Written By:
- Date published:
10:13 am, September 12th, 2024 - 46 comments
Categories: david seymour, Judith Collins, law, Politics -
Tags: attorney-general, constitutional law, royal assent, Treaty of waitangi
David Seymour finally released some hard information about Act’s coalition bone – the proposed and apparently still non-existent Treaty Principles Bill. The regulatory impact statement (RIS) on the proposed bill is damning and points to the status quo as being preferable to what is in the proposed in the (missing) draft bill. It will provide an interesting scope for Judith Collins in her role as Attorney-General when she provides advice on the constitutional validity of the eventual bill before that bill is presented to parliament for its first reading.
This advice from the Attorney General is required to be very clear, legally based, and non-partisan. If it isn’t then it provides a basis for a constitutional crisis if it passes parliament in an unsound constitutional form. Both when it goes to royal assent and in any challenges in the courts of the Crown.
If a bill passes its third reading, it is delivered to the governor-general by the clerk of the House of Representatives, who, assuming that constitutional convention is followed, will grant Royal Assent as a matter of course. Some constitutional lawyers, such as Professor Philip Joseph, believe the governor-general does retain the power to refuse Royal Assent to bills in exceptional circumstances—specifically if democracy were to be abolished.[65] Others, such as former law professor and Prime Minister Sir Geoffrey Palmer and Professor Matthew Palmer argue any refusal of Royal Assent would cause a constitutional crisis.[66]
As a practical reality, because the Royal Assent to a bill must follow quickly after its passage by the House of Representatives, if there is any substantial issue about the constitutional validity of a bill, the issue must be considered by the attorney-general before the bill is introduced into the House.[67][note 2]
The RIS summarises the unseen bill (hopefully they actually sighted something more substantive than the coalition agreement) as being of limited to no practical use constitutionally, and that its overview regulatory impact has been severely impacted by constraints. As Minister of Justice and Attorney-General, the RIS will undoubtedly be a primary legal basis for Judith Collins independent advice to parliament.
Although the proposal to introduce the Bill could have some value, we consider the status quo is more beneficial. Under this option, the courts and the Waitangi Tribunal would continue to articulate the meaning of the Treaty principles in line with the existing legislation and practice. This option would uphold Treaty obligations to the same extent as they are now.
The final content of the principles in the proposed Bill is yet to be determined and it might be possible to develop principles that align with established law and the spirit and intent of the Treaty/te Tiriti. However, their description in the policy proposal is inconsistent with the Treaty/te Tiriti. It does not accurately reflect Article 2, which affirms the continuing exercise of tino rangatiratanga. Restricting the rights of hapū and iwi to those specified in legislation, or agreement with the Crown, implies that tino rangatiratanga is derived from kāwanatanga. It reduces indigenous rights to a set of ordinary rights that could be exercised by any group of citizens.
An interpretation of Article 2 that does not recognise the collective rights held by iwi and hapū, or the distinct status of Māori as the indigenous people of Aotearoa New Zealand, calls into question the very purpose of the Treaty and its status in our constitutional arrangements.
The status quo also provides a higher degree of certainty about what the Treaty principles are and how they operate in New Zealand law. The existing principles have been developed over years of jurisprudence and by the actions of successive Governments. Defining the principles of the Treaty/te Tiriti in legislation might provide a level of clarity about the intent of Parliament when it refers to the principles, but it could also introduce more uncertainty into our constitutional arrangements because it would unsettle the established jurisprudence about the effect of the principles.
The status quo might also minimise the risk of damaging Māori-Crown relations because the proposed Bill could be seen as an attempt to limit the rights and obligations created by the Treaty. This would present a significant risk to the Māori-Crown relationship and could have flow-on effects into other parts of the relationship. We note that neither the status quo, nor the proposed Bill, will address broader questions about how the Treaty/te Tiriti shapes our constitutional arrangements. However, the status quo preserves space for future engagement with iwi and hapū as the Crown’s Treaty partner about our constitutional arrangements in a process that prioritises public engagement, social cohesion, transparency, and the legitimacy of the outcome.
The Waitangi Tribunal has released its interim report on the urgent inquiry into the Treaty Principles Bill. In the report, Ngā mātāpono The Principles: The Interim Report of the Tomokia Ngā Tatau o Matangireia – the Constitutional Kaupapa Inquiry Panel on the Crown’s Treaty Principles Bill and Treaty Clause Review Policies, it found that the Treaty Principles Bill policy is unfair, discriminatory, and inconsistent with the principles of the Treaty and contrary to the article 2 guarantee of tino rangatiratanga. It also found that it will be significantly prejudicial to Māori. The findings have informed our analysis.
Which is exactly what anyone who knows about the constitutional arrangements of NZ and our recently formed Parliament (it formally became our parliament in 1986) would understand.
What is also of significance were the constraints imposed on the process by David Seymour (in their role as Associate Minister of Justice) on the regulatory impact statement. Quite simply he deliberately and maliciously has attempted to muffle coherent analysis beyond his own idiotic and ill-informed opinions. This is reflected in the RIS.
The Associate Minister of Justice directed a process that did not include public consultation on policy. Instead, public engagement will occur as part of the select committee process. The limited timeframes and lack of consultation to date have left gaps in the analysis. These gaps will need to be addressed prior to the introduction of a Bill. Cabinet will need to provide policy approval and final approval of the Bill for introduction.
The RIS includes the findings from the Waitangi Tribunal urgent inquiry. The evidence from the Waitangi Tribunal urgent inquiry, although not representing all possible views, is highly relevant and has assisted our analysis
A side effect of limited consultation means that we have relied on costs from previous initiatives. Those costs are accurate and can be taken with a high degree of confidence. However, predictions of future costs and benefits are not fully informed by engagement with affected groups. Where possible, costs have been provided in a range. Therefore, costings for future events can be taken with a moderate degree of confidence. With additional time we would have gathered more precise costs and assessed benefits to the Crown, Māori, and the public.
Which explains why the Waitangi Tribunial chose to publish their damning findings from a urgent inquiry into the proposed (and still not presented) bill. Also why Act and David Seymour were so anxious to prevent them from doing it on the quite spurious grounds that they could only look at it after a bill was presented to parliament. It would inform the advice of the required RIS on the proposed (and still incomplete) bill.
It is quite clear from his instructions that our Associate Minister of Justice wasn’t interested in having any constitutional facts guiding this constitutional change. He preferred the kind of blind and wilful ignorance that has been clearly apparent in comments from Act supporters in recent days. Morons from Act parroting Seymour’s spin appear to have never taken any interest in our actual constitutional arrangements or even the history that formed them.
It explains why we are going to have a six month select committee process over the still non-existent bill. That is going to be far too short.
My personal guess is that Act, David Seymour and their maliciously ignorant (and probably racist) supporters will continue to try to stifle submissions to the select committee. That has clearly been their game plan to date on this still non-existent bill. They have clearly been pushing to not consider the constitutional implications of the Treaty between the Crown and Maori. In particular that our parliament is not fully sovereign nor is it a direct party to the Treaty of Waitangi made in 1840 and which was prior to the first general assembly in 1854 under a act of the British parliament.
So prepare to help to swamp the select committee with long well-written and knowledgeable submissions requesting time in front of the committee. Appeal when the treasonous minions of Act attempt to stifle your voices in favour of not changing our constitutional basis and society for their racist and bigoted dog-whistling. I know that I will make and effort for a change.
Await the advice of our Attorney-General Judith Collins with anticipation (I cannot believe that I just wrote that) because in that role Attorney-General Judith Collins has the weight of history and legal process in her advice to Parliament.
The Attorney-General has a different role to that of all other Ministers of the Crown. The fundamental responsibility of the Attorney-General, when acting as the senior Law Officer of the Crown, is to act in the public interest. In exercising the powers, functions and duties of a Law Officer, the Attorney-General disregards any political interest or partisan considerations.
and
The Attorney-General also has special responsibilities to Parliament in
relation to legislation. These underscore the independence with which the
duties of the Attorney-General must be exercised.
- Under s 7 of the New Zealand Bill of Rights Act 1990, the AttorneyGeneral reports to the House of Representatives any provision in a bill introduced to Parliament that they consider to be inconsistent with the Bill of Rights.
- For all bills apart from those for which the Minister of Justice has responsibility, the Attorney is advised by the Ministry of Justice, reflecting the view that in its preliminary stages the Bill of Rights vetting process raises policy matters. To avoid any perception of a conflict of interest, bills promoted by the Minister of Justice are vetted by Crown Law which then advises the Attorney-General. Crown Law will also advise in any case where an adverse report to the Attorney is
contemplated.- Under s 7A of the New Zealand Bill of Rights Act 1990 the AttorneyGeneral must bring to the attention of the House of Representatives any final declaration by a Court that an enactment is inconsistent with the Bill of Rights.
- The Attorney must also approve the giving of, or sharing of, Government legal advice to Parliamentary select committees if they seek legal assistance. The main role of Crown Law is to advise the Government, and the provision of advice to select committees accordingly is rare.
Judith Collins is likely to be judged in the future solely based on that non-partisan advice. Curiously, I trust her to do the advice as Attorney-General with her usual legal due diligence. Quite unlike her previous more political roles like Minister of Police.
In the mean time, I’m going to have a closer look at the members of the select committee…
Interested to hear the select committee process for this proposed law is $4 million. Seems like yet another waste of taxpayers money from the ACT party. They moan and conplain about government wasting money but inflict this cost of taxpayers. Moan about funding lunches in schools but waste $4 million on an unneeded referendum on the treaty of waitangi. On top of this local councils having to fork out milliona of $$ for referrndums on maori wards at a time when rates increases are going through the roof. David Seymour not practising what he preaches.
I really don't think you want Seymour to fast-track this bill through!
Complaining about the costs of a select committee process is absolutely an own-goal.
the whole thing is a waste. scrap it all and save millions. on top of this waste of money he has spent $400k so far for his ministry of bureaucracy. more wasteful spending
You're missing my point.
The select committee process is in Parliament for very good reasons.
The opposition (and members of TS) have been very hot under the collar over fast tracked legislation, with minimal select committee process, being rushed through Parliament. FWIW, I actually agree that all Fast Tracked or under Urgency legislation is a very bad idea (I will make exceptions for times of national emergency)
You do not want to hand the Government a template for not engaging with Select Committees – because it costs money!
Yeah, we do, because it's dead and Seymour's political career is also dead. The quicker both are interned the better. He'll be an irrelevancy after this.
But also, the $4 million is an estimated cost excluding the select committee process. We've had the foreplay, that's just the cost of getting this figurative abortion to conception.
https://www.rnz.co.nz/news/political/527744/extremely-conservative-estimate-suggests-4m-cost-to-progress-treaty-principles-bill
If you think that Seymour's political career is dead, you're indulging in the most wishful of thinking. There is zero evidence that his popularity is dropping in any of the polls.
The NZ Rednecks NRA sponsored groups are loving Seymore’s rhetoric. The AG will support Seymore’s Bill as her forbears were farming on illegally acquired Maori Land in the Waikato. Racism is rife in the COC NACTACTNZF Coalition.
So, your predictions of his career imploding, are wildly off base, then. Based on your own analysis.
That $4 million or whatever the actual figure will be is really a side issue and a distraction almost from the serious damage inflicted on this nation, which is priceless [pun intended].
When fighting neo-liberal free-marketeers you won’t stand a chance in Hell of winning if you fight on their terms and according to their narratives.
might be the case. but I am more than happy to call seymour for his hypocrisy and his money wasting. if he wants to moan about others wasting money, he should walk what he talks. simple really. this waste of money on top of what he is costing councils, millions on his waste of time ministry and his enormously expensive charter schools.
In terms of this specific waste of time and money, I see no point to it at all. if we want a national debate about treaty of waitangi principles then someone other than seymour should lead it. the lens seymour, brash and their ilk view things through is fairly odious, their ideological point of departure is one I do not subscribe to.
A political economy that privileged and continues to privilege those with wealth. One that transferred a signifcant % of the nations wealth and influence to those who already had wealth and influence, predominantly wealthy white males and old/older white males. Brash or Hobsons choice or their acolytes complain about 'maori priviliege' having implemented a system that entrenched and transferred wealth and privilege in the hands of their 1%ers.
So as well as the hypocrisy of Seymours words and deeds about wasting money being incongruent, his politics and the past 40 years reality of neoliberalism causes me to think this proposed law needs to be aborted.
Fine analysis here; I particularly appreciated the links to the RIS and other material. The Bill presents a fine opportunity for the Labour Party to tell us all what it stands for in Treaty matters and race relations generally. However, …
You can almost guarantee she'll stuff it up. She'll likely come up with some bullshit that says treating the indigenous people differently is racist therefore discrimatory and that the bill if enacted will remove such discrimination. That's rubbish of course because the Human Rights Act protects affirmative action measures, but this will not stop Collins. Even Christopher Finlayson some years back felt free to abuse the s 7 provision when he said removing a work-test under the Social Security Act for one group of beneficiary discriminated against that group because they no longer had the advantage of being work-tested when other groups of beneficiary who remained work-tested continued to enjoy that advantage. Totally disingenuous, but right up Collins' alley.
This is all a political trap and we are being gamed – it is so obvious that the 6 month Treaty Bill process timed to end as referendum on Maori wards begins – is a setup. This is all about culture war noise that will divide and distract the electorate from the economic impacts of the governments strangulation of the state and hard-right race for investment and growth.
It's going to be hard not to get sucked into this cesspool, underbelly of NZ society as it gets stirred out of the darker recesses by Seymours big wooden spoon – but we will need to try.
I was going to say much the same thing but you got there first CS.
I might add that National and NZ First have SAID that they will not support the bill past the first reading – but how can you trust them to keep their word?
I wouldn't put it past them to change their minds based on some "eureka" clause they find in the Bill that allows them to break their promise and soothe their consciences at the same time.
It wouldn't be the first time.
I was thinking the same thing.
"We won't support the bill in its current form, we said that, but if that is changed…"
Old trick of shocking people with a dramatised version so they'll accept a watered down one.
Very perceptive Champaign Socialist – thank you. What our self-serving NAct MPs are doing is cynical and very sad – they are reckless wreckers, imho.
This.
2025 is going to be such a stupid and corrosive year for Maori relationships, and it's going to fall firstly on this Bill's hearings and aftermath, and then on the Local Government elections.
At least the 3 Waters consultation was trying to achieve something.
Excellent article lprent – I think though if Luxon wanted to kill it, as he has indicated, he should have killed it instantly and not allowed the 6 month Select Committee.
Luxon is effectively allowing it to get to second reading and allowing ACT and his supporters to drag this out over an extended period for maximum exposure and political opportunism to sell this as good for Kiwis and good for human rights.
Combined with the intentional timing of Maori ward referendums it will allow Hobsons Pledge and their affiliates in Atlas Network and other places to launch a concerted racism campaign and pool their resources to try to ram it through to referendum.
If they fail, they will still have affected and influenced culture – which is the real aim here. Trump didn't happen overnight either – it's all about dividing to conquer IMV.
"If they fail, they will still have affected and influenced culture – which is the real aim here."
We so desparately need to make civics a compulsory school subject.
Pretty much what I thought after reading a couple of comments yesterday parroting Seymour and Brash talking points.
The parrot trolls clearly had no idea about how our government operates. They keep waffling as if it there was a magical written constitution that put Parliament central. Hell the NZ Parliament was just a building name until 1986.
First the unveiling of the bill wording, the reading introduction to parliament and then into SC. A brief focus on public submissions, then recess and return after Waitangi Day and maybe a lot of paper for a Matariki bonfire.
https://archive.li/wMcFW#selection-4745.0-4817.198
What is interesting is the time frame. As I remember the usual parliamentary select committee sitting calendar, it effectively stops operating early in December and doesn't come back until well into February.
Also which select committee? Māori affairs or Justice (heavy with legal opinion) would be logical.
The Justice SC at least has one member from ACT, Todd Stephenson (who is on no less than five SCs).
https://www.parliament.nz/en/mps-and-electorates/members-of-parliament/?PrimaryFilter=Select+committee&SecondaryFilter=
Oh yeah, the in-house lawyer. First term MP. It really hsows the spacity of talent in Act being spread across so many select committees (and other roles as I remember). Yep eight spokesperson roles for Act.
Ummm.. https://en.wikipedia.org/wiki/Todd_Stephenson
A local ex-pat (sounds like most of his worklife has been offshore). And an conscious illiterate…
Another person who doesn't consider conflicts of interest matter when he does it… Endemic to coalition MPs.
The appointment of Stevenson as the ACT Party spokesperson for Arts, Culture and Heritage is indicative of ACT party position on Arts, Culture and Heritage: they shouldn't exist. That Stevenson appears to have been the most qualified having been to a performance of Hamilton says a lot.
Expressions of Arts and Culture should be trivialised wherever possible. Seymour twerking on Dancing with the Stars, and he seems to have taken a liking to Raygun, the part time breaker who dominated the Olympics.
This all fits with their philosophy that the pragmatic should trump the creative every time. It can also be seen in the mission to remove or minimise any support for anything Maori. To them, Maori are not a distinct culture to be nurtured, rather something which to be absorbed into a featureless, homogenous, whiteish New Zealand.
For Seymour, artists, performers, poets, writers are all lefties with a louder, more respected voice and should not be able to access any support from wider society.
Customary rights, 5% of the coast – and no public domain over the foreshore and seabed of the other 95% and a C of C intent on re-writing the OIO rules enabling foreign ownership of coastal land? Seems unprincipled.
https://www.nzherald.co.nz/nz/politics/treaty-principles-bill-three-principles-of-the-bill-agreed-on-by-cabinet/PX2OGQCEPVDARAFOW57G3A2Q5U/
Clearly not true. The government simply cannot pretend they act in the best interests of everyone.
Strictly speaking, it's impossible to act in the best interests of everyone. There are always tradeoffs. If something benefits Group A, but comes at a cost to Group B. Then clearly Group B are disadvantaged.
How is "Group B" disadvantaged by billions in tax relief to landLords (group A)?
Depends on who Group B is. You've defined Group A – how about you complete the job – and then conduct your own analysis….
Group B is hardworking young families who get left behind in renting and home buying practice under policy which encourages investor speculation and house price inflation.
Investor speculation reduces length and security of tenancies because they are flipping for profit all the time. They also maximise borrowing leverage and compete for houses which first homebuyers would ordinarily be contending for.
House price inflation is a core policy for the Nats, it's what keeps the middle and wealthy classes sweet and able to borrow against their house/s for nice cars, boats, baches and holidays.
Thanks Muttonbird for identifying B’s “Group B” and doing the analysis – makes sense to me.
Could you fill in the blanks (“something“, groups A & B) in your general scenario, to provide a real Kiwi example? Hopefully that’s not too much to ask.
You seem to be arguing from a false binary, false equivalence, and zero-sum view.
Try the Robin Hood approach, e.g., redistribute some money from the rich to the poor in which the rich hardly suffer any meaningful material loss (except for hurt to their fragile ego) and the poor greatly benefit. Taking everything from the rich and giving it to the poor would cause genuine disadvantage to the rich. So, Robin Hood acted in the best interest of all with emphasis on ‘best’, weighing the marginal loss of some/a few against the substantial improvement of many/others.
QED
Hooton in January.
The Treaty was about maintaining a balance of power and managing social and economic relations between settlers and tribes. Māori traded having the same duties as British subjects for gaining the same rights, but the Treaty didn’t say anything about French and American settlers or escaped convicts from Australia. It’s not about “all New Zealanders” at all.
Act’s strategy seems to be to offer fake Treaty principles to the public, generate a few hundred thousand supportive online select-committee submissions, hold six months of heated hearings, hope for civil unrest, produce polls showing a majority wishes the Treaty had been written by Mill, and then accuse National of siding with Māori radicals against “mainstream New Zealanders”.
https://archive.li/eOrVe#selection-3621.0-3631.0
Luxon and Seymour's one New Zealand:
https://www.stuff.co.nz/nz-news/350411581/unnamed-road-gets-te-reo-title-despite-residents-objections
Like "Drumduan" is English? Sounds like it is Celtic to me.
The important part of this is that the new unnamed road is a public road, without funding by the developer. So he shouldn't get any say. If he'd helped to put money into the road… But that doesn't appear to have happened despite the obvious benefits to himself.
Similarly it is a new road to connect a residential development. So it hasn't been built for the benefit of the local farmers.
So it is up to the councillors who funded it as part of the infrastructure development of their area of authority to name it. Sounds like they were happy with it.
Yes it is Garlic – meaning "A new farm on a dark ridge" Drumduan School is situated to the east of Inverness on the Firth of Moray. My last few years in education were spent teaching in a similar school here. The best years of my teaching career. My great grand parents on my mothers side only spoke the Garlic – there are now estimated to be only around 50,000 fluent speakers of the language. A language severely under threat of extinction. My daughter is valiantly trying to gain some knowledge, but it is difficult and very guttural. I have a few words "Pushkin ag ithe bricfeasta" – Puss is eating his breakfast.
I can smell the Gaelic on your breath Macro ! Sorry i couldnt help it haha
Interesting , sorry off topic but Ive been interested lately in the positive impact that revival of Celtic language is having contrasted with the revival of te reo. odd?
Yes it is interesting and very much like the revival of te reo . There is now a BBC channel almost exclusively dedicated to the language.
Yes the word "Gaelic" is sounded just like the pungent vegetable in Northern Scotland and in the Hebrides – not so in Ireland – so much for using the voice editor.
Who would trust Judith Collins…???? She of the fudged Police Stats, Kauri Swamp Log debacle and the "invisible crushed cars??? As for Seymour.. he is exactly what Jacinda called him .imo.
They are poor citizens given frightening power by a weak "Leader".
Judith's old Press Secretary had a piece on Stuff yesterday that examines Seymour's folly from a traditional conservative Nat perspective. It's an interesting read, along with the first link, a Herald interview with Duncan Greive from 2021 re her relationship with Collins.
Wilson makes the point that Seymour may have been snookered by the Iwi and Hapu clause in the proposed bill,
Oh, and Janet Wilson doesn't have much time for Mr Luxon, his negotiating ability or perceived motivations.
If that's the case Seymour and co will make sure it doesn't have that effect. And even if it did, it still creates the disaster of relying on legislation for Treaty rights to be activated, a situation that must be avoided.