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Treaty-making 101 for ministers, bloggers and lobbyists

Contributor:
Fuseworks Media
Fuseworks Media

"Recent statements by politicians, corporate lobbyists and pro-TPP commentators imply that Parliament gets the final say over the Trans-Pacific Partnership agreement (TPPA). That shows woeful ignorance of New Zealand’s treaty making process," says Auckland University law professor Jane Kelsey.

"The Cabinet Manual could not be more clear: "7.112: In New Zealand, the power to take treaty action rests with the Executive." In practice, that means the Cabinet.

"Any claim that this is a democratic process is disingenuous. Successive governments have blocked changes to standing orders and legislation proposed by ACT and the Greens that would have given Parliament a stronger role in approving treaties. In both cases the Ministry of Foreign Affairs and Trade vigorously and successfullydefended its turf."

The text is not tabled in Parliament until it is signed, which means the Cabinet has already formally indicated its commitment to adopt the text. It is then referred to the foreign affairs, defence and trade select committee, which is required to report back within 15 sitting days, unless the government extends the time.

Professor Kelsey called for a reality check. "If the TPPA is completed it will be the size of two telephone books. Very few people can provide a comprehensive and informed submission within the available time."

"From past experience, the select committee process is a cosmetic exercise anyway, because the government has a majority. Even if it wanted to propose changes, the committee has no power. The Cabinet can ratify the treaty while the hearings are still proceeding, as happened with New Zealand Thailand Closer EconomicPartnership."

Parliament might be invited to vote on the TPPA, if the government majority agrees, but the vote would be symbolic. Such votes were held on several recent free trade agreements - with the assurance of a bi-partisan National/Labour consensus. That consensus is no longer guaranteed, given the Labour Party’s policy remit adopted at the recent conference.

Even where implementing legislation is required, Parliament could refuse to pass the laws, but if the treaty were already ratified New Zealand would then be in breach of its new obligations. But the government could seek to bypass legislation. Controversial changes to Pharmac, for example, might be made by regulation.

"The sad truth is that our elected representatives, and we as citizens, are impotent to affect a process that the Cabinet effectively controls from start to finish. Those who claim it is not, from the Prime Minister down, are misleading thepublic deliberately or otherwise."

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