John Maassen
On 13 November 2024, more than 40 KCs (senior lawyers) sent a letter to the Prime Minister and Attorney-General, inviting them to defeat the imminent first reading of the Principles of the Treaty of Waitangi Bill introduced into the House by David Seymour.
This act would have been a breach of the National/ACT Coalition Agreement.
Coalition agreements are essential to New Zealand’s MMP electoral system since parties seldom have an absolute majority. An agreement forms the bedrock for confidence and cooperation, which is essential to any democratic system.
It assures parties that they can deliver on important aspects of their electoral mandate, with the necessary compromises identified in the agreement’s text. The publication of a coalition agreement provides a transparent resource for the electorate regarding how their vote has counted (or not) in the democratic process.
The background of the National/ACT Coalition Agreement is worth recounting.
The agreement
On 24 November 2023, Christoper Luxon and David Seymour signed a coalition agreement on behalf of their respective parties to establish the 54th Parliament of the New Zealand Parliament, one of the world’s oldest democratic institutions.
In the preamble to the coalition agreement, the two parties set out many laudatory principles to inform the coalition’s relationship and work. These principles included building national unity, social cohesion and confidence in the integrity of Parliament and New Zealand’s democracy.
Under the heading Strengthening Democracy, the coalition agreement between National and ACT includes a list of commitments commencing with the words, “To uphold the principles of liberal democracy, including equal citizenship and parliamentary sovereignty…The last item in the agreed action list under that heading is: ‘Introduce a Treaty Principles Bill based on existing ACT policy and support it to a select committee as soon as possible’.”
The ACT policy referred to in that action list is the policy document entitled A Path from Co-governance to Democracy on ACT’s website. From this policy document, several key themes emerge:
- A dissatisfaction by ACT with the interpretation and application of the treaty principles required by various legislation. Early examples include the Treaty of Waitangi Act 1975 and the State-Owned Enterprises Act 1986. The emergence of these principles as pillars of a range of subsequent social legislation and their interpretation are seen by ACT as the thin end of the co-governance wedge, leading to state race-based administration.
- A desire by ACT to reform the interpretation of the principles of the treaty to align with the articles of the treaty more closely.
- ACT desires to address Māori disadvantage, not through self-government or co-governance solutions but through devolution of public services and evidence-based targeting.
Undeniably, the Treaty Principles Bill introduced into the House by Seymour captures the ACT policy as referenced in the coalition agreement. Therefore, the coalition agreement demanded that the bill pass its first reading and move to the appropriate select committee for consideration.
I turn now to the idea that the treaty contains principles.
Open question
ACT’s position that the principles of the treaty should more closely conform to the articles of the treaty is significantly different from New Zealand First’s which proceeds on the basis that there are no principles of the treaty but only the articles themselves. However, they are similar in that both look to the text of the treaty itself when it is appropriate to invoke it.
A complication for those both parties is that the English and Māori versions of the treaty are not easily reconciled on some fundamental elements due to a poorly constructed negotiation process. Historical analysis is inconclusive on many aspects of the parties’ intentions, providing fertile ground for debate about what the treaty provides.
These gaps partly inspired Parliament’s idea in the 1970s that referring to the principles of the treaty was a more fruitful tool for measuring adherence to New Zealand’s founding document. The idea of using principles underscores an ongoing relationship with situational and contextual demands which lies at the heart of the design of the Waitangi Tribunal’s current mandate.
It is an open question about how the concept of treaty principles evolves and develops to enable the common good.
The provisions of the coalition agreement point to considerable disquiet among parties representing a significant part of the New Zealand electorate about recent political projects established under the banner “Principles of the Treaty”, its impact on democratic institutions and core constitutional values.
These parties identified the need to at least air those matters in Parliament as far as a select committee hearing (but not a second reading), as recorded in the coalition agreement.
Parliamentary sovereignty
It is a respectable view that if the principles are to be described as having constitutional significance, Parliament is responsible for their use and meaning.
After all, Parliament bestowed the concept of the principles on New Zealand through various pieces of legislation. In the current processes, the meaning and application of the principles seldom provide meaningful participation by the wider New Zealand community. In this respect, they lack the same democratic legitimacy as decisions by Parliament.
It is also a respectable view that for the principles to be credible as a contemporary constitutional tool, they must acknowledge parliamentary sovereignty and the characteristics of equal citizenship and rights in their essential everyday elements.
What is less clear (at least to me) is whether the principles can or should be reduced to only these elements or whether the historical tapestry points to the necessity and desirability of a more dynamic and ongoing relationship between the Crown and Māori, founded on proper respect for these two constitutional bottom lines but acknowledging the need for ongoing dialogue befitting a relationship.
Much of what has happened in the past 50 years surrounding treaty settlements, recognising customary property and conferring means for effective participation in society, has been constructive, appropriate and enriching, delivered by many people exhibiting tireless goodwill. To be clear, ACT says it does not seek to undo that work.
The KCs’ letter
The letter contains a brief but erudite argument about why the bill may not be a good idea, may not achieve its intended purpose and is unfair in its development. The KCs say it does not involve Māori as co-signatories of the treaty and seeks to state the treaty’s content inaccurately.
The lawyers could have made these points individually through the select committee process and if desired, they could have promoted refinements in the drafting.
Instead, they sought to prevent access to the select committee for all New Zealanders on a topic that the coalition agreement determines is appropriate. The commitments in the coalition agreement were, of course, hard-won fairly through the democratic process.
The lawyers also questioned whether Parliament could redefine the treaty’s principles.
The letter, inviting the Prime Minister and Attorney-General to breach the coalition agreement, is a request to engender disorder and incoherence in government processes under an MMP electoral system. Without proper respect for the commitments under coalition agreements, public confidence in democracy and parliamentary governance is seriously undermined.
No end justifies that means. It was an inappropriate act by those lawyers.
The most disturbing feature of the letter is the suggestion in paragraph seven that there is uncertainty that Parliament can re-state the treaty’s principles, even though this concept is a creature of statute.
The senior lawyers have made two crucial and related errors in their reasoning:
- They have elevated the New Zealand courts’ interpretation of Parliament’s references to the principles of the Treaty of Waitangi in legislation as an independent source of law rather than interpretative law that ultimately derives its validity and source from Parliament’s expressed will in enactments.
- They assert that the New Zealand Parliament’s sovereign right could depend on its conformity with the principles of the Treaty of Waitangi or the treaty itself. Because the courts have treated the treaty as part of the fabric of the constitution, the argument is that somehow the treaty operates like that of the Constitution of the United States.
Implicit in the argument that there are limits on parliamentary sovereignty is the idea that judges can legitimately be persuaded not to give effect to Parliament’s will.
This idea has seduced many people over the years, and some have opined about parliamentary limits, but it has never been practised in any common law jurisdiction. The threshold for performing such a radical act is not clear.
Parliamentary supremacy
The simple fact is that no judge can legitimately be in office and actively seek to undermine Parliament’s decisions or declare limits on parliamentary sovereignty. Humility towards Parliament is the necessary qualifying orientation of a judge in office.
As Justice Michael Kirby of Australia once said, echoing Lord Reid: “…if the legislation is clear, and though the judge considers it unjust and oppressive, it is not for him to substitute his own opinion for that of elected representatives.”
The Senior Courts Act 2016, under which New Zealand senior courts are constituted, provides for New Zealand’s ongoing commitment to the rule of law and the sovereignty of Parliament, as also enunciated in the Constitution Act 1986.
The KCs banded together to form a scrum when planning their letter, seemingly to seek some form of precedence by rank and numbers.
However, one should approach parliamentary and legal processes without claiming any special status beyond the force of one’s reasoning, presented through the processes designed for that purpose.
Respectfully, the letter demonstrates that some members of our profession are less interested in supporting the machinery of a free and democratic society underpinned by New Zealand’s great democratic heritage than, in my opinion, they should be.
The democratic process must be respected, whatever views one holds and whatever station in life. Defence of the orderly performance of the ancient parliamentary processes and privileges that form the foundation of our constitution and the effective performance of affairs of state is a lawyer’s highest calling.
John Maassen is a Wellington barrister and a member of The Law Association’s Public & Administrative Law committee
“Undeniably” the Bill fails to reflect or achieve ACT’s policy in your second bullet point. See my article published by Law News. ACT’s proposals are incoherent revisionism.
While you are right to say the Bill must run its agreed course, and there is merit in your criticisms of the silks’ letter, ACT’s policy is being quietly achieved by its coalition partners scrubbing references to Treaty principles from legislation, which doesn’t threaten the Treaty itself.
Neither democracy nor the rule of law authorise changing the meaning of a treaty of cession based on the opinions of a later body of citizens, any more than they would authorise such a method to change the meaning of Magna Carta.