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Explanation of NZ's Treaty Making Process

In light of the reiteration of the incorrect assertion that Parliament that would ratify the Trans-Pacific Partnership Agreement by Stephen Jacobi on Morning Report today, I am reissuing the following explanation and associated press release from December 2012. I note that the new processes for Regulatory Impact Assessments are now likely to be more robust than the old National Interest Analysis process, although this would only be prepared and published after the text is signed.

Prof Jane Kelsey

Explanation of NZ's Treaty Making Process

Past challenges to the effective exclusion of both Parliament and the public from such decisions include reviews of standing orders as well as private members bills on International Treaties promoted first by Ken Shirley from ACT and then by Keith Locke from the Greens in 2000.

The Cabinet manual spells out the powers and process for entering into international treaties. Paragraph 7.112 states that “In New Zealand, the power to take treaty action rests with the Executive.” In practice that means the Cabinet.

Cabinet decides whether to enter into negotiations, the negotiating mandate and any revisions to it, and what trade-offs are made to conclude a deal.

Cabinet then approves the signing of the agreed text by the Minister. This is a definitive step that binds the government to act in good faith towards its negotiating partners. The Cabinet manual makes it clear that by signing an agreement the executive indicates an intention for New Zealand to be bound to that text. This constitutes a good faith obligation under international law.

Parliament does not get to see the completed text until that stage. According to the Cabinet Manual, a signed TPPA would then be presented to Parliament, accompanied by a National Interest Analysis. These analyses have been widely criticised during the standing orders reviews and submissions on the International Treaties Bill for their lack of independence and balance, because they are prepared by the same Ministry of Foreign Affairs and Trade that negotiated the agreement.

The treaty is then referred to the foreign affairs, defence and trade select committee, which has the discretion whether or not to seek public submissions. But the select committee has no substantive power. The Cabinet Manual (para 7.119) makes it clear that the executive can move to ratify the TPPA while the select committee process is still underway.

Specifically, the government cannot ratify the treaty until the select committee has reported or 15 sitting days have elapsed since it was presented to Parliament, whichever is sooner. In other words, the maximum period for the select committee to report on the bill is 15 days after it is tabled. Within these 15 days submitters need to (a) access the document, (b) analyse its technical detail across a reported 29 chapters, (c) write an accurate and detailed submission, and (d) appear at a hearing before the select committee, and for the committee to prepare a considered report.

4 December 2012

For immediate release

‘Treaty-making 101’ for Ministers, bloggers and corporate lobbyists

“Recent statements by politicians, corporate lobbyists and pro-TPP commentators imply that Parliament gets the final say over the Trans-Pacific Partnership agreement (TPPA). That shows woeful ignorance of New Zealand’s treaty making process”, says Auckland University law professor Jane Kelsey.

“The Cabinet Manual could not be more clear: “7.112: In New Zealand, the power to take treaty action rests with the Executive.” In practice, that means the Cabinet.

“Any claim that this is a democratic process is disingenuous. Successive governments have blocked changes to standing orders and legislation proposed by ACT and the Greens that would have given Parliament a stronger role in approving treaties. In both cases the Ministry of Foreign Affairs and Trade vigorously and successfully defended its turf.”

The text is not tabled in Parliament until it is signed, which means the Cabinet has already formally indicated its commitment to adopt the text. It is then referred to the foreign affairs, defence and trade select committee, which is required to report back within 15 sitting days, unless the government extends the time.

Professor Kelsey called for a reality check. “If the TPPA is completed it will be the size of two telephone books. Very few people can provide a comprehensive and informed submission within the available time.”

“From past experience, the select committee process is a cosmetic exercise anyway, because the government has a majority. Even if it wanted to propose changes, the committee has no power. The Cabinet can ratify the treaty while the hearings are still proceeding, as happened with New Zealand Thailand Closer Economic Partnership.”

Parliament might be invited to vote on the TPPA, if the government majority agrees, but the vote would be symbolic. Such votes were held on several recent free trade agreements – with the assurance of a bi-partisan National/Labour consensus. That consensus is no longer guaranteed, given the Labour Party’s policy remit adopted at the recent conference.

Even where implementing legislation is required, Parliament could refuse to pass the laws, but if the treaty were already ratified New Zealand would then be in breach of its new obligations. But the government could seek to bypass legislation. Controversial changes to Pharmac, for example, might be made by regulation.

“The sad truth is that our elected representatives, and we as citizens, are impotent to affect a process that the Cabinet effectively controls from start to finish. Those who claim it is not, from the Prime Minister down, are misleading the public deliberately or otherwise.”


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