‘Some common law rights presumably lie so deep that even Parliament cannot overturn them’ – Taylor v NZ Poultry Board  1 NZLR 394,398 (Cooke J)
A week ago, criminal barrister Lucy Rogers was arrested and hand-cuffed by police for holding up a hand-lettered sign. The words on the sign read, “selective condemnation of genocide is evil.”
Rogers was not obstructing the footpath or in any other way inconveniencing passers-by. She was arrested on a breach of the peace charge because her sign (which the police officers destroyed) might have offended the angry throng of proPalestinian protesters marching down Auckland’s Queen Street, just a few metres from where Rogers was standing.
Her arrest took place more than a month after New Zealanders voted to change their government. One of the most powerful driving forces behind that change was the widespread apprehension that New Zealanders’ civil rights were under attack – their freedom of expression, in particular. And yet, police constables still felt free to abrogate the rights of an officer of the court for peacefully communicating her political beliefs to her fellow citizens.
They did this because they feared the protest marchers would react violently to the sign she was holding up. Put another way, the police were enforcing the “heckler’s veto”.
This story bears retelling for what it reveals about the enormous challenges the incoming National-Act-NZ First coalition government is likely to face as it attempts to roll-back the changes of the past six years. The first instinct of those police officers was to protect the rights of the citizens making the most noise – to the point of arresting a woman for, essentially, exercising her Bill of Rights Act-guaranteed freedom of expression.
The constables had learned nothing from the assault on Posey Parker and her followers in Albert Park back in March. They had absorbed nothing from the fierce constitutional debates that have raged across social media in the months since. And they clearly cared nothing for the electorate’s judgment on those politicians and parties who insisted on construing free speech as hate speech. They were still protecting the angry and the strong. Still taking sides. Still ignoring the law.
This petty failure to defend the rights of a single citizen will pale into insignificance, however, when the new government begins the long-overdue process of dismantling the ramshackle judicial edifice that has grown up around Crown-Māori relations over the 36 years since Lord Cooke of Thorndon, then an activist judge of the Court of Appeal, attempted to do what the New Zealand legislature had been too pusillanimous to do – set forth clearly the principles of the Treaty of Waitangi (New Zealand Māori Council v Attorney-General  1 NZLR 641).
That the legislature’s pusillanimity may have been intentional should not be discounted. It was, after all, the author of the state-owned enterprises legislation which Justice Cooke was interpreting, the Rt Hon Sir Geoffrey Palmer, who informed a symposium on the Treaty of Waitangi and the constitution, held on 12 June 2013, that “insulation from the ravages of extreme opinion has been achieved”.
The “extreme opinion” alluded to was presumably referencing treaty-sceptical politicians and the citizens who elect them. Certainly it is difficult to believe that a former law professor could have included a reference to “the principles of the Treaty of Waitangi” in an Act of Parliament entirely unaware that he was handing over the job of interpreting the meaning of those principles to persons the public could not remove from office.
If another law professor, Otago’s Andrew Geddis, is to be believed, then the job begun by Sir Geoffrey is now complete. Writing for The Spinoff website, Geddis pours cold water on the new government’s pledge to properly define, or remove completely, all references to the principles of the treaty in legislation.
“That sounds grand and overarching,” says Geddis, “but how will it sit with Supreme Court dicta stating that the way treaty principle provisions are worded in legislation doesn’t really matter … and that you probably don’t even need them anyway, given how much te Tiriti is a part of our constitutional fabric.”
In the ears of the majority of New Zealanders who voted for the treaty policies of National, Act and NZ First, that “Supreme Court dicta” may well sound like “Supreme Court dictatorship”, upping the pressure on the government to reaffirm the doctrine of parliamentary sovereignty and remind the Supreme Court that (its name notwithstanding) it is the House of Representatives – elected by the New Zealand people – that remains the highest court in the land.
Some legal academics contend that the House should decline to exert its power over the judiciary. Khylee Quince, Associate Professor and Dean of Law at AUT, argues that politicians risk upsetting the “delicate balance” separating the legislature from the judiciary if they insist upon their sovereignty. “Strictly speaking, of course, Parliament can do what it likes, but the delicate balance of separation of powers is protected by judicial independence from unnecessary parliamentary incursion into its decision-making function.”
Everything would appear to turn on that word “unnecessary”. A judiciary that has spent the past 36 years arrogating to itself the power to not only define the meaning of New Zealand’s informal constitution (which, it insists, includes the Treaty of Waitangi) but also to keep it safe from “the ravages of extreme opinion”, is about to discover the actual limits of “judicial independence” as the House mounts what National, Act and NZ First, along with the electors who installed them in the Beehive, believe to be a very necessary – and long overdue – incursion into the territory of judges who have become lawmakers unto themselves.
Figuratively, and some are now predicting literally, this restoration of the balance between judges and politicians promises to be a bloody affair because the judiciary does not stand alone in its battle to protect the relationship it has so painstakingly crafted between the Crown and Māori.
Not only does it have academia, the upper echelons of the public service and the mainstream news media to defend its arrogated powers, but it can also count on a fifth column of Opposition MPs to carry the fight into the House of Representatives itself.
All of which points to what has always lain at the heart of the so-called “culture wars” – the unwavering belief of the highlyeducated and professionally credentialled that if the democratic process delivers power into the hands of the ignorant and the bigoted, then it has shown itself to be in urgent need of substantive modification. That “deplorables” could end up in charge is simply unacceptable to a professional-managerial class that has, over the past 40 years, turned itself into the “officer class” of the neoliberal state.
That word “officer” brings us right back to where we started: to the glass and steel canyon of Queen Street reverberating with the angry cries of thousands of protesters. Not, this time, in support of the “decolonisation” of Palestine, but demanding the radical decolonisation of Aotearoa: right here, right now.
This time it’s Rangatahi Māori, supported by Rangatahi Pakeha, unequivocally rejecting the right of a House of Representatives dominated by National, Act and NZ First MPs to define the principles of Te Tiriti.
In this cause they are supported by Green and Te Pāti Māori MPs, “progressive” law professors, senior public servants, mainstream journalists and maybe, just maybe, the justices of the Supreme Court of New Zealand.
Now, ask yourself: on whose side will the police (and, in extremis, the NZ Defence Force) stand? Will they defend the democratically-elected government of New Zealand or will they defend the side making the most noise?
Better still, ask Lucy Rogers. ■
Chris Trotter has been a political commentator for more than 30 years. He is the author of the Bowalley Road blog ■