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'Twice in a lifetime deals' - the FTA and the impact on Australia's parliament

By Daniel Flitton - posted Thursday, 12 August 2004

In late 1995, just before the last political light faded out of Paul Keating's Labor Government, Australia signed what was then declared to be the most significant foreign treaty for half a century.

The joint-security agreement with Indonesia would define Australia's regional relations for decades to come, trumpeted the accompanying, typically hyperbolic, proclamation. Finalising the compact came as a special tribute to the close personal relationship between the leaders of the two countries. Yet, as it turned out, Indonesia abandoned the treaty a mere four years later in an empty, punitive gesture after Australia led the 1999 United Nations operation into East Timor.

Today, as another election looms, the Australian Government has again chased down a "once-in-a-lifetime" opportunity in foreign affairs, this time an economic treaty with the United States. Once more, the presentation is replete with grandiosity and exaggeration about its benefits. The free trade deal will undoubtedly link Australia with the world's pre-eminent economy. But just how it might "stop good men from doing nothing and allowing evil to prevail", as Trade Minister Mark Vaile put it at the elaborate signing ceremony in Washington, remains less clear.


There is little useful comparison in the experience of the two treaties. John Howard boasts about his special relationship with President George Bush in a tone reminiscent of Keating on Indonesia's Suharto. And like Keating did, Howard portrays this agreement as his enduring legacy for the nation.

The similarity probably ends there. In the treaty with Jakarta, a few short passages outlined a broad and vague framework, promising security cooperation and little else. The treaty with Washington, all 1100 pages of it, promises exponential growth in at least one industry: the lawyers who deal in definitions and interpretation.

What does make an interesting contrast is the political reaction within Australia to both treaties. In 1995, Keating surprised the nation - the parliament, media commentators and the public all - with his late December announcement of the new alliance with Indonesia. "If there had been a more public process, there probably wouldn't have been a treaty," he chided those who favoured a more open discussion of the agreement's merits.

Keating's target included then Opposition Foreign Affairs spokesman, Alexander Downer. These secret negotiations, Downer said at the time, were "yet another instance of Parliament not being involved at all, the public not being informed". While the Coalition supported the treaty, Downer's colleagues were likewise muttering that in an open democracy, Australia's participation in international treaties should be subject to a public debate.

Tim Fischer, who went on to become Trade Minister and Deputy Prime Minister, wanted the treaty to lie in Parliament for a month, lest people get "suspicious" about "secret deliberations between the Australian Government and governments in Asia".

Such criticisms reflected a long-standing disappointment in the treaty-making process. Under the Australian Constitution, the Parliament has few powers when it comes to foreign-policy-making. Compared to the US Senate, which must ratify all foreign treaties, the Australian process is whimsical. The executive branch of government holds jealous control over the direction of Australia in the world.


Seeking to redress this democratic deficit, John Howard promised to establish parliamentary review of any new international commitments. Once in office, he created the Joint Standing Committee on Treaties (JSCOT). The new procedure appeared undemanding - a mandatory 15-day tabling of any treaty in Parliament, along with a "national interest" analysis in support. But it placated critics of executive secrecy.

When championing parliamentary oversight, Howard probably had in mind limitations on the use of foreign treaties to override laws in the States. The High Court had interpreted Australia's peremptory international obligations as the basis for rulings in significant judgements, including the Tasmanian dams case.

Howard could not have anticipated that this in-principle argument in favour of greater parliamentary scrutiny would rebound on what he now sees as his legacy.

Which is why his latest position over the past few weeks, insisting that Mark Latham and the Labor Party "for the sake of Australia's future" immediately sign-up to the US free trade treaty, was disingenuous. As Howard implied back in 1995, Parliament should have a role in Australia's international affairs, to ensure a wide range of voices contribute to building effective foreign policy. More importantly, this review process allows the general public to contribute to what is too often seen as a remote and elite policy domain. An open analysis will inevitably take time. Given the slow lead-in for the FTA, this wait hardly seems detrimental.

Parliamentary review is worthless if it amounts to a rubber stamp for the executive. In a study published last year in the Canadian Journal of Political Science, Ann Capling and Kim Nossal conclude that the JSCOT parliamentary oversight Howard established only amounts to "window-dressing", a tool for the Government to channel protest and deflect opposition. The Government retains strict control of the numbers and the ultimate recommendation.

This perception is why the Senate charged a parallel committee to look into Australia's latest and greatest international treaty. And this is why Howard should not have harassed that process in a transparent attempt to stifle debate on Australia's international affairs. Instead, the Parliament has once again been marginalised.

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Article edited by John Neil.
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This article was previously published in The Canberra Times on 4 August, 2004.

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About the Author

Daniel Flitton is a Visiting Research Associate at the Lowy Institute for International Policy and works at the Australian National University, Canberra.

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