We’ve learnt a number of things about Act leader David Seymour’s Treaty Principles Bill in the aftermath of a robust but pleasantly riot-free Waitangi Day.
Prime Minister Christopher Luxon revealed that it was a bottom line for Act in coalition negotiations: National could not have formed a government without making some concession to it.
We’ve also learnt National will not be voting for the bill beyond the first reading, which we kind of knew anyway but Luxon has made this definitive.
We’ve seen that Seymour is not afraid to undermine the Prime Minister, telling media that he didn’t believe Luxon wouldn’t change his mind on the issue in the face of public support for his bill. Act has launched a public information campaign to try to build this support, leaving National bristling with fury: its largest coalition partner is behaving like an opposition party, campaigning against the government rather than helping it run the country.
And, significantly, we’ve seen support for Seymour’s initiative. A Curia-Taxpayers’ Union poll conducted in early February saw Act surge to 13.7% – 5 points higher than its election result. Also, 10% of its respondents named Seymour as preferred prime minister.
Too hot to handle
In the 1980s and 90s, as the Treaty of Waitangi evolved as a foundational constitutional document, Labour and National reached an informal agreement that interpreting it was a role for the courts rather than Parliament. It would not be defined by politicians and it certainly wouldn’t be up for debate during election campaigns or referendums.
This consensus held for more than 30 years: treaty settlements progressed across multiple changes of government, usage of te reo became widespread, acknowledgement of treaty principles became routine within public and private organisations and anger towards these things was restricted to the radical fringes.
The politics of the treaty lay largely undisturbed, treasure half-buried on the ocean floor – occasionally grasped at by Winston Peters, briefly fumbled with by Don Brash – until now, when it’s been seized and held aloft by Seymour.
New Zealand wasn’t the only democracy where the political establishment decided some topics were too fraught for debate. In the UK, there was a consensus between Labour and the Conservatives that Britain should remain in the European Union. In the US, a loose bipartisan agreement on the issue of illegal immigration along its southern border took most of the energy out of that debate.
But in 2015, Donald Trump rode down a golden escalator in Trump Tower to announce his candidacy as president, vowing to prevent “murderers, rapists and drug dealers” from crossing into the US. The reaction from traditional media outlets, Democrats and even his own party was one of stunned outrage: a credible candidate for the presidency simply could not say such things. But Trump has been a celebrity most of his life. He knew the news had changed and the rules had changed – and so politics had changed. He could say whatever he liked.
A year later in the UK, the Leave campaign won the Brexit referendum using the same populist approach: saying the things they weren’t supposed to, mocking the establishment figures ineffectually commanding them to stop.
What has become clear in hindsight is that the model of politics in which major parties agreed to take polarising topics off the table worked only in a media environment dominated by a handful of large news organisations, where publishers and editors could support the centrist consensus.
Seymour doesn’t need traditional media to talk to the public: he’s launching websites and churning out digital content, reaching a large constituency of voters sympathetic to his argument: that the modern interpretation of the treaty is turning the country into an ethnostate with different rights for different races.
He’s winning the debate by default because National and Labour still think it’s possible to rule the entire topic out of bounds. Luxon didn’t mention Seymour’s bill in his Waitangi speech: all he could offer on the topic of the treaty was that National would honour it, whatever that means. Labour keeps calling Seymour a bigot and a racist, the same rhetorical tactic that lost the argument against Trump, Brexit and Australia’s Voice vote last year.
That’s why the most astute critics of Seymour’s approach have been his fellow travellers on the neoliberal right. Former Act leader Richard Prebble points out that if recent interpretations of the principles of the treaty will lead to two classes of citizenship based on ancestry, the correct approach is to fortify the NZ Bill of Rights Act to establish a single class of citizenship.
An elegant solution
Instead of a divisive referendum that will lead to the treaty being redefined to say things it obviously doesn’t, our notoriously weak civil rights legislation could be rewritten to say what it always should have said: that Parliament and the courts cannot invent treaty principles that strike down fundamental rights.
The legislation for Prebble’s approach would be advanced by Justice Minister Paul Goldsmith, a much-less-divisive figure than Seymour. Labour and the Greens would come under pressure from their activists to oppose it, and they’d have to explain to the public why they were against strengthening human rights.
It’s an elegant solution that would work for everyone – except Te Pāti Māori and Seymour, who benefit from an angry and polarising treaty-centric debate.
A Curia poll last October found 60% of voters supported a proposal to define the principles of the treaty, so Act has every incentive to keep hammering it.
Brexiteer Nigel Farage spent 20 years campaigning against Britain’s membership in the EU and he got there in the end. Seymour’s current bill will get voted down – but half-way through this government’s term, he’ll replace Winston Peters as deputy prime minister: a splendid platform for the next election campaign.
National MPs can’t believe they’re saying this, but they’ll be sad to see Peters go.
