reports on treaties received by the State Government from the Chair of the Commonwealth Parliament Joint Standing Committee on Treaties together with any other relevant information (which may include the treaties themselves). The Committee observes that presently the Responsible Minister is the Leader of the House, representing the Minister for Federal-State Relations.
Recommendation 2: The Committee recommends that, when introducing a Bill to the Legislative Council which gives legislative effect to any treaty obligation acceded to by the Government of the Commonwealth of Australia, the Government of the State do provide details of any National Interest Analysis and any Regulation Impact Statement relating to the treaty together with any report on the treaty published by the Commonwealth Parliament Joint Standing Committee on Treaties as part of the Explanatory Memorandum to the Bill.
Recommendation 3: The Committee recommends that the House do amend the Committee’s terms of reference at clause 8.3 by deleting sub-clause (c) which reads:
and re-number the remaining sub-clauses accordingly.
to examine the provisions of any instrument that the Commonwealth has acceded to, or proposes to accede to, that imposes an obligation on the Commonwealth to give effect to the provisions of the instrument as part of the municipal law of Australia;