81 Issues relating to treaty making are often expressed in terms of the doctrine that treaty making is the domain of the executive, and that the executive’s role to govern and to enter into treaty negotiations as outlined in the doctrine should not be limited. However, the issue in the Labour Conventions97 case which outlined the doctrine was a matter of domestic law, not international law. It concerned the internal distribution of legislative powers – that is, the limitation of Canadian federal power to implement international obligations in areas of provincial jurisdiction without provincial co-operation. The Privy Council held that the Federal Government did not have the power to pass legislation to implement treaties which had subject matter that fell within provincial jurisdiction under s 92 of the Constitution Act 1982 (previously the British North American Act 1867).98 It is therefore of limited help in terms of New Zealand’s current treaty making process.99
82 In the intervening years this decision has been criticised. Canada is the only federal state with its treaty implementation power rigidly divided on the basis of the respective federal and provincial legislative jurisdictions. This has led to Canada’s capacity to implement treaties being described as “suffering from constitutional arthritis”. 100
[t]he argument that legislation to implement a Canadian treaty is within the federal power over the peace, order and good government of Canada was in fact accepted by the Privy Council in Radio Reference101 which was decided shortly before the Labour Conventions case. We now know too that this view attracted the support of at least one member of the Privy Council in the Labour Conventions case itself, because, although the Privy Council practice of that time did not permit the writing of dissenting opinion, Lord Wright subsequently disclosed in an article in the Canadian Bar Review that he had dissented. Since the abolition of Privy Council appeals there have been several dicta in the Supreme Court of Canada indicating a willingness to reconsider the reasoning in the Labour Conventions case,102 and it may well be that the peace, order, and good government argument will ultimately prevail. . . . While it is necessary to conclude that the Labour Conventions case is a poorly reasoned decision, it is much more difficult to be confident that the result is undesirable as a matter of policy within a federation such as Canada.
W R Lederman103 has suggested a middle ground between full acceptance of the Labour Conventions rule and its complete rejection. He takes the view that the federal parliament ought to possess the power to implement treaties but he suggests that the Court should have to make a finding of “national concern” before upholding a federal statute that implements a treaty on a subject matter that would otherwise be within provincial jurisdiction. . . .
A different approach would be to confine the Labour Conventions rule to those treaties that are concerned only with the harmonization of the domestic law of states or the promotion of shared values in domestic law. The conventions in issue in the Labour Conventions case were of this kind, seeking to elevate the standards of working conditions in member states.104 [footnotes added]
84 In relation to the extent of the doctrine Kenneth Keith noted in 1964 that
in recent times all governments have insisted, and their view has not been contested, that the making of treaties is within the Crown prerogative. Parliament has no power to ratify or give effective international approval to the treaty. There is, however, no such certainty about the existence or extent of Parliament’s right to express approval or disapproval of or otherwise to supervise the executive’s treaty actions.105
85 The important question here is how far Parliament should go in its supervision and monitoring in light of increasing globalisation and lawmaking offshore. Should Parliament’s role in supervising and monitoring the executive – and thereby the treaty making process – change? For Parliament to continue to be the effective lawmaker in future times is this change essential? Parliament’s monitoring role could be employed to strike a balance between the power of the executive to freely make and execute international agreements with other nation states, and the calls for an increased parliamentary involvement.
The object of the reform process should be to ensure that the . . . Parliament is able to participate in the process in a way that ensures that the Commonwealth is not unduly hampered in its ability to participate in foreign affairs and meet its international obligations.106
86 Further, what are members of Parliament going to do in a reformed treaty making process and how are they going to it?
One practical problem with the bulk [of international treaty law] needs to be taken on board. It is that members of Parliament are exceedingly busy and, with the best will in the world, it would be hard for them to read and absorb, let alone evaluate, the contents of all the Treaties with which New Zealand is concerned. . . . The pressure on Parliamentary time seems so great that it is idle to expect them to debate Treaties very often in the Chamber. There are opportunities for this to be done when the occasion calls for it, but it does not seem to happen very often. It most frequently occurs when it is necessary to introduce legislation in order for New Zealand to ratify a Treaty.107
87 Decisions reached by the courts involving consideration of rights and obligations contained in international instruments to which New Zealand is a party, but which may not have yet been implemented in domestic law, have been criticised. The courts have no direct constitutional role of incorporating treaty obligations into domestic law. That role can only be for Parliament unless New Zealand makes a doctrinal change to treaties as self-executing instruments.108
88 Such decisions as Teoh109 have been seen as a form of lawmaking beyond the roles inherent in the traditional treaty making doctrine and the separation of powers. In relation to the courts not considering treaties unincorporated into domestic law, one correspondent noted
it is not just a question of individuals being unable to enforce rights in unincorporated human rights treaties, but also of duties obligations and prohibitions in treaties not being imposed on individuals unless Parliament chooses to incorporate the treaty provisions into domestic law.110
89 Further, another commentator:
If we accept the principle that, consistent with the democratic underpinning of our society, law should preferably be made by democratically elected lawmakers, Parliament should only leave laws to be made by the Courts where it is not appropriate that those laws be made by the Legislature, and it is appropriate that they be made by the Courts. Indeterminacy in legislation therefore is not inherently a bad thing. It is only bad if, in the particular circumstances, the required rule-making is more appropriate for the Legislature than the Courts.111
90 Indeed there is the possibility that the courts, which must reach a decision in each case, find themselves in a difficult and undesirable situation. A commentator has stated:
What has turned a less than satisfactory parliamentary situation into a thoroughly unsatisfactory one are the related judicial developments illustrated by litigation such as that concerning the issue of a search warrant for the cockpit voice recorder. Increasingly, treaties that have not been legislated into New Zealand law are being held by the courts to have legal significance in our domestic law. . . . From a democratic point of view, an approach to law-making which permits treaty provisions to be incorporated into our law without reference to parliament is thoroughly undesirable.112
91 But the alternative is to exclude New Zealand’s international law obligations from judicial consideration on the basis that Parliament can and will provide a general codification of public policy. We see no likelihood of such development. The courts will continue to have to fill legislative gaps to decide cases, and adopt principles of interpretation to do so systematically. It is undesirable for the courts to risk putting New Zealand in breach of international law where that can be avoided. To do so requires the courts to take account of our international obligations to the extent that they do not thereby infringe the will of Parliament expressed in statute. The decisions on this point such as Tavita and NZ Airline Pilots’ Association113 may be seen as a response not only to internationalisation but to the legislature’s failure to implement important changes to the domestic law in order to comply with obligations incurred in the international arena – the “wide tracts” referred to in para 4.114 As one commentator has written:
All that was required was for the court to draw legal consequences for private parties from its analysis of the international law.115
92 Some of these developments may be seen as the courts response to a “rights consciousness” affirmed in international, regional and national human rights instruments and an emerging reconsideration of the role of the courts regarding human rights issues.116
93 The Ministry of Justice describes this situation thus:
Essentially, the judiciary has become more active in the process due to globalisation, and Parliament has not yet reacted to this development. In the absence of a clear expression of parliamentary will, the courts have no recourse but to rely on the common law to resolve the disputes that are before them. Increasingly, due to the internationalisation of society, the courts are finding it necessary to look to international law to determine common law. In these circumstances, reaching the conclusion that ratified but as yet unincorporated treaties have the force of law is not unreasonable or illogical.
From a constitutional perspective, this possibility is the driving force for change. If Parliament does not take a more active role in the treaty-making process, the courts will fill the void. These developments have the potential to increase the importance of the judiciary in the treaty-making process at the expense of parliamentary sovereignty.117