This explainer sets out the legal process that underpins how a treaty is created under International Law  and then incorporated into Australian domestic law. Definitions of key terms  related to the treaty process have been taken from the United Nations and the Department of Foreign Affairs and Trade.

What is a Treaty?

A treaty is an international agreement in writing between two or more States (or international organisations) and is governed by international law. A treaty is an example of a source of international law.

The Vienna Convention on the Law of Treaties defines a treaty as

“an international agreement concluded between States in written form and governed by international law”.

In some cases, international organisations (e.g. the European Union) can be parties to treaties. Even if a document is agreed between two or more sovereign countries, it will not be a treaty unless those countries intend the document to be binding at international law.

 

What is a State?

State sovereignty is the ability of a nation state to make laws for its citizens without external interference. The impact that state sovereignty has on human rights influences whether there is recognition, protection or enforcement of such rights. NSW Board of Studies

 A sovereign state is a state that has the following characteristics:

  • one centralised government
  • has sovereignty over a specific geographic area – defined territory
  • has a permanent population
  • ability to make decisions within the state’s territory without overseas interference including the capacity to enter into diplomatic relations with other states

Who can enter into a Treaty?

Under Section 61 of the Australian Constitution:

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

Dr Max Spry states “Section 61 provides Constitutional legitimacy to certain actions taken by the Executive without any need for Parliamentary or legislative sanction. For example, the Executive may enter into treaties without prior parliamentary approval. It is well settled that section 61 includes the prerogative powers of the Crown, including, for example, the power to enter into treaties.”

Steps to Implement an International Treaty

International Treaties must follow particular steps in order for them to be binding at international law.

Also see DFAT’s Six Steps to Treaty Making and the United Nation’s Protocols.

1. Mandate to Enter a Treaty

Before formal negotiations for a treaty commence, the minister who wishes to create and enter into a treaty must seek permission to negotiate the treaty from the Minister of Foreign Affairs or Cabinet. 

 2. Ministerial and Executive Council approval

Once the terms and conditions of a treaty have been finalised, the lead minister seeks agreement from the Minister for Foreign Affairs, the Attorney-General and any other minister whose portfolio may be affected by Australia becoming a party to the treaty. The matter is then submitted to the Federal Executive Council who review the decision. The Federal Executive Council must approve all treaty actions including signing, ratifying and amending a treaty.

3. Signature

Once the Federal Executive Council has given its approval, a treaty may then be signed. At this stage, no legal obligations are imposed but the signing indicates Australia’s intention to take steps to be bound by the treaty at a later date. Signing a treaty creates an obligation that in the period between signing and ratifying the treaty, the State must refrain from acts that would defeat the object and purpose of the treaty.

… 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 the purpose of the treaty. United Nations Library

4. Review by Parliament

Both Houses of Parliament then review the treaty.  A document of the proposed treaty and a national interest analysis is tabled in Parliament for a period of at least 15 sitting days before the Government can take any action. The national interest analysis outlines why the government believes it is in Australia’s best interest to be bound by the treaty.  Australia has a Joint Standing Committee (JSCOT) that reviews proposed treaties.  JSCOT holds public hearings and presents a report to Parliament containing advice on whether Australia should ratify the treaty. The government does not have to follow the advice of the Committee however the process provides an important means of public and parliamentary scrutiny for the Government’s decisions concerning ratification of international treaties.

5. Ratification

There are two distinct steps to ratification. Ratification literally means “confirmation.”

The institution of ratification grants states the necessary time-frame to seek the required approval for the treaty on the domestic level and to enact the necessary legislation to give domestic effect to that treaty.  United Nations Library

The Treaty must be ratified at a Domestic and International level.

a. Ratification at a Domestic Level – This means that if any changes are required to domestic law or procedures and policies are required, legislation will be introduced into the Federal Parliament to implement the treaty in Australia’s domestic law. Both Houses of Parliament must pass any legislative changes and then the Governor-General must approve the changes.  

 b. Ratification at an International Level- The second step is the international act whereby Australia expresses its consent to be bound. This occurs through the deposit of an instrument of ratification which legally binds a state to implement the treaty. It is an expression that Australia accepts the terms of the treaty including any qualifications or reservations.

Conditional Acceptance

A Reservation is a declaration made by a state to exclude or alter the legal effect of certain provisions of the treaty in its application to that State. Reservations can be made when the treaty is signed, ratified, accepted, approved or acceded to. Reservations must not be incompatible with the object and the purpose of the treaty. Furthermore, a treaty might prohibit reservations or only allow for certain reservations to be made.

A State will make a reservation where it feels that the implementation of the entire treaty would not be possible under the State’s domestic law or would conflict with it.

 A reservation enables a state to accept a multilateral treaty as a whole by giving it the possibility not to apply certain provisions with which it does not want to comply. United Nation Treaty Collection

When a Treaty is Implemented does it become Australian Domestic Law?

As a sovereign state, Australia is able to enter into treaties with other states. The ratification of international treaties does not involve handing over sovereignty to an international body but instead gives rise to international legal rights and obligations.

International law is separate from Australia’s domestic law. The treaties that Australia ratifies only become part of Australia’s domestic law when the parliament passes legislation incorporating the treaty into the domestic law. In the absence of legislation, treaties cannot impose obligations on individuals nor create rights in domestic law. DFAT

The position was outlined by the majority of the High Court of Australia in a key case called Minister for Immigration and ethnic Affairs v Teoh.

The majority held

“ The provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been incorporated into domestic law by statute and cannot operates as a direct source of individual rights and obligations under the law”.

For example, a sovereign state such as Australia has recognised the below fundamental human rights as listed in the Universal Declaration of Human Rights but only those separately enacted into domestic legislation are legally enforceable.

Human Rights Treaties

Human rights are codified in international agreement or treaties between governments, called conventions or covenants. International human rights treaties provide an agreed set of human rights standards and establish ways to monitor compliance. In accordance with the process of ratification, by ratifying a treaty, a country voluntarily accepts legal obligations under international law.

The seven core international human rights treaties which Australis is a party to are:

The Department of Foreign Affairs and Trade has a Database that records all treaties Australia is a signatory to, or where Australia has taken some other form of action. The database can be accessed here. 

Example: the Racial Discrimination Act 1975 (Cth) implements the Convention for the Elimination of Racial Discrimination 

 Incorporation of Human Rights Treaties into Domestic Law

In 1966 Australia signed the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and in 1975 Australia ratified CERD. CERD is a United Nations Convention that aims to promote ideas of racial equality while providing a legal framework for how to deal with issues of racial discrimination using legal processes.

To incorporate CERD into Australia’s domestic law, the Federal Parliament enacted the Racial Discrimination Act 1975 (Cth) – The RDA. The contents of the RDA are largely based on CERD. As part of Australia obligations under CERD, Australia must demonstrate how it is complying the obligations agreed to under CERD. Enacting domestic law such as the RDA is one of the primary ways Australia can demonstrates that it is complying with CERD. The Australian government is required to report on its implementation of CERD every three years to the UN Human Rights Committee about its efforts to comply with CERD and combat Racial Discrimination. To see the latest information about Australia’s compliance with its treaty obligations click here.

The Racial Discrimination Act 1975 (Cth)

The RDA deals with specific matters relating to racial discrimination – one of the most controversial is Section 18C of the RDA which makes it unlawful to offend, insult, humiliate or intimidate a person because of their race, colour or national or ethnic origin.

Section 10(1) of the RDA states that all people are entitled to equality before the law regardless of their race, colour or national or ethnic origin. If a law removes a right or limits the extent of it for a particular race, Section 10 can be invoked to strike down that law as being racially discriminatory.

Section 8 of the RDA references CERD and provides exceptions to section 10. These exceptions are called “special measures” and are actions that may be discriminatory but are taken to assist a specific racial or ethnic group to secure them full and equal enjoyment of human rights and fundamental freedoms.

Case Law

Details of the Maloney High Court case and other aspects of Human Rights Law can be found on the Institute’s study guide page.