INTERNATIONAL OBLIGATIONS
Introduction Fisheries Bill 1995 Amendment to the Guardianship Amendment Act 1991 Layout Designs Bill 1994 Legislative outcome Supplementary Order Paper No. 10 relating to Law Reform (Miscellaneous Provisions) Bill (No. 2) 1994 [Intercountry adoption agreements] Introduction Consistency between delegation of functions and international law Lack of operative effect as a matter of New Zealand law Summary Legislative outcome Conclusion
Introduction
In a very wide and increasing range of areas, New Zealand is committed by its treaty obligations or by customary international law to make particular provision in its domestic laws. It is worth noting that primary legislation which appears to raise treaty issues includes about one quarter of all public Acts. Any proposal to amend that legislation should prompt the question whether there is a treaty which must be taken into consideration. Even where there is no direct obligation, there might be an international standard, especially in the human rights area, which is relevant to the preparation of new legislation and to the replacement and amendment of the old. It may also be relevant to the interpretation of legislation. Appropriate and timely consultation, especially with the Ministry of Foreign Affairs and Trade, is therefore essential.
Despite the importance of ensuring that treaty issues are dealt with appropriately, the LAC considers that, during the current reporting period, there were a number of legislative proposals that fell short of standards that might be expected when New Zealand's international obligations are being incorporated into domestic law.
Fisheries Bill 1995
The Long Title to the Fisheries Bill 1995 stated that it was:
An Act -
(a) To reform and restate the law relating to fisheries resources; and
(b) To recognise New Zealand's international obligations relating to fishing.
However, neither the Long Title nor the Explanatory Note to the Bill mentioned the United Nations Convention on the Law of the Sea, which New Zealand has signed but has not yet ratified. Since ratification must have been in prospect when the Bill was drafted, the LAC believes that the opportunity should have been taken to ensure that the Bill's provisions were consistent with those in the Convention.
Sections 3(1)(a) and 3(1)(b) of the Bill required that:
... all persons exercising or performing functions, duties, or powers conferred or imposed by or under ... the Act, shall act in a manner consistent with -
(a) The provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992; and
(b) New Zealand's international obligations relating to fishing (to the extent that such obligations do not conflict with the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992). [italics LAC's emphasis]
The LAC submitted that the proviso to section 3(1)(b) was wrong in principle. When the Crown enters into international obligations it is bound by those obligations as a matter of international law, irrespective of difficulties that those obligations may pose domestically. Therefore, possible domestic difficulties should be considered at the time the acceptance of international obligations is being considered. The Committee, therefore, recommended that the bracketed words in section 3(1)(b) be omitted from the Bill.
In the select committee's Interim report on the Fisheries Bill (I. 11A, 1995) which proposed an amended Bill, clause 3 was replaced with a new clause 5:
5. Application of international obligations and Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 - This Act shall be interpreted, and all persons exercising or performing functions, duties, or powers conferred or imposed by or under it shall act, in a manner consistent with -
(a) New Zealand's international obligations relating to fishing; and
(b) The provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
This gives effect to the LAC's submission, on the understanding of course that the provisions of the 1992 Act would conform with New Zealand's international obligations.
Section 84(2)(d) of the Bill stated that the Minister may have regard to the terms of any relevant international agreement in setting limits on the allowable catch for foreign fishing vessels. To the LAC, this provision seemed unnecessary and undesirable as section 3(1)(b) already required the Minister to act consistently with international obligations. The Committee considered that the effect of section 84(2)(d) was to "water down" the requirement in section 3(1)(b). The Committee recommended that section 84(2)(d) should either be omitted or be replaced by a mandatory provision which would ensure consistency with the intent of section 3(1)(b).
In the select committee's interim report (see paragraph 79 above) it is proposed that the obligation in section 84(2)(d) be replaced by a provision that "the Minister shall have regard to ... the degree to which [countries other than New Zealand] ... have complied with any relevant international obligations" [proposed new section 77(2)(d)]. This proposed change satisfies the LAC submission.
Amendment to the Guardianship Amendment Act 1991
Clause 39 of the Law Reform (Miscellaneous Provisions) Bill (No. 3) 1994 proposed to substitute a new section 4 into the Guardian Amendment Act 1991. The existing section 4 defined the term "rights of custody" in the context of Part I of the Act, which deals with international child abduction. The Explanatory Note to the Bill stated that the new section 4 "is modelled more closely than the existing section on Articles 3 and 5 of the Convention on the Civil Aspects of International Child Abduction". That Convention is contained in the Schedule to the 1991 Act.
When the Guardianship Amendment Bill 1990, which became the 1991 Act, was before Parliament, the LAC advised that the best means of giving effect to the Child Abduction Convention was to set out its terms and give them the direct force of law. The LAC considered that to gloss the Convention, by enacting differently worded provisions in New Zealand law, could invite difficulty because the Courts might construe something from the fact that Parliament had enacted different words and had not directly enacted the words of the Convention. By contrast, the LAC noted that the Convention was given direct force in Canada, the United Kingdom and the United States.
That advice was not taken. Different words from those used in the Convention were included in the 1991 Act, in particular in the provisions about "rights of custody". And, as feared, the courts were persuaded that those differences, setting more stringent conditions for the parent seeking the application of the Convention, were significant:(14 F v T [child abduction] (1994) 12 1994-95 FRNZ 157, 167 (HC))
It [Section 4(1)] is expressed in different words from art 5 of the Convention and effect should be given to that difference.
The consequences of that difference in wording might be that parents are deprived of the rights accorded by the Convention, the child is not returned as is required, and New Zealand is in breach of the obligations placed on it by the Convention.
As clause 39 of the Law Reform (Miscellaneous Provisions) Bill (No. 3) 1994 recognised, the law had to be put right. However, to quote the Explanatory Note, the new section 4 was still only to be "modelled more closely" on the wording of the Convention - it did not directly invoke the wording of the Convention.
The LAC was concerned that there could still be room for judicial interpretation of the amended Act which is contrary to the intent of the Convention. Accordingly, the LAC supported the recommendations that it made when the Guardianship Amendment Bill 1990 was originally before Parliament; namely that the resulting Act should give direct effect to the Convention.
Layout Designs Bill 1994
The point has been made above that often the best means of giving effect to international conventions is to set out their terms and give them the effect of law. The example given above illustrates the dangers of glossing a convention by enacting different provisions in New Zealand law because the courts might construe something from the fact that Parliament has enacted different words and not relied on the words of the convention.
In the LAC's submission to the select committee hearing submissions on the Layout Designs Bill 1994, it therefore drew attention to differences in wording between the 1989 WIPO Treaty on Intellectual Property in Respect of Integrated Circuits (28 ILM 1477 (1989)), the 1993 GATT Agreement (33 ILM 81 (1994)), and the 1994 Bill.
The Committee stated, after consultation with the Ministry of Foreign Affairs and Trade, that:
... it does accept that in many cases national legislation designed to implement treaty provisions will not adhere closely to its wording. That may be the case for instance because the treaty was not written in terms that were intended to be directly applicable in national law or because the process of fitting the treaty provisions into the context of the national law and its wording call for a different approach.
However, the LAC believed that those considerations were not relevant to the Layout Designs Bill, which the Committee noted was drafted as a "stand alone" measure and on much the same lines as the Treaty and the Agreement. The Committee considered that:
This is not a case where in the relevant areas the national legislation has to be more precise. It is indeed because of the similarity of the approaches that the differences appear all the more striking.
The LAC therefore recommended that very careful consideration should be given to any deliberate departures in the precise wording of a provision which is otherwise very close to the wording of the Treaty. To illustrate the similarity of wording the LAC compared, side by side, some of the definitions in the Bill and in the WIPO Treaty, namely "integrated circuit", "layout design", and "original". Whilst the differences in the definitions of "integrated circuit" and "layout design" were not great, there seemed little to be gained by not using the Treaty wording, particularly if there was a risk that the differences might unnecessarily provide a basis for an argument.
The approach taken to the wording of the definition of "original" was somewhat oblique in that, after stating "that, for the purposes of this Act, but without limiting the ordinary meaning of the word `original' in relation to layout design", the remainder of the definition, in effect, indicated what an original layout design is not. This would, therefore, `limit' the ordinary meaning of the word "original". In the LAC's view, the WIPO Treaty definition was more straight-forward and was to be preferred.
The Committee also compared the definition of "protection period" provided in the Bill with that provided in the GATT Agreement, but omitting those provisions relating to countries requiring registration because the Bill did not provide for registration of layout designs:
| 1993 GATT Agreement (33 ILM 81 (1994)) | Layout Designs Bill 1994 |
| Term of Protection (Art. 38) 2. ... layout-designs shall be protected for a term of no less than ten years from the date of the first commercial exploitation wherever in the world it occurs. 3. Notwithstanding paragraphs 1 and 2 above, a Member may provide that protection shall lapse fifteen years after the creation of the layout-design. | Protection Period (clause 6) "Protection period" in relation to an eligible layout design, means the period beginning on the day on which the layout design was made and ending: (a) If the layout design is first commercially exploited within 10 calendar years after the calendar year in which the design was made, at the end of the tenth calendar year after the calendar year in which the layout design was first commercially exploited; and (b) In any other case, at the end of the period of 10 calendar years after the calendar year in which the layout design was made. |
The differences in application between the provisions of the GATT Agreement and the provisions of the Bill are illustrated by the examples given below:
GATT Agreement
If a layout design is first exploited commercially eleven years from when the design was created (say, in 1995), under the GATT Agreement its protection would not lapse before 2016 (1995 + 11 + 10). This is not a likely scenario, but it is possible. However, under paragraph 3 of the Agreement provisions, this protection period could be limited to 15 years from the date of creation of the layout design; i.e., to the year 2010.
Layout Designs Bill
If the layout design is first commercially exploited eleven years after its creation, the protection would expire 10 calendar years after the calendar year in which the layout design was created. In other words the protection would lapse before the design was first commercially exploited.
In the LAC's view the provisions of the GATT Agreement were to be preferred because the Bill did not provide the full allowable "treaty" protection.
Legislative outcome
Although the definitions in the Layout Designs Act 1994 did not, as the Committee had recommended, follow the definitions in the GATT Agreement exactly, in general they were closer to those definitions than those in the Bill. The Act also corrected the "protection period" anomaly.
Supplementary Order Paper No. 10 relating to the Law Reform (Miscellaneous Provisions) Bill (No. 2) 1994 [Intercountry adoption agreements]
Introduction
Clauses 10 and 11 of the Law Reform (Miscellaneous Provisions) Bill (No. 2) 1994 provided for amendments relating to the definition of "social worker" in the Adoption Act 1955. Supplementary Order Paper No. 10 proposed to amend the Bill by adding a new clause 10A, which inserted a new heading and sections 19A to 19E (dealing with agreements on intercountry adoption) into the 1955 Act.
The Committee considered that the SOP had two serious faults:
(a) The first, which is relevant to the present discussion on international obligations, was that the SOP did not mention or reflect the requirements of the Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption which had been adopted by 66 States in 1993 to deal with major problems that were arising in intercountry adoption; and
(b) The second was that the proposed amendment seemed to lack any operative legal effect as a matter of New Zealand law.
Consistency between delegation of functions and international law
The proposed amendment did not mention, or appear to reflect, the 1993 Hague Convention referred to above. This convention was developed because of concerns about the possible dangers of inter-country adoption. Although New Zealand was not a signatory to that convention at the time the SOP was introduced, the Department of Social Welfare Corporate Plan for the 1994/95 financial year indicated that incorporation of the Convention into New Zealand's adoption legislation and practice was part of the strategic direction of the Children and Young Person's Service for the next three to five years. (15) see p. 26 of the Corporate Plan.)
It seemed reasonable to the LAC that the policy underlying the proposed legislation should reflect the general thrust of the Convention.
The Convention requires that signatory States designate "central authorities" to discharge certain duties imposed by the Convention. These central authorities have certain functions that cannot be delegated. Delegation of any other functions can only be to accredited bodies that have particular characteristics, including the pursuit of non-profit objectives, direction and staffing by qualified persons, and supervision by a central authority. By contrast, the SOP contained no limits on the matters that could be delegated, nor any specifications about the characteristics of the bodies that may be accredited. The LAC, therefore, asked the select committee to consider how the SOP related to the Department of Social Welfare's declared intention to incorporate the 1993 Hague Convention into New Zealand's adoption legislation and practice.
Proposed new section 19B provided that the Director-General of Social Welfare may negotiate and conclude agreements relating to inter-country adoption with "appropriate authorities" in foreign countries. The conclusion of international agreements by the Executive is an exercise of prerogative powers, which exist quite independently of statute and need not be conferred by Act of Parliament. These prerogative powers are exercised in the ordinary way by the Head of Government, the Minister of Foreign Affairs, heads of diplomatic missions, and others authorised to do so by the Minister of Foreign Affairs, such as other Ministers, or officials. (16) Legislative Change: Guidelines on Process and Content (Revised Edition) LAC Report No 6, December 1991, pp. 78 to 79.) Parliament cannot remove from the Government overall responsibility for implementing its international obligations. The LAC believed that whilst proposed new section 19B implied that the Director-General, rather than any other person, must conclude intercountry adoption with the "appropriate authorities" of other countries, it may be more appropriate for these agreements to be concluded by a New Zealand ambassador or a visiting Minister. As well, the other country involved may not wish to conclude such an agreement except through its "appropriate authority".
Lack of operative effect as a matter of New Zealand law
Proposed new section 19B also provided that the Director-General of Social Welfare was to be responsible for the implementation of any intercountry agreement, and proposed new section 19C contemplated the delegation of any function or power under the agreement to other organisations. However, as a matter of law, proposed new section 19B could have operative effect only if there are related powers available in New Zealand law. An agreement concluded under proposed new sections 19B and 19C cannot, of itself, confer such functions and powers on the Director-General.
Under the Adoption Act 1955, social workers have a function to report to the Court which then can make adoption orders. While the Director-General may consent to an adoption in those cases where the Director-General is the guardian (section 7(4) of the Adoption Act 1955) the Director-General does not seem to have general powers in relation to adoption other than those exercised by social workers employed by the Department; and the functions of social workers under the Adoption Act do not seem to be sufficient to implement any intercountry adoption agreements. Nor does the Director-General have powers under immigration legislation.
The basic problem was, therefore, that the Director-General did not seem to have general powers in relation to adoption orders, or the movement of children in and out of New Zealand for the purposes of adoption. As the SOP did not propose to create any new functions or powers under the law of New Zealand, proposed new sections 19B and 19C appeared to be without any operative effect.
Summary
The LAC's basic conclusion was that the Supplementary Order Paper should not proceed in its current form, because the delegation provisions did not:
(a) Sufficiently reflect the intent of an international convention that New Zealand is, or might wish to become, a party to; and
(b) Appear to be effective in New Zealand law.
Legislative outcome
The proposed amendments were omitted at the Second Reading stage.
Conclusion
The appropriate means of implementing treaty provisions in domestic legislation is a recurring issue and one of increasing importance. The examples that have been summarised in this section suggest that it is a matter that requires much more systematic attention. It is, therefore, timely that the Law Commission will shortly be publishing a basic guide on the role of international law in the making and operation of New Zealand law.