25 The decision in Attorney-General for Canada v Attorney-General for Ontario outlines the conventional doctrine that it is the Executive’s role to govern and to enter into treaty negotiations/creation, and Parliament’s role to monitor the executive with appropriate checking, reporting and approval processes. In addition the performance of treaty obligations, if they involve changes to the existing domestic law, will require action by the legislature.
26 A senior MFAT official has described this latter action in New Zealand as follows:
It is suggested that Parliament has no choice but to pass the necessary legislation or it will leave New Zealand in default of its treaty obligations. This is not so. The executive does not take binding treaty action until the necessary legislation has been passed. The legislation comes first, not the treaty action. Indeed, competing pressure on the legislative programme can prevent the Executive becoming party to treaties within the time frame it might prefer. In practice, therefore, Parliament can constrain the Executive’s power by refusing to pass any necessary legislation. If it refuses to pass the legislation, then the Executive cannot take action to bind New Zealand to the treaty.33
27 There is a further consideration in respect of the treaties subject to additional steps such as ratification. They are more likely to require legislative implementation than those which become binding as a result of signature. One reason for such legislation may be that the treaty’s substantive provisions would affect the rights and duties of individuals or entities under the law of New Zealand in a way not currently provided for with compliance unachievable by other than legislative means (such as by instructing a Government Department to act in a way conforming with the undertakings given in the treaty).
28 If the implementing legislation is to be considered by Parliament (which is not always the case, as appears from the bilateral examples – some of which can be implemented by Order in Council), the House thereby receives an opportunity to scrutinise the proposed executive action of accepting the treaty.34 The Cabinet Office Manual (1996) requires Ministers when proposing new legislation to Cabinet and its committees to report on the proposal’s compliance with New Zealand’s international treaty obligations. The process of checking draft legislation against the provisions of the New Zealand Bill of Rights Act 1990 (with the s 7 reports to the House) also often raises treaty compliance issues since that Act closely follows the International Covenant on Civil and Political Rights.
29 But for some very significant treaties the opportunity for the House to scrutinise the proposed executive action will not arise. Often the assessment is made that the domestic law already complies with the treaty or that the government can enter certain reservations to the acceptance. Such reservations can cover any situations of domestic non-compliance with the treaty obligations.35
30 That lack of opportunity for the House to scrutinise proposed action occured with the two human rights covenants (the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights).36 It was also the case with the two Optional Protocols to the latter Covenant, and also to the Convention on the Rights of the Child (where rather than no legislation being assessed as necessary to implement the Convention, reservations were used to meet the legislative deficiencies).
31 As stated by a senior MFAT official:
Not all treaties, however, require legislation for their implementation. Many treaties can be implemented without any change to existing law, because domestic law is already consistent with obligations in the treaty. Quite often, too, treaties can be implemented through regulations or by administrative action. In such instances the treaties concerned do not go to Parliament before the treaty action is taken, although Parliament is subsequently informed of the action.37
32 Treaties are also tabled in the House of Representatives. As the Ministry of Justice has noted:
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.38
33 The role of Parliament is clear in relation to the third stage of the treaty making process – implementation through domestic legislation. It is to be noted that Article 27 of the Vienna Convention stipulates that states cannot excuse non-compliance by reference to inadequate national law.
34 Implementation begins with the conventional proposition that a treaty, when accepted by the Executive, does not by that fact alone become part of the domestic law of New Zealand. It is assumed that legislation is required if the treaty is to become part of that law and, in particular, if it is to directly affect the rights and duties of individuals.39
35 Legislative change is performed in the constitutionally appropriate ways, by Parliament or one of its delegates, and not by the prerogative or other executive action. The matter then becomes one of choice of legislative method and techniques; for example, how is the legislation to be drafted – by giving direct effect to the treaty text or using another form of drafting?
36 Legislative practice and the relevant commentary indicate four broad approaches to legislation in the context of treaty implementation: no legislation is required; the statute gives direct effect to the treaty text using the “force of law” formula;40 the statute uses some of the wording of the treaty; or the substance of the treaty is incorporated into the body of the law. A further option is for primary legislation to authorise the making of subordinate legislation (regulations or rules) which is to give effect to identified treaties.41