Treaty ill-suits Bill of Rights

Press, 13 August 1986, Page 20

Treaty ill-suits Bill of Rights

By PHILIP JOSEPH, Senior Lecturer in Law at the University of Canterbury. This article examines the judicial approach to interpretation of fundamental rights and freedoms and questions the inclusion of the Treaty of Waitangi in the proposed Bill of Rights. The first in the series of two articles by Mr Joseph on the proposed Bill of Rights was printed yesterday.

The Deputy Prime Minister, Mr Palmer, says he could not conceive of a New Zealand Bill of Rights that did not entrench the Treaty of Waitangi. The Treaty is the mainspring of New Zealand’s political mythology, yet its inclusion in a Bill of Rights would create insoluable problems. That Governments have been known to legislate for the impossible begs how judges could interpret the Treaty as fundamental law. Consider the judges’ role under a New Zealand Bill of Rights. The draft Bill of Rights contains two aids to the interpretation and application of the bill. The first codifies the almost universal practice of courts applying Bills of Rights to first attempt to find an interpretation of a statute which allows the statute to be upheld.

Article 23 of the draft bill reads: "The interpretation of an enactment that will result in the meaning of the enactment being consistent with this Bill of Rights shall be preferred to any other interpretation.”

The second aid is contained in Article 3, which reads: “The rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This embodies the principle that individual rights and freedoms are not absolute, such that not all statutory limitations on the rights and freedoms guaranteed in a Bill of Rights would be subject to judicial invalidation. Article 23 would oblige courts to interpret a statute so as to avoid any abrogation of the rights and freedoms guaranteed. If the Bill of Rights and the statute in question could be reconciled thus, then Article 3 would be superfluous — there would be no need to invoke it, there would be no legislative “limitations” to be saved.

However, if a statute on its plain wording could not be reconciled, then Article 3 would require the party seeking to rely on the statutory limitation (most often the Government) to prove that the limitation was “reasonable,” "prescribed by law,” and was “demonstrably justifiable in a free and democratic society.” Beyond these specific interpretive aids, however, judges applying a Bill of Rights must perform a “creative and political” role guided by their view of the public interest. During the infancy of the American Bill of Rights, Chief Justice Marshall observed that a Bill of Rights “is intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” Hence the meta-, phor used by the Judicial Committee of the Privy Council, that a Bill of Rights is like “a living tree, capable of growth and expansion.” This points to the need for Bills of Rights to evolve through

changing judicial interpretations. To this end, many have adopted the words of Lord Wilberforce, a British law lord, that what is called for is “a generous interpretation of fundamental rights and freedoms avoiding the austerity of tabulated legalism." While this provides a general blueprint for interpretation, it would only marginally assist judges applying a New Zealand Bill of Rights. How specifically would it assist courts faced with a policy choice between an impugned statute and the draft Bill of Rights? A "generous” interpretation of fundamental rights would not relieve courts of the question whether a legislative restriction was “reasonable” and "demonstrably justifiable in a free and democratic society.” Another British law lord, Lord Diplock, has stated that Bills of Rights are to be given a “purposive construction.” This would oblige courts to seek out the purpose of fundamental rights and freedoms. But of what assistance- is this when one considers that a guarantee of free speech is exactly that: a guarantee of free speech? That is its purpose, and to seek it out would scarcely assist our courts to develop a “higher law” jurisprudence. It there is an ascertainable set of coherent, methodological principles for interpreting Bills of Rights, it seems it has yet to be discovered. Several minor aids to interpretation can be extracted from the 30 or more Privy Council decisions on Commonwealth Bills of Rights, but these cannot substitute for the creative and political role of judges in seeking acceptable compromises between fundamental and ordinary law. Perhaps the most helpful aid to interpreting a New Zealand Bill of Rights would be the welldeveloped understandings that currently guide our courts in drawing the boundaries of traditional democratic freedoms. Though ultimately bound by Parliament’s word, the courts do retain through their interpretive techniques descretions and policy choices as to how they balance the interests of the in-, dividual and the State.

In other words, oiir courts recognise not only Parliament’s supremacy but also,the fact that New Zealand is a democratic society based on the rule of law and the worth of Individual human personality. Yet the courts would be deprived of even this guidance in interpreting the Treaty of Waitangi as fundamental law. .. - Article ,4 of the draft bill declares the Treaty to be “always speaking,” giving its “higher law” status. Article 4 recognises and affirms the rights of the Maori people under the Treaty which “shall be applied to circumstances as they arise so that effect may be given to its spirit and true intent” Currently the Treaty is not law, although it is recited in the Schedules to two statutes, the Treaty of Waitangi

Act 1975 and the Waitangi Day Act 1976.

The Treaty was promulgated and signed on behalf of the Crown by Captain William Hobson under the Commission of Queen Victoria. The Maori chiefs ceded to the Crown “absolutely and without reservation all the rights and powers of Sovereignty” over their lands in return for the rights and privileges of British subjects and the guarantee of exclusive and undisturbed possession of their lands, forests and fisheries. The Crown acquired exclusive right of acquisition of Maori land.

The Government’s White Paper, “A Bill of Rights for New Zealand,” states that the “application of the Treaty’s principles must be considered in the light of the whole ambience — social, economic and so on.” The White Paper quotes what. the Waitangi Tribunal said in its MotunuP report- namely that the "wairua or spirit (of the Treaty) is something more than a literal construction of. the actual words used can provide. The spirit of the Treaty transcends the sum total of its component. written words and puts narrow or literal Interpretations out of place.” The White : Paper accepts that the Treaty does not lend itself to “a literal dissection of its provisions.”

A Bill of Rights must be judicially enforced, and this begs whether the Treaty is appropriate for judicial enforcement The

White Paper acknowledges the "inherently impossible task” of defining precisely the rights of the Maori under the Treaty. Therefore, to include the Treaty as fundamental law arguably amounts to an abdication of political responsibility to the courts to perform an “inherently impossible _task” — to make specific arid certain an historical document having a “wairua or spirit” but no ascertainable literal meaning. The courts would no doubt relax the rules of evidence under a Bill of Rights to receive expert testimony bearing on the Treaty’s principles, but ultimately they are constrained to eke out and give effect to the meaning of words of enactment The draft bill would enable the courts to seek advisory opinions from the Waitangi Tribunal, yet the final responsibility would remain with the courts.

Inclusion of the Treaty preys on the confusion over the objectives' of a Bill of Rights on the one hand; and a written constitution on the other. Unlike a written constitution, a Bill of Rights is not an expression of national identity or social and State policy: it is an apparatus solely for the protection of individual freedoms.

Observe the traditional rights and freedoms included in the draft bill: namely, freedom of thought conscience and religion; freedom of expression; freedom of peaceful assembly, ‘association-

and movement, and the criminal law “due process” rights on arrest, not to be arbitrarily detained or unreasonably searched or seized or subjected to torture or cruel or degrading punishment. These are rights attaching to individual human personality. The Treaty of Waitangi, by contrast, represents a pact between two peoples: Europeans and Maori. It is concerned with collective rights, responsibilities and privileges. If New Zealand desires to give fundamental law status to the Treaty as an expression of national identity, then its place is in a written constitution. It is too much to expect a Bill of Rights to unity a people. ’ Ironically, Mr Palmer has advocated the exclusion of wider social and cultural rights as being inappropriate for a Bill of Rights. Yet . the Treaty is a collective of residual social, and cultural rights .embraced in the - Maori phrase, ratou taonga katoa (things prized by them). This casts the Treaty In a curious light given the added explanation in the White Paper for excluding social, cultural, and economic rights. Mr Palmer has said that the bill before the Select Committee is not cast in concrete. It is hoped that the obstacles in interpreting the Treaty will weigh with the Select Committee, as indeed the fact that a Bill of Rights is no magic wand J:o cure latent and manifest conflict arising from cultural differences.