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Relevant international agreements

Treaties being given effect

It has been estimated that around 20% of New Zealand's public Acts implement international obligations. The majority of these, however, do not clearly acknowledge the particular treaties to which they give effect. External parties can only assess the extent to which a Bill's provisions are consistent with, or go beyond, the international obligations imposed by the treaty if they know that the Bill intends to give effect to a treaty, and if they have access to the relevant treaty text.

National impact analysis

Standing Orders require, and the Cabinet Manual also states, that multilateral treaties and major bilateral treaties of particular significance are to be presented to the House of Representatives for examination, generally before binding treaty action is taken by the government.

To support the examination process, the treaty must be accompanied by a national interest analysis (NIA), prepared in accordance with Standing Orders and approved by Cabinet. The NIA is expected to set out:

  • the reasons New Zealand is proposing treaty action,
  • the advantages and disadvantages,
  • the nature of the obligations imposed,
  • the nature of the expected effects and costs of compliance; and
  • how the treaty would be implemented in New Zealand (which includes the nature of any legislation required).

Question 2.2

2.2.  Does this Bill seek to give effect to New Zealand action in relation to an international treaty? [YES/NO]

What matters are covered by the question?

For the purposes of this question, a treaty is an international agreement between two or more states or other international persons that is:

  • governed by international law; and
  • intended by the parties to create legally binding obligations.

Treaties can take a variety of forms and names. If you are unsure whether a relevant instrument is a treaty, your department's legal team, or the treaty officer at the Ministry of Foreign Affairs and Trade (email treatyofficer@mfat.govt.nz) may be able to help.

Giving effect to New Zealand action in relation to an international treaty will include:

  • giving direct effect to the treaty text by stating that the relevant provisions have the force of law in New Zealand;
  • incorporating wording from the treaty into the body of an Act;
  • including in an Act obligations that reflect the substance of the treaty provisions;
  • authorising the making of delegated legislation to give effect to specified treaties; or
  • legislation that addresses New Zealand's withdrawal from, or denunciation of, a treaty.

Action in relation to a treaty should also be taken to include action in relation to:

  • parts, amendments, or additions to a treaty; or
  • new binding instruments that are made from time to time under the authority of a treaty.

What is the nature of the further information sought?

If the answer is YES, please provide:

  • a suitable citation for the relevant treaty (or treaty part, amendment, or associated instrument), including full title, date, etc;
  • an active hyperlink to the text of the treaty, or a sentence indicating where the relevant treaty text can be accessed for free (which might be in a schedule of the Bill itself); and
  • an answer to the subsidiary question (Question 2.2.1).

If the Bill takes action only in relation to a specific part of a treaty, this can be indicated as part of the citation. If the action taken is in relation to withdrawal or denunciation of a treaty, this should also be indicated. Otherwise, you could look to use the general policy statement to provide any further contextual information about how a treaty may be relevant to the Bill.

If the relevant treaty text is not attached as a schedule to the Bill, the best place to go for a suitable hyperlink to the treaty's text is likely to be the Treaties Register Database maintained by MFAT.

The Database is expected to be publicly accessible online from the end of July 2013 at http://www.treaties.mfat.govt.nz. Each page of the Database should provide some standard information about each treaty, and either a downloadable PDF version of the Treaty text, or a link to the treaty text on the treaty depository's website.

Example: (for a YES answer, concerning an International Financial Agreements Amendment Bill)

The Bill gives effect to changes to the Articles of Agreement of the International Monetary Fund, agreed by the IMF governors in 2008 and 2010.

The specific changes to the Articles are set out in Schedule 1 and 2 of this Bill.

The Full Articles are set out in Schedule 1 of the International Agreements Act 1961 (accessible at http://www.legislation.govt.nz/act/public/1961/0003/latest/contents.html).

If the answer is NO, no further information is required.  You can also then delete the subsidiary question (Question 2.2.1) from the disclosure statement.

However, if elements of the Bill are intended to give legislative support or force to otherwise non-binding international arrangements or standards, you are welcome to indicate this in the space provided under the headline question.

If you wish to provide a hyperlink to the text of the arrangement, the Treaties Register Database will also contain information and links to the text of some international arrangements entered into by New Zealand.

Example: (for a NO answer, concerning a Patents (Trans-Tasman Patent Attorneys) Amendment Bill)

However, the Bill is intended to implement the Arrangement between the Government of Australia and the Government of New Zealand Relating to Trans-Tasman Regulation of Patent Attorneys, signed in March 2013 (accessible at http://www.med.govt.nz/business/intellectual-property/proposal-for-trans-tasman-regulation-of-patent-attorneys).

Question 2.2.1

2.2.1.  If so, was a National Interest Analysis report prepared to inform a Parliamentary examination of the proposed New Zealand action in relation to the treaty? [YES/NO]

What matters are covered by the question?

You should disclose any reports prepared in accordance with Standing Order 395 that were presented to the House of Representatives at the same time as any treaty identified in the headline question (Question 2.2) above.

What is the nature of the further information sought?

If the answer is YES, please provide:

  • a suitable citation for the relevant National Interest Analysis (full title, authoring agency, date)
  • an active hyperlink to where the National Interest Analysis can be accessed for free.

Unfortunately, it is not always clear where to find the best online source of a published National Interest Analysis (NIA) report. The Parliamentary website might be the most comprehensive and durable source at present, but the NIA is often only published here as an annex to the relevant select committee report. The full hyperlink protocol address for the report is also likely to be long, which is not ideal.

We therefore encourage you to publish any NIA your department produces on your department's website, once it has been presented to the House. If it takes the form of an extended NIA then it might also be accessible on the main RIS page of the Treasury website (http://www.treasury.govt.nz/publications/informationreleases/ris).

Example:(for a YES answer, concerning an International Financial Agreements Amendment Bill)

The International Monetary Fund 2008 and 2010 Governance Reforms: National Interest Analysis, of xx 2012, prepared by the Treasury.

This report can be found in Appendix B of the report of the Foreign Affairs, Defence and Trade Committee, accessible at http://www.parliament.nz/NR/rdonlyres/46801933-C3B7-44E7-976F-DBD9EE5740A1/266273/DBSCH_SCR_5780_Internationaltreatyexaminationofthe.pdf).

If the answer is NO, please briefly indicate why no National Interest Analysis was prepared.

In most cases, this will be because there was no Parliamentary examination of the relevant treaty.

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