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Wilson, Margaret; Wright, Fran --- "Book Reviews" [1998] WkoLawRw 7; (1998) 6 Waikato Law Review 141

BOOK REVIEWS

THE TREATY MAKING PROCESS: REFORM AND THE ROLE OF PARLIAMENT, Law Commission, Report 45. Wellington, 1997, ix and 138 pp.

This Report is part of the Law Commission’s International Obligations Project which aims to improve the awareness of international law in New Zealand, including New Zealand’s international rights and obligations and the means by which these are created. It follows on from the earlier Commission Report, A New Zealand Guide to International Law and its Sources (NZLC R34 1996). The Report describes the then current treaty making process, with an emphasis on the role of Parliament. It also contains two interesting Appendices on overseas practice and experience of treaty making and implementation, internet websites relevant to treaties, and treaty making. As a resource for those working in the area, these Appendices are invaluable.

The argument of the Report focuses on the need for a greater involvement by Parliament in the whole process of treaty making. The rationale for the argument rests on the increasing reality of globalisation for individual citizens as well as organisations and governments. This reality is expressed in the growing number of multilateral and bilateral treaties to which New Zealand is a partner. The relevance of these treaties to the actions of New Zealanders has in the past depended largely on whether the obligations under the treaties have been incorporated into domestic legislation. There has been a recent trend, not only in New Zealand courts but also in other common law jurisdictions, for the courts to give more weight to international obligations. After reference to the cases of Tavita v Minister of Immigration [1993] NZCA 354; [1994] 2 NZLR 257 and New Zealand Airline Pilots’ Association Inc v Attorney-General, unreported, 16 June 1997, CA 300/96, the Report concludes with the observation that “[i]n summary, when considering the treaty making process, it should not be thought that a treaty which has not been the subject of legislation is irrelevant to the New Zealand legal system”.

However, the Report is more concerned with the way in which treaties are made and implemented than in their interpretation. The recommendations of the Report reflect this emphasis. It is worth recording these recommendations because events subsequent to the Report have resulted in their substantive implementation by government, changing the procedure for treaty making. The recommendations were: -

RECOMMENDATION 1 - That the value of notification and consultation with Parliament and interested or affected groups at the negotiating stage of the treaty making process be recognised, with the purpose of developing and formalising such practices.

RECOMMENDATION 1A - That consideration be given to the establishment of a Treaty Committee of Parliament.

RECOMMENDATION 2 - That consideration be given to the introduction of a practice of the timely tabling of treaties so that the members of the House of Representatives can determine whether they wish to consider the government’s proposed action.

RECOMMENDATION 2A - That consideration be given to the preparation of a treaty impact statement for all treaties to which New Zealand proposes to become a party.

RECOMMENDATION 3 - That, so far as practicable, legislation implementing treaties or other international instruments give direct effect to the texts (that is, use the original wording of the treaties), and that when that is not possible, the legislation indicate in some convenient way its treaty or other international origins.

The whole matter of the role of Parliament in treaty making was considered in the Report of the Standing Orders Committee on its Review of the Operation of the Standing Orders (I.18B), and in 1997 by an Inquiry held by the Foreign Affairs Defence and Trade Committee on Parliament’s role in the international treaty process. The result of that inquiry was a Cabinet Office Circular CO (98) 4, 6 July 1998, setting out the requirements that must be followed before a government may ratify, accede to, accept, or approve a treaty. Treaties are defined as “international agreements concluded between states in written form, which are intended to create binding obligations at international law”. The new procedure was also to apply for a trial period of the balance of the current Parliamentary term.

The Cabinet circular states that “...all treaties which require the formal steps of ratification, accession, acceptance, or approval and have been considered by Cabinet, must be presented to the House before these formal steps can proceed”. The treaty is referred to the Foreign Affairs Defence and Trade Committee of the House, which may inquire into it or refer it to a more appropriate committee. The government will not take any binding action on the treaty until the relevant committee has reported or 35 days (or 45 days if tabled after 15 December) have elapsed from the date of tabling, whichever is sooner. Treaties presented to the House must be accompanied by a National Interest Analysis. The Analysis must include matters relating to the reasons for New Zealand becoming a party to the treaty; the obligation imposed on New Zealand and any reservations; the cost involved; future protocols; implementation measures, including legislation required; the consultation that have been undertaken or are proposed; and if there is any withdrawal or denunciation clause. Thus, while the Commission’s recommendations have not been totally implemented, their substance has been incorporated into the treaty making process.

The importance of treaties and the need for greater community and parliamentary involvement was addressed at a recent conference of the International Law Association on “Treaties and New Zealand Law”. The proceedings of this conference, which included several interesting addresses from Australian academics and practitioners, would be essential reading for anyone interested in this area. For the academic, the lesson that emerged from the conference and the reading of the Commission’s Report is that international law must now be mainstreamed into all our teaching programs. It is no longer the optional course provided for the few who may wish to enter the world of diplomacy. A knowledge of treaties is now essential for all practitioners, whose clients in all their myriad of activities will find themselves requiring knowledge of their international obligations.

MARGARET WILSON[*]

PRINCIPLES OF CRIMINAL LAW, by AP Simester and WJ Brookbanks. Wellington, Brooker's, 1998, lv and 686pp, including index. Price $99 including GST (softcover).

ADAMS ON CRIMINAL LAW 2ND STUDENT EDITION, by J Bruce Robertson (ed). Wellington, Brooker's, 1998, xcvii and 1034 pp, including index. Price $69.75 (softcover).

In New Zealand criminal law was long taught without the benefit of an indigenous textbook. Improvement began in 1996, with the first student edition of Adams on Criminal Law. With the simultaneous publication this year of Simester and Brookbanks' Principles of Law (“Principles”) and a second student edition of Adams on Criminal Law (“Adams”), there is almost an embarrassment of riches for those seeking an introductory treatment of New Zealand criminal law. These two books have the same publisher and two of the three authors of Principles also contribute to Adams. However, there are fundamental differences between the two works.

To start with, the goals of Adams and Principles are not the same. The parent volume of Adams takes up three looseleaf volumes, described in the preface to the student edition as “an invaluable reference book for Judges, academics, and practitioners”. The student edition takes material from three chapters of the looseleaf volumes but has the same format. It is basically a heavily annotated Crimes Act 1961, although there are also sections dealing with the law of evidence and the application of the New Zealand Bill of Rights Act 1990. The work is a superb source of case references: the case table runs to over 50 pages of small print. The bulk of it is devoted to the requirements of specific offences because the Crimes Act is primarily concerned with these.

By contrast, the goal of Principles is to “explain the general doctrines of criminal responsibility and the specific law of the core substantive offences...in a manner that both states the law and identifies the issues of principle and policy which gird and shape that law” (p vii). The organisation does not follow the order of the Crimes Act itself: it mirrors the structure of an introduction to criminal law. It starts with general principles, continues with derivative liability and inchoate offences, and spends seven chapters on defences, before reaching some selected specific offences. Parts of the Crimes Act are omitted altogether. Questions of evidence rarely intrude into a criminal law course, and Principles does not include chapters on evidence or Bill of Rights issues.

The different goals lead to differences of style and explanatory technique. Adams and Principles both refer to the rule that a person might have a good motive and still possess the mens rea for an offence. Adams states the rule and supports it with a list of five cases but does not discuss the facts of any of the cases (CA 20.10(1)). Principles illustrates the rule with the facts of R v Smith [1960] 2 QB 423, in which the defendant offered a bribe to a town mayor in order to expose corruption but was still convicted of offering a bribe to a public official (p 80). Then, in a footnote, a conflicting case and some supporting cases are noted, and the comment made that the principle “which disconnects a finding of mens rea from the presence of fault, is appropriate only if a suitable range of defences is available” (p 80 n3). The treatment in Principles is fuller and it relates the rule itself to principles of responsibility. For a person who is looking for references to support an argument about motive and mens rea, Adams might be more useful. For a person who knows nothing about mens rea, Principles will provide the knowledge needed to make the most of Adams and to read the cases cited therein more critically.

This is not to say that one book is “better” than the other. Each has strengths and weaknesses.It is unfair to criticise Adams for not being a textbook or to criticise Principles for not being a comperehensive guide to the Crimes Act. They should be assessed according to whether they meet the goals they have set themselves.

Principles was written by several authors. Their style is not identical. For example, some but not all chapters make use of the first person. These are not serious problems and matters such as footnote style and headings are consistent. The book does not look “cobbled together”. However, there is at least one inconsistency arising from an apparent difference of opinion between the authors. In chapter 3, the discussion of negligence includes the comment that “[i]f the defendant has additional knowledge, over and above that which a reasonable man would possess, then she will be held to the standard of that extra knowledge” (p 107). The author of chapter 14 disagrees: “a higher standard does not apply merely because D has special skill or qualifications” (p 489). It may be that one chapter states what the law is and the other what the law ought to be, but the two statements do appear to be contradictory. It would have been useful to indicate that both approaches are supportable, rather than to leave readers with the impression that one author is “wrong”.

The goal of integrating theory and black-letter law is a difficult one. It involves stating the law accurately and explaining the principles that underlie the law and expressing opinions about the validity of the law built upon those principles. Principles does not try to do all this simultaneously. Different chapters lean towards one or other of the overall goals. The way in which criminal law is taught is that teachers start by explaining abstract concepts like “intention” and “recklessness”, and only later apply them to actual offences. To teach in any other way would result in needless repetition. This textbook adopts a similar structure, and it is a practical one. Nonetheless, there are some things that could be done better. The theory chapters use case law to illustrate principles. To avoid confusion between description of the law and analysis of the law, a statement that this is how the case law is being used would be helpful. These are quibbles, however: Principles manages to combine a sophisticated discussion of principles of criminal law with a readable analysis of major offences and defences.

Adams does not purport to be a textbook, and a denser approach is appropriate to its purpose. It includes a surprisingly large amount of commentary on basic principles and many articles are noted as well as case-law. One criticism that might be made is that it is unclear which sections of the commentary have been updated for the second edition and the date to which the commentary has been updated. The inclusion of material on evidence and the New Zealand Bill of Rights Act1990 is highly desirable, indeed necessary, if the book is to be useful for practioners. However, doubts might be expressed about the value of this material for a student. The way in which university law courses are organised means that students rarely study criminal law and evidence in tandem. If new editions of Adams are to be published fairly frequently, as this second edition suggests, a student who purchases the book intending to use it for both courses might well find that it has been superseded before she starts the second course. This will either result in extra expense for a new edition of Adams or some other textbook, or, more alarmingly, the student may attempt to work from the out-of-date edition. The black-letter law basis of Adams makes this a dangerous practice. Principles, on the other hand, is a book into which she might continue to dip, when puzzled, for many years to come, since it does not try to provide complete coverage.

In conclusion, the answer to the question “which book should I buy?” is that, in an ideal world, students would own both, and they should certainly have access to both. Principles is introductory in nature although there is much in it of interest to the more advanced student. The emphasis is on teaching concepts and principles that can then be used to help the reader understand material outside the scope of his or her basic criminal law course. Adams is a reference tool. If it were the only book available, its sheer size would be a disadvantage. From a student's point of view, and especially if the student has no textbook to assist her, clear explanation is more important than compendious coverage. The usefulness of Adams is enhanced by the availability of Principles: they fulfil different functions and each complements the other.

FRAN WRIGHT[*]

[*] Professor of Law, University of Waikato.

[*] Lecturer in Law, University of Waikato.