The FTA and the Senate – a dead treaty?

John Quiggin blogs some further thoughts on the Australia/US FTA, observing:

My understanding of the legal status of treaties is imperfect, to put it mildly. I know that, unlike the US, there is no requirement for Parliamentary ratification of treaties. And I recall from the Franklin Dam case, that the Commonwealth Parliament can pass legislation to implement a treaty in a field that would otherwise be outside its jurisdiction, such as environmental protection.

But I don’t know what happens in the case of a treaty like the just-signed FTA, which apparently requires changes to Australian law in a large number of areas – certainly copyright and probably the PBS. I assume the entire treaty must be put to Parliament as a package and ratified without amendment, otherwise the US side can just walk away.

But if this is the case, I would judge that the treaty is already dead…

But of course, all of the above is premised on my shaky understanding of the procedural rules – would anyone care to set me straight.

Brian Bahnisch provides some explanatory light in JQ’s comment box, but this is a subject worth exploring further.

As Brian Bahnisch observes, entering and ratifying treaties is a purely executive function in Australia (unlike the US, where its Constitution requires Senate approval before any treaty comes into force). In both constitutional and strictly legal terms, the Howard government could ratify the FTA without consulting Parliament at all. Indeed that’s what previous federal governments (most notably Labor ones) did as a matter of course, until the Howard government introduced new protocols for entry into treaties upon assuming government in 1996. Howard agreed that all treaties would be tabled in Parliament and submitted to the Parliamentary Joint Standing Committee on Treaties (JSCOT) for examination. He also undertook to consult State and territory governments about treaties, at least where the provisions potentially impacted State powers. Paul Keating had previously refused to make any such commitments.

It’s important to understand, however, that these protocols are purely voluntary: they’re not enshrined in statute, and so no government is under any legal obligation to follow them. If it weren’t for the fact that, as JQ himself notes, several of the FTA treaty commitments (e.g. copyright term extension) will require legislative enactment to be effective, the Howard government could in theory simply ratify the FTA without ever putting it before Parliament. However, the political constraints on such an action would be formidable, and it’s clear that isn’t what Howard intends at all. We can gain a hint of the likely course of events from the explanatory public consultation note on the DFAT website:

Mr Vaile, his Parliamentary Secretary, De-Anne Kelly, the negotiating team, government departments, Austrade and Invest Australia will hold further public meetings and sessions with business and State and Territory governments.

Later in the year the Joint Standing Committee on Treaties (JSCOT) will examine the AUSFTA, and may hold public hearings before reporting to the Parliament.

John Quiggin’s principal concern seems to be the probability that crucial pieces of legislation, necessary for Australia to comply with its FTA obligations, will be rejected by the Senate before the forthcoming election, resulting in the treaty being “dead in the water” for political purposes (except among sugarcane growers, who’ll exact vengeance on the Howard government anyway), because the US will simply walk away from it when Australia fails to comply. Frankly, that’s an extremely unlikely scenario.

The consultation period and examination of the treaty by JSCOT will certainly take things well beyond the latest possible date for the next federal election, and that’s obviously what John Howard has in mind. The agreed implementation dates for the treaty have been fixed with such domestic political aspects (both in the US and Australia) well and truly in view. There is no need for Howard to put any FTA-related legislation before Parliament this year, and he won’t be doing so. Instead, he’ll be running hard on the economic benefits of the FTA to most sectors of the economy, while trying to hold on to the 5 marginal sugar electorates with subsidies and other “sweeteners”, and simultaneously painting Latham and Labor as backward-looking protectionists devoid of positive policies, intent on sabotaging Australia’s economic future for cynical short-term electoral gain, and in thrall to their trade union mates and the Green Luddites. Frankly, there’s a certain amount of truth in all those accusations.

Assuming that Vaile was really able to substantially hold the line on the PBS scheme and local film and TV content, and that pretty well all manufacturing industries and most rural ones (except sugar) benefit from the FTA to varying extents (as seems to be the case), it seems unlikely that the FTA will become a major negative for the Howard government in the general community. Latham can spout glib one-liners claiming it will “cost jobs” till he’s blue in the face, but ithe mud won’t stick if industry leaders in most sectors are saying exactly the opposite. I suspect that the potential political damage for Howard will be mostly confined to the 5 marginal sugar seats, and that’s a manageable problem for an incumbent government with plenty of money for pork-barrelling soft marginals.

Whether treaty-related legislation will survive the Senate after the election is something not even the bravest political pundit can currently predict, but pronouncing the FTA “dead in the water” at this early stage is seriously premature. Most versions of the mandate theory dictate that it would be utterly improper for opposition parties to block in the Senate legislation on which the government had clearly been elected (which will manifestly be the case with the FTA if the Howard government is returned to power). Moreover, given Latham’s own previous well-publicised neoliberal/third way convictions, I would expect in any event that the economically liberal majority in shadow cabinet would be minded to quietly drop its opposition to the FTA in a post-election environment, just as they did on the GST after their purely expedient opposition to its implementation failed to win government for Labor.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Ron Mead
Ron Mead
2024 years ago

I agree with most of Ken’s points here. One of the most disappointing features is the prospect of the government increasing subsidies to the inefficient sugar industry as “compensation”. The industry may be disappointed but they are no worse off than before. In fact there are no losers in this treaty. The comments in the SMH today, particularly the main banner headline “US Gets Upper Hand in Trade Deal” imply that these deals are zero-sum games – if one side gets more the other side therefore gets less. A typical lefty envy-centred view of the world.

But even more than the disappointing government approach is Latham’s totally cynical promise to block the treaty. Here is a man who in his 1998 book “Civilising Global Capital” railed against industry support as a misallocation of public resources (which it undoubtedly is). He appears to be intent on sucking up to the sugar seats to wrest them from the coalition by denying the very real benefits of the FTA to many other industries throughout the Australian economy.

Given the strong likelihood of Labor winning the election (see latest Newspoll) will Ken’s prediction of the new government quietly dropping its opposition to the FTA in a post-election environment be the first non-core promise of the Lathamites? We shall see.

2024 years ago

I’m glad someone more in the know confirmed my suspicions.

How can anyone think not getting sugar means the rest of the FTA is bad. Sure we would have liked open access to that as well, but the disappointment over this simply means that free trade is a good thing, and the rest of the benefits we get should not be thrown away because we didnt get sugar.

furthermore, related to pork barrelling marginal seats, this seems like the perfect example of the flaws in having voting districts altogether. if there were no districts these few sugar voters could be ignored altogether since they are a tiny percentage of the overall population, and the government wouldnt have to waste money protecting the industry simply because they’ll whinge (and vote the wrong way)

i cant see how it will be rational for them to vote labour however. the howard government tried to get them a free trade agreement but the US obviously refused. why would they now vote against him. clearly if howard could magically get free trade on sugar he would. its hard to see that this is what the left wing wants.

most of the commentary surrounding the free trade deal has been completely non-sensical, even to the most casual observer.

Homer Paxton
Homer Paxton
2024 years ago

Ron, one bad poll and you have given up the ghost.
Typical rugger bugger types.
Stick in there son there is a long time before it happens.

It is my impression that Iron Mark and Big Steve Conroy have said that if Australia gains they will vote for it but if it doesn’t they won’t.
At present all people are working on press releases not the agreement itself.

You will need several studies to see if it is good or not.

remember channel 9 negotiated AFL rights thinking they had the grandfinal but in the end they didn’t have it.

We don’t know at present what we are talking about yet.
I think it will be a few months before we can be sure.
Bad news for bloggers!

The Gnu Hunter
2024 years ago

The positive aspects of the Free Trade Agreement certainly appear to outweigh the negative. An estimated boost of $4 billion dollars to the GDP each year isn’t going to hurt. Reading the ABC and Sydney Morning Herald coverage on the internet this morning you’d think the sky had caved in. Sugar farmers would not be benefiting but the media made it sound as though sugar would be disadvantaged. They are not. Their highly subsidised and uncompetitive industry just won’t get any extra benefits. Agriculture in the main will benefit immediately with some exceptions like beef (but US Mad Cow now makes Australian beef highly desirable everywhere). It’s win win most everywhere but you wouldn’t think so from the stuff you read or from listening to the ALP or the Greens. The Greens will oppose it but that’s not surprising. Greens senators have not supported one Liberal Government Bill ever (even the ones about the roads). Do you think Latham will overturn the agreement? Not likely. He thinks the FTA is just fabulous but politically he thinks he’s on a winner by going on about sugar and some actors. Why not care about the gramaphone makers or horse saddlers too. To threaten to block enabling legislation that would benefit the country is not the sign of a responsible alternative government.

Homer Paxton
Homer Paxton
2024 years ago

The author has given up on the 4$B figure.
not suprising given the exchange rate situation and most of the benefits were to happen to Agricultural products.

I admit to being very wary of bilateral agreements which usually promoote trade diversion not creation however as the agreement has not yet been released we are all speaking in the dark.

2024 years ago

Dead on arrival?

My understanding of the legal status of treaties is imperfect, to put it mildly. I know that, unlike the US, there is no requirement for Parliamentary ratification of treaties. And I recall from the Franklin Dam case, that the Commonwealth…