94 A gap in the existing arrangements appears when the executive decides to accept a treaty which does not require implementing legislation. This is either because the present state of the law (including legislation) already gives full effect to the treaty or no legislation at all is required (possibly because the government will accept the treaty with reservations). This gap is referred to as one aspect of the “democratic deficit”.118 Two recent instances are New Zealand’s acceptances of the second optional protocol to the International Covenant on Civil and Political Rights concerning capital punishment in 1990, and the Convention on the Rights of the Child in 1993.
95 In the former case, Parliament had debated and enacted the Abolition of the Death Penalty Act 1989 but at that stage the drafting of the protocol had not been completed and Parliament had no indication of the government’s intention to accept the protocol. New Zealand’s acceptance was effected in the conventional way by executive action following a Cabinet decision. Parliament and the public were not given timely notice of the government’s intention to ratify the Convention. In the case of the Children’s Convention, which had been the subject of a lengthy public controversy, the government moved to ratification without any indication that it was going to take that step.
96 The consequence of those two actions is that New Zealand is bound by important undertakings, without in the former case any express power of withdrawal. The death penalty protocol appears to be binding without limit of time.119 The undertakings limit, in substance, the power of the New Zealand Parliament. The significance of the actions in the death penalty case is greater when it is recalled that at the time the Government accepted the death penalty protocol it had dropped the idea of an entrenched Bill of Rights, and even an entrenched Bill of Rights would have been subject to amendment through a referendum or the support of three quarters of the members of the House.
97 The Law Commission has no objection to those “permanent” aspects of the treaties or to the government’s decisions. They are inherent in the nature of the international community and the law which regulates it. What the Law Commission does want to call attention to is the lack of a simple means of alerting the House to the government’s intention to accept such a treaty, with the consequence that the House can take the matter up in a timely way if its members wish. There is, as well, no systematic notice to the wider public of the intended action.
98 The report of the Foreign Affairs, Defence and Trade Select Committee on the treaty process raises a further point with regard to the limitation of the role of Parliament:
An additional point to consider is that, outside of its power to refuse to pass legislation outright, Parliamentary select committees have a lesser capacity to amend treaty implementing legislation than they do for any other type of legislation. Where a treaty text is to be directly incorporated into law, no amendments that were contrary to the provisions of the treaty can be incorporated into the implementing legislation because this would prevent New Zealand becoming party to the treaty. This arguably limits the scope for select committee input into implementing legislation considerably more than would be the case for any other kind of legislation. Therefore, in practice, Parliament is bound by the terms of a treaty in which it has had no involvement.120
99 Consultation practices, or the lack of such practices and processes, are often raised as an issue in relation to the treaty making process, and as a subset of “democratic deficit” discussions. For Mäori, there is recognition that the principles of the Treaty of Waitangi (plus law and practice) increasingly require consultation with Mäori on proposals which affect Mäori interests.121
100 Among the advantages of consultation are its assistance in:
determining whether there really is a problem to be addressed;
defining the problem;
assembling relevant information and ideas;
enhancing the quality of the text which results (for a new treaty obviously);
making it more acceptable and more likely to be complied with;
making it better known; and
lessening the need for later wasteful and unsettling amendment.
A cautionary note is that a poorly designed consultation process can be bureaucratic and hinder New Zealand’s ability to prepare for and perform in international treaty negotiations.122
101 In the first stage of treaty making the executive is, of course, free to involve other interests in the negotiation process, for instance through appropriate consultation or even as members of the negotiating team.123 International agreements may themselves require the involvement of a wider group of participants, for example, the International Labour Organisation’s (ILO) Constitution provides for the tripartite composition of national delegations to the conferences which consider the ILO’s draft Conventions.
102 In practice too, the involvement of wider groups of participants is increasingly to be found, for instance in multilateral commercial negotiations in the World Trade Organisation (WTO) or in bilateral commercial negotiations, for instance with the European Union or Australia. Consultation is increasingly occurring in environmental matters, for instance in respect of the ozone layer agreements. Richard Nottage, Secretary of the Ministry of Foreign Affairs and Trade (MFAT), provided a valuable commentary on the GATT Uruguay Round consultation process and seven key principles of effective consultation in the August 1994 MFAT Record:
Uruguay and Morocco may seem a long way from New Zealand. But these negotiations were the subject of extensive consultation and interaction with business, academic, media and community groups who were the stakeholders in the whole exercise. . . .
The first principle is that consultation with stakeholders is not an additional burden, but a necessary prerequisite for effective policy-making. Trade policy certainly needs to be informed by the private sector. It is business, not the government, which conducts international trade and investment. And trade policy can also benefit from the analytical input of academics and research organisations. Public perceptions of trade policy can determine overall effectiveness. . . .
The point is that policy cannot be got right without consultation. But it cannot be turned on like a tap. Consultation requires constant attention and needs to be kept alive during less active phases of policy development.124
103 Wider participation can be seen in the harmonisation of business law under the agreement for Closer Economic Relations (CER) with Australia. A mutual Australian and New Zealand process has been active since at least the late 1980s with the establishment of the New Zealand Consultative Group on Business Law, consisting of officials, business people and accountants, and an equivalent body in Australia. The process in respect of Trans-Tasman mutual recognition provides a further instance with “A Proposal for the Trans-Tasman Mutual Recognition of Standards for Goods and Occupations: A Discussion Paper Circulated by the Council of Australian Governments and the Government of New Zealand” (April 1995). The association of non-governmental organisations with major international conferences can also be seen as part of those broader developments. Those conferences are also important for the production of texts which are not in treaty form but which are nevertheless significant.
104 Legislation increasingly requires consultation before regulations are made and over the years the parliamentary select committee process has developed to enable wide public participation in the process of the making of primary legislation. Practice and related statements also emphasise the importance of consultation when Bills are being drafted (eg, Legislation Advisory Committee, Legislative Change: Guidelines on Process and Content (rev ed 1991), paras 21–29, and the Law Commission Act 1985 s 6(2)(c) and the process of consultation it follows).
105 It is to be emphasised that the critical stage for consultation will often be before the international text is settled. After the negotiation is complete it is highly unlikely that the text can be altered. Generally, the only courses then open will be to accept or reject the established text. In some cases there may not even be that choice since the international decision may become internationally binding without further action by the government.125 Even if the government does in law have a choice whether or not to accept, that choice might not be a real one if, for instance, the text is very widely supported and standing aside would cause real disadvantage to the national interest.
106 In these situations, the later legislative stages in New Zealand do not allow real consultation. Parliament, in enacting the primary legislation, or the executive, in making subordinate legislation, may have no choice, or at least no real choice. Consultation in such circumstances can, however, still be of value by serving to forewarn or inform interested or affected groups of the limitations on New Zealand’s ability to negotiate certain desired terms or conditions.
107 Some negotiations have to be private, they may move rapidly, and the decisive proposals and a final compromise often appear very late in the course of the negotiation leaving no chance for further consultation. Those elements of effective negotiation must be appropriately protected.126 But, as indicated, practice does show that consultation is sometimes possible and that in some cases, if consultation is to be effective, it has to occur at an early stage. As well, many international processes are public, at least in part, and lengthy, allowing time for consultation. This is particularly so of the processes leading to major multilateral treaties.
108 A commentator has noted:
[T]he culture of consultation on the part of government departments . . . could be enhanced. In the case of prospective negotiation under GATT/WTO, or of international air transport agreements, or international fishing agreements and the like, consultation with concerned and relevant New Zealand business interests does occur. But the practice of consulting with non-governmental environmental, human rights, private or disarmament groups and the universities as well as Mäori and Parliament is a good deal less developed. The absence of genuine exchange about policy ideas with the non-official community inside New Zealand indeed contrasts with what happens elsewhere (eg Australia). There are exceptions. Some improvements have occurred. But there is, in my opinion, some good way still to travel. Part of Parliament’s oversight should entail ensuring that departments are in fact consulting.
Considerations of secrecy and the need for swift policy formulation in response to rapid external developments are part and parcel of contemporary international relations. But for the great bulk of international trade, economic, environment etc negotiation today, secrecy is not a vital factor. Most negotiation is at the global (multilateral) level. It is not country-to-country bilateralism. And for most issues on this international agenda, the non-government actors in the form of multinational business, scientists, global environmental groups, or human rights bodies are better informed than governments about key issues in any event. Governmental secrecy is not an overriding factor in most instances. And the plotting ahead of the international agenda of negotiating conferences is sufficiently defined in advance, to obviate the excuse of the need for urgency in policy formulation, as an explanation for a lack of consultation. . . . Interim reports of progress in a negotiation (the GATT Uruguay Round lasted nine years) must be encompassed in the consultation process.127