The ACT Party wants to bring the courts to heel and to reassert the supremacy of parliament. Why is this so controversial?
Public debates and protests over the failed Treaty of Waitangi Principles Bill, introduced at the behest of the ACT Party, represented one of the most divisive political moments in recent years in Aotearoa New Zealand.
When I wrote about that bill at the time, two readers’ straw polls on it were fairly evenly divided, as was the country as a whole.
In late 2024 to early 2025, at the height of this controversy, the ACT Party and its main parliamentary opponent, Te Pāti Māori, both rose in opinion polls. Readers may well recall an impromptu haka that disrupted proceedings in the debating chamber and then went viral globally. Both parties’ poll results have since declined, however.
ACT had won 8.64% of the 2023 election’s party vote, and the noise made over its controversial bill boosted their polling above that level, at times over 10%, and as high as 13%. In more recent polls, in contrast, ACT are most often below their last election result.
In a gloves-off political fight, then, it makes sense for ACT to take back the initiative on the divisive matter of equality before the law, as contrasted with special recognition of indigenous rights and customs. Hence we see ACT’s recent election policy announcement on “one law for all” – a phrase that’s bound to raise hackles on the Left.
But ACT has chosen not to approach this by simply re-litigating their failed Treaty Principles Bill. This time, they have in their sights a number of statutes that they want to amend.
Debate on such matters gets heated, so interested readers are advised to read the ACT policy itself, before reaching conclusions.
With that caveat, here’s my summary. ACT propose to amend the following laws:
Constitution Act 1986
New Zealand Bill of Rights Act 1990
Legislation Act 2019
Senior Courts Act 2016.
Their aim is to confirm fundamental equality before the law, respect for the rule of law and the protection of property. These are basic rights and duties, and some readers may be wondering why they aren’t already crystal clear in existing statute.
It may sound dry and legalistic, but ACT’s policy has important consequences, so a closer look is warranted.
Many New Zealanders probably didn’t know that they have a Constitution Act 1986. All it really does, though, is to confirm pre-existing institutions such as the Head of State and the House of Representatives. Accordingly, it “retired” some older constitutional law, notably the New Zealand Constitution Act 1852. (All of that, by the way, was done without a referendum. In 1986, people were far more interested in the nuclear-free policy.)
The ACT Party policy wants to add three principles to the 1986 Constitution Act:
Parliament is sovereign (i.e., it has supreme law-making powers).
The rule of law is fundamental.
All New Zealanders are equal before the law.
These principles are nothing new, and not at all radical. The Senior Courts Act 2016 already states: “Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament”. ACT’s policy would add a definition of “rule of law” to that Act. Furthermore, it says:
“We will amend the Legislation Act 2019 to ensure statutes mean what Parliament enacted, read in the context of the time they were passed, and so that judge-made presumptions can resolve ambiguity but cannot override clear statutory language.”
A particular concern of the ACT Party is the expanding use by courts of tikanga (indigenous customary law). They want to make it clear when tikanga may be used by courts and when it may not be used.
Opponents will argue that parliament has no right to do that, and they tend to put their faith in the courts instead.
Underlying ACT’s policy, then, is a belief that the courts have been too activist when it comes to tikanga and Treaty-related rights, going beyond what parliaments have intended. Parliaments are elected assemblies accountable to the people, and they hold supreme power to make law on behalf of the people. The courts apply the law, and they should only make or extend law, by precedent, when there’s a gap or anomaly in what’s written.
ACT held that parliament was perfectly within its rights to pass legislation that would define or clarify “the principles of the Treaty of Waitangi” and then put that to a referendum, even if that may override some past judicial opinions and decisions. After all, it was parliament that incorporated the phrase “principles of the Treaty of Waitangi” into law in the first place, in 1975, but without clearly defining it.
Those who strongly objected to the ACT Party’s bill often asserted that the courts were already doing the job of interpreting and applying the Treaty’s “principles” – assuming that it had a status as a higher law in itself – and that parliament should therefore stay out of it. That was an inversion of the usual constitutional convention that courts defer to parliament.
Since the 1688 Bill of Rights, which is still recognised in New Zealand law, the understanding has been that the courts don’t intervene in or try to overrule the elected legislature.
In addition, the ACT Party policy proposes to add to the 1990 NZ Bill of Rights Act a clause to protect property rights.
In a way, ACT’s policy is asking voters which body should have the final say on what the law really means: the House of Representatives or the Supreme Court. ACT’s answer is the House, not the unelected judges. What’s yours?
Many New Zealanders won’t like these proposals, if only because they come from the ACT Party – whom they detest – but also because the “one law for all” principle undercuts those interpretations of the Treaty/te Tiriti that recognise two forms of government, both of which have very long traditions.
What’s more, some may even want to see an end to the established colonial Westminster system on which the ACT Party bases its policy. So, if anyone seriously wants to radically change the constitution, then by all means they should write up a proposal and see if a majority will support it. It’s been tried before.
Politics Happens does its best to let readers make up their own minds, after they’ve considered facts, context and complexity, rather than be swayed by slogans and memes.
Conclusion
The ACT Party’s Treaty Principles Bill threw the country into an emotionally charged debate. ACT benefited politically by leading that debate, however, and they want to do that again. This time, so far, they’re taking a more nuanced approach, attacking from a different angle. But this new “one law for all” proposal, being rather legalistic, probably won’t have the impact that the Treaty Principles Bill had. Are they keeping a “Treaty Principles 2.0” in reserve as extra ammunition for the election debates, then?
In as much as this kind of policy may boost support for ACT, it’s likely to be “stolen” mainly from their other two coalition partners. It’s unlikely to improve the chances of Luxon & Co having a second term in office. Many people just don’t like the socially divisive debates that ensue. ACT ought to be wary of helping to bring the whole government down!
Here are other pieces I wrote about the Treaty during 2024:
