Parliament and people shut out of treaty ratification process

By   /   December 16, 2013  /   6 Comments

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Many people have criticised the wall of secrecy around negotiations for a Trans-Pacific Partnership Agreement. They fear New Zealand’s negotiators will sign a deal which undermines our sovereignty and has a big social and economic downside.

tppa-protest-new-zealand

Many people have criticised the wall of secrecy around negotiations for a Trans-Pacific Partnership Agreement. They fear New Zealand’s negotiators will sign a deal which undermines our sovereignty and has a big social and economic downside.

One of the main cheerleaders for the TPPA is Stephen Jacobi, the executive director of both the New Zealand International Business Forum and the NZ-US Council.

I was startled to hear him say (twice) on Radio New Zealand’s Morning Report last Tuesday that New Zealand’s interests will be protected because any treaty “has to be ratified by Parliament.”

That is simply not true. Under New Zealand’s present constitutional arrangement the government, and only the government, has the power to ratify treaties. Parliament has no such power.

When in Parliament I tried to change this. The main point of my International Treaties Bill, drawn from the ballot in 2000, was to give Parliament the power to ratify treaties. I was pleased that the then Labour government did allow my Bill to go to a Select Committee and the discussion there did produce some positive change, including more openness about which treaties and bilateral agreements our government was in the process of negotiating.

However, in February 2003, after the Select Committee had reported back to Parliament, Labour and National combined to vote down my Bill. Only the Greens and ACT supported the requirement in my Bill that a treaty could only be ratified by a majority vote in Parliament.

On one occasion, under pressure from its Alliance coalition partner, Labour did allow a trade treaty, the one between New Zealand Singapore, to be debated by Parliament, and a vote taken. But it was only a “symbolic” vote, easily won by Labour and National voting together. Labour had not conceded the government’s right to ratify that or any other treaty.

The only way Parliament is involved with treaties is in a consultative capacity. After a treaty is signed by the government it is tabled in Parliament and sent to Foreign Affairs, Defence and Trade Select Committee, to either discuss it or send it on to a more relevant select committee. From the time the treaty is tabled in the House select committees have 15 parliamentary sitting days (or 5 sitting weeks) to consider the treaty and report its views. The government says it will normally not ratify a treaty until after the five sitting weeks have elapsed, but they can if they want to. After all the select committee process is just a consultative process and the government retains the full power to ratify a treaty whenever it wants.

In any case, the five week guideline hardly gives any time for the public to properly assess a complex treaty (like the TPPA) and put together a submission to a select committee.

Of course, if a treaty the government has signed up to requires legislation to implement it, then that legislation must get a majority vote in Parliament. But many commitments the government makes in treaties don’t require legislation. For example, a New Zealand government signing up to clauses in a TPPA agreement which undermine Pharmac might be able to implement them by amending the regulations Pharmac operates under (which don’t come before Parliament) rather than via new legislation.

In one case where a New Zealand government did require legislation to implement at treaty it came seriously unstuck. In December 2003 the Labour-led government signed a treaty with Australia to regulate therapeutic products through a joint regime. The only problem was that Labour led a minority government and it didn’t have a parliamentary majority for the implementing legislation, in the form of the Therapeutic Products and Medicine Bill. Four years later, in July 2007, Labour had to dump that Bill. The Australian government was very angry about New Zealand not fulfilling its obligations under the Australia/New Zealand therapeutics treaty, as I found out when a parliamentary delegation I was on was ear-bashed by the then Australian Foreign Minister Kim Beazley. The joint trans-Tasman scheme is now down the drain, to be replaced by a New Zealand scheme as prescribed in the Natural Health and Supplementary Products Bill, which is awaiting committee stages in the House.

Parliament not being able to approve treaties remains a major “democratic deficit” in our constitutional system.

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6 Comments

  1. Keith Locke is correct in saying that treaties are ratified by the Executive. I sought the correct my earlier comments on Morning Report on 11 December. I am glad Mr Locke has drawn attention to the wider Parliamentary process around New Zealand’s treaty making system. Further details are available at http://www.mfat.govt.nz/Treaties-and-International-Law/03-Treaty-making-process/

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    • Keith Locke says:

      Thanks for your correction, Stephen, and your link in it to the MFAT description of the treaty making system. Hopefully, the public will benefit from our exchange by being prompted to read more about the process.

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    • Jane Kelsey says:

      It would be really good if Stephen Jacobi could correct the second Morning report comment, which purported to correct his original error. The definitive version of the treaty process can be found in paragraphs 5.73 and 5.74 and 7.112-7.130 of the Cabinet Manual. A lay summary from me can be found at http://www.itsourfuture.org.nz/explanation-of-nzs-treaty-making-process/

      Hopefully Stephen Joyce’s admission in the House that he was wrong, and confirming that Cabinet both signs and ratifies the Treaty, and Parliament does not have any control over that process, will flow through to the other Stephen and we won’t have any repeat of the misinformation about Parliament’s authority over the treaty making process again.

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  2. Danyl Strype says:

    Hey Gosman, come and claim again that the TPPA being secret is fine as it has to be approved by Parliament. Go on, I dare ya. Candyman, candyman, cand…

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  3. Jenny says:

    “On one occasion, under pressure from its Alliance coalition partner, Labour did allow a trade treaty, the one between New Zealand Singapore, to be debated by Parliament, and a vote taken. But it was only a “symbolic” vote, easily won by Labour and National voting together. Labour had not conceded the government’s right to ratify that or any other treaty.”
    Keith Locke

    You can see the same sort of Tweedle Dum, Tweedle Dee collusion between Labour and National over climate change.

    Both Labour and National support deep sea oil drilling.[i]

    Both Labour and National support the opening of new coal mines.[ii]

    Both Labour and National supported the $130,000,000 bail out of Solid Energy[iii]

    Both Labour and National MPs banded together in the wake of the Tacloban disaster to shout down Russell Norman who tried to read out in parliament Yeb Sano’s plea to the world to cut back on C02 pollution.[iv]

    According to James Hansen the problem of climate change “would be solvable”[v] if we phased out coal production and stopped the search for unconventional oil and gas. Hansen particularly mentioned Arctic and deep sea oil drilling both of which, Arctic oil exploration[vi] and deep sea oil drilling[vii] have been met with protest in this country.

    But both Labour and Natonal are deaf to the majority over the TPPA , Just as both Labour and National are deaf to the majority of the population who want the government to do more on climate change.[viii]

    What ever the reason for this collusion between Labour and National,
    it is not democracy. No wonder people seem to have lost faith in our democracy and are not voting in record numbers.[ix]

    [i] http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10822510
    “Labour says views on mining close to Govt’s”
    David Parker was Energy Minister during the last Labour Government and said about $20 million was spent on seismic surveys to supply to big oil companies and entice them to New Zealand.

    [ii] Both Labour and National support the Denniston open cast coal mine, the second biggest open cast coal mine to be ever excavated here.
    http://en.wikipedia.org/wiki/Escarpment_Mine_Project

    [iii] Heavily criticised by Green Party MP Gareth Hughes who said the money to bail out Solid Energy would have been better spent on a “just transition” for the coal workers “to jobs that don’t fry the planet.”
    https://www.greens.org.nz/press-releases/govt-bail-out-solid-energy-privatisation-stealth

    [iv] http://norightturn.blogspot.co.nz/2013/11/arseholes-before-world.html
    The Labour and National MPs enraged bellowing was so deafening that Meteria Turei who was sitting right beside Russell Norman, said that she could not hear what he was saying. Leading her to ask the speaker to make a ruling for them to stop.

    [v] http://www.youtube.com/watch?v=nM5-recP7-E#t=2656 34:00 minutes
    “The problem would be solvable If we would phase out coal emissions, which are almost entirely at power plants, and if we would leave the unconventional fossil fuels in the ground. Because the amount of convential oil and gas is finite and of course if you keep going after it in the deepest ocean and the arctic and the antartic and things you could cause a problem. But if we would not do that the problem would be solvable. But it would mean phasing out coal and no unconvential fossil fuels. That’s not happening. On the contrary we are doing exactly the opposite. We are allowing and encouraging and subsidising fossil fuel companies to go after every fossil fuel they can find. Including the unconventional ones.”

    [vi] http://www.nzherald.co.nz/entertainment/news/article.cfm?c_id=1501119&objectid=10787694
    “A man has been arrested after seven Greenpeace protesters, including Hollywood star Lucy Lawless, clambered onto an Arctic-bound oil drilling vessel and scaled its 53-metre tower at Port Taranaki this morning.”

    [vii] http://www.stuff.co.nz/national/9435423/Thousands-protest-deep-sea-oil-drilling
    “An estimated 700 gathered at Raglan’s Wainamu Beach to protest deep sea oil drilling and seabed mining as part of the nationwide Banners on the Beach campaign”

    [viii] “People want more action on climate change”
    64.4 per cent wanting Parliament to do mor
    60.6 per cent wanting the Prime Minister to do more and
    62.9 per cent saying government officials should do more.

    The news isn’t good for Prime Minister John Key, with 15.4 per cent saying he’s doing the right amount, 26.1 per cent saying he should do more, and 34.5 per cent saying he should do much more. Just 2.7 per cent want him to do less.

    Horizon August 10, 2012

    [ix] http://www.stuff.co.nz/dominion-post/news/politics/election-2011/6044562/Turnout-abysmal-for-this-years-vote
    “Voter turn out abysmal”

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Only for the purposes of Electoral Act 1993 and the Broadcasting Act 1989 everything on this page is: Authorised by Martyn Bradbury, The Editor, TheDailyBlog, 5 Victoria St East/Queen St, CBD, Auckland, New Zealand.

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