22 Comments

Outstanding David. The mature reasoning of an educated mind. My question is why has your submission not been reported in the media? I would have thought this is far more rational than the ranting of a one-time cabinet minister whose career ended in ignominy after a car crash in Wellington.

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Peter

You may recall that I too had my moments of controversy as a result of comments on and off the Bench but because many journos of these days weren't born when that happened or have the attention span of a gnat, they get not a mention.

But the former Minister's controversy is much more recent (and scandalous).

Good clickbait stuff as Graeme Adams would put it.

Reason these days does not triumph over rhetoric

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This is excellent David. Pure common sense and reason.

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Common sense amongst the sea of ill-considered, irrational nonsense currently circling the bill.

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Thanks

These are my opening remarks to the Committee.

Check out the penultimate para

Introductory Remarks

My name is David John Harvey. I am a retired District Court Judge and currently hold a practising certificate as a barrister. I hold LLB (Auckland), MJur (Waikato) and PhD Degrees (Auckland).

I support this Bill and believe that it should proceed. In my view a matter of such importance should properly be placed before the electorate by way of a referendum.

Although I am a lawyer I neither endorse nor support the submissions of the New Zealand Law Society or the New Zealand Bar Association.

My submission focusses upon Clause 6 of the Bill although it is critical to note that the Bill does not rewrite or amend the Treaty of Waitangi. That is made clear in Clause 9.

The Committee will be aware of the principles contained in Clause 6.

Principle 1 confirms the Governmental structure of New Zealand in terms of what could be called a liberal democracy.

Principle 2 secures property rights and by implication incorporates the concept of rangatiratanga because that was a right that Maori enjoyed when the Treaty was signed.

Principle 3 provides for equality before the law and the equal enjoyment of fundamental human right. The entablature of the US Supreme Court has the phrase “equal justice before the law”. That is what Principle 3 is all about.

The Courts, Government and the Waitangi Tribunal have developed a number of principles which, it is argued, will be excluded by the Bill. I argue to the contrary.

If we look at Principle 1 we have the power to govern NZ in the best interests of everyone. This incorporates the principle that the Crown has the right to govern.

Edmund Burke considered that society is an enterprise that promotes the interests of all parties, and that partnership depends on respecting those interests. The Government is a partnership between the people and the State.

Thus the principle of “partnership” is necessarily preserved.

As part of the partnership principle are a number of collateral elements.

The active protection principle is inextricably tied up with the partnership principle. Given that Maori are a constituent part of “everyone” the active protection principle ensures the protection of their interests.

Implicit in any partnership is the principle of good faith dealing. If a government excludes good faith it loses legitimacy and will fail.

When there is a break down in a partnership relationship and wrongful acts are done by one partner to another there is a right to recompense and adjustment. Thus that principle is present.

The recompense principle is also recognized and given effect in Principle 2 in the Bill.

Thus the existing principles of partnership, active protection, equity and fair dealing and remedies for wrongs are included in Principles 1 and 2 of the Bill.

I have approached this problem in the way that I have, in an effort to dial down the rhetoric and emphasise reason.

If I can be of assistance I am at your disposal.

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Retaining the partnership principle creates a problem unless it is defined precisely. The interpretation that it gives equal status to Maori and Queen Victoria and her heirs is wrong. Perhaps better to replace it with a word which just means that there are two parties to the Treaty.

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Agree. I don't like the term 'partnership' anywhere near the Treaty as it quickly is turned into more than it was ever supposed to be. 'Akin', for example, only used in commentary notes I am told, is now 'interpreted' as a requirement to consult and share all the power & decision making with one group of people in society (or a narrow echelon of the elites if we are being honest...) who were never promised anything like that under the actual Treaty.

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I used the language that CookeP used in the Lands Case. It is well understood. Not for a simple soul such as I to muddy the waters with a new concept.

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Superb, powerful submissions, David. Bravo.

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Sounds reasonable to me. I think a lot of tge furore has arisen because of ‘misinformation’ that it would somehow undo the treaty, which of course it wouldn’t.

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Wow! That is a magnificent submission! Brilliantly crafted and insightful! It should be standard reading for all law students and interested lawyers and judges. (And such bureaucrats or politicians as may have the intellect to grasp it.)

Of course, neither ‘side’ will love you for it. But I don’t think you care too much about that…

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Nope 😄

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Will you please tweak it into an opinion piece for (say) Capital Letter? I’m still pondering it, hours after I read it. Burke is fundamental; and that you managed to synthesise the court’s ‘principles’ with the Bill’s ‘principles’ prima facie makes sense constitutionally. I’d like to see responses from Messrs Judd and Finlayson.

I had hoped that the select committee process would build some bridges and improve mutual understanding. It now seems unlikely.

It also seems unlikely that the committee will accord your submission the respect and attention that it merits.

Time will tell.

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In response to your earlier post I thought of saying “frankly my dear I don’t give a damn” but another guy with a moustache got in first many years ago.

Seriously, the feedback I have been getting over the last few days - Trotter, Mike Hosking and a few lawyers - certainly gives some heft to your Capital Letter suggestion. I will give it a ponder overnight.

I have a bit of a workload at the moment what with the Law Commission Hate Crime paper and a casenote on a Harmful Digital Communications matter but that said I work best when the pressure is on

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Paste it into ChatGPT with instructions to convert it from a parliamentary submission to an opinion article for a legally-trained readership. It might surprise you!

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Thanks Cheryl

Interesting approach but not one to which I can in conscience subscribe - well not for publication anyway. I might try it as an experiment. I have given Law News first option although I see you do copy for Capital Letter who will be offered the piece if Law News doesn’t want it. My inclination is to publish the submission as a submission. That way the reasoning path is clear and any debate references the primary document rather than a rewrite.

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Interesting quibble by you. I used ChatGPT 4.o to rework the first draft of my Dobbie review. (Note -I had written the first draft myself. I didn’t let ChatGPT loose on Dobbie itself!) It improved my draft significantly and v

instantly. Then I fine-tuned it. (Next time I’ll remember to tell it to use NZ/UK spelling esp s instead of z.)

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Cheryl

Experiment done and very successful.

I will keep it in mind for future writing.

Perhaps I could use it for an oped for the Herald if they had the guts to print it.

Thanks for the suggestion

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Ok. I am going to do the experiment and see what happens. Maybe it can help when expression becomes difficult or convoluted. Have you tried AI Assistant in Adobe Acrobat. Very helpful in analysing a document.

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regarding the concept of 'a liberal democracy': this stands out as a fundamental of your thinking. It seems to be the overarching canon by which you and Mr Seymour measure everything and work to make everything conform. But why 'liberal'? The word liberal doesn't appear in our Constitution Act 1986, for example. So who invented it and inserted it into our thinking? Is the word 'democracy' even used within the Constitution Act? Ok, democracy is a descriptor of 'how we do things here,' but does it have to become a cipher for our whole identity? Why are we so beholden to such an invented concept? According to your submission, perhaps we should rather describe the NZ state as 'a modern multi-ethnic partnership under the democratic rule of law'?

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Probably the concept of Classical Liberalism had not developed in the mid nineteenth century. The development of our system has been organic. I have difficulty with the concept of a democratic rule of law in that democratic suggests a participatory government system rather than an involvement in the Rule of Law - unless you are suggesting an elected judiciary and if you are be careful what you wish for.

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