New Zealand’s democracy hangs by a thread as Parliament’s consideration of TPPA treaty enters its final day

8 min readOct 24, 2018

Yesterday was brutal for New Zealand as a self-governing democratic country.

Yesterday, the Amendment Bill that would usher the TPPA treaty through into binding law made it successfully though a Committee of the whole House of Parliament, without amendment.

Today may well be the coronation ceremony for a treaty that many New Zealanders oppose but that we have never been given an opportunity to vote on as a country.

Law Professor Jane Kelsey speaking to a packed Auckland Town Hall meeting on the TPPA, 26 January 2016. (Photo: Moana Maniapoto.)

The following figure shows how the treaty — text here — would rearrange New Zealand’s very constitutional structure once it becomes binding law:

As the figure shows, the (CP)TPPA treaty would install a governance structure that sits above all of the member nations— that is, a TPP Super-Government.

The governance structure of the TPP Super-Government itself is spelled out in the treaty text, as illustrated here:

As the treaty text prescribes, the TPP Super-Government would have powers to override and direct the existing constitutional bodies of the individual nations: their governments and justice systems.

The executive body of the TPP Super-Government is the TPP Commission. Its powers and procedures are set out largely in Chapter 27 (text in .pdf format).

The functions of the TPP Commission are set out in Article 27.2. For example, it can issue binding interpretations of any of the treaty’s existing provisions (see Article 27.2.2(f)), which the treaty nations must abide by.

Further, the TPP Commission can also amend or modify the treaty however it sees fit (see Article 27.2.1(c)). Any such changes then become binding law on all of the member nations.

One function of the TPP Commission is to oversee and direct the various TPP Committees, listed in the figure above, that are set up in some of the later chapters of the treaty (see individual chapters).

In turn, a function of those TPP Committees is to continue to work towards modifying and synchronising the treaty laws in order to — as is clear from some of the text in the individual chapters — better serve the interests of multinational corporations. That agenda is already hinted at by the names of some of the Committees: the Committee on Cooperation and Capacity Building (Ch. 21), the Committee on Competitiveness and Business Facilitation (Ch. 22), and the Committee on Regulatory Coherence (Ch. 25).

As is shown in the figure, the TPP Super-Government also includes a justice system that incorporates two types of tribunals with direct powers over the individual treaty nations, as is dictated in Chapter 9 (Investment) and Chapter 28 (Dispute Settlement).

The Investor-State Dispute (ISDS) provisions of Chapter 9 are already notorious. For example, here is current NZ Prime Minister Jacinda Ardern’s take on them from November 2017:

The ISDS provisions are the one area in the treaty that the current government openly acknowledges as being unfair to NZers and as degrading our sovereignty.

Even so, the level of threat to New Zealand from ISDS provisions is still understated. For example, the definition of ‘investor’ in Article 9.1 is so expansive as to include:

the other treaty nations themselves
all citizens of the other treaty nations; and
all ‘enterprises’ of the other treaty nations.

So each treaty nation itself can directly sue any of the other treaty nations using ISDS.

Furthermore, the term ‘enterprises’ is itself so broadly defined, in Article 9.1 as well as Article 1.3, so as to include essentially any legal entity within a country, or a branch (added in Article 9.1) of any legal entity.

Critically, that expansive definition of an investor lets in any overseas branch of a multinational corporation. That means New Zealand is already exposed to being sued by any of the world’s largest multinational corporations — they need only maintain a branch in one of the treaty nations where NZ is not protected from the ISDS provisions — for example, a branch in Canada or in Japan.

So forget about trying to legislation against further exposure to ISDS later on — that horse has already bolted.

This Government simply doesn’t talk about the other types of tribunals where other countries can sue New Zealand — those of Chapter 28.

It is an obvious concern that we shouldn’t be allowing other governments to sue us. Further specific concerns might include that:

The range of issues that can be disputed through Chapter 28 is broader than the ISDS provisions, applying to more of the treaty chapters.
The provisions of Chapter 28 further allow other treaty nations to place pressure on New Zealand — a threat to sue — under the cover of blanket secrecy (Article 28.5.8); and
The TPP Commission is given a blank cheque (Article 27.2.1(f)) to set up the Rules of Procedure for the Nation-to-Nation dispute tribunals of Chapter 28.

New Zealand’s surrender to control by a TPP Super-Government comes with the broad swathe of corporate-friendly laws that are already in the six thousand page treaty.

The investment laws of Chapter 9 represent only some of the corporate control we would be allowing into our lives as New Zealanders.

Many other concerning examples — mostly from the middle chapters of the treaty — were rattled off yesterday in one of Golriz Ghahraman’s speeches before Parliament yesterday (listen), in what she characterised as:

“a lot of things that don’t seem particularly related to trade per se, but are part of this corporate privilege framework that this trade agreement and the TPPA before it was based on”

Ms. Ghahraman continued:

…6,000 pages that were negotiated without transparency, and much of which are about things like copyright, things like the privilege of foreign corporate investors to keep their information offshore so that they can avoid our privacy laws. We’ve promised not to regulate future unknown technologies — not much to do with trade — and of course the ISDS clauses — the provision that allows foreign multinationals to sue our government if we legislate, if we adopt progressive policy that protects New Zealanders, our environment, our workers rights, our Treaty of Waitangi, over their profits.

Ms. Ghahraman, speaking on behalf of the Greens and the lone dissenting speaker yesterday to the treaty, submitted two proposed amendments to the Bill, as described in her speech, but they were both voted down by 110 votes to 8 (Greens). The speeches can be heard here.

In my understanding, yesterday’s Committee stage would have been the best time to introduce an amendment requiring a national referendum as a prerequisite to New Zealand committing to the TPPA treaty.

That didn’t happen, but all of those engaged New Zealanders who contacted the MPs to ask for a referendum are to be commended. Here is one of the many examples from twitter that I am aware of:

Thanks to the others as well!

The Third Reading today will consist of 12 10-minute speeches and then a vote, and is likely to start at 4 pm and end at 6 pm.

The Bill’s sponsor, Trade Minister David Parker, will be back as the first speaker.

The vote is likely to be 111–8 in favour of passing the Bill on for Royal Assent, with only the Greens opposed.

From there, Royal Assent would probably be just a formality.

One more country — likely Canada — would then need to ratify the treaty by March 2019, joining Japan, Mexico, Singapore, Australia and New Zealand to bring the total to the required 6 countries, before the treaty can pass into binding law in all of those countries.

After that, the future of New Zealand would be largely in control of the multinational corporations.

But today is our last chance. Think of all the New Zealanders who have gone to great lengths to defend our country and our democracy. Some have given their lives.

So my suggestion is that we do one small thing anyway this afternoon and contact our MPs again to ask for the Bill to be changed today to require a national referendum.

The phone number for all MPs is (04) 817 9999. Emails & twitter handles are given towards the end of this article from yesterday.

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My articles on the TPPA:

UPDATED on 2019–01–22: Canada, Australia, New Zealand, Singapore, Mexico, Japan, and now Vietnam, have recently fallen under a TPP Federal Government — 7 November 2018

To the Rt Hon Jacinda Ardern, Prime Minister of New Zealand: please call a national referendum on the CPTPP treaty — 25 October 2018

New Zealand’s democracy hangs by a thread as Parliament’s consideration of TPPA treaty enters its final day — 24 October 2018

We have one hour! Or New Zealand will be overthrown by a Trans-Pacific Partnership (TPP) Super-Government — 23 October 2018

We have 5 hours to save New Zealand from overthrow by a Trans-Pacific Partnership (TPP) super-Government; here’s how — 23 October 2018

How New Zealanders can win a referendum on the (CP)TPPA treaty — 9 October 2018

CPTPP Treaty with ISDS now an Existential Threat to New Zealand — 18 August 2018

Superb upcoming anti-TPPA events in New Zealand — 25 January 2016