International Treaties Bill

I welcome the report to the House of the Foreign Affairs, Defence and Trade Committee and support its majority recommendation that the International Treaties Bill not proceed. At earlier stages of the House’s consideration of the bill I indicated that the subject-matter was important, that the issues arising out of it merited scrutiny and discussion, but that the Government would likely not support its proceeding beyond a second reading debate. The opportunity to examine thoroughly the international treaty examination process of Parliament has been a productive exercise. It followed the trialling of the current parliamentary treaty examination process, which began in 1997 and which was formally adopted as a permanent part of the House procedure in 2000. The select committee has been able to reflect on the effectiveness of that process, and also to discuss possible improvement to it.

As a result of this exercise, the Government has made a number of enhancements to the process. The Ministry of Foreign Affairs and Trade now provides the select committee with a 6-monthly list of international treaties, both multilateral and bilateral, which New Zealand is involved in negotiating. Briefings are offered to the select committee on the background to any of those negotiations that the select committee wishes to receive. The list of treaties is publicly available, and that also allows wide input into the process. It means that the committee, rather than having to go through the time-consuming process of examining every bilateral treaty, can focus its examination on those that it believes to be important.

As Minister I have provided to the select committee the criteria used to determine which bilateral treaties should be submitted to the parliamentary examination process; the criteria I believe are relevant and appropriate, focusing on subjects that are likely to be of most interest to the public; treaties that represent major developments in bilateral relationships or have significant financial implications; and treaties that the select committee itself indicates it is interested in examining. The select committee acknowledges in its report to this House that these changes: “provide a substantial improvement in the transparency of the process and keeping Parliament informed of the executive’s treaty-making activities”.

The Government has also responded to the request for strong national interest analyses of the treaties under consideration. The more relevant information that can be put into the national interest analyses, the better members of Parliament can understand the implications of treaty actions. The analyses will now set out the pros and cons of a proposed treaty action; the social, environmental, and cultural effects of being party to the treaty; and the different views that might exist, revealed in the process of consultation. The national interest analyses will be posted on the website of the Ministry of Foreign Affairs and Trade, and we are also looking at putting on the website the text of all treaties to which New Zealand is a party.

As well as scrutiny of treaties that New Zealand is proposing to ratify, Parliament also has a key role—in that its assent is required for any legislation required to give domestic effect to a treaty undertaking. The Government cannot take binding treaty actions, unless and until our domestic law is fully compliant with the provisions of the treaty concerns. So it is wrong to say there is a democratic deficit, as the member who has resumed his seat has said. This process is inherently democratic. Constitutionally the power to negotiate and agree to treaties on behalf of New Zealand is the prerogative of the executive. That remains the case . This is fully consistent with democratic principles, since the executive owes its existence to parliamentary support, which in turn reflects electoral support.

There are a number of clear reasons why this bill should not proceed. Significant changes have already been made to increase the role of Parliament in treaty making, and this is continuing. This process should be allowed to bed in before more far-reaching constitutional change is considered. The proposal that all treaties, and there are about 40 treaties that we sign up to each year, go through the parliamentary process would have implications for parliamentary time, which is a scarce resource. Where there have been important treaties—the Kyoto Protocol and the Singapore closer economic partnership were two examples used by Mr Locke—this House has found the time to debate them. The possibility exists—but to go through every one of the 40, simply would not be possible with the constraints of time in this House and in the select committee.

There are also practical problems in what the bill proposes. In some instances the prerequisite of parliamentary approval may delay binding treaty action by the executive unnecessarily and have negative consequences for that reason.

Least practical of the bill’s provisions is that the Government must disclose New Zealand’s negotiating position to the House while negotiations are still under way, while also disclosing the position of our negotiating partner. That could damage or undermine New Zealand’s position in the course of the negotiations. It is simply unrealistic to do that, and it would be a breach of the confidentiality normally expected by the negotiating partner. For all of these reasons the Government does not believe that the approach or the mechanisms proposed in this bill are appropriate.

In conclusion, the process of treaty making has evolved considerably in recent years. Changes have been made to strengthen Parliament’s ability to effectively scrutinise treaties that New Zealand enters into. The process has become more open and more transparent. I believe that it is working well, New Zealand’s practice compares more than favourably with other democratic systems, and further major change is not warranted at this time. The bill ought not to proceed.

Dr the Hon LOCKWOOD SMITH (NZ National—Rodney): Were this bill to be implemented, it would require Parliament to give its approval to any treaty action prior to final ratification by our country. The Foreign Affairs, Defence and Trade Committee spent a lot of time on this bill of Mr Locke’s. It was the view of the majority of that select committee that it should not proceed, and it should not be implemented. That decision was reached for a very good reason. This Parliament has wasted enough time on this rather foolish legislation. I do not think I have seen a member’s bill receive so much attention from this Parliament. The bill was first introduced in September 2000 and it received its first reading in November 2000, after which it was referred to the Foreign Affairs, Defence and Trade Committee. That select committee made an interim report in October 2001, and it made a second interim report in December 2001. Members of this House then had a debate on those interim reports. Finally, the Foreign Affairs, Defence and Trade Committee made a final report on this bill of Mr Locke’s. Now, on 19 February 2003, we are debating it yet again.

This Parliament has wasted enough time on what has essentially been a shabby little deal between Labour and the Greens. I shall explain what I mean by that. A moment ago I said that this bill was introduced into Parliament on 21 September 2000. Straight after that—

💬 Rod Donald: That’s what you said last time.

Dr the Hon LOCKWOOD SMITH: Rod Donald, who is interjecting right now, warned Labour that the Greens might not support them in a confidence vote if they went ahead with the free-trade agreement with Singapore. Rod Donald suggested that if the Labour-led Government would support Green MP Keith Locke’s member’s bill on international treaties, then “that would certainly solve our dilemma and be good for the whole political process.” What a tawdry little deal! This is one of the smelly things about MMP. Here we have the Greens trying to get their own way by saying to the Labour-led Government that they will not support them on a vote of confidence, unless they support this stupid little bill of Keith Locke’s. The Greens were grumpy over the Singapore free-trade agreement, or the closer economic partnership as Labour members call it in their spin-doctor way.

But that was not the end of the matter. That happened on 9 October. On 14 October 2000 it was announced that Labour had appeased the Greens by agreeing to send Keith Locke’s member’s bill to the Foreign Affairs, Defence and Trade Committee. Prime Minister Helen Clark said at the time that while Labour was prepared to support the bill going to the select committee, there were no guarantees beyond that point. Just after that announcement by Labour, we saw the first reading of the bill in November 2000 and its subsequent reference to a select committee.

Then we had the whole charade of these interim reports back from the select committee. It was a tawdry carry-on by this Labour Government and its supporters, the Greens. If Labour had been honest, it would have simply said that this legislation was a no-goer, it was ridiculous, and that would have been the end of the matter. But no, they would have lost the support of the Greens on votes of confidence and so they did this tawdry little deal.

Let me explain briefly to members why this bill is in fact foolish. The reason is simple. If this Parliament—instead of the Government—had the ultimate say on international treaties, we would see what happens in the United States. I have been involved and I know the system quite well. In the United States they have realised that if Congress—their equivalent of our Parliament—had the final say on international treaties, which its constitution provides for, there would be an absolute shambles. On trade treaties, for example, they realised that the problem would be that Congress—the House or the Senate; it does not matter much which one: take the House, for example—would look through every paragraph and every line of a trade agreement.

Some members of the House would say “Hang on, my constituency back home produces this product, we will not have that in this trade deal. We will take that line out.” Another representative would say “Oh no, we will take that line out. That one is okay, but we will take that line out.” There would be an absolute shambles, as every line of a trade treaty was renegotiated by the hundreds of members of the House of Representatives in Washington. That shambles would have occurred in this Parliament if this legislation had gone through.

In the United States they have developed a process whereby Congress—both the House and the Senate—pass legislation to give the Government the authority to negotiate these treaties. It may be thought that that would have solved the problem. In the United States, the Government has not had authority to negotiate trade treaties during the entire Clinton administration. The Clinton administration never had negotiating authority from Congress during its entire administration. That was a long time; it was basically the entire decade of the 1990s. The United States was limited in what it could do on international treaties during that entire decade. On several occasions President Clinton asked for the authority from Congress to negotiate treaties. He offered a small fortune. When members know they have the Government over a barrel, they extract every last bit of blood. Members were saying “Sure, we will vote for you to have the authority to negotiate treaties Mr President, but you know about that motorway that we require and that $250 million project required in my constituency? You approve that project Mr President and you will have my vote for having treaty negotiation authority.”

It is believed that on his last attempt, President Clinton offered billions of dollars to get the authority from Congress to negotiate international trade treaties. He failed, even though billions of dollars were offered. He failed to get the members to grant him the power to negotiate international trade treaties. With the change of administration in the United States, President Bush had the same dilemma. He finally got there by the slimmest of margins, but a lot was promised to gain that trade treaty negotiation authority.

We in New Zealand are so dependent on our Government being able to go ahead and sensibly negotiate international treaties. We should not hamstring the future of our country. We should not put such a mill wheel around the neck of our country by doing this to it. That is why Keith Locke’s legislation is so stupid. I do not know where Keith Locke has spent his life, but it sure ain’t in the real world. Mind, most of the Greens have never spent their lives in the real world. We know that they snuggle up to terrorists, and we know some of the crazy things they believe in, but if they cared at all about the future of our country they would not impose on this country’s future the kind of process and procedure that would so hog-tie a future Government in its ability to negotiate international treaties. Fortunately, a majority of members in this Parliament still understand the importance of these matters, and that is why this bill was rejected by the Foreign Affairs, Defence and Trade Committee, and will be rejected by this Parliament.

I found Dr Smith’s contribution strange. I must say that I find most of his contributions strange, but his lecture on the American system was one of the strangest of all. He left out large chunks of what that system is. The American revolution, which was the second of the great bourgeois revolutions—the English being the first, that being the second, and the French being the third—was not dedicated to allowing democracy to flourish. Those who led the American revolution, with the support of the American colonists, dedicated it to protecting the very system that the member upholds: private property, including slaveholding. So an enormous number of checks were put into place on popular democracy, and the American system is certainly not a system that people would want to emulate now if they wanted to go to the greatest and most advanced form of democracy.

Let us deal with treaty making in terms of our parliamentary democracy and what we can do. The Progressives are not voting for this bill to go forward, but as I have said in all the speeches I have given on this subject, the aim of this bill and the philosophy behind it are what we must head towards. As a member of the Alliance, I first put this bill into Parliament. Throughout the whole process of this bill, I have seen an enormous and continuing change in the way that we handle international affairs. When the bill was put into the House in 1997, it was not drawn in the ballot until the next Parliament. I believe that Ken Shirley from ACT also had a bill in at the same time. Nevertheless, there was pressure both from within Parliament and outside to change the process, particularly in the light of the Multilateral Agreement on Investment, which National tried to shove through the Parliament most undemocratically and to the detriment of our people. I pay tribute to Don McKinnon—and I do not normally do that to Don McKinnon—who was then the Minister of Foreign Affairs. He set out adamantly opposed to change, but then saw that the tide was for change on this issue, and, with his foreign affairs officials and all parties in this Parliament, we took part in getting the sessional order that we have now. In essence, that sessional order allows for all treaties to be tabled so that we have advance notice of them.

But clearly that is not enough. Genuine concerns have been raised by all speakers, and in particular by Keith Locke, about what can happen if we do not subject treaty making to the scrutiny not only of Parliament but also of the people of New Zealand. It is in that direction that the Progressives and I particularly want to move, but we caution that we need to take such a step in practical ways, so that we carry Parliament and the population with us.

I believe that the greatest step forward towards allowing us as a Parliament to be able to take part in an intelligent and informed way on the treaties before us is to set up a joint standing committee on treaties, and in the report I stated that that was the position of the party I belong to. The argument against it—and I know this is an argument that Phil Goff subscribes to at the moment—is that our Parliament is not of sufficient size to be able to support another committee like that. I do not accept that. I believe that such a committee is necessary, even now. Such a committee, made up of all parties, obviously, and well-resourced, would allow our Parliament to take a step towards being able to—independently of the executive—scrutinise the treaties before us.

Not only did I find Dr Lockwood Smith’s speech strange—as I am sure I will find the succeeding National Party members’ speeches, if we have them—but also I find it strange that those who are fervent advocates of globalisation do not, and will not, recognise that the logic of putting that position, of living in an interconnected world, means that more and more our legislation and our policies reflect that. Clearly, members of Parliament are not confined just to so-called domestic issues. They must grapple with the larger international issues for the benefit of New Zealand.

At present we do not have such a joint standing committee. One possible bridge towards that, if we are not in agreement that we should allow for such a committee à la the way that the Australians do it, is to better resource the present Foreign Affairs, Defence and Trade Committee. I advocate that we should think about that, and I will certainly advocate that the present Foreign Affairs, Defence and Trade Committee be given greater resources. What does it need? At the very least it needs to be able to buy in independent advice in order to scrutinise the number of treaties and agreements that are either before us or that we are thinking of entering into.

I must take issue with the Greens, though, in another area. As I say, I support the direction of this bill. I ask for the right to be allowed to say that it is not the way forward on this issue. But there is a certain paranoia about what the Government does and does not do. I point to the fact that on the Singapore free-trade bill—the treaty—National and Labour voted for it. In Cabinet the then Alliance, which the Progressive party in this Parliament is a successor to, differentiated its view and made sure it went through the agreement with Singapore in fine detail. We came to the conclusion that we would not vote for it, and we insisted that Parliament be able to debate it and, similarly, the Hong Kong bill. It does not do a case any good to promote myth and paranoia that behind-the-scenes deals are being done in order to put one over people. In the case of, for instance, the General Agreement on Trade in Services (GATS), at the moment there is a need for that to come in front of the population. There is a need to have all the issues regarding GATS subjected to a national-interest test. [Interruption] The GATS agreement is before us at the moment, and members of Parliament should become conversant with it because it is extremely important to the development of New Zealand—detrimentally if one believes as I do, or it could be for our betterment, as conservative people believe. But, in any case, we need to be able to scrutinise those matters in an intelligent and informed way.

In summary, I have a great interest in this bill, as it was originally introduced by me, and I believe it has played an important role in forcing these international issues upon us. However, I believe that we are at the stage in this Parliament and in the country where the most important step we could take at the moment is to set up a joint standing committee on treaties as the Australians have, or, at the very least, to begin that process by better resourcing the present Foreign Affairs, Defence and Trade Committee.

At the moment the Australian committee does that. It has been appointed by the Commonwealth Parliament to review and report on all treaty actions proposed by the Government before any action is taken that binds Australia to the terms of a treaty. The committee is specifically resourced for that. Australia has one exception to the rule that treaties be tabled before a binding treaty action is taken. Where the Minister of Foreign Affairs and Trade certifies that a treaty is particularly urgent or sensitive, or involves significant commercial, strategic, or foreign policy interests, then that is an exception. But that is also a danger. I expect that when we look at the issue we will see a need to make provision for emergency situations, and for situations where the Minister of Foreign Affairs and Trade and the Government have to act quickly, but we must not allow that to be something that enables the executive to escape scrutiny.

In summary, I say we will move towards taking the area of making treaties away from being the prerogative of the executive, and bringing it under the control and suitable democratic scrutiny of the whole Parliament.

New Zealand First will not support the continuation of this bill. The Minister of Justice has set out a number of reasons for not supporting the bill. When one reads the report of the Foreign Affairs, Defence and Trade Committee, one can see how clearly the committee looked at the bill and the reasons that it should not proceed. The bill obviously raises a major constitutional issue: the role of Parliament in the approval of treaties. The select committee reported that if implemented, the bill would require Parliament to give its approval to any treaty action prior to final ratification of that treaty. Constitutionally speaking, under current law the power to negotiate and agree to treaties on behalf of New Zealand is the prerogative of the executive. The majority of the select committee believed that fundamental constitutional position should not be altered.

It seems to be a feature of the Westminster system that those countries that have devolved their constitutional rights from the United Kingdom share the view that parliamentary approval should not be given for certain types of treaties, and that treaties should not be self-executing. I note that the United Kingdom’s Parliament shares the same view as New Zealand, Australia, and Canada. That seems to be a feature of the way in which we in New Zealand have developed. Other countries, such as France, the Netherlands, Spain, and the like take a different view. But that seems to work very well in the Westminster system—and as the previous speaker indicated, the British system was probably one of the first modern democracies, if we put aside what may have been the situation in ancient Greece.

The National Party seems to have taken a dislike to Mr Locke as much as it has to the bill, which seems to be very unfortunate. I do not know quite why that is. I will say to Mr Keith Locke that, as we said in the earlier discussion in this House, this bill is probably ahead of its time in so far as the New Zealand Parliament is concerned. I take the comment made by Mr Robson and his view that perhaps we should have a select committee that looks at all these matters, but the essential problem facing the New Zealand Parliament is that just as the Parliament itself would not have enough time to consider all the treaties that would come the House, neither would a select committee. We hardly have enough members of Parliament to sit on the present select committees, and we all know the problems that took place in August and September last year, without a two-member party suggesting that we should have yet another select committee. I am sure the major coalition partner in the Government would not be terribly happy with the Progressive party suggesting there should be yet another select committee.

I was interested in the submission made by the New Zealand Law Society on this bill. The Law Society indicated it does not support such a revolutionary approach as that set out in the bill. Mr Locke will be pleased to think that his view was thought to be revolutionary because he might fancy himself to be something of a revolutionary type of person, though that is not meant to be a criticism of him. However, the Law Society does not support such a revolutionary approach to increasing Parliament’s role in treaty making. Rather, it supports a more evolutionary approach, consistent with recent changes to Parliament’s Standing Orders. The new parliamentary treaty examination process incorporated in Standing Orders 384 to 387 requires the Government to present and refer treaties to Parliament prior to ratification, together with a national interest analysis and it provides for consideration of such treaties, as has been mentioned by Mr Robson. It was very interesting to read the Law Society’s careful submission on this matter, and I should mention in passing that Parliament always appreciates submissions from the Law Society, which goes to the trouble of scrutinising legislation at great length and is of great service to Parliament in that way.

The main reason that I oppose this bill is as much from the practicalities that are involved as from anything else. I have taken the trouble to look at just where we are in Parliament at the moment, and to consider where we might perhaps be if we end up examining all the treaties that the Government may want to get into at any one time. Currently, we have 33 bills before select committees. Some of those bills even go back to 1992. I see the New Plymouth District Council (Land Vesting) Bill has been sitting in a select committee since 31 July 1992. I just wonder what the local member is doing about it—that is, whether the local member even knows he or she is the local member and just what is happening to that bill. All I can say is that in a past life when I was here, if a bill had been before a select committee for more than 6 months, in my role as either the local member or as the junior Government whip I would have been given hell by the Prime Minister of the day, who would have been wondering what on earth was happening with regard to that legislation and why it was not back in the House. Yet that bill has been sitting before a select committee since 31 July 1992.

We also have another bill—the Kerikeri National Trust Bill—that has been sitting before a select committee since 30 November 1995. It is quite incredible that Parliament has not been able to get on with its work and get those bills under way. The Human Assisted Reproductive Technology Bill has been before a select committee since 31 July 1997. We have a Conveyancers Bill, and I know that all lawyers would like to know what the future of that bill would be. I have an interest in that area. The Conveyancers Bill is suffocating, dying, or whatever the expression is, before the Justice and Electoral Committee, where it has been since 13 February 1998. The Forests Amendment Bill has been before another committee since 10 August 1999. Those bills are stuck in select committees, and have not even been reported back to the House. Those are just some examples of the 33 bills that are before select committees. In fact, there might be one or two more, but when we have 33 who is counting? I then had a look at the number of local bills and private members’ bills, and saw we have 15 of those floating around. When I looked at the bills that were before the House at various stages—first reading, second reading, etc.—I saw there are 44 of those.

So currently, we have 92 pieces of legislation at various stages, and we are well behind in what we are doing. To try to get this House to do even more select committee work and debate in this House would really bring this House to an end. There are important bills such as the Commissioner for Children Bill, which has been languishing on the Order Paper awaiting a second reading since 5 April 2002. For example, the dog control bill was reported back to this House in 1999 and has sat here for almost 4 years, doing nothing. It took an unfortunate tragedy to have something done about that, although that bill went backwards rather than forwards.

This House has more than enough work on its hands at the moment. Clearly, the administration of the Order Paper has not been handled well by the Labour Government. It is quite a disgrace that we have so many bills hanging fire around this House. We have television bills, racing bills, and so on. I would have thought that the use of weapons, guns, and suchlike would be important, but the Arms Amendment was reported back on 22 February 2001, and nothing has happened to it since then. The Crimes Amendment Bill (No 6)—another law and order matter—is still sitting on the Order Paper, where it has been sitting since 20 July 2001. The Criminal Justice Amendment Bill (No 7) was reported back on 30 April 2001. The Order Paper is in complete disarray. It is an indication of how this minority Labour Government cannot run this House. How can we ever expect it to run the country, when it cannot even run a simple Order Paper?

The suggestion that more work should be given to this House, when this minority Labour Government cannot currently run the Order Paper, beggars imagination. New Zealand First cannot possibly support this legislation, although in passing I would like to commend the member who introduced the bill for his courage in bringing it before the House.

This bill raises an issue of major constitutional significance: the respective roles of the executive and the legislative wings of Parliament. It is not surprising, therefore, that the bill has been before the Foreign Affairs, Defence and Trade committee for a period of over 2 years, has been given substantial consideration, and has come back to the House for several debates during that time. There were no United Future members on the select committee that considered the bill, and it is therefore appropriate that United Future commends the members of the select committee for the thorough work that they have done in looking at this bill with diligence, and in looking at the broader issues it has raised. They did not just confine themselves to the limited provisions of the bill but also looked at the wider issues of the relationship between the executive and the legislative wings, in so far as that relates to the approval of international treaties by New Zealand.

Under the Westminster democratic system, this legislation would constitute a radical departure from the longstanding constitutional convention that gives the executive the sole prerogative, independent of the legislative wing of Parliament, to approve international treaties. Against that is the MMP environment that has developed in New Zealand, where we have become and are becoming accustomed to a greater scrutiny of treaties by Parliament, both in general debate and through the select committee process. In my view, that is a good move. In the MMP environment we recognise the breadth of views that the House now presents, and that environment gives the opportunity for a breadth of view to be expressed even in respect of those matters that would normally have been the executive’s prerogative.

We have also started to become part of the global village. That term has been used a lot. More and more, we are becoming part of the international scene, and international agreements play an increasingly large role in the lives of New Zealanders. That is another reason that New Zealanders perhaps have a greater interest in, and express a greater diversity of views on, both the relationships that we should have with different countries in the world and exactly how those relationships should be expressed. That move goes very much hand in hand with the MMP environment that this Parliament has inherited, and again I welcome it. Prior to the introduction of this bill, and afterwards, there have been developments in the way that the executive has dealt with treaties—in particular, the reforms that have been included in Standing Orders 384 to 387, which have provided a measure of involvement by Parliament in the issue of treaties. That has provided a significant measure of involvement by the reference of certain treaties—admittedly, not all—to the Foreign Affairs, Defence and Trade Committee.

This bill would go further than that. Firstly, it would extend such reference without exception to all treaties, and particularly to bilateral treaties. Secondly, it would require consideration of treaties during the course of their negotiation, and prior to their finalisation and acceptance. The select committee noted that the bill had been introduced only a few months before the reform of the Standing Orders had really come into effect, and that those reforms needed a chance to be evaluated. In its interim report in 2001, the select committee suggested a number of issues that could properly be addressed by the executive with regard to treaties, and commended those suggestions for consideration by the House. I note that in the final report of the select committee, it indicates that even though it is now over 2 years since the bill was introduced, members of the committee still do not feel that enough time has elapsed. The number of treaties that have come before the committee has been small, and the procedures set out in the Standing Orders have not really had a full test.

In the view of United Future, this bill has some significant problems. The first is the large number of treaties that would come before the House; we have been given the figure of 40 per year. Mr Locke indicated that he thought a number of those would be minor matters that could be dealt with fairly speedily, but my experience in the House is that if 40 treaties have to be placed on the Order Paper and considered by Parliament, we would have a gridlock situation that would leave the peak-hour traffic position in Auckland looking insignificant, particularly with the propensity of members to filibuster and the Greens’ refusal to grant urgency in terms of the House’s time. The effect of considering 40 treaties on the Order Paper would demonstrably stop the House getting through its business efficiently.

The second major problem is the speed issue. Although there is a provision for urgency and subsequent ratification of a treaty in the bill, nevertheless, it is important at times that treaty negotiations proceed to a conclusion with a degree of speed. Again, the procedure of the House is not always conducive to that occurring. Personally, I would prefer to see urgency and priority being given to Treaty of Waitangi resolution bills, rather than to international treaties, on the basis that we should be getting our own house in order more speedily than developing relationships overseas.

The third problem is in the area of confidentiality. I notice again that Mr Locke suggested that a treaty in its general form could come before the House, and that there could be a debate on the general issue rather than on the specifics, in order to protect confidentiality. However, the bill does not provide for that. It provides that a treaty must be before the House before it can be accepted. That presupposes that all the wording of treaties, both confidential and non-confidential, should appear here in the House before treaties are signed off. I see major problems with that, particularly when dealing with bilateral treaties in situations where the negotiating positions and the points of view of both sides are publicly notified before there has been a sign-off on the part of the executive.

In summary, I believe the bill would be unduly restrictive on the power of the executive. I do not believe, because of the problems that I have alluded to, that the bill is appropriate. United Future does not consider it appropriate that this bill should be passed. In practice—and, indeed, the select committee considered it to be a constitutional convention—successive Governments of New Zealand have not become parties to treaties until after any domestic legislation necessary to implement them has been enacted. In so far as that has developed as a convention, in itself that provides some protection along the lines that Mr Locke was looking for.

Constitutional developments should evolve slowly. That is because of their importance in terms of change, and also because the conventions and the positions that have developed have tended to stand the test of time, and any changes should be considered slowly. In a sense the bill has defeated itself, as many members’ bills do. Its very consideration has raised the issues and brought about the changes sought, in a way that is somewhat more measured than the bill itself provides for. This bill has had lengthy consideration. It has resulted in a wide-ranging series of questions coming before the House for consideration, in new procedures for things like briefings by the Ministry of Foreign Affairs and Trade, more Māori consultation, a more transparent process for the approval of treaties, and a strengthening of the national interest analysis documentation. Mr Locke is to be commended in so far as he has achieved quite a bit of the bill’s intentions—even though the bill itself has not been passed—with regard to providing greater transparency in the process and greater awareness by Parliament and its select committee of what is going on.

United Future will not support this bill at this point. We believe that the measures that have already been taken do go a long way towards achieving the intentions of the bill, and should be allowed to develop before we reconsider the situation. In fact, we believe the procedures that have been developed meet the intentions of this bill without the weaknesses to which I have previously alluded.

Kia ora, talofa lava, and warm Pacific greetings. I have much pleasure in participating in this debate on the second reading of this bill. I also want to thank the members of the Foreign Affairs, Defence and Trade Committee for their sterling hard work on this bill.

The Government does not support this bill having its second reading, for both practical and constitutional reasons. Labour believes that the process of entering into international treaties should have as much democratic participation as is practicable and desirable in an open society. However, the solution proposed in the bill would seriously compromise the Government’s ability to carry out its international business in a timely manner. There are many treaties that would qualify under this bill. Potentially, this bill could swamp Parliament with much more work than it could handle. Parliament would have as much time as was needed to examine a treaty—an open-ended veto on the process.

Thanks to Mike Moore, this Parliament already has great involvement in treaty making. It was Mike Moore, as foreign affairs spokesperson for the Labour Party, who campaigned for greater parliamentary involvement in treaty making back in 1996 and 1997. In large part because of his efforts, Cabinet established a process in late 1997 by which Parliament is informed about the details of proposed treaties, and has the opportunity to examine them in detail. In 2000 we made permanent the trial process for the examination of international treaties, which increased Parliament’s involvement, and the system is generally working well.

As I mentioned earlier, there are both practical and constitutional reasons that the Government does not support this bill having a second reading. The practical consequences are that this bill would require the Government to put before Parliament all treaties to which it proposes New Zealand should become a party. The bill also requires that before New Zealand becomes a party to any treaty there must be parliamentary approval. That has some practical consequences, because on occasion we need to ratify trade treaties urgently. Putting those ratifications in the hands of the House could substantially delay their ratification, with real and negative consequences.

The constitutional consequence of the bill, in respect of treaty making, would be to take authority from the Government and give it to Parliament. With regard to Murray Smith’s comment, that has not happened in any other Westminster system. It is not undemocratic for the executive to have the ultimate authority over treaty making. The executive comes from a majority in this Parliament, and has the support of the largest single block of the electoral population in New Zealand. It is absolutely democratic that the executive should exercise that particular authority.

Another practical consequence of the bill is that our Government would be required, in the midst of a negotiating session with another country, to disclose to the House both our negotiating position and that of the other negotiating party. As our Minister of Foreign Affairs and Trade, the Hon Phil Goff, has said, that would put us into a terrible position and would make the situation a nonsense.

I end by saying, basically, that the stronger national interest analysis that will be provided will ensure that all perspectives and views are taken into account, and that Labour believes that the process of entering into international treaties should have as much democratic participation as is practicable and desirable in an open society.

Thank you for the opportunity to contribute to this debate. We know what the outcome will be—this bill will be consumed in the fiery furnace, just as Nebuchadnezzar’s guards were consumed. That is a reference, of course, to the story in the Book of Daniel, but it is not really what I wish to talk about tonight. Instead, I want to talk about three aspects relating to this bill.

First of all, I will pick up the theme that Dr Lockwood Smith spoke about. The reason is that I support his view that the process of this bill, now in its second reading, exemplifies the cynical abuse of power in the MMP environment. This bill was always going to fail, but it came at a very critical point in the parliamentary cycle, when the Greens were required by the Government to support its position. So on 8 November 2000 the bill was flicked to a select committee, and the plan was simply for it to languish there. It was not a complex issue, so some delaying strategies had to be developed. It was a bit like Quintus Fabius Maximus, known as Cunctator, who waged those highly successful battles against Hannibal, utilising delaying tactics. As other members have said in the course of this debate, we have seen how successful those delaying tactics were, what with two interim reports and now a final report. That is the first issue I wish to identify, because the Greens have been had. They were had in the last Parliament, and that game has been played out by the Government in this Parliament, where the Greens are now seen as more expendable.

The second issue I wish to touch on is why, in simple terms, this bill was bound to fail. It was bound to fail because it cuts across a settled constitutional convention that it is for the executive to conclude treaties. Those arguments are well rehearsed in the report on the International Treaties Bill in the life of this Parliament. There are two very good reasons. The first is that the majority of the members of the committee believe that the impact of this treaty-approval legislation would be a substantial and inappropriate constraint on the executive in treaty-making arrangements. It is quite clear that the executive would find itself unable to proceed with some treaty actions on particular issues because the House would not approve those proposals. The second point is the practical consequence of the bill, and the expressed concern that the Government would be required to disclose its negotiating position to the House. So the bill was bound to fail.

The final point I would like to make has specific reference to the bill and its operative provisions. The particular point I wish to refer to in the bill is related to the extent to which clause 8, “National interest analysis”, tracks the provision in the Standing Orders. What Mr Locke has basically done is plagiarise those provisions and insert them into his bill. There are only two subtle exceptions. The first I do not seek to deal with as it touches on clause 8(1)(a), but the second is more interesting. If one compares the relevant provisions of Standing Orders 384 to 387, and the national interest analysis provisions in those Standing Orders, one sees that clause 8(1)(d) has an addition. If this bill were ever to pass, the issue that Mr Locke would have us consider is that, in the national interest analysis on any treaty proposal, we should be looking to achieve consistency with the Treaty of Waitangi. We saw in that reference by him a vain, and fortunately unsuccessful, attempt at political correctness.

I urge members of this House to accept that it is no longer appropriate not to talk in this global way about the Treaty of Waitangi, and about the principles of the Treaty of Waitangi. Where we decide as a Parliament to reflect the Treaty of Waitangi, or the principles of the Treaty of Waitangi, in primary legislation, we should do so with clarity, so that it is absolutely plain to the readers of the statutory language what we intend to achieve.

Sitting suspended from 6 p.m. to 7.30 p.m.

I rise to support the bill.

It is quite simply outrageous for this Parliament to retain the Crown prerogative for international treaties in the MMP era. Indeed, the committee accepted that European countries with proportional representation have parliamentary involvement in the treaty-approval process. Yet despite that, the majority view is to maintain the status quo. That was bad enough under first past the post; then, at least, Governments had the semblance of majority support, because they held a majority of the seats, if not a majority of the votes. Now we have a fair electoral system, and it is transparent that this Labour Government is a minority one. It has only 52 votes guaranteed out of 120, plus another two that are likely, but not always. That is not the majority of a mandate. The era of minority coalition Governments is the very reason that Parliament should take over control of the treaty ratification process, because then decisions could be taken by real majorities in this House. However, I am afraid that the first-past-the-post dinosaurs—and I have to cite both Mr Goff and Dr Lockwood Smith, who were working hand in glove to defeat this bill—will not let go of the Crown prerogative.

The process surrounding the Singapore free-trade agreement was mentioned by a number of speakers. It is actually an example of what is bad about the present system, and what would be possible if Keith Locke’s bill were passed. The Singapore bill was debated in this House. It was a strong debate, and passionately held positions were expressed. A vote was taken—which was a Clayton’s vote, because it had no meaning, though it was a vote all the same—and there was a solid majority in favour of the free-trade agreement, because, predictably, National voted with the Labour Government. Equally predictably, I guess, the Greens opposed that bill, as did the junior coalition partner to Labour at the time, the Alliance—may it rest in peace. But the real decision took place in Cabinet, and that exposes the current process as a sham. The Labour part of the Government had only 49 seats at the time, yet it commanded absolute power.

It is extraordinary to hear Matt Robson say that he would vote against this bill, when it was originally drafted by him. One would have expected him to support something that he was the author of. I have to give him credit for standing apart from the majority report, and for the fact that he has proposed his own halfway house—the special treaty select committee, which would at least be a timely step forward. However, as Mr Robson says himself: “In a globalised world, treaties and conventions have a greater and greater impact on the ordinary citizen. Their representatives in Parliament require adequate information to be able to protect the interests of the electors.” That sounds to me like a compelling argument for supporting a democratic treaty ratification process. It is very sad that Mr Robson has decided to come down on the side of the status quo; at the very least, he could have abstained on this bill.

The current improved—to give Mr Goff some credit—select committee process is still inadequate. The Government can still ignore what the select committee has to say. It gives it only 15 days in which to do its work; there is no debate in Parliament, and no vote. I hope the Foreign Affairs, Defence and Trade Committee stands by its indication that it will make a special report to the House on the treaty examination process, because there are issues that need to be dealt with. The Green Party has already made a submission to the Standing Orders Committee to improve public and parliamentary participation in this process, but that is very much second best. Reform is long overdue, not ahead of its time.

It is not just the Greens who are calling for greater democracy in the treaty-making process. I need go no further than our eminent Clerk, David McGee, who is one of the strongest proponents of reform. I recommend to all members that before they cast a rash vote on this bill, they read his paper Treaties: A Role for Parliament? which was published in the Public Sector Journal of March 1997. There are one or two selected quotes I would like to make from that paper, just to highlight the importance of the need for change. David McGee says the need for change can be illustrated by the treaty establishing the World Trade Organization in 1994: “This is one of the most important international agreements that New Zealand has ever entered into, but Parliament was never asked to vote for or against membership of the WTO.” He continues: “The system whereby many treaties never come before Parliament for consideration, and those that do are considered only indirectly for the legislative consequences, is a deficiency in the parliamentary process.” Under the heading “Treaties and the Courts”, he says: “What has turned a less than satisfactory parliamentary situation into a thoroughly unsatisfactory one are the related judicial developments illustrated by litigation.” He goes on to give some examples.

When it comes to a parliamentary role, Mr McGee poses the question: “It is where this leaves Parliament that demands a reconsideration of the treaty-making process. Is it justifiable any longer to leave this as an exclusively executive function?” He answers his own question by putting in detailed proposals for a regime requiring parliamentary endorsements of treaties to Parliament’s Standing Orders Committee. As he says, “If these proposals are adopted, parliamentary endorsement of a treaty would be required before the treaty could be ratified.” Of course, he wrote that several years ago, and we are no further ahead.

I would like to hope that we could have made progress with this bill. Some might say that we don’t need it, because, of course, the Singapore Free Trade agreement is faltering, the trade deficit has gone up enormously since that came into effect, the Hong Kong deal has failed to fly because of rules of origin, and the one with the United States is seriously flawed. The Government was certainly floored by Philip Wall, the US Embassy head of mission, who said only last week: “I have to report that, as of now, the United States is not prepared to commit to bilateral trade negotiations.”

But, seriously, despite the apparent stalling of the Government’s fixation on free trade, we need this bill. To give members a couple of examples, Food Standards Australia New Zealand is an agreement that should have come before this Parliament. It was set up by legislation in Australia, and there is no parallel legislation in New Zealand. In the end, we have one vote out of 10 on that council. If Parliament had had a say, I doubt that we would have agreed to such a subservient position, which is equivalent to that of an Australian state. Right at the moment, Parliament should be debating what New Zealand will be offering under the General Agreement on Trade in Services (GATS). Instead, the Government has given the public 25 days to make submissions on what public services will be opened up to corporate control. Once the Government cuts deals under GATS, there will be no come-back. The Government could agree to scrap the Overseas Investment Commission, and all the rules it is meant to apply; and the kiwi share for Telecom, and to open up water, health, education, and local government to privatisation. Such decisions will bind future Governments, which is why Parliament should make decisions that will affect our sovereignty as a nation. Instead, Parliament will have to pick up the pieces of GATS by being forced to pass amending legislation to give it effect—whether or not we agreed to the decision in principle that the Government had taken in the first place—because of that last vestige of the old first-past-the-post system, the Crown prerogative.

I stand to oppose the bill.

I rise to support this bill, which requires that the treaty-making power of the New Zealand Government be made subject to clear democratic control. This bill is very similar to a bill that my colleague the Hon Ken Shirley prepared. Keith Locke and Ken Shirley’s bills sat in the member’s bill list waiting for the ballot for many, many months. When Mr Locke’s bill was drawn, the ACT party was delighted, because our purposes in wanting to bring the treaty-making power under democratic, parliamentary control are purposes that people from left and right can equally recognise. For example, the Greens see current treaties like the General Agreement on Trade in Services (GATS), and the globalisation moves typified by the Multilateral Agreement on Investment (MAI) as threatening, and we might see a temporary advantage in not having to pass such things through the scrutiny of Parliament. We might think that there is reason to endorse the words of the Hon Lockwood Smith or the Hon Phil Goff, who, in effect, have said that democratic scrutiny is awkward, inconvenient, time-consuming, and potentially embarrassing, and that they rather like it the way it is.

What we heard from the National Party and Labour—assisted by Matt Robson, of the Progressive party, which was formerly the Alliance—was a set of pleas for privilege: the privilege of not having to explain oneself, of not having to persuade people, of not having to carry the country with one’s decisions, of being able to be part of an elite group using the levers of the State, and, with other wielders of power, covertly bringing into our law rules that New Zealanders would not approve of if they knew what was happening.

We have a very good example of that. In 1989 New Zealand decided to formally abolish the death penalty. At that time, there was significant debate about whether it could be entrenched. At the same time, we were having a debate about whether we could in some way entrench our bill of rights. The Government decided after a lot of debate that it was not feasible to entrench, in a politically acceptable way, something as universal as the New Zealand Bill of Rights Act, though its terms included fundamental human rights. The Government passed the bill abolishing capital punishment, but then subscribed to the International Covenant on Civil and Political Rights, knowing that that subscription—as far as legal theory goes—says that the New Zealand people can never reverse their decision on capital punishment.

This is not a speech in favour of capital punishment. It is simply saying that cynical politicians like the Hon Douglas Graham, who knew that he could not succeed in getting New Zealanders to say that there will never ever be an occasion for capital punishment, used the treaty-making or treaty-accession power to try to put something beyond the people of New Zealand. Had that been debated in this House, it would never have flown, but he did it at the same time as we were adopting a bill of rights intended to entrench basic liberties. That is not unusual.

The arguments raised by the Hon Phil Goff and endorsed by Lockwood Smith for not allowing Parliament the power to scrutinise, were arguments to ensure just that outcome. For example, we have the argument that disclosure of negotiating position is the problem. Does that really tell us that the United States does not manage to secure its negotiating position, simply because it has to persuade the Senate before the President can ensure that a treaty will be binding? What about all of the other OECD countries with which we would like to be compared? It is really only a residue of the British Imperial system that has left us in a position where we can hear speeches saying—as Lockwood Smith did, and as the Minister, Phil Goff, did, with slightly less rancour—that it is stupid or foolish to attempt to ensure that New Zealanders cannot be bound by international documents.

We have had a fair raft of foolish treaties, and they are not something that Parliament should keep out of. We have had Prime Ministers with a rush of blood to the head who wanted to big-note it in international fora; Prime Ministers currying favour—possibly even for personal benefit—wanting to be known for things internationally once the little stage of New Zealand had become far too small for them. We have had treaties that have been promoted and brought into force with words that New Zealanders should not tolerate. In my time in this House, I have seen the International Crimes and International Criminal Court Bill sign New Zealand up to words that, in effect, say that some of our war heroes were war criminals.

💬 Hon Matt Robson: They may not be war heroes if they are criminals.

Because of weasel words, some of our war heroes are now war criminals. As the former Minister for Disarmament just interjected, the bill makes them not war heroes but war criminals—people like General Freyberg, and the men who managed to ensure that Malaysia was not Vietnam. They deliberately signed us up to words that very few New Zealanders had ever heard about—that declared, in effect, that we would rewrite history and make those men war criminals. Mr Robson was able to enjoy the plaudits of the representatives of countries that have absolutely no respect for our freedoms. He could go off to New York and be clapped for committing us to obligations that New Zealanders would not have stood for.

My select committee has also seen the misuse being made of this issue. As President of the Court of Appeal in the Tavita case of 1994, Lord Cooke gave fair warning that the judiciary was salivating at the thought of being able to elevate international treaty obligations to a kind of superior law that could mean that it did not have to listen to Parliament. Lord Steyn, who was here just late last year, repeated that theme. He asked why the Court of Appeal had not used treaty obligations—international human rights law—to just forget about waiting for a Parliament that was not falling into line with his preferences. The Human Rights Commission appeared before our committee to tell us that its highest priority a year and a half ago was to turn housing into a fundamental human right—in effect, creating in New Zealand the situation in the United Kingdom, where 80,000 Algerian and Iraqi so-called refugees are sitting in hotels at the ratepayers’ expense. That is a human right never voted on by the New Zealand Parliament, but our Human Rights Commission thought it could use a vague reference to the International Covenant on Economic, Social, and Cultural Rights as justification for turning it into an obligation in New Zealand.

We believe that Parliament should debate these matters. A sort of ruthlessness seems to accrue to National and Labour when they have held power, and the Greens have done this House a service by bringing this bill forward. We will support it, and it will come back. We hope that next time the attitude of the other parties to this bill will not be dictated by such a cynical hunger for power.