Gary Judd KC: Submission to the Foreign Affairs, Defence and Trade Committee on the New Zealand....

Submission to the Foreign Affairs, Defence and Trade Committee on the New Zealand - India Free Trade Agreement

Voters are entitled to be angry

Submissions on the FTA closed at midnight last night. In the nick of time, I lodged a submission which largely follows The Sting in the India Trade Deal. It also added this:

If this Committee is to truly act in the interests of all New Zealanders, it will recommend to the House that the FTA not be endorsed by Parliament until it has been amended to remove [Article 13.2.2].

A further recommendation the Committee could legitimately make depends on how the provision got there. If it was with the Minister’s approval, he should resign. If he did not approve it the officials who ought to have drawn attention to it to seek approval should be disciplined.

There is a parallel in the UK. The Telegraph, reporting on 13 May about the King’s speech at the State Opening of Parliament under a headline “Brexit betrayal shows why voters are so angry,” commented:

Almost 10 years after the country voted to leave the EU, the new session will include legislation that effectively begins the process of rejoining. The European Partnership Bill will fast-track EU rules into law without giving MPs a vote, using so-called Henry VIII powers to bypass proper parliamentary scrutiny….

Sir Keir – and any successor who might replace him – is hamstrung by manifesto pledges not to rejoin the single market or the customs union. But he is planning to strike a series of deals this summer on food, energy emissions, and youth mobility that will be presented to Parliament as treaties that MPs will not be able to vote down.

If MPs cannot stop laws being implemented, what is the point of them?….

How handing back powers to Brussels 10 years after the Brexit vote will help restore their faith in the democratic process is anyone’s guess.

The Telegraph queried how can there be faith in the democratic process when the voters are treated with such contempt that there cannot even be a vote. The query is underscored by voting statistics.

The Brexit referendum had a 72.2% turnout (significantly higher than turnout at most recent UK elections which typically fall in the 60-70% range). 52% voted Leave, 48% Remain.

In the UK's 2024 general election, voter turnout was estimated to have been 60 percent, the lowest turnout since 2001, when it was 59.4 percent. Through idiosyncrasies of the first past the post system the Labour Party won 412 of the 650 seats while receiving only 33.8% of the vote. Labour’s 33.8% vote share in 2024 is “the lowest for a majority government in post‑war Britain.”

In NZ, there can be a vote on whether the India FTA is to be ratified. The trade aspects are desirable. The affirmation of UNDRIP is not. National has done a deal to get Labour support, so it will pass despite NZ First’s opposition based on provisions concerning immigration, unless — could it be too much to hope — National realises that the Minister has allowed a Trojan horse to enter the trade stables. And that a party of principle should do something about it

ACT ought to take a principled stand and oppose the FTA as it stands, as ACT’s constitution decrees:

9. The Party subscribes to values and subsidiary principles following from and consistent with its principal object and the fundamental principles, including but not limited to:

a) No one is above the law; all are subject to the same law administered in the same way;

….

d) Each person must be judged as an individual by reference to the person’s own

personality, character and actions and not as a member of a group defined by race,

gender, sexuality, religion, political belief or other group characteristic;

….

g) The Treaty of Waitangi is an agreement which should be viewed as intended to set an honourable course for the future interaction of individual Māori with individual non-Māori.

As The Sting in the India Trade Deal shows, UNDRIP is incompatible with those provisions. I have yet to see a statement of ACT’s position but hope it will act in accordance with its stated principles.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.