The first question in politics is “who rules?” It’s at the forefront of the debate about David Seymour’s Treaty Principles bill, which holds that the Government has the ultimate right to govern and Parliament has the full power to make laws.
You said it so much better than I did last Thursday in the ODT last Thursday. Try he law schools teach that parliament makes the law. I wonder if they still teach that courts interpret it rather than extend the application of it?
There is always a measure of disgruntlement when an election is won by default, as I believe happened in the 2023 election here. Many may not agree with me, but I think the coalition was voted in because their voters were sick to the back teeth of the path the Labour government was taking which included giving increased powers to the judiciary, albeit indirectly. I was one of these voters and after a lifetime of voting Labour I didn't and probably never will again (I'm 77). Why? Because when a party is so set on allowing Critical Theory tenets to trump common sense I see no hope for us ordinary buggers to grasp what is being done in our name. Judges are appointed, not elected, and given the takeover of our university law schools by the likes of Khylee Quince, a strong proponent of social justice and Dean of Law at AUT, I fear for the quality of future appointments. In May this year Ms Quince objected to the comments of a KC complaining to the Government Regulations Review Committee regarding mandatory tikanga Māori studies for law students and her response was to make a social media post calling him "an old racist dinosaur" and advising him to "go and die quietly in the corner".
I think an indisputable positive effect of Seymour's bill is that people who have never previously thought about the content of the Treaty are now aware of it and talking and arguing about it. Or at least they are in our central Waikato town.
Social cohesion ultimately stems from the widely perceived legitimacy of the governing organs. The legitimacy of the judiciary in New Zealand has been undermined in the eyes of a broad, if not a preponderance of voters, by what is seen as overt activism. By stepping off their reservation. This is an own goal by the judiciary that is neither good for that institution nor for our country.
The proper place for constitutional bun fights is in public, out loud, and without violence.
The preferred outcome is one where a majority finally and exhaustedly converge on a shared vision for the basis of our community going forwards.
Surely having a referndum on the Treaty Principles Bill is the best way forward. We the public must have some say in how we are governed. The alternative is to have our informed (supposedly) representativess vote by secret ballot on the bill, in the house. I do not want a public conscience vote as they are too easily manipulated; but a secret vote and if 2/3 agree it becomes law.
One way or another this issue needs to be resolved and one way or another we have to reign the juicary in. As said, they didn't stand for election so why should they make the laws.
Strictly speaking Parliament is not sovereign. King Charles is, as clearly stated on Parliament's website. The judiciary is directly responsible to the sovereign, King Charles. Therefore it is reasonable to allow that it should have a hand in interpreting and applying laws, all of which must have the formal assent of the sovereign, and also in resolving the situation when one law comes into conflict with another.
This is the reality of the colonial regime. If an element within the regime are uncomfortable with the idea of judicial oversight then they may have to adjust the constitution. That would be a fraught process with consequences for the particular matter at hand (the Treaty of Waitangi), the general make up of the colonialist state (removing one of the few remaining checks on the arbitrary power of the political establishment) and the mood of the populace (Maori and tangata motu becoming increasingly disaffected from the regime).
The New Zealand Parliament is not going to behead King Charles regardless of what he might do. Your threats against the judiciary are as empty as they are silly, and in regard to decapitation, your comment just confirms that our colonialists are presently running around like a bunch of headless chooks.
I am, of course, as Matt says, referring to Charles I. The 'beheadings' here would be a rapid move to divorce New Zealand from the British Crown if that monarch were ever to defy Parliament (which he won't), and to dismiss activist judges who wilfully misinterpreted the law.
As I say in another comment: 'The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws.' That's it. End of story. And passing a (self-affirming) law to say so would not make it any more true.
Governors-General have defied Parliament in Fiji (the overthrow of the elected government in the 1987 coup) and Australia (the dismissal of Prime Minister Gough Whitlam in 1975) with the tacit support of the British monarch., at that time Elizabeth II There is no constitutional reason why a similar event could not occur in New Zealand. If it did, Parliament would be unlikely to object because all its members have sworn allegiance to the monarch. If Charles was to defy Parliament he would merely be exercising his reserve powers. If Parliament was to defy Charles. it would be in rebellion. Neither event is likely to occur in the foreseeable future, but if there was a conflict between the sovereign and the Parliament I see no grounds to suppose that Parliament would effect a revolution.
I think John is clearly referring to the beheading of King Charles 1st during the English Civil War, and additionally making the point that while we are technically a constitutional monarchy, parliament is supreme. Which is fantastic. If it wasn't the case, then we would have done away with the monarchy yonks ago like everyone else did.
Additionally, if King Charles (the living) attempted to impose/block law from being introduced in NZ, he would very quickly find himself forcibly removed from our constitutional arrangement.
One 'King's Counsel' responds to the political activism of others:
'The Privy Council continued: “With the passage of time, the ‘principles’ which underlie the Treaty have become much more important than its precise terms” As it then said: “Foremost among those ‘principles’ are the obligations which the Crown undertook of protecting and preserving Māori property, including the Māori language as part of taonga, in return for being recognised as the legitimate government of the whole nation by Māori”.
'I note that Principle 1 of the 3 principles stated in the current Principles of the Treaty of Waitangi Bill is in almost identical terms: “The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws – (a) in the best interests of everyone; and (b) in accordance with the rule of law and the maintenance of a free and democratic society”.
'Principle 3, arguably, does not create any new law either. It provides “(1) Everyone is equal before the law. (2) Everyone is entitled, without discrimination, to (a) the equal protection and benefit of the law; and (b) the equal enjoyment of the same fundamental human rights.” Professor Dicey, in his famous work The Law of the Constitution, said (1) in 1885. (2) is the effect of the New Zealand Bill of Rights Act.
'That leaves Principle 2. This provides that the Crown recognises and will respect and protect the rights that hapu and iwi Māori had under the Treaty of Waitangi “at the time they signed it” but “if those rights differ from the rights of everyone” the primary right to Crown protection “applies only if those rights are agreed in the settlement of a historical treaty claim under the Treaty of Waitangi Act 1975”. This does seem to me to be more questionable. On one view, it could be foreclosing any future Māori land claims which leaves the land claim jurisdiction of the Tribunal in an uncertain and invidious position.
'On balance, I think that Luxon is right to withdraw his continued support for the Bill. The Courts, in the cases discussed above, have, in my view, adequately articulated a workable juridical analysis for the application of Treaty principles on a case-by-case basis.'
'The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws.'
That's it. End of story. Parliament could have passed a law to reverse the courts' recognition of 'tikanga' in the Ellis case, failed to do so, but could still do so any time it wanted.
Ditto with any other adventurous law-making by judges who don't know their place.
“The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws – (a) in the best interests of everyone; and (b) in accordance with the rule of law and the maintenance of a free and democratic society”.
I wonder who drafted that bill. It has the sound and feel of a basic law, but any legislator with half a brain would have stopped after "full power to make laws" because the following clauses ((a) and (b)) qualify the principal statement in a way that would allow a field day to litigants and the courts.
What laws are in the best interests of everyone? Only the laws which do not need to be enacted in the first place.
A law which talks about "the rule of law" cannot be referring to the law itself. It cannot be self-referencing. It can only mean "rule of law" in opposition to "administrative rule" and the current government has a great fondness for administrative rule such as the Fast-Track legislation and the Gangs Act. Do they contribute to the "maintenance of a free and democratic society"? People and judges will differ on those questions, and if the Treaty Principles Bill was to function as a basic law of New Zealand it would throw all statutes into doubt. Any statute could be struck down on the grounds that being not "in the best interests of everyone" it was ultra vires.
With enormous presumption, the ACT Party has drafted the bill as though it is intended to become basic law, in effect a written constitution for a regime that has consistently lacked one. However as a quasi-constitutional document the TPB is risible, and the parliament which has allowed it to proceed to second reading has made itself into a joke.
We seem to agree that the substance of Principle 1 is that 'The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws', and the rest mere feel-good flim-flam.
And perhaps we agree that the bill is unwise, though for different reasons.
I argue that 'The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws' is a fact, has been a fact effectively I think since 1907, and constitutionally certainly since 1987. Passing yet another law saying so would not make it any more true, and aspirations of Te Paati Māori and others to constrain the absolute sovereignty of Parliament with notions of co-sovereignty or co-government will fail because they will not be supported by us, the people.
Parliament itself says that Charles III is sovereign. Parliament may be "supreme", whatever that means, but in the New Zealand system it is not sovereign.
You said it so much better than I did last Thursday in the ODT last Thursday. Try he law schools teach that parliament makes the law. I wonder if they still teach that courts interpret it rather than extend the application of it?
There is always a measure of disgruntlement when an election is won by default, as I believe happened in the 2023 election here. Many may not agree with me, but I think the coalition was voted in because their voters were sick to the back teeth of the path the Labour government was taking which included giving increased powers to the judiciary, albeit indirectly. I was one of these voters and after a lifetime of voting Labour I didn't and probably never will again (I'm 77). Why? Because when a party is so set on allowing Critical Theory tenets to trump common sense I see no hope for us ordinary buggers to grasp what is being done in our name. Judges are appointed, not elected, and given the takeover of our university law schools by the likes of Khylee Quince, a strong proponent of social justice and Dean of Law at AUT, I fear for the quality of future appointments. In May this year Ms Quince objected to the comments of a KC complaining to the Government Regulations Review Committee regarding mandatory tikanga Māori studies for law students and her response was to make a social media post calling him "an old racist dinosaur" and advising him to "go and die quietly in the corner".
I think an indisputable positive effect of Seymour's bill is that people who have never previously thought about the content of the Treaty are now aware of it and talking and arguing about it. Or at least they are in our central Waikato town.
Social cohesion ultimately stems from the widely perceived legitimacy of the governing organs. The legitimacy of the judiciary in New Zealand has been undermined in the eyes of a broad, if not a preponderance of voters, by what is seen as overt activism. By stepping off their reservation. This is an own goal by the judiciary that is neither good for that institution nor for our country.
The proper place for constitutional bun fights is in public, out loud, and without violence.
The preferred outcome is one where a majority finally and exhaustedly converge on a shared vision for the basis of our community going forwards.
Surely having a referndum on the Treaty Principles Bill is the best way forward. We the public must have some say in how we are governed. The alternative is to have our informed (supposedly) representativess vote by secret ballot on the bill, in the house. I do not want a public conscience vote as they are too easily manipulated; but a secret vote and if 2/3 agree it becomes law.
One way or another this issue needs to be resolved and one way or another we have to reign the juicary in. As said, they didn't stand for election so why should they make the laws.
Strictly speaking Parliament is not sovereign. King Charles is, as clearly stated on Parliament's website. The judiciary is directly responsible to the sovereign, King Charles. Therefore it is reasonable to allow that it should have a hand in interpreting and applying laws, all of which must have the formal assent of the sovereign, and also in resolving the situation when one law comes into conflict with another.
This is the reality of the colonial regime. If an element within the regime are uncomfortable with the idea of judicial oversight then they may have to adjust the constitution. That would be a fraught process with consequences for the particular matter at hand (the Treaty of Waitangi), the general make up of the colonialist state (removing one of the few remaining checks on the arbitrary power of the political establishment) and the mood of the populace (Maori and tangata motu becoming increasingly disaffected from the regime).
The Sovereign does as Parliament tells him, if he wants to keep his head.
So will judges, if they want to keep theirs.
The New Zealand Parliament is not going to behead King Charles regardless of what he might do. Your threats against the judiciary are as empty as they are silly, and in regard to decapitation, your comment just confirms that our colonialists are presently running around like a bunch of headless chooks.
I am, of course, as Matt says, referring to Charles I. The 'beheadings' here would be a rapid move to divorce New Zealand from the British Crown if that monarch were ever to defy Parliament (which he won't), and to dismiss activist judges who wilfully misinterpreted the law.
As I say in another comment: 'The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws.' That's it. End of story. And passing a (self-affirming) law to say so would not make it any more true.
Governors-General have defied Parliament in Fiji (the overthrow of the elected government in the 1987 coup) and Australia (the dismissal of Prime Minister Gough Whitlam in 1975) with the tacit support of the British monarch., at that time Elizabeth II There is no constitutional reason why a similar event could not occur in New Zealand. If it did, Parliament would be unlikely to object because all its members have sworn allegiance to the monarch. If Charles was to defy Parliament he would merely be exercising his reserve powers. If Parliament was to defy Charles. it would be in rebellion. Neither event is likely to occur in the foreseeable future, but if there was a conflict between the sovereign and the Parliament I see no grounds to suppose that Parliament would effect a revolution.
I think the value of TPB is getting this conversation going. 6 months? Whatever. It’s already too late to close the stable door.
I think John is clearly referring to the beheading of King Charles 1st during the English Civil War, and additionally making the point that while we are technically a constitutional monarchy, parliament is supreme. Which is fantastic. If it wasn't the case, then we would have done away with the monarchy yonks ago like everyone else did.
Additionally, if King Charles (the living) attempted to impose/block law from being introduced in NZ, he would very quickly find himself forcibly removed from our constitutional arrangement.
Perhaps he is a 'paper sovereign'.
One 'King's Counsel' responds to the political activism of others:
'The Privy Council continued: “With the passage of time, the ‘principles’ which underlie the Treaty have become much more important than its precise terms” As it then said: “Foremost among those ‘principles’ are the obligations which the Crown undertook of protecting and preserving Māori property, including the Māori language as part of taonga, in return for being recognised as the legitimate government of the whole nation by Māori”.
'I note that Principle 1 of the 3 principles stated in the current Principles of the Treaty of Waitangi Bill is in almost identical terms: “The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws – (a) in the best interests of everyone; and (b) in accordance with the rule of law and the maintenance of a free and democratic society”.
'Principle 3, arguably, does not create any new law either. It provides “(1) Everyone is equal before the law. (2) Everyone is entitled, without discrimination, to (a) the equal protection and benefit of the law; and (b) the equal enjoyment of the same fundamental human rights.” Professor Dicey, in his famous work The Law of the Constitution, said (1) in 1885. (2) is the effect of the New Zealand Bill of Rights Act.
'That leaves Principle 2. This provides that the Crown recognises and will respect and protect the rights that hapu and iwi Māori had under the Treaty of Waitangi “at the time they signed it” but “if those rights differ from the rights of everyone” the primary right to Crown protection “applies only if those rights are agreed in the settlement of a historical treaty claim under the Treaty of Waitangi Act 1975”. This does seem to me to be more questionable. On one view, it could be foreclosing any future Māori land claims which leaves the land claim jurisdiction of the Tribunal in an uncertain and invidious position.
'On balance, I think that Luxon is right to withdraw his continued support for the Bill. The Courts, in the cases discussed above, have, in my view, adequately articulated a workable juridical analysis for the application of Treaty principles on a case-by-case basis.'
https://www.jamesfarmerqc.co.nz/Legal-Commentary/why-i-did-not-sign-the-letter
'The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws.'
That's it. End of story. Parliament could have passed a law to reverse the courts' recognition of 'tikanga' in the Ellis case, failed to do so, but could still do so any time it wanted.
Ditto with any other adventurous law-making by judges who don't know their place.
“The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws – (a) in the best interests of everyone; and (b) in accordance with the rule of law and the maintenance of a free and democratic society”.
I wonder who drafted that bill. It has the sound and feel of a basic law, but any legislator with half a brain would have stopped after "full power to make laws" because the following clauses ((a) and (b)) qualify the principal statement in a way that would allow a field day to litigants and the courts.
What laws are in the best interests of everyone? Only the laws which do not need to be enacted in the first place.
A law which talks about "the rule of law" cannot be referring to the law itself. It cannot be self-referencing. It can only mean "rule of law" in opposition to "administrative rule" and the current government has a great fondness for administrative rule such as the Fast-Track legislation and the Gangs Act. Do they contribute to the "maintenance of a free and democratic society"? People and judges will differ on those questions, and if the Treaty Principles Bill was to function as a basic law of New Zealand it would throw all statutes into doubt. Any statute could be struck down on the grounds that being not "in the best interests of everyone" it was ultra vires.
With enormous presumption, the ACT Party has drafted the bill as though it is intended to become basic law, in effect a written constitution for a regime that has consistently lacked one. However as a quasi-constitutional document the TPB is risible, and the parliament which has allowed it to proceed to second reading has made itself into a joke.
We seem to agree that the substance of Principle 1 is that 'The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws', and the rest mere feel-good flim-flam.
And perhaps we agree that the bill is unwise, though for different reasons.
I argue that 'The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws' is a fact, has been a fact effectively I think since 1907, and constitutionally certainly since 1987. Passing yet another law saying so would not make it any more true, and aspirations of Te Paati Māori and others to constrain the absolute sovereignty of Parliament with notions of co-sovereignty or co-government will fail because they will not be supported by us, the people.
https://www.parliament.nz/en/pb/research-papers/document/00PLLawRP07041/new-zealand-sovereignty-1857-1907-1947-or-1987
Parliament itself says that Charles III is sovereign. Parliament may be "supreme", whatever that means, but in the New Zealand system it is not sovereign.