Senator ALSTON (Minister for Communications and the Arts)(6.00 p.m.) —I present the government's response to the first report of the Joint Standing Committee on Treaties and I seek leave to incorporate the document in Hansard and to move a motion.

Leave granted.

The document read as follows—

GOVERNMENT RESPONSE TO THE FIRST REPORT OF THE JOINT STANDING COMMITTEE ON TREATIES

The Government welcomes the Committee's endorsement of the main features of the reform of the Australian treaty-making process that Mr Downer presented to Parliament on 2 May 1996. We remain hopeful that most of the community disquiet about treaties and the external affairs power will be allayed through the effective implementation of the reform. We intend to take stock during 1998, with the benefit of about two years' experience, and consider then the need for any further steps.

The Committee's scrutiny of Australian treaty action, and in particular the consideration of tabled treaties, is a fundamental component of the new approach to treaty-making—an approach characterised by consultation and transparency to the greatest extent possible, consistent with the national interest.

Recommendation 1.17—National Interest Analyses

National Interest Analyses should also include a discussion of the legal effects and potential areas of conflict with State and Territory laws;

National Interest Analyses (NIAs) already have a section (`Implementation') that describes the measures Australia intends to take or has taken to implement the treaty action in question, including any legislation. This section notes whether Commonwealth and/or State and Territory action is involved, and any changes to the existing roles of the Commonwealth and the States and Territor ies as a consequence of implementing the treaty action in this way. There are well known general principles concerning the effect of treaties in Australian law. These include:

.   treaties do not form part of Australian law unless and until they are incorporated into that law by statute; and

.   their use in the interpretation of statutes and as a source for the development of the common law.

In addition, there is no doubt that they give rise to Commonwealth legislative power under the external affairs power in the Constitution. Although the Teoh Case stated that treaties also might give rise to a legitimate expectation that administrative decisions would be made consistently with obligations under those treaties, that expectation (and the procedural right that follows) has been set aside by the Joint Executive Statement issued by the previous Government on 10 May 1995 and the Executive Statement issued by the Minister for Foreign Affairs and the Attorney-General on 25 February 1997.

There is no need to reiterate the general legal effects in the case of each treaty. The Government remains of the view that its commitment to ensure that the necessary implementing legislation and practice is in place, together with a description of that legislation and practice in the NIA, is appropriate.

As for potential areas of conflict with State and Territory laws, the Committee will appreciate that a complete search of all the statutes and other sources of law for all the Australian jurisdictions in relation to every contemplated treaty action would not be practicable, given Commonwealth Government resource constraints. In addition, the States and Territories themselves are the most appropriate authorities on State and Territory law and are best placed to form a view on any potential conflict. On this basis, the Commonwealth circulates to the States and Territories (through the Standing Committee on Treaties), approximately four times a year, complete schedules of current treaty negotiations and impending treaty action. With this information and the other formal and informal CommonwealthState consultation that occurs in a range of forums (including the Standing Committee of Attorneys-General), States and Territories are given the opportunity to examine this issue and to put views on areas of potential conflict to the Commonwealth. Many such matters are resolved in the course of consultation. Where there are major outstanding issues, these will be reflected in the existing sections of the NIAs dealing with consultation and the role of the States and Territories in implementing the treaty obligations.

National Interest Analyses identify the Commonwealth department or agency with primary carriage for a particular treaty along with relevant contact details; and

The Government accepts this suggestion and has included contact position details in NIAs tabled from the beginning of 1997. Since NIAs are intended to be of long-term use, the inclusion of individual officials' names would not be very helpful. Even Departmental titles and sub-divisions will of course change, but knowing which area was responsible at the time of tabling will give people interested in the treaty in future a starting point for tracing its continuing relevance.

National Interest Analyses include specific details of organisations and individuals consulted and how such consultation occurred, particularly with the Treaties Council.

The Government has no difficulty with the proposition that the `Consultation' section of NIAs provide as much detail as is feasible. If a treaty has been considered by the Treaties Council, that can certainly be mentioned, quoting the conclusions of the Council as recorded in the communiqu. Of course, it will not always be appropriate to name individuals, and there may even be instances in which national security, for example, would make too much detail invidious. The other ground for occasional derogation is that certain major treaties, negotiated and considered over several years, might generate unusably long NIAs if every contact were itemised.

Recommendation 2.12—International Institute for Democracy and Electoral Assistance

An assessment of the performance and effectiveness of the International Institute for Democracy and Electoral Assistance be provided to the Committee, including the extent to which its activities are focused in countries of significance to Australia and the level of Australian involvement in its activities, before any further financial contributions are made.

The International Institute for Democracy and Electoral Assistance (International IDEA) was established on 27 February 1995 as an international organisation, with Australia as one of its founding States. Its Headquarters Agreement with the Government of Sweden came into force in December 1995, and the recruitment of international staff commenced in January 1996.

The objectives of the Institute, as set out in the Agreement by which it was established, are:

.   to promote and advance sustainable democracy worldwide;

.   to improve and consolidate democratic electoral processes worldwide;

.   to broaden the understanding and promote the implementation and dissemination of the norms, rules, and guidelines that apply to multi-party pluralism and democratic processes;

.   to strengthen and support national capacity to develop the full range of democratic instruments;

.   to provide a meeting-place for exchanges between all those involved in electoral processes in the context of democratic institution-building;

.   to increase knowledge and enhance learning about democratic electoral processes; and

.   to promote transparency and accountability, professionalism and efficiency in the electoral process in the context of democratic development.

The Government believes that these objectives are valid, and consistent with its own commitment to seek to uphold and promote the principles of liberal democracy where possible, and to encourage, and aid in an active way societies in the process of developing democratic institutions, while recognising that many countries that are important partners of Australia place different interpretations on the nature and meaning of liberal democracy, which will be respected.

Australia has committed, through AusAID, A$250,000 per annum for three years to the Institute's core budget from May 1995. This contribution is made in recognition of the synergies between stable democratic government, peace, and equitable economic and social development. International IDEA's work in developing countries will build the local capacity to sustain electoral reform and bolster democracy, providing the stable environment crucial for effective government and sustained growth.

According to its Statutes the Institute consists of a Council, a Nominating Committee, a Board of Directors, a Secretary-General, and a Secretariat. The Secretary-General is Mr Bengt Sve-Sderbergh, a national of Sweden. Australians have since the Institute's establishment participated directly in all of its main structures. Australia as a member is directly represented on the Council, and the Electoral Commissioner, Mr Bill Gray AM, has led the Australian delegation to the Council on two occasions. Senator Margaret Reynolds is a member of the Nominating Committee, as a representative of Parliamentarians for Global Action, an organisation which is an Associate Member of the Institute. Emeritus Professor Colin Hughes, former Electoral Commissioner, serves in his individual capacity as a member of the Board of Directors. An Australian national is also employed as a Programme Officer in one of the fifteen international staff positions in the Secretariat.

The Australian Electoral Commission (AEC) has been substantially involved in the development of the Institute's overall work program. As part of the consultation process underpinning that development, the Electoral Commissioner participated in two meetings of the election management bodies of the member States, funded by the Institute, at which priority projects were discussed and identified. An AEC officer, seconded to the Institute at its expense, drafted the working papers that were dealt with at the first of those meetings. An AEC officer also participated as an expert panellist in a roundtable meeting on capacity building, sponsored by the Institute in AugustSeptember 1995, that provided input to the development of the Institute's work program in that field.

The AEC has also taken part in a number of major projects within the Institute's work program.

.   The Institute is currently undertaking a substantial cross-national study of the administration and cost of elections, the aim of which is to identify optimal and efficient practices in a broad range of areas of electoral administration. It is intended that this will widen the range of alternatives and choices available to electoral administrators, provide complete and systematic information to those who are faced with designing electoral procedures, and support those who provide advisory assistance to election management bodies. An AEC officer is a member of the expert working group that is guiding the project.

.   The Institute is developing a draft Code of Conduct for election observation. The need for such a Code was identified at a roundtable meeting on the subject, organised by the Institute in late 1995, that brought together a wide range of international bodies active in the election observation field. The first draft was prepared by an AEC officer seconded to the Institute specifically to work on the project. Even in its draft form, the Code was held up by those in charge of the observation of the recent elections in Bosnia-Herzegovina as a model Code for use in that election. In addition, it was used at the recent elections in Nicaragua, at the instigation of the Electoral Commission in that country.

.   As associated projects, the Institute is developing draft Codes of Conduct for election administration, and for the conduct of political parties during election campaigns. Again, the first drafts have been prepared by an AEC officer seconded to the Institute for that purpose.

Apart from those listed above, the Institute is pursuing a diverse but practically oriented set of projects, covering at the moment such areas as electoral dispute resolution systems, the support of networks of election administrators, and field co-operation for international election observer missions. The Institute anticipates that in 1997 it will be launching projects on electoral technology, the political participation of women, the future of electoral observation, guidelines pertaining to election observation involvement, and guidelines for the evaluation of free and fair elections. It will also be continuing to develop a joint Institute/United Nations Development Programme Information Network. In the field of capacity building, the Institute undertook in 1996 introductory missions to Kenya, Nicaragua, Romania, and, in the Asia-Pacific region, Nepal. Work has also been done on challenges facing democratic development and electoral processes in Bosnia-Herzegovina, Nigeria, and Bangladesh.

More general projects have also been initiated on the nature of democracy, on electoral systems and their design, and on the funding and functioning of political parties.

Finally, the Institute is providing a range of information services for its clients, including an Internet home page, a Newsletter, databases, and a range of professional publications and reports. The Institute has on a number of occasions been able to provide Australian clients with information on international best practice in specific areas of election administration.

In the Asia-Pacific region, the Institute's activities are expanding. Apart from its activities in Nepal and Bangladesh, it has offered services in the field of electoral assistance to the electoral authorities in Papua New Guinea and Fiji, and has taken a particular interest in the situation in Myanmar as a consequence of the presence of Daw Aung San Suu Kyi on its Board of Directors. It has also agreed to provide funding of $50,000 for a meeting of the election management bodies of South Pacific countries, which the AEC has proposed be held in 1997. It has further indicated its interest in making a substantive continuing commitment to electoral assistance in the region.

In summary, the Government notes that the overall level of Australian involvement in the Institute's activities has been substantial, and has given Australia the opportunity to exercise a beneficial influence in the specialised area that is the focus of the Institute's activities. The extent to which its field projects are being conducted in areas of significance to Australia is increasing, and is likely to reach a substantial level in the near future. In the light of these facts, the Government believes that the Institute's activities are deserving of continued support from Australia. The government also notes that there are no provisions in the Agreement by which the Institute was constituted that impinge in any way on Australian sovereignty.

Recommendation 2.18—Korean Peninsula Energy Development Organization

The Department of Foreign Affairs and Trade provide the Committee with details of contracts tendered for and awarded to Australian companies, the number of qualified Australians occupying staff positions with the Korean Peninsula Energy Development Organization, together with the schedule of payments of Australian contributions.

Contracts for Australian companies

Australia has consistently underlined its interest in securing Korean Peninsula Energy Development Organization (KEDO) commercial contracts at a level broadly commensurate with our financial contribution to the consortium. High-level representations have been made to the KEDO Executive Board and senior government officials from the consortium's three principal countries (the Republic of Korea (ROK), Japan, and the United States) on potential commercial opportunities for Australian companies. They have all acknowledged the reasonableness of our expectation that Australian companies be given a fair chance to compete for KEDO contracts within the framework of an open and transparent contracting system.

With AUSTRADE's assistance, my Department has also alerted companies to the available commercial opportunities, identified relevant Australian capabilities and interest in providing a range of auxiliary goods and services, and communicated this information to both KEDO and KEPCO, the prime contractor for the light water reactor project. For commercial reasons, we are unable to identify the twelve companies that have expressed interest in tendering, but the areas of identified Australian expertise include communications, electricity distribution, tower cranes, site roads, steel formwork, drainage pumps, remote monitoring, and construction catering.

Since KEPCO's tendering guidelines and procedures have still to be worked out, no major international tenders have been let and none are expected for the proposed eight-month site preparation stage. Work on the light water reactor was effectively put on hold following the incursion into ROK territory in September 1996 of a submarine and armed Democratic People's Republic of Korea (DPRK) military personnel. Fortunately, the statement of `deep regret' over the incident issued by the DPRK on 29 January 1997 cleared the way for a resumption of the project. We are maintaining pressure on KEPCO, and indeed the ROK government, to finalise the tendering procedures as soon as possible.

Australians in staff positions

The possibility of placing Australians in the KEDO Secretariat has not been taken up with KEDO as this would detract from our effort on contracts and having the consortium adopt open tendering processes. Moreover, KEDO is trying to limit staff numbers and has indicated that countries wishing to occupy positions will have to fund their own staff. We are keeping the matter under review, but do not believe that a position is necessary at present, especially given our excellent relations and high-level contact with KEDO.

Schedule of payments

There is no schedule of Australian payments to KEDO. Our three contributions to date reflect our strategic and non-proliferation interests in seeing KEDO succeed, the consortium's financial needs, and high-level approaches from the KEDO principals. Possible further Australian contributions are a matter for Government decision, taking into account KEDO's overall performance and future needs.

Senator ALSTON —I move:

That the Senate take note of the document.

Question resolved in the affirmative.