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What is a treaty?
A treaty is an agreement between countries, or with an international entity like the United Nations or World Trade Organization, that is binding under international law. Treaties are often referred to as “agreements”.
Parliament’s role in treaties
In New Zealand the executive branch of government (in practice, the Prime Minister and Cabinet, with help from their officials) negotiates and decides on whether this country will join or withdraw from a treaty. The government’s decision is effective whether or not Parliament endorses the treaty.
However, since 1998 it has been the constitutional convention that the government will not (except in an emergency) bind New Zealand to a treaty until Parliament has been allowed a minimum period to scrutinise it. This convention is set out in the Cabinet Manual.
All treaties presented to the House are referred to the Foreign Affairs, Defence and Trade Committee. That committee either considers the treaty itself, or refers it to a more relevant subject select committee to consider.
Timeframe for select committee consideration of a treaty
The Standing Orders (the rules of Parliament) do not impose any time limit on treaty examinations. However, because the government can ratify a treaty (that is, bind New Zealand to it) after 15 sitting days from its presentation in the House, in practice committees tend to provide their treaty report to the House within 15 sitting days. Committees sometimes arrange for a longer timeframe.
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The Foreign Affairs, Defence and Trade Committee plays an important role in treaty examinations.
Source: Office of the Clerk
Only Parliament can change the law
Although a treaty is binding at an international level, it cannot change New Zealand’s domestic law. Only Parliament can do that, by enacting legislation to confer powers or duties on people in New Zealand.
The government’s practice is to ensure that domestic law is compatible with a treaty’s obligations before New Zealand becomes bound by it. If new legislation is needed, it will wait for Parliament to pass any legislation before ratifying the treaty.
A national interest analysis accompanies each treaty
Each treaty presented to the House is accompanied by a national interest analysis (NIA) prepared by the relevant government department. The NIA covers matters including:
- the reasons for New Zealand becoming a party to the treaty
- the advantages and disadvantages for New Zealand of the treaty
- the obligations the treaty imposes
- the economic, social, cultural, and environmental effects of the treaty
- the consultation that has been undertaken or is proposed
- whether legislation is needed to implement the treaty.
The NIA is a key document in a committee’s consideration of a treaty, and it is always attached to the committee’s report.
What select committee consideration of a treaty involves
The treaty examination provides the opportunity for the committee to express a view on the government’s decision to enter into the treaty, and on the nature and content of that treaty. Although the committee cannot change the treaty, the government is likely to take note of a committee’s views, and they may influence negotiations on other treaties.
Where legislation will be needed to implement the treaty, the committee’s report may signal the positions parties will take when the legislation comes to be debated in the House.
A committee’s consideration of a treaty may involve:
- asking the responsible department to provide an initial briefing based on the NIA
- inviting particular individuals or organisations to make submissions
- advertising for public submissions
- receiving evidence or advice from officials.
Committees’ reports about treaties are published on the Parliament website.
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Presentation to the House is one of the key treaty-making stages.
Source: Office of the Clerk
The full treaty-making process
The treaty-making process has seven main steps:
- Negotiation: the Ministry of Foreign Affairs and Trade (MFAT) oversees the government’s entry into, or withdrawal from, treaties. It advises the government and works with other government agencies on the negotiations that lead to treaties being established or changed. Officials negotiate the text of an agreement with the treaty partner(s). They may consult interested parties and the public.
- National interest analysis (NIA): the lead government agency on a treaty prepares a Cabinet paper and a NIA. This sets out the advantages and disadvantages for New Zealand of becoming a party to an agreement or deciding to withdraw from one.
- Signing: Cabinet approves the final text of the agreement, and authorises its signing. It also approves the NIA.
- Presentation: MFAT presents the treaty and its corresponding NIA to the House.
- Referral (where applicable): the treaty is retained by the Foreign Affairs, Defence and Trade Committee or referred to the most appropriate subject select committee.
- Consideration: a select committee considers the treaty and the NIA. The committee has 15 sitting days in which to report back to the House.
Legislation may be needed to implement a treaty. The practice is for Parliament to pass this before the government ratifies the treaty.
- Ratification: formal documents are exchanged with the other countries or organisations involved to bring the treaty into force for New Zealand. These documents confirm that domestic procedures have been completed and the treaty is in force.
Other resources
New Zealand Treaties Online has a searchable database of the treaties New Zealand has joined, or is in the process of joining.
For more discussion of Parliament’s role in the treaty process, see McGee—Parliamentary Practice in New Zealand.