Blind agreement: reforming Australia's treaty-making process

This report argues that that Australia\u27s current process for treaty-making falls short on a number of counts, and recommends changes. Foreword As this report on Australia\u27s treaty-making process was being finalised the China- Australia Free Trade Agreement—a major trade deal some ten years in the making and negotiated in secret—was signed, tabled in the Australian Parliament and referred to the Joint Standing Committee on Treaties (JSCOT) for inquiry and report within 20 joint-sitting days, consistent with the process that has been in place for two decades. The Trans-Pacific Partnership (TPP) is also entering its final stages of negotiation with parliamentarians told recently they can access the draft text, but only after signing confidentiality agreements. The committee\u27s inquiry has been timely if for no other reason that it throws into sharp relief compelling evidence from industry bodies, the union movement, academic experts and other stakeholders that the treaty-making process is in need of reform. During the committee\u27s hearing the Department of Foreign Affairs and Trade (DFAT), which is responsible for negotiating, consulting and finalising free trade agreements, was a lone voice in supporting the status quo. This immediately raised a suspicion that not is all right with the current process. The committee heard consistent evidence that the current process falls 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. That parliament is faced with an all-or-nothing choice when considering legislation to bring an agreement into force prevents it from pursuing a key scrutiny and accountability responsibility. It is no longer satisfactory for parliamentarians and other stakeholders to be kept in the dark during negotiations when Australia\u27s trading partners, including their industry stakeholders, have access under long-established and sensible arrangements. Second, it is pointless for JSCOT inquiries to begin after agreements are signed. This does not provide an adequate level of oversight and scrutiny. Parliament should play a constructive role during negotiations and not merely rubber-stamp agreements that have been negotiated behind closed doors. Third, the department\u27s process of consultation is not working. Meetings and briefings with stakeholders are plentiful, but they are not as effective as they could be and fall short of expectations, adding to stakeholders\u27 frustration. Finally, there is an insufficient amount of publicly available information about agreements under negotiation and independently sourced economic analyses of their likely benefits are not mandatory. This fuels media speculation on the content of draft treaty text when certainty based on fact is required. It seems only the government holds the view that the current National Interest Analysis adds value to the process. It is counter-intuitive for complex trade agreements which are years in the making to be negotiated in secret, subject to stakeholder and parliamentary scrutiny for a few short months with no realistic capacity for text to be changed, and then for implementing legislation to be rushed through parliament unamended. This comes very close to making a mockery of the process and of parliament\u27s involvement. In addressing these problems, this report steers a middle course between doing nothing, which is the entrenched position of the Coalition Government, and recommending that treaties be subject to parliamentary approval, which is unlikely to garner political support any time soon. The Opposition favours incremental change building on the package of sensible reforms introduced by government in 1996. This is why the report makes practical recommendations aimed at improving the level of transparency in negotiating treaties and the quality of consultations between DFAT and stakeholders, and making parliament a real player in treaty-making