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Wednesday, 1 June 1994
Page: 1116


Senator O'CHEE (6.24 p.m.) —I was surprised to hear some of the comments that were made by Senator Sherry earlier in this debate, and I wholeheartedly endorse the comments that have been made by my colleague Senator Kemp. It is about time that Senator Murphy got a little bit of an introductory course in international law. Senator Sherry said that we had international legal obligations that arose out of the ILO conventions—an extraordinary comment to make.

  Senator Sherry is under the misapprehension that any time Australia signs another agreement, be it with another country or with an international governmental body, we have a legal obligation similarly as if we had signed a contract. Let me go through that because Senator Sherry is utterly wrong. The Vienna convention on treaties executed in 1969 lays down the basis on which countries may execute treaties and it also lays down the basis on which other bodies may enter international arrangements between themselves or with other governments. Nothing in the Vienna convention on treaties says that, if Australia enters an agreement with the ILO, that is a treaty within the meaning of the Vienna convention. So Senator Sherry is wrong to start off with.

  If we sign an agreement with the ILO or with another international body of a similar nature, under the Vienna convention it is not a treaty. It may well be an agreement. It can be referred to as a treaty, but all sorts of things are referred to as treaties, however, they have no binding international force. They do not have the force of law, and this is the big problem in international law. Any time an agreement is signed, it gets called a treaty.

  So, for the benefit of Senator Sherry, I might run through five sample treaties. Senator Sherry can tell me whether they have the force of law as between one nation and another. Senator Sherry fancies himself as a bit of a hot-shot on this subject. Let us see whether Senator Sherry thinks that these agreements, which have been called treaties, have the force of law as between one nation and another. First, the charter of the United Nations; secondly, the Anglo-American liquor convention of 1924 which established mutual recognition of three mile territorial sovereignty; thirdly, the 1916 treaty between Denmark and the US; fourthly, the treaty of Vienna of 1815; and, fifthly, the strategic arms limitation treaties.

  They are all treaties. But do they create uniform obligations in international law? The answer is `no' because in many cases the character of these agreements is that they are expressions of principle; but they do not create a cause of action before the International Court of Justice. They do not create legally binding obligations between one country and another. In many cases, they are merely declaratory of principle. And the ILO conventions are exactly that—declaratory of principle.

  It is morally moribund for the government to come into this chamber and say, `Look, we've signed this convention. Therefore, we have a legal international obligation to implement this stuff, which is binding and has the force of law.' That is utter garbage. Senator Sherry and all government senators ought to understand that—that these agreements, which are declaratory of principle, have no force of law. Nothing forces us to do anything as a result of them because they merely hold up a principle.

  Before Senator Murphy interjects it is important to note that certain treaties in other jurisdictions—self-executory treaties—are such that the ratification of the treaty imports particular provisions of that agreement into the domestic law without an act of parliament. Those self-executing or self-executory treaties do not exist, or are not generally recognised in Australian domestic law. The only reason that there are countries that have those treaties is that they have a provision in their constitution which requires the ratification of a treaty by the parliament. For example, in the United States, the US High Court in a case known as Foster and Neilson ruled that there were these things called self-executing or self-executory treaties.

  The only reason that those treaties have the force of law without further act of Congress to implement them is that, for the treaty to be ratified, it has to have the approval not just of the executive but of two-thirds of the US Senate. Even then there are very strict requirements of what is a self-executing treaty—what creates rights at domestic law as a result of the execution of those treaties. It goes to the substance of the treaty. The treaty has to specify the means by which the rights are going to be enforced, and the exact nature of the rights themselves. There is nothing in the ILO conventions which that mob opposite have signed—and they claim to have the force of law—that is anything like that. So it is totally and utterly dishonest for the government to say that these treaties have the force of law and that it has an obligation to implement these treaties. That is dishonest in the utmost.

  It was very interesting when Senator Sherry said, `We don't have to tell the opposition we are going to sign a treaty. We don't have to tell the people we are going to sign a treaty. What is wrong with our not telling people?' What is wrong with our not telling people is that they want to know. Honourable senators opposite have to understand the very basic concept that they do not have, nor do their leaders have, unbridled power. That is what we are here for. This parliament exists as a check and a balance on unbridled power. If we follow what we are going to call the Murphy line here—


Senator Murphy —Love your theatrics, Bill!


Senator O'CHEE —We love you too, Shayne. That is why we are calling this the Murphy line.


The CHAIRMAN —Senator O'Chee, much as your affection is endearing, perhaps you should address Senator Murphy by his correct name.


Senator O'CHEE —Senator Murphy, we love you too. That is why we are calling it the Murphy line. The Murphy line says, `Look, we'll let the government go off and sign all these treaties and we don't have to tell anybody, and because they are the executive and there is the mention of a treaty power in the constitution—'


Senator Murphy —Mr Chairman, I rise on a point of order. I do not want to interrupt Senator O'Chee's great theatrical display, but I have never adopted or established any line in respect of this matter. I do not think it is correct and I ask you to ask him not to cite my line because he has no idea what my line is.


The CHAIRMAN —There is no point of order, Senator Murphy, but there is a procedure under standing orders which allows you to correct any misrepresentation of your position.


Senator O'CHEE —I have great personal regard for Senator Murphy, and I accept that he may be embarrassed by this particular line of argument. Senator Murphy can rest assured that we are not going to call it the Senator Murphy line, we will instead call it the Senator Sherry line because it is an argument that Senator Sherry has advanced anyway. That line says, `We won't bother telling the people because the government has got this executive power. Therefore, we are going to sign all these conventions which don't have the force of law, but because it is called a treaty we will say that it creates a constitutional head of power that lets us do whatever we want.'


Senator Sherry —Mr Chairman, I raise a point of order. I am being misrepresented, and I will deal with it when I respond after Senator O'Chee has finished his diatribe.


Senator O'CHEE —I do not think that was a point of order at all. But it shows that those opposite are very sensitive about this because when we start to expose the weak logic and the weak jurisprudence behind this sort of thinking they all want to run for cover. Where are the courageous men on the other side? They are all skulking under the table. That is why we can see only three or four of them because all the others are skulking under the table.

  The Senator Sherry line is this: the government goes off and signs these treaties because it is the executive, notwithstanding the fact that it has not told the people. It then claims that it has an international legal obligation, notwithstanding the fact that it does not exist. It claims that it has a constitutional power in respect of this. Then, when a dispute arises from it, instead of it being heard in an Australian court, because the government has signed this agreement that has ceded the authority in relation to the matter to a UN panel, the dispute is sent off to the UN. If that is the case, then why is anybody here in the Senate or in the other place? If we follow that line, by reductio ad absurdum, we get to the point where the executive can sign whatever it wants and cede power to make law and decide on law to international bodies; that is the weakness in the government's case.

  We have already established the fact that the government does not understand the nature of the treaties into which it has entered; we have already established the fact that these treaties do not have the force of law; we have already established the fact that this government is very rapidly, on its own thinking, ceding our authority overseas; and we have already established the fact that it is totally and utterly, politically and morally moribund. So we get to the point where we start to wonder why we, or anybody else, should have any confidence in the government at all. Certainly we on this side of the chamber do not have any confidence. The government itself does not have any confidence in the arguments it puts up.

  Senator Sherry is going to explain himself, and we look forward to that with great amusement and interest. But, at the end of the day, this government has got it wrong. We do not believe it should be given carte blanche and that is why we are standing up to it on these issues.