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79 _HERE HAS BEEN CONTINUING DISCUSSION of the issues surrounding the involvement of Parliament in the treaty making process. The practice was assembled and analysed in 1964 with the following questions raised:95
80 The issues discussed in this report, surrounding treaty making and Parliament’s possible role, relate to: the treaty making doctrine; the role of the courts; the “democratic deficit” and limitation of future governments;96 timing (and matters of urgency, flexibility and confidentiality); treaty definition; and consultation.
81 Issues relating to treaty making are often expressed in terms of the doctrine that treaty making is the domain of the executive, and that the executive’s role to govern and to enter into treaty negotiations as outlined in the doctrine should not be limited. However, the issue in the Labour Conventions97 case which outlined the doctrine was a matter of domestic law, not international law. It concerned the internal distribution of legislative powers – that is, the limitation of Canadian federal power to implement international obligations in areas of provincial jurisdiction without provincial co-operation. The Privy Council held that the Federal Government did not have the power to pass legislation to implement treaties which had subject matter that fell within provincial jurisdiction under s 92 of the Constitution Act 1982 (previously the British North American Act 1867).98 It is therefore of limited help in terms of New Zealand’s current treaty making process.99
82 In the intervening years this decision has been criticised. Canada is the only federal state with its treaty implementation power rigidly divided on the basis of the respective federal and provincial legislative jurisdictions. This has led to Canada’s capacity to implement treaties being described as “suffering from constitutional arthritis”. 100
83 Further,
[t]he argument that legislation to implement a Canadian treaty is within the federal power over the peace, order and good government of Canada was in fact accepted by the Privy Council in Radio Reference101 which was decided shortly before the Labour Conventions case. We now know too that this view attracted the support of at least one member of the Privy Council in the Labour Conventions case itself, because, although the Privy Council practice of that time did not permit the writing of dissenting opinion, Lord Wright subsequently disclosed in an article in the Canadian Bar Review that he had dissented. Since the abolition of Privy Council appeals there have been several dicta in the Supreme Court of Canada indicating a willingness to reconsider the reasoning in the Labour Conventions case,102 and it may well be that the peace, order, and good government argument will ultimately prevail. . . . While it is necessary to conclude that the Labour Conventions case is a poorly reasoned decision, it is much more difficult to be confident that the result is undesirable as a matter of policy within a federation such as Canada.
W R Lederman103 has suggested a middle ground between full acceptance of the Labour Conventions rule and its complete rejection. He takes the view that the federal parliament ought to possess the power to implement treaties but he suggests that the Court should have to make a finding of “national concern” before upholding a federal statute that implements a treaty on a subject matter that would otherwise be within provincial jurisdiction. . . .
A different approach would be to confine the Labour Conventions rule to those treaties that are concerned only with the harmonization of the domestic law of states or the promotion of shared values in domestic law. The conventions in issue in the Labour Conventions case were of this kind, seeking to elevate the standards of working conditions in member states.104 [footnotes added]
84 In relation to the extent of the doctrine Kenneth Keith noted in 1964 that
in recent times all governments have insisted, and their view has not been contested, that the making of treaties is within the Crown prerogative. Parliament has no power to ratify or give effective international approval to the treaty. There is, however, no such certainty about the existence or extent of Parliament’s right to express approval or disapproval of or otherwise to supervise the executive’s treaty actions.105
85 The important question here is how far Parliament should go in its supervision and monitoring in light of increasing globalisation and lawmaking offshore. Should Parliament’s role in supervising and monitoring the executive – and thereby the treaty making process – change? For Parliament to continue to be the effective lawmaker in future times is this change essential? Parliament’s monitoring role could be employed to strike a balance between the power of the executive to freely make and execute international agreements with other nation states, and the calls for an increased parliamentary involvement.
The object of the reform process should be to ensure that the . . . Parliament is able to participate in the process in a way that ensures that the Commonwealth is not unduly hampered in its ability to participate in foreign affairs and meet its international obligations.106
86 Further, what are members of Parliament going to do in a reformed treaty making process and how are they going to it?
One practical problem with the bulk [of international treaty law] needs to be taken on board. It is that members of Parliament are exceedingly busy and, with the best will in the world, it would be hard for them to read and absorb, let alone evaluate, the contents of all the Treaties with which New Zealand is concerned. . . . The pressure on Parliamentary time seems so great that it is idle to expect them to debate Treaties very often in the Chamber. There are opportunities for this to be done when the occasion calls for it, but it does not seem to happen very often. It most frequently occurs when it is necessary to introduce legislation in order for New Zealand to ratify a Treaty.107
87 Decisions reached by the courts involving consideration of rights and obligations contained in international instruments to which New Zealand is a party, but which may not have yet been implemented in domestic law, have been criticised. The courts have no direct constitutional role of incorporating treaty obligations into domestic law. That role can only be for Parliament unless New Zealand makes a doctrinal change to treaties as self-executing instruments.108
88 Such decisions as Teoh109 have been seen as a form of lawmaking beyond the roles inherent in the traditional treaty making doctrine and the separation of powers. In relation to the courts not considering treaties unincorporated into domestic law, one correspondent noted
it is not just a question of individuals being unable to enforce rights in unincorporated human rights treaties, but also of duties obligations and prohibitions in treaties not being imposed on individuals unless Parliament chooses to incorporate the treaty provisions into domestic law.110
89 Further, another commentator:
If we accept the principle that, consistent with the democratic underpinning of our society, law should preferably be made by democratically elected lawmakers, Parliament should only leave laws to be made by the Courts where it is not appropriate that those laws be made by the Legislature, and it is appropriate that they be made by the Courts. Indeterminacy in legislation therefore is not inherently a bad thing. It is only bad if, in the particular circumstances, the required rule-making is more appropriate for the Legislature than the Courts.111
90 Indeed there is the possibility that the courts, which must reach a decision in each case, find themselves in a difficult and undesirable situation. A commentator has stated:
What has turned a less than satisfactory parliamentary situation into a thoroughly unsatisfactory one are the related judicial developments illustrated by litigation such as that concerning the issue of a search warrant for the cockpit voice recorder. Increasingly, treaties that have not been legislated into New Zealand law are being held by the courts to have legal significance in our domestic law. . . . From a democratic point of view, an approach to law-making which permits treaty provisions to be incorporated into our law without reference to parliament is thoroughly undesirable.112
91 But the alternative is to exclude New Zealand’s international law obligations from judicial consideration on the basis that Parliament can and will provide a general codification of public policy. We see no likelihood of such development. The courts will continue to have to fill legislative gaps to decide cases, and adopt principles of interpretation to do so systematically. It is undesirable for the courts to risk putting New Zealand in breach of international law where that can be avoided. To do so requires the courts to take account of our international obligations to the extent that they do not thereby infringe the will of Parliament expressed in statute. The decisions on this point such as Tavita and NZ Airline Pilots’ Association113 may be seen as a response not only to internationalisation but to the legislature’s failure to implement important changes to the domestic law in order to comply with obligations incurred in the international arena – the “wide tracts” referred to in para 4.114 As one commentator has written:
All that was required was for the court to draw legal consequences for private parties from its analysis of the international law.115
92 Some of these developments may be seen as the courts response to a “rights consciousness” affirmed in international, regional and national human rights instruments and an emerging reconsideration of the role of the courts regarding human rights issues.116
93 The Ministry of Justice describes this situation thus:
Essentially, the judiciary has become more active in the process due to globalisation, and Parliament has not yet reacted to this development. In the absence of a clear expression of parliamentary will, the courts have no recourse but to rely on the common law to resolve the disputes that are before them. Increasingly, due to the internationalisation of society, the courts are finding it necessary to look to international law to determine common law. In these circumstances, reaching the conclusion that ratified but as yet unincorporated treaties have the force of law is not unreasonable or illogical.
From a constitutional perspective, this possibility is the driving force for change. If Parliament does not take a more active role in the treaty-making process, the courts will fill the void. These developments have the potential to increase the importance of the judiciary in the treaty-making process at the expense of parliamentary sovereignty.117
94 A gap in the existing arrangements appears when the executive decides to accept a treaty which does not require implementing legislation. This is either because the present state of the law (including legislation) already gives full effect to the treaty or no legislation at all is required (possibly because the government will accept the treaty with reservations). This gap is referred to as one aspect of the “democratic deficit”.118 Two recent instances are New Zealand’s acceptances of the second optional protocol to the International Covenant on Civil and Political Rights concerning capital punishment in 1990, and the Convention on the Rights of the Child in 1993.
95 In the former case, Parliament had debated and enacted the Abolition of the Death Penalty Act 1989 but at that stage the drafting of the protocol had not been completed and Parliament had no indication of the government’s intention to accept the protocol. New Zealand’s acceptance was effected in the conventional way by executive action following a Cabinet decision. Parliament and the public were not given timely notice of the government’s intention to ratify the Convention. In the case of the Children’s Convention, which had been the subject of a lengthy public controversy, the government moved to ratification without any indication that it was going to take that step.
96 The consequence of those two actions is that New Zealand is bound by important undertakings, without in the former case any express power of withdrawal. The death penalty protocol appears to be binding without limit of time.119 The undertakings limit, in substance, the power of the New Zealand Parliament. The significance of the actions in the death penalty case is greater when it is recalled that at the time the Government accepted the death penalty protocol it had dropped the idea of an entrenched Bill of Rights, and even an entrenched Bill of Rights would have been subject to amendment through a referendum or the support of three quarters of the members of the House.
97 The Law Commission has no objection to those “permanent” aspects of the treaties or to the government’s decisions. They are inherent in the nature of the international community and the law which regulates it. What the Law Commission does want to call attention to is the lack of a simple means of alerting the House to the government’s intention to accept such a treaty, with the consequence that the House can take the matter up in a timely way if its members wish. There is, as well, no systematic notice to the wider public of the intended action.
98 The report of the Foreign Affairs, Defence and Trade Select Committee on the treaty process raises a further point with regard to the limitation of the role of Parliament:
An additional point to consider is that, outside of its power to refuse to pass legislation outright, Parliamentary select committees have a lesser capacity to amend treaty implementing legislation than they do for any other type of legislation. Where a treaty text is to be directly incorporated into law, no amendments that were contrary to the provisions of the treaty can be incorporated into the implementing legislation because this would prevent New Zealand becoming party to the treaty. This arguably limits the scope for select committee input into implementing legislation considerably more than would be the case for any other kind of legislation. Therefore, in practice, Parliament is bound by the terms of a treaty in which it has had no involvement.120
99 Consultation practices, or the lack of such practices and processes, are often raised as an issue in relation to the treaty making process, and as a subset of “democratic deficit” discussions. For Mäori, there is recognition that the principles of the Treaty of Waitangi (plus law and practice) increasingly require consultation with Mäori on proposals which affect Mäori interests.121
100 Among the advantages of consultation are its assistance in:
A cautionary note is that a poorly designed consultation process can be bureaucratic and hinder New Zealand’s ability to prepare for and perform in international treaty negotiations.122
101 In the first stage of treaty making the executive is, of course, free to involve other interests in the negotiation process, for instance through appropriate consultation or even as members of the negotiating team.123 International agreements may themselves require the involvement of a wider group of participants, for example, the International Labour Organisation’s (ILO) Constitution provides for the tripartite composition of national delegations to the conferences which consider the ILO’s draft Conventions.
102 In practice too, the involvement of wider groups of participants is increasingly to be found, for instance in multilateral commercial negotiations in the World Trade Organisation (WTO) or in bilateral commercial negotiations, for instance with the European Union or Australia. Consultation is increasingly occurring in environmental matters, for instance in respect of the ozone layer agreements. Richard Nottage, Secretary of the Ministry of Foreign Affairs and Trade (MFAT), provided a valuable commentary on the GATT Uruguay Round consultation process and seven key principles of effective consultation in the August 1994 MFAT Record:
Uruguay and Morocco may seem a long way from New Zealand. But these negotiations were the subject of extensive consultation and interaction with business, academic, media and community groups who were the stakeholders in the whole exercise. . . .
The first principle is that consultation with stakeholders is not an additional burden, but a necessary prerequisite for effective policy-making. Trade policy certainly needs to be informed by the private sector. It is business, not the government, which conducts international trade and investment. And trade policy can also benefit from the analytical input of academics and research organisations. Public perceptions of trade policy can determine overall effectiveness. . . .
The point is that policy cannot be got right without consultation. But it cannot be turned on like a tap. Consultation requires constant attention and needs to be kept alive during less active phases of policy development.124
103 Wider participation can be seen in the harmonisation of business law under the agreement for Closer Economic Relations (CER) with Australia. A mutual Australian and New Zealand process has been active since at least the late 1980s with the establishment of the New Zealand Consultative Group on Business Law, consisting of officials, business people and accountants, and an equivalent body in Australia. The process in respect of Trans-Tasman mutual recognition provides a further instance with “A Proposal for the Trans-Tasman Mutual Recognition of Standards for Goods and Occupations: A Discussion Paper Circulated by the Council of Australian Governments and the Government of New Zealand” (April 1995). The association of non-governmental organisations with major international conferences can also be seen as part of those broader developments. Those conferences are also important for the production of texts which are not in treaty form but which are nevertheless significant.
104 Legislation increasingly requires consultation before regulations are made and over the years the parliamentary select committee process has developed to enable wide public participation in the process of the making of primary legislation. Practice and related statements also emphasise the importance of consultation when Bills are being drafted (eg, Legislation Advisory Committee, Legislative Change: Guidelines on Process and Content (rev ed 1991), paras 21–29, and the Law Commission Act 1985 s 6(2)(c) and the process of consultation it follows).
105 It is to be emphasised that the critical stage for consultation will often be before the international text is settled. After the negotiation is complete it is highly unlikely that the text can be altered. Generally, the only courses then open will be to accept or reject the established text. In some cases there may not even be that choice since the international decision may become internationally binding without further action by the government.125 Even if the government does in law have a choice whether or not to accept, that choice might not be a real one if, for instance, the text is very widely supported and standing aside would cause real disadvantage to the national interest.
106 In these situations, the later legislative stages in New Zealand do not allow real consultation. Parliament, in enacting the primary legislation, or the executive, in making subordinate legislation, may have no choice, or at least no real choice. Consultation in such circumstances can, however, still be of value by serving to forewarn or inform interested or affected groups of the limitations on New Zealand’s ability to negotiate certain desired terms or conditions.
107 Some negotiations have to be private, they may move rapidly, and the decisive proposals and a final compromise often appear very late in the course of the negotiation leaving no chance for further consultation. Those elements of effective negotiation must be appropriately protected.126 But, as indicated, practice does show that consultation is sometimes possible and that in some cases, if consultation is to be effective, it has to occur at an early stage. As well, many international processes are public, at least in part, and lengthy, allowing time for consultation. This is particularly so of the processes leading to major multilateral treaties.
108 A commentator has noted:
[T]he culture of consultation on the part of government departments . . . could be enhanced. In the case of prospective negotiation under GATT/WTO, or of international air transport agreements, or international fishing agreements and the like, consultation with concerned and relevant New Zealand business interests does occur. But the practice of consulting with non-governmental environmental, human rights, private or disarmament groups and the universities as well as Mäori and Parliament is a good deal less developed. The absence of genuine exchange about policy ideas with the non-official community inside New Zealand indeed contrasts with what happens elsewhere (eg Australia). There are exceptions. Some improvements have occurred. But there is, in my opinion, some good way still to travel. Part of Parliament’s oversight should entail ensuring that departments are in fact consulting.
Considerations of secrecy and the need for swift policy formulation in response to rapid external developments are part and parcel of contemporary international relations. But for the great bulk of international trade, economic, environment etc negotiation today, secrecy is not a vital factor. Most negotiation is at the global (multilateral) level. It is not country-to-country bilateralism. And for most issues on this international agenda, the non-government actors in the form of multinational business, scientists, global environmental groups, or human rights bodies are better informed than governments about key issues in any event. Governmental secrecy is not an overriding factor in most instances. And the plotting ahead of the international agenda of negotiating conferences is sufficiently defined in advance, to obviate the excuse of the need for urgency in policy formulation, as an explanation for a lack of consultation. . . . Interim reports of progress in a negotiation (the GATT Uruguay Round lasted nine years) must be encompassed in the consultation process.127
109 Timing issues relate to the timing of any possible intervention for parliamentary consideration and approval in the treaty making process. It might be helpful here to note that consideration of Parliament’s role is distinct from consideration of Parliament’s performance. Performance problems of overload and delay are of course of some bearing to this discussion but are addressed through internal parliamentary mechanisms such as the Standing Orders and the Business Committee of the House.
110 If a parliamentary approval procedure is timed to occur as the treaty is being negotiated/created, the executive may express concerns about confidentiality, flexibility and urgency as follows:
111 Timing problems associated with urgency and confidentiality are not insurmountable. For example, Parliament has the ability, through taking urgency, to deal rapidly with matters such as a form of treaty approval, and a possible role for select committees in any parliamentary approval process may protect confidentiality of sensitive treaty negotiations.128 The need for flexibility could be addressed in the design of any parliamentary approval process. (On the point of flexibility, it has already been noted in chapter 2 on the current treaty making process that for all treaties there is an existing “approval” step, involving gaining Cabinet approval for any treaty before it is signed. Suggestions of accommodating different monitoring and approval steps by Parliament are therefore not totally foreign.)
112 There are anticipated problems with parliamentary time and clogging of the legislative programme. In relation to these it should be noted that under the current process legislation is passed for any new treaty (which requires domestic implementing legislation) prior to the government signing the treaty, and that several international treaties are currently awaiting a slot in the legislative programme.129
113 As well as issues of timing, there are issues related to treaty definition. These consider the type of treaty that is being negotiated/created (eg, whether it is multilateral or bilateral)and whether that will be helpful in determining what treaties are subject to an approval process. A treaty may be, at one extreme, an exchange of letters, at the other are complex multilateral conventions; it may come into effect immediately upon the signature of the State; or it may require a further step of implementation domestically.
114 It is useful to note the facts about the range of treaty actions before contemplating treaty definition as an identifier for possible parliamentary involvement. In the 4 years 1990–1994, 109 treaties were tabled in the New Zealand Parliament and published in the New Zealand Treaty Series.130 All were already binding on New Zealand. That is to say the tabling was for the record and for information; at the time of tabling the House could take no effective action (although it may have already taken action to pass necessary legislation). The treaties may provide a useful sample in relation to issues of practicability for any reform proposals. Included in the 109 treaties were multilateral treaties relating to international criminal law (war crimes, hostage taking, narcotics), intellectual property and child abduction; and bilateral treaties covering extradition, double taxation, and social security that required legislative action.
115 About 70% of the treaties were bilateral and with only a few exceptions those treaties came into force as a result of signature and with no other action. A small number were subject to ratification: for example, a treaty of territorial delimitation with the United States (relating to the boundary between Tokelau and American Samoa), an extradition treaty with Fiji, an air transport agreement with Argentina, and some double tax agreements. A third small group of bilateral treaties, including double tax, social security, visa abolition, investment protection and trade agreements, entered into force following the parties notifying or confirming to one another that the necessary legislative and other steps had been taken.
116 The line between restricted multilateral treaties (of a regional nature) and general multilateral treaties is somewhat arbitrary; in the former group can be included those related to South Pacific matters and a recent agreement relating to war graves between Tunisia and five allied states. Under 10% of the 109 treaties come into that category: some came into force on signature, while others required ratification or further action.
117 The 26 multilateral treaties in the group of 109 were all subject to some further action after the text was established by the negotiation, that is, action of ratification, acceptance, or accession (the particular action depending on whether the state had signed the text or not, and on the formal requirements of the treaty). That is to say, in all those cases the text had been established some time before the government ratified, accepted or acceded to it. In almost all cases the period between the text being established and being accepted was more than 2 years – sometimes well over that (31 years for accepting the Constitution of the Centre for Cultural Property). Only rarely does ratification of a multilateral treaty follow closely on signature.
118 With the bilateral treaties subject to ratification in the group of 109, the periods are shorter – only 3 weeks in the case of the extradition treaty with Fiji (where implementation in New Zealand law was effected by an Order in Council rather than an Act) – but in other cases over a year.
119 By way of analogy, the difference between treaties subject to further action and those binding on signature or (with some important qualifications) between multilateral and bilateral treaties might be equated to the difference between primary and secondary legislation. The former are more concerned with principle and policy, the latter with detail and implementation.131 Similarly, Parliament is more likely to have an interest in the former. The equation is not exact (compare, for example, the original bilateral CER agreement with the latest multilateral adjustment to the schedules in the ozone layer treaty) but it does appear to provide a useful guide.
120 Treaty definition issues are often addressed in terms of subject matter,132 with the subject matter of some treaties, such as human rights, described as being of potential interest to Parliament while others are not. For instance, both a “minor” arrangement concerning our trade in sheep meat,133 and the GATT, are treaties that deal with the subject matter of trade, yet Parliament and the public at large clearly have a stronger interest in the far reaching implications of the latter – GATT – and treaties concerning the WTO.134
121 A further example, certain defence arrangements with other states may be thought not to affect individual rights within New Zealand and therefore to be of little interest to either Parliament or the public (through the select committee process), while important environmental agreements such as the Vienna Convention for the Protection of the Ozone Layer may be the opposite. However, some of the treaties which have been the subject of parliamentary interest and action, including approval, are in fact defence arrangements which although they may not immediately directly affect individual rights can, nevertheless, be of major importance.135 In general, the question of impingement on individual rights is not necessarily a determinant when considering possible parliamentary interest.
122 On closer examination it may be that treaty definition alone is no more than a “useful guide” to determining which treaties “require” parliamentary consideration and approval, but is not a sufficient indicator of whether or not Parliament will have an interest in a particular treaty. “The immediate effects of some treaties may be obvious while the long term effects of others are not. Consultation is more likely to elucidate the potential effects of all categories of treaties.”136 This discussion also raises the associated issues of who would be the appropriate body to determine which treaty definitions or types should go before Parliament and when. Some suggest the House to be that appropriate body.137
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