The government officials charged with assessing New Zealand's interests in signing an international treaty have been accused of falling short, with a sharp rebuke from a parliamentary committee
Foreign affairs officials have faced stinging criticism from MPs over unclear and potentially misleading advice about an international trade agreement New Zealand has joined.
Politicians have asked Parliament and the Ministry of Foreign Affairs and Trade to review the way it produces national interest analyses, which must be done for any international treaty signed by the Government.
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The criticisms stem from the parliamentary foreign affairs, defence and trade committee’s scrutiny of the World Trade Organisation joint initiative on services domestic regulation.
The agreement to smooth international trade in services currently has the support of 70 of the WTO’s 164 members. However, countries including India and South Africa have questioned the legality of such plurilateral initiatives, arguing the organisation’s rules require the consensus of all members.
In a submission to the committee, University of Auckland professor and trade expert Jane Kelsey argued MFAT’s analysis should have mentioned the debate about the initiative's legitimacy – a view MPs supported, despite officials arguing plurilateral deals had been part of the WTO since its creation.
“We understand that New Zealand negotiators will seek alternative solutions at times when it does not seem possible to make headway in multilateral negotiations,” the committee said.
“However, we believe that the [analysis] of agreements that New Zealand intends to bring into force should signal any significant challenges and opposing views from members of the international community. This is particularly so when they involve major institutions such as the WTO.”
We have concerns that the information provided in this [analysis] could potentially be misleading in some cases and was not sufficiently clear about all the consequences of joining this agreement." – Parliament foreign affairs, defence and trade committee
Kelsey and the committee also took issue with MFAT incorrectly claiming the agreement included “the first binding provision on non-discrimination between men and women within the WTO framework”, when it was in fact optional for members to sign up to that specific element.
“Parliament needs to be able to rely on the information and advice provided in an [analysis] when undertaking international treaty examinations. We have concerns that the information provided in this [analysis] could potentially be misleading in some cases and was not sufficiently clear about all the consequences of joining this agreement,” MPs said of the analysis provided by officials.
While the ministry had been able to provide further information when asked, the limited time for parliamentary scrutiny meant any analysis needed to be “as transparent and candid as possible from the beginning”.
“This is crucial in enabling us to express an informed view about the appropriateness of New Zealand entering into international agreement,” the committee said, calling for further review by both Parliament and MFAT.
Kelsey told Newsroom she was surprised MPs had finally picked up on a long-standing criticism made by her and others, attributing the committee’s rebuke to the “blatant” nature of the omissions.
Kelsey said flaws within the national interest analysis were symptomatic of wider problems in the system, with MPs lacking the knowledge and independent advice to challenge the information presented by officials.
“You would expect a foreign affairs, defence and trade committee to be alerted to the fact that the WTO is in a state of existential crisis and that this [initiative] is actually a part of it - even if MFAT thinks they're doing the right thing, they should at least acknowledge that in the [analysis] and explain it to the public and the committee.”
She said there needed to be more openness during the negotiations for such agreements, with assessments done before a deal was signed and a specialist committee of MPs set up to examine international treaties.
An 'inadequate' tool
In 2019, a report from the Trade for All Advisory Board described national interest analyses as an “inadequate” tool, saying: “The focus … is too narrow, it comes too late in the process, and it is delivered under political and time pressures that are not conducive to the quality of analysis the subject matter deserves.”
The report recommended analyses be carried out by an independent body due to concerns MFAT couldn’t provide an objective view of an agreement’s strengths and weaknesses, given it was the agency managing the negotiation process.
Such a body is yet to be put in place – in part due to the fact that Parliament would first need to change its standing orders
A ministry spokeswoman told Newsroom it had acknowledged its national interest analysis did not clearly identify that the gender provision was voluntary, and that the wording “could have been more precise”.
“However the intention was not to mischaracterise the obligation, [which] will be binding at international law for those economies who choose to accept it - including New Zealand.”
The spokeswoman said plurilateral agreements were “a normal and longstanding part of WTO practice”, with many others currently in place.
There was a plan in place to improve national interest analyses, including peer review and independent advice. Some changes had already been made during the recent analysis of the United Kingdom FTA, such as independent economic modelling and specific work to assess the deal’s impact for Māori, women, SMEs and the regions.
Trade and Export Growth Minister Damien O’Connor’s office had not responded to a request for comment at the time of publication.
