179 The Law Commission recommends that consideration be given to the preparation of a treaty impact statement for all treaties to which New Zealand proposes to become a party.
180 Practice in both Australia and the United Kingdom suggests the preparation of treaty impact statements – in the United Kingdom they are prepared for all treaties tabled in Parliament while the Australian practice is more comprehensive by extending to every treaty. Given that it is possible not all treaties need to be tabled in the House under a reformed process, the practice in New Zealand could be that all treaties should be referred to a Treaty Committee, and those the Treaty Committee refers to the House be accompanied by a treaty impact statement.
181 The Foreign Affairs, Defence and Trade Select Committee’s Inquiry into Parliament’s Role in the International Treaty Process has recommended
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.
182 The Ministry of Justice has also noted that:
TIS [treaty impact statements] would clarify the implications of a treaty, improve and promote information given to the community, and demonstrate just how a treaty relates to the national interest. TIS are a more involved undertaking than explanatory notes.169
Both the Australian Senate Legal and Constitutional References Committee report, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, and the report by the New Zealand Foreign Affairs, Defence and Trade Select Committee170 recommend that treaty impact statements should provide the following information:
reasons for New Zealand being a party to the treaty;
any advantages and disadvantages to New Zealand of the treaty entering into force in respect of New Zealand;
any obligations which would be imposed on New Zealand by the treaty;
any economic, social, cultural, and environmental effects of the treaty entering in force in respect of New Zealand, and of the treaty not entering in force in respect of New Zealand;
the costs to New Zealand of compliance with the treaty;
the possibility of any subsequent protocols (or other amendments) to the treaty, and of their likely effects;
measures which could or should be adopted to implement the treaty, and the intentions of the government in relation to such measures, including legislation;
whether the treaty provides for withdrawal or denunciation; and
a statement setting out the consultations which have been undertaken or are proposed with the community and interested parties in respect of the treaty.
183 The final point in this list could address the point made by one correspondent that part of Parliament’s role should entail ensuring that departments are in fact consulting.171 However, the Commission suggests that treaty impact statements include an amended requirement from the above list plus one additional requirement, as follows:
a statement setting out the consultations which have been undertaken or are proposed with the community, Mäori and interested parties in respect of the treaty; and
whether the treaty has any effect upon rights provided by the Treaty of Waitangi.
184 An additional note concerning treaty impact statements is that the introduction of such a procedure is analogous to two existing procedures. They are the requirement for recording financial and legislative implications of cabinet submissions (see the Cabinet Office Manual, paras 4.6–4.36), and the noting of compliance with legal principle and obligations in proposals for Bills (see the Cabinet Office Manual, para 5.26).172
185 It is important to put the proposals mentioned so far, regarding notification, consultation, a Treaty Committee, tabling, and treaty impact statements, into context. Concerns expressed in New Zealand on matters such as confidentiality relate to a small proportion of the treaties which are negotiated each year.
In the year between 1 July 1996 and 30 June 1997 New Zealand signed, ratified, accepted, approved or acceded to 35 treaties. Many of these treaties were routine bilateral agreements not of a controversial nature.173
Most bilateral treaties raise no general public issue at all. But some do, for instance some of the treaties relating to major CER developments and double taxation. And then there are the multilateral treaties, especially those of major importance and which have been the subject of public attention – foreign investment, international labour, environment, and human rights conventions in particular.
186 In some cases the government might make the assessment that a treaty is of major importance, and promote parliamentary consideration itself. In other cases, parliamentary consideration of the required legislation will provide sufficient opportunity to consider the executive’s action. But in other cases that will not be so. The practices and proposals mentioned above support proposals for better and more timely information to Parliament.
187 One point to consider is whether requirements should be imposed by legislation for notification, consultation, committee, treaty impact statements and tabling procedures.
Legislation putting these procedures in place may be required to ensure that the executive abides by them. In and of itself, a 15 day sitting rule is of limited value if the Government does not have to devote any parliamentary time to debate the treaties it tables or to motions regarding their approval, as experience in the United Kingdom has shown.174
188 The legislation issue arises, in part, because Parliament increasingly requires consultation – the growing internationalisation of matters once thought domestic may justify it. This point is illustrated by the Ozone Layer Protection Act 1990 where, under s 53(2), certain Orders in Council can only be made if the Minister has consulted with appropriate persons and is satisfied that New Zealand will be able to give effect to its relevant international obligations after making the Order. In this case the relevant commitments will have already been the subject of international negotiations which may have led to binding decisions. To be effective, any statutory obligation for consultation should occur at an early stage in the treaty making process.
189 A commentator has noted that
the main advantage of seeking to improve accountability in the treaty making process by setting out requirements in legislation is that it raises up a definite standard which is publicly available.175
190 Another commentator noted that
[c]onsideration should be given to amending the Foreign Affairs Act 1988 to place a duty on the Executive Government to transmit draft treaties to Parliament and otherwise provide appropriate notification of negotiations in which it is engaged. There should also be an obligation to table treaties that are subject to ratification acceptance or accession in a timely fashion. 176
191 A cautionary note is added:
In essence, the changes sought in New Zealand are changes to increase the power of the legislature and reduce control of the Executive. These are consistent with the direction in which our constitution has been moving, but it does not need to be done by elaborate statutory provisions. Indeed, the American experience would suggest we should avoid too much positive law on the topic.177
192 We have already noted the draft Bills that members from the different political parties have drawn up178 – two addressing parliamentary approval of treaties generally and one concerned specifically with one treaty. The Commission considers it unnecessary to legislate unless and until it appears that the suggested changes to Standing Orders are insufficient. But if legislation is thought necessary a broader perspective than that suggested to date would be beneficial, with legislation that covered the spectrum of the treaty making process. Such legislation (along with the relevant Standing Orders) would address, for instance:
the establishment and functions of a Treaty Committee of Parliament,
formal processes of notification and consultation,
the practice of timely tabling of treaties,
the preparation of treaty impact statements, and
a direction as to desirable drafting practices of implementing legislation (at a minimum the noting of the statute’s international origins).