Some 20 years ago, a newly elected Australian Government announced in May 1996 its intention to introduce reforms to existing Australian treaty-making processes in order, it was claimed, to overcome a perceived ‘democratic deficit’ in treaty-making. Those reforms sought to ensure enhanced accountability for, and increased transparency about, all future treaties to which Australia intended becoming a party: the reforms included inter alia the introduction of comprehensive parliamentary (and related civil society) scrutiny of treaties prior to each treaty being ratified or acceded to. This was achieved by establishing a Parliamentary Joint Stand Committee on Treaties (JSCOT) tasked with publicly examining ‘National Interest Analyses’ of all treaties and recommending whether to do so was in Australia’s national interest. A further pillar of the suite of reforms introduced in 1996 was the establishment of online treaties service giving online access (via AustLII) to all new treaties and related materials, in order to make them immediately available to all members of civil society interested in examining them. This last pillar has proved crucially important to enhancing the transparency of Australia’s treaty making and is an ongoing process.
This article will place these developments in historical and theoretical context. It will trace the long intellectual debate, fought over more than two centuries, dating back to Sir William Blackstone’s ‘Commentaries on the Laws of England’ (1765-1769), concerning whether that most quintessentially sovereign act – the making of a treaty with another sovereign state – could or should ever be allowed to be subject to the ‘democratising’ influences of civil society. It will be argued that not only is that theoretically possible, but that the 1996 reforms to the Australian treaty making process in fact went a long way towards applying ‘deliberative democracy’ principles to how Australia goes about making treaties. In so doing these reforms brought Australian practices at least to the international norm, and in some respects well ahead of what like-minded Westminster-style democracies have achieved.
Executive Director, Treaties Secretariat, Department of Foreign Affairs and Trade, Australia
© 2012 Journal of Law, Information & Science and Faculty of Law, University of Tasmania.