Cabinet Manual

General

 

7.112 In New Zealand, the power to take treaty action rests with the Executive. Any proposal to take action in relation to an international treaty that will indicate New Zealand's intention to be bound or that will bind New Zealand must be submitted to Cabinet for approval. An intention to be bound is usually indicated by signature, to be followed by the subsequent binding step of ratification. Actions that bind New Zealand (that is, that formally change New Zealand's international obligations) are steps such as definitive signature (where there is no subsequent step of ratification), ratification, accession, and approval. The requirement to seek Cabinet approval also applies to proposals to sign or become bound by an amendment to a treaty, to withdraw from a treaty, or to change a reservation to a treaty.

7.113 Within this context, certain treaty actions (essentially those related to multilateral treaties and major bilateral treaties of particular significance) must also, after Cabinet's approval, be presented to the House for examination, before the Executive takes binding treaty action. The Minister of Foreign Affairs determines whether a bilateral treaty is a major bilateral treaty of particular significance.

7.114 The process of examination of international treaties by the House takes time -departments working on international treaty actions must factor that into their planning. Commitments cannot be entered into in advance of examination by the House. Only in very rare situations may the government take urgent treaty action in the national interest before the treaty is presented to the House. Where this occurs, the treaty must be presented as soon as possible after the binding action has been taken, together with a national interest analysis (see paragraphs 7.116 - 7.117) and an explanation from the government as to why it was considered necessary to take urgent action.

7.115 The Ministry of Foreign Affairs and Trade is able to provide advice on all matters relating to international treaties and instruments of less than treaty status, such as non-binding arrangements with other governments. In particular, departments should consult the legal division of the Ministry at an early stage if they are considering entering into any negotiations that may result in action being taken on any international treaty or arrangement. The Ministry provides general guidance on international law issues and the process of presenting treaties to the House. It provides specific guidance on the required format and content of a national interest analysis. More information on the presentation of treaties to the House is contained in the CabGuide.

National interest analysis

7.116 Presenting a treaty to the House requires the preparation of a national interest analysis. The national interest analysis addresses:

  1. the reasons for New Zealand taking the binding treaty action;
  2. the implications for New Zealand of taking the binding treaty action; and
  3. the means of implementing the treaty action domestically.

7.117 The department with the main policy interest in the treaty, in consultation with the legal division of the Ministry of Foreign Affairs and Trade, is responsible for developing the national interest analysis according to the requirements of the Standing Orders. Drafting guidance is available from the Ministry of Foreign Affairs. The national interest analysis must be approved by Cabinet before it is presented to the House.

Select committee consideration

7.118 Once a treaty has been presented to the House, the treaty is referred to the Foreign Affairs, Defence and Trade Committee. This select committee may examine the treaty, or may refer the treaty to another more appropriate select committee.

7.119 The government refrains from taking any binding treaty action on a treaty that has been presented to the House until the relevant select committee has reported, or 15 sitting days have elapsed from the date of presentation, whichever is sooner. The select committee may indicate to the government that it needs more time to consider the treaty, in which case the government may consider deferring taking binding treaty action.

7.120 The select committee may seek public submissions. In addition, the House itself may sometimes wish to give further consideration to the proposed treaty action; for example, by a debate in the House.

7.121 If the select committee report contains recommendations to the government, a government response to those recommendations must be presented within 90 days of the report. (See paragraphs 7.108 - 7.111, and the section entitled "Reports" in the chapter on select committees in the Standing Orders.)

Related legislation

7.122 Legislation necessary to bring domestic law into compliance with a treaty should not be introduced into the House until after the treaty has been presented and the time for the select committee to report has expired. Departments may, however, initiate the legislative process before that time by seeking a place on the legislation programme for the bill and issuing drafting instructions to parliamentary counsel (on a conditional basis).