I am presenting on behalf of my colleague Keith Locke. The International Treaties Bill was drafted by him and is being considered by the Foreign Affairs, Defence and Trade Select Committee of which he is a member.
It is a pleasure to be able to explain the interim report and the second interim report on the International Treaties Bill.
The Bill itself is a very important bill, and I congratulate the Foreign Affairs, Defence and Trade Select Committee for dealing with it in such a constructive manner.
Essentially the bill deals with a “democratic deficit” in our legislative system, in that international treaties are approved, not by the Parliament, but by the government of the day.
What we are engaged in with this bill is a process of democratisation. Executive authorities have been slow to devolve treaty making powers to the people. In earlier centuries, when the King or Queen gave powers over the Parliament, he or she kept treaty making powers. Now many governments are reluctant to pass those powers over to the Parliament.
However, several European parliaments have a treaty approval process, so it can be done. With MMP we have become more of a European-style proportional system of government, so why not follow the Europeans in approving treaties?
Under MMP minority governments are quite common. Without a House approval process, we could actually have treaties ratified with only minority support in the House. This could lead to the absurd situation where Parliament discovers during the consideration of legislation to implement a treaty that it doesn’t really agree with key provisions in the treaty.
There are two basic practical problems with not having a parliamentary approval process.
Firstly, judges can find it difficult to know what legal weight to give to a treaty. On the one hand it might be a significant treaty and appear on the surface to have great weight. But what happens when some of its provisions conflict with New Zealand legislation that has actually been approved by Parliament? Other treaties are stand alone treaties, without any legislative implementing them. Judges are forced to give considerable weight to treaties, despite the shortcomings in the approval process.
And why should New Zealand get out of its international treaty obligations? In June a High Court judge, Justice Baragwanath, ruled that the government’s practice of virtually blanket detention of asylum seekers arriving at our border conflicted with the 1951 Refugee Convention, which a New Zealand government had signed
Secondly, the lack of a thorough Parliamentary approval process for treaties means that when it comes to follow up legislation many MPs are not up to speed with what the treaty is all about.
There are many important treaties. Everyone will agree that the Kyoto Agreement on climate change is very important. With a full approval process for this treaty we would have been in a stronger position to consider the implementing legislation, some of which is now going through Parliament.
Of course, the current select committee procedure for treaties helps with treaties like Kyoto. look at the Kyoto treaty helps prevent that happening, However, without first, second and third readings, and committee stages, and a vote, this is still a limited oversight process.
The select committee didn’t agree with me to go the whole hog to a Parliamentary approval process, as outlined in my bill, but they did agree there needed to be changes to get Parliament more involved in treaty analysis before ratification was proceeded with by the government. Collectively, the committee members came up a with a lot of good recommendations.
As a committee, we are also experimenting with changes to treaty examination, to see how they work out in practice, before we make our final recommendations to the House.
I will go through some of the committee’s recommendations. The first few could involve some changes to Standing Orders.
Firstly, we want to be able to analyse bilateral treaties. As we found with the Singapore free trade treaty, or the prospective Hong Kong and United States free trade treaties, bilateral treaties are of huge political significance. Of course, we would not want to examine all treaties, some are simply technical, or uncontroversial. There is no problem filtering these out and expedite their passage, so as not to waste Parliament’s time. We have been told that a list of upcoming treaties could be easily be made available for us to sort through.
We also agreed to seek an expansion of the National Interest Analysis provided for select committee treaty examination. My bill suggests we include the Treaty of Waitangi implications of a treaty in the NIA, to which has now been added the impact on human rights, local government and existing international obligations. There was also a view in the committee that the consultation process that precedes the production of the National Interest Analysis could broader and more substantive. As well as the official NIA it could also be useful to have additional independent NIAs, because the NIA process is supposed to bring out critical issues, not just be another excuse for the particular government department to say how good its treaty is.
There could also usefully be a special Treaty Committee of the House. However, whether this would be justified requires further discussion. There are pros and cons.
The next recommendation deals with the ability of committees to conduct a treaty examination during the treaty negotiation phase in cases where there is a serious public interest. That can be very useful. For example, at the moment there is considerable interest in a possible so-called free trade agreement with the United States. In fact, the Green Party is worried it would be very detrimental to our interests. While not every detail of negotiations needs to be made public there should not be a problem with exposing the substantive issues. It is in the public interest, for example, over the US/NZ free trade negotiations, for the general negotiating positions of New Zealand and the United States being available, and discussed.
Additionally, as Sir Kenneth Keith has pointed out, treaty scrutiny could be extended to monitoring on-going compliance with international treaties.
The committee is also rightly recommending that we have debating time in the House when a substantive committee report on a treaty is presented to the House. We had a parliamentary debate on the Singapore free trade agreement, which was good, and broke the ice on this matter.
Some of the above changes in Standing Orders need to be complemented by improved government practices.
The government could give the select committees more briefings on what treaties are coming up, where they are at, what the key issues involved are, who is being consulted, etc. The committee can then decide, if it wishes, to get more involved, or suggest additional parties to be involved in the consultation process. The issue of consultation with Maori was a particular concern to the committee.
We also wish the government to explore ways of making information on treaty actions more accessible to the general public. One thing I have learnt in select committee work is that there is a huge pool of expertise out their in the public that we need to bring into treaty consideration. Greater public access to information, particularly via the internet, is crucial to enable this.
We have also want the House to give consideration to whether the time frame for committee examination of treaties should be extended. Because the executive is still in charge of treaty ratification, it dictates dictate the time for committee consideration, after which they may sign the treaty. Currently the executive dictates 15 sitting days, which is often too short to properly advertise submissions, hear them, and then adequately consider and deliberate on a committee report back on the treaty.
The Second Interim Report on the International Treaties Bill basically concerns the presentation to the committee of changes to existing treaties. It is simply common sense that amendments to an existing treaty should be highlighted in the main text, not presented in a separate document.
Finally, when Parliament had its first reading on my International Treaties Bill, Graham Kelly thought the bill was a good idea, but 8 to 10 years ahead of its time. However, I am an optimist and I think that it may not take that long for MPs to come around. In the meantime, I am very pleased to note the cross-party consensus on the select committee recommendations for substantial improvements to the treaty examination process.