International Treaties Bill – Second Reading

I am disappointed that this bill will probably be voted down after this second reading debate, although I am optimistic that members will be convinced during the debate to change their minds, just as I am optimistic that Team New Zealand will probably come back from three down. I am very pleased that the bill has received serious consideration by the House and by the Foreign Affairs, Defence and Trade Select Committee.

Several proposals for improving Parliamentary oversight of international treaties were contained in the first Interim Report on the International Treaties Bill, which was discussed in Parliament late last year and there was a very constructive atmosphere in the Select Committee in producing these recommendations.

The Chairperson of the committee in the last Parliament, Graham Kelly, said the bill was ahead of its time, a comment I welcome, because I think it recognises the moral and principled case underlying this bill.

It is what one might call a “democratic deficit” when Parliament can debate and vote on everything else, bar international treaties and agreements.

This is strange when international treaties are so hugely important in our lives now. Who can doubt the importance of the Kyoto Protocol, or the treaties governing the World Trade Organisation and the General Agreement on Trade in Services (GATS)?

It is interesting that the bill has received its strongest support from what one could call the left and right of the political spectrum.

The Greens are keen on treaties which implement global responsibility and citizenship in peace, human rights, environmental and social justice areas, while we strongly oppose those treaties and agreements that reinforce the power and wealth of rich countries and multinationals — as with most of the so-called “free trade” agreements.

ACT is also keen on treaties, although it commonly takes an opposite stance to the Greens.

So what we have here is a democracy issue, which affects everyone.

The opposition to the bill doesn’t argue against its moral basis. Essentially the arguments are that it is not practical. So let us look at these arguments.

They say: there are so many treaties and amendments to treaties now that Parliament would get bogged down considering them. That is not true. Parliament is perfectly capable of sorting out the wheat from the chaff and only spending serious time on those treaties where there are substantive, controversial issues. Other Parliaments in Europe where they have parliamentary approval processes are able to be selective about what treaties they discuss. In our legislative system here we put a lot of routine non-controversial legislation through in Statutes Amendment Bills, which go through in a flash.

Another argument against my bill, which allows for some parliamentary discussion of bilateral agreements or treaties when they are still under negotiation, is that this would somehow disadvantage the Government in negotiations.

Nobody is objecting to confidentiality on some details of the Government’s position, but it actually strengthens the Government’s hand in negotiations if there has been discussion of the broad themes, and the other governments we are negotiating with know that there is a popular mandate for the New Zealand Government’s stance.

Too often, secrecy is used as an excuse for a New Zealand government signing up to things the people don’t agree with. We saw this happening with the Multilateral Agreement on Investment (MAI), which was negotiated in the 1990s, where once people around the world saw what sovereignty their governments were giving away they torpedoed the whole agreement.

That is why it is important we know what the government might be giving away in current negotiations over our commitments to the GATS. Already we are stymied on having compulsory local content quotas in television, films and music, because a past government gave them away in GATS commitments without proper discussion.

Yes, treaties do involve us giving up, for a time period, some of our sovereignty, but the Greens distinguish between giving up some sovereignty — that is, working collectively to help such critical environmental problems as global warming as we see in the Kyoto Protocol – and giving away sovereignty to multinational companies, for their enrichment, as is accomplished through the GATS or the WTO.

New Zealand, as a world citizen, needs to be involved in monitoring and reassessing treaties and agreements as we go down the track, including those treaties associated with the operations of the World Trade Organisation.

We can do that through the Select Committee process now, but it should be complemented by a parliamentary approval process for any proposals the Select Committee comes up with. For example, it is important to monitor what is actually being done right or wrong by the new Food Standards Australia New Zealand.

The Greens think the arrangement has given over too much control to Australia to determine our food standards. Let us monitor it in a full parliamentary manner.

There is another important democratic issue, which explains why parliamentary approval processes for treaties are more common in countries with proportional representation.

We haven’t yet had a majority government under MMP, so how can we say a Government negotiating a treaty represents the majority of New Zealanders?

Potentially we get into a terrible bind, where a minority Government approves a treaty, but has not got a majority in Parliament to get through the implementing legislation. We even had a situation, over the Singapore Free Trade Agreement, where one of the Government parties – the Alliance – was in disagreement with Labour, so Labour felt obliged to go to a parliament debate and an “indicative” vote to prove it had the majority — and it got that through National Party support.

In essence, this was a concession as to the validity of this bill.

Any disjunction between the treaty and the legislation we put through this Parliament creates major dilemmas for our courts. Some treaties do not require implementing legislation but the courts still have to take them into account in determining cases. But they do not know how much to take them into account, because they do not know how much support the treaties had in the House.

There are well-known cases where judges have used treaties to over-rule arguments based on our legislation. In the Tavita and Puli’uvea immigration cases, for example, the International Covenant on Civil and Political Rights and the United Nations Convention on the Rights of the Child were used to allow families with children to stay in New Zealand.

Some treaties do not require legislation to implement them, so they do have quite an impact on law, even though they might not have had a majority support in the House.

Some treaties are implemented through regulations, proclaimed by the Government not Parliament, although we do have a Regulations Review Committee to hopefully send the Government the message when these regulations are inappropriate or without an adequate mandate. There has been an inquiry by that select committee effectively to put guidelines around when regulations, flowing from treaties, can be used.

It would clearly be much better if the treaty from which the regulations flowed had Parliamentary approval.

I am appreciative of the recommendations in the Select Committee’s interim report on this bill. I hope the Standing Orders Committee will implement those recommendations concerned with such things as the right of committees to analyse bilateral agreements, and not just multilateral treaties; expansion of National Interest Analyses, hopefully to include the Treaty of Waitangi implications, as in my bill, as well as human rights, local government and international implications; and a broader public consultation process before national interest analyses are produced.

The Standing Orders Committee could also take on board a recommendation that treaties can be examined during the negotiation phase, and one that there can be parliamentary debates on selected treaties.

There are also suggestions from the Select Committee to the Government about more briefings for select committees on what treaties are coming up, better information to the public on treaty development, and more time for select committees to discuss treaties when they are in the process of formation.

All these things are very good but they are not a substitute for a proper Parliamentary approval process.

We do live in a democracy, and I am sure we will one day come to s situation where we do have Parliamentary approval for treaties.