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Consistency with New Zealand's international obligations

It has been estimated that, of the New Zealand public Acts known to be affected by international obligations, around 70% of them make no reference to the relevant international treaty or obligation.[4] Therefore, there is a risk that people considering amending an Act may not be aware of the international obligations that are relevant to such a Bill.

Legislation is expected to be consistent with New Zealand's international obligations. Non-compliance with our international obligations may harm our international standing and invite sanctions. Consequently, all Cabinet papers seeking approval to introduce a Bill must advise whether the Bill complies with relevant international standards and obligations.[5] Such compliance is routinely claimed. Disclosing the steps that have been taken to determine whether the policy of the Bill is consistent with New Zealand's international obligations will provide an interested reader with information about the likely robustness of that claim.

Question 3.1

3.1.  What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand's international obligations?

What matters are covered by the question?

New Zealand's international obligations may be contained in documents such as international treaties or in the decisions of international bodies to which New Zealand has agreed to be bound.

There are a range of different types of international instrument but the important point is that, regardless of how they are described, they are all binding on New Zealand. For example, international instruments can take the form of an international agreement, an exchange of letters or notes constituting an agreement, a convention, a covenant, a protocol or an international treaty, and all are binding on New Zealand.

For assistance identifying international obligations that may be relevant to a Bill, and for further information about New Zealand's international obligations generally, the following resources may be of assistance:

  • Legislation Advisory Committee, Guidelines on Process and Content of Legislation,[6] Chapter 6 “International Obligations and Standards”, and Appendix 3, which contains a list of Acts that implement various treaties;
  • The Ministry of Foreign Affairs and Trade (MFAT) publishes a list of treaties to which New Zealand is a party;[7] and periodically issues a list of all treaties New Zealand is currently involved in negotiating or ratifying;[8]
  • MFAT is also expected to have their Treaties Register Database publicly accessible online at http://www.treaties.mfat.govt.nzby the end of July 2013
  • A New Zealand Guide to International Law and its Sources, New Zealand Law Commission, Report 34 (1996);[9]
  • Mark Gobbi, “In Search of International Standards and Obligations Relevant to New Zealand Acts” (2007) 4 New Zealand Yearbook of International Law.

For further information about New Zealand's international obligations and particular treaty obligations officials may consult the treaty officer at the Ministry of Foreign Affairs and Trade (email treatyofficer@mfat.govt.nz).

Note that this question is different and much wider in scope than Question 2.2, which seeks only to identify treaties that are being given deliberate effect through the Bill.

What is the nature of the further information sought?

Provide a brief description of the steps that have been taken to determine whether the policy to be given effect by the Bill is consistent with New Zealand's international obligations

There is no standard process for assessing whether proposed legislation is consistent with New Zealand's international obligations, but it can be broken down into two distinct elements:

  • the steps taken to identify whether there are international obligations relevant to the Bill; and
  • if relevant international obligations are identified, the steps taken to assess whether the Bill is consistent with those international obligations.

In relation to the former, departments should generally be aware of the international obligations that are relevant to the matters the department is responsible for and should have a list of such international obligations that can be consulted by officials. The steps taken to determine consistency may involve considering this list of international obligations maintained by the department, consulting officials with particular knowledge and expertise in international matters, or discussing the issues with the department's legal team.

As noted above, there are useful sources that can assist departments to identify relevant international obligations, such as Appendix 3 of the Legislation Advisory Committee, Guidelines on Process and Content of Legislation, which contains a list of Acts that implement various treaties.

If it is established that there are no international obligations that are relevant to the Bill then the response to this question should simply set out the steps that were taken to reach this conclusion.

In relation to the latter, MFAT will expect to be consulted about proposed legislation that may be relevant to New Zealand's international obligations. If you don't already know the relevant MFAT legal adviser, you can email lgl@mfat.govt.nz

Other steps that may be taken by an agency include: consultation with the agency's legal team; consideration of judicial decisions about the consistency of previous legislation with the international obligations; researching international law sources; considering decisions of international bodies or reviewing legal commentary on the requirements of the international treaty; the legislative approaches taken by other countries; or the judicial decisions of the courts of other countries.

There is no need to refer to the vetting of consistency with the New Zealand Bill of Rights Act 1990, which incorporates a number of important international human rights obligations, as this is already covered by Question 3.3.

Where international obligations have been identified as relevant to a Bill, the response could identify the obligations and their source, and even provide a link, if these obligations are important to the scheme of the Bill. Obviously, a Bill that is intended to give effect to a treaty will include a reference to Question 2.2.

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