Gobbi, Mark --- "Treaty Action and Implementation" [2007] NZYbkIntLaw 18; (2007) 4 New Zealand Yearbook of International Law 311

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This article documents governmental activity undertaken to implement New Zealand’s international obligations during the current interval.^[1] It concludes that the level of activity in the current interval, relative to the previous interval, has declined for the parliamentary and judicial branches of government, but has increased for the executive. This overview summarises that activity and compares it with the activity undertaken during the previous interval.^[2]

A. Parliamentary Activity

During the current interval, Parliament enacted 14 bills with implications for New Zealand’s international obligations. Ten simply amended Acts that had implemented treaties, one improved compliance with a treaty that had already been implemented, and three implemented two new treaties.^[3] Ten of these Acts involved multilateral treaties, three involved bilateral treaties, and one involved a quadrilateral agreement.

In terms of Acts, this level of activity is nearly half the previous interval. During the previous interval, Parliament enacted 31 bills with implications for New Zealand’s international obligations. Thirteen simply amended Acts that had implemented treaties, 14 improved compliance with treaties that had already been implemented, and four implemented three new treaties.^[4] Thirty of these Acts involved multilateral agreements, while the remaining one involved a bilateral agreement.^[5]

This nominal decline may be attributable to the general decrease in parliamentary enactments during the current interval.^[6] During the interval immediately before the previous interval, Parliament enacted 154 public Acts,^[7] of which 29 had implications for New Zealand’s international obligations (19 percent). During the previous interval, Parliament enacted 146 public Acts, of which 31 had implications for New Zealand’s international obligations (21 percent). During the current interval, Parliament enacted 76 public Acts, of which 14 had implications for New Zealand’s international obligations (18 percent).^[8] Despite the decline in parliamentary enactments, the percentage of Acts with implications for New Zealand’s international obligations has remained fairly constant over the last three years ending 30 June 2006 (i.e., the span of a parliamentary term). However, the number of new treaties that Parliament has implemented directly has declined over this period. During the current interval, Parliament implemented two new treaties. During the previous interval it implemented three new treaties.^[9] During the interval immediately before the previous interval, Parliament implemented eight new treaties.^[10]

During the current interval, the House of Representatives considered nine select committee reports on treaties (nine treaties in all). Seven of these reports gave a positive pro forma response to the treaty examined (i.e., “no matters to bring to the attention of the House”). Public submissions did not feature in these reports. Two reports brought matters to the attention of the House; public submissions featured in one of them. None of these reports warranted a Government response.

In terms of reports, this level of activity is less than the previous interval (seven less reports). In terms of treaties examined, this level of activity is also less than the previous interval (six less treaties). During the previous interval, the House of Representatives considered 14 select committee reports (13 treaties in all).^[11] Nine of these reports gave a positive pro forma response to the treaty examined. Public submissions did not feature in these reports. Four reports brought matters to the attention of the House; public submissions featured in one of them. None of these reports warranted a Government response.^[12]

2. Treaty Making Process

To mark the tenth year of its operations, the Australian Parliament’s Joint Standing Committee on Treaties held a seminar to assess the reforms made in 1996 to Australia’s treaty making process.^[13] A delegation from New Zealand’s Foreign Affairs, Defence and Trade Committee attended the seminar, including the Committee’s Chairperson, Dianne Yates.

Dianne Yates presented a paper outlining New Zealand’s treaty-making process,^[14] which was initially trialled for a year beginning in February 1998,^[15] favourably reviewed in August 1999,^[16] and firmly established by 2000.^[17] The paper made a number of observations about New Zealand’s treaty-making process, including the following:^[18]

Subject committees appear to be better able to examine the content of treaties in relation to New Zealand domestic law than a committee that specialises in the examination of treaties;

The act of entering into a treaty is insufficient to change New Zealand domestic law, that is, a treaty may only confer legal powers or duties on persons in New Zealand if supported by an Act of Parliament;

New Zealand’s treaty-making process is designed to ensure that New Zealand’s domestic law is compatible with a treaty’s obligations before New Zealand becomes bound by the treaty;

Most of the treaties entered into are bilateral treaties that are not presented to the House of Representatives for examination; however, the proportion of bilateral treaties being presented appears to have increased since the Government has undertaken to present all significant bilateral treaties (as determined by the Minister of Foreign Affairs and Trade);

Progress on bilateral treaty negotiations is included in the six-monthly international treaty lists^[19] and briefings that are given to the Foreign Affairs, Defence and Trade Committee;

While all multilateral treaties are required to be presented to the House before binding treaty action is taken, this principal may be dispensed with in cases in which a treaty must, in the national interest, be entered into immediately; however, the treaty must still be presented to the House as soon as possible after the binding treaty action is taken;

The national interest analysis accompanying treaties presented to the House might be more useful if it included a quantitative cost-benefit analysis;

While a vote is taken in the House on a report presented by the select committee examining a treaty, the decision to enter into the treaty remains with the Executive;

The Executive refrains from taking any binding action in relation to a treaty until either the relevant select committee has reported or 15 sitting days have elapsed from the date of presentation; however, select committees may ask for more time to consider a treaty, which the Government may or may not grant;

Legislation necessary to implement a treaty should not be introduced to the House until the time for examining a treaty has lapsed;

The Executive, as a general rule, avoids taking binding treaty action until the legislation that would implement the treaty in New Zealand domestic law is enacted;^[20] and

The exercise of parliamentary scrutiny does not prevent the Executive from taking a particular treaty action; however, “it is possible that a future Parliament may object outright to a particular treaty”.^[21]

With respect to the last point, the paper indicated that Parliament’s objection could be supported by “the blunt threat of preventing the passage of proposed legislation, where legislation is required before New Zealand can become a party to [the] treaty”.^[22] This appears to have been the only option available to Parliament before the advent of the current treaty-making process, which now provides an opportunity for the Executive and Parliament to debate and resolve their differences, if any.^[23] This threat does not appear to have been used prior to the advent of the current process. One reason may be that until the establishment of the mixed member proportional representational system in 1996, which predated the establishment of the current treaty examination regime by less than two years, the government of the day was usually a majority government with more certain control over both the Executive and Parliament.

B. Executive Activity

During the current interval, the Executive made 31 regulations that implement New Zealand’s international obligations. Eight of these regulations concerned the incorporation of foreign national or international standards, five implemented bilateral agreements, and four implemented a quadrilateral agreement, while the remaining 14 implemented multilateral agreements. Eight implemented environmental agreements or standards, six implemented trade agreements, five dealt with safety standards, four gave effect to bilateral tax agreements, three concerned agreements against illicit drugs, two dealt with a bilateral agreement regarding national boundaries, one dealt with trans-Tasman mutual recognition, and one implemented a United Nations Security Council resolution.

This level of activity is greater than the previous interval. During the previous interval, the Executive made 24 regulations that implemented New Zealand’s international obligations.^[24] Eight of these regulations concerned the incorporation of foreign national or international standards, one implemented a bilateral arrangement, and one implemented a bilateral agreement, while the remaining 14 implemented multilateral agreements. Six concerned compliance with international agreements regarding hazardous or environmentally harmful substances or organisms, five gave effect to various marine protection and maritime agreements, four concerned the implementation of United Nations Security Council resolutions, and the remaining eight dealt with a variety of topics (i.e., child abduction, rules of origin, energy-using products, gas, financial reporting, trade in endangered species, trans-Tasman mutual recognition and transport).^[25]

During the current interval, the Executive was involved in 51 treaty actions with respect to 12 multilateral agreements and 20 bilateral agreements. Of the 12 multilateral agreements, the Executive signed four, adhered to six, accepted one, and ratified one. Six came into force. Of the 20 bilateral agreements, the Executive signed 11 and adhered to nine. Thirteen came into force. The Executive presented the following periodic reports to the United Nations with respect to New Zealand’s international human rights obligations:^[26] New Zealand’s Sixth Report on its Implementation of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (2006)^[27] and New Zealand’s Fifteenth, Sixteenth, and Seventeenth Consolidated Report to the Committee on the Elimination of Racial Discrimination (2006).^[28]

This level of activity is nearly twice the level of activity that took place during the previous interval. During the previous interval, the Executive was involved in 27 treaty actions with respect to four multilateral agreements and 14 bilateral agreements. Of the four multilateral agreements, the Executive ratified two and acceded to one. All four came into force. Of the 14 bilateral agreements, the Executive signed seven and adhered, by way of a third person note, to seven. Six came into force. The Executive did not provide a periodic report to the United Nations with respect to New Zealand’s international human rights obligations.^[29]

C. Judicial Activity

During the current interval, the judiciary delivered 52 judgments that referenced New Zealand’s international obligations. Seven of these judgments were reported in the New Zealand Law Report series; the Supreme Court delivered two, the Court of Appeal delivered four, and the High Court delivered one. Twelve were reported in other series; the Court of Appeal delivered one and the High Court delivered 11. Thirty-three were unreported; the Court of Appeal delivered five, the High Court delivered 23, and the Family Court delivered five.

Of these 52 judgments, 15 dealt with custody matters, 13 with civil procedure matters, and 11 with criminal procedure matters. Nine dealt with immigration matters, one with torts, one with intellectual property, and one with freedom of association.

These judgments referred to 16 different international agreements (one of which does not have New Zealand as a party) and one handbook relevant to the application of a convention to which New Zealand is a party. In total, these judgments have 70 references. In these cases, the most frequently cited international agreements are the International Covenant on Civil and Political Rights (1966) (14 references), the Hague Convention on the Civil Aspects of International Child Abduction (1980) (13 references), the European Convention on Human Rights (1950) (10 references),^[30] the Convention of the Rights of the Child (1989) (nine references), the Convention relating to the Status of Refugees (1951) (seven references), the International Covenant on Economic, Social and Cultural Rights (1966) (three references) and the Model Law on International Commercial Arbitration (1985) (two references). Eight other international agreements are referenced by one case. The handbook is referenced by two cases.

In terms of the number of judgments delivered, the level of activity is a little lower than the level of activity that took place during the previous interval (five less cases). In terms of the number of references to international agreements, the level of activity is also lower (18 less references). During the previous interval, the judiciary delivered 57 judgments that referenced New Zealand’s international obligations. Eleven of these judgments were reported in the New Zealand Law Report series; the Court of Appeal delivered nine and the High Court delivered two. Ten were reported in other series; the Supreme Court delivered two, the Court of Appeal delivered four, and the High Court delivered four. Thirty-six were unreported; the Supreme Court delivered one, the Court of Appeal delivered eight, the High Court delivered 18, the District Court delivered one, and the Family Court delivered eight.^[31]

Of these 57 judgments, 20 dealt with criminal procedure matters, 13 dealt with custody matters, and 12 with immigration matters. Three dealt with civil procedure, three with accident compensation, two with paternity, one with fisheries, one with freedom of expression, one with freedom of association, and one with social welfare entitlement.

These judgments referred to 21 different international agreements (one of which does not have New Zealand as a party). In total, these judgments have 88 references. In these cases, the most frequently cited international agreements are the International Covenant on Civil and Political Rights (1966) (20 references), the Hague Convention on the Civil Aspects of International Child Abduction (1980) (10 references), the European Convention on Human Rights (1950) (nine references),^[32] the Convention relating to the Status of Refugees (1951) (eight references), the Convention of the Rights of the Child (1989) (eight references), the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984) (six references), the Vienna Convention on the Law of Treaties (1969) (four references), the Universal Declaration of Human Rights (1948) (four references) and the Convention Against Transnational Organized Crime (2000) (four references). Two other international agreements are referenced by two cases and 11 are referenced by one case.^[33]

D. Conclusion

During the current interval, all three branches of government took part in the implementation of New Zealand’s international obligations. The level of activity for the executive branch has increased. However, the levels of activity for both the parliamentary and judicial branches of government have declined relative to the previous interval. Despite this, international agreements continue to be an important source of law in New Zealand.

II. Treaty Action

This Part sets out the treaty actions taken by the Executive during the current interval. It also sets out the reports on treaties that the Executive tabled in the House during the current interval.

A. Executive Treaty Action^[34]

1. Multilateral Treaties

International Convention for the Suppression of Acts of Nuclear Terrorism (signed on 14 September 2005)

Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (signed on 19 June 2006)

International Convention against Doping in Sport (accepted on 23 December 2005; entered into force for New Zealand on 23 December 2005)

The Final Act of the World Radiocommunication Conference (Geneva, 2003) amending the Radio Regulations that are annexed to the International Telecommunication Union Constitution and Convention (ratified on 20 June 2006)

The Final Acts of the Plenipotentiary Conference (Marrakesh, 2002) amending the Constitution and Convention of the International Telecommunication Union as amended by the Plenipotentiary Conference (Kyoto, 1994) and by the Plenipotentiary Conference (Minneapolis, 1998) (adhered to on 20 June 2006)

International Plant Protection Agreement (New Revised Text approved by the FAO Conference at its 29th Session, November 1997) (entered into force for New Zealand on 2 October 2005)

Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (adhered to on 14 July 2005; entered into force for New Zealand on 14 July 2005)

Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region (adhered to 16 August 2005; entered into force for New Zealand on 16 August 2005)

Convention establishing the Multilateral Investment Guarantee Agency (signed on 6 September 2005)

Treaty of Amity and Cooperation in Southeast Asia (adhered to on 28 July 2005; entered into force for New Zealand on 28 July 2005)

Trans-Pacific Strategic Economic Partnership (signed on 18 July 2005; adhered to on 20 April 2006; entered into force for New Zealand on 28 May 2006)

Agreement between the Government of the Republic of Namibia and the Governments of Australia, Canada, India, New Zealand, South Africa and the United Kingdom of Great Britain and Northern Ireland concerning the Treatment of War Graves of Members of the Armed Forces in the Territory of Namibia (signed on 24 August 2005; adhered to on 24 August 2005)

2. Bilateral Treaties

Agreement between New Zealand and the European Community on Certain Aspects of Air Services (signed on 21 June 2006)

Exchange of Letters Constituting an Agreement between the Government of New Zealand and the Government of Vanuatu for the Deployment of a New Zealand Defence Force NZDF Contingent to Vanuatu to Assist with an NZAID Sponsored Corrections Project in Luganville (entered into force on 11 May 2006)

Air Services Agreement between the Government of New Zealand and the Government of India (signed on 2 May 2006)

Treaty between New Zealand and the People’s Republic of China on Mutual Legal Assistance in Criminal Matters (signed on 6 April 2006)

Cultural Agreement between the Government of New Zealand and the Government of the People’s Republic of China (signed on 6 April 2006; entered into force for New Zealand on 6 April 2006)

Agreement between the Government of New Zealand and the Government of Australia in Relation to Mutual Recognition of Securities Offerings (signed on 22 February 2006)

Agreement in the form of an Exchange of Letters between the European Community and New Zealand pursuant to Article XXIV:6 and Article XXVIII of the General Agreement on Tariffs and Trade (GATT) 1994 relating to the Modification of Concessions in the Schedules of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic in the course of their Accession to the European Union (signed on 21 December 2005; adhered to on 21 December 2005; entered into force for New Zealand on 21 December 2005)

Protocol amending the Agreement between the Government of New Zealand and the Government of Australia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (signed on 15 November 2005)

Third Protocol to the Agreement between the Government of New Zealand and the Government of the Republic of Singapore for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (signed on 5 September 2005)

Agreement between the Government of New Zealand and the Kingdom of Spain for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (signed on 28 July 2005; adhered to on 1 August 2006)

Agreement between the Government of New Zealand and the Government of the United Kingdom of Great Britain and Northern Ireland concerning Air Services (signed on 26 July 2005; adhered to on 26 July 2005; entered into force for New Zealand on 26 July 2005)

Exchange of Letters constituting an Agreement between the Government of New Zealand and the Government of the Republic of the Fiji Islands for the Visit by a New Zealand Defence Force Contingent to Fiji for Exercises Tropic Astra and Tunex Astra (signed on 14 July 2005; adhered to on 14 July 2005; entered into force for New Zealand on 14 July 2005)

New Zealand–Thailand Closer Economic Partnership Agreement (adhered to on 1 July 2005; entered into force for New Zealand on 1 July 2005)

Agreement on a Working Holiday Scheme between the Government of New Zealand and the Government of Norway (entered into force for New Zealand on 4 July 2005)

Agreement between the Government of New Zealand and the Government of the Federal Republic of Germany Concerning the Co-Production of Films (adhered to on 31 August 2005; entered into force for New Zealand on 31 August 2005)

Agreement on a Working Holiday Scheme between the Government of New Zealand and the Government of the Czech Republic (entered into force for New Zealand on 1 September 2005)

Treaty between the Government of New Zealand and the Government of Australia Establishing Certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries (adhered to on 25 January 2006; entered into force for New Zealand on 25 January 2006

Convention between the Republic of Chile and New Zealand for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (entered into force for New Zealand on 21 June 2006)

Agreement on Consular Relations between New Zealand and the People’s Republic of China (adhered to on 23 March 2006; entered into force for New Zealand for 23 April 2006)

Agreement between the Kingdom of Belgium and the Government of New Zealand on the Employment of Dependants of Diplomatic and Consular Staff (adhered to on 28 April 2006; entered into force for New Zealand on 1 June 2006)

B. Reports on Treaties Tabled in the House of Representatives

1. Reports Where No Matters Were Drawn to the Attention of the House

Report on International Treaty Examination of the Agreement between New Zealand and the Republic of Poland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income; Finance and Expenditure Committee (presented 27 July 2005)

Report on International Treaty Examination of the International Convention against Doping in Sports; Government Administration Committee (presented 9 December 2005)

Report on International Treaty Examination of the Optional Protocol to the Convention against Torture for other Cruel, Inhuman or Degrading Treatment or Punishment; Foreign Affairs, Defence and Trade Committee (presented 9 December 2005)

Report on International Treaty Examination of the Agreement between the Kingdom of Spain and the Government of New Zealand for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income; Finance and Expenditure Committee (presented 23 February 2006)

Report on International Treaty Examination of the Protocol Amending the Agreement between the Government of New Zealand and the Government of Australia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income; Finance and Expenditure Committee (presented 23 February 2006)

Report on International Treaty Examination of the Third Protocol to the Agreement between the Government of the Republic of Singapore and the Government of New Zealand for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Income on Taxes; Finance and Expenditure Committee (presented 23 February 2006)

Report on International Treaty Examination of the New Zealand—People’s Republic of China Treaty on Mutual Legal Assistance in Criminal Matters; Law and Order Committee (presented 18 May 2006)

Report on International Treaty Examination of the Trans-Pacific Strategic Economic Partnership Agreement; Foreign Affairs, Defence and Trade Committee (presented 13 February 2006) [3 submissions, 3 heard]:

The Committee noted that one submission supported the Agreement, but voiced concerns about process and substance, and that two submissions opposed the Agreement. The areas of concern included the exclusion of creative industries, the limitation of future policy options regarding global trade and investment liberalisation, the negative list approach regarding national treatment, market access, and most favoured nation obligations, and the worsening of balance of trade with Singapore since entering into similar agreement with Singapore (New Zealand–Singapore Closer Economic Partnership Agreement (2001)). The majority of the Committee came to the view that these concerns were adequately addressed. The Green member recommended that New Zealand not enter into the Agreement.

Report on International Treaty Examination of the Amendments to the Statute of the Hague Conference on Private International Law; Foreign Affairs, Defence and Trade Committee (presented 24 March 2006):

The Committee noted that monitoring regional economic integration organisations may be necessary to prevent potential abuse by non-member states. It also noted that future amendments should be monitored as member states opposing such an amendment could be bound by it if it is supported by a substantial majority of member states.

III. Legislation Related to New Zealand’s International Obligations

This Part sets out the legislation dealt with during the current interval that concerns New Zealand’s international obligations. It is divided into two sections, the first listing the Acts that were enacted and the second listing the regulations that were made.

A. Acts of Parliament

Acts of Parliament relating to New Zealand’s international obligations are identified as: (1) Acts that simply amend legislation that has implemented treaties; (2) Acts that are aimed at improving compliance with treaties that have already been implemented; or (3) Acts implementing new treaty obligations.

1. Acts Simply Amending Legislation that Implemented Treaties

This Act amends the Civil Aviation Amendment Act 1994, which amends the Civil Aviation Act 1990. The Civil Aviation Act 1990 implements a number of conventions and protocols, including the Convention for the Unification of Certain Rules for International Carriage by Air (1999), which is a consolidation and refinement of the treaty law concerning air carrier liability, and an arrangement between New Zealand and Australia that would, once brought into force by Order in Council, enable Australian airlines to operate in New Zealand under Australian Civil Aviation Safety Authority certification and safety oversight (an equivalent measure to be enacted by the Commonwealth Parliament of Australia would enable New Zealand airlines to operate in Australia under New Zealand Civil Aviation Authority certification and safety oversight). This mutual recognition of aviation-related certification agreed by the New Zealand and Australian Governments aims to reduce regulatory barriers to aviation activity in the two countries and is based on the acceptance by each country that the other has a safety regulatory regime that delivers a level of public safety equivalent to its own. The amendments provide a more flexible order in council mechanism to allow provisions relating to the security of passengers and crew on international and domestic flights with respect to unruly passengers (which follow the recommendations of the International Civil Aviation Organization) to be brought into force independently of the arrangement.

This Act amends the Corrections Act 2004, which implements aspects of the United Nations Standard Minimum Rules for the Treatment of Prisoners (1955 amended 1977) and the Convention on the Rights of the Child (1989). The amendments augment the functions of probation officers and clarify the matters that must be included in annual reports.

This Act amends the Customs and Excise Act 1996, which implements the Customs Convention on the Temporary Importation of Private Road Vehicle (1954), the Customs Convention on Containers (1972), the Protocol of Amendment to the International Convention on the Simplification and Harmonization of Customs Procedures (1999), and standards of motor fuel testing laid down by the American Society for Testing and Materials International. The amendments are designed to facilitate the exchange of information between the New Zealand Customs Service and the Ministry of Justice to enable the Ministry to locate, and deal more effectively with, persons who are in serious default in the payment of fines.

This Act amends the Defence Act 1990, which implements the Canberra Pact (1944), the ANZUS Treaty (1951), and various arrangements stemming from Closer Defence Relations (an ongoing defence relationship between New Zealand and Australia). The amendments abolish the Nelson Rifle Prize Fund.

Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005:

This Act amends the Hazardous Substances and New Organisms Act 1996, which requires all persons exercising functions, powers, and duties under that Act to take into account New Zealand’s international obligations (s 6), and now implements the Stockholm Convention on Persistent Organic Pollutants (2001). The amendments make a number of substantial changes to the principal Act, none of which affect the requirement to take into account New Zealand’s international obligations.

This Act amends the Immigration Act 1987, which implements ILO Convention 97 (1949), the Convention relating to the Status of Refugees (1951), and the Protocol relating to the Status of Refugees (1967). The amendments are designed to facilitate the exchange of information between the Department of Labour and the Ministry of Justice to enable the Ministry to locate, and deal more effectively with, persons who are in serious default in the payment of fines.

This Act amends the Maritime Transport Act 1994, which, either directly or via regulations,^[37] implements the Convention for the Unification of Certain Rules of Law relating to Bills of Lading (1924), the Protocol to Convention for the Unification of Certain Rules of Law relating to Bills of Lading (1968), the Convention on Civil Liability for Oil Pollution Damage (1969), the Convention on Tonnage Measurement of Ships (1969), the Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969), the Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1971), the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (1972), the Convention for the Prevention of Pollution from Ships (1973), Convention for the Safety of Life at Sea (1974), the Protocol to the Convention for the Prevention of Pollution from Ships (1978), the Protocol to Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (1979), the United Nations Convention on the Law of the Sea (1982), the International Convention on Salvage (1989), the Protocol to the Convention on Civil Liability for Oil Pollution Damage (1992), the Protocol to the Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1992), and the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (1996). The amendments fine-tune provisions relating to disclosure of information, the criteria for fit and proper persons, the Maritime Registry, recovery of marine safety charges, and coastal shipping.

This Act amends the Misuse of Drugs Amendment Act 1978, which is read together with and is deemed part of the Misuse of Drugs Act 1975. The Misuse of Drugs Act 1975 implements the Single Convention on Narcotic Drugs (1961), the Convention on Psychotropic Substances (1971), the Protocol to the Single Convention on Narcotic Drugs (1972), and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988). The amendment defines Registrar for the purposes of section 43 and 46 of the Misuse of Drugs Act 1975.

This Act amends the Radiocommunications Act 1989, which implements the Convention on International Civil Aviation (1944), the Convention for the Safety of Life at Sea (1974), and the Radio Regulations annexed to the International Telecommunications Convention (1982). The amendments fine-tune the definition of co-channel emissions, the registration procedure, the provisions dealing with the failure to comply with requisitions, and the provisions regarding the evidentiary value of certified copies, and repeal sections 7, 8, and 14 of the principal Act.

This Act amends the Social Security Act 1964, which implements ILO Convention 44 (1934), ILO Convention 122 (1964), and aspects of the Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of New Zealand (1969). The amendment, which repeals section 155(1)(a) of the principal Act, does not affect these agreements.

2. Acts Improving Compliance with Treaties Already Implemented

This Act amends the Trade Marks Act 2002, which implements The Agreement on Trade-related Aspects of Intellectual Property Rights set out in Annex 1C to the World Trade Organisation Agreement (1994). The amendments make a number of technical changes and refine the provisions regarding the absolute grounds for not registering trade marks, the registrability of identical or similar trade marks, how applications are made, the withdrawal of applications, the application for registration of licensees, the cancellation of the registration of licensees, and the status of trade marks registered before the principal Act came into force.

3. Acts Implementing New Treaties

This Act amends the Continental Shelf Act 1964, which implements aspects of the United Nations Convention on the Law of the Sea (1982). The amendments redefine continental shelf and add a definition of seaward-side boundaries and, by doing so, assist in implementing the Treaty between the Government of Australia and the Government of New Zealand establishing Certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries (2004).

This Act amends the Tariff Act 1988, which implements the General Agreement on Tariffs and Trade (1947 and 1994), the Agreement between New Zealand and Singapore on Closer Economic Partnership (2001), and the New Zealand-Thailand Closer Economic Partnership Agreement (2005). The amendment implements the Trans-Pacific Strategic Partnership Agreement among Brunei Darussalam, Chile, New Zealand, and Singapore (2005).

Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Amendment Act 2005:

This Act amends the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977, which implements the Convention on the Territorial Sea and the Contiguous Zone (1958) and allows the Governor-General to limit any provision of the principal Act so far as it is necessary to give full effect to any convention that is adopted by the Third United Nations Conference on the Law of the Sea (s30). The amendments refine the provisions relating to the evidencing of low-water lines and, by doing so, assist in implementing the Treaty between the Government of Australia and the Government of New Zealand establishing Certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries (2004).

B. Regulations^[38]

This section sets out the regulations made during the current interval that relate to New Zealand’s international obligations.

These regulations are made under section 55 of the Antarctica (Environmental Protection) Act 1994. The regulations give effect to Measures 1 to 3 (2004) of the twenty-seventh Antarctic Treaty Consultative Meeting (Cape Town). The Antarctica (Environmental Protection) Act 1994 implements the Antarctic Treaty (1959), the Convention for the Conservation of Antarctic Seals (1972), the Convention on the Conservation of Antarctic Marine Living Resources (1980), and the Protocol on Environment Protection to the Antarctic Treaty (1991).

These regulations are made under section 100 of the Civil Aviation Act 1990. They replace the Civil Aviation (Offences) Regulations 1997, which prescribe the breaches of the Civil Aviation Rules that are summary offences and the breaches of those rules that are infringement offences, and prescribe the fines and infringement fees in respect of those offences. A number of these prescribed offences concern New Zealand’s international obligations under various aviation agreements.

This order is made under section 2(2) of the Continental Shelf Act 1964. It delineates the boundaries of the continental shelf of New Zealand in those areas where it overlaps with the continental shelf of Australia. The order implements provisions of the Treaty between the Government of Australia and the Government of New Zealand establishing Certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries (2004).

Customs and Excise (Rules of Origin for Trans-Pacific Strategic Economic Partnership Agreement Goods) Amendment Regulations 2006:

These regulations are made under the Customs and Excise Act 1996. They amend the Customs and Excise Regulations 1996. The amendments set out the rules to determine whether goods have been produced or manufactured in a country that is entitled to preferential tariffs under the Trans-Pacific Strategic Partnership Agreement among Brunei Darussalam, Chile, New Zealand, and Singapore (2005). The regulations apply to Singapore, and to Brunei^[39] and Chile if declared to be specified TPA parties for the purposes of the Tariff Act 1988.

This order is made under section 56 of the Customs and Excise Act 1996. The order prohibits the importation of two species of toothfish, unless it is covered by a completed catch document issued in accordance with Conservation Measure 10-05 (2005), which was adopted by the Commission for the Conservation of Antarctic Marine Living Resources in November 2005 under Article IX of the Convention on the Conservation of Antarctic Marine Living Resources (1980). The order continues the prohibition formerly in Customs Export Prohibition (Toothfish) Order 2003. The Fisheries (Toothfish Catch Documentation Scheme) Regulations 2000 also give effect to Conservation Measure 10-05.

This order is made under section 54 of the Customs and Excise Act 1996. The order prohibits the importation of two species of toothfish, unless it is covered by a completed catch document issued in accordance with Conservation Measure 10-05 (2005), which was adopted by the Commission for the Conservation of Antarctic Marine Living Resources in November 2005 under Article IX of the Convention on the Conservation of Antarctic Marine Living Resources (1980). The order continues the prohibition formerly in Customs Import Prohibition (Toothfish) Order 2003. The Fisheries (Toothfish Catch Documentation Scheme) Regulations 2000 also give effect to Conservation Measure 10-05.

This order is made under section BH 1 of the Income Tax Act 2004, which provides for the making of orders that give effect to certain taxation agreements. It amends the Double Taxation (Australia) Order 1995. The order implements changes made to the Agreement between the Government of New Zealand and the Government of Australia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (1995) by the Protocol to the Agreement (2005).

This order is made under section BH 1 of the Income Tax Act 2004, which provides for the making of orders that give effect to certain taxation agreements. The order gives effect to the Agreement between New Zealand and the Republic of Poland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (2005).

This order is made under section BH 1 of the Income Tax Act 2004, which provides for the making of orders that give effect to certain taxation agreements. It amends the Double Taxation (Singapore) Order 1973. The order implements changes made to the Agreement between the Government of New Zealand and the Government of Singapore for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (1973) by the Third Protocol to the Agreement (2005).

This order is made under section BH 1 of the Income Tax Act 2004, which provides for the making of orders that give effect to certain taxation agreements. The order gives effect to the Agreement between the Government of New Zealand and the Kingdom of Spain for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (2005).

These regulations are made under section 36(1) of the Energy Efficiency and Conservation Act 2000. They amend the Energy Efficiency (Energy Using Products) Regulations 2002 to give effect to new Australian/New Zealand joint standards regarding certain energy using products.

These regulations are made under section 92 of the Fire Service Act 1975. They provide that a substance is infectious if it falls within the definition of Risk Group 3 as defined in Australian/New Zealand Standard 2243.3:2002—Safety in laboratories—Microbiological aspects and containment facilities. They provide that a substance is ionizing radioactive material if it is a Category 1, 2, or 3 radionuclide as listed in Table 2 of Appendix 1 of the International Atomic Energy Agency Safety Standard Series No RS-G-1.9—Categorization of Radioactive Sources (as at 1 October 2006).

These regulations are made under section 297(1)(o) of the Fisheries Act 1996, which provides for the making of regulations to give effect to any international agreement to which New Zealand is a signatory or a party (ostensibly with respect to fisheries). They amend the Fisheries (Toothfish Catch Documentation Scheme) Regulations 2000, which give effect to the Conservation Measure 170/XVIII adopted by the Commission for the Conservation of Antarctic Marine Living Resources, in accordance with Article IX of the Convention on the Conservation of Antarctic Marine Living Resources (1980). The amendments reflect that the Ministry of Fisheries has taken over the administration of the toothfish catch documentation scheme from the Ministry of Foreign Affairs and Trade.

These regulations are made under section 394 of the Maritime Transport Act 1994. They amend the Marine Protection (Offences) Regulations 1998, which prescribe the breaches of the Marine Protection Rules that are summary offences and the breaches of those rules that are infringement offences, and prescribe the fines and infringement fees in respect of those offences. A number of these prescribed offences concern New Zealand’s international obligations under various marine and maritime agreements. The amendments prescribe fines and infringement fees for breaches of Part 190 of the Rules, which prohibits certain ships from entering the Poor Knights area and the Three Kings area.

These regulations are made under section 37 of the Misuse of Drugs Act 1975. They amend the Misuse of Drugs Regulations 1977 to provide that a licence may not be issued in relation to industrial hemp except in relation to the import and export of industrial hemp. The Misuse of Drugs Act 1975 implements the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), the Single Convention on Narcotic Drugs (1961), the Protocol to the Single Convention on Narcotic Drugs (1972), and the Convention on Psychotropic Substances (1971).

These regulations are made under section 37 of the Misuse of Drugs Act 1975. They amend the Misuse of Drugs Regulations 1977 to set out the controlled drugs that designated prescriber nurses may prescribe in certain circumstances. The Misuse of Drugs Act 1975 implements the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), the Single Convention on Narcotic Drugs (1961), the Protocol to the Single Convention on Narcotic Drugs (1972), and the Convention on Psychotropic Substances (1971).

These regulations are made under section 37 of the Misuse of Drugs Act 1975. They establish a licensing system for the cultivation, processing, and distribution of industrial hemp as an agricultural crop. The Misuse of Drugs Act 1975 implements the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), the Single Convention on Narcotic Drugs (1961), the Protocol to the Single Convention on Narcotic Drugs (1972), and the Convention on Psychotropic Substances (1971).

These regulations are made under section 29 of the Fair Trading Act 1986. They amend the Product Safety Standards (Baby Walkers) Regulation 2001 to give effect to the revised American Safety Standard—Standard Consumer Safety Specifications for Infant Walkers (ASTAM F977‑03).

Product Safety Standards (Children’s Nightwear and Limited Daywear Having Reduced Fire Hazard) Regulations 2005:

These regulations are made under section 29 of the Fair Trading Act 1986. They give effect to variations of the Australian Standard AS 1182-1997—Size coding scheme for infants’ and children’s clothing—Underwear and outerwear, the Australian/New Zealand Standard 1249:2003—Children’s nightwear and limited daywear having reduced fire hazard, and International Organization for Standardization Standard 6941:1984 as amended by Amendment 1:1992(E).

These regulations are made under section 29 of the Fair Trading Act 1986. They give effect to variations of the Australian/New Zealand Standard ISO 8124.1:2002—Safety of toys—Part 1: Safety aspects related to mechanical and physical properties.

These regulations are made under section 29 of the Fair Trading Act 1986. They give effect to variations of the Australian/New Zealand Standard 2172:2003—Costs for household use—Safety requirements.

Resource Management (National Environmental Standards Relating to Certain Air Pollutants, Dioxins, and Other Toxics) Amendment Regulations 2005:

These regulations are made under section 43 of the Resource Management Act 1991. They amend the Resource Management (National Environmental Standards Relating to Certain Air Pollutants, Dioxins, and Other Toxics) Regulations 2004, whose purpose is to provide a guaranteed level of protection to people in New Zealand from certain contaminants in the air. The amendments refine various prohibitions and controls regarding activities that discharge certain contaminants, which give effect to various Australian standards, Australian/New Zealand joint standards, and United States federal regulations, and parts of the Convention of the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989).

This order is made under section 9 of the Tariff Act 1988. The order amends the Tariff to implement New Zealand’s commitments on tariff reduction and removal made under the New Zealand-Thailand Closer Economic Partnership Agreement (2005). The Tariff Act 1988 implements the General Agreement on Tariffs and Trade (1994).

This order is made under section 9 of the Tariff Act 1988. The order amends the Tariff to simplify the recording of goods that the New Zealand Agency for International Development and the Ministry of Foreign Affairs and Trade export for emergency disaster relief. The Tariff Act 1988 implements the General Agreement on Tariffs and Trade (1994).

This order is made under section 7(5) of the Tariff Act 1988. The order gives Brunei Darussalam the status of a specified TPA party for the purposes of the Tariff Act 1988, which implements the General Agreement on Tariffs and Trade (1994), in accordance with the Trans-Pacific Strategic Partnership Agreement among Brunei Darussalam, Chile, New Zealand, and Singapore (2005).

This order is made under section 9 of the Tariff Act 1988. The order amends the Tariff to provide a new concession item that relates to goods that are re-entered after repair or alteration in the territory of Singapore or a specified TPA party in accordance with article 3.5 of the Trans-Pacific Strategic Partnership Agreement among Brunei Darussalam, Chile, New Zealand, and Singapore (2005).

Tariff (Less Developed Countries and Least Developed Countries) Amendment Order 2005:

This order is made under section 7 of the Tariff Act 1988. The order amends the Tariff (Less Developed Countries and Least Developed Countries) Order 2005 to provide that the Cayman Islands ceases to be a less developed country for the purposes of the Tariff Act 1998, which implements the General Agreement on Tariffs and Trade (1994).

Territorial Sea, Contiguous Zone, and Exclusive Economic Zone (Australia) Order 2005:

This order is made under section 9(4) of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977. It delineates the boundaries of the exclusive economic zones of New Zealand and Australia in those areas where the exclusive economic zones of the two countries would otherwise overlap. The order implements provisions of the Treaty between the Government of New Zealand and the Government of Australia Establishing Certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries (2004).

These regulations are made under section 82 of the Trans-Tasman Mutual Recognition Act 1997. The Act implements the Trans-Tasman Mutual Recognition Arrangement (1996) signed by Australia, each Australian State and Territory, and New Zealand. The order extends, for 12 months, the exemptions of certain laws from the Trans-Tasman Mutual Recognition Act 1997.

These regulations are made under section 2 of the United Nations Act 1946, which provides that regulations may be made to give effect to any decisions of the Security Council of the United Nations made under article 41 of the Charter of the United Nations (1945). These regulations give effect to resolution 1572 (2004) of the Security Council.

Part 11 of the Land Transport Act 1998 provides for the making of rules with respect to various aspects of land transport. Many of these rules incorporate international standards. The following such rule was made during the current interval:

The rule is based, in part, on the following international and overseas standards: Australian Design Rule 30/01, Australian Design Rule 79/00, Australian Design Rule 79/01, Australian Design Rule 80/00, Australian Design Rule 80/01, Japan Safety Regulations for Road Vehicles, Article 31 – Emission Control Device (as revised by Japanese Ministry of Transport Ordinance 22 issued on 31 March 1997), Japan Safety Regulations for Road Vehicles, Article 31 – Emission Control Device (as revised by Japanese Ministry of Transport Ordinance 65 issued on 30 September 1998), Japan Safety Regulations for Road Vehicles, Article 31 – Emission Control Device (as revised by Japanese Ministry of Transport Ordinance 31 issued on 5 September 2000), Title 13 of the California Code of Regulations in force in California on 31 December 2004, European Council Directive 70/220/EEC (as amended by European Council Directive 98/69/EC), European Council Directive 88/77/EEC (as amended by European Council Directive 1999/96/EC), European Council Directive 72/306/EEC (as amended by Council Directive 97/20/EC), UN/ECE Regulation No. 24, UN/ECE Regulation No. 49, UN/ECE Regulation No. 83, and US Federal Regulation 40 CFR Part 86.

IV. Judicial Decisions Related to New Zealand’s International Obligations

This Part sets out the reported and unreported judicial decisions rendered during the current interval that concern New Zealand’s international obligations. It divides the reported cases into those cases reported in the New Zealand Law Reports (NZLR) series in which international obligations were determinative, those cases reported in the NZLR series in which international obligations were cited but not determinative, and those cases reported in other series. It also identifies the international agreements that were referenced and sets out the distribution of these references among the various courts.

A. Reported Cases

1. NZLR Cases in which International Obligations Were Determinative

Mist v R [2005] NZSC 77; [2006] 3 NZLR 145 (Supreme Court, Chief Justice Elias and Justices Gault, Keith, Blanchard, and Tipping), criminal procedure case that cites the International Covenant on Civil and Political Rights (1966) and the European Convention on Human Rights (1950):^[42]

The defendant committed a number of offences before turning 21, but was convicted and sentenced for them after turning 21. A higher penalty attached to offenders over 21. The Crown asked for the higher penalty, but the High Court held that it was not available due to the defendant’s age at the time of the offences. The Court of Appeal allowed the Crown’s appeal. The Supreme Court reversed the Court of Appeal on the grounds that the relevant legislation^[43] could and should be read consistently with Article 15(1) of the International Covenant on Civil and Political Rights (1966), which provides that a penalty heavier than the one available at the time of the offence may not be imposed.^[44]

2. NZLR Cases in which International Obligations Were Cited but Not Determinative

R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 (Court of Appeal, President Anderson and Justices McGrath, Glazebrook, and Hammond), criminal procedure case that cites the European Convention on Human Rights (1950).^[45]

General Distributors Ltd v Casata Ltd [2006] NZSC 8; [2006] 2 NZLR 721 (Supreme Court, Chief Justice Elias and Justices Keith, Blanchard, Tipping, and McGrath), civil procedure case that cites the Model Law on International Commercial Arbitration (1985).

Attorney-General v Taunoa [2005] NZCA 312; [2006] 2 NZLR 457 (Court of Appeal, Justices O’Regan, Anderson, Glazebrook, Hammond, and Young), criminal procedure case that cites the International Covenant on Civil and Political Rights (1966), the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984), and the European Convention on Human Rights (1950).^[46]

R v Cumming [2005] NZCA 260; [2006] 2 NZLR 597 (Court of Appeal, Justice McGrath, Hammond, and O’Regan), criminal procedure case that cites the International Covenant on Civil and Political Rights (1966) and the European Convention on Human Rights (1950).^[47]

Right To Life New Zealand Inc v Rothwell [2005] NZHC 487; [2006] 1 NZLR 531 (High Court Wellington, Judge Wild), civil procedure case that cites the United Nations Declaration of the Rights of the Child (1959) and the European Convention on Human Rights (1950).^[48]

R v Te Kahu [or R v Hatley or R v Tamati] [2005] NZCA 438; [2006] 1 NZLR 459 (Court of Appeal, Justices Young, Chambers, and O’Regan), criminal procedure case that cites the International Covenant on Civil and Political Rights (1966).

3. Cases Reported in Other Series that Reference International Obligations

P v Secretary for Justice (2006) 25 Family Reports of New Zealand 327 (Court of Appeal, President Anderson, and Justices Glazebrook, Young, O’Regan, and Robertson), custody case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

C v S [2006] New Zealand Family Law Reports 745; (2006) 25 Family Reports of New Zealand 123 (High Court Napier, Judge Randerson), custody case that cites the Convention on the Rights of the Child (1989).

Brown v Argyll [2006] New Zealand Family Law Reports 705; (2006) 25 Family Reports of New Zealand 383 (High Court Rotorua, Judge Priestley), custody case that cites the Convention on the Rights of the Child (1989).

Accs v Avmb [2006] New Zealand Family Law Reports 986 (High Court Christchurch, Judge Panckhurst), custody case that cites the Convention on the Rights of the Child (1989).

Legal Services Agency v Hosseini (2006) 17 Procedure Reports of New Zealand 932 (High Court Auckland, Judge Priestly), civil procedure case that cites the Convention relating to the Status of Refugees (1951).

T v Police [or Trifilo v Police] [2006] District Court Reports 796 (High Court Auckland, Judge S France), criminal procedure case that cites the Convention on the Rights of the Child (1989).

S v Chief Executive of Department of Labour [2006] New Zealand Administrative Reports 234 (High Court Auckland, Judge Keane), immigration case that cites the Convention relating to the Status of Refugees (1951).

Attorney-General v Vaihu [2006] New Zealand Administrative Reports 276 (High Court Auckland, Judge E France), tort case that cites the International Covenant on Civil and Political Rights (1966) and the European Convention on Human Rights (1950).^[49]

Child Youth and Family Services v Television New Zealand Ltd [2006] New Zealand Family Law Reports 241; [2006] New Zealand Administrative Reports 328; (2005) 24 Family Reports of New Zealand 857 (High Court Rotorua, Judge Winkelmann), civil procedure case that cites the Convention on the Rights of the Child (1989).

Secretary for Justice v P [2006] New Zealand Family Law Reports 255; (2005) 25 Family Reports of New Zealand 297 (High Court Wellington, Judge Goddard), custody case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

Aivazov v Refugee Status Appeals Authority [2005] New Zealand Administrative Reports 740 (High Court Auckland, Judge Venning), immigration case that cites the Convention relating to the Status of Refugees (1951).

Yachting New Zealand Inc v Birkenfeld [2005] New Zealand Administrative Reports 727 (High Court Auckland, Judge Keane), civil procedure case that cites the Convention on Limitation of Liability for Maritime Claims (1976).

Television New Zealand v R (High Court Auckland, CRI-2005-092-14652, 30 June 2006, Judge Winkelmann); noted: [2006] Butterworths Current Law 652, criminal procedure case that cites the International Covenant on Civil and Political Rights (1966), the Convention on the Rights of the Child (1989), and the United Nations Minimum Rules for the Administration of Juvenile Justice (1985).

B v G (High Court Wellington, CIV-2005-485-1819, 30 June 2006, Judge Miller), civil procedure case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

O v J (High Court Whangarei, CIV-2006-488-90, 29 June 2006, Judge Lang), custody case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

Hobson v Attorney-General (Court of Appeal, CA74/05, CA238/05, 17 May 2006, Justices Young, Hammond, and Chambers); noted: [2006] Butterworths Current Law 506; 29 The Capital Letter 22/5, civil procedure case that cites the European Convention on Human Rights (1950).^[50]

A v Hunt (High Court Wellington, CIV-2003-485-2553, 17 May 2006, Judge Wild); noted: [2006] Butterworths Current Law 435; 29 The Capital Letter 24/2, civil procedure case that cites the European Convention on Human Rights (1950).^[51]

Fms v Jgs (Family Court North Shore, FAM-2000-044-1193, 1 May 2006, Judge Walker), custody case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

R v O (High Court Hamilton, CRI-2004-019-3992, 28 April 2006, Judge Heath); noted: 29 The Capital Letter 21/4, criminal procedure case that cites the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988).

Lalli v Attorney-General (High Court Auckland, CIV-2006-404-435, 27 April 2006, Judge Asher); noted: 29 The Capital Letter 21/6, immigration case that cites the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social, and Cultural Rights (1978).

Fenwick v Trustees of Nga Kaihautu O Te Arawa Executive Council (High Court Rotorua, CIV-2004-463-847, 13 April 2006, Judge Allan); noted: 29 The Capital Letter 20/7, civil procedure that cites the International Covenant on Civil and Political Rights (1966).

Secretary for Justice v Sb (High Court Christchurch, AP1/05, 12 April 2006, Judge Panckhurst); noted: [2006] Butterworths Current Law 374; 29 The Capital Letter 19/2, custody case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

Hj v Secretary for Justice (Court of Appeal, CA140/04, 11 April 2006, Justices Young, Glazebrook, and Panckhurst); noted: [2006] New Zealand Law Journal 222; 29 The Capital Letter 15/2, custody case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

Brantov v Removal Review Authority (Court of Appeal, CA225/05, 23 February 2006, Justice Anderson, Hammond, and France), civil procedure case that cites the Convention relating to the Status of Stateless Persons (1954).

Carter Holt Harvey Ltd v Genesis Power Ltd (No 2) (High Court Auckland, CIV-2001-404-1974, 22 February 2006, Judge Randerson); noted: [2006] New Zealand Law Review 303, civil procedure case that cites the Model Law on International Commercial Arbitration (1985).

Ms v Cas (Family Court Hastings, FAM-202-432-97, 15 February 2006, Judge von Dadelzen), custody case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

Chief Executive of the Department of Labour v Taito (Court of Appeal, CA225/04, CA54/05, 8 February 2006, Justices Young, Chambers, and Panckhurst); noted: [2006] Butterworths Current Law 300; 29 The Capital Letter 6/2; (2006) New Zealand Universities Law Review 50, immigration case that cites the International Covenant on Civil and Political Rights (1966) and the European Convention on Human Rights (1950).^[52]

Legal Services Agency v Clark (High Court Wellington, CIV-2005-404-4126, 2 February 2006, Judge Miller), civil procedure case that cites the Vienna Convention on the Law of Treaties (1980).

Akatere v Attorney-General (High Court Auckland, CIV-2004-404-6217, 23 December 2005, Judge Keane); noted: [2006] Butterworths Current Law 186, criminal procedure case that cites the International Covenant on Civil and Political Rights (1966) and the Vienna Convention on the Law of Treaties (1980).

Mas v Pd (Family Court Whangarei, FAM-2004-088-1129, 23 December 2005, Judge Druce), civil procedure case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

Palmer v Manager of Auckland Prison (High Court Auckland, CIV-2005-404-7225, 21 December 2005, Judge Venning); noted: 29 The Capital Letter 8/3, criminal procedure case that cites the International Covenant on Civil and Political Rights (1966).

Winchester International (NZ) Ltd v Cropmark Seeds Ltd (Court of Appeal, CA226/04, 5 December 2005, Judges Anderson, Glazebrook, and Baragwanath); noted: [2006] Butterworths Current Law 185; 28 The Capital Letter 48/6; [2006] New Zealand Law Journal 268, intellectual property case that cites the Convention for the Protection of New Varieties of Plants (1961).

G v Chief Executive Officer of the Department of Child Youth and Family Services (No 2) (High Court Auckland, CIV-2005-404-424, 24 November 2005, Judge Harrision), custody case that cites the Convention on the Rights of the Child (1989).

T v J (High Court Wellington, CIV-2005-485-559, 10 November 2005, Judge MacKenzie); noted: [2005] Butterworths Current Law 1052; 29 The Capital Letter 4/2, custody case that cites the Convention on the Rights of the Child (1989).

Burns v Police (High Court Wellington, CRI-2005-485-125, 25 October 2005, Judge MacKenzie); noted: [2005] Butterworths Current Law 1034, criminal procedure case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

Phillpott v Chief Executive of the Department of Labour (High Court Wellington, CIV-2005-485-713, 21 October 2005, Judge Young); noted: [2005] Butterworths Current Law 1026; 28 The Capital Letter 45/4, immigration case that cites the International Covenant on Civil and Political Rights (1966).

M v Refugee Status Appeals Authority (High Court Auckland, CIV-2004-404-6740, 20 October 2005, Judge Courtney), immigration case that cites the Convention relating to the Status of Refugees (1951) and the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Geneva, 1992).

Bph v Attorney-General (High Court Wellington, CIV-2005-485-1218, 20 October 2005, Judge Young), custody case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

Am v Refugee Status Appeals Authority (High Court Auckland, CIV-2004-404-6586, 20 October 2005, Judge Courtney), immigration case that cites the Convention relating to the Status of Refugees (1951) and the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Geneva, 1992).

A v Chief Executive of the Department of Labour (High Court Auckland, CIV-2004-404-6314, 19 October 2005, Judge Winkelmann); noted: [2005] Butterworths Current Law 371; 29 The Capital Letter 20/5, immigration case that cites the Convention relating to the Status of Refugees (1951).

Huang v Minister of Immigration (High Court Auckland, CIV-2005-404-5202, 22 September 2005, Judge Venning), immigration case that cites the Convention relating to the Status of Refugees (1951), the European Convention on Human Rights (1950),^[53] the Convention on the Rights of the Child (1989), and the International Covenant on Civil and Political Rights (1966).

C v B (Family Court Auckland, FAM-2005-070-100, 10 August 2005, Judge Neal), custody case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

Wg v Wr (Family Court Christchurch, FAM-2005-9-1842, 1 August 2005, Judge Somerville), custody case that cites the Hague Convention on the Civil Aspects of International Child Abduction (1980).

Willowford Family Trust v Christchurch City Council (High Court Christchurch, CIV-2004-409-2299, 29 July 2005, Judge Panckhurst); noted: [2005] Butterworths Current Law 704; 28 The Capital Letter 29/1, freedom of association case that cites the International Covenant on Economic, Social, and Cultural Rights (1978).

Kivalu v Accident Compensation Corporation (High Court Auckland, CRI-2005-404-73, 14 July 2005, Judge S France), criminal procedure case that cites the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social, and Cultural Rights (1978).

C. Distribution of References to International Agreements Among Various Courts, NZLR Cases, Other Reported Cases, and Unreported Cases

International obligations	NZLR	Other	Unrep	All	Total
International Covenant on Civil and Political Rights (1966)	SC: 1 CA: 3	HC: 1	CA: 1 HC: 8	SC: 1 CA: 4 HC: 9	14
Hague Convention on the Civil Aspects of International Child Abduction (1980)		CA: 1 HC: 1	CA: 1 HC: 5 FC: 5	CA: 2 HC: 6 FC: 5	13
European Convention on Human Rights (1950) (New Zealand is not a party to this Convention)	SC: 1 CA: 3 HC: 1	HC: 1	CA: 2 HC: 2	SC: 1 CA: 5 HC: 4	10
Convention on the Rights of the Child (1989)		HC: 5	HC: 4	HC: 9	9
Convention relating to the Status of Refugees (1951)		HC: 3	HC: 4	HC: 7	7
International Covenant on Economic, Social, and Cultural Rights (1966)			HC: 3	HC: 3	3
Model Law on International Commercial Arbitration (1985)	SC: 1		HC: 1	SC: 1 HC: 1	2
Vienna Convention on the Law of Treaties (1980)			HC: 2	HC: 2	2
Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol (Geneva, 1992)			HC: 2	HC: 2	2
Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984)	CA: 1			CA: 1	1
United Nations Declaration of the Rights of the Child (1959)	HC: 1			HC: 1	1
Convention on Limitation of Liability for Maritime Claims (1976)		HC: 1		HC: 1	1
United Nations Minimum Rules for the Administration of Juvenile Justice			HC: 1	HC: 1	1
United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)			HC: 1	HC: 1	1
Convention relating to the Status of Stateless Persons (1954)			CA: 1	CA: 1	1
Convention for the Protection of New Varieties of Plants (1961)			CA: 1	CA: 1	1
Universal Declaration of Human Rights (1948)			HC: 1	HC: 1	1
Subtotals	SC: 3 CA: 7 HC: 2	CA: 1 HC: 12	CA: 6 HC: 34 FC: 5	SC: 3 CA: 14 HC: 48 FC: 5
Grand Totals	12	13	45	70	70

Key: SC = Supreme Court, CA = Court of Appeal, HC = High Court, FC = Family Court

^[*] The author is currently serving as Parliamentary Counsel in New Zealand’s Parliamentary Counsel Office. However, the views expressed herein are the author’s own and may not be attributed to the Parliamentary Counsel Office or the Attorney General.

^[6] A reason for the decrease may be the results of the 2005 election, which appear to have fostered a greater level of discussion among the parties with a presence in the House of Representatives.

^[7] Parliament enacts public Acts, local Acts, and private Acts. Public Acts are enacted Government bills or Members’ bills. A Government bill is a bill dealing with a matter of public policy and is introduced by a Minister. A Member’s bill is a bill dealing with a matter of public policy and is introduced by a member who is not a Minister. A local Act is an enacted local bill, which is promoted by a local authority and is confined in its effects to a particular locality. A private Act is an enacted private bill, which is promoted by a person or body of persons for the particular interest of that person or body of persons. Local and private bills may be introduced by any member, Minister or non-Minister. See David McGee, Parliamentary Practice in New Zealand (Dunmore Publishing, 3^rd ed, 2005) 305-312.

^[8] For a record of the number of Acts enacted during the years ending 30 June 2004, 2005 and 2006, see Parliamentary Counsel Officer, ‘Report of the Parliamentary Counsel Office for the year ended 30 June 2006’, online: <http://www.pco.parliament.govt.nz/ corporatefile/annualreport/2006/2006report.shtml> (last accessed on 9 February 2007) 67. For a discussion of the Acts with implications for New Zealand’s international obligations enacted during the years ending 30 June 2004 and 2005, see Gobbi, above n 5, 221-222 and 236-247; Mark Gobbi, ‘Treaty Action and Implementation’ [2005] NZYbkIntLaw 14; (2005) 2 New Zealand Yearbook of International Law 357, 370-380.

^[11] The overview of the previous interval noted 13 select committee reports (12 treaties in all): Gobbi, above n 5, 222. An additional pro forma report (regarding one treaty) belonging to the previous interval has since come to light, namely the Report on International Treaty Examination of the Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region: Primary Production Committee (presented 24 June 2005). For the purposes of comparison in this section, the figures taken from the previous interval were adjusted to take this into account.

^[13] For a discussion of the factors that led to these reforms, see generally Parliament of the Commonwealth of Australia, Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Parl Paper no 474/95 (1995). For indications of the influence of these reforms in New Zealand, see New Zealand Law Commission, The Treaty Making Process: Reform and the Role of Parliament, Report 45 (Law Commission, 1997) 63-64, 72 and 84-96; Clerk of the House of Representatives, Treaties and the House of Representatives (paper prepared for the Standing Orders Committee, June 1996) in Report of the Standing Orders Committee on the Review of the Operation of the Standing Orders (1994-1996) Appendix to the Journal of the House of Representatives, I.18B, Annex D.

^[14] For a copy of this paper, see Report of the Foreign Affairs, Defence and Trade Committee, Treaty Scrutiny: A Ten-Year Review: Joint Standing Committee on Treaties, Commonwealth of Australia, I.4B (May 2006) Appendix C. For articles discussing New Zealand’s treaty-making process, see Mark Gobbi, ‘Treaty Action and Implementation’ [2004] NZYbkIntLaw 15; (2004) 1 New Zealand Yearbook of International Law 223, 314 n 9, 317 n 29.

^[15] Mark Gobbi, ‘Enhancing Public Participation in the Treaty-Making Process: An Assessment of New Zealand’s Constitutional Response’ (1998) 6 Tulane Journal of International Law 57, 107.

^[16] See Report of the Foreign Affairs, Defence and Trade Committee, Review of the International Treaty Examination Process, Appendix to the Journal of the House of Representatives, I.4E (1999) 11.

^[17] See Gobbi, above n 14, 242-246. For recent refinements to New Zealand’s treaty-making process, see Gobbi, above n 5, 222-225; Gobbi, above n 8, 358-360; see also Report of the Foreign Affairs, Defence and Trade Committee, ibid 7-8 (setting out recommendations to the House of Representatives, the Standing Orders Committee, and the Government regarding the treaty-making process).

^[18] See Report of the Foreign Affairs, Defence and Trade Committee, above n 14, Appendix C, 13-18.

^[19] See e.g., New Zealand Ministry of Foreign Affairs and Trade, ‘International Treaties List as at July 2006’, online: <http://www.mfat.govt.nz/Treaties-and-International-Law/Treaty-making-process/International-Treaties-List/index.php> (last accessed on 2 February 2007); New Zealand Ministry of Foreign Affairs and Trade, ‘International Treaties List: A List of Treaties New Zealand is Currently Involved in Negotiating, Concluding, Ratifying or Amending’ (January 2006). The six monthly international treaty lists supplement the New Zealand Consolidated Treaty List as at 31 December 1996, Part I (Multilateral Treaties), New Zealand Treaty Series 1997, No 1, Appendix to the Journal of the House of Representatives, A.263 (1997) and the New Zealand Consolidated Treaty List as at 31 December 1996, Part II (Bilateral Treaties), New Zealand Treaty Series 1997, No 2, Appendix to the Journal of the House of Representatives, A.265 (1997).

^[20] As a general rule, legislation implementing a treaty is enacted before the Executive enters into the treaty; however, it is not brought into force until the Executive has entered into the treaty, which is why legislation implementing a treaty usually has a commencement clause that provides that the legislation comes into force on a date appointed by the Governor-General by Order in Council. See e.g., Protected Objects Amendment Act 2006 (NZ) s 2(1).

^[21] Report of the Foreign Affairs, Defence and Trade Committee, above n 14, Appendix C, 18.

^[24] The overview of the previous interval noted 23 regulations. See Gobbi, above n 5, 225 and 247-255. An additional regulation that falls into the previous period has come to light, namely Land Transport Rule: Dangerous Goods 2005 (rule 45001/1) (NZ), which came into force on 27 June 2005. The rule replaces the 1999 version of the rule and draws on the following international documents: The United Nations Transport of Dangerous Goods Sub-Committee, United Nations Recommendations on the Transport of Dangerous Goods - UN Model Regulations; International Maritime Organization, International Maritime Dangerous Goods Code (2002); International Civil Aviation Organisation, Technical Instructions for the Safe Transport of Dangerous Goods by Air, Doc 9284; International Air Transport Association, Dangerous Goods Regulations. For the purposes of comparison, the figures taken from the previous interval were adjusted to take this rule into account.

^[26] For a discussion of New Zealand’s periodic reporting obligations to the United Nations, see Gobbi, above n 14, 226-227.

^[28] See UN Committee on the Elimination of Racial Discrimination, Reports Submitted by States Parties under article 9 of the Convention, ‘Seventeenth periodic reports of States parties due in 2005: Addendum: New Zealand, CERD/C/NZL/17’ (18 July 2006), online: <http://www.ohchr.org/english/bodies/cerd/cerds71.htm> (last accessed on 2 February 2007).

^[31] Seven of the unreported cases covered by the overview of the previous interval have since been reported. The citations for these cases are as follows: Naysmith v Accident Compensation Corporation [2005] NZHC 1206; [2006] 1 NZLR 40 (International Covenant on Civil and Political Rights 1966 and European Convention on Human Rights 1950, neither determinative); Wright v Attorney-General [2006] NZAR 66 (Universal Declaration of Human Rights 1948 and International Covenant on Civil and Political Rights 1966); R v Olamoe [2005] 3 NZLR 80 (European Convention on Human Rights 1950, not determinative); Murrow v Hunter [or M v H] [2005] NZHC 1316; [2006] NZFLR 623, (2005) 25 FRNZ 113 (Hague Convention on the Civil Aspects of International Child Abduction 1980); Sk v Kp [2005] NZCA 443; [2005] 3 NZLR 590 (Hague Convention on the Civil Aspects of International Child Abduction 1980 and Vienna Convention on the Law of Treaties 1969, determinative: section 12(1)(d) of the Guardianship Amendment Act 1991 interpreted consistently with the Hague Convention); X v Police [2005] NZHC 1256; (2005) 22 CRNZ 58 (Convention on the Rights of the Child 1989); Guan v McGuire [or G v M] [2005] NZHC 1272; [2005] NZFLR 976, (2005) 24 FRNZ 754 (Convention on the Rights of the Child 1989). The figures taken from the previous interval were not adjusted to take these reporting changes into account.

^[34] New Zealand Ministry of Foreign Affairs and Trade, Annual Report 2005/06, A.1 (2006) 21-25.

^[35] This Act was originally introduced as Part 2 of the Courts and Criminal Matters Bill 2003 (NZ).

^[36] This Act was originally introduced as Part 4 of the Courts and Criminal Matters Bill 2003 (NZ).

^[37] See e.g., Maritime Transport (Marine Protection Conventions) Order 1999 (NZ).

^[38] This list of regulations does not include commencement orders for Acts that implement international obligations, for example: Civil Aviation Amendment Act 2004 Commencement Order 2006 (brings sections 29(1) and 31 of the Civil Aviation Amendment Act 2004 into force, which amend sections 66(5) and 72B(2) of the Civil Aviation Act 1990; the amendment to section 72B(2) deals with technical and operational arrangements between the Civil Aviation Authority of New Zealand and civil aviation authorities of other countries), Crimes Amendment Act Commencement Order 2006 (inserts section 98AA into the Crimes Act 1961, which creates offences for dealing in people under 18 for the purposes of sexual exploitation, the removal of body parts, or engagement in forced labour; amends section 144A of the Crimes Act 1961 to create offences relating to sexual conduct with children outside New Zealand so as to include offences relating to the breach of prohibitions on the use in prostitution of people under 18; the amendments facilitate compliance with the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography 2000 by creating new offences prohibiting dealing in children for the purpose of sexual exploitation, the removal of body parts, and engagement in forced labour; the offence provisions may apply to actions taken outside New Zealand if the offender has some connection with New Zealand, the offence occurred on a New Zealand ship or aircraft, or the victim is a New Zealand citizen or resident (the amendments to the Extradition Act 1999 deem these offences as being included in extradition treaties)), the Misuse of Drugs (Changes to Controlled Drugs) Order Commencement Order 2005, and the Misuse of Drugs (Presumption of Supply—Amphetamine) Order Commencement Order 2005.

^[39] Brunei Darussalam is a specified TPA party. See Tariff (Brunei Darussalam) Order 2006 (NZ).

^[40] This order would have expired on the close of 31 December 2006 if not expressly confirmed by Parliament, which it did in section 9(c) of the Subordinate Legislation (Confirmation and Validation) Act 2006 (NZ). See Customs and Excise Act 1996 (NZ) s 56(5)(a). The confirmed order expires on the close of 10 May 2009 unless revoked earlier or extended for a further period of three years: Customs and Excise Act 1996 (NZ) s 57.

^[41] This order would have expired on the close of 31 December 2006 if not expressly confirmed by Parliament, which it did in section 9(d) of the Subordinate Legislation (Confirmation and Validation) Act 2006 (NZ). See Customs and Excise Act 1996 (NZ) s 54(5)(a). The confirmed order expires on the close of 10 May 2009 unless revoked earlier or extended for a further period of three years: Customs and Excise Act 1996 (NZ) s 55.

^[43] The following legislation was at issue in Mist: sections 4(1) and 75 of the Criminal Justice Act 1985 (NZ) (both sections were subsequently repealed), section 25(g) of the New Zealand Bill of Rights Act 1990 (NZ), and section 6 of the Sentencing Act 2002 (NZ).

^[44] For a discussion of the use of New Zealand’s international obligations to determine the application of legislation to arguable violations of human rights when it is silent as to the specific facts before the court, see Simpson v Attorney-General [Baigent’s Case] [1994] NZCA 287; [1994] 3 NZLR 667 (Court of Appeal, President Cooke and Justices Casey, Hardie-Boys, Gault and McKay) (dealing with absence of legislative provision regarding compensation for violation of certain human rights). For a discussion of the use of New Zealand’s international obligations to determine the application of legislation to arguable violations of human rights when it expressly addresses the facts before the court, see R v Pora [2000] NZCA 403; [2001] 2 NZLR 37 (Court of Appeal, Chief Justice Elias and Justices Richardson, Gault, Thomas, Keith, Tipping and McGrath) (dealing with legislative provision regarding retrospective application of criminal penalties).

New Zealand Yearbook of International Law