How Treaties Become Law In Australia

Australia's treaty-making process is a legal procedure that involves several steps. A treaty is an international agreement between two or more states or international organisations, and it is governed by international law. Australia's process of becoming a party to a treaty involves seeking a mandate to negotiate from the Minister for Foreign Affairs, negotiating and finalising the treaty text, obtaining relevant approvals, arranging for the signature of the treaty, tabling it in Parliament for scrutiny, and implementing any necessary legislative changes. While Australia has agreed to be bound by major international human rights treaties, they do not automatically become Australian law unless specifically incorporated through legislation. This reflects the separation of powers between the Executive, which has the prerogative power to enter into treaties, and Parliament, which holds the law-making power.

Seeking a mandate to negotiate

Before formal negotiations for a treaty can begin, the lead minister must seek a mandate to negotiate the treaty from the Minister for Foreign Affairs. The Prime Minister and any other ministers with a portfolio interest in the subject of the treaty must be informed. A mandate to negotiate can also be granted by the Cabinet. The Minister for Foreign Affairs and the Department of Foreign Affairs and Trade (DFAT) have responsibility for treaties, and DFAT's International Law: Advising and Treaties Section (Treaties Section) should be consulted on all aspects of the treaty-making process.

Any Commonwealth Government agency contemplating taking a treaty proposal forward should do so in close consultation with the Treaties Section. This includes negotiating or entering into a new treaty, as well as amending, terminating, or withdrawing from an existing treaty.

Once a mandate to negotiate has been secured, the lead agency should consult throughout the negotiation process with other interested Commonwealth Government agencies, state and territory governments, or other interested stakeholders, as appropriate.

Negotiating and finalising the text

Before formal negotiations for a treaty can begin, the lead minister must seek a mandate to negotiate the treaty from the Minister for Foreign Affairs. The Prime Minister and any other ministers with a portfolio interest in the subject of the treaty must be informed. A mandate to negotiate can also be granted by the Cabinet.

During the negotiation process, lead agencies must consult with other interested Commonwealth Government agencies, state and territory governments, or other stakeholders, as appropriate. If a treaty is concluded in a language other than English, the other party must provide a translation. The lead agency then arranges for the verification of the foreign language text. Any changes to the foreign language text must be negotiated and agreed upon by both parties before the signing.

Seeking approval from relevant ministers and the Executive Council

After the conclusion of negotiations, the lead minister must seek the agreement of the Minister for Foreign Affairs, the Attorney-General, and any other ministers with a portfolio interest in the treaty for Australia to become a party to the treaty. The Prime Minister must also be informed of the matter. This usually occurs via an exchange of correspondence (or, alternatively, the matter can be submitted to Cabinet). This step should take around eight weeks following the conclusion of negotiations.

Once the approval of the relevant ministers has been received, the matter must be submitted to the Federal Executive Council (ExCo) for approval. ExCo approval is required for all treaty actions, including signing, ratifying, amending, terminating, or withdrawing from a treaty. After receiving ExCo approval, the treaty may be signed by Australia's representative. The time and venue of the signing ceremony are determined in consultation with the other party and the relevant ministers' offices. If the treaty is to be signed by anyone other than the Prime Minister or the Minister for Foreign Affairs, the Minister for Foreign Affairs issues an instrument of full powers authorising the representative to sign the treaty.

The Role of the Minister for Foreign Affairs and the Department of Foreign Affairs and Trade (DFAT)

Given that any treaty necessarily involves an element of Australia's foreign relations, the Minister for Foreign Affairs and the Department of Foreign Affairs and Trade (DFAT) have responsibility for treaties. DFAT's International Law: Advising and Treaties Section (Treaties Section) is responsible for all aspects of the treaty-making process and should be consulted at an early stage. The Treaties Section can be contacted at: treaties@dfat.gov.au.

Arranging for signature of the treaty

Arranging for the signature of a treaty is the fourth step in Australia's treaty-making process. Once the Federal Executive Council (ExCo) has approved the treaty, it may be signed by Australia's representative. The time and venue of the signing ceremony are determined in consultation with the other party and the offices of the relevant ministers. If the treaty is to be signed by someone other than the Prime Minister or the Minister for Foreign Affairs, the Minister for Foreign Affairs issues an instrument of full powers, authorising the representative to sign the treaty.

The signature of a treaty indicates Australia's intention to take steps to be bound by the treaty at a later date. It is a means of authentication and expresses the willingness of the signatory state to continue the treaty-making process. The signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and purpose of the treaty.

If the treaty is concluded in a language other than English, the other party must provide a translation. The lead agency arranges verification of the foreign language text. Any changes to the foreign language text must be negotiated with the other party and agreed upon before the signature.

Scrutiny by Parliament

Treaties are then tabled in both Houses of Parliament for consideration by the Joint Standing Committee on Treaties (JSCOT). Treaties are required to be tabled for 15 or 20 joint sitting days (days on which both Houses of Parliament are in session) depending on the category of the treaty (i.e. whether it is routine in form or not). In calendar days, this time period may vary considerably in length depending on the sitting program for any given year and, in particular, when parliamentary recess periods may fall. JSCOT will table its report on the treaty within the 15 or 20 joint sitting days. The report will contain JSCOT’s recommendation as to whether binding treaty action should be taken. Lead agencies should allow around four to six months for this step.

If the treaty action does not significantly impact the national interest and will have a negligible effect in Australia (such as technical amendments to an existing multilateral treaty), it may be treated as a minor treaty action and subject to a streamlined Parliamentary scrutiny process. Lead agencies should consult the Treaties Section on a case-by-case basis to determine whether a particular treaty action is likely to be considered a minor treaty action.

The Joint Standing Committee on Treaties (JSCOT) is a committee of Australian Members of Parliament that reviews all proposed treaties before they are ratified by Australia. The committee is made up of Members of Parliament from both the House of Representatives and the Senate, and it has the responsibility of scrutinising all proposed treaties to ensure that they are in Australia's national interest and that they do not conflict with existing Australian laws or policies.

The JSCOT process is an important part of Australia's treaty-making process, as it provides an opportunity for public input and scrutiny of proposed treaties. The committee holds public hearings, invites submissions from interested individuals and organisations, and considers the potential impacts of the treaty on Australia's domestic laws and policies.

Once the JSCOT has completed its review, it provides a report to the Parliament, recommending whether or not Australia should ratify the treaty. The Parliament then considers the report and makes a decision on whether to ratify the treaty. This decision is made through a vote in both the House of Representatives and the Senate. If the treaty is approved by both houses, it is then ratified by the Australian government and becomes legally binding on Australia.

Frequently asked questions