Page 2667 - Week 12 - Thursday, 16 November 1989
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Government's approach to the ratification of conventions is to seek to ensure that all of Australia's domestic law and practice is in compliance with the proposed convention before ratifying. Also, as a matter of policy, the Commonwealth invariably does not ratify an international instrument which deals with matters that are primarily a State concern, unless there is agreement from State and territory governments.
The draft convention deals with matters like child welfare laws, juvenile justice, and education, which are the responsibility of the States and territories. Accordingly, the Commonwealth Attorney-General has sought the views of the ACT Government on this matter, along with the views of all other Australian States and territories. The matter has also been placed on the agenda of the Standing Committee of Attorneys-General, which is a body that meets regularly to discuss matters of mutual interest.
The third part of Mr Stevenson's motion is really quite misleading. It asserts that the ratification or non-ratification of this United Nations convention in some way takes the place of laws that are made through the ACT Assembly. I believe most members will understand that in Australia it is a fact that, under our democratic system, there is only one way for a matter to become law and that is for that matter to be passed in an Australian parliament. That is a democratic system. That is the whole basis for the establishment of this ACT Assembly, but perhaps it is a matter that Mr Stevenson does not understand well, as he stood for the abolition of this democratically elected body. It is a fact that we make our own laws and nobody can do that for us. In fact, under the constitution, it is the Commonwealth's responsibility to enter into international agreements, including the ratification of UN conventions. Such agreements affect all Australians, not just the citizens of the ACT.
The Commonwealth ratifies a convention by an instrument of ratification - that is, by executive action - but the significance of that ratification is that Australia has signalled to the international community its intention to be bound by the terms of the convention. So it creates an internationally binding agreement, but a ratified convention has no legal force within Australia per se. It is not a law within Australia. It is a signal to the international community of our intentions. So the third part of Mr Stevenson's motion is quite misleading in that the ratification of this convention is not a law. It cannot subvert the law-making of this Assembly. That is ours alone.
It is further a fact that, if the Commonwealth should choose to do so, it may give legislative force to a convention via its external affairs powers, and where it does so the legislation applies in all States and territories. But there has been no suggestion that the Commonwealth intends to legislate with respect to the
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