colonies were not considered under international law to have the capacity to enter into treaties. By the end of the nineteenth century, the colonies could agree to, or decline to adhere to certain treaties entered into by the United Kingdom. The colonies had entered into some ‘technical’ treaties, such as those relating to postal and telegraphic services, but these were considered under international law to be agreements between postal administrations, and were not recognised as having international status. Federation in 1901 did not change the status of Australia as a British colony, and the new Commonwealth Government had no power to enter into treaties in its own right. The emergence of Australia as an independent State was a gradual process, and Australia obtained the power to enter into treaties during the period 1919 to 1931. Who decides? Formally under the Commonwealth Constitution, treaty-making power is exercised by the Governor- General, acting on the advice of the Federal Executive Council. The Federal Executive Council is made up of the Prime Minister, other Ministers and Parliamentary Secretaries, appointed by the Governor-General on the advice of the Prime Minister. 34 31. Chow Hung Ching v The King (1948) 77 CLR 449 at 477 per Dixon J; Nulyarimma v Thompson (1999) 96 FCR 153, particularly the dissenting judgment in favour of the incorporation theory by Justice Merkel; see also ‘A Stronger Role for International Customary International Law in Domestic Law?’, K Walker & A Mitchell in The Fluid State: International Law and National Legal Systems , H Charlesworth, M Chiam, D Hovell & G Williams (eds), 2005, Federation Press, p 110 at 125–126; ‘International Law as a Source of Domestic Law’ Sir Anthony Mason, in International Law and Australian Federalism , B Opeskin and D Rothwell (eds), 1997, Melbourne University Press 210, 212; ‘Treaties and the Internationalisation of Australian Law’, K Walker, in Courts of Final Jurisdiction: The Mason Court in Australia , C Saunders (ed.), 1996, Federation Press, p 204. 32. Polites v Commonwealth (1945) 70 CLR 60. 33. More detail is available in the Federal Executive Council Handbook: International law in Australia 23
In practice, the decision is usually taken by Cabinet, or by relevant Ministers, including the Minister for Foreign Affairs and the Attorney-General. Parliament has no formal role in the decision to enter into a treaty or the treaty-making process. However, Parliamentary approval is required for the appropriation of funds, or the passage of legislation to implement treaty obligations in domestic law. In Australia, formal ratifcation is performed by the Governor-General in Council , on the advice of the Minister for Foreign Affairs. In practice, the Commonwealth Constitution operates using unwritten rules known as ‘constitutional conventions’.
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