Information that should be provided to Cabinet or Cabinet committees
Where a there is a proposal to become party to a treaty, or to take formal treaty action, the following information needs to be provided to Cabinet or Cabinet committees:
- the exact nature of the instrument (e.g. whether it is binding or of less than treaty status, and whether it is bilateral or multilateral)
- the full text of the treaty for papers seeking approval to sign or enter into a treaty
- the background to, or rational for, entering into the treaty (e.g. the costs and benefits, an explanation in plain English of the effect of the treaty, and its implications for New Zealand)
- the stage of the process that is being considered
- whether the instrument is required to be presented to the House for parliamentary treaty examination
- if the treaty does need to be presented to the House, whether the NIA is attached for approval, or whether it will be submitted to Cabinet for approval at a later stage
- whether domestic legislation will be required to incorporate the treaty into New Zealand law, and the proposed process for managing that
any timing issues
- what consultation has taken place with departments and stakeholders
- when it is proposed to bring the treaty into force, and whether approval is required for that now (possibly subject to the satisfactory completion of domestic procedures)
- whether the treaty action will apply to Tokelau.
Consultation with the Minister of Foreign Affairs and the Ministry of Foreign Affairs and Trade
The Minister of Foreign Affairs must either be:
- a signatory to a paper seeking approval for treaty action or
- consulted on a paper seeking approval for treaty action.
Consultation with the Ministry of Foreign Affairs and Trade (MFAT), or confirmation by the Minister of Foreign Affairs that a treaty is, or is not, a major bilateral treaty of particular significance, does not automatically satisfy this requirement. Consultation with the Minister of Foreign Affairs must be checked in the relevant consultation box when uploading the paper through CabNet.
For a bilateral treaty, the paper should indicate whether the Minister of Foreign Affairs considers that the treaty should be presented to the House for parliamentary treaty examination (depending on whether it is a major bilateral treaty of particular significance).
MFAT must also be consulted on papers seeking approval for treaty action, as well as on any proposal to enter into an arrangement.
National Interest Analysis
The requirements of a National Interest Analysis (NIA) are set out in Standing Orders. The NIA:
- addresses the reasons for New Zealand becoming party to the treaty
- the implications for New Zealand of becoming party
- the means of implementing the treaty.
An extended NIA may replace an impact statement for a paper proposing that New Zealand take treaty action. The extended NIA must comply with all of the impact analysis requirements. NIA drafting instructions are available from MFAT (Treaty Officer). The Treaty Officer must be consulted on the content of a NIA before it is submitted to Cabinet for approval.
Territorial application: Tokelau
Tokelau is a dependent territory of New Zealand. As a result, any binding multilateral treaty action by New Zealand will also apply to Tokelau, unless specified otherwise. MFAT (Treaty Officer) must be consulted on matters concerning Tokelau.
All Cabinet papers proposing binding treaty action in relation to multilateral treaties should indicate whether Tokelau has been consulted, and whether it is intended that the treaty action apply to Tokelau. Departments should allow sufficient time for Tokelau to be consulted when negotiating multilateral treaties. If it is not possible to conclude consultation before binding treaty action is taken, Tokelau should not be included, but its right to be included in the future should be preserved. Papers should include a recommendation noting this.
With bilateral treaties, Tokelau is presumed not to be bound unless explicitly included. Consultation is not required unless there is a particular reason.