New zealand law commission



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COURTS


204 We note that there are three possible options in relation to the role of the courts. The first is a rule that forbids the courts from taking into account treaties not legislated into New Zealand law. This solution has support in Australia but is impracticable for the reasons stated in para 91.189 The second option is that treaties are not entered into until approved by the legislature but become part of the law upon execution, as in the United States of America,190 removing issues surrounding as yet unimplemented treaty obligations. The third option is that Parliament be involved in the treaty making process at an earlier stage. This would remove the possibility that courts are looking to international treaty obligations that have a potential to run contrary to later enacted legislation. For the reasons that accompany the above recommendations, the Commission prefers the third approach.

CONCLUSION


205 It is important to note in conclusion that the Law Commission makes these recommendations in response to the changing nature of New Zealand lawmaking – in particular the massive impact of globalisation upon New Zealand and its law. There is no criticism implicit of the professional manner in which the treaty making process has been conducted to date, rather it is suggested that it is now timely to consider development.

Greater public awareness and involvement in foreign affairs and trade under MMP is inevitable. It is already happening. It is to be welcomed. I expect that the public service in general will find itself more exposed to scrutiny from members of Parliament, select committees, lobby groups, the media and the general public . . . I see it positively as a challenge and an opportunity.191

206 All change in relation to the treaty making process requires balancing the value of competing factors – including timeliness, consultation, confidentiality, public participation, parliamentary participation, access to information, available resources, and efficiency.

207 Under the current process, Parliament has the opportunity to participate in treaty making only by disapproving of treaties after they have been signed, and this only if legislation is needed. If legislation is not needed then Parliament is not involved at all. The only logical alternative – of indicating disapproval after the government has committed itself to a treaty – is inconceivable.192 There is the also the converse problem that Parliament, not being privy to the crafting of the international document which preceded the introduction of domestic legislation, may risk passing legislation without considering its full consequences.193

208 In the draft report circulated in 1995, the Law Commission suggested that to avoid breaching its international obligations New Zealand needed a more systematic practice for creating and giving effect to its treaty obligations. That view has not changed. It is supported by the observation that “it seems inevitable that, under MMP, the Parliament will demand a greater say in the international obligations that New Zealand undertakes”.194

209 As the Law Commission recommendations and those of the Foreign Affairs, Defence and Trade Select Committee indicate, con­sideration should now be given to improving the general practices of, and parliamentary involvement in, the treaty making process. The Ministry of Justice notes:

Strengthening the role of Parliament in the treaty-making process is likely to bolster the legitimacy of the process . . . . The main issue is the degree to which its role should be strengthened vis-à-vis the executive. Change appears inevitable. The task, therefore, is to ensure that the changes that are made will enhance the process.195

210 To conclude, the Commission emphasises the need for all those involved in the making, application, interpretation, review, development and the teaching of the law, to be increasingly aware of the international or global context in which much law operates and from which it arises.

211 This report is only a snapshot of an ongoing treaty process – one which must also be able to adapt to future needs.

[W]e should be searching for the wise restraints that make us free.196


APPENDIX A

Overseas practice and experience of treaty making and implementation197


A1 By way of introduction to the differing overseas practices in treaty making, it is instructive to consider the following table: Treaty making practice in OECD countries. It shows that the majority of OECD countries require parliamentary approval of at least some categories of treaties and that this does not appear to have impeded their ability to conduct foreign policy. Also, in a significant number of those OECD countries treaties are self-executing.198 It also shows, in comparison, that New Zealand has no process of parliamentary approval nor self-executing treaties. In New Zealand, however, some treaties that do not require legislation to implement them are, while not in the strict legal sense, in effect self-executing.

table: Treaty making practice in OECD countries

Country

Number of conventions as at 10/5/95

Parliamentary approval required for certain types of treaty?

Are treaties self-executing?

Denmark

68

Yes

No

France

66

Yes

Yes

Netherlands

66

Yes

Yes

Finland

65





Germany

65

Yes

Yes

Spain

64

Yes

Yes

Sweden

63

Yes

No

Austria

62

Yes

Yes

Italy

62

Yes

No

Norway

62

Yes

No

United Kingdom

61

No

No

Australia

59

No

No

Greece

55

Yes

Yes

Mexico

55



Yes

Switzerland

54

Yes

Yes

Luxembourg

53

Yes

Yes

Belgium

52

Yes

Yes

Portugal

48

Yes

Yes

Japan

47

Yes

Yes

Canada

47

No

No

Ireland

46

Yes

No

United States

46

Yes

Yes

New Zealand

44

No

No

Turkey

31

Yes

Yes


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