01 October 2013

The TPPA: Is it democracy?

A lobby group has launched a campaign that calls on the government to release the draft of the Trans-Pacific Partnership Agreement, an agreement on many aspects of trade that is under negotiation between 12 countries, including New Zealand and the USA. This campaign argues that drafting such a significant multi-lateral treaty in secret is undemocratic and that 'it's our right to know' what's in the draft before it gets signed by the government.
So, before we let the blood rush to our heads over this, let's look at the process involved here.
International treaties are still considered to be acts of the executive performed out there in the supposedly anarchic space of the ungoverned relations between sovereigns. With the increasing complexity of real-world international law and with credible organizations such as the UN and WTO, this old-world view of international law is somewhat out-dated.
All the same, the NZ Cabinet Manual (a document that has no statutory legal status) says that 'the power to take treaty action rests with the Executive.' What does this mean in practice?
First, it means that Cabinet must agree to initiate negotiations. That step has obviously been undertaken as regards the TPPA. But, any significant treaty such as the TPPA must 'after Cabinet's approval, be presented to the House for examination, before the Executive takes binding treaty action.'
So, before the Prime Minister and/or Minister of Foreign Affairs sign off our binding agreement to such a treaty, the treaty has to be 'presented' to Parliament for 'examination.' And at this point Parliament's standing orders kick in as the governing rules. The treaty is to be presented along with a 'national interest analysis' of the treaty, which of course will be written by the government's own officials and will naturally spell out why, on balance, we need to sign up to the treaty. Parliament's 'examination' of the treaty requires select committee 'consideration,' which may include public submissions. The select committee must report to the House on the treaty. In drafting its report, the select committee 'considers whether the treaty ought to be drawn to the attention of the House.'
The Cabinet Manual advises that 'the House itself may sometimes wish to give further consideration to the proposed treaty action; for example, by a debate in the House.'
This whole process can be affected by decisions such as how much time is to be allowed for select committee consideration, whether public submissions are to be invited, and whether there is to be a debate in the House. All of this will get political, of course, and one can expect the Greens especially to get stuck in. Labour wants to see early public disclosure and consultation on the TPPA and to ensure it works in NZ's best interests, but isn't opposed to the idea altogether.
The public may get little time to digest what's in the TPPA, and to debate the matter through the media, before it's signed. While in the negotiation stages, the treaty is kept strictly under wraps.
The inclusion of parliamentary consideration of such treaties into the standing orders is only a concession to 'democracy,' and the ultimate decision to sign the treaty is Cabinet's. The government does not present a Bill to the House in order to get the authority to sign the treaty. A vote on the matter in parliament is not decisive. If parliament had that power, the government would use its majority to have it passed anyway. Either way, the ultimate judge is 'we the people' who (if we care enough) can factor the government's ratification of international treaties into our approval or disapproval of their performance. But, by election time, the TPPA may have been signed and sealed. And, depending on what it contains, it may be difficult to withdraw from it, even if New Zealanders don't like it.


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