- A recent Commonwealth Parliamentary Committee inquiry found that free trade agreements intrude into many domestic policy spheres without democratic oversight and curtail Australia’s regulatory abilities.
- The Committee’s report ‘Blind agreement: Reforming Australia’s treaty-making process’ asserts that Parliament’s role in the Commonwealth’s treaty-making process needs strengthening.
- Practical proposals include confidential access to draft treaty text during negotiations, publishing preparatory material, communications mechanisms which enhance stakeholder contributions, a negotiation template, improved analysis and strategic approaches.
Australia’s treaty-making process needs reform. This was the key message of a June report from the Senate Foreign Affairs, Defence and Trade References Committee entitled ‘Blind agreement: reforming Australia’s treaty-making process’ (the Report). The Committee received 94 submissions and made 10 recommendations on the themes of transparency, consultation and independence. This article identifies the background to the Report, reviews the Committee’s recommendations and offers an assessment.
The Commonwealth treaty-making process was last reformed in 1996 under the Howard government. Among other reforms, a Joint Standing Committee on Treaties (JSCOT) was established to provide oversight, scrutiny and foster a greater level of parliamentary involvement. Nearly 20 years later, the recent inquiry has examined whether further refinements are required and whether there are opportunities for more openness, transparency and accountability in the way Australia negotiates treaties (para 1.8).
The terms of reference were very broad and included the Commonwealth’s treaty-making process (including Parliament’s role in negotiating, approving and reviewing treaties), appropriate institutional roles (for parliamentary committees and other consultative bodies), developing treaty-related materials, opportunities for independent assessment, the extent of stakeholder consultation, State practice in other jurisdictions and related matters.
One impetus for the inquiry was the recent conclusion of high-profile free trade agreements with Korea, Japan and China as well as the Trans-Pacific Partnership. The Committee reported it heard ‘compelling evidence’ that these treaties reach into domestic policy arenas which are ordinarily subject to public debate or domestic legislation, and affect a State’s regulatory ability (para 2.27).