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Thursday, 3 December 2015
Page: 9856


Senator LUDWIG (Queensland) (15:53): Report 157: treaties tabled on 13 October 2015 draws me to the earlier reports of the Joint Standing Committee on Treaties and in particular of the Foreign Affairs, Defence and Trade References Committee. I reference that in this context, with the tabling of the treaties report.

Report 157 shows a process which both treaties have gone through. However, the last revision to treaties that took place was some 20-odd years ago, in 1996, when a treaty report named Trick or treaty? was produced. I would have much preferred, being a member of the treaties committee, that any revision of the treaties role be conducted by the treaties committee itself. However, that was not to be the case. What has occurred since Trick or treaty?, which was produced in 1996, is a Foreign Affairs, Defence and Trade References Committee report entitled Blind agreement: reforming Australia's treaty-making process. That report went on to provide, I think, some insightful recommendations for reform of the treaty-making process.

The committee heard consistent evidence that the current process falls significantly short on a number of counts. First and foremost, all treaties, including complex free trade agreements, are only presented to the parliament and subject to scrutiny after they are signed by the government. The parliament—the treaties committee—is then faced with an all-or-nothing choice when considering legislation to bring an agreement into force and prevented from pursuing a key scrutiny and accountability responsibility.

I think the time has moved on since the significant reforms of 1996 with Trick or treaty?, and it is now time to reconsider the role of the treaties committee. I am going to advocate that from here, based on the Foreign Affairs, Defence and Trade References Committee report. As I said earlier, I think it is disappointing that the treaties committee itself has not taken the recommendations and pursued them, but be that as it may. What has occurred and what currently occurs is that JSCOT inquiries begin after agreements are signed. This does not provide an adequate level of oversight and scrutiny. Parliament should play a constructive role during the negotiation rather than simply as a rubber stamp at the conclusion of that process. It seems counterintuitive to think that, after signature, complex trade agreements are then reviewed and national interest analyses produced, and then the government implements the treaty.

To be clear: I am not advocating that parliament should sign off treaties. The executive plays that role. What I am advocating is that there be an opportunity for significant reform to the process to ensure greater transparency and to engage more with stakeholders in respect of the treaty-making process. You can take some of those recommendations. Specifically, the report's key recommendations are not that the JSCOT engage more in the oversight of trade agreements under negotiation and not wait until the end of the process. They are about parliamentarians and stakeholders being given access to treaty text on a confidential basis during negotiations and not as a token offer at the end, as was the case with the Trans-Pacific Partnership trade agreement. These practical measures, which are in the report, would significantly improve stakeholder engagement during treaty negotiations and entrench democratic accountability through effective parliamentary scrutiny using existing committee processes. I think the treaty-making process in Australia would be much better served by that outcome.

The report's recommendations are consistent with the bipartisan approach of successive Australian governments to trade liberalisation, including the pursuit of free trade agreements. Of those recommendations that I want to take the opportunity this afternoon to take the Senate to, I would advocate all of them together but with some specificity. In recommendation 2:

The committee recommends that the Joint Standing Committee on Treaties adopt a process of ongoing oversight of trade agreements under negotiation.

In short, the treaties committee can start much earlier in the process of undertaking scrutiny rather than at the end. In that way, there could be things like private briefings from the Minister for Trade and Investment and the Department of Foreign Affairs and Trade under conditions of confidentiality at key points during negotiation. It would also enliven consultation with stakeholders with confidential access to negotiating text. It would also involve writing to the minister and inviting the minister to respond to concerns that may be raised during that process. A summary of ongoing oversight is also helpful to the process. This is not about unpicking an agreement; it is about making sure that it is in Australia's national interest.

Recommendation 3 of that report is:

The committee recommends that the Parliamentary Joint Committee on Human Rights consider the human rights implications …

We have come a long way since 1996 and we have a human rights committee in parliament now, and it should also play a role in the treaty-making process. Recommendation 4 is:

The committee recommends that on entering treaty negotiations, Australia seeks agreement from the negotiating partner(s) for the final draft text of the agreement to be tabled in parliament

Recommendation 5 is:

The committee recommends that, subject to the agreement of negotiating countries, the Department of Foreign Affairs and Trade publish additional supporting information on treaties under negotiation, such as plain English explanatory documents and draft treaty text.

All of these are about ensuring that during and through that process of treaty making there are opportunities for the engagement of stakeholders.

I did not want to take the Senate to all of the recommendations. I would encourage the Senate and the Department of Foreign Affairs and Trade—and the treaties committee, quite frankly—to have a look at all of the recommendations, but you can get the sense of them from recommendation 8:

The committee recommends that a cost-benefit analysis of trade agreements be undertaken by an independent body, such as the Productivity Commission, and tabled in parliament prior to the commencement of negotiations or as soon as is practicable afterwards.

This is all about ensuring transparency and ensuring that it is in our national interests and that parliamentarians and stakeholders have an ability to look at the treaty on a cost-benefit analysis to assure themselves that it is in Australia's national interests for the executive government to sign such treaties. Recommendation 8 goes on:

The committee further recommends that:

treaties negotiated over many years be the subject of a supplementary cost-benefit analysis towards the end of negotiations …

As we should have an opportunity of looking at the cost-benefit analysis of treaties we may sign, we ought to take stock of what we have signed to ensure that it continues to be relevant and in Australia's best interests. Recommendation 10 goes to what I have been referring to as national interest analysis:

The committee recommends that National Interest Analyses … be prepared by an independent body such as the Productivity Commission …

I think we have moved significantly over the 20 years to a place now where we can look a lot harder at the outcomes of the treaties committee. We can update its role and responsibilities within parliament, and these recommendations go to doing just that. It is about updating the treaties committee's role and ensuring they have an opportunity to participate in the process in a much more hands-on role than what they have been doing to date. The treaties committee has been a very good committee over the last 20 years, but it is time for improvement.

Question agreed to.