Dead on arrival?

My understanding of the legal status of treaties is imperfect, to put it mildly. I know that, unlike the US, there is no requirement for Parliamentary ratification of treaties. And I recall from the Franklin Dam case, that the Commonwealth Parliament can pass legislation to implement a treaty in a field that would otherwise be outside its jurisdiction, such as environmental protection.

But I don’t know what happens in the case of a treaty like the just-signed FTA, which apparently requires changes to Australian law in a large number of areas – certainly copyright and probably the PBS. I assume the entire treaty must be put to Parliament as a package and ratified without amendment, otherwise the US side can just walk away.

But if this is the case, I would judge that the treaty is already dead. It’s hard to see how Labor can consent to any watering down of the PBS, in full knowledge of the fact that Big Pharma is out to kill the scheme altogether. If no amendment is possible, they’ll have to vote against the treaty outright.

The politics of this seem entirely straightforward for Labor. Hardly anyone in Labors constituency has anything obvious to gain from the deal (in fact, the immediate benefits for anyone in Australia are trivial and the indirect benefits entirely speculative) Latham has already alienated anyone who objects to standing up to the Americans. OTOH, the majority of the Labor base who objected to the Iraq war can see that Howard hasn’t even managed to secure fair treatment in return for our loyal support of the US, let alone any favours.

Conversely, the politics seem diabolical for Howard. If legislation has to be pushed through Parliament that means De-Anne Kelly, Ron Boswell and the rest of the North Queensland Nationals will be opened up to ferocious attack from Bob Katter if they vote in favor. Labor can just sit back and watch, throwing in quotes from Howard and Anderson to the effect that they would “never ever” abandon the canegrowers (and, for that matter, the beef industry). And once the deal is rejected, everyone except the canegrowers and cattlemen will forget about it.

But of course, all of the above is premised on my shaky understanding of the procedural rules – would anyone care to set me straight.

Update Ken Parish answers my questions on the process and argues that the procedures for examining the treaty mean that nothing will come before Parliament until after the next election. It seems to me that this makes things even better for Labor. Rather than rejecting the treaty outright, they can say that, when elected, they will demand a renegotiation of the treaty (the fact that the US will also have an election complicates the issue, but mostly in a way favorable to this claim – for example, a statement by Bush that the terms of the agreement are ironclad can’t bind his successor).

6 thoughts on “Dead on arrival?

  1. Labor is talking about not letting it go through the Parliament if they don’t like the detail. Presumably they are talking about the supporting legislation rather than the FTA itself.

    One complicating factor for Latham is that all the Labor premiers have supported the FTA. Latham doesn’t want to go to war with them. Amongst them, only Beattie has a good reason to change his mind.

    Latham has to be careful not to be seen to be too rejectionist. He must position his opposition as: “more in sadness than in anger”, “an opportunity lost”, “you just get taken for granted get when you act as a reflexive arselicking deputy sherriff” etc

  2. John, the short answer is that the FTA does not need to be ratified by parliament. It will, however, go to the Joint Standing Committee on Treaties where the government has the numbers. The JSCOT makes a recommendation to Cabinet, who can then approve the FTA.

    One would think they would pause at this stage before final approval, as there may (almost certainly would be) a need to change certain legislation, eg quarantine, intellectual property etc. Otherwise they may be caught in a High Court challenge. Also the FTA binds subsidiary governments (state and local). Things could get interesting in a trade dispute if the there is no legislative backing.

    I think the Dems, Greens and Labor would leap upon it at this stage and send it into a Senate committee. But I think you are right, there would be no opportunity to change or renegotiate, as there is no flexibility at the US end as I understand it.

    The Trade Promotion Authority (TPA) that the President has allows him to negotiate a complete treaty which can then be accepted or rejected in toto by Congress. This was necessary to prevent the process from becoming shambolic with special interest groups at that end. But one can assume that all the lobbying/negotiating at that end has been done.

    That’s as I understand the situation from reading, listening and an email last year from Pat Ranald, a lawyer and convenor of AFTINET (fair trade network) on the procedures at this end.

    I’m too tired to think about the FTA as such, but your take seems to me pretty spot on.

  3. Yep, that’s how I understand it. There’s lots of protocols around the joint, but treaties are basically an executive deal, unless laws have to be changed.

  4. The FTA and the Senate – a dead treaty?
    John Quiggin blogs some further thoughts on the Australia/US FTA, observing: My understanding of the legal status of treaties is imperfect, to put it mildly. I know that, unlike the US, there is no requirement for Parliamentary ratification of treaties…

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