The 'democratic deficit' in Australian law-making

All negotiating members of ACTA were bound by a confidentiality agreement that precluded disclosure of the text. DFAT has insisted that it sought consultations and advice from many stakeholders and all government agencies which were involved. However public consultations held until April 2010 were conducted without any public access to the draft text or negotiating documents. Instead stakeholders were forced to rely on DFAT's 'discussion paper' of the broad goals of ACTA. As JSCOT's report concluded, this restraint prevented any meaningful discussion about the issues that ACTA could pose.

The lack of transparency during ACTA's negotiation process was compounded by the current 'democratic deficit' in Australian treaty-making. Under our Constitution, the power to enter into all treaties remains exclusively with the executive. It is only after treaties are negotiated and signed, that the text is tabled in Parliament for 15 days prior to binding action being taken. JSCOT is empowered to report on the text – but cannot effect a change of the text of the agreement, or prevent the executive from binding Australia to the agreement.

Although the executive can bind Australia as a matter of international law, for such treaties to have domestic effect they must be implemented through domestic legislation. However once an obligation is assumed internationally, parliament is often pressured into implementing these obligations. For example, an attempt by parliament to deviate from the text of AUSFTA in one area led to accusations by the executive that this would damage Australia's relations with the US and its economic future.

Today international law, which regulates intellectual property, education, science, and transportation, is comparable to domestic law in its national importance. However by entering into international 'trade agreements' on these topics the executive bypasses the democratic processes of Parliament but still effects change to our laws. In contrast, where the executive is given statutory authority to make domestic regulations, each House of Parliament has the power to disallow these regulations for a set number of days after its introduction. A comparable power should be given to Parliament to disallow international agreements made by the executive. Alternatively, parliamentary committees such as JSCOT should at least have the power to inquire into the agreement and report to Parliament before the agreement is signed.

The cost of such reforms could be to slow down the process of treaty-making and limit the power of the executive to act decisively in the national interest. However, parliamentary agreement to treaties such as these would not be a time-consuming process, as they would not require detailed scrutiny on each separate occasion. It would primarily be treaties of major social, political or economic importance that would occupy parliamentary time, and, it is precisely these kinds of commitments that should be considered by parliament.

In any event, these are costs that arise equally in other forms of parliamentary law-making, where it is accepted that the power of the executive to make important national decisions should be the subject of parliamentary oversight.

Conclusion

The public outcry over ACTA and its lack of transparency should not be lightly dismissed – there is something profoundly unsatisfactory about an executive arm of government secretly negotiating treaties that will directly impact domestic law, without parliamentary oversight or meaningful public involvement.

Given the public outcry, JSCOT's findings and the lack of economic evidence to support such agreements, it may appear obvious that Australia should refrain from entering such agreements. However, Australia is currently again in confidential negotiations over the proposed Trans-Pacific Partnership. A leaked US draft proposal for the IP chapter of this agreement has demonstrated that the US is seeking to 'export' whole sections of its detailed domestic laws.

Our treaty-making processes must be reformed if this agreement to fare any better than ACTA.