The reforms to Australia’s treaty-ratification process announced by the Minister for Foreign Affairs, Alexander Downer, last week, have a parallel in reform to the process of appointment of High Court judges announced by the Fraser Government. In the early 1970s the states got upset that the Federal Government appointed High Court judges and Malcolm Fraser promised to change the system. In the mid-1980s after the Tasmanian Dams case, the states got upset that the Commonwealth was signing international treaties and enacting them into domestic law. The coalition parties promised to do something about it.
The solutions are very similar. Lots of consultation, but no effective change in the power structure. Mr Fraser’s government enacted a law that said the Commonwealth must consult the states before making a High Court appointment. Mr Downer announced that in future the Commonwealth must table treaties in Parliament 15 sitting days before ratification. The effect is the same. The Commonwealth Government’s power remains as it always has been; the power of the states and the Parliament is not changed. There is no power, for example, for a majority of states or either House of Parliament to block an appointment to the High Court or the ratification of a treaty. They get consulted and can be ignored.
Three is nothing wrong with the Commonwealth Government retaining the power it had since federation. It is just that the pretence of changing things when there is no real change is so much humbug and hypocrisy.