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.
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
Early notification and consultation
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.
150 The Law Commission recommends that consideration be given to the establishment of a Treaty Committee of Parliament.
A Treaty Committee role
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:
receive reports, copies of treaties and other relevant documentation (eg, summaries of treaty negotiations) from the Department of Prime Minister and Cabinet (DPMC) and the Department of Foreign Affairs and Trade (DFAT) concerning the status of treaties and treaty negotiations;
issue periodic reports to federal Parliament on treaty making in Australia, including the status of negotiations, and highlight important matters ahead of ratification;
keep under review the Principles and Procedures for Commonwealth-State Consultation on Treaties and other relevant practices adopted by DFAT. 156
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.)
Statement to the House
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.