China FTA and the democratic deficit
The Government has announced that it plans to sign a trade treaty with China in April. So I suggested that maybe before they signed the treaty, they should let the public see what our government was signing up to.
Phil Goff didn’t like my suggestion and responded thus:
Greens Statement On China Trade Treaty Incorrect And Misleading
Press Release by New Zealand Government at 3:59 pm, 03 Mar 2008
“The China trade agreement cannot come into effect without parliamentary scrutiny and support. Dr Norman should acquaint himself better with New Zealand’s parliamentary system,” Mr Goff said.
“The full agreement and a National Impact Analysis will be tabled in Parliament at the time the Agreement is signed, and will be posted on the Web.
“This process will allow parliamentary and public scrutiny of the agreement, with the Foreign Affairs, Trade and Defense Committee likely to call for public submissions on it.
“Legislation then has to be introduced for the agreement to be given effect in domestic law, and must be passed by Parliament for that to happen.
He didn’t address my key point about the need for the public to see the text of a treaty before the government signs it on our behalf, but rather went on about whether parliament would have a role in the process or not.
Parliament doesn’t get to vote on acceding to international treaties. It is a function of the Executive to sign up to international treaties even though they may have significant domestic consequences. The foreign affairs select committee has a look at the treaty after it’s signed, and may even call for submissions, but ultimately it’s up to the Executive (effectively Cabinet).
The only partial exception is that Parliament gets some decision making say if there is a need to alter domestic law to bring part or all of the treaty into effect. Having not seen this treaty, because it’s not public, I have no idea whether or not domestic law will need to be changed. Nor can I say whether those changes will be to implement all of the key aspects of the treaty or just some of them or minor aspects.
Wouldn’t it be far more democratic if the entire treaty had to be voted on by parliament before it could come into effect? I accept that we would lose that vote as the NatLabs are of one mind on trade treaties, but at least the democratically elected representatives would get to make the decision, rather than the 20 people in Cabinet. This was the idea of Keith’s International Treaties Bill which didn’t get through parliament.
March 3rd, 2008 at 10:02 pm
so..it looks like the 9% poll was the ‘rogue’ one..eh..?
and could you please answer the question i asked re that disappeared/’sanitised’ story..?
phil(whoar.co.nz)
March 4th, 2008 at 9:08 am
just in case you forgot..it was that one where you gave us the ‘good news’ about bio-fuels..
and i came out snapping and snarling..
and generally rubbishing what you had wrote..
the story/thread seems to have ‘vanished’ from the archives..?
do you know anything abut that..?
phil(whoar.co.nz)
March 4th, 2008 at 11:39 am
Watermelons don’t last forever phil whoar?
March 4th, 2008 at 1:40 pm
Pretty poor response. Treaties have long been a function of the executive. The decision on whether to sign one or not and take on binding obligations in an international law sense is one for the government. The decision on what happens to New Zealand’s law is a function of Parliament. Signing a treaty does not change the law. Passing legislation in Parliament does.
Russel says “It is a function of the Executive to sign up to international treaties even though they may have significant domestic consequences”. But simply signing a treaty has barely any domestic consequences - legislation is needed for that to happen - ie Parliament needs to act.
It is the next few statements that are the most wrong. Russel says:
“I have no idea whether or not domestic law will need to be changed.”
–> Given the NZ state will be agreeing with China to do various things, there is no conceivable scenario in which some law changes will not be required.
“Nor can I say whether those changes will be to implement all of the key aspects of the treaty or just some of them or minor aspects.”
–> There is no way for any of the changes to come into force without Parliament having a say by passing legislation. It doesn’t matter if they are “major”, or “minor”.
“Wouldn’t it be far more democratic if the entire treaty had to be voted on by parliament before it could come into effect?”
–> That IS what will happen!
Does nobody in the Green office have a law degree?
March 4th, 2008 at 2:03 pm
What do any of those comments have to do with a China Free Trade Agreement, again?
March 4th, 2008 at 2:22 pm
if you have a date-range philu i can find the blog in question for you
March 4th, 2008 at 2:32 pm
Ari asked: What do any of those comments have to do with a China Free Trade Agreement, again?
It’s because the China Free Trade Agreement is good for everyone. We know this because Auntie Helen and Uncle John told us so. So a China FTA will bring the Green Party up in the polls, and will help phil locate the missing biofuels post, as well as reduce the cost of biofuels, and will help phil to show some respect to Russel. It will also stop Phil snapping and snarling, and will make watermelons cheaper for dad4justice to buy.
Didn’t you realise, Ari, that in the neo-liberal’s little world, all our problems are solved by an FTA? Even phil’s and d4j’s!!!
March 4th, 2008 at 3:49 pm
Polaris said:Does nobody in the Green office have a law degree?
Now, that’s a little insulting, Polaris. Not sure how many staff do, but I know there are some, and at one Green MP both has a law degree and has practised law.
The issue Russel is raising is not what the law is, but what it should be. Just because treaties “have long been a function of the executive” doesn’t mean they should be.
Re your responses to Russel:
Many law changes required by treaties can be achieved by subordinate legislation such as Orders in Council and Notices, rather than by amending statutes. These are not scrutinised by Parliament or by its Select Committees, or if this does happen, it is not until long after the event. So the entire treaty is not voted on by Parliament before it comes into effect - only those bits (and there may be very few) that require legislative change are voted on.
Polaris, I think it is you, rather than Russel, who misuderstands how the law operates regarding international treaties. Some insight can be gained from the Select Committee report in which the Labour-National majority recommended Keith Locke’s International Treaties Bill not proceed.
I think Keith, and now Russel, make some very strong points on this issue.
March 4th, 2008 at 4:20 pm
i think polaris’s point was that, nevertheless, they still need (and have always needed) legislative support in order to be activated
March 4th, 2008 at 5:33 pm
Yep, Andrew. But my point is that a lot of that legislative support, and in the case of some treaties, all of it, can be by way of subordinate legislation (Regulations, Orders in Council, Notices) that is not scrutinised by Parliament until way after the event of the treaty coming into force, if at all.
I’d also be interested, if the treaty is written in both English and Chinese, to see how the versions translate to each other. I recall one treaty signed just over 168 years ago that resulted in a lot of strife, and has people still arguing today about what interpretation should take precedence.
But I don’t get to see it until it is a done deal, and nor does anyone else outside MFAT and Cabinet. I don’t think that is good for democracy.
I’d also like to be able to take part in some public debate about the proposed NZ - China FTA that involves more detail that just the generalised “free trade v fair trade” argument. But that is not possible without knowing what is being proposed. Are we in New Zealand really any more democratic than one-party state China if these deals are done without the public having any opportunity for input?
March 4th, 2008 at 5:50 pm
why single out treaties? orders in council are presumably always as inscrutable to the public regardless of whether they are made in support of a treaty or not.
March 4th, 2008 at 6:10 pm
Constitutional principle that support democratic participation requires that Orders in Council, Regulations, Notices etc should relate only to the mechanisms for implementing a policy intent legitimised by statutory legislation passed by Parliament.
IMO, successive Governments have gone much too far in abrogating this constitutional principle. The Immigration Act 1987 is possibly the most glaring example of constitutional travesty. It permits major policy changes to be made, and they are made, without any reference to Parliament. The Social Security Act isn’t much better - Governments can make regulations to do almost anything under that Act.
So I’m not singling out treaties here, Andrew. I’m advocating what I consider to be a fundamental constitutional pillar of democratic decision-making that I believe is not respected by either the Labour or National Parties.
But it is one that I have seen the Green Party stand up for, which is one reason (another is that the Labour and National Parties pay lip-service to sustainability, but always ensure it is the poor relation of short-term economic growth) I am a member of the Green Party.
March 4th, 2008 at 9:00 pm
What on earth is the state signing trade agreements for?
What business is it of the state who I trade with?
The state is one big leeching, interfering parasite that should just leave us alone to deal with whoever we want on whatever terms we choose. You can be sure that this “free trade” agreement will give more power to the state rather than less; and the losers will be us, the hostages.
March 5th, 2008 at 12:59 am
they do. a treaty doesn’t change that.
then why are we having this discussion in a thread about treaties?
March 5th, 2008 at 12:13 pm
“Are we in New Zealand really any more democratic than one-party state China if these deals are done without the public having any opportunity for input?”
–> Do you really mean that?
March 5th, 2008 at 12:22 pm
polaris said: Do you really mean that?
Point taken polaris - I meant in respect of international treaties, not generally, but see how it came across to you and perhaps others.
March 5th, 2008 at 12:35 pm
With respect, andrew. They do not.
This media release by Sue Kedgley today draws attention to how major public policy decisions (in this case re overseas investment policy) can be made by Order in Council with no reference to Parliament. The same goes for implementing the provisions of treaties.
March 5th, 2008 at 9:43 pm
that media release still refers to executive orders which are made subject to the authorization of a specific act (the overseas investment act).
nothing about treaties allows executive orders to be made which aren’t authorized in legislation.
the nats can just as easily sell off the family silver with or without a foreign treaty!