KCs and the Courtroom Bands

Constitutional "law" should be safe, legal and rare

The Supreme Court gathering to deliberate on whether the latest government budget is allowed under the Treaty of Waitangi.

Forty-two senior lawyers, known as King’s Counsel, have written to the government with a scathing critique of the Treaty Principles Bill. Their letter raises a number of concerns with which I am in full agreement. However, they also make a statement about Parliament’s law-making authority that contains a fundamental and egregious error.

This is not something I say lightly because these are very senior and respected members of the legal profession. They have likely forgotten more law, within their areas of expertise, than I will ever know. But on the topic of Parliament’s authority, there can be no questions.

They assert that it is “uncertain” whether Parliament can legislate in the way the bill proposes, arguing that it is “not for the government of the day to retrospectively and unilaterally reinterpret constitutional treaties.”

We need to push back hard against this.

The Role of Parliament’s Legislative Authority

New Zealand’s Parliament has absolute legislative authority. This principle is fundamental to our constitutional framework and has been repeatedly affirmed by our courts whenever challenged. Here’s what the Court of Appeal said back in 2004:

Arguments against Parliament’s authority to make law affecting anyone in New Zealand cannot succeed in our courts currently. Parliament’s power to legislate needs to extend to all matters within these islands. No treaty or statute is beyond its reach.

So why would such eminent members of the legal profession make this erroneous claim? Well, there has been a long-standing desire within parts of the legal profession and associated academic fields in which judicial activism and scepticism of parliamentary sovereignty have been quietly cultivated for decades.