Treaties and the House of Representatives: the role of the New Zealand Parliament in international treaty-making

Abstract

After New Zealand's decision in 1993 to adopt the mixed member proportional (MMP) electoral system the Clerk of the House, David McGee QC, proposed a radical change to the treaty-making process by arguing for the introduction of parliamentary approval. When the National Government reformed the treaty-making process in 1998, Parliament took a much more significant role by examining some international treaties prior to binding treaty action being taken. This study used the goals of the treaty-making reforms to evaluate the efficacy of Parliament's new role in treaty-making over the first four and a half years. To understand Parliament's contemporary role in treaty-making in New Zealand, it is necessary to understand the conventions and practices that developed throughout its history. I therefore discussed the principles and practices that formed the basis of the treaty-making process before 1998, by drawing on the ideas and observations of scholars and experts on treaty-making process from the reform debate. An examination of New Zealand's move to MMP and its implications for international treaty-making was also presented. I evaluated Parliament's new role by using five criteria: parliamentary scrutiny; transparency; greater public consultation; increasing community awareness and re-establishing the supremacy of Parliament in international treaty-making. The examination process has given Parliament a much greater role than that previously. The public can have direct input into raising issues of concern. The arguments for and against the treaty are discussed and Parliament and MPs are better informed on these important issues. However, analysis of the examination process in its first four and a half years showed the process to be limited. It has resulted in a minimal level of parliamentary scrutiny, has failed to increase transparency and community awareness of treaties, and has not re-established the supremacy of Parliament in law making. These propositions were analysed further through a case study of Parliament's examination of the Kyoto Protocol to the United Nations Framework Convention on Climate Change. This study demonstrated the potential of the examination process as a mechanism for an appropriate level of parliamentary scrutiny as intended by the reforms. However, the analysis demonstrated significant problems with the committee's examination. The integrity of Parliament's examination was undermined and Parliament was not fully informed on this significant international treaty. The limitations of the treaty examination process, its failure to achieve its desired goals, the advent of MMP and the willingness of the courts to use unincorporated treaties as a source of law make it imperative for Parliament to have a role in approving international treaties. As well as parliamentary approval, an enhanced treaty examination process, the establishment of an International Treaty Committee, examination of all proposed treaty actions, a mechanism for the Government to be able to take urgent treaty action in the national interest only and a specified time frame for examinations are also recommended. Given the findings of this thesis, a report from the Law Commission or a Commission of Inquiry is needed to analyse the legal and constitutional implications of the recommendations, and on regulation making for international treaties.