How to pass treaties – could John Key please stop lying?

Written By: - Date published: 7:55 am, October 9th, 2013 - 44 comments
Categories: Economy, john key, Minister for International Embarrassment, slippery - Tags: , ,

One of the more enduring myths presented by the proponents of treaties like the TPPA is that they have to be approved by the NZ parliament. This isn’t the case. As usual with most right wing myths, they appear to be taking their civics lessons from Hollywood rather than reality.

For instance in a revelation of incompetence or a deliberate lie John Key said this about the TPPA

However, he said the agreement would still have to be ratified by Parliament, with the Government needing to build a majority.

No John – you complete dickhead. Perhaps you should spend some time reading about your own job. Parliament doesn’t have to “ratify” anything. In fact there is no such procedure in the NZ legal structure – I think that he is thinking of Hollywood perhaps?

The Ministry of Foreign Affairs and Trade (MFAT) describes the authority thus:-

In New Zealand the power to take binding treaty action (that is, ratification, accession, acceptance, approval, withdrawal or denunciation or, in the case of bilateral treaties, signature) rests with the Executive. Within this context, Cabinet has decided that certain international treaties (essentially multilateral treaties and major bilateral treaties of particular significance) will be presented to the House of Representatives for select committee consideration, before the Executive takes binding treaty action.

My italics..

In essence, this means that the “executive” aka cabinet graciously allows our governing body in parliament to look at a treaty in select committee. The select committee may or may not choose to allow public submissions usually depending on the inclination of the governing party MPs in that select committee. The select committee can then report back to the full house, which may not vote on the acceptance of treaty.

Except in very rare and urgent circumstances, the government refrains from taking any binding treaty action in relation to a treaty that has been presented to the House until the relevant committee has reported, or 15 sitting days have elapsed from the date of the 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. The select committee may seek public submissions. In addition, the House itself may sometimes wish to have a further opportunity for discussion of the proposed treaty action, for example by way of a debate in the House.

Implementing legislation: Legislation necessary to implement a treaty in New Zealand’s domestic law (if any) should not be introduced into the House until the treaty has been presented to the House and the time for reporting back has expired. The Government will not take binding treaty action until the treaty is implemented in New Zealand’s domestic law.

Now this is an interesting procedure. It is well suited for matters of defense which may be quite time critical. It means (for instance) that if the executive wanted to offer defense and support guarantees by way of a treaty to a country under threat, it can do so promptly and expeditiously in response to an emerging situation. However with a much less critical trade treaty, it means that the executive can if it chooses to do so can bypass all of the parliamentary checks before committing our country. Why?

Most of the effect of trade treaties is on matters like tariffs that are generally able to be modified by such non-legislative means such as the Executive Council telling the Governer General to sign and order in council. Typically much of the legislation passed by the NZ Parliament cedes authority to the governor general and their executive council as a matter for regulation.

Some important factors in treaties do not require even that. One major part of the unreleased TPPA provisions appears to relate to setting up international tribunals of “jurists” to settle disputes between participants, including between corporations and governments. At this point it appears that these tribunals will be setup using an unknown criteria for panel selection, have no particular deadlines, do not have to have public proceedings or published documents of their proceedings, are able to fine whatever penalties that they wish, have no transparent appeal process, and gain their power by their ability to bind other participants to restrict trade…

Importantly that also (as far as I can see) require no domestic legislation to be introduced, amended or changed. The reason why the word “appears” is so prevalent in the preceding paragraph is because no-one outside of a select group of diplomats and the their favoured corporations appears to have been briefed on much of the prospective TPPA provisions.

According to some of the leaked documents, much of this particular treaties provisions will not be released outside of the executive for years following signature because they will be required to go through countries with more legislator approval requirements, like the US, which will require years to approve the treaty.

In this case it is likely that some minor legislation will be required to be changed. For instance abolishing Pharmac’s ability to cut into overseas drug companies profits. However most of the TPPA does not and will not require any approval from parliament despite John Key’s assertions to the contary.

The debate between Wayne Mapp and Jane Kelsey this evening will hopefully be somewhat more realistic than assuming that John Key has an ability to do his own job.
Putting the TPPA to the test

44 comments on “How to pass treaties – could John Key please stop lying? ”

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  1. vto 1
    9 October 2013 at 8:18 am

    The Mfat website has it wrong.

    The executive may not alter the constitutional arrangements within NZ, such as the vote. This treaty dramatically diminishes our vote and so the executive may not enter into it.

    That is my view and I’m sticking to it. Any yankee that comes in here and tries telling us we cannot make our own laws can go fucking jump.

    [lprent: I suspect that your view is more out of hope than legality. But at least you are vaguely on-topic. ]

    • northshoredoc 1.1
      9 October 2013 at 8:30 am

      “This treaty dramatically diminishes our vote and so the executive may not enter into it.”

      No the point is we don’t know if it does or doesn’t do so.

      • vto 1.1.1
        9 October 2013 at 8:40 am

        This treaty will reduce what laws we can pass in our own land therefore it reduces the power and size of our vote.

        • northshoredoc 1.1.1.1
          9 October 2013 at 8:43 am

          No we don’t know that, it may well do so, which is why it like any other bill before parliament should be subjected to intense public scrutiny before being passed into law.

          • vto 1.1.1.1.1
            9 October 2013 at 8:46 am

            Oh, you mean we don’t know if it will reduce the power of our Parliament and our vote because we haven’t seen text yet? Sounds like pin dancing to me – it is well known that this will be one of the effects despite the public not seeing the actual wording. Not sure what your point is really.

          • David H 1.1.1.1.2
            11 October 2013 at 8:47 am

            @northshoredoc

            “should be ” But won’t. so we will be ruled by lies dammed lies and JokeyHen.

    • vto 1.2
      9 October 2013 at 9:10 am

      Well yes mr prent, it is likely the legality of such may be something other than my view. However the important point is the effect it does have on our power to make laws for us. This intrusion is gigantic and imo excessive. Business should understand that it takes a risk in investing into another country – it needs to weigh up that risk of laws being changed which may affect its business and adjust accordingly.

      The importance of our own power is the size of 100 elephants. The importance of business risk is the size of maybe 2 elephants.

      And that is all that this part is about – the risk to business. Nothing more and nothing less. Business has been raised above its long term average importance in the scheme of human beans, and it is not right.

      That is my view and I’m sticking to it.

      (oh, and I would have thought these points were entirely on-topic?)

      • Sable 1.2.1
        9 October 2013 at 9:15 am

        I think you will find the “mr is a miss”.

        • Tracey 1.2.1.1
          9 October 2013 at 9:17 am

          nope.

        • lprent 1.2.1.2
          9 October 2013 at 9:38 am

          Definitely not. If you want to find a Miss Lyn, then she is my partner. But I’m definitely Mr Lynn (with the correct number of ens at the end).

          Or as the popular joke amongst family and friends goes “New Lyn(n) and Grey Lynn”.

          Oh and we live in Grey Lynn…

          But this is all off topic…

      • lprent 1.2.2
        9 October 2013 at 9:34 am

        oh, and I would have thought these points were entirely on-topic?

        They were. Otherwise they’d have wound up in OpenMike like what used to be the number 2 comment which had a diversion into Pharmac.

    • David H 1.3
      11 October 2013 at 8:45 am

      Surely tho’ if this is passed by Parliament on a bunch of lies and half-truths , surely the next govt can repeal this as well.

  2. Tracey 2
    9 October 2013 at 8:59 am

    Not at this link that Wayne does not say parliament must ratify, he says it effectively ratifies because of law changes required after the treaty is signed.

    http://thestandard.org.nz/sign-the-tppa-petition/#comment-704042

    I for one have enjoyed the discussion here and just wish it transfer even by 10% to the public arena.

    • lprent 2.1
      9 October 2013 at 9:49 am

      Most “trade” treaties including this one require very little legislation to pass. The FTA with China only required minor legislative changes. Most of it was done by regulation. It still means that China is now rapidly heading to being our largest trading partner in both exports and imports.

      Moreover most treaties require many of the actual legislative changes to be made if possible. They aren’t mandatory.

      So basically that “effectively ratify” is also effectively crap.

      BTW: The TPPA may require more legislative changes than the FTA with China. That is because it isn’t a trade agreement. It is because it appears to mostly be an agreement about the legalities of intellectual property (with a bit of free trade in goods and services thrown in as a sweetener for Fonterra).

  3. Sable 3
    9 October 2013 at 9:14 am

    Keys is not stupid, just devious. People are surprisingly ignorant and the little creep knows this. He’s trying to create the impression that he is not the driving force behind the TPPA and its a “consensus” decision. So hey, don’t worry people there are “checks and balances,its not as bad as it sounds.”

    Like any good magician Keys does this kind of misdirection convincingly and with a complicit mainstream media no one is going to expose him. Just as well there are sites like this one to tell it like it really is.

    • Puckish Rogue 3.1
      9 October 2013 at 9:54 am

      I agreed with everything you said right up to this:

      “Just as well there are sites like this one to tell it like it really is.”

  4. Puckish Rogue 4
    9 October 2013 at 9:35 am

    You want a politician to stop lying? Godd luck with that…

    • lprent 4.1
      9 October 2013 at 10:02 am

      I’m used to them lying by omission . I just find that them stupidly lying is really really scary as a voter and citizen.

      • Puckish Rogue 4.1.1
        9 October 2013 at 10:59 am

        True that, its a sad but true reality of the political realities of NZ (and of course everywhere else) that we reward and continue to vote for politicians that lie (on both sides of the spectrum)

        • Colonial Viper 4.1.1.1
          9 October 2013 at 7:23 pm

          Stop making excuses for the behaviour then, creep, and hold National to account.

      • travellerev 4.1.2
        9 October 2013 at 11:07 am

        He doesn’t lie stupidly. He just doesn’t give a fuck about being found out. That should tell you something about how confident he feels with regards to the agenda he is implementing for his corporate mates.

        • Draco T Bastard 4.1.2.1
          9 October 2013 at 12:37 pm

          +1

        • emergency mike 4.1.2.3
          9 October 2013 at 4:45 pm

          +1

          “The agreement would still have to be ratified by Parliament, with the Government needing to build a majority,” just sounds like a nice reassuring thing to say, so he said it. If it turns out to be untrue and he gets called out on it, no biggie, he can just spin his way out of it later like always.

    • Colonial Viper 4.2
      9 October 2013 at 7:13 pm

      Don’t be disingenuous. Its the selling out of our sovereignty and independence as a nation which is the issue.

  5. travellerev 5
    9 October 2013 at 9:45 am

    You might watch this video about it. you might ump off the fence and yell: NOOOOOOO!

    But then again you might be fine with giving big international Corps more financial deregulation and more military power and more rights to sue your own government is it doesn’t allow them free access to our assets.

    That has after all done wonders of good for this country in the past!

  6. Wayne 6
    9 October 2013 at 10:29 am

    Lynn,

    I will deal with this issue tonite.

    In a sense both you and the PM are correct. It is true that the ratification of treaties is an executive act, not a parliamentary matter. However all treaties are tabled in Parliament and are examined by the Foreign Affairs Select Committee. However the Committee can’t actually change anything.

    Major trade treaties invariably require legislative change, in this case probably on IP, and dispute resolution. But not for tariffs, which can be done by regulation under the relevant acts. Not that NZ has many tariffs anyway. The tariff reductions are going to be done by other states (and we will be the beneficiaries).

    In this instance the TPP, because of its high profile, will have a substantial parliamentary hearing. But in truth Parliament cannot really undo the commitments, or if they did, NZ would have to then file reservations. I have never seen that happen with a FTA entered into by NZ.

    It is a bit like Treaty of Waitangi settlements. They all go through parliament, but parliament does not change the agreement between Crown and Iwi.

    • Tracey 6.1
      9 October 2013 at 10:41 am

      Yes, but Mr Key is clearly using the ratification to assuage some fears of it being foistered on us, when he knows, or ought to know, that the ratification will do no such thing.

      Do Treaty settlements get examined by interested parties prior to signing?

      Will you also address the presence and participation of 400-600 corporates who in turn must be reporting to Boards?

    • lprent 6.2
      9 October 2013 at 11:04 am

      My issue is the “ratification” nonsense which is being used like a babies comforter on the public. All sucker and no nipple. It is also an outright lie.

      By what looks like a deliberate repetition it tries to create the impression that parliament will have have any significiant say on the approving the TPPA. The reality is that it is entirely cut out of the process apart from waffling and maybe a few token and unrequired minor legislative changes. This is an executive decision and has essentially nothing to do with parliament.

      Most required legislation will go through long AFTER the treaty is already signed and we are ALREADY committed to its provisions. My guess is that most of the required legislation isn’t going to be required until years or even up to a decade after signature is given.

      I’d prefer that *all* of the legislation gets at least drafted, made public, and goes to select committee before signature. At least then parliament and the public will be involved. As it is, we’re absolutely reliant on the silly buggers in and running MFAT not doing something stupid in the pursuit of their future international careers and running this under too much secrecy.

      Neither CER nor the FTA with China got done under this lack of transparency. There is no need for it in trade treaties. Nor for that matter do Treaty of Waitangi agreements.

    • vto 6.3
      9 October 2013 at 11:15 am

      Wayne, what do you say to the fact that by limiting the laws which our Parliament can make (or alternatively, still make them but compensate business for the change effect (which is a crock and a half)) our vote is diminished. This is something (changing the power of our vote) which the people of NZ must decide, NOT, effectively, the National Party.

    • Tracey 6.4
      9 October 2013 at 12:53 pm

      dispute resolution of what. Can you be specific?

    • Colonial Viper 6.5
      9 October 2013 at 7:21 pm

      So Wayne, why are we handcuffing our precious nation to a “diminishing superpower” (in the words of the front page of the Jakarta Globe), a nation which cannot govern itself and which risks full scale financial default every 18 months?

      • Martin 6.5.1
        9 October 2013 at 8:53 pm

        Because, Colonial Viper, enough stupid people in this country were sucked in by the sales pitch of a merchant banker for said merchant banker to become sub prime minister.
        A merchant banker who has always grovelled and sucked up to said diminishing super power.

        I’m sorry I’m not Wayne, but I hope my answer is more interesting.

  7. ghostwhowalksnz 7
    9 October 2013 at 11:30 am

    Ahh the FTA agreement with China.

    Its good to know “Antilope horns and powder are now duty free when exported to China- was 3%

    http://www.chinafta.govt.nz/2-For-businesses/2-Tools-and-resources/3-Tariff-finder/0-step2.php

    Try looking at Cheese. No duty free trade yet

  8. Tracey 8
    9 October 2013 at 12:03 pm

    Puckish

    you might continue to vote for liars but some of us vote for those who havent yet been proven liars.

  9. Rich 9
    9 October 2013 at 12:20 pm

    A treaty can’t override domestic law unless that law is changed to permit it, so any changes needed to implement a treaty need to be voted on by parliament.

    Some treaties don’t involve this – a military alliance would involve prerogative powers and wouldn’t involve a law change.

  10. captain hook 10
    9 October 2013 at 12:53 pm

    well the president of the United States wasn’t there so its just a hill of beans anyway.

  11. George D 11
    9 October 2013 at 3:37 pm

    One former Minister of Foreign Affairs is willing to engage with his critics, answer their arguments, and acknowledge areas of difference. The other simply waves it all away and declares every critic is simply a blind minion of Jane Kelsey.

    It’s a strange world where Wayne Mapp is more willing to listen to Labour Party members than Phil Goff.

  12. newsense 12
    9 October 2013 at 4:25 pm

    Perhaps a question in the house or an amendment assuring that the text of this treaty will go to parliament for ratification, the same way it will go to Congress in the States?

    If Key is happy for it to be ratified, surely he will make sure this happens?