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.