70 The debate on the treaty making process and particularly on Parliament’s role in treaty making is not new. Consider in the United Kingdom for instance Ponsonby’s 1915 book Democracy and Diplomacy, mentioned earlier. In New Zealand in 1921 the Customs Amendment Act s 10 provided, concerning tariffs that give effect to a customs agreement entered into by the New Zealand government:85
(2) No such agreement or arrangement as is referred to in the last preceding subsection shall have any effect unless and until it is ratified by Parliament.
Further, the argument was made years ago that a constitutional convention had developed that the government will refer important treaties to Parliament so that that body can consider the government’s action or proposed action.86
71 More recently within New Zealand there have been various calls for Parliament to have a greater role in the treaty making process. Some say this is in part because of the general debate on process surrounding the advent of the Mixed Member Proportional (MMP) electoral system.
72 In June 1996 the Clerk of the House of Representatives, David McGee, published a paper “Treaties and the House of Representatives” in which he recommended that Parliament have a greater role in the treaty making process.87 The Briefing Papers to the Incoming Government prepared by the Ministry of Justice in October 1996 made similar calls in light of increasing globalisation. In November 1997 the Foreign Affairs, Defence and Trade Select Committee tabled in the House its report which also endorsed change to the treaty process with a greater role for Parliament.88
73 Members of Parliament from the Alliance political party have prepared a Bill which seeks to formalise Parliament’s role in the treaty making process. Their Bill is entitled the New Zealand International Legal Obligations Bill 1997. Likewise, members from the ACT political party have drafted a Bill, the Treaties (Parliamentary Approval and Treaties Information) Bill, which seeks to provide for parliamentary approval of treaties and for MFAT to inform the House on the progress of some treaty negotiations.89
74 There have been calls through the media by various commentators for greater controls. Most recently these calls have been in relation to the Government plans to sign a treaty known as the Multilateral Agreement on Investment and a perceived lack of consultation over it. This treaty, devised by the Organisation for Economic Co-operation and Development (OECD), is being negotiated by MFAT and Treasury officials with their counterparts in the 29 member countries of the OECD.
75 The treaty aims to lift restrictions on cross-border investment – with provisions including, in brief, that signatories agree to give equal treatment to all treaty partners, that foreign investors must enjoy the same conditions as domestic investors, and that laws affecting investment should be open and understandable.90 A commentator has noted:
Under the treaty, overseas investors would become empowered to enforce actions through New Zealand courts against local and national governments. Investors could argue that local laws and policies discriminated against them.91
76 A further media report:
The Ministry of Foreign Affairs and Trade has promised to consult more widely with Mäori people about the Multilateral Agreement on Investment and the Ministry has also given an assurance that nothing will be signed if it undermines Mäori treaty rights. Another round of negotiations is under way on the agreement in Paris. . . . A leaked draft of the agreement from May this year shows that New Zealand is not the only country where there are concerns about indigenous rights and cultural issues. Finland, Norway and Sweden have proposed a clause in the main text to protect the rights of their indigenous people, the Sami, to reindeer husbandry and other traditional methods of livelihood. . . . Jane Kelsey (Professor of Law at Auckland University) says the interesting thing about the proposal to protect Sami rights is that it’s designed to stay in the document forever, whereas New Zealand is simply proposing a separate reservation in the agreement, to protect Mäori rights, which may be removed some time in the future. Director of the Trade Negotiations Division at the Ministry of Foreign Affairs and Trade, Charles Finney, says New Zealand is insisting on a permanent reservation to protect Mäori Treaty rights . . . if there was any risk of Mäori interests being compromised in any way the Government would not be signing up to it. . . . the Ministry wants to be very cautious about the MAI agreement and is consulting regularly with the Ministry for Mäori Development.92
77 A Labour member of Parliament has drafted the Multilateral Agreement on Investment (Parliamentary Approval) Bill which seeks to require debate and approval from the House of Representatives before the Multilateral Agreement on Investment comes into effect.93
78 There have also been similar calls, concerning Parliament’s role in treaty making and consultation, in overseas jurisdictions.94
5 What are the issues for the treaty negotiation and acceptance stages if Parliament’s role is changed?
79 _here has been continuing discussion of the issues surrounding the involvement of Parliament in the treaty making process. The practice was assembled and analysed in 1964 with the following questions raised:95
What treaties are deemed sufficiently important to be referred to Parliament?
How and by whom is importance determined?
Is the practice merely common usage or does it amount to a binding convention?
Is it enough merely to refer the treaty or must Parliament be given the opportunity to approve the executive’s action or proposed action?
Would different rules, and therefore different actions by the executive, apply to different treaties?
80 The issues discussed in this report, surrounding treaty making and Parliament’s possible role, relate to: the treaty making doctrine; the role of the courts; the “democratic deficit” and limitation of future governments;96 timing (and matters of urgency, flexibility and confidentiality); treaty definition; and consultation.