Jane Kelsey is a Professor of Law at the University of Auckland. The Trade For All Advisory Board Report (November 2019) can be read at. Ed.

Thank you for accepting my late submission on this Report, which I have read carefully. The document largely bears out my initial scepticism about the Trade for All process. While the Report recognises a number of problems that some of us with long-standing expertise in this area have raised for many years, and there are some worthwhile recommendations, it does not go nearly far enough to examine and address the crisis confronting New Zealand's trade policy and our current and proposed trade and investment agreements.

My scepticism is reinforced by the current Government's pursuit of business-as-usual for the two and a half years since it was elected, during which this Trade for All review has taken place. With the notable and welcome exception of the Government's rejection of investor-State dispute settlement (after accepting it from major capital exporters in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership - CPTPP), the approach of Ministry of Foreign Affairs and Trade (MFAT) and the Government's negotiating position and practices have remained unreconstructed.

The Government needs to show willingness to do more than cosmetic tinkering with the existing structures and procedures if it is to generate confidence in the trade and investment regime. It also needs to abandon the deep-seated and almost obsessive secrecy with which it pursues negotiations, most recently with the Digital Economic Partnership Agreement, if it is to claim any democratic legitimacy.

Finally, it needs to redress errors that have been made in the past, including on te Tiriti o Waitangi and investment rules and enforcement, and step back from binding and enforceable commitments that constrain its ability to address high risk challenges, such as climate change and digital technologies. The terms of reference required the Trade for All Advisory Board to produce "practical, implementable recommendations". In that spirit, I offer the following recommendations:

1. Establish a new Officer of Parliament responsible for New Zealand's international law obligations to inter alia oversee research and analysis on New Zealand's trade and investment policy and conduct inquiries into proposed new negotiations and agreements, including consistency with our other international obligations.
2. Approach the remaining hearing in the Waitangi Tribunal claim Wai 2522 (on the issues of secrecy, engagement, and digital technologies) in a spirit of reconciliation with innovative proposals, in addition to the new Taumata*, to ensure the Crown's approach to such negotiations are Tiriti-compliant and consistent with te tino rangatiratanga.
3. Give legislative priority to the passage of legislation that commits New Zealand governments never to permit enforcement of foreign investors' rights through extra-territorial investor-State dispute mechanisms.
4. Establish jointly with the European Union (EU) a world-leading protocol on engagement, transparency and impact assessment on trade and investment negotiations, to be implemented immediately in the EU NZ Free Trade Agreement.
5. With the expiry of the current Asia Pacific Economic Cooperation (APEC) Bogor goals for 2020, use the opportunity of APEC 2021 in New Zealand to launch a genuinely consultative, multi-stakeholder dialogue to form the basis of new genuinely inclusive, progressive and sustainable APEC goals for trade and investment policy in the Asia Pacific region.
6. Establish an independent multi-disciplinary mechanism for the ongoing development of policies, regulation and strategies to address digitisation.
7. Empower the Climate Change Commission to conduct rolling reviews of the compatibility of New Zealand's international trade and investment policies with its international and national obligations to address climate change.

*"Te Taumata, which was appointed by a 2019 national hui in Rotorua, will work alongside officials from the Ministry for Foreign Affairs and Trade on current and future international trade talks". Waatea.news.com, 14/10/19.

Failure To Address Crisis Confronting International Trade & Investment Regime

Challenges that confront the current regime are recognised on pages 10-12. Addressing most of them demands a zero-based reconsideration of the prevailing paradigm. However, each element is also part of a cumulative, systemic crisis that confronts future trade policy directions. These are not sufficiently recognised in the Report.

The World Trade Organisation (WTO) is in crisis, with its dispute mechanism no longer functioning, its multilateral negotiations paralysed, breakaway groups of members (including New Zealand) pursuing unmandated negotiations, and a deep divide between developed and developing member states, including over how they are defined.

The Trans-Pacific Partnership Agreement (TPPA), the Transatlantic Trade and Investment Partnership and the Trade in Services Agreement all collapsed, with the former being rescued as the CPTPP more for its demonstration effect, than any genuine belief that substantive benefits will outweigh the potential costs.

The Regional Comprehensive Economic Partnership (RCEP) is in a precarious state with India's participation in doubt, and I am aware that the agreed texts on intellectual property, electronic commerce, and investment, at least, have retreated from significant obligations that New Zealand agreed to in the TPPA. For the past decade at least, the international investment regime has suffered from an existential crisis, with states withdrawing from investment treaties and the current New Zealand government adopting a policy not to negotiate investor-State dispute settlements (ISDS) in new agreements.

I have just returned from another meeting of the UN Commission on International Trade Law (UNCITRAL) Working Group III on ISDS reform where even the US Council for International Business accepted the current system could not continue; indeed, it was represented by the negotiators of the United States-Mexico-Canada Agreement (USMCA) in which the US abandoned ISDS in relation to Canada and severely reduced it for Mexico. It is not radical to say that the current paradigm is in crisis - it is a statement of fact. Nor can the failures of the model be attributed to rogue elements in the US, the UK and elsewhere.

They are symptoms of a broader malaise, for which the solution is not simply to restore the status quo. The crisis has been generated by fundamental imbalances in global rules and institutions that have been designed and repeatedly expanded to serve the interests of capital, as recognised by such renowned international economists as Joseph Stiglitz, Dani Rodrick and Jomo Sundaram. Requiring this review to produce "practical, implementable recommendations" effectively excluded consideration of these crucial systemic questions. The result is not fit for purpose as the basis for a genuinely sustainable trade and investment policy into the future, and is a wasted opportunity.

A Role For Academics In Trade Policy

University academics are public servants, paid by taxpayers to perform public good responsibilities under the Education Act and historically. While New Zealand's academic community is small, there are a number of academics who work very closely on New Zealand and international trade and investment law. It is very disappointing that the Board did not make better use of this resource, beyond the participation of my colleague Amokura Kawharu, who was there as much for being Maori as for being a legal academic.

The Report provides no list of people who were consulted during the process. However, I understand that intellectual property law expert Professor Susy Frankel, who is Assistant Commissioner of Trade Marks, Patents and Designs, a board member of the Pacific Economic Cooperation Council (PECC) and director of the New Zealand Centre for International Economic Law, was not contacted.

Nor were Associate Professor Alex Sims and her colleagues at the Business School at Auckland University, who have expertise in digital law and privacy. None of the ghost writers sought to discuss any of the issues with me, even though I am probably the most prolific academic analyst of New Zealand trade policy and law. I was only invited to meet with the Board a month before its Report was due, and specifically on the digital trade issue.

I note that the Report's bibliography makes no use of New Zealand academics' research. It seems extraordinary, for example, that sources used for regulatory chill* ignore published academic literature that is specific to New Zealand. Similarly, sparse academic references are used in relation to intellectual property and Pharmac, investment law, climate change, digital trade, and services regulation. If the ghost writers had reached out to the academic community, they could have been directed to much more pertinent research to enable a better-informed analysis.

*"Regulatory chill is understood to be a restraint of States to enact certain regulatory or public policy measures as a result of arbitration, or a fear thereof, under investor-State dispute settlement (ISDS) provisions, thereby constraining the States' right to regulate". Centre for WTO Studies.

My reason for raising this is not simply because it reflects badly on the Report, but because the absence of any role for and contribution from the academic community carries through to proposals for future engagement and input into trade policy. Academics are not simply part of "civil society". There needs to be some structured role for us to play in a future framework, especially as we confront the deep-seated paradigmatic problems mentioned above.

Need For Institutional Realignment From MFAT

The Report notes that "too much is being loaded onto MFAT" and that it is not conducive to good policy development (page 14). I would go further. Addressing our future challenges requires MFAT to relinquish its vice-like control over trade policy and negotiations, where Ministers are dependent on the advice of officials who are ideologically, intellectually and culturally embedded in the current paradigm. The secrecy with which trade officials have been allowed to operate, including under the Official Information Act, leaves them unaccountable for their analysis, negotiating positions, advice and decisions, and for errors and omissions that become binding and enforceable against New Zealand.

It needs to be recognised that officials in MFAT, and other agencies like the Ministry of Business, Innovation and Employment (MBIE), are rarely experts in the fields on which they are negotiating. They are often not lawyers. They frequently rotate within the Ministry, as well as across subject areas. They lack institutional knowledge of previous negotiations, even on the same topics, often routinely locking in and building on existing texts whose negotiating history and compromises they don't understand.

Yet the secrecy of the negotiating process treats them as infallible. My extensive research shows they are not. Subsequent attempts to remedy errors (for example, in schedules of non-conforming measures) are never accompanied by any recognition of fallibility or that criticisms were correct. Most other ministries whose areas of responsibility are affected also lack expertise. Even where they can contest positions that MFAT proposed, they face resistance or trade-offs for other negotiating priorities.

Te Tiriti O Waitangi

The Report emphasises that future policy should be informed by a triple bottom line. In particular I am pleased to see its acknowledgement that "the Crown's Tiriti/Treaty obligations to Maori are not negotiable in trade negotiations" (page 13) and that it is necessary to strengthen that partnership, "both in the development of trade policy and through participation in the negotiation of trade agreements to better reflect Maori into rangatiratanga, interests and values, as well as promotion of Maori trade" (page 16).

The Report's recognition that all is not well in this relationship is long overdue, and will form an important reference point in the remaining hearings of the Wai 2522 claim on the TPPA during this year (2020). The Report has already been tabled with the Tribunal. The Crown needs to take the lead and change how it responds when Maori raise concerns. This can only happen by addressing the dominance and unaccountability of MFAT.

In policy decisions relating to Maori, MFAT has arrogated to itself the authority to decide where Maori interests lie and adopted binding texts without any Maori participation at all. The Waitangi Tribunal claims Wai 262 and Wai 2522 have exposed serious problems, not just with traditional knowledge. When these failures have been raised, the Crown has responded with an aggressive adversarial defence of its position and denigrated the claimants (and myself as their expert). Successive Trade Ministers have adamantly defended the existing Treaty of Waitangi exception and Government approach to negotiations.

MFAT's action to develop a protocol for ISDS disputes involving te Tiriti has followed the same pattern. The drafts I have seen ignored some of the most important elements of the Waitangi Tribunal's proposal and were drafted by officials who lacked any expertise in tikanga Maori. Having heard nothing about the protocol for almost a year, I resorted to an Official Information Act request on 6 January 2020 to find out more.

If the Crown is really willing to change how it performs its responsibilities as the Treaty partner, it needs to start with its approach to the Waitangi Tribunal, acknowledge its failings, and propose constructive initiatives that can re-set the relationship. The belated establishment of the Taumata is a positive move that responds to calls Maori made some years ago. However, its implementation and the secrecy surrounding its operations to date suggest that MFAT's secretive culture and practices will continue, posing a serious ethical dilemma for the Taumata's members.

Even the Trade for All Advisory Board appears to have been unable to secure the Taumata's terms of reference. I am aware that there is a strict confidentiality protocol for members, which is itself secret - and the deadline for my Official Information Act request for information about the Taumata has been extended. This is not a good beginning.

Inclusion, Diversity And Development

The buzz-words of inclusion, sustainability, gender, diversity, small and medium enterprises are littered throughout the Report, as they are across the broader trade policy arena. However, in almost every instance I have seen at the WTO, in FTAs and in international organisations, these are clip-ons to the existing model. The gender and inclusiveness processes added to the CPTPP are one such example. There is no willingness to look at the system itself to identify where and how it may pose barriers to achieving these objectives and then to make some fundamental, systemic changes.

Another example, whose consequences are more serious, is the foisting of an anti-development model on the Pacific Island Countries under the Pacific Agreement on Closer Economic Relations (PACER-Plus). The Report obliquely recognises this on pages 23 and 94. Having monitored those negotiations for many years, I have no doubt that this was always about advancing the interests of Australia and New Zealand in the South Pacific, whatever the cost to the Pacific Island countries, including least developed countries and small, vulnerable economies.

Initially the concern was to compete with the European Union's Economic Partnership Agreements (EPAs), not by concerns to advance Pacific development. More recently the Pacific re-set is driven by strategic and foreign policy concerns about China's growing role in "our" region. When the Report says New Zealand should work with Pacific partners to address the limitations with and implementation of PACER-Plus, we return to the dilemma that this responsibility rests with MFAT. We need a robust mechanism to ensure that New Zealand's trade policy takes its development responsibilities seriously, even when that results in sub-optimal outcomes for its own national interest.

Secrecy And Accountability

The secrecy that enveloped the TPPA, and our reliance on leaked texts to analyse its consequences for New Zealand and other countries, was a major factor in the groundswell of resistance to those negotiations. The problem with this all-encompassing secrecy is not simply the denial of democracy, especially the role of Parliament as ultimate lawmakers, although that is important. It can produce badly informed decisions that have long-term consequences - these agreements are binding and enforceable extra-territorially, on pain of trade sanctions or awards to investors, and can have a chilling effect on domestic decisions.

Nothing has changed while this review has been conducted. I am forced to rely on Official Information Act requests, which in several cases have taken well over a year, and in one case more than two years, to process through MFAT and the Ombudsman. This is a waste of my resources, those of MFAT and those of the Ombudsman. In the case of the Digital Economy Partnership Agreement (DEPA), my colleagues in Chile secured the same information I had sought and been denied under our Official information Act. After I forwarded it to MFAT it eventually appeared on its Website some weeks later.

More recently, I have been offered briefings by MFAT officials on certain negotiations, but that is not the answer. There needs to be openness to ensure quality decisions and accountability, and broad democratic participation in these decisions. The role of academic experts, in particular, is to bring our insights to bear in the service of the public good. The obsessive secrecy surrounding New Zealand's negotiations prevents us from doing that.

Anticipatory Governance: Ensuring Trade Policy Works For National Interest

I am pleased the Report recognises the flawed timing, content and process of the current National Interest Analysis, which are captive of MFAT. There is abundant material available to show how to conduct balanced, qualitative and quantitative analyses at all stages, from proposals to initiative negotiations, during the process, and after conclusion prior to signature. While I support establishing a standing Select Committee that can initiate inquiries, I note that the existing Foreign Affairs, Defence and Trade Committee can do so but has not.

I am unsure about the best institutional vehicle to conduct in depth trade policy reviews and impact assessments. I would certainly not support the ACT Party-initiated Productivity Commission. A standing body whose members have a genuine balance of expertise, including critical voices, a remit to provide independent advice based on genuine engagement, with independent research capacity would be a good way forward. However, I am sceptical that Government agencies can ensure a balanced and genuinely independent approach, given the prevailing ideological bias towards the current model and that officials and politicians have institutional and political capital invested in their negotiating positions.

In my view, the more extensive scope and depth of our international obligations in the era of globalisation makes it timely to appoint an Officer of Parliament, independent of the Government, who has responsibility for oversight and coherence among our international obligations. This would include the ability to conduct research and inquiries, and produce Reports, at all stages of negotiations, and not solely on trade and investment issues. They should collaborate with similar offices, such as the Commissioner for the Environment, the Privacy Commissioner, the Climate Change Commission, and the Human Rights Commission to provide sound policy advice and oversight on these matters.

Unless some such independent and balanced mechanism is developed, the crisis of credibility that confronts these agreements will continue. It is also a pre-requisite for the kind of research and reconsideration that will enable us to respond to changing realities, including the renegotiation of existing agreements.