Her proposed solution is stronger constitutional protection, placing those rights beyond the reach of ordinary political bargaining and changes of government.
Protecting rights sounds straightforward. But much bigger questions lie behind her proposal: who ultimately decides what those rights mean, and who has the final authority when Parliament and the courts disagree?
Parliamentary sovereignty is not a constitutional failure
Charters describes New Zealand as an international outlier because Parliament retains the authority to make, amend and repeal legislation.
That is not an accidental weakness. It is a central feature of our Westminster parliamentary democracy.
New Zealand courts can review government decisions, interpret legislation and declare legislation inconsistent with the New Zealand Bill of Rights Act 1990. But they cannot invalidate an Act of Parliament simply because it conflicts with that Act. Parliament retains the final legislative authority.
Charters wants stronger constitutional protection for Treaty and Indigenous rights. But if Parliament can no longer change certain laws, who determines their meaning and how they apply?
Where courts can invalidate legislation for constitutional inconsistency, judges therefore acquire much greater authority over the limits of Parliament's power.
That is a major constitutional change, not simply stronger rights protection.
Do her overseas examples support her case?
Charters points to Canada, where the Constitution recognises and protects existing Aboriginal and Treaty rights. Canadian courts can invalidate legislation inconsistent with constitutional rights.
But Canada's arrangements developed through its own constitutional history and political negotiations. They cannot simply be transplanted into New Zealand without considering the consequences for our parliamentary system.
She also refers to the Sámi parliaments in Norway, Sweden and Finland. However, these are primarily representative and advisory institutions, not independent legislatures with general law-making powers. They demonstrate that Indigenous representation can operate within existing democratic systems without necessarily transferring ultimate legislative authority.
Victoria provides another interesting comparison. Its recently established Gellung Warl gives First Peoples a formal representative and accountability structure. Yet the Victorian Government confirms that the body cannot veto legislation or government policy. Parliamentary sovereignty remains intact.
These examples demonstrate that Indigenous representation and participation can be strengthened without necessarily surrendering Parliament's ultimate authority.
International recommendations are not domestic law
Charters also relies on recommendations from the United Nations Committee on the Elimination of Racial Discrimination.
International human-rights obligations deserve serious consideration. But recommendations from international monitoring committees are not the same as binding judgments of New Zealand courts, nor do international instruments automatically become enforceable domestic law.
If instruments such as UNDRIP are to become constitutional standards against which Parliament's legislation is judged, New Zealanders need to understand exactly what that would mean for domestic law, judicial interpretation and parliamentary authority.
Who ultimately governs New Zealand?
This is the issue running through Charters' latest arguments.
She wants Māori and Indigenous rights protected from the changing political priorities of elected governments.
There is legitimate debate about what constitutional powers, if any, should follow from recognising Māori as the Indigenous people of New Zealand.
Article 3 of the Treaty expressly extended to Māori the rights and privileges of British subjects, while its Māori text promised the same rights and duties of citizenship as the people of England. That guarantee of equal citizenship should not be overlooked.
Recognition of Indigenous status does not, by itself, establish a right to separate political authority or determine how far such authority should extend. Those are constitutional issues that still require democratic debate.
But the practical questions cannot be avoided.
Would judges be empowered to invalidate legislation? Which interpretations of the Treaty would they apply? Would tikanga Māori and international instruments become constitutional standards? Who would resolve conflicts over their meaning? And how would the public hold those exercising this authority accountable?
These are not minor technical details. They go to the heart of democratic government.
Protecting rights is important. But transferring ultimate constitutional authority from elected Parliament to unelected judges or to institutions exercising political authority on the basis of ancestry is quite another matter.
New Zealanders should not be asked to accept fundamental constitutional changes without understanding their consequences.
The central question is not simply how rights should be protected. It is who gets to decide what those rights mean, who enforces them, and who ultimately holds the power to govern.
One country. One citizenship. Equal rights. Equal responsibilities. Democratic accountability.
Geoff Parker is a passionate advocate for equal rights and a colour blind society.
Parliamentary sovereignty is not a constitutional failure
Charters describes New Zealand as an international outlier because Parliament retains the authority to make, amend and repeal legislation.
That is not an accidental weakness. It is a central feature of our Westminster parliamentary democracy.
New Zealand courts can review government decisions, interpret legislation and declare legislation inconsistent with the New Zealand Bill of Rights Act 1990. But they cannot invalidate an Act of Parliament simply because it conflicts with that Act. Parliament retains the final legislative authority.
Charters wants stronger constitutional protection for Treaty and Indigenous rights. But if Parliament can no longer change certain laws, who determines their meaning and how they apply?
Where courts can invalidate legislation for constitutional inconsistency, judges therefore acquire much greater authority over the limits of Parliament's power.
That is a major constitutional change, not simply stronger rights protection.
Do her overseas examples support her case?
Charters points to Canada, where the Constitution recognises and protects existing Aboriginal and Treaty rights. Canadian courts can invalidate legislation inconsistent with constitutional rights.
But Canada's arrangements developed through its own constitutional history and political negotiations. They cannot simply be transplanted into New Zealand without considering the consequences for our parliamentary system.
She also refers to the Sámi parliaments in Norway, Sweden and Finland. However, these are primarily representative and advisory institutions, not independent legislatures with general law-making powers. They demonstrate that Indigenous representation can operate within existing democratic systems without necessarily transferring ultimate legislative authority.
Victoria provides another interesting comparison. Its recently established Gellung Warl gives First Peoples a formal representative and accountability structure. Yet the Victorian Government confirms that the body cannot veto legislation or government policy. Parliamentary sovereignty remains intact.
These examples demonstrate that Indigenous representation and participation can be strengthened without necessarily surrendering Parliament's ultimate authority.
International recommendations are not domestic law
Charters also relies on recommendations from the United Nations Committee on the Elimination of Racial Discrimination.
International human-rights obligations deserve serious consideration. But recommendations from international monitoring committees are not the same as binding judgments of New Zealand courts, nor do international instruments automatically become enforceable domestic law.
If instruments such as UNDRIP are to become constitutional standards against which Parliament's legislation is judged, New Zealanders need to understand exactly what that would mean for domestic law, judicial interpretation and parliamentary authority.
Who ultimately governs New Zealand?
This is the issue running through Charters' latest arguments.
She wants Māori and Indigenous rights protected from the changing political priorities of elected governments.
There is legitimate debate about what constitutional powers, if any, should follow from recognising Māori as the Indigenous people of New Zealand.
Article 3 of the Treaty expressly extended to Māori the rights and privileges of British subjects, while its Māori text promised the same rights and duties of citizenship as the people of England. That guarantee of equal citizenship should not be overlooked.
Recognition of Indigenous status does not, by itself, establish a right to separate political authority or determine how far such authority should extend. Those are constitutional issues that still require democratic debate.
But the practical questions cannot be avoided.
Would judges be empowered to invalidate legislation? Which interpretations of the Treaty would they apply? Would tikanga Māori and international instruments become constitutional standards? Who would resolve conflicts over their meaning? And how would the public hold those exercising this authority accountable?
These are not minor technical details. They go to the heart of democratic government.
Protecting rights is important. But transferring ultimate constitutional authority from elected Parliament to unelected judges or to institutions exercising political authority on the basis of ancestry is quite another matter.
New Zealanders should not be asked to accept fundamental constitutional changes without understanding their consequences.
The central question is not simply how rights should be protected. It is who gets to decide what those rights mean, who enforces them, and who ultimately holds the power to govern.
One country. One citizenship. Equal rights. Equal responsibilities. Democratic accountability.
Geoff Parker is a passionate advocate for equal rights and a colour blind society.
7 comments:
Charters says, "Crown or state courts will enforce the Crown or state legal order, and the power of the Crown or state will enforce their decisions."
I agree, except that I call it bootstrapping: The Crown is pulling itself up by its own bootstraps. It has no real source of actual power. New Zealand Parliamentary sovereignty is a constitutional failure.
Charters makes some good points and she is not to be negated with humbug such as the waffle in this article.
What are these special Maori and indigenous rights? Give me a break. You are not special just like any other race. Our DNA is exactly the same.
A very important article by Geoff Parker. This issue will dominate the remaining years till 2040 - and far beyond.
Excellent article Geoff !
An important point is that Maori people are NOT "indigenous" to New Zealand. They arrived here in boats from Pacific Islands along with the Pacific rat.
Barrie,
re: "The Crown is pulling itself up by its own bootstraps. It has no real source of actual power. New Zealand Parliamentary sovereignty is a constitutional failure."
You appear confused. As Roger Partridge clarifies in his article 'The Crown versus the People' :
"Turn on the news and you will hear endless references to the Crown: “Crown obligations,” “Crown land,” “Crown Treaty settlements.” Politicians make decisions “on behalf of the Crown.” Courts issue rulings about what “the Crown” must do.
Yet ask Kiwis what this “Crown” actually is, and many will give blank stares.
This confusion reflects a fundamental problem with how we talk about political power in New Zealand. We have allowed an abstract, almost mystical concept – the Crown – to obscure a simple democratic truth: in New Zealand, political power comes from the people. Not from some distant monarch. Not from inherited constitutional forms. From us – from the adults among the five million, who trudge to polling booths every three years and decide who gets to make the rules.
. . .
New Zealand’s Constitution Act 1986 could hardly be clearer: the Parliament of New Zealand continues to have full power to make laws. Not the Crown. Parliament. And Parliament’s authority flows directly from elections.
Yes, the executive Government operates in the name of the Crown. But constitutionally, that executive is accountable to Parliament, which is accountable to voters. The Crown, in legal terms, is simply the state’s formal personality – a convenient fiction that allows the Government to sign contracts, own property, and be held accountable in court."
https://www.democracyaction.org.nz/roger_partridge_the_crown_versus_the_people_reclaiming_new_zealand_s_democratic_story
Mr Davis @5.41am - describing the system as “bootstrapping” doesn't establish that it has no legitimate source of authority. YOU'RE CONFUSING the enforcement of law with the constitutional basis on which authority is exercised.
New Zealand's system does not rest simply on the Crown making laws and then using its courts to enforce them. It rests on a constitutional framework involving Parliament, the Executive and an independent Judiciary. Parliament is made up of elected representatives; governments must retain the confidence of the elected House; and the courts interpret and apply the law.
You may disagree with parliamentary sovereignty, but calling it a constitutional failure doesn't explain why it is one. Nor does it establish what should replace it.
SO WHAT EXACTLY IS YOUR ALTERNATIVE? Who should hold ultimate political authority, how should that authority be obtained, and to whom should its holders be accountable?
If the answer involves transferring authority away from elected Parliament to unelected institutions, that raises an even more fundamental question: where does their legitimacy come from?
Simply dismissing an opposing argument as “humbug” doesn't answer any of those questions.
>"[I]n New Zealand, political power comes from the people. Not from some distant monarch."
A "distant monarch" who can get his Governor-General to dissolve the NZ Parliament with a snap of his fingers should he so wish.
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