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Part 5 · Making and implementing treaties

Making a treaty is an executive act. Making it part of Australian law is a separate, legislative one. Every mark in this module sits on that line: keep the international and domestic planes apart, then test the implementing statute against the treaty it claims to implement.

Ideas and cases at a glance

Authority	In a line
Constitution s 61	Negotiation, signature and ratification are executive acts, with no constitutional requirement of parliamentary approval
Dualism	Ratification binds Australia internationally but changes no domestic rights or duties without legislation
Constitution s 51(xxix); Tasmanian Dam; Industrial Relations Act Case	An implementing law is valid only so far as it is reasonably capable of being considered appropriate and adapted to the treaty
The 1996 reforms: tabling, National Interest Analysis, JSCOT	Treaties tabled at least 15 sitting days before binding action and scrutinised by an advisory committee that cannot veto
Teoh; Lam	Ratification once grounded a legitimate expectation of treaty-consistent decision-making, a doctrine since doubted and effectively moribund
Statewide Treaty Act 2025 (Vic); Wood	The first formal treaty between an Australian government and First Peoples, carried by an ordinary statute, and the structural inequality critique

Two planes, one country

Australia lives in both of the legal systems this Part has built. On the international plane it makes and receives obligations under the law of treaties; on the domestic plane only Parliament makes law. The bridge between them is the subject of this module, and the first rule is who holds the pen.

RULE. arrowTreaty-making is an executive act under s 61 of the Constitution. Negotiation, signature and ratification are performed by the executive, and no parliamentary approval is constitutionally required at any step.

RULE. arrowAustralia is dualist. Ratification binds Australia internationally, but it changes no rights or duties in domestic law. Implementation requires legislation, typically under the external affairs power in s 51(xxix).

Trap. Which plane are you on? A ratified but unimplemented treaty gives a litigant no domestic cause of action, yet Australia is fully bound internationally and cannot plead its internal law, or its federal structure, as an excuse for breach (Art 27 VCLT). Conduct by a State authority is attributable to Australia on the international plane. Two planes, two answers, one sentence each.

The Commonwealth process

Because the executive can bind Australia to roughly 900 treaties without a vote, the process has been dressed with transparency. Under the 1996 reforms, a treaty is tabled in Parliament at least 15 sitting days before any binding action is taken, accompanied by a National Interest Analysis, and is scrutinised by the Joint Standing Committee on Treaties, JSCOT, which reviews and reports. Two precisions carry marks: legislation is not required before ratification, only for domestic implementation, and JSCOT is advisory only, so it cannot veto ratification.

Teoh and its afterlife

For a period the two planes leaked. In Teoh the High Court held that ratification of a treaty grounded a legitimate expectation that administrative decision-makers would act consistently with it, even without implementing legislation. The doctrine was doubted in Lam and is now effectively moribund. State it, date it, and treat it with caution: an answer that rests a client's rights on Teoh alone is a Pass answer.

Implementation and its limits

When Parliament does implement, the statute must find a head of power, and the usual one is external affairs. The power is broad but not bottomless, and its limit is where the examiner hides the marks.

RULE. scalesThe external affairs power supports a treaty-implementing law only so far as the law is reasonably capable of being considered appropriate and adapted to giving effect to the treaty (Industrial Relations Act Case, the Tasmanian Dam line). The treaty must be entered in good faith, the law must conform to the treaty, and there must be reasonable proportionality between the obligation assumed and the means adopted.

Trap. Over-implementation is the trap to hunt. Where the treaty requires annual reporting and the Act demands monthly reports and open-ended document production, the surplus is not appropriate and adapted and is invalid to that extent. When a hypothetical plants a Commonwealth Act said to implement a convention, run validity clause by clause against what the treaty actually requires; do not stop at reciting dualism.

The challenge toolkit stacks. A State attacking a Commonwealth implementing Act argues first that particular demands exceed the treaty and fail the proportionality limb; then that clauses reaching privileged or rights-bearing material should be read down under the principle of legality (Coco); and if the offending rules sit in delegated legislation, adds the tabling and disallowance machinery. The reply is that appropriate and adapted is a generous standard, that reasonable implementation choices belong to Parliament, and that clear words defeat legality.

The democratic deficit essay

The standing essay asks whether the executive's treaty power should be shared. The critique: one branch can commit the nation to hundreds of instruments that later drive domestic legislation, with Parliament consulted only through an advisory committee, a democratic deficit. The defence: flexibility, speed and international credibility, since a partner state needs to know the signature holds, and Parliament keeps the real power anyway, because nothing enters domestic law without it. The strongest answers weigh reform options, a parliamentary approval requirement against a strengthened JSCOT, instead of simply denouncing the deficit.

Treaty with First Peoples

The word treaty also names a domestic project, and the two meanings must not be blurred. Wood's argument frames it: treaty negotiations conducted wholly inside the coloniser's legal system are structurally unequal, because the state is simultaneously party, rule-maker and umpire, so an international law framework, self-determination, UNDRIP and independent supervision, offers a fairer footing.

RULE. keyringThe Statewide Treaty Act 2025 (Vic) received assent on 13 November 2025, and the Treaty commenced on 12 December 2025: the first formal treaty between an Australian government and First Peoples. Its keys: Gellung Warl, the permanent umbrella representative entity; the elected First Peoples' Assembly, with a statutory right to be consulted on laws and policies specifically affecting First Peoples; an independent accountability body monitoring government performance against treaty commitments; and an ongoing truth-telling body continuing the Yoorrook Justice Commission's work.

Trap. It is not a VCLT treaty. The VCLT governs written agreements between states, so an agreement between a State government and First Peoples sits outside it unless an international framework is engaged, which is precisely Wood's proposal. Analyse it as a domestic statute plus a political compact, not under Arts 26 and 31.

Trap. An ordinary statute. The Treaty's domestic vehicle carries no manner and form entrenchment, so a future Parliament could repeal it, which is Wood's structural inequality point made concrete. Evaluate both ways: transformative recognition and accountability architecture on one side; vulnerability to electoral reversal, and critiques of incorporation into the very structures being contested, on the other.

The attack plan

Attack plan. Five steps, in this order. 1. Fix the plane: international obligation or domestic law, and say what ratification did and did not change. 2. Trace the process: executive act under s 61, tabling, National Interest Analysis, JSCOT report, ratification. 3. Find the implementing statute and its head of power, usually s 51(xxix). 4. Test validity: is each challenged provision reasonably capable of being considered appropriate and adapted to the treaty, with legality arguments for rights-reaching clauses. 5. Conclude to the extent of invalidity, remembering that the rest of the Act stands.

RULE. staircaseThe analysis climbs: plane, process, power, proportionality, conclusion. An answer that starts at the statute without fixing the plane usually asserts that the treaty itself binds domestically, and the error poisons everything above it.

Worked example

Australia ratifies a Convention on Wetland Protection obliging parties to "submit an annual report on the condition of listed wetlands." The Commonwealth then enacts an Act requiring State agencies to report monthly on all wetlands, listed or not, and to produce any related internal documents on demand. A State objects. Advise the Commonwealth on the Act's validity.

A Pass answer says. Treaty-making is an executive act under s 61 and Australia is dualist, so the Convention needed implementing legislation, which Parliament has power to pass under the external affairs power (Tasmanian Dam). The Act implements the Convention, so it is valid. This states every rule correctly and applies none of them: it never compares what the Act demands with what the Convention requires.

An H1 answer says. Ratification bound Australia internationally but changed no domestic law; the Act is the implementation, and it stands only so far as it is reasonably capable of being considered appropriate and adapted to the Convention (Industrial Relations Act Case). The annual reporting obligation supports a reporting scheme, but three features go beyond the treaty: monthly frequency where the Convention says annual, coverage of unlisted wetlands the Convention does not touch, and open-ended document production the Convention nowhere requires. Each surplus fails the proportionality limb and is invalid to that extent, and the document clause should in any event be read down under the principle of legality where it reaches privileged material (Coco). The Commonwealth keeps a valid annual reporting core for listed wetlands. The answer concludes provision by provision, to the extent of invalidity, not with a verdict on the whole Act.

Critical pitfalls and counter-arguments

Merging the planes. Ratification without legislation creates no domestic rights, and legislation is not required before ratification. Each half of that sentence is a separate exam point.
Making JSCOT a gatekeeper. It scrutinises and reports; it cannot veto, and its 15 sitting days run before binding action, not before signature.
Resurrecting Teoh. The legitimate expectation doctrine was doubted in Lam and is effectively moribund. Cite it as history, not as a ground of decision.
Stopping at dualism in a hypothetical. The planted issue is usually validity: measure the Act against the treaty and attack the surplus as not appropriate and adapted.
Calling the Victorian Treaty a VCLT treaty. It is a domestic statute and compact between a State and First Peoples. Its force, and its fragility, are matters of ordinary Australian law, which is Wood's point.

Take it to the practice bank

The Principles of Public Law practice bank reaches this module from both planes. On the international side, the law of treaties set drills the obligations Australia takes on: Problem 2 runs pacta sunt servanda against the internal law excuse, the exact rule that makes dualism domestically safe and internationally irrelevant, and Problem 6 tests invalidity where a treaty was concluded in breach of internal law on competence. On the reception side, Problem 3 of the customary international law set works through how customary rules enter Australian law. The cross-topic exam scenarios then combine a ratified convention with an implementing Act, so you can practise running dualism and the appropriate and adapted attack in one answer.

Practice prompts

Write the two-sentence opener that fixes the planes for any implementation problem: what ratification did internationally, and what it did not do domestically. Then reuse it against the worked example and against a problem where the treaty is unratified but signed.
Draft the State's strongest paragraph attacking one clause of the wetlands Act, and then the Commonwealth's best reply, conceding nothing that Industrial Relations Act Case does not force it to concede.
Plan the democratic deficit essay both ways: one thesis defending executive treaty-making with Parliament as the domestic gatekeeper, one arguing for a parliamentary approval requirement, each engaging JSCOT's advisory limits and the roughly 900 treaties point.

Check your understanding

Auto-marked drills. Answer, then see the authority in the feedback.