Leslie Massey
Treaties in Australia are international agreements concluded in written form between two or more states or international organisations, governed by international law. Treaties give rise to international legal rights and obligations. Australia has agreed to be bound by major international human rights treaties, but these do not form part of Australia's domestic law unless specifically incorporated into Australian law through legislation. States can agree to be bound by a treaty by ratifying it or acceding to it. The treaty-making process in Australia involves several key steps, including seeking approval from relevant ministers and the Executive Council, tabling the treaty in Parliament for scrutiny, and any other necessary steps to enable the treaty to come into force. Despite decades of debate, there are currently no treaties in force between the federal government and Indigenous Australians, although some states have made progress in this area.
| Characteristics | Values |
|---|---|
| Definition | A treaty is an international agreement in written form between two or more states or international organisations, governed by international law. |
| Binding | Treaties are binding, giving rise to international legal rights and obligations. |
| Negotiation | Negotiations are carried out by the Department of Foreign Affairs and Trade's International Law: Advising and Treaties Section (Treaties Section). |
| Mandate | Before negotiations, the lead minister must seek a mandate from the Minister for Foreign Affairs. |
| Consultation | The Prime Minister and other relevant ministers must be informed. |
| Approval | Approval is required from relevant ministers and the Executive Council for Australia before entering into the treaty. |
| Scrutiny | Treaties are tabled in Parliament for scrutiny by the Joint Standing Committee on Treaties (JSCOT). |
| Legislative Changes | Any required legislative changes must pass both Houses of Parliament before the treaty enters into force. |
| Indigenous Treaties | As of 2024, no Indigenous treaties are in force, despite some states expressing support. |
| Human Rights Treaties | Australia has agreed to be bound by international human rights treaties, but they do not form part of domestic law unless specifically incorporated through legislation. |
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What You'll Learn
The treaty-making process
Australia's treaty-making process involves several key steps, and the involvement of various stakeholders.
Firstly, any Commonwealth Government agency that wishes to propose a treaty must do so in consultation with the Department of Foreign Affairs and Trade's (DFAT) Treaties Section. The lead minister must then seek a mandate to negotiate the treaty from the Minister for Foreign Affairs, and the Prime Minister and other relevant ministers must be informed. The Cabinet may also grant this mandate. Throughout the negotiation process, the lead agency must consult with other Commonwealth Government agencies, state and territory governments, and other stakeholders.
Once negotiations are complete, the treaty must be approved by the Executive Council (ExCo). After this approval, the treaty can be signed by Australia's representative, with the time and venue determined in consultation with the other party and relevant ministers. If the signatory is not the Prime Minister or Minister for Foreign Affairs, the latter must issue an instrument of full powers authorising the representative to sign.
Following the signing, treaties are presented to both Houses of Parliament for consideration by the Joint Standing Committee on Treaties (JSCOT). The number of days the treaty must be tabled for depends on its category, with routine treaties requiring 15 days, and non-routine treaties 20 days. After this scrutiny, any required legislative changes must be passed by both Houses of Parliament before the treaty can come into force. For bilateral treaties, this usually occurs via an exchange of diplomatic notes.
Treaties that do not significantly impact the national interest and have a negligible effect in Australia may be treated as minor treaty actions, subject to a streamlined Parliamentary scrutiny process.
It is worth noting that Australia has not entered into any Indigenous treaties with its First Nations. While there have been negotiations and expressions of support, no formal treaties are currently in force.
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Treaties with Indigenous Australians
In 1832, following the Black War in the colony of Van Diemen's Land (now Tasmania), the Governor, George Arthur, remarked that it was a "fatal error... that a treaty was not entered into with the natives". He recommended that an understanding be reached with the Aboriginal peoples before the colonisation of South Australia, to "prevent a long-continued warfare". The Letters Patent establishing the Province of South Australia in 1836 included recognition of the rights of the Aboriginal peoples of South Australia. However, the only pre-21st-century attempt to negotiate a treaty with Indigenous Australians was Batman's Treaty, an agreement between John Batman and a group of Wurundjeri elders for the purchase of land around Port Phillip.
In the early 21st century, a number of states and territories began treaty negotiations with their Indigenous peoples, as there had been no progress made at the federal level. In 2017, the Uluru Statement from the Heart included a request for a Makarrata Commission (a Yolngu word for "a process of conflict resolution, peacemaking and justice") to supervise a process of agreement-making between governments and First Nations. In 2018, the Victorian government was the first at the state level to pass a legal framework for Indigenous treaty negotiations, with the Advancing the Treaty Process with Aboriginal Victorians Act 2018. The ultimate goal of a partnership between the Victorian government and Aboriginal communities is "to achieve reconciliation and justice for Aboriginal communities", and this partnership is enshrined in law. In 2019, the Northern Territory appointed a Northern Territory Treaty Commissioner, and the Queensland Government signed a 'Tracks to Treaty' commitment, engaging in extensive community consultations. In 2022, the Victorian Liberal Party supported the treaty.
Treaties are necessary to recognise historical wrongs and provide an opportunity to recast the relationship between Indigenous and non-Indigenous peoples. They could recognise First Nations as distinct political communities, acknowledge Indigenous sovereignty, set out mutually recognised rights and responsibilities, or provide for some degree of self-government. As of 2024, no such treaties are in force, and the defeat of the Voice referendum in 2023 has led to a reversal by several state branches of the Liberal and National parties in their support for a treaty.
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Human rights treaties
Australia is a party to 7 core international human rights treaties: the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Rights of Persons with Disabilities (CRPD), and the Convention on the Rights of the Child (CRC).
Treaties created by the United Nations and other such bodies form the basis of international law and are how human rights are recognised, promoted, and enforced regionally and globally. International human rights treaties provide an agreed set of human rights standards and establish mechanisms to monitor how a treaty is implemented.
While Australia has agreed to be bound by these major international human rights treaties, they do not form part of Australia's domestic law unless the treaties have been specifically incorporated into Australian law through legislation. Some provisions of a treaty may already exist in national legislation. For instance, many of the provisions contained in the Convention on the Rights of Persons with Disabilities are mirrored in Australian law through the Disability Discrimination Act 1992.
States can agree to be bound by a treaty by ratifying it or acceding to it. 'Ratification' is the process by which a signatory state to a treaty confirms its intention to be bound by that treaty. This is usually done by the signatory state signing the treaty. 'Accession' occurs when a state that did not ratify a treaty formally accepts its provisions.
The Australian Constitution allows Australia to enter into treaties as an exercise of Executive Power. Treaties are then tabled in both Houses of Parliament. The process of Australia's treaty-making is summarised in six key steps. Firstly, the lead minister must seek a mandate to negotiate the treaty from the Minister for Foreign Affairs. The Prime Minister and any other ministers with a portfolio interest in the subject of the treaty must be informed. A mandate to negotiate can also be granted by the Cabinet. Lead agencies consult throughout the negotiation with other interested Commonwealth Government agencies, state and territory governments, or other interested stakeholders, as appropriate. Secondly, following ExCo approval, the treaty may be signed by Australia's representative. The time and venue of the signing ceremony are determined in consultation with the other party and relevant ministers' offices. If the treaty is to be signed by anyone other than the Prime Minister or the Minister for Foreign Affairs, the Minister for Foreign Affairs issues an instrument of full powers authorising the representative to sign the treaty. Thirdly, treaties are tabled in both Houses of Parliament for consideration by the Joint Standing Committee on Treaties (JSCOT). Treaties are required to be tabled for 15 or 20 joint sitting days depending on the category of the treaty. Fourthly, following receipt of JSCOT's report, and prior to entry into force, any legislative changes required to implement the treaty domestically must have passed both Houses of Parliament. Once all the domestic procedures have been completed, arrangements can be made for entry into force. For bilateral treaties, entry into force usually occurs via an exchange of diplomatic notes, confirming that the parties have completed all necessary domestic procedures to enable entry into force. Fifthly, the Governor-General in Council approves the treaty. Sixthly, Australia declares its consent to be bound by the treaty. This requires Australia to deposit an 'instrument of ratification' with the United Nations Secretary-General, which is a document drafted by the Department of Foreign Affairs and Trade that expresses Australia's acceptance of the terms of the treaty, including any qualifications or reservations. Once ratification has occurred, Australia is bound by the treaty and is compelled under international law to proceed to incorporate articles of a treaty into domestic legislation to make them enforceable under domestic law.
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Free trade agreements
A free trade agreement (FTA) is an international treaty between two or more economies that reduces or eliminates certain barriers to trade in goods and services, as well as investment. Australia has negotiated numerous FTAs to benefit Australian importers, exporters, producers, and investors by reducing and eliminating certain barriers to international trade and investment.
The process of treaty-making in Australia involves six key steps. Firstly, the lead minister must seek a mandate to negotiate the treaty from the Minister for Foreign Affairs. The Prime Minister and any other ministers with a portfolio interest in the subject of the treaty must be informed. A mandate to negotiate can also be granted by the Cabinet. Secondly, the lead agencies consult throughout the negotiation with other interested Commonwealth Government agencies, state and territory governments, or other stakeholders, as appropriate. Thirdly, the treaty is signed by Australia's representative after receiving ExCo approval. The time and venue of the signing ceremony are determined in consultation with the other party and relevant ministers' offices. Fourthly, treaties are tabled in both Houses of Parliament for consideration by the Joint Standing Committee on Treaties (JSCOT). Treaties are required to be tabled for 15 or 20 joint sitting days, depending on the category of the treaty. Fifthly, any legislative changes required to implement the treaty domestically must pass both Houses of Parliament. Finally, once all the domestic procedures have been completed, arrangements can be made for entry into force. For bilateral treaties, this usually occurs via an exchange of diplomatic notes, confirming that the parties have completed all necessary domestic procedures to enable entry into force.
Some of Australia's FTAs include the Australia-New Zealand Closer Economic Relations Trade Agreement (ANZCERTA or CER), which entered into force on 1 January 1983; the ASEAN-Australia-New Zealand Free Trade Agreement (AANZFTA), which entered into force on 1 January 2010 for eight countries, including Australia and New Zealand; the Regional Comprehensive Economic Partnership (RCEP), which entered into force on 1 January 2022 for ten countries, including Australia, New Zealand, and China; the Australia-India Economic Cooperation and Trade Agreement (ECTA), which entered into force on 29 December 2022; and the Australia-United Kingdom Free Trade Agreement (A-UKFTA), which entered into force on 31 May 2023. Additionally, the United States-Australia Free Trade Agreement (FTA) entered into force on January 1, 2005, eliminating tariffs on more than 99% of the tariff lines for qualifying U.S. manufactured goods exported to Australia and providing substantial benefits in various sectors.
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Treaties with international organisations
Treaties are international agreements concluded in written form between two or more states or international organisations, governed by international law. Treaties give rise to international legal rights and obligations.
In Australia, the power to enter into treaties is an Executive power within section 61 of the Australian Constitution. The Minister for Foreign Affairs and the Department of Foreign Affairs and Trade (DFAT) have responsibility for treaties.
- Before formal negotiations for a treaty can begin, the lead minister must seek a mandate to negotiate the treaty from the Minister for Foreign Affairs. The Prime Minister and any other ministers with a portfolio interest in the subject of the treaty must be informed. A mandate to negotiate can also be granted by the Cabinet.
- During the negotiation process, lead agencies consult with other interested Commonwealth Government agencies, state and territory governments, or other stakeholders, as appropriate.
- Once negotiations are complete, the treaty is submitted to the Executive Council (ExCo) for approval. After approval, the treaty may be signed by Australia's representative. The time and venue of the signing ceremony are determined in consultation with the other party and relevant ministers' offices.
- If the treaty is signed by someone other than the Prime Minister or the Minister for Foreign Affairs, the Minister for Foreign Affairs issues an instrument of full powers authorising the representative to sign the treaty.
- Following the signature, treaties are presented to both Houses of Parliament for consideration by the Joint Standing Committee on Treaties (JSCOT). Treaties are required to be tabled for 15 or 20 joint sitting days, depending on the category of the treaty.
- After receiving JSCOT's report, and prior to the treaty coming into force, any legislative changes required to implement the treaty domestically must pass both Houses of Parliament. Once all domestic procedures are completed, arrangements can be made for the treaty to come into force. For bilateral treaties, this usually occurs via an exchange of diplomatic notes, confirming that the parties have completed all necessary domestic procedures to enable entry into force.
It is important to note that treaties are distinct from instruments of less-than-treaty status, often referred to as memoranda of understanding. These instruments are not legally binding under international law and are not subject to Australia's treaty-making process.
While Australia has agreed to be bound by major international human rights treaties, they do not automatically become part of Australian domestic law. For a treaty to be incorporated into Australian law, it must be specifically implemented through legislation.
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Frequently asked questions
A treaty is an international agreement concluded in written form between two or more states or international organisations. Treaties are governed by international law and give rise to international legal rights and obligations.
Australia's treaty-making process involves six key steps. First, the lead minister must seek a mandate to negotiate the treaty from the Minister for Foreign Affairs. Next, the Prime Minister and other relevant ministers must be informed. Then, the lead agency consults with other stakeholders, such as state and territory governments. After this, the treaty is signed by Australia's representative. Following signature, the treaty is tabled in Parliament for scrutiny by the Joint Standing Committee on Treaties (JSCOT). Finally, any legislative changes required to implement the treaty domestically must be passed by both Houses of Parliament before entry into force.
The Minister for Foreign Affairs is responsible for granting a mandate to negotiate a treaty and issuing an instrument of full powers authorising a representative to sign the treaty. The Minister for Foreign Affairs also works closely with the Department of Foreign Affairs and Trade's (DFAT) International Law: Advising and Treaties Section (Treaties Section) throughout the treaty-making process.
As of 2024, there are no Indigenous treaties in force in Australia at the federal level. However, some states and territories have begun negotiations with their Indigenous peoples, and the Victorian government passed a legal framework for Indigenous treaty negotiations in 2018.
