Opinion No. 1747
PROCEDURE FOR SECURING PARLIAMENTARY ENDORSEMENT OF THE CHARTER OF THE UNITED NATIONS: CONCLUSION AND RATIFICATION OF TREATIES: CROWN’S PREROGATIVE IN RELATION TO EXTERNAL AFFAIRS: FUNCTION OF PARLIAMENT: INTERIM ARRANGEMENTS: QUESTION OF PARLIAMENTARY APPROVAL OF AGREEMENT ESTABLISHING PREPARATORY COMMISSION OF UNITED NATIONS
CHARTER OF THE UNITED NATIONS AND STATUTE OF THE INTERNATIONAL COURT OF JUSTICE  ATS 1 Chapters XI, XII, arts 43, 45, 55, 56, 73: TREATY OF PEACE (GERMANY) ACT 1919: THE TREATY OF PEACE BETWEEN THE ALLIED AND ASSOCIATED POWERS AND GERMANY done at Versailles on 28 June 1919  ATS 1 Parts I, X: UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION ACT 1944 s 4: UNITED NATIONS FOOD AND AGRICULTURE ORGANIZATION ACT 1944 s 4: TREATIES OF PEACE (AUSTRIA AND BULGARIA) ACT 1920 s 3
06 August 1945
- The obligations to be undertaken by Australia under the Charter of the United Nations are substantial and of a continuing character. The desirability is therefore assumed of obtaining some formal expression of approval of the Charter by both Houses of Parliament.
- The possible procedures seem to be:
- an implied approval, implicit in the ordinary motion for printing the Delegation’s Report;
- an express approval, by resolution ad hoc;
- express approval by Act of Parliament.
- On the whole, and despite certain objections, method (iii) seems preferable–i.e. approval by Act of Parliament.
- Under the common law of the prerogative, both the conclusion and the ratification of treaties are executive acts. The traditional practice in British countries has been to resort to an Act of Parliament for only those purposes which required some change in the law. If the acceptance of treaty obligations can be accomplished without legislation, the traditional practice has been not to have legislation.
- Under this traditional practice, the Executive may of course keep Parliament more or less ignorant of even the gravest commitments. But it may equally keep Parliament fully informed not only of commitments already entered into but also of the progress of negotiations and even of policies to be put forward. The manner in which, and the extent to which, the Executive secures Parliamentary endorsement has varied from instance to instance, according to circumstances. Even where no legislation is required, the Executive must still, under the Cabinet system, have regard to the known or probable opinion of Parliament. The ordinary Parliamentary processes afford abundant opportunities for expressing or canvassing opinion–e.g. through questions, motions for adjournment, discussions on Ministerial statements or on the Estimates, and so forth.
- The justification for the traditional practice in British countries is broadly twofold:
- By resorting to an Act only where it is legally required, the Executive can largely exclude from the sphere of foreign affairs the special problems that may arise from a Second Chamber which may frequently be opposed to the Government of the day.
- The successful handling of treaty relations requires an Executive with a wide area of discretion as to the commitments it will enter into. Neither before nor after a treaty is entered into can the Houses exercise any control in detail over its terms. Parliament’s control over the Executive in the sphere of external affairs can best be exercised in those forms which fetter least the relations of the Government with other Governments.
- On the other hand the widening range of modern treaty relations, the large number of modern treaties that affect the domestic policy of States and the ordinary lives of citizens, and the increasing interest taken by Parliament and the electorate in foreign affairs have combined in recent years to make Governments more anxious than the traditional practice would indicate to obtain Parliamentary endorsement, in one form or another, of any major commitments in external affairs.
- The Treaty of Peace Act (Germany) 1919 illustrates this tendency, but goes little beyond the traditional practice. It consists, in effect, only of:
- a preamble reciting that the Treaty of Versailles had been signed on behalf of Australia, that a copy had been laid before each House, and that it was expedient that the Governor-General should have power to carry it into effect;
- a substantive grant to the Governor-General of power to make regulations and do such other things as appeared to him necessary to carry Part X of the Treaty into effect;
- a section applying the Act to the Territories of the Commonwealth, including of course the new Mandated Territories.
- The Acts passed in 1920 relating to the treaties of peace with Austria, Bulgaria and Hungary are identical in general scope, except that they purport to confer on the Governor-General powers to carry into effect the treaty as a whole, and not the economic clauses only. Since the League Covenant formed part of these treaties also, the powers thus given extended to the Covenant.
- In the case of the Washington Disarmament Treaty of 1922, the legislation followed strictly the traditional practice. The Act was confined to setting up the necessary legal machinery to control naval shipbuilding.
- The United Nations Relief and Rehabilitation Administration Act 1944 established a precedent for direct Parliamentary approval, given by Act, of an agreement entered into by the Executive. The substance of this Act:
- recited that the agreement had been signed, that it was desirable that it should be approved, and that it was desirable to make appropriate financial provision to meet Australia’s obligations under the agreement;
- contained a definition of the agreement;
- approved the agreement;
- appropriated up to £12m to meet Australia’s obligations under the agreement.
- Legislative action was no doubt required to appropriate moneys for the purposes of Australia’s contributions to U.N.R.R.A. This, however, could equally have been accomplished by a supplementary Appropriation Act. The real substance of the Act, as passed, was the express Parliamentary approval of the agreement contained in section 4.
- The United Nations Food and Agriculture Organization Act 1944 marked a further departure from the traditional practice, in two respects:
- it approved, not merely the Constitution of the proposed new Organization, but its acceptance by Australia (i.e., by the Executive): see section 4(1);
- by section 4(2) it forbade the Executive to accept, save with the approval of the Parliament, any amendment of the Constitution of the proposed new Organization which involves any new obligation for Australia.
- 14. The Charter of the United Nations does not, of itself, require any alteration of the law in Australia in order to have effect according to its tenor. Being in no sense a Peace Treaty, it confers no rights on individuals, transfers no property, imposes no duties on any Australian citizen. As in the case of the Food and Agriculture Organization, no financial contributions are yet payable, as the Charter is not yet in force. At present, therefore, an Act of Parliament is not legally required.
- The Charter nevertheless imposes on members of the Organization certain obligations which will or may, in the future, involve substantive legislative action in many fields of national policy. Among these obligations are the following:
- to make a military agreement with the Security Council for the provision, on its call, of forces and equipment and facilities, to be specified in the agreement, and to hold certain air force contingents, likewise to be specified in the agreement, immediately available for international enforcement action (Articles 43 and 45);
- to take joint and separate national action, in co-operation with the Organisation, for achieving the social and economic purposes of the Organization–in particular, the promotion of full employment; the solution of international economic, social, health and related problems; and respect for and observance of basic human rights (Articles 55 and 56);
- To promote to the utmost the well-being of the inhabitants of Australia’s dependent territories (Article 73).
- The importance of the Charter in general, and of the considerations referred to in paragraph 15 in particular, makes it clearly desirable to obtain some formal Parliamentary endorsement of Australia’s membership of the United Nations. In the absence of anything that requires present legislative action, one of the procedures that does not involve an Act would perhaps have been preferable, as most effectively maintaining the Crown’s prerogative in external affairs while fully associating the Houses with the acceptance of the Charter. Having regard, however, to the action taken so recently in connexion with U.N.R.R.A. and with the Food and Agriculture Organization, the adoption of any other course than an Act of Parliament would be hard to justify. A Bill should therefore be prepared.
- There does not appear to be anything in the Charter to which could usefully be attached a provision like section 3 of the Treaties of Peace (Austria and Bulgaria) Act 1920, conferring on the Governor-General power to make regulations and do such other things as appear to him to be necessary to carry out and give effect to the Treaties. If the proposed Act is to have any legal substance apart from the provision approving the Charter, it will have to be found in an appropriation section, along the lines of the United Nations Food and Agriculture Organization Act 1944.
- The further question should be considered, whether the Bill should, like the Food and Agriculture Organization Act, contain a section prohibiting the acceptance on behalf of Australia, save with Parliament’s approval, of any amendment of the Charter involving any new obligation for Australia. It is submitted that such a provision would be undesirable. It would, for instance, place the Senate in a position of influence over Australian policy in external affairs which neither the law nor the practice of the Constitution requires or justifies. If generally adopted, such a provision would virtually abrogate the prerogative in external affairs. The position expounded by the Attorney-General in the House of Representatives on 10th February, 1944 (with regard to the Australian-New Zealand Agreement) is not only constitutionally defensible but constitutionally satisfactory, and should be maintained. See Commonwealth Hansard, volume 177, pp. 71–72.
- The Opposition may press for the inclusion of a clause along the lines of section 4(2) of the United Nations Food and Agriculture Organization Act 1944. But that Act can properly be treated as an exception, growing out of the special character of the Organization concerned. The sphere of action of the Organization–nutrition, food production, marketing and the like–is eminently one for parliamentary legislation. Any substantial obligations likely to be imposed on Australia as a result of amendments of the constitution of such an Organization would require parliamentary legislation to carry them out. To require parliamentary approval in advance, therefore, may be thought to be only a matter of form. Nothing of the kind is true of the Charter of the United Nations. The crux of the Charter is to be found in the arrangements for the pacific settlement of disputes and for action with respect to threats to peace or breaches of peace. Action in accordance with these Chapters of the Charter is pre-eminently within the sphere of the Executive. Amendments of the Charter should therefore be left to be dealt with from time to time, as occasion may require.
- The question also arises whether the Bill should make provision for parliamentary approval of the Agreement, signed at San Francisco on 26th June, 1945, establishing a Preparatory Commission of the United Nations in order to make the interim arrangements necessary for bringing the new Organisation into operation. This Agreement was expressed to be effective as from 26th June, 1945, and does not require ratification.
- It is submitted that the Bill should make no specific reference to these interim arrangements. No legislative action is required to carry them into effect. No financial contributions are required, because the Government of the United Kingdom has undertaken to bear the expenses of the Preparatory Commission, deducting them from its first contribution to the Organisation. The interim arrangements are purely subsidiary and incidental to the Charter itself. The principle should be that approval of the Charter is being sought by Act of Parliament, as an exceptional measure, because of the importance of the general obligations that the Charter imposes. The Agreement regarding the interim arrangements both can and should be dealt with in conformity with general constitutional practice.(1)
It may be noted that this Act did not purport to ‘approve’ the Treaty, or any part of it. Moreover, the Act conferred on the Governor-General no legislative or executive power except in relation to Part X of the Treaty. The Act therefore does not deal in any way whatever with the League Covenant, which formed Part I of the Treaty.
Under the common law of the prerogative, the Executive could of course have accepted any such amendment on behalf of Australia, subject only, as a political matter, to its own estimate of the reaction of the House of Representatives. The Act however, so far as it goes, curtails the prerogative and requires a prior Act of Parliament before any Government takes the action specified.
In addition, the Charter involves the establishment of an International Trusteeship System (Chapters XII. and XIII.), and the possible making of an agreement bringing all of Australia’s dependent territories (and not only the Mandated Territory of New Guinea) under the provisions of this system.
[Vol. 36, p. 610]
(1) See Charter of the United Nations Act 1945.