Parker David: Supreme Court Bill — Third Reading 
Parker David: Supreme Court Bill — Third Reading 
[Volume:612;Page:9117] 
DAVID PARKER (Labour—Otago) 
: 
 The last speaker from National demeaned herself. She said that various Labour members were hiding behind the petticoats of Helen Clark and Margaret Wilson. That was meant as an insult. I reject those misogynist comments. Gender is not relevant to good leadership. I am certainly proud to serve women leaders such as Helen Clark and Margaret Wilson. 
I want to focus on a very important issue—that of parliamentary sovereignty. The move from the London-based Privy Council to a Supreme Court based in New Zealand is evolutionary not revolutionary. The small list of countries outside the United Kingdom still using the Privy Council speaks volumes. Those that have already left include Australia Ireland Canada and Singapore—without any referendum! Those that have not yet signalled their intention to leave are the likes of the Bahamas Brunei Kiribati Mauritius and Tuvalu. We can argue about whether the move from the Privy Council should have happened 7 years ago as then proposed by National or should happen in a few years hence as others propose but the point is that the evolution of our highest court away from the Privy Council to a New Zealand - based Supreme Court is inevitable. 
It does though focus the mind on constitutional issues and my contribution to the debate will be to focus on the importance of protecting the sovereignty of this Parliament to pass laws on all issues including treaty issues. New Zealand has a single-tier Parliament. Our unicameral Parliament is more like a camel than a dromedary. We have no equivalent of the Australian or US Senates or the UK House of Lords. We have one hump to get over to pass legislation not two. As a consequence our Parliament is able to enact new legislation relatively quickly. This does have advantages. New Zealand can and does take important decisions that might be avoided for purely political reasons in some other countries. 
We do have some protections. Our select committee procedures are more fulsome than most. We have an MMP Parliament and coalitions do tend to moderate policies. But perhaps the most important safeguard New Zealand has is the ability to vote in another Government that has the legal right to enact new legislation that can overrule the old in any area of law—and I mean any. 
 The importance of parliamentary sovereignty is hard to overstate and in practice at the heart of parliamentary sovereignty is the relationship between Parliament and the courts. I am a lawyer. I respect legal processes our courts and our judges. Our judges are competent hard-working and free of political bias. But I also recognise their limitations. My comments today are not an attack on the New Zealand courts or on any particular judge. But this is an appropriate time for Parliament to remind the courts of the limits of their role. It is proper that the courts critically assess whether decisions made by Ministers or Government officials are within their legal authority. When the courts find that Ministers or officials have been acting ultra vires they strike down their decisions. We in Parliament respect their right—indeed their duty—to do so. The executive abides by those decisions. 
I also accept that one of the strengths of our common law system is its ability to evolve. But I am concerned when judicial activism goes too far and amounts to lawmaking which should be left to Parliament. One example in recent decades was the imposition of liability in negligence upon local authorities for inspections by their building inspectors. Although this started with the English courts its adoption by our Court of Appeal was overenthusiastic. Interestingly that excess was left unchecked by the Privy Council in the  
Invercargill City Council 
 v  
Hamlin 
 case even after the English tide had turned back. The subsequent retreat by New Zealand councils from meaningful oversight of building projects to limited inspections in order to limit their liability and the divergence of New Zealand law from UK law all flow from that judicial activism. I for one believe that some of the problems we have had with leaky buildings have their roots in those well-intended but misguided decisions. I thought the activism in the building cases was perhaps a high-water mark for our courts. Our courts have traditionally taken special care not to make new law in politically controversial areas. The vast majority of our judges agree that this is not their role; it is the preserve of Parliament. But just as members of this Parliament err so too do judges on occasions. 
A recent court decision which may be an example is the foreshore and seabed decision. The five judgments in that case are all intelligent well-reasoned decisions given after serious deliberation. But for the court to arrive at its decision it was required to overrule a longstanding part of our common law. It had to overrule the 50-year-old Court of Appeal decision in the Ninety Mile Beach case and a line of prior cases. In doing so it unleashed the highly charged and intrinsically political furore that has since ensued. I reinforce that I do not suggest any bias on the parts of members of the Court of Appeal as another member has but I for one am not sure that the Court of Appeal did itself our courts system or our nation any favours in that decision. 
The consequences of the foreshore and seabed decision are being responsibly dealt with by this Government. Remedial legislation is going to be required and will be introduced. But members should reflect on this: this is possible only because Parliament has sovereignty over this issue. That sovereignty offers our country huge protection. If the nation believes we have it wrong it elects a new Parliament. The new Parliament which will in itself be sovereign can pass new legislation to change the law. That brings me to my main point. I say to our courts and in particular to our future Supreme Court that they should not try to fetter the sovereignty of Parliament by overturning the decision in the te Heuheu Tukino case. To do so would be to usurp Parliament’s sovereignty in respect of treaty issues. The present constitutional status of the treaty in New Zealand has not evolved significantly beyond the principle laid down by the Privy Council in 1941 in the te Heuheu Tukino case. The treaty has the force that Parliament gives to it by statute. Parliament has given it more force in the last decade but the important underlying constitutional principle remains unchanged. 
That has been relatively recently reinforced in the 1992 Court of Appeal decision in the Maori Council case which stated: “Treaty rights cannot be enforced in the courts except in so far as they have been given recognition by statute.” In the High Court in the same case Justice McGechan said something similar and went on to say: “Lest however this seem intellectually lazy I record a view that matters of such fundamental constitutional importance with serious implications should be decided only by legislation.” 
So the Supreme Court will inherit the Privy Council’s right to overrule or uphold the Privy Council decision. If the Supreme Court were so unwise as to try to usurp Parliament vis-à-vis the treaty then the sovereignty of New Zealand’s Parliament would be fettered. This would be outrageous and I do not think it will happen. For over 150 years New Zealand’s Parliament has exercised sovereignty in respect of treaty issues and over the last two decades our sovereign Parliament while it has through statute given greater effect to the treaty has not conceded and will not concede jurisdiction to the courts. I say to the court that it should not play with fire but should leave lawmaking including laws relating to the treaty to Parliament. 
This Parliament’s concern to emphasise and preserve sovereignty is an important reason behind the select committee’s addition of the new clause 3 “Purpose” to the bill. That clause records in subclause (2): “Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament.” That new clause has the support of this House. I am confident that the Supreme Court will not be politicised when it commences. The risk of it being politicised in the future is remote and depends completely on the Supreme Court and whether it politicises itself by trying to usurp our sovereignty. 
Mr SPEAKER 
: I call Russell Fairbrother.