Parker DavidHon DAVID PARKER (Labour): I want to continue this discussion in respect of the clause that should preserve in the Judicature Modernisation Bill the provision that comes from the Supreme Court Act 2003 which emphasises that nothing in that Act or indeed this Act affects New Zealand's continuing commitment to the rule of law and the sovereignty of Parliament. I want to explain the background to the original decision in 2003 and take up some of the points that were raised by Jacinda Ardern.In 2003 when the Supreme Court was brought into being it was fresh after the Court of Appeal decision in the foreshore and seabed case. Considerable disquiet was felt within this Parliament as to that decision going too far—not in the finding that there were unexpunged or unextinguished common law interests to be argued for in the foreshore and seabed case but the finding that the Māori Land Court had jurisdiction to consider them. The Māori Land Court being a court of statutory jurisdiction having no inherent jurisdiction was found by the Court of Appeal in that case to have jurisdiction over the foreshore and seabed despite the fact that nowhere in that Act which is called Te Ture Whenua Māori Act and in its English translation is called the Māori Land Act was there any reference to anything that was wet. The Court of Appeal could have gone back to the Hansard at the time of the passing of that legislation and it would have found no reference to any area of foreshore or seabed.Chris Bishop: That's not right.Hon DAVID PARKER: It would have found only reference to dry land in the debates. Therefore there was surprise on both sides of the House Mr Bishop that the New Zealand Court of Appeal had found that there was jurisdiction in the Māori Land Court to determine the claims to unextinguished interests in the foreshore and seabed. So when the Supreme Court legislation was passed at the same time Parliament thought fit to remind the Supreme Court that was being created that this Parliament remains sovereign in respect of legislation.Chris Bishop: Ha ha!Hon DAVID PARKER: Mr Bishop you might laugh but that is the reason why this was put in. I was part of those discussions within the Labour caucus and your colleagues would have been part of those discussions as well.There is a proper debate to be had as to whether the courts should have the right to overrule primary legislation in New Zealand. That is a proper constitutional debate to have. I am with Justice McGrath there; I am not with the Rt Hon Sir Geoffrey Palmer. I do not think that we should hand over to the courts the power to strike down primary legislation. I think the experience in other parts of the world where that occurs whether it is the United States or some other jurisdictions shows that you actually get to wrong outcomes. There are essentially complex political decisions that lie under those sorts of headline issues in constitutions like freedom of expression where you go one step under it and you have got to consider whether it is fair to have campaign financing laws. Some jurisdictions overseas including in Australia and the United States have struck down laws similar to those that we have in New Zealand to control big money in elections as being an unfair incursion on the freedom of speech.I am not one of those people who think we should confer jurisdiction on the courts to do that. I want to make sure they do not think they have got the right to take it. Having said that I always acknowledge that there is a limit to the sovereignty of Parliament which goes back to the Bill of Rights 1688 when there was a division of powers between the courts and Parliament. There are some things that lie in there or have their roots in the Magna Carta that are so fundamental that I do not think Parliament has the sovereignty to overrule. I think that there is this sort of grey area arising from those ancient documents which were referred to in the Privileges Committee when we were considering the changes to defamation laws arising out of the Erin Leigh case against the Attorney-General in respect of something that occurred in the last Government. We actually put that in our select committee report—that there is at least in the view of some members including me a limit to the sovereignty of Parliament that arises from those ancient documents not from the granting of some new jurisdiction to the courts later. That is a very important point of principle.I like the greyness of those boundaries at one level. If we had an egregious New Zealand Government that set up concentration camps and started to torture people I do not think you would necessarily have to rely on international conventions—you might be able to. You could also rely upon those ancient laws to strike that down but that is where I think the limits to the sovereignty of this—