New zealand law commission

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Report 45

The Treaty Making Process

Reform and the Role of Parliament

December 1997

Wellington, New Zealand

The Law Commission is an independent, publicly funded, central ad­visory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its pur­pose is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand.

The Commissioners are:

The Honourable Justice Baragwanath – President
Joanne Morris obe
Judge Margaret Lee
DF Dugdale
Denese Henare onzm
Timothy Brewer ed

The Director of the Law Commission is Robert Buchanan

The office is at 89 The Terrace, Wellington
Postal address: PO Box 2590, Wellington 6001, New Zealand
Document Exchange Number: sp 23534
Telephone: (04) 473–3453, Facsimile: (04) 471–0959

Report/Law Commission, Wellington, 1997

issn 0113–2334 isbn 1–877187–17–8
This report may be cited as: nzlc r45
Also published as Parliamentary Paper E 31AG

19 December 1997

Dear Minister

I am pleased to submit to you Report 45 of the Law Commission, The Treaty Making Process: Reform and the Role of Parliament. This is the Commission’s second report directly on matters pertaining to New Zealand’s international obligations.

Interest in the treaty making process has grown within New Zealand with recognition that the issues are of major public import­ance, affecting not only our foreign relations and trade but much of our domestic law and economy. The Commission is aware of the many sectors who participate or maintain an interest in the treaty making process and has canvassed opinion across a wide range so as to include all issues in this report. The responses have been numerous and substantial, reinforcing the importance of the issues and demonstrating the depth of knowledge and experience in this sphere that New Zealand enjoys.

Treaty making is in truth a major element of our lawmaking process – of increasing importance as globalisation burgeons – with which our constitutional arrangements have not kept pace. We have attempted to identify the significant factors and suggest means of striking a new balance among them. In view of the topicality of this matter, as well as offering three main and two subsidiary recommendations for change, the Commission has sought to present much of the information received as a public resource.

We trust that this report will assist members of Parliament and public with both broad background information and focused direction for development of the treaty making process.

Yours sincerely

The Hon Justice Baragwanath

The Hon Douglas Graham MP
Minister of Justice
Parliament House


The Treaty Making Process: Reform and the Role of Parliament (nzlc r45 1997) continues the Law Com­mission’s work in public law. It forms part of the International Obligations Project which aims to improve the awareness of international law in New Zealand, including New Zealand’s international rights and obligations and the means by which these are created.

This report builds on the material gathered in the earlier Commission report, A New Zealand Guide to International Law and its Sources (nzlc r34 1996). That document provides useful background information for this publication – in particular Part 1 covers: What is a treaty? How are treaties negotiated and agreed to? How are treaties given effect to at the international level? The character of the relationships under treaties; The imple­mentation of treaties through national legislation; and The implementation of treaties through the courts.

In 1993 the Law Commission first circulated a draft report, The Making, Acceptance and Implementation of Treaties: Three Issues for Consideration, written for the Commission by its then President, Sir Kenneth Keith. The responses to the draft report’s proposals were in the main supportive. In 1997 the Foreign Affairs, Defence and Trade Select Committee asked the Commission to make a submission on its Proposed Inquiry into the Role of Parliament in the Implementation of Treaties. This report builds upon and finalises the material contained in that draft report and submission. It also conforms with the Law Commission’s statutory responsibility under s 5(b) and s 5(d) of the Law Commission Act 1985 to recommend development of the law of New Zealand and, importantly, to make it as understandable and accessible as is practicable.

In the preparation of this report the Commission is indebted to the following people for their valuable assistance and perceptive comments: Hon Justice Sir Kenneth Keith, Court of Appeal; Mr Don MacKay, Deputy Secretary of the Ministry of Foreign Affairs and Trade; Mr David McGee, Clerk of the House of Repre­sent­atives; Sir Geoffrey Palmer, Chen & Palmer; Mr FA Small, former Director of Legal Division, Ministry of Foreign Affairs and Trade (Retired); Mr Alan Bracegirdle, Office of the Clerk of the House of Representatives; Mr Mark Gobbi, Ministry of Justice; Ms Carolyn Coll-Bassett, lawyer (on leave), Ministry of Foreign Affairs and Trade; Associate Professor Scott Davidson, University of Canterbury; Mr John Dawson, Senior Lecturer, University of Otago; Mr Terence O’Brien, Centre for Strategic Studies, Victoria Uni­versity of Wellington; Ms Janet McLean, Director, Public Law Institute, Victoria University of Wellington; Ms Melissa Poole, Senior Lecturer, Victoria University of Wellington; Professor Mike Taggart, University of Auckland; Mr Paul Rishworth, Lecturer, University of Auckland. The Commission also acknowledges the work of Diana Pickard, a legal researcher who completed much of the research and drafting of the report.

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