7.123 In New Zealand, the power to conclude treaties rests with the Executive. Any proposal to sign a treaty or to take binding treaty action must be submitted to Cabinet for approval (see paragraphs 5.77 - 5.81).
7.124 Before the government takes binding treaty action on them, multilateral treaties and major bilateral treaties of particular significance are presented to the House of Representatives for examination. The requirements for parliamentary treaty examination are set out in the Standing Orders. The Minister of Foreign Affairs determines whether a bilateral treaty amounts to a major bilateral treaty of particular significance.
7.125 The parliamentary treaty examination process takes time, which departments must factor into their planning. The government may take binding treaty action before parliamentary treaty examination only where this is urgently necessary in the national interest.
National interest analysis
7.126 Presenting a treaty to the House requires the preparation of a national interest analysis, addressing such matters as the reasons for becoming a party to the treaty, the advantages and disadvantages to New Zealand, and the means of implementing the treaty.
7.127 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 preparing the national interest analysis according to the requirements of the Standing Orders. In cases where a treaty has regulatory impacts, an extended national interest analysis, which includes the elements of an impact statement for a regulatory proposal, must be prepared. The national interest analysis must be approved by Cabinet before it is presented to the House.
Select committee consideration
7.128 Once a treaty and accompanying national interest analysis have been presented to the House, they are referred to the Foreign Affairs, Defence and Trade Committee. This select committee may examine the treaty itself, or refer it to another more appropriate select committee.
7.129 The government refrains from taking any binding treaty action in respect of 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 binding treaty action.
7.130 The select committee may seek public submissions. In addition, the House itself may sometimes wish to give further consideration to the treaty: for example, by way of a debate in the House.
7.131 If the select committee report contains recommendations to the government, a government response to those recommendations must be presented within 60 working days of the report (or such other timeframe be specified in the Standing Orders). For further information, see paragraphs 7.119 - 7.122, and the section entitled “Reports” in the chapter on select committees in the Standing Orders.
7.132 Any legislation necessary to implement a treaty domestically 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 initiate the legislative process earlier, by seeking a place on the legislation programme for the bill and issuing drafting instructions to parliamentary counsel (on a conditional basis).
7.133 The Ministry of Foreign Affairs and Trade can provide advice on the parliamentary treaty examination process, including guidance on the required format and content of a national interest analysis. Further information is set out in the CabGuide.