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142 THE FOLLOWING PARAGRAPHS CONTAIN the Law Commission’s three main recommendations, plus subsidiary recommendations for the possible means by which each of the three can be adopted. Relevant process suggestions by others are included to provide completeness.
143 The Commission’s main and subsidiary recommendations should be seen as addressing the treaty making process on a continuum, from start to finish. In the early stages the Commission proposes formal processes of notification and consultation, with the establishment and use of a Treaty Committee of Parliament for such notification and consultation. Further, such a committee may determine which treaties are tabled in the House – a process the Commission recommends along with appropriate treaty impact statements. At the end of the process, the Commission recommends desirable drafting practices for implementing legislation (at a minimum the noting of the statute’s international origins). Legislation may be deemed necessary, although the Commission considers that these process changes are achievable through the drafting of further Standing Orders.
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144 The Law Commission’s first main recommendation is that the
value of notification and consultation with Parliament and affected or
interested groups at the negotiating stage be recognised, with the purpose of
developing and formalising such practices
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145 Early notification should be given of the matters that are the subject of negotiations, as in the current publications of the Australian Department of Foreign Affairs and Trade (DFAT). Amongst other material, the DFAT website on the internet143 provides a “List of Multilateral Treaty Actions Under Negotiation” covering a 12-month period. It provides contact details for the relevant department plus a contact person’s name for each treaty listed. In New Zealand, such notification of treaty action might also be given specifically to Parliament and particular interest groups. No doubt there will be limits to such practice, for example, not all open covenants can be openly arrived at (to refer to the point by President Woodrow Wilson),144 but practice suggests that in many cases the processes can be open, at least in part.
146 In connection with material available via the internet, there is a general point to be made here concerning the provision of information about New Zealand’s treaty making process – whether to Parliament, departments, non-governmental organisations or others, and whether in the House, over the internet or as written material. Commission correspondents and the report of the Foreign Affairs, Defence and Trade Select Committee noted the lapse of institutional debate on matters of foreign affairs with the day-long foreign affairs debates in the House ceasing some time ago.145 The Select Committee’s report recommends to the House and the Standing Orders Committee that 3 hours be set aside to debate treaties and related foreign policy issues at the beginning and end of each parliamentary year.
147 The Law Commission suggests that the Ministry of Foreign Affairs and Trade (MFAT) emulate the DFAT website, which in addition to the written versions could be a helpful way in which to distribute MFAT’s annual reports (containing treaty lists as mentioned earlier) and its useful Information Bulletin publication series (of which 11 of the approximately 60 titles are still available). The development of formal notification practices may also be helpful in terms of the creation of an MFAT manual on its treaty making process.
148 The notification the Commission recommends can be extended to include consultation. Consider, for example, the consultation process undertaken in 1995 (and still ongoing) by Te Puni Kokiri on the draft Declaration on the Rights of Indigenous Peoples.146 That draft is of a non-binding declaration, not a treaty, but there was formal public consultation. Comparable are the processes involved in preparing a government position for major international conferences such as those on the environment, human rights, population, social policy and women.
Due to New Zealand’s small size and limited diplomatic resources, it is not able to be involved in all the international negotiations that go on and which lead to treaties, and it has to select which ones are of most vital importance to it. That selection is essentially done by the Executive Government, and there may be a role for Parliament in scrutinising the selection process and perhaps from time to time making recommendations for its adjustment.147
149 Formal methods of and procedures for consultation may be built into a process of early notification by the use of a particular parliamentary/select committee with associated procedures for receiving submissions.
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150 The Law Commission recommends that consideration be given to the
establishment of a Treaty Committee of Parliament.
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151 A Treaty Committee, as a committed parliamentary/select committee, could inquire into and report on matters which are the subject of an international negotiating process.148 As the Ministry of Justice notes:
This procedure [of parliamentary approval] could start with the creation with a select committee charged with its development. All treaties could be referred to it. It could, along-side its normal treaty investigations, be empowered to recommend whether a treaty needed to go to Parliament for debate or approval or both. This would permit treaties to be selected on a case by case basis, rather than by class or some other uncertain . . . standard. In this way, Parliament could devote its resources to important treaties. . . .149
152 That is not to say that the committee would participate in any direct way in the negotiations (although members of Parliament might be members of the government delegation), rather it would provide a forum for the exchange of information and the expression of opinions. It could control the confidentiality of a particular treaty discussion being able to meet in camera (that is, behind closed doors), provide a forum for consultation and submissions, and undertake to keep the House abreast of treaty developments. It might itself adopt a position on the issues.
153 It is possible that the Foreign Affairs, Defence and Trade Select Committee could be given powers to consider treaties – as the Committee itself has recommended in its Inquiry into Parliament’s Role in the International Treaty Process.150 Alternatively (or in addition), it is possible that existing select committees could deal with the treaties that cover relevant subject matter.
It would be possible to devise a fairly simple procedure for the appropriate Select Committee to receive notification of treaties being negotiated via the Clerk of the House . . . then envisage some procedure similar to that followed by the Regulations Review Committee whereby the Committee can examine drafts and report on them to the House.151
154 In his paper “Treaties and the House of Representatives”152 the Clerk of the House, David McGee, recommended a procedure of tabling draft international treaties and referring them to the appropriate subject select committees for consideration. Under these proposals, the Foreign Affairs, Defence and Trade Select Committee would be at the centre of the treaty approving process by allocating treaties to individual committees for scrutiny and keeping the overall process under review. It would then be the role of that chosen subject select committee to brief the House as to progress. The Clerk also recommends that although the House would only be able to approve or reject a draft treaty, the select committee could in its report recommend amendments or reservations if it saw fit.
155 The Commission considers, however, that the development of a specific Treaty Committee has its merits. The committee, with committed time and personnel, would develop expertise and interest in treaties, treaty processes and treaty law.
The roles of Parliament and the executive could be modified by establishing a parliamentary committee dealing exclusively with treaties. This committee could evolve from one already present in Parliament, but the other roles or functions of that committee might eclipse its treaty focus. This risk suggests that a new treaty focused committee would be preferable. A specialised committee is also likely to bolster Parliament’s role in the treaty-making process, which would not be the case if referring treaties, by subject matter, to existing committees.153
156 There is scope for such a parliamentary committee, established in a reform of New Zealand’s treaty making process, to have a broader role than merely considering the treaties which are placed before it. Such a committee could also look at the treaties which New Zealand has neither ratified nor signed. New Zealand has not, for example, ratified any International Labour Organisation (ILO) treaties for 20 years. Such a committee could also ask for justification of the selection of treaties – which at times has reflected the fact that certain types of treaties come and go in popular cycles. For instance, treaties on the environment were very popular in the 1980s, whereas in the 1930s there were 20 to 30 Legal Proceedings Conventions concerning evidence in civil and commercial matters. Now, in the late 1990s, there is a surge of treaties concerning co-operation between countries on criminal matters.154
157 The Ministry of Justice has provided the following detail concerning a specialised committee:
It would also allow for the pooling of resources, thereby increasing parliamentary experience and expertise, which would improve the quality of Parliament’s recommendations. However, given the range of topics that treaties cover, the committee may not be able to cover all topics in sufficient depth with only the knowledge and time of its members. It may, as other select committees do, solicit advice from experts in appropriate circumstances, ensuring effective time management and focused debate on the merits of particular treaties or some aspect of the treaty-making process. A specialised committee would also promote consistency of scrutiny standards and criteria.
This specialised committee could keep Parliament informed of the executive’s treaty-making activities and involve the public by allowing it an opportunity to be heard and to be kept informed. To ensure its effectiveness, the committee should have the scope to examine any treaty, analyse the nature of its obligations, and to recommend whether it should be accepted, with or without reservations. It should also be able to examine any changes in the nature of obligations already incurred (eg, examining a proposed removal of a reservation) and have the authority to review any treaty and its implementing legislation.
As the House is currently constituted, the committee’s recommendations would not be binding on the executive unless Parliament acted on them by passing the necessary legislation. However, the threat of legislation could make the executive responsive to the committee’s recommendations. This assumes that Cabinet’s control of Parliament is not as assured as it has been in the past. If parliamentary approval were required to ratify treaties, this committee’s importance to the executive would be greatly enhanced.155
158 The Australian Joint Standing Committee on Treaties provides a possible model. In Australia, the Australian Law Reform Commission (ALRC) recommended that, to help ensure accountability and acceptability of international obligations arising out of the treaty making process, such a committee should perform the following functions:
159 The ALRC favoured allowing the committee to recommend, as part of its report into each treaty proposal, whether the question of ratification should be referred to Parliament – seen as desirable in the case of treaties which could be expected to be controversial. Other treaties, not warranting this type of attention, could be more appropriately dealt with by the committee directly.
160 In New Zealand a Treaty Committee could be established, and its role, functions, and powers determined, under the Standing Orders. (See Standing Orders of the House of Representatives (Wellington, 1996), chapter IV, Standing Orders 188–251 covering the establishment of committees and their meetings, powers, conduct of proceedings, hearing of evidence, information and confidentiality of proceedings and reports.)
161 As part of a notification process statements could be made to the House on a proposed treaty obligation by the responsible Minister, sometimes with a statement by an opposition spokesperson (as was done with the treaty of friendship with Western Samoa, the South East Asian treaty and the Japanese trade agreement). Such statements on treaty developments could also come from a Treaty Committee.
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162 The Law Commission recommends that consideration be given to the
introduction of a practice of the timely tabling of treaties so that members of
the House can determine whether they wish to consider the government’s
proposed action.
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163 New Zealand practice indicates a range of possible parliamentary involvement distinct from that which arises in the last stage of treaty making – when Parliament considers implementing legislation. Parliament may consider all or some treaties.
Whether parliamentary approval extends to all or just certain types of treaties, it generally takes one of two forms: active or passive. The active approach would require Parliament to pass a motion of acceptance for every treaty before it could be ratified. The passive approach would allow the approval of treaties by default. For example, if a treaty has not been brought to the attention of the House and debated after a certain time (eg, 15 sitting days) the treaty is presumed accepted. This method requires less parliamentary resources, but it invites neglect. It also requires procedures that can be used to bring treaties to the attention of the House, trigger debate, govern how quickly the debate must proceed and when it should conclude, and provide the House with a course to follow once it reaches a final decision.157
164 Parliamentary consideration and approval of treaty obligations could also be developed through debate in the House, after appropriate notice and tabling of the treaty papers. A discussion in the House in the course of a relevant debate would allow members the opportunity to express their views on the intended action – as with the peace treaty with Japan and the ANZUS treaty. A 1997 Memorandum to the Foreign Affairs, Defence and Trade Select Committee by the Rt Hon Mike Moore MP, Memorandum on Foreign Policy, Trade, and Other Treaty Issues, made a recommendation for formal debates in the House dedicated to treaty obligations.
165 In response to this memorandum, the Foreign Affairs, Defence and Trade Select Committee have reported to the House. The Committee’s Inquiry into Parliament’s Role in the International Treaty Process, tabled on 18 November 1997, importantly recommends the Government amend the treaty process by adopting the following steps (reproduced here in full):
1 That, for a trial period of 12 months, all treaties which are subject to ratification, accession, acceptance or approval (which for the most part will be multilateral treaties) should be tabled in the House prior to ratification, accession, acceptance or approval and be subject to the following procedure.
2 A document along the lines of a “National Interest Analysis” would be prepared for each treaty and tabled in the House at the same time.
3 Both the treaty and accompanying “National Interest Analysis” would be referred to the Foreign Affairs, Defence and Trade Committee upon tabling. This committee could retain the treaty documents for itself, or refer them to a more appropriate select committee, for inquiry and report back to the House, if the relevant committee considers an inquiry necessary, within 15 sitting days of tabling in the House.
4 If requested by members, the House should provide an opportunity for members to debate any select committee reports on treaties in the House (in addition to the existing opportunities and the proposal in recommendation 1).
5 The Government will not ratify, accede to, accept or approve any treaty until after a select committee reports on its inquiry into a treaty or 15 sitting days elapses from the date the treaty is tabled, whichever occurs first.
6 In the event that the Government needs to take urgent action in the national interest in ratifying, acceding to, accepting or approving a treaty, and it is not possible to table it beforehand, it will be tabled as soon as possible after such action has been taken together with an explanation to the House.
166 There is a fair measure of similarity between these recommendations and the Commission’s own. However, it can be noted that these provisions will relate, in the main, only to multilateral treaties. New Zealand’s bilateral treaty actions, which include such instruments as CER, would not be tabled and considered.158
167 In addition to the Select Committee recommendations reproduced in para 165 concerning the tabling of treaties, the Ministry of Justice have detailed the following:
Currently, the executive, approximately twice a year, tables in the House the treaties that it has executed. They are tabled in bulk without any explanatory material. The government of the day rarely sets aside time to discuss any of these treaties. As a result of this practice, it has been proposed that all treaties, with certain exceptions, should be individually tabled at least 15 sitting days before they are ratified. These exceptions would allow for treaties dealing with urgent or sensitive matters. In these cases, it is argued that information about the treaty should be made public as soon as possible after it is executed.
Article 102159 of the Charter of the United Nations [obliges member states to] provide for public notification and publishing of any agreements entered into by member states, to discourage secret treaties and agreements. All treaties signed by a country should ultimately be made public. If the national interest demands that a treaty not be tabled before it is executed, it is argued that the executive should only be able to withhold that treaty from Parliament on the condition that it table the treaty as soon as it can along with reasons for the delay. Usually, the need for confidentiality arises only during the negotiation phase of a bilateral treaty, generally for reasons of commercial sensitivity.160[footnote added]
168 Provision for a procedure of timely tabling of treaties as contained in the Commission’s second main recommendation could be made in the Standing Orders. Such Orders could provide for the tabling of certain categories of treaties (perhaps as determined with the assistance of a Treaty Committee)161 and for the treaty to be accompanied by a treaty impact statement (see paras 179–184 on these statements).
169 One approach to the tabling of treaties is expressed in the New Zealand International Legal Obligations Bill 1997, prepared by Alliance members of Parliament and at present awaiting the ballot. This Bill proposes that before any international legal obligation is entered into the treaty must be tabled in the House of Representatives. Members would then have 14 sitting days in which to give a notice of motion objecting to the treaty – such notice would bar the Crown from becoming a party to the treaty unless that treaty is approved by a resolution of the House of Representatives.162
170 A commentator has suggested that the minimum number of sitting days before a treaty is ratified be increased. This would maximise time for parliamentary comment and also allow whoever is negotiating the treaty on New Zealand’s behalf (usually MFAT) sufficient time to respond to parliamentary input.163
171 There has also been a draft Bill, prepared by the ACT political party, the Treaties (Parliamentary Approval and Treaties Information) Bill, which proposes that the House consider and approve all treaties prior to New Zealand becoming a party (or withdrawing) but without specifying the process by which such approval might be achieved. The draft Bill also proposes that the relevant Minister keeps the House informed of developments that the Minister judges to be of interest concerning a treaty.164
172 Amongst the 11 recommendations made by the Clerk of the House, David McGee, in his paper “Treaties and the House of Representatives”165 are the following:
173 Under these proposals the House would only be allowed to approve or reject a draft treaty, although any amendments and reservations to a treaty would also require House approval (with recommendations for such reservations and amendments able to be proposed by the relevant select committee).
174 Further, the Clerk has recommended that the requirement of mandatory parliamentary approval be backed by legislation but that the process by which this is obtained be set out in Standing Orders (see also paras 187–192). Another commentator has noted that a select committee may not be a satisfactory sole mechanism for determining which treaties are referred to the House, and that for significant treaties a disallowance mechanism is preferable.
175 A possible model for the mechanism is suggested as the Regulations (Disallowance) Act 1989 ss 4–10 and associated Standing Orders 195–198.166 Section 4 of the Act provides for regulations to be laid before the House, and s 5 permits the House to disallow any such regulations by resolution. The analogous Standing Orders provide as follows:
195 Regulations Review Committee
The House appoints a Regulations Review Committee at the commencement of each Parliament.
196 Functions of committee
(1) The committee examines all regulations.
(2) A Minister may refer draft regulations to the committee for consideration and the committee may report on the draft regulations to the Minister.
(3) The committee may consider any regulation-making power in a bill before another committee and report on it to the committee.
(4) The committee may consider any matter relating to regulations and report on it to the House.
197 Drawing attention to a regulation
(1) In examining a regulation, the committee considers whether it ought to be drawn to the special attention of the House on one or more of the grounds set out in paragraph (2).
(2) The grounds are, that the regulation—
(a) is not in accordance with the general objects and intentions of the statute under which it is made:
(b) trespasses unduly on personal rights and liberties:
(c) appears to make some unusual or unexpected use of the powers conferred by the statute under which it is made:
(d) unduly makes the rights and liberties of persons dependent upon administrative decisions which are not subject to review on their merits by a judicial or other independent tribunal:
(e) excludes the jurisdiction of the courts without explicit authorisation in the enabling statute:
(f) contains matter more appropriate for parliamentary enactment:
(g) is retrospective where this is not expressly authorised by the empowering statute:
(h) was not made in compliance with particular notice and consultation procedures prescribed by statute:
(i) for any other reason concerning its form or purport, calls for elucidation.
198 Procedure where complaint made concerning regulation
(1) Where a complaint is made to the committee or to the chairperson of the committee by a person or organisation aggrieved at the operation of a regulation, the complaint must be placed before the committee at its next meeting for the committee to consider whether, on the face of it, the complaint relates to one of the grounds on which the committee may draw a regulation to the special attention of the House.
(2) Unless the committee decides, by leave, to proceed no further with the complaint, the person or organisation concerned is given an opportunity to address the committee on the regulation. The committee decides whether to examine the regulation and the complaint further.
176 The Clerk of the House also recommended that in the case of a treaty certified by the government to be of an urgent nature the treaty could be entered into and then tabled in the House at the first opportunity. The House would then have 15 sitting days to examine the treaty and determine whether to disallow it. A commentator has noted:
Where the usual disallowance mechanism is not followed, in situations of confidentiality or urgency, the provisions of the Fiscal Responsibility Act 1994 may provide a useful model. Section 4(3)(b)(i) of that Act provides that where the Government departs from the prescribed principles of fiscal responsibility in a particular case the Minister of Finance shall specify “the reasons for the government’s departure from those principles”. That Act, in laying down important financial reporting requirements on the part of the Government, may also be a useful model for legislation requiring treaty impact statements to be prepared, published, and laid before the House.167
177 The Foreign Affairs, Defence and Trade Select Committee’s sixth recommendation in its Inquiry into Parliament’s Role in the International Treaty Process is that:
6 In the event that the Government needs to take urgent action in the national interest in ratifying, acceding to, accepting or approving a treaty, and it is not possible to table it beforehand, it will be tabled as soon as possible after such action has been taken together with an explanation to the House.
178 Approval of the government’s intended action may be given by a House resolution – as with some treaties of peace and the Charter of the United Nations (both of which were also the subject of implementing legislation) and the partial test ban treaty.
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179 The Law Commission recommends that consideration be given to the
preparation of a treaty impact statement for all treaties to which New Zealand
proposes to become a party.
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180 Practice in both Australia and the United Kingdom suggests the preparation of treaty impact statements – in the United Kingdom they are prepared for all treaties tabled in Parliament while the Australian practice is more comprehensive by extending to every treaty. Given that it is possible not all treaties need to be tabled in the House under a reformed process, the practice in New Zealand could be that all treaties should be referred to a Treaty Committee, and those the Treaty Committee refers to the House be accompanied by a treaty impact statement.
181 The Foreign Affairs, Defence and Trade Select Committee’s Inquiry into Parliament’s Role in the International Treaty Process has recommended
2 A document along the lines of a “National Interest Analysis” would be prepared for each treaty and tabled in the House at the same time.
3 Both the treaty and accompanying “National Interest Analysis” would be referred to the Foreign Affairs, Defence and Trade Committee upon tabling.
182 The Ministry of Justice has also noted that:
TIS [treaty impact statements] would clarify the implications of a treaty, improve and promote information given to the community, and demonstrate just how a treaty relates to the national interest. TIS are a more involved undertaking than explanatory notes.169
Both the Australian Senate Legal and Constitutional References Committee report, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, and the report by the New Zealand Foreign Affairs, Defence and Trade Select Committee170 recommend that treaty impact statements should provide the following information:
183 The final point in this list could address the point made by one correspondent that part of Parliament’s role should entail ensuring that departments are in fact consulting.171 However, the Commission suggests that treaty impact statements include an amended requirement from the above list plus one additional requirement, as follows:
184 An additional note concerning treaty impact statements is that the introduction of such a procedure is analogous to two existing procedures. They are the requirement for recording financial and legislative implications of cabinet submissions (see the Cabinet Office Manual, paras 4.6–4.36), and the noting of compliance with legal principle and obligations in proposals for Bills (see the Cabinet Office Manual, para 5.26).172
185 It is important to put the proposals mentioned so far, regarding notification, consultation, a Treaty Committee, tabling, and treaty impact statements, into context. Concerns expressed in New Zealand on matters such as confidentiality relate to a small proportion of the treaties which are negotiated each year.
In the year between 1 July 1996 and 30 June 1997 New Zealand signed, ratified, accepted, approved or acceded to 35 treaties. Many of these treaties were routine bilateral agreements not of a controversial nature.173
Most bilateral treaties raise no general public issue at all. But some do, for instance some of the treaties relating to major CER developments and double taxation. And then there are the multilateral treaties, especially those of major importance and which have been the subject of public attention – foreign investment, international labour, environment, and human rights conventions in particular.
186 In some cases the government might make the assessment that a treaty is of major importance, and promote parliamentary consideration itself. In other cases, parliamentary consideration of the required legislation will provide sufficient opportunity to consider the executive’s action. But in other cases that will not be so. The practices and proposals mentioned above support proposals for better and more timely information to Parliament.
187 One point to consider is whether requirements should be imposed by legislation for notification, consultation, committee, treaty impact statements and tabling procedures.
Legislation putting these procedures in place may be required to ensure that the executive abides by them. In and of itself, a 15 day sitting rule is of limited value if the Government does not have to devote any parliamentary time to debate the treaties it tables or to motions regarding their approval, as experience in the United Kingdom has shown.174
188 The legislation issue arises, in part, because Parliament increasingly requires consultation – the growing internationalisation of matters once thought domestic may justify it. This point is illustrated by the Ozone Layer Protection Act 1990 where, under s 53(2), certain Orders in Council can only be made if the Minister has consulted with appropriate persons and is satisfied that New Zealand will be able to give effect to its relevant international obligations after making the Order. In this case the relevant commitments will have already been the subject of international negotiations which may have led to binding decisions. To be effective, any statutory obligation for consultation should occur at an early stage in the treaty making process.
189 A commentator has noted that
the main advantage of seeking to improve accountability in the treaty making process by setting out requirements in legislation is that it raises up a definite standard which is publicly available.175
190 Another commentator noted that
[c]onsideration should be given to amending the Foreign Affairs Act 1988 to place a duty on the Executive Government to transmit draft treaties to Parliament and otherwise provide appropriate notification of negotiations in which it is engaged. There should also be an obligation to table treaties that are subject to ratification acceptance or accession in a timely fashion. 176
191 A cautionary note is added:
In essence, the changes sought in New Zealand are changes to increase the power of the legislature and reduce control of the Executive. These are consistent with the direction in which our constitution has been moving, but it does not need to be done by elaborate statutory provisions. Indeed, the American experience would suggest we should avoid too much positive law on the topic.177
192 We have already noted the draft Bills that members from the different political parties have drawn up178 – two addressing parliamentary approval of treaties generally and one concerned specifically with one treaty. The Commission considers it unnecessary to legislate unless and until it appears that the suggested changes to Standing Orders are insufficient. But if legislation is thought necessary a broader perspective than that suggested to date would be beneficial, with legislation that covered the spectrum of the treaty making process. Such legislation (along with the relevant Standing Orders) would address, for instance:
193 Mäori concerns the lack of consultation by their treaty partner over various international agreements and lack of control over the creation of international obligations have been noted earlier. Steps to consult with Mäori could be included in the above proposals, as part of a Treaty Committee process. As suggested above, the effect of a proposed international agreement upon iwi Treaty of Waitangi partners could be included as a necessary part of any treaty impact statement.
194 Further, broader, suggestions have been made, some specifically using the concept of intellectual property to provide protection against the possible creation of inappropriate international obligations.179 Much consideration beyond the scope of this report is required before policy can be formed.
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195 The Law Commission recommends 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.
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196 The governing principle is that national law must give full effect to relevant treaty provisions as it must give full effect to other rules of international law. States cannot excuse non-compliance with their international obligations by reference to inadequate national law (see article 27 of the Vienna Convention on the Law of Treaties). Governments need to have practical arrangements to ensure that happens. As noted earlier, the Cabinet Office Manual requires Ministers, when proposing new legislation to report on the proposal’s compliance with New Zealand’s international treaty obligations and the New Zealand Bill of Rights Act 1990 (the latter closely follows the International Covenant on Civil and Political Rights). The Human Rights Committee, set up under the Covenant, has recently called attention to that linkage.
197 In many cases the best means of giving full effect to the treaty is that the treaty text itself is given the force of law.180 Whether, in the case of each particular treaty, this “force of law” implementation method is practicable depends upon the specificity and precision of the language used in the treaty text. The “force of law” legislative technique is then to be supplemented by a judicial approach which, according to Lord Wilberforce (quoting Lord Macmillan), is to be appropriate for the interpretation of an international convention, unconstrained by technical rules of English law or English legal precedent, and on broad principles of general acceptation.181 That international approach to the interpretation of treaties is now facilitated by the provisions of articles 31 to 33 of the Vienna Convention on the Law of Treaties. It is also facilitated by directions in particular treaties, such as article 7 of the United Nations Convention on Contracts for the International Sale of Goods, which requires that regard be had to its international character, the need to promote uniformity in its application, and the observance of good faith in international trade.182
198 Such an approach to interpretation can also be adopted when treaties, although not directly implemented or not even mentioned in the text, are recognised as relevant to the legislation.183 It is, however, easier to justify such an international approach where the relationship to the treaty is explicit. The lack of reference might also mean that the treaty connection is neglected, not only when the relevant legislation is being interpreted, but also when it is being reviewed. As mentioned already, such neglect increases the danger of inadvertent breach.
199 If the implementing legislation cannot give the treaty text the direct force of law, practice also indicates that the significance of the treaty can often be indicated in other ways. For example, an indication can be included in the title, preamble, a purpose provision, as a limit on or in the definition of delegated legislative powers or administrative powers (as in extradition provisions), or in a simple note in the text of the legislation. Such notation is relevant to new legislation, amending acts, and to acts which are unchanged but have been subsequently recognised as implementing a new treaty obligation.
200 Indeed, one of the 11 recommendations made by the Clerk of the House184 is that “any legislation to implement a treaty should, in its title, its preamble or in a purpose clause, make it explicit that it is being promoted for the purpose of permitting New Zealand to ratify the treaty”.
201 The changes necessary to enforce this recommendation and to standardise preferred forms of implementing legislation may, to be effective, require a direction of the Attorney-General to Parliamentary Counsel. There is legal power to give such directions under the Statutes Drafting and Compilations Act 1920, s 2(2) (and see also s 5(a)).185
202 It is worth mentioning the work of the International Law Commission (ILC).186 The ILC has a real interest in the question of acceptance and implementation of treaties in connection with the need for a body (in the Commonwealth and elsewhere) to undertake an important technical role of providing advice and assistance for states on how best to implement international treaty obligations in domestic legislation. This is in the hope that standard practice may then develop. The ILC may be able to give “a general push in that direction” although is not set up to give such assistance itself.187
203 Further,
recent experience . . . suggests two relevant concrete developments to which the ILC [International Law Commission] and its secretariat might be able to contribute. One is to examine again facilitating access to the sources of international law, a matter emphasised in article 24 of the Statute. . . . The second matter, to be related to the work on the greater acceptance of multilateral treaties and the multilateral lawmaking process, concerns the methods of implementation of multilateral treaties through national legal systems. While there are important differences between constitutional systems, many common threads exist. A great deal can be learnt by studying different methods of implementation.188
204 We note that there are three possible options in relation to the role of the courts. The first is a rule that forbids the courts from taking into account treaties not legislated into New Zealand law. This solution has support in Australia but is impracticable for the reasons stated in para 91.189 The second option is that treaties are not entered into until approved by the legislature but become part of the law upon execution, as in the United States of America,190 removing issues surrounding as yet unimplemented treaty obligations. The third option is that Parliament be involved in the treaty making process at an earlier stage. This would remove the possibility that courts are looking to international treaty obligations that have a potential to run contrary to later enacted legislation. For the reasons that accompany the above recommendations, the Commission prefers the third approach.
205 It is important to note in conclusion that the Law Commission makes these recommendations in response to the changing nature of New Zealand lawmaking – in particular the massive impact of globalisation upon New Zealand and its law. There is no criticism implicit of the professional manner in which the treaty making process has been conducted to date, rather it is suggested that it is now timely to consider development.
Greater public awareness and involvement in foreign affairs and trade under MMP is inevitable. It is already happening. It is to be welcomed. I expect that the public service in general will find itself more exposed to scrutiny from members of Parliament, select committees, lobby groups, the media and the general public . . . I see it positively as a challenge and an opportunity.191
206 All change in relation to the treaty making process requires balancing the value of competing factors – including timeliness, consultation, confidentiality, public participation, parliamentary participation, access to information, available resources, and efficiency.
207 Under the current process, Parliament has the opportunity to participate in treaty making only by disapproving of treaties after they have been signed, and this only if legislation is needed. If legislation is not needed then Parliament is not involved at all. The only logical alternative – of indicating disapproval after the government has committed itself to a treaty – is inconceivable.192 There is the also the converse problem that Parliament, not being privy to the crafting of the international document which preceded the introduction of domestic legislation, may risk passing legislation without considering its full consequences.193
208 In the draft report circulated in 1995, the Law Commission suggested that to avoid breaching its international obligations New Zealand needed a more systematic practice for creating and giving effect to its treaty obligations. That view has not changed. It is supported by the observation that “it seems inevitable that, under MMP, the Parliament will demand a greater say in the international obligations that New Zealand undertakes”.194
209 As the Law Commission recommendations and those of the Foreign Affairs, Defence and Trade Select Committee indicate, consideration should now be given to improving the general practices of, and parliamentary involvement in, the treaty making process. The Ministry of Justice notes:
Strengthening the role of Parliament in the treaty-making process is likely to bolster the legitimacy of the process . . . . The main issue is the degree to which its role should be strengthened vis-à-vis the executive. Change appears inevitable. The task, therefore, is to ensure that the changes that are made will enhance the process.195
210 To conclude, the Commission emphasises the need for all those involved in the making, application, interpretation, review, development and the teaching of the law, to be increasingly aware of the international or global context in which much law operates and from which it arises.
211 This report is only a snapshot of an ongoing treaty process – one which must also be able to adapt to future needs.
[W]e should be searching for the wise restraints that make us free.196
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