Carwyn Jones says ACT's new “One Law for All. One Future Together” policy appears to be an attempt to “re-litigate” the failed Treaty Principles Bill.
But that criticism misses the central point of David Seymour's proposal.
Jones argues that Parliament is already sovereign and already has the power to make or change any law it chooses. That is true. But it is not really what ACT is challenging.
The issue is what happens when Parliament passes laws containing vague references to such things as the “principles of the Treaty of Waitangi” without defining what those principles are or what legal obligations they impose.
Someone then has to decide what those words mean.
Increasingly, those meanings have been developed through the courts, the Waitangi Tribunal and government agencies. Over time, broad and undefined references can acquire legal consequences that Parliament itself has never specifically debated or enacted.
That is the problem David Seymour is seeking to address.
Parliament Should Be Clear
Jones says that if Parliament disagrees with the way judges have interpreted legislation, Parliament can simply change the law.
Of course it can. But why should Parliament first have to wait for the courts to develop an interpretation that it then has to overturn?
A better approach is for Parliament to be clear about its intentions from the beginning.
If Parliament wants to impose a particular Treaty obligation, it should say precisely what that obligation is.
If Parliament wants tikanga Māori to have legal application in a particular area, it should clearly specify where and how.
And if Parliament does not intend vague Treaty references or tikanga to become a general and expanding source of law, then that too should be made clear.
That is not an attack on judges. It is simply a recognition of the different roles within our constitutional system.
Parliament makes the law. Courts interpret and apply it.
The more important the constitutional issue, the stronger the case for Parliament—not judges or unelected officials—to make the fundamental decisions.
The Question Of Tikanga
Jones dismisses ACT's concerns about the increasing use of tikanga in the legal system by pointing out that the common law has always developed and adapted.
That is true as far as it goes. But it does not answer the more important question: who decides when tikanga becomes part of New Zealand law?
David Seymour's answer is that Parliament should decide.
That is a perfectly reasonable democratic position.
Tikanga Māori may exist as a body of traditional customs and practices, but that does not automatically make it law, nor does it follow that it should become part of New Zealand's legal system. Whether tikanga should have any legal application at all is a matter that should be decided openly by Parliament, rather than being progressively incorporated into the law through judicial interpretation.
It raises legitimate rule-of-law questions.
Whose tikanga applies where different iwi or hapū have different customs? Who determines the correct interpretation? And how are ordinary New Zealanders expected to know in advance what legal rules apply to them?
Those are not anti-Māori questions. They are questions that should concern anyone who believes the law should be clear, accessible and predictable.
The Real Meaning Of Parliamentary Sovereignty
Carwyn Jones is right when he says Parliament has the ultimate power to legislate.
But that is precisely why ACT's policy deserves to be taken seriously.
Parliament should not avoid difficult constitutional decisions by inserting vague references into legislation and leaving their meaning to be developed by judges, tribunals and officials over decades.
If Treaty obligations are to have legal force, Parliament should clearly define them.
If tikanga is to apply in a particular area of law, Parliament should determine what, where and how.
And if Parliament believes that all New Zealanders should be equal before the law, then that principle should be clearly affirmed as well.
ACT's proposal to recognise Parliamentary sovereignty, the rule of law and equality before the law should not be controversial. These are fundamental principles of a democratic society.
The Defeat of One Bill Does Not End The Debate
Jones also points to the overwhelming opposition to the Treaty Principles Bill.
But the defeat of one particular bill does not mean that the wider constitutional questions surrounding the Treaty, tikanga and the role of Parliament can never again be discussed.
In a democracy, no legal academic, Waitangi Tribunal, court or political protest has the right to declare an important constitutional debate permanently closed.
That debate belong to all New Zealanders.
The issue raised by ACT's policy is therefore much bigger than the Treaty Principles Bill.
It is about whether fundamental changes to the law should occur through clear legislation debated and passed by elected representatives, or whether they should emerge gradually through judicial interpretation of vague statutory language.
On that question, David Seymour is right.
If Parliament is sovereign, then Parliament should make the important decisions.
And those decisions should be made openly, clearly and democratically.
One law for all. One future together
Geoff Parker is a passionate advocate for equal rights and a colour blind society.
The issue is what happens when Parliament passes laws containing vague references to such things as the “principles of the Treaty of Waitangi” without defining what those principles are or what legal obligations they impose.
Someone then has to decide what those words mean.
Increasingly, those meanings have been developed through the courts, the Waitangi Tribunal and government agencies. Over time, broad and undefined references can acquire legal consequences that Parliament itself has never specifically debated or enacted.
That is the problem David Seymour is seeking to address.
Parliament Should Be Clear
Jones says that if Parliament disagrees with the way judges have interpreted legislation, Parliament can simply change the law.
Of course it can. But why should Parliament first have to wait for the courts to develop an interpretation that it then has to overturn?
A better approach is for Parliament to be clear about its intentions from the beginning.
If Parliament wants to impose a particular Treaty obligation, it should say precisely what that obligation is.
If Parliament wants tikanga Māori to have legal application in a particular area, it should clearly specify where and how.
And if Parliament does not intend vague Treaty references or tikanga to become a general and expanding source of law, then that too should be made clear.
That is not an attack on judges. It is simply a recognition of the different roles within our constitutional system.
Parliament makes the law. Courts interpret and apply it.
The more important the constitutional issue, the stronger the case for Parliament—not judges or unelected officials—to make the fundamental decisions.
The Question Of Tikanga
Jones dismisses ACT's concerns about the increasing use of tikanga in the legal system by pointing out that the common law has always developed and adapted.
That is true as far as it goes. But it does not answer the more important question: who decides when tikanga becomes part of New Zealand law?
David Seymour's answer is that Parliament should decide.
That is a perfectly reasonable democratic position.
Tikanga Māori may exist as a body of traditional customs and practices, but that does not automatically make it law, nor does it follow that it should become part of New Zealand's legal system. Whether tikanga should have any legal application at all is a matter that should be decided openly by Parliament, rather than being progressively incorporated into the law through judicial interpretation.
It raises legitimate rule-of-law questions.
Whose tikanga applies where different iwi or hapū have different customs? Who determines the correct interpretation? And how are ordinary New Zealanders expected to know in advance what legal rules apply to them?
Those are not anti-Māori questions. They are questions that should concern anyone who believes the law should be clear, accessible and predictable.
The Real Meaning Of Parliamentary Sovereignty
Carwyn Jones is right when he says Parliament has the ultimate power to legislate.
But that is precisely why ACT's policy deserves to be taken seriously.
Parliament should not avoid difficult constitutional decisions by inserting vague references into legislation and leaving their meaning to be developed by judges, tribunals and officials over decades.
If Treaty obligations are to have legal force, Parliament should clearly define them.
If tikanga is to apply in a particular area of law, Parliament should determine what, where and how.
And if Parliament believes that all New Zealanders should be equal before the law, then that principle should be clearly affirmed as well.
ACT's proposal to recognise Parliamentary sovereignty, the rule of law and equality before the law should not be controversial. These are fundamental principles of a democratic society.
The Defeat of One Bill Does Not End The Debate
Jones also points to the overwhelming opposition to the Treaty Principles Bill.
But the defeat of one particular bill does not mean that the wider constitutional questions surrounding the Treaty, tikanga and the role of Parliament can never again be discussed.
In a democracy, no legal academic, Waitangi Tribunal, court or political protest has the right to declare an important constitutional debate permanently closed.
That debate belong to all New Zealanders.
The issue raised by ACT's policy is therefore much bigger than the Treaty Principles Bill.
It is about whether fundamental changes to the law should occur through clear legislation debated and passed by elected representatives, or whether they should emerge gradually through judicial interpretation of vague statutory language.
On that question, David Seymour is right.
If Parliament is sovereign, then Parliament should make the important decisions.
And those decisions should be made openly, clearly and democratically.
One law for all. One future together
Geoff Parker is a passionate advocate for equal rights and a colour blind society.
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