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Foreign Relations in Australia:
Evolution and Reform
ANNE TWOMEY
The federal distribution of foreign relations powers in Australia is closely
connected to the evolution of Australia’s independence from the United
Kingdom. The consequence is that most foreign relations powers have
been attributed to the Commonwealth although the Constitution scarcely
deals with the subject at all. The High Court’s broad interpretation of the
Commonwealth’s power to legislate with respect to “external affairs” means
that it can be used to implement treaties on subjects that would otherwise be
within State jurisdiction. This has led to reforms to the treaty-making process
to increase transparency, accountability and consultation with the States.
Neither the Australian colonies nor the Commonwealth of Australia in the
first decades of the 20th century possessed international personality or had
significant powers in relation to foreign affairs. The foreign policy of Australia
was still the primary concern of the United Kingdom. Australia could not
enter into treaties on its own behalf, although it could ‘adhere’ to commercial
treaties negotiated by the British Government and enter into technical agreements
concerning postal and telegraphic services. Australian laws that were
in breach of British treaty obligations could be refused assent on this ground.
The British declaration of war in World War I included Australia, as part of
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Australia 13
the Empire. However, because of Australia’s considerable contribution to
the war effort, it was invited to participate in the Imperial War Conference,
which promoted future readjustments to the constitutional relations of the
Empire. Australia was represented at the subsequent Peace Conference,
and the Australian Prime Minister signed the Treaty of Versailles, although
his signature was indented under that of the British representative who
signed for the Empire as a whole. Australia also became a member of the
League of Nations, but as a self-governing Dominion, rather than a nation.
At later Imperial Conferences, the British gradually released control
over the foreign affairs of the Dominions, including treaties, the appointment
of diplomatic representatives and the conduct of foreign policy.
Unlike Canada and South Africa, Australia was reluctant to take up these
new powers. Australia believed its security depended upon the protection
of the British Empire and therefore sought to retain a common Empirewide
foreign policy. When Britain declared war again in World War II, the
Australian Prime Minister, Robert Menzies, simply assumed that Australia
was also at war. It was not until 1941 that Australia first exercised the power
to declare war. During the war, Australia also started to appoint its own
diplomatic representatives and rely upon alliances with other countries,
such as the United States, for its protection.
The transition from colony to sovereign independent nation occurred
without any formal changes being made to the Commonwealth or state
constitutions. It occurred through changes in convention and the simple
recognition of Australia’s new status by the United Kingdom and by other
nations. The foreign affairs powers, however, were all attributed to the
Commonwealth Government rather than the states.
The Commonwealth Constitution grants the Commonwealth Parliament
a concurrent, not exclusive, power to legislate with respect to “external
affairs.” The power to enter into treaties is treated as part of the general
executive power of the Commonwealth. The states are regarded as having
neither a capacity to enter into treaties nor the right to involve themselves
in a substantial fashion in foreign affairs.
The main battlefield between the orders of government has been the
implementation of treaties. The external affairs power gives the Commonwealth
Parliament the legislative authority to implement treaties. However,
after World War II, the vast expansion of treaties into subject matters that
were the traditional domain of the states, such as human rights and the
environment, raised the question of whether the external affairs power
supported the implementation of treaties dealing with domestic, rather than
external, matters. In 1983, in a decision about the use of an environmental
treaty to support legislation prohibiting the Tasmanian Government from
building a dam, the High Court held that the Commonwealth Parliament
could enact legislation implementing a bona fide treaty regardless of the
subject matter of the treaty. This meant that the Commonwealth could, by
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14 Anne Twomey
ratifying a treaty, gain a new order of legislative power and legislate on subjects
that were the traditional domain of the states.
This development led to greater concern about how and why treaties
were entered into and calls for greater consultation with the states before
treaties were ratified. The public also raised concerns about the lack of
transparency and the “democratic deficit” as there
was almost no parliamentary involvement in the
treaty-making process. Treaties were tabled in
bulk in the Commonwealth Parliament every six
months, often after they had already been ratified,
with little or no time for debate. In 1995 a
Senate Committee conducted a full inquiry into
the treaty-making process and recommended
major reforms, the majority of which were adopted
in 1996. These reforms included the tabling of
all treaties in the Commonwealth Parliament
before ratification; publication of a “national
interest analysis” for each treaty, providing information about its likely
impact and the case for entering into it; establishment of a Parliamentary
Joint Standing Committee on Treaties to scrutinize and report on treaties
before they are ratified; establishment of a Treaties Council, comprised of
the heads of government of the Commonwealth and the states, to address
treaties of particular concern to the states; and improvement of consultation
with the states through the “Standing Committee on Treaties,” which
is composed of officials from the Commonwealth and the states.
In their joint submission to the Senate Committee, the states had sought
greater consultation and the establishment of a Treaties Council. However,
they also wanted each House of the Commonwealth Parliament to have
the power to veto treaties. If the ratification of a treaty were to be truly
disadvantageous to a state, then the Senate might be persuaded to veto its
ratification. In fact, this proposal was not adopted by the Commonwealth,
and the ratification of treaties remains completely in the control of the
Commonwealth Executive Government.
Despite this setback, the states have been relatively satisfied with the
reforms of 1996. The Joint Standing Committee on Treaties has proved a
powerful and effective committee. The amount of information on proposed
treaties and the amount of consultation with the states has improved
significantly. The Treaties Council, however, is regarded as a failure. It has
only ever met once, and despite requests from the states for it to meet on
several occasions, the Commonwealth Government has refused to convene
it. The states have also complained that they do not receive sufficient information
at an early enough stage in treaty negotiations to be able to make
a significant input, and that there is insufficient consideration to the
consequences of the treaties before they are ratified.
This meant that the
Commonwealth
could, by ratifying
a treaty, gain a new
order of legislative
power and legislate
on subjects that
were the traditional
domain of the states.
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