Under section 61 of the Australian constitution, the authority to enter into treaties comes under executive power. Decisions regarding the talks on multilateral treaties which includes deciding about the object , negotiating arrangements , the limit within which the Australian representatives can operate and the concluding decision as to whether to sign and seal the treaties are pursued at Ministerial level and in majority cases, by Australian cabinet. So as to offer certainty, Australia’s constitutional setup also guarantees that there exist checks and balances.
This happens through Australian parliament’s part in scrutinizing all recommended treaty actions and in enacting legislation to endorse the treaties and the Australian judiciary’s supervising of the system. By taking parliament and judiciary into confidence while endorsing a treaty as it fosters certainty and efficiency of process which facilitates the Australian government to discuss with its allied countries with trustworthiness and authority thereby asserting that Australia becoming a source of influence in the negotiation of treaties. 6.
ROLE OF AUSTRALIAN PARLIAMENT IN TREATY MAKING: Though, Australian constitution is silent on the role of Australian parliament in treaty making , all treaties are normally tabled in both Houses of Parliament as a minimum of 15 sitting days before the treaty comes into binding . A treaty normally is placed before parliament after it has been signed but before any treaty action is initiated which would impact Australia under International law. Such further action may be pursued like signing a new treaty, discussion on an amendment to an existing treaty or pull out from an existing treaty.
Section 51(29) of Australian constitution enables the Australian Commonwealth to legislate on any number of subjects not otherwise within its powers provided that it is doing so in pursuant of an external affair. For giving effect to a treaty, if commonwealth legislation is needed, the Government has to bank upon the powers conferred in Section 51 [xxix] of the Australian Constitution. Under certain circumstances, the Australian Constitution may restrict the Commonwealth capacity to exercise the external affairs authority or power.
It is to be remembered that Commonwealth may exercise the external affairs power in such a way that its States capacity to function must not be marred. For instance, If Australia’s consent to the Convention on the conservation of Nature in the South Pacific does not connote that the Commonwealth has inherent legislative power over the subject of “nature conservation. ” Thus, the external affairs power only facilitates legislation to be enacted to give effect to the covenants of the treaty. For legislation to be legally binding, it must be rationally pursued to be proper and adapted before the implementation of a treaty.
