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Our Government’s right to regulate
The obligations in the CPTPP have been designed to preserve each government’s inherent right to regulate for legitimate public policy purposes. This ensures Governments are free to make legitimate public policy and to implement that policy. The Preamble to the Agreement explicitly recognises this right.
In the uncommon event that a policy would otherwise breach an obligation, there are a range of general protections in the Agreement that will provide further flexibility for Governments. This includes exceptions for health, environment, national treasures of artistic, historic or archaeological value, national security, taxation and situations involving serious balance of payments difficulties (i.e. when a country can’t pay its debts).
There are also further protections that apply to particular parts of the CPTPP. Some of these are specific to New Zealand and ensure policy areas that are important to New Zealanders are safeguarded. Examples of this in the services and investment area include protections for social services (including health, public education, public housing, public transport and social security), screening of foreign investments, management of our exclusive economic zone, conservation areas and our biosecurity and food safety regimes.
Treaty of Waitangi obligations are protected
Nothing in this new Agreement will prevent the Crown from meeting its Treaty obligations to Māori.
As with all of New Zealand’s contemporary trade agreements, CPTPP includes a specific provision preserving the pre-eminence of the Treaty of Waitangi in New Zealand. This is in addition to other areas of policy flexibility preserved across the Agreement.
The Treaty of Waitangi exception provides flexibility for the Government to implement domestic policies in relation to Māori, including in fulfilment of the Crown’s obligations under the Treaty, without being obliged to offer equivalent treatment to persons of other countries that are party to the Agreement.
The exception is self-judging; it is for New Zealand to determine what policies it considers are necessary to fulfil its obligations under the Treaty, and New Zealand’s interpretation of the Treaty of Waitangi will not be subject to dispute settlement available to parties under the Agreement.
The Waitangi Tribunal (WAI 2522) has considered this provision and considered it provides a reasonable degree of protection.