Chapter One:
Setting the Sovereignty Scene:
Use and Abuse of the Treaty Power

John Stone


Some of the ground to be covered in this paper has already been trodden, and more authoritatively, by our President, the Rt Hon Sir Harry Gibbs, in his splendid address to our opening Dinner last night, The Erosion of National Sovereignty. Nevertheless, in "setting the sovereignty scene" it is necessary to traverse some of it, albeit briefly, again.

The concepts of sovereignty, on the one hand, and the nation state, on the other, are two sides of the same coin. When the Thirty Years War (1618-48) ended in the Treaty of Westphalia, the Holy Roman Empire finally foundered. In its place there arose a bevy of European nation states, each proclaiming its full territorial sovereignty and its full independence from the "world governance" hitherto imposed (in varying degrees) from Rome.1

In recent times it has become fashionable in some circles to say that in this increasingly "globalised" world the nation state has had its day; and that, as a consequence, national sovereignty also is an increasingly out-dated concept. Shallow views of this kind typically emanate from such bodies as the World Economic Forum;2 the United Nations; bodies of international lawyers; the Foreign Offices of (much of) the world; and other such obviously self-interested quarters.

Other than to dismiss it with the intellectual contempt which is all that it merits, I do not wish to spend time today on that view. Rather, I wish simply to examine the effects of treaty-making on national sovereignty -- taking, as I do, both the continuing existence of the nation state, and the importance which its people invariably place upon preserving its sovereignty, as given.3

To that end, I shall examine four questions:

The last of those questions will lead me to a topic long familiar to members of this Society -- namely, the abuse of the external affairs power (s.51(xxix)) of our Constitution both by successive Australian governments and successive High Courts, and to the corrosive effects of those abuses both upon the federal nature of our Constitution and, over time, upon Australians' respect for the rule of law.

As to my first question, it is useful to begin by asking why Australia enters into treaties at all. In asking that question, it is no part of my case to suggest that we should not do so; no sensible Australian would question the desirability of our entering into treaties where, on all the evidence, it is in our national interest to do so. Clearly, for example, a significant trading nation like Australia finds it advantageous, on balance, to belong to the World Trade Organisation (or its predecessor, the General Agreement on Tariffs and Trade, the GATT), notwithstanding the discomforts which WTO membership can also bring from time to time. But, to go to the opposite extreme, what national interest is served by -- or, in more hum-drum language, how do Australians benefit from -- our becoming a party to the U.N. Convention on the Rights of the Child?4

In researching this paper I had occasion to consult the Treaties Secretariat of the Department of Foreign Affairs and Trade.5 It is salutary to see how that body's Information Kit, which "has been put together in the interests of improving understanding of Australia's participation in the treaty process", answers its own question, "Why are Treaties necessary?" Space precludes more detailed examination, but suffice it to say that the Department's answer draws heavily upon the kind of "globalisation" arguments the shallowness of which was dismissed earlier, together with various sweeping generalizations (e.g. "the need for global rules on the protection and promotion of the world's cultural and natural heritage is now widely accepted") which, in most cases (like the one quoted) simply do not stand up to sceptical analysis.

The truth is that the most basic reason why, in the view of the Department of Foreign Affairs and Trade, treaties are necessary, is that the process of treaty-making provides numerous officials of that Department with a well-paid career, much of it spent in the gilded salons of Geneva, New York or wherever else international bureaucrats choose to ply their trade at the expense of their respective taxpayers. In that sense it is, if you like, nothing more than a particular example of so-called "public choice" theory.

Australia today is a party to something in the order of 2,000 treaties -- about 300 of which were "inherited", so to speak, from our British origins up to the point where, by the Statute of Westminster (1931), Australia became a fully independent, and hence fully sovereign country. Different observers, surveying these treaties, would doubtless put forward different taxonomies for their classification. For the purposes of this paper, however, the treaties into which we have entered may be usefully separated into the following categories:6

Many of Australia's treaties are of the "technical" variety, for example:

Judgments will differ as to where this "technical" category of treaties ends and where the "political" category begins. Moreover, within the latter category there are widely differing cases; for example:

It is of course questions of that kind which lead me to my alternative treaty taxonomy -- the categorisation of treaties into those which are "necessary", "useful" or merely "morally vain". Clearly, many -- even most -- of those treaties classifiable as "technical" fall into the category of "necessary" treaties. Thus, even in 1878 it made good practical sense for the then Colony of South Australia (including, as it then did, what is now the Northern Territory, where the international telegraph from London first came ashore) to adhere to the International Telegraphic Convention. Today, it would be impossible to maintain our vast, and vastly complex, network of telecommunications with other countries in the absence of an international agreement governing the technical and financial relationships involved. It is no accident that our membership of the International Telecommunications Convention, and of its equally necessary postal counterpart, the Universal Postal Union, are among Australia's earliest treaty relationships. To a nation so affected by "the tyranny of distance", such treaties were more than usually necessary.

How, though, would one classify those other "technical" treaties to which I referred earlier, our double taxation treaties? Strictly speaking, they might not be described as "necessary" -- and indeed, were clearly not regarded as such prior to 1946, when the first of them, with the United Kingdom, was drawn up. Even today, it is clearly not thought necessary to have such treaties with a great many other countries -- and certainly not with all other members of the United Nations. As a broad generalisation, such treaties are not generally regarded as "necessary", in Australia's case, unless the counterparty has a significant economic interest (generally via capital investment, and the income produced by that investment) in Australia, or vice versa. Thus it was no accident that our second such treaty, that with the United States, was entered into with the nation which, after World War II, began to vie with Britain as the most important source of capital investment in Australia.

Consider however another "technical" treaty to which Australia is a party, the Convention of the World Meteorological Organisation, ratified by Australia in 1949. It is at least arguable that in Australia's case our membership of this Convention is not strictly "necessary". Unlike most of its other members, we are a long way from anywhere -- and in particular, from anywhere from which our weather derives -- and it could be argued that, if our membership were terminated tomorrow, our Bureau of Meteorology would not be greatly incommoded. Nevertheless, it can equally be argued that our membership costs us rather little, that our participation in joint activities of the World Meteorological Organisation (WMO) involves no significant interference in our domestic affairs, and that membership of the WMO "club" gives us access to research and other scientific relationships which are of some value to our scientific community. On that basis, while this technical treaty might not be "necessary", it could probably be regarded as being at least "useful".

Within the category of "political" treaties, consider one such as the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea ... relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, signed for Australia in December, 1995 and subsequently ratified last December, but not yet in force. Australia's waters are, doubtless, home to so-called "straddling fish", and for all I know, to "highly migratory" ones also (although whales, of course, are not fish). On that basis, perhaps one might classify our membership of such a treaty as marginally "useful".

By contrast, the Agreement governing the Activities of States on the Moon and other Celestial Bodies, which was adopted by the UN General Assembly in 1979 (after having been developed -- one might almost have guessed it! -- by UNESCO) and acceded to by Australia in 1986, could be described, almost literally, as moonshine. For one thing, Australia is unlikely ever to undertake independently any activities on the moon (still less, on "other celestial bodies"!). For another thing, any major world power, such as the USA, the USSR (at the time of the Agreement's inauguration), or the European Community, which might undertake such activities at some future time, will then do just what it pleases, and no amount of finger-wagging or other forms of moral posturing by Australia or any other minor power will cause it to do otherwise. (It is worth noting that none of these major powers has acceded to this more than usually nonsensical document; Australia could even be said to be the most significant party to it, of the only 9 nations in that category!). Clearly, such a "political" treaty falls squarely into the "morally vain" category.

At least it may be said of that Agreement that, morally vain though it undoubtedly is so far as Australia is concerned, it probably would not do us much real harm if it were ever to become truly effective. That can certainly not be said of a plethora of other such treaties in the "morally vain" category to which Australia, for reasons best known to those responsible on both sides of politics, has chosen to become a party. Consider the following examples:

Such examples could be multiplied many times over. Yet, to take only these examples, Australians have long enjoyed all the civil and political rights in question. Australian Parliaments have long made their own judgments (and, unlike the United Nations, been accountable to their electors in the process) as to the economic, social and cultural "rights" appropriate to be bestowed upon the citizenry. Every Australian State has its own legislation governing questions of racial discrimination, providing for legally enforceable penalties against it. As to the crime of genocide, and notwithstanding the fevered imaginations of people like Sir Ronald Wilson and Mr Pat Dodson, that is not, thankfully, a crime about which Australians have ever needed to be concerned within their own country. Why then -- moral posturing apart -- has Australia seen fit to ratify a UN Convention which has nothing whatsoever to do with us?

The general answer sometimes given to questions of this kind is that, although there is no real need for Australia to be a party to any of these treaties from a domestic viewpoint, we should nevertheless sign up to them in the interests of being "a good world citizen". Alternatively, there is the in terrorem argument that, were we not to accede to treaties of this kind, Australia would become "an international pariah" in the eyes of "the international community". To take but one example, this latter argument was deployed ad nauseam by Commonwealth public servants and virtually every journalist writing on the topic in the lead-up to the negotiations on the Tokyo Protocol in respect of so-called "greenhouse warming". In that instance, the argument remains even more unconvincing now than it was then.

Space precludes any exhaustive examination of such generalized defences. Suffice to say that being "a good world citizen" (in the eyes of the Foreign Office élites) butters no more parsnips in today's world than it would have done when, nearly two centuries ago, there was first coined that famous dictum that a nation has no permanent allies, but merely permanent interests. As to "the international community", there is of course no such entity; and hence no need for concern about being regarded as "an international pariah" by that non-entity.

That comment about the non-existence of any such thing as "the international community" may evoke echoes of Mrs Thatcher's (as she then was) famous remark that "there is no such thing as society". Lest I be misunderstood -- including, as in Mrs Thatcher's case, deliberately misrepresented -- I am not saying that Australia need not care how it behaves internationally. In saying that there is no such thing as "the international community", I am saying rather that there are some billions of people in other countries to whom we should behave as we would wish them to behave towards us, but that there is no single entity which could possibly be sensibly described as "the international community".8 I am also saying that, by and large, Australia's reputation in the world (including our classification or non-classification as "an international pariah") will stand or fall on the basis of how Australians comport themselves in the world both as individuals and as a nation; and that, by and large, we have earned a reputation for having comported ourselves, during the near century of our existence as a nation, rather well. Needless to say, that reputation has nothing to do with our having adhered to a bunch of morally vain pronouncements in the shape of treaties of this kind.

The second of the four questions enunciated at the outset of this paper was whether the entering into of treaties was undertaken in the national interest, or merely as an expression of the moral vanity of those principally involved in treaty-making. From what has already been said, the answer is, obviously, that it is sometimes the former and only too often the latter. Nevertheless, it may be worthwhile spending a little more time on the issue by posing the basic question: how do we decide when it is in the national interest for Australia to accede to a treaty?

The answer to that question, I suggest, is that it is in Australia's national interest to enter into a treaty (a) when doing so provides us with something that we need; and (b) when we cannot provide that "something" solely by our own actions. Even if those two necessary conditions are satisfied, that may not be sufficient reason to enter into the treaty if the obligations we undertake by doing so outweigh the value of the desired benefits.9

Against that yardstick, many -- perhaps most -- of the treaties earlier categorized as "technical" would probably pass this test. So would many of those earlier categorized as "political", such as the Australia New Zealand Closer Economic Relationship Trade Agreement. Many other treaties in that "political" category would not, however, pass that test, and clearly should never have been acceded to by the Australian governments of the day.

As for my alternative taxonomy, treaties earlier categorized as "necessary" would almost by definition pass the national interest test. So would many -- perhaps most -- of those treaties earlier categorized as "useful". Clearly, however, very few, and perhaps none, of those treaties earlier categorized as "morally vain" pass this national interest test. Indeed, it is fair to say that they differ only to the extent to which they fail that test.

It would be wearisome -- and again, space in any case precludes doing so -- to detail the manifold reasons why this "morally vain" category of treaties fails, time and again, to pass the national interest test. However, the posing of even a few simple questions may suggest the general line of argument. For example:

The same point can be made in another way, again by way of example. In 1906 Australia acceded to the 1904 International Agreement for the Suppression of the "White Slave Traffic". Clearly, we did not do this in order to guard against the ravages of that deplorable activity in Australia -- where, even in 1906, there would have been laws against such activity (probably, and in my view rightly, harsher laws than exist today). We (or technically speaking, at that time, Britain on our behalf) acceded to that treaty partly in the doubtless genuine hope that it might contribute to wiping out the traffic in women concerned, but also because doing so flattered the moral vanity of the treaty-makers. Suffice to say that, nearly a century later, the "white slave traffic" -- or these days, more often the "brown slave traffic" from countries such as Thailand or The Philippines -- is still flourishing, Australia's membership of that treaty, not to mention our own immigration laws, notwithstanding.

It is time now to turn to the third question posed at the outset -- namely, what is the effect on a nation's sovereignty when it enters into a treaty? In addressing that question, it is instructive to see what our Department of Foreign Affairs and Trade has to say on the matter in answering its own question, "Does ratification of international treaties result in a loss of sovereignty?"11

According to the Department, "ratification of international treaties does not involve a handing over of sovereignty to an international body". Why not? Because:

".. implicit in any Australian decision to ratify a treaty is a judgement that any limitations on the range of possible actions [that the treaty may impose on Australia's future capacity to act in particular ways] .. are outweighed by the benefits which flow from the existence of a widely endorsed international agreement".

Leave aside, for these purposes, the question of who makes that so-called "Australian decision", as well as the fact that by no means all treaties are describable as "widely endorsed international agreements" (e.g., the aforementioned Agreement governing the Activities of States on the Moon and other Celestial Bodies, which 20 years later has attracted only 9 member states). Boiled down to its essentials, the Department's statement amounts to saying that while (contrary to its initial statement quoted above) ratification of international treaties does "involve a handing over of sovereignty", nevertheless that sacrifice of sovereignty is justified by "a judgment" (again, by whom?) that that sacrifice is "outweighed by the benefits" of doing so. This of course is essentially similar to what I have earlier called "the national interest test".

There is however a vital difference between that test as I have formulated it, and the manner in which it is formulated by the Department. That difference is exemplified in the immediately following paragraph of the Department's exposition, namely:

"..ultimately, formal legal sovereignty is retained [when a country enters into a treaty], as the power to enter into such arrangements remains with Government".

This is precious close to saying that we retain our sovereignty because we retain the power to reclaim it after having surrendered it! A similar assertion is made in the conclusion of the Department's answer, where it is said that, although "ratification of a treaty does require a State to perform its obligations in good faith", nevertheless "this is an exercise, not a relinquishing, of sovereignty". All one can say is that one could have fooled every Australian man and woman in the street on that score.

It is true that, as the Department goes on to say:

"The Government also retains the right to remove itself from treaty obligations if it judges that on balance the treaty no longer serves Australia's national and international interests.12 (Since 1996 Australia has tabled documents in Parliament foreshadowing its withdrawal from several multilateral treaties on the basis that these treaties no longer served Australia's interests.)"

Again, this goes to the question of sovereignty. In those (limited number of) cases where Australia has formally denounced treaties into which it had previously entered, it has restored that part of its sovereignty which it had previously yielded up -- and as the Department notes, there have been several such examples in recent times.13 It is therefore certainly important -- indeed, absolutely essential -- that every treaty into which any Australian government ever enters should contain within its terms due processes for its denunciation. Apart from any other consideration, it is simply not possible, within our system of parliamentary democracy, for any Parliament (or still more inconceivably, any Executive) to bind for all time the hands of all future Parliaments -- not to mention the people whom those Parliaments purport to represent. But the mere fact that (I presume) all of our treaties do contain such terms for denouncing them does not mean that our entering into them has not involved any loss of sovereignty while we remain bound by them.

This brings us to the heart of the matter. On the one hand, we have what appears to be the official view -- namely, that so long as any treaty into which Australia enters contains within its terms due processes for its possible future denunciation, then there can be no loss of sovereignty involved. Ratification of a treaty is, in those already quoted words of the Department of Foreign Affairs and Trade, "an exercise, not a relinquishing, of sovereignty".

The opposing view, on the other hand -- the view to which I subscribe, and to which I suggest the overwhelming majority of Australians would subscribe -- is that when Australia enters into a treaty, some sacrifice of sovereignty is involved (in varying degrees, depending upon the scope of the treaty) and that the only question is whether that sacrifice of sovereignty is justified in the national interest by the benefits which accession brings to Australians.14

Take, for example, the UN Convention on Refugees, which will be the subject of the Hon Peter Walsh's immediately following paper. If only for that reason, I shall not refer to that treaty in detail. Suffice to say however that, to the average Australian, the obligations under which Australia apparently labours as a result of our accession to that Convention are as amazing as they are, simply, democratically unacceptable. The pass to which we have been reduced -- and which must make Australia's name a laughing stock wherever any group of people smugglers is gathered together -- is nothing short of extraordinary, as I am sure Mr Walsh will be telling us. It simply does not make sense, under such circumstances, to assert that, those facts notwithstanding, our sovereignty has been in no way impaired merely because the Convention in question contains provisions for us to withdraw from it! That seems to me to verge on doubletalk.

Again, consider another topic on which, later today, we shall also be hearing from two other speakers, Ms Ruth McColl, SC and the Hon Denis Burke, MLA -- namely, mandatory sentencing. Whatever the rights and wrongs of that issue may be, I confidently assert that there would not be one Australian in a thousand who would think it appropriate that the United Nations itself -- let alone the miserable collection of international legal activists and other assorted misfits who make up the U.N. Committee on Human Rights -- should intervene to lecture us on how we should approach the entirely domestic issues involved.

Considerations of that kind bring me to my fourth initially stated question, namely, does treaty-making have implications for the domestic democratic processes of the nation; and, if so, what are the likely consequences?

Protestations to the contrary notwithstanding, it is clear that treaty-making does have implications for Australia's domestic democratic processes, and that those implications have been seriously malignant.

First, there is the fact that the process of treaty-making has resulted, when taken in conjunction with the enormously expanded interpretation which the High Court in the past twenty years or so has given to the "external affairs power",15 in a huge expansion in the powers of the Commonwealth at the expense of those of the States. Of course, those who are in favour of greater centralization of power in Canberra (not least, a number of past and present High Court Justices) have doubtless welcomed this development. But anyone who believes in the old adage that "power corrupts" can only deplore it -- as well as the fact that, by removing decision-making from the State peripheries and focusing it in Canberra, the Australian people have been relegated to one further remove from that process. Concerns of this kind were at the heart of the formation of this Society, and if only on that score perhaps need not be elaborated further.

There is however another way in which this "democratic deficit" between the decision-makers and the people has been widened via the treaty-making process. It derives from the fact that, increasingly, activists among the ranks of our judiciary, both State and federal, are disposed to seize upon the fact that Australia has ratified a treaty16 in order to rule for (or against) certain outcomes. The most notorious example of this proclivity to date has been the High Court decision in the Teoh Case in 1995;17 but there is a growing list of other examples.

It was the President of this Society, the Rt Hon Sir Harry Gibbs, who said that the High Court's widening of the interpretation of the "external affairs" power of the Constitution had now advanced so far that one could almost replace the two words "external affairs" in s.51(xxix) by the single word "anything".18 The seriousness of that statement -- and more fundamentally, the seriousness of the situation to which it referred -- can hardly be overstated. As Dr (now Professor) Greg Craven has pointed out in several of his papers to this Society analysing the performance of the High Court of Australia,19 there is probably no single aspect of judicial activism on that body's part which has done more to bring into disrepute the highest court in our land.20

The results are obvious. First, government from Canberra has now intruded into almost every facet of peoples' lives. Powers which, at the time of federation, were carefully withheld from the Commonwealth by the framers of our Constitution, are now exercised almost daily by Ministers in Canberra on the basis that, legally, to do so is necessary for the implementation of some treaty or other into which the Executive has entered and where, according to the High Court, that now means that the Commonwealth's writ must run.

It was a great American who said that you can fool all the people for some of the time, and some of the people for all of the time, but that you can't fool all the people all the time. Gradually, as the truth of what has been done to their Constitution, particularly in the past 20-25 years or so, by the centralists in Canberra has dawned upon the Australian people, there has emerged a mixture of feelings.

There has been anger at the way in which the federal compact has been almost conspiratorially eroded, and without reference (in those respects) to the people via the referendum mechanism of s.128.21 There has been a growing sense of betrayal. Above all, and most dangerously of all in terms of the long-term health of the nation, there has been a growing loss of faith both in the system and in those who administer it (Commonwealth Ministers, their officials, and the federal judiciary -- not excepting even the High Court of Australia). Is it any wonder that this growing sense of despair should give rise to such phenomena as the rise of Pauline Hanson? Or that the seeds of Hansonism should still be there, waiting to be tilled anew, even though that lady herself may have effectively disappeared from the political scene?

Those facts notwithstanding, nobody should be under any misapprehensions that the same constitutional termites which have brought us to this pass are continuing to gnaw at the foundations of our nation. The project to which they have been devoting themselves for some time now is to attain, in effect, a "Bill of Rights" by the back door. Knowing, as they do, that the people will never countenance the bringing in of a constitutional amendment to that effect,22 they have set about attaining one, in effect, via the treaty power. But that, like so many other aspects of this huge topic, is a matter for a paper in its own right.

The present Government, to its credit, has taken some small steps to render the exercise of the treaty power somewhat more transparent, and to involve the Parliament somewhat more extensively in the treaty-making (and particularly treaty ratification) processes. Yet nothing has really changed, and even such small crumbs of comfort as this particular Executive has given can, and I predict will, be taken away by a different Executive in future, unless something is done to prevent that happening.23

As that comment suggests, there is in truth only one conclusion to be drawn -- namely, the need for a constitutional amendment to hobble the Commonwealth's use of the treaty power for purposes for which, clearly, it was never intended. Such an amendment was drafted some years ago by another speaker to this Society, Dr Colin Howard.24 Not surprisingly, it has not found favour with even the so-called "conservative" side of Canberra politics -- which, when the chips are really down, is just as power-hungry as those who sit opposite it. But, as the recent public utterances of the Chief Minister of the Northern Territory may suggest,24 its time, I believe, is coming.


Endnotes:

See also: