New zealand law commission

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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.

Relevant House discussion and debate

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.

Tabling of treaties

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:

  • Before the House ratifies any treaty, it should be necessary for the House to approve the making of that treaty.

  • Prior parliamentary approval to ratify a treaty may be given by a simple resolution of the House.

  • For the purpose of considering whether to approve a treaty, the treaty should be tabled in the House in draft.

  • After being tabled the draft treaty would be referred to the appropriate select committee for consideration.

  • A time limit within which the committee must report the draft treaty back to the House would be imposed (say, 15 sittings days).

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.

Tabling of urgent treaties

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.

Resolution by 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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