SENATOR BIRMINGHAM (South Australia) 15:35 – I thank the Senate for the leave. In presenting these two reports I will touch briefly on some of the issues they canvass. First is report No. 127, which contains the committee’s views on a series of treaties which were tabled on 20 March and 8 May 2012. One of the more important treaties covered in this report is the exchange of notes constituting the Agreement between Australia and the United States of America to Amend and Extend the Agreement on Cooperation in Defence Logistics Support. The exchange of notes will extend the Agreement on Cooperation in Defence Logistics Support for a period of 11 years and ensure that Australia’s bilateral defence logistics cooperation with the United States remains on a sound footing.

The agreement’s continued operation is important to the Australia-United States military relationship because it enables the reciprocal provision of logistical military support. It also provides for the establishment of maintenance programs which enhance industry capability and contribute to Australia’s military preparedness and interoperability with US forces.

I hope that all members in this place recognise that Australia’s defence relationship with the United States is our most important defence relationship. The ANZUS alliance, in effect for over 60 years, is the cornerstone of that relationship and subsequent agreements, such as this one, help to facilitate that defence relationship. Given the increased cooperation and activity between the US and Australian defence forces over the past decade, this exchange of notes is both logical and practical.


It will help to facilitate ongoing operations in Afghanistan as well as the deployment of the US Marines to the Northern Territory.

The Joint Standing Committee on Treaties did, however, note that this agreement is currently used infrequently and could perhaps better serve Australia’s interests if some of the provisions within the logistical support agreement were more fully utilised, especially in the area of Australian access to US equipment and industry. From evidence the committee received, it appears as though the agreement’s potential has perhaps not been explored as thoroughly as it could be, and we certainly urge those officials involved in Defence to look at how it could be enhanced to the benefit of Australia’s defence industry.

The committee also approved an extension to the 1987 Regional Co-operative Agreement for Research, Development and Training Related to Nuclear Science and Technology. The regional co-operative agreement is a useful mechanism in providing a regional framework for initiating co-operative projects and co-ordinated research between international atomic energy agreement member states in the Asia-Pacific. Its continued operation over a 40-year period provides tangible evidence of its usefulness. Although the RCA’s role in the nonproliferation architecture is limited, it does perform a role in promoting nonproliferation objectives. Furthermore, as part of a broader regulatory architecture for nuclear activities, it also plays a role in implementing improved standards following events such as those that occurred, tragically, at Fukushima. The committee strongly supported the continuation of our involvement in this agreement, which ensures that the peaceful use of nuclear science and technology is advanced throughout the region. The committee noted that there could have been opportunity to upgrade the agreement rather than, as such, simply roll it over, and the report suggests that Australia could and should in future look at taking the opportunity to strengthen the safety and nonproliferation aspects of this agreement, especially in light of the Fukushima disaster. Given the agreement is renewed every five years, this is an item we would expect to be taken into account at that time.

In relation to report No. 128, which contains the committee’s views on the Treaties Ratification Bill 2012, I inform the Senate that the committee has recommended that this bill not proceed. The bill was introduced by the member for Kennedy into the House of Representatives in February this year to address what he perceives as the undemocratic nature of treaty negotiation and implementation. The member for Kennedy was concerned that the treaties Australia is entering into are economically damaging to Australian agriculture and manufacturing, and claimed that Australia’s sovereignty is being eroded. Members of the committee do not necessarily agree with the member for Kennedy’s summation.

The way in which trade treaties are negotiated continues at times to be a matter of controversy but, equally, I especially and the committee overall recognise the absolutely vital importance of free trade to Australia and of the continued negotiation by the Australian government of bilateral and multilateral free trade agreements and participation in those fora. There may be a popular perception in some places that Australia is being disadvantaged by these agreements; however, open markets to foreign products, services and investment are absolutely essential to Australia’s future.

Senator Wong: You’d better tell Barnaby. Barnaby’s got Tony’s ear!

The DEPUTY PRESIDENT: Order! Senator Wong!

Senator BIRMINGHAM: I welcome Senator Wong’s enthusiastic support for the findings of the committee. I suggest that Senator Wong take a look at some of the comments of the likes of the member for Hindmarsh on these topics. She might find that they are not in accordance with some of the strong views of the Minister for Trade or others.

The Treaties Committee considered these issues during its study of the Australia-Chile Free Trade Agreement in 2008. At the time, the committee recommended that there could be more thorough cost-benefit assessment of treaties provided by the government to ensure that there is a better understanding of the benefits that stem from these types of free trade agreements. The committee has reiterated this in this report in a broader sense, given that it covers more than just trade agreements, and recommended that, prior to commencing negotiations for any new agreements:

… the Government table in Parliament a document setting out its priorities and objectives, including the anticipated costs and benefits of the agreement.

This, we think, would provide greater transparency to the treaty-making process and allow the Treaties Committee to have the opportunity to engage with the government of the day on the treaty-making process before such treaty negotiations are finalised, which is an important point across all aspects of treaty making.

However, as I indicated, the member for Kennedy’s bill is not, in the opinion of the committee, the solution to the concerns that it has indicated or to the concerns the committee may have about the lack of parliamentary involvement in the treaty-making process at its earlier stages. We see that the bill has a number of flaws and would be unworkable. The bill itself has only one substantive provision:

The Governor-General must not ratify a treaty unless both Houses of Parliament have, by resolution, approved the ratification.

The committee received a number of excellent submissions and heard evidence from well-informed witnesses at the public inquiry that was held into the bill. From this evidence, the committee concluded that it appears that the bill is likely to be constitutional. Section 61 of the Constitution places formal responsibility of treaty making with the executive rather than the parliament. The wording of the bill indicates that the parliament is not taking over the ratification function, however, but rather makes the executive’s decision to ratify conditional upon the parliament’s prior approval.

However, the bill would present a number of practical and political problems to both the parliament and the executive if passed as presented. The sheer number of treaties, many of them dealing with administrative matters, along with, indeed, the nature of the parliament, would at times have the potential to overwhelm the parliamentary process if all treaties were subject to this arrangement. The bill’s lack of a provision for short-term emergency treaties would make the bill unworkable. For example, the Joint Standing Committee on Treaties has, on behalf of the parliament, reviewed over 600 treaty actions at an average of almost 40 treaties per year since it was established in 1996. If both houses of parliament had to, by resolution, approve the ratification of each treaty, as the bill demands, the parliament would certainly need to sit more often and would have little time, perhaps, to complete its other business.

Although other models exist overseas which may add a greater degree of parliamentary scrutiny to the treaties review process, the bill is a very brief document which allows little room for amendment without a comprehensive change of its intent.


That is why the committee has made the recommendation that I highlighted earlier; to give greater parliamentary oversight and involvement at an earlier stage of the negotiating process, which we believe would be a good step on the reforms that the Howard government instigated in establishing the Joint Standing Committee on Treaties originally.

I thank the committee secretariat for its work on both of these reports, and I commend both of the reports to the Senate.