Will ratification of the Kyoto Protocol become the first test of the Rudd government?

One of the new government’s first priorities when it is sworn in later this week will be ratification of the Kyoto Protocol. This simple act may create the first set of headaches for the new government.

What is required for Australian ratification of Kyoto? The normal processes would first require that the government prepare a National Impact Analysis, followed by a Parliamentary inquiry, enactment of new law giving effect to the treaty, and then finally a recommendation by the Executive Council that ratification take place. This is not a speedy process.

No National Impact Analysis has been undertaken on Kyoto. Likewise, there has never been a formal review of Kyoto or recommendations made by Parliament’s Treaties Committee. In 2001 the Committee completed a Kyoto Discussion Paper, but no recommendations on ratification were ever made.

The Rudd Government will argue that its election victory gives it a popular mandate to swiftly ratify Kyoto and that it should not be burdened by procedural requirements. This argument would have some strength to it, especially when it is also considered that even under the procedures the Howard government established there were exceptions for so-called “emergency” treaties which had to be ratified quickly in the national interest.

This brings us then to the legislative requirement. Since the 1990s the practice of successive governments has been that Australia will never ratify a treaty without appropriate domestic law in place to give effect to that treaty. The reason for this is simple. For any government to ratify a treaty without domestic law in place runs the risk that Australia will be in breach of its international legal obligations and feel the wrath of the international community. This would not be a good look for Labor if it is seeking to restore Australia’s standing as a good international citizen.

The legislative requirement presents a considerable hurdle. Unsurprisingly there is no current law in place to directly give effect to Kyoto. Kyoto law will then need to be drafted and put to the Parliament. Here the Rudd government seems likely to face a hostile Senate until July 2008. Of course, the mandate argument can once again be used here and given Malcom Turnbull’s apparently positive views on Kyoto ratification there is some prospect that if he becomes new Liberal leader passage of a Kyoto law through the Senate could be eased. Nevertheless, it seems highly improbable that Kyoto law could be passed by the end of this year.

There are some options to quickly act on Kyoto. Ratification of a treaty like Kyoto is constitutionally an act of the executive. There is no formal constitutional requirement for any Parliamentary vote. Once Rudd is sworn in and the Federal Executive Council formed then the new government could quickly ratify by the end of this week. Legislation will in due course be required, but that may well have to wait until the Parliament resumes in 2008. Enacting some form of Kyoto law may therefore become the first parliamentary test of the new government.