In the world of international diplomacy, the Australian government has a history of fashioning nonbinding agreements and documents of less than treaty status for the purposes of political expediency rather than considered public policy.

In diplomatic circles, international lawyers generally concede that an international agreement is not legally binding unless the parties intend it to be legally binding. In other words, a treaty or international agreement requires an intention by the parties to create legal rights and obligations or to establish a regime governed by international law.

The Australian position in relation to instruments of less than treaty status is somewhat equivocal. Because of the danger of misunderstandings over the status of the instrument, most states follow a practice of displaying their intention to conclude a treaty by employing a form of words such as ‘shall’, ‘agree’, ‘undertake’, ‘rights’, ‘obligations’, and ‘enter into force’. In Australian practice, ‘agreement’ is the general term used to denote an instrument of treaty status; and ‘arrangement’ is the general term used to denote an arrangement or memorandum of understanding (MOU), which denotes a document of less than treaty status.

Carefully considering the subject matter is important in determining the appropriate status of a future instrument. Australian practice indicates that certain subjects are generally considered of such legal significance (e.g. defence, civil aviation, communications, customs, trade, human rights, privilege and immunity of personnel, double taxation, social security and extradition) that they require the conclusion of a legally binding instrument, such as a treaty, to give effect to international obligations. Agreements involving an actual or potentially significant financial commitment owed to, or by Australia (including liability for damages), should ideally be treaties.

Some reflection on the use by Australia of documents of less than treaty status is necessary to understand how memoranda of understanding have operated in the bilateral international context. Examining the processes involved in these transactions demonstrates the need for a transparent and appropriate process to remedy the problems that have arisen from the lack of accountability on the part of ministers and the executive. The three transactions below are illustrative:

(a) the British atomic tests held in Australia;

(b) Australia’s purchase of the F-111 aircraft; and,

(c) arrangements for processing asylum seekers under ‘The Malaysia Solution’.

The first case, British atomic testing in Australia, is a case of cultural cringe and the influence of Britain over Australia. The second case, Australia’s purchase of the F-111, demonstrates the use of such a document to overcome political problems. The third case, processing asylum seekers under the Malaysia Solution, shows the naivety of attempting to achieve a political outcome by an instrument that of itself contained a clause that the instrument itself was not legally binding.

Maralinga

The case of the British nuclear tests demonstrates the actions of politicians and bureaucrats when confronted with a new world, one in which secrecy was considered to be of paramount importance. The fact that the British atomic tests in Australia were agreed to and arranged on the basis of instruments of less than treaty status (and which then resulted in a dispute between the Australian government and the British government), and the subsequent Royal Commission into British Nuclear Tests in Australia, illustrate the potential for international pitfalls in such arrangements. Prime Minister Robert Menzies, in taking it on himself to embrace British interests as synonymous with those of Australia and exposing his country and people to the risk of radioactive contamination, was merely acting according to widely-held anglophile sentiments in Australia.

The Royal Commission into British Nuclear Tests in Australia contained some 201 conclusions in its deliberations. It also made seven recommendations. Of the seven only one was rejected: the second recommendation. It recommended assisting the commissioner for employees’ compensation in the performance of additional duties covered in the first recommendation: to comply with a national request for compensation of nuclear veterans, Aborigines and other persons who may have been exposed to the ‘Black Mist’ or radiation at the tests.

The government rejected the commission’s recommendation on the basis that two substantial lists of persons involved in the tests, and potentially exposed to radiation, already existed and that further information would add nothing of significance.

The Minister for Aboriginal Affairs, Clyde Holding, presented cabinet with a submission in response to the royal commission’s recommendation that Aboriginal people be compensated for dispossession of the lands used for testing. Holding was blunt and evocative:

…we have no option but to accept the principle of compensation for dispossession. The actions of previous Australian government[sic] in shepherding Aboriginal people from their traditional lands for the purpose of conducting atomic tests were both immoral and appallingly executed. The resultant disruption to Aboriginal life has been catastrophic: Yalata, where many were resettled, is testimony to that. If we deny compensation we shall stand condemned as surely as those who committed the outrage of dispossession in the first place.

Cabinet accepted Holding’s recommendation that $500,000 be provided in 1986-87, for services such as roads and water, for Indigenous communities with a traditional connection to sites at Maralinga affected by the atomic test program, with future amounts to be subject to further consideration.

Holding further advised:

This would in effect be a down payment on an unspecified overall sum, which would need to be calculated at a later stage when more information is available on needs and on the extent of continuing restrictions on use and enjoyment of areas of the Maralinga lands. It will be seen as a low figure and will be criticised for that: we can counter such criticism by pointing out that it is the first instalment, and that there needs first to be consultation with the traditional owners on what is to be done.

Notwithstanding comments made by Gareth Evans and Bruce Grant that differences with the UK government were usually highly specific and do not unbalance the relationship, there were tussles over responsibility for cleaning up the Maralinga nuclear test site.

The F-111

Australia’s purchase of the F-111 fighter aircraft illustrates the exploitation of foreign policy for political expediency pursued through the use of instruments of less than treaty status. There are valuable lessons in the history of this transaction because the decision to purchase the F-111 was the subject of some political controversy. Initially, the discourse concentrated on the political circumstances surrounding the controversy, when the government in undue haste decided to purchase an aircraft that was still in the design stage. Thereafter, the discourse turned towards the considerable price of the aircraft, a cause of much anxiety for both the Australian and US governments.

The Malaysia Solution

Finally, the development of the so-called ‘Malaysian Solution’ for the processing and detention of asylum seekers making their way to Australia by boat, and the international agreement to it, provide a graphic example of the futility in attempting to solve a complex policy issue by the use of a document of less than treaty status.

The attempt to implement government policy in relation to the transfer of asylum seekers to Malaysia was struck down by the High Court. It was made partly on the basis that there was a clause in the arrangement stating that it was not legally binding, thus placing the status of the instrument squarely under the High Court’s judicial purview. This was highly unusual, but highly instructive.

The aforementioned cases highlight the range of reasons behind why such documents have been used in lieu of treaties. Consequently, there is a need for some kind of accountability regime in order to ensure that documents of less than treaty status receive the scrutiny of the executive they deserve.

Dr Peter C Lundy RFD is a specialist in international law and received his PhD from the University of Canberra for research related to international treaties and agreements of less than treaty status.

This article is published under a Creative Commons Licence and may be republished with attribution.