January 15

Lord Monckton: Treaties and the Constitution

We have been asked to  mention the places  Lord Monckton will visit in  Australia, which we do below. We should stress that the debate over anthropogenic global warming falls outside of the ACM mission.  As most readers would know, Lord Monckton became especially prominent in the media in the lead up to the Copenhagen conference on global warming. He had already been prominent in the UK and North America in challenging proposals concerning global warming, including supporting a legal challenge concerning the use by schools of former Vice President Al Gore’s film, An Inconvenient Truth.

In late 2009 Lord Monckton announced there existed a UN draft of a treaty to be considered at the Copenhagen conference. He warned that US President Barack Obama intended to sign a treaty at the conference which would "impose a communist world government on the world". On questioned on Australian talk back he suggested that Mr. Rudd could also sign such a treaty. As Lord Monckton’s intervention centred on the  treaty making power of the President and also our Prime Minister, he raised constitutional issues which are of interest to ACM supporters.   

As readers know, the Copenhagen conference failed to enter into a Treaty, the US, China, India, Brazil and South Africa announcing a non- binding accord which was then “noted” by a majority of delegations.

…treaty making and the constitution…

It is relevant to say a few words on treaty making. Treaties were once made between or on behalf of princes, the generic term for what today are called Heads of State. (That is why ACM has always referred first to international law in any debate over this term)

Treaties in those times would normally take effect on sealing or signature by the prince or his plenipotentiary. Today, signing a treaty is usually no more than an indication that the government will use its best endeavours to secure ratification in accordance with the country’s constitutional processes.

 On this the US differs from most of the leading Commonwealth countries. In Australia, the UK, Canada, New Zealand and similar countries, treaty making falls under the Royal Prerogative. It is The Queen or the Governor-Genera,l acting on advice, who ratifies the treaty.

But the treaty may have no internal legal effect whatsoever unless supported by legislation. At keast that was according to the common law.




…High Court changes the law….

In 1995 the High Court, in a quite extraordinary decision, changed this. The case involved one Ah Hin Teoh, a Malaysian who married his deceased brother’s widow (“Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh” [1995] HCA 20; (1995) 183 CLR 273). It is releavnt to know that she already had four children and they then had three more.

While seeking permanent resident status, Teoh was convicted on charges of heroin importation and possession.
A deportation order was issued from which he appealed to the relevant Tribunal and to the Federal Court. 

Justice French, now the Chief Justice of Australia, ruled that the deportation order had not been an improper exercise of power. It did not involve a denial of natural justice, nor did it involve the consideration of irrelevant factors by the decision-makers.

The Full Federal Court overruled this. They said that the immigration authorities had failed to make appropriate investigations into the hardship to Teoh's wife and her children. The Minister appealed against the decision to the High Court of Australia.

There a majority, Sir Anthony Mason, Sir William Deane and Justices Toohey and Gaudron agreed with the Federal Court decision that there had been a breach of natural justice. The reason was that the Immigration Department had failed to invite Teoh to make a submission on whether a deportation order should be made. This, they said, was contrary to the Convention on the Rights of the Child under which the child's best interests must be a primary consideration.

The Court found that the mere ratification of an international convention ( ie. a treaty) can give rise to a legitimate expectation and that, in this case, there was a breach of procedural fairness.

…Keating government outraged…

This decision outraged the Keating government. The Convention had not been the subject of legislation, and the idea that decision makers should be aware of and observe all treaties which only created international obligations went against legal opinion.

The High Court was accused of judicial activism, and the government introduced legislation to correct this. The opposition indicated its support. But the legislation lapsed on the 1996 election. The Howard government re-introduced the legislation. The opposition now opposed it and it lapsed with the 1998 election. This was repeated witha similar result. 

Since then there has been at least one observation in the High Court that the Teoh ruling should be reconsidered.

…the external affairs power…


The Constitution gives the Federal Parliament to make for the peace order and good government of the Commonwealth with respect to external affairs.  The High Court has increasingly interpreted this liberally. It would almost seem that entry into any treaty will give the Commonwealth power to legislate to fulfil obligations under the treaty. This understandably concerns federalists.

…the United States…

Under the  US Constitution, the President “ shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur….”( Article II, Section 2, Clause 2) Once ratified they have direct internal effect even if they are in areas reserved to the states.

But a practice has developed of the administration entering into congressional -executive agreements which only require simple majorities, and sole executive agreements made by the President acting alone.

From Lord Monckton’s description of the proposed Copenhagen treaty, it would seem that a treaty would be necessary. In other words President Obama could not have acted alone; he would have needed to put it to the Senate and have the support of two thirds of the Senators present.

As President Wilson found with the Covenant of the League, this can be difficult to muster.

…Lord Monckton’s visit…



§   Sydney January 27th, Union Club Lunch

§   Sydney Sheraton on the Park, 5:30 pm

§   Newcastle January 28th, Banquet Room, City Hall, 12:30 pm

§   Brisbane January 29th, Irish Club, 3:00 pm

§   Noosa January 30th, The J , 2:00 pm

§   Melbourne February 1st, Sofitel Hotel, 5:30 pm

§   Canberra Feb. 3rd, program yet to be determined

§   Adelaide Feb. 4th, Intercontinental Hotel, 7:30 pm

§   Perth Feb. 8th, Parmelia Hilton, 5:30 pm



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