Proposals to make treaty supreme law

Press, 14 February 1986, Page 26

Proposals to make treaty supreme law

PA Auckland Proposals to make the Treaty of Waitangi supreme law were outlined to a Parliamentary select committee on the proposed Bill of Rights. The idea was put forward by an Auckland University senior law lecturer, Dr Jerome Elkind, and a Nelson barrister and solicitor, Mr Anthony Shaw, in a joint submission to the Justice and Law Reform Committee. Their proposals were included in an alternative Bill of Rights they had drawn up. Dr Elkind said the aim of the alternative bill was not to oppose a Bill of Rights. The authors wanted to draw attention to weaknesses in the Government’s draft bill in the hope that a stronger, better, more firmly entrenched Bill of Rights would be enacted. Their suggestion that the Treaty of Waitangi be

recognised as supreme law was criticised by a committee member, Mr Paul East (Nat., Rotorua). He said that if the treaty was implemented he would be unable to say what rights would be given to some people and what rights would be taken from others. Fishermen, for example, could lose the right to fish in New Zealand waters. “By turning the Treaty of Waitangi into supreme law you may deny the livelihood of people in New Zealand which could have an enormous effect on our economic future and could also create tension between the races,” said Mr East. He was also critical of the suggestion that the Waitangi Tribunal be a supreme decision-maker, with no right of appeal against it.

Mr Shaw said the tribunal should have the power to strike down any

laws contrary to the Treaty of Waitangi. He believed that if there was a political will to implement the treaty the consequences would have to be faced. Mr East said that giving the Waitangi Tribunal' such sweeping powers would be a “tremendous risk.” It would be wiser to conduct a detailed study on the proposals.

Dr Elkind said that while he believed a Bill of Rights was an “important constitutional innovation,” the Government draft had major defects. The authors said they were concerned that the new bill complied with the International Covenant on Civil and Political Rights, which was legally binding on New Zealand.

The 51-clause alternative bill was more than twice the length of the Government’s draft. The Task Force on Revision of Mental Health Legislation pledged its support for a Bill of Rights which would give greater judicial protection for the mentally disabled. Amnesty International called for a clause to be added to the bill to ensure the abolition of the death penalty.