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79 See Mäori Trade Marks Focus Group, Mäori and Trade Marks: A Discussion Paper (Ministry of Commerce, Wellington, 1997), which discusses intellectual property laws, and Mäori words and symbols, plus trade and trade mark matters.

80 Jones, "Indigenous Peoples and Intellectual Property Rights", (1996) 4(2) Waikato LR, 117. Of relevance is the Member's Bill currently before the House, the Täonga Mäori Protection Bill 1996. As the long title indicates, it seeks to "make provision for the preservation of the Mäori cultural heritage in Aotearoa, New Zealand, and for related purposes".

81 Lenihan, 214.

82 See further discussion on consultation in paras 99-108.

83 Jackson (Ngati Porou, Ngati Kahungunu), Mana News, Morning Report, National Radio, 4 June 1997.

84 Jackson (Ngati Porou, Ngati Kahungunu), Kia Hiwa Ra, June 1997, 18. See also paras 74-77 on concerns over the Multilateral Agreement on Investment and paras 193-194 for discussion on possible solutions.

85 Repealed in 1966. It appears, however, that the wording and workings of this section may not have been the model of parliamentary approval for treaties it first seems, with treaty ratification being a power that belongs to the executive and not the legislature. In practice the stipulation has been treated as relating to domestic customs law and not to the power of the executive to accept treaty obligations. See further Keith, "New Zealand Treaty Practice: the Executive and the Legislature" (1964) 1 NZULR 272, 289-290, for detailed explanation and discussion of the practice surrounding s 10.

86 Keith, "New Zealand Treaty Practice: the Executive and the Legislature", contains detailed and extremely useful discussion on the convention and the role of Parliament in treaty making generally.

87 McGee, Clerk of the House of Representatives, "Treaties and the House of Representatives", Annex D, Report of the Standing Orders Committee On its Review of the Operation of the Standing Orders, 1996 AJHR I.18B. See paras 150-160 for further detail on the possible use of select committees.

88 See para 165 for details of the Select Committee's report and recommendations.

89 See paras 169, 171 and 192. As at November 1997, neither of these draft Bills had been successful in the ballot.

90 "Investment treaty nears completion", Herald, 7 April 1997. There is also discussion of the reservations countries might make against certain provisions of this treaty, for example, by New Zealand to protect the position of the Overseas Investment Commission. Opposition members of Parliament, and the Clerk of the House, have commented in the media upon the need for treaties such as this one to be put before Parliament.

91 Kelsey, "New treaty poses cost worry to business", National Business Review, 11 July 1997, in reference to the January 1997 draft of the treaty. See also: NZLJ editorial "Law By Executive Decree?", July 1997, 221; "Too many pacts for Parliament", Independent, 5, 23 May 1997 and editorial (Berryman), "The executive is selling our sovereignty - in secret", 8, 6 June 1997; "Secret plottings on foreign investment", Herald, A15, 9 May 1997 and "Foreign deal for cabinet eye only", 1, 21 May 1997; "Secrecy concerns Anderton", Dominion, 2, 22 May 1997. The Ministry of Justice is also developing a research paper examining New Zealand's treaty making process: Gobbi and Barsi, "New Zealand's Treaty-Making Process: Understanding the Pressures and Proposals for Reform (Draft No 3)", (Strategic Assessment Group, Ministry of Justice, Wellington, 1997). Also, in late 1996 the Director of the Legal Division at MFAT spent some time at Cambridge University, UK, studying other countries' treaty making practices; James, "In spring an old politician's thoughts rise with the sap", National Business Review, 17, 24 October 1997.

92 Mana News, Morning Report, National Radio, Friday 19 September 1997. (This is a continuing issue - see also Mana News, Morning Report, National Radio, Wednesday 17 September 1997 and Thursday 2 October 1997.)

93 Like the other draft Member's Bills on similar subject matter, as at November 1997 this draft Bill had not been successful in the ballot. The government has since made public a draft of the MAI.

94 See appendix A.

95 Keith, "New Zealand Treaty Practice: the Executive and the Legislature", (1964) 1 NZULR 272, 279.

96 See paras 57-58 for an explanation of "democratic deficit".

97 Attorney-General of Canada v Attorney-General of Ontario [1937] AC 326. See paras 12-13.

98 Rayfuse, "Treaty Practice: The Canadian Perspective", in Alston and Chiam (eds), Treaty-Making and Australia (Federation Press, Sydney, 1995), 253.

99 Although this internal distribution of legislative powers is essentially of no interest to New Zealand, it is of relevance to the position of the Cook Islands, Niue and Tokelau: Keith, correspondence, 14 October 1997. We include the Labour Conventions case discussion for completeness.

100 Strom and Finkle, "Treaty Implementation: The Canadian Game Needs Australian Rules" (1993) 25(1) Ottawa LR 39, 47 and 60.

101 [1932] AC 304, 312. While this was not the only reason given for the decision it did seem to be part of the ratio decidendi: Hogg, Constitutional Law of Canada (3rd ed, Carswell, Toronto, 1992), 293.

102 Johannesson v West St. Paul [1952] 1 SCR 292, 303; Francis v The Queen [1956] SCR 618, 621; Re Offshore Mineral Rights of BC [1967] SCR 792, 815-817; MacDonald v Vapor Canada [1977] 2 SCR 134, 167-172; Schneider v The Queen [1982] SCR 112, 134-135; see also Rand, "Some Aspects of Canadian Constitutionalism" (1960) 38 Can Bar Rev 135, 142-143; Hogg, 294, note 49.

103 Lederman, Continuing Canadian Constitutional Dilemmas (Butterworths, Toronto, 1981), ch 19. See also Hogg, 295.

104 Hogg, 296.

105 Keith, "New Zealand Treaty Practice: the Executive and the Legislature", 279.

106 Naylor, "Australia's Treaty Making Process: Democracy in Action?" (Winter 1995) Australia Law Reform Commission 67 Reform 40.

107 Palmer, correspondence, 30 September 1997. See chapter 7 on how reforms to the treaty making process might be shaped.

108 Office of the Clerk of the House of Representatives, correspondence, 17 October 1997. See further on self-executing treaties in paras 130-131.

109 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; see paras 39-40.

110 Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

111 Harris, "The Law-Making Power of the Judiciary", in Joseph (ed), Essays on the Constitution (Brookers, Wellington, 1995), 270.

112 McGee, "Treaties - A Role For Parliament?", (1997) 20(1) Public Sector, 3.

113 See paras 40-41.

114 Critical for meeting and overcoming neglect of international treaties and their effect is the education and general culture of the legal profession, law schools, government lawyers, officials, Ministers and others as indicated by Higgins, Problems & Process: International Law and How We Use it (Clarendon Press, Oxford 1994), chapter 12, and Jennings, "An International Lawyer Takes Stock" (1990) 39 ICLQ 513. One significant element in that process of education in one area is the series of human rights conferences of senior Commonwealth judges, most recently at Bloemfontein, 19 CLB 1644. See also Kirby, "The Australian Use of International Human Rights Norms: From Bangalore to Balliol - or A View from the Antipodes" (1993) 16 UNSWLR 363.

115 Higgins, 213.

116 See Cooke, "Fundamentals" [1988] NZLJ 158.

117 Gobbi and Barsi, "New Zealand's Treaty-Making Process: Understanding the Pressures and Proposals for Reform (Draft No 3)", (Strategic Assessment Group, Ministry of Justice, Wellington, 1997), 3. See also Higgins, 216; People's Union for Civil Liberties v Union of India (1997) 3 SCC 433, 441-442. See para 204 of this report on possible options concerning the role of the courts.

118 See paras 57-58 for an explanation of "democratic deficit".

119 The conclusion that this treaty is binding without limit of time is supported by the omission of an express withdrawal provision compared with the frequent inclusion of such provisions in other human rights treaties. For instance, express withdrawal provisions apply to the declarations under article 41 of

the International Convention on Civil and Political Rights, the first optional protocol, and the genocide, apartheid, torture, racial discrimination, children's, slavery, freedom of information, statelessness, refugee, and Geneva conventions. For the general legal rule see article 56 of the Vienna Convention on the Law of Treaties (also articles 54(b) and 62), and Jennings and Watts, Oppenheim's International Law (9th ed 1992) vol 1, para 647. See also Kontou, The Termination and Revision of Treaties in the Light of New Customary International Law (Clarendon Press, Oxford, 1994).



120 Inquiry into Parliament's Role in the International Treaty Process: Report of the Foreign Affairs, Defence and Trade Committee, 1997 AJHR I.4A, 5.

121 Te Puni Kokiri is currently updating its 1995 publication Consultation with Mäori: A Guidebook which covers the role of Te Puni Kokiri in facilitating consultation with the Crown and provides a guide to successful consultation with iwi and hapu. See paras 59-69 for detail of Mäori concerns with the internationalisation of law.

122 Coll-Bassett, correspondence, 7 October 1997.

123 See the Cabinet Office Manual (Cabinet Office, Department of the Prime Minister and Cabinet, Wellington, 1996) in relation to departmental consultation.

124 "The GATT Uruguay Round 1984-1994: 10 Years of Consultation and Cooperation", address to Senior Executive Service Conference, Wellington, 19 August 1994, 3(3) MFAT Record, 17-21. The speech goes on to outline a further six principles of consultation: effective consultation requires leadership and commitment; understanding the priorities and interests of stakeholders; flexibility of consultative structures; using appropriate communication tools; developing staff consultation skills; and dealing with expectations raised during consultation.

125 See, for example, the commentary on GATT practice in New Zealand Consolidated Treaty List as at 31 December 1996: Part One (Multilateral Treaties), 1997 AJHR A.263 367-369.

126 By, for example, the use of parliamentary committees - see chapter 7.

127 O'Brien, correspondence, 23 October 1997.

128 See paras 150-160 and paras 176-177.

129 An example mentioned to the Commission by Don MacKay, Deputy Secretary, MFAT, is the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The Commission understands that it is relatively common in New Zealand for there to be a long gap between signature and ratification - an extreme example is the 1875 Convention respecting the Creation of an International Office of Weights and Measures to which New Zealand became a party 115 years after its adoption: Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

130 A more complete list of New Zealand treaty actions than treaties tabled (which are confined to treaties that have entered into force for New Zealand but do not include treaties signed subject to ratification, or definitively signed but not yet in force, or treaties from which New Zealand withdraws) is to be found in an appendix to each annual report of MFAT: Office of the Clerk of the House of Representatives, correspondence, 17 October 1997. See also New Zealand Consolidated Treaty List Parts One and Two, and the statistics in para 14 of this report.

131 See Legislation Advisory Committee, Legislative Change: Guidelines on Process and Content (Report 6, December 1991), para 114.

132 See Law Commission's A New Zealand Guide to International Law and its Sources (nzlc r34 1996), paras 24-25 on the range of treaty subject matters.

133 Agreement in the Form of an Exchange of Letters Adjusting the Quantities provided for in the Voluntary Restraint Agreement Between New Zealand and the European Community on Trade in Sheepmeat and Goatmeat as a Result of the Enlargement of the Community (B1995/14).

134 Although of course for interested or affected groups the former "minor" arrangement would be of interest and the Meat Export Control Act 1921-1922 provides for strong industry involvement in implementing sheep meat quota: McLean, correspondence, 9 October 1997; re GATT see Sigma Agencies Ltd v Collector of Customs (Northern Region) [1997] 1 NZLR 467.

135 Consider, for example, opinions expressed on the defence arrangements between New Zealand and Indonesia. Note also paras 113-115 on the subject matters of the 109 sampled treaty actions.

136 Davidson, correspondence, 16 October 1997.

137 Gobbi, correspondence, 31 October 1997; Office of the Clerk of the House of Representatives, correspondence, 17 October 1997.

138 See the Law Commission's A New Zealand Guide to International Law and its Sources (nzlc r34 1996), appendix C, "Statutes with possible implications for New Zealand treaty obligations".

139 Malachtou v Armefti (1987) 88 ILR 199, 212-213.

140 Legislation Advisory Committee, Legislative Change: Guidelines on Process and Content (Report 6, rev ed 1991), para 114.

141 Lord Howe has recently recorded the throughput of Community legislative instruments at between 650 and 800 a year, "Managing the Statute Book" [1992] St L R 165, 173.

142 Keith, "Governance, Sovereignty and Globalisation", paper presented at the 1997 5th Biennial Conference of the New Zealand Council of Trade Unions, 12.

143 See appendix B for the website address.

144 "Open covenants of peace openly arrived at." Address to Congress, 8 January 1918. First of Fourteen Points.

145 Foreign Affairs, Defence and Trade Select Committee, Inquiry into Parliament's Role in the International Treaty Process: Report of the Foreign Affairs, Defence and Trade Committee, 1997 AJHR I.4A, 7; Small, conversation, 13 November 1997; Keith, correspondence, 14 October 1997.

146 Te Puni Kokiri's publication (presently being updated), Consultation with Mäori: A Guidebook (Wellington, 1995), will be instructive in the development of formal consultation processes with iwi and hapu in relation to imminent treaty actions.

147 Palmer, correspondence, 30 September 1997.

148 For a description of parliamentary committees, function and membership see chapter 9, "Parliamentary Committees" in Ringer, An Introduction to New Zealand Government (Hazard Press, Christchurch, 1991), 127.

149 Gobbi and Barsi, "New Zealand's Treaty-Making Process: Understanding the Pressures and Proposals for Reform (Draft No 3)", (Strategic Assessment Group, Ministry of Justice, Wellington, 1997), 30; Australian Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (AGPS, Canberra, 1995), para 16.65.

150 See para 165 of this report for further detail.

151 Palmer, correspondence, 30 September 1997. The Australian DFAT's internet website has a list of all treaties being negotiated in a 12-month period and the person to contact in the relevant department - see appendix B.

152 Report of the Standing Orders Committee on its Review of the Operation of the Standing Orders Committee, 1996 AJHR I.18B, annex D. See further detail of the paper by the Clerk of the House in paras 172-174 of this report.

153 Gobbi and Barsi, 30; Trick or Treaty? Commonwealth Power to Make and Implement Treaties, paras 15.15-15.29.

154 Small, comments at an International Law Association (New Zealand Branch) Seminar on Treaty Making, Wellington, 13 May 1997.

155 Gobbi and Barsi, 31; Trick or Treaty? Commonwealth Power to Make and Implement Treaties, paras 15.15-15.29.

156 Naylor, "Australia's Treaty Making Process: Democracy in Action?" (1995) Australia Law Reform Commission 67 Reform 42. See further appendix A of this report, paras A20-A22, on the Australian Committee on Treaties, and Principles and Procedures.

157 Gobbi and Barsi, 30. See also para 146 of this report.

158 See New Zealand Consolidated Treaty List as at 31 December 1996: Part Two (Bilateral Treaties), 1997 AJHR A.265, 49.

159 Article 102 of the Charter states: "Every treaty and every international agreement entered into by any Member of the United Nations . . . shall as soon as possible be registered with the Secretariat and published by it".

160 Gobbi and Barsi, 30-31; Trick or Treaty? Commonwealth Power to Make and Implement Treaties, paras 15.1-15.5, 15.8-15.10. The UK Ponsonby Rule denotes a similar process - see appendix A of this report.

161 See the Canadian criteria at para A93 for a useful although general starting point. (Further criteria may need to be added to identify more clearly treaties having implications for human rights, rights secured under the Treaty of Waitangi, or the customary rights of Mäori); Dawson, correspondence, 15 October 1997. See the broader criteria used by France at para A39.

162 As at November 1997 this draft Bill had not been successful in the ballot.

163 Coll-Bassett, correspondence, 7 October 1997.

164 As at November 1997 this draft Bill had not been successful in the ballot.

165 Report of the Standing Orders Committee on its Review of the Operation of the Standing Orders Committee, 1996 AJHR I.18B, annex D.

166 Dawson, correspondence, 15 October 1997.

167 Dawson, correspondence, 15 October 1997.

168 Such statements are also referred to as National Impact Statements or Explanatory Memoranda, although the Law Commission favours the term "treaty impact statement".

169 Gobbi and Barsi, 32-33.

170 Trick or Treaty? Commonwealth Power to Make and Implement Treaties, paras 15.47-15.52, 15.77; Inquiry into Parliament's Role in the International Treaty Process, appendix 2, 12.

171 O'Brien, correspondence, 23 October 1997.

172 Cabinet Office Manual (Cabinet Office, Department of the Prime Minister and Cabinet, Wellington, 1996).

173 Inquiry into Parliament's Role in the International Treaty Process, 8.

174 Gobbi and Barsi, 32; Templeman, "Treaty-Making and the British Parliament" (1991) 67 Chicago-Kent LR 461.

175 Coll-Bassett, correspondence, 7 October 1997.

176 Palmer, correspondence, 30 September 1997.

177 Palmer, correspondence, 30 September 1997.

178 See paras 73, 77, 169, 171. See also para 175 for a possible model.

179 These proposals include: the improvement of intellectual property law regimes to incorporate cultural heritage property (including indigenous flora and fauna, te reo): Jones, "Indigenous Peoples and Intellectual Property Rights" (1996) 4(2) Waikato LR, 140; Lenihan (Ngai Tuahuriri, Ngai Tahu Whanui), "A Time For Change: Intellectual Property Law and Mäori" (1996) 8(1) AULR, 213-214; the establishment of a Mäori Intellectual Property Commissioner, responsible to hold property in trust that has not been identified as belonging exclusively to individual iwi, and amongst other tasks to advise government and the Commissioner of Copyrights, Patents, etc on policy: Lenihan, 213-214; the widening of the copyright law regime: Jones, 140; the development of practical measures to uphold article 29 of the draft Declaration on the Rights of Indigenous Peoples concerning cultural and intellectual property; the establishment of legislative measures to protect täonga, such as making the protection of tangible täonga Mäori the domain of the Ministry of Mäori Development Te Puni Kokiri, establishing a register to record Mäori täonga held offshore, and establishing a charitable trust to administer that register (as included in the member's Bill currently before the House, the Täonga Mäori Protection Bill 1996); constitutional change to provide a framework in which Mäori täonga are adequately protected and which Mäori control: Lenihan, 214.

180 This is as distinct from a treaty being self-executing - see the discussion of option A in chapter 6, para 128.

181 James Buchanan and Co v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141, 152.

182 Those provisions are discussed in the reports of the Law Commission: A New Interpretation Act (nzlc r17 1990), paras 38, 54, 106, 109 and appendix D; and The United Nations Convention on Contracts for the International Sale of Goods: New Zealand's proposed acceptance (nzlc r23 1992), paras 42-50; see also the report on Arbitration (nzlc r20 1991), paras 205-208.

183 See, for example, DPP v Pete [1991] LRC (Const) 553 (Tanzania CA); R v Keegstra [1991] LRC (Const) 33 (SCC).

184 Report of the Standing Orders Committee on its Review of the Operation of the Standing Orders Committee, 1996 AJHR I.18B, annex D. For further detail see paras 172-174 of this report.

185 As suggested by Palmer, correspondence, 30 September 1997.

186 The ILC internet website address is http://www.un.org/law/lindex.htm - see appendix B.

187 Keith, correspondence, 14 October 1997. See article 26 of the Statute of the International Law Commission concerning opportunities for consultation between the ILC and national law reform bodies. Also note the discussion by the American Society of International Law on the need for a hard look at the treaty making process, with plans for a "Forum Geneva" in 1998 to discuss "Multilateral Treaty-Making: The Current Status of Challenges to, and Reforms Needed in, the International Legislative Process" (ASIL Newsletter, "Notes From the President Charles N Bower", September-October 1997, 1, 8, 21).

188 Keith, "The International Law Commission's Work and the Shaping of International Law", paper for Colloquium on Progressive Development and Codification of International Law, October 1997.

189 See the proposed Australian legislation to counter
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