ACT targets 'activist judges' and Treaty clauses in new constitutional policy package

The ACT Party has released a policy package aimed at what it calls "activist judges" and Parliament's habit of writing vague Treaty of Waitangi clauses into law. The proposals would assert Parliament's supremacy over the courts and limit the role of tikanga (Māori custom) in court decisions. (RNZ)

Party leader David Seymour framed the policy as a matter of legal equality. "Ensuring New Zealanders can move forward under one law for all with one future together," he said of its purpose. The announcement follows a pledge Seymour made on 16 December 2025 to reignite the Treaty principles debate in 2026, saying he would never move on from his vision for it. (Te Ao News) Seymour had previously argued that "activist judges and bureaucrats" had "twisted" the Treaty of Waitangi principles. (Law News)

The centrepiece is a proposal to add three principles to the Constitution Act 1986: that Parliament is sovereign, that the rule of law is fundamental, and that all New Zealanders are equal before the law.

A key element is restraining courts from considering Māori tikanga in their decisions. Seymour said recent Supreme Court rulings had pushed the line further than Parliament ever legislated. He pointed to Parliament pushing back in the Smith v Fonterra and Marine and Coastal Area cases, but not in the Ellis case, where the Supreme Court expanded the use of tikanga in the law. ACT proposed making clear that tikanga cannot influence court decisions except where Parliament has expressly allowed for it.

The policy also targets how judges interpret laws. ACT proposed amending the Legislation Act 2019 so that statutes are read in the context of the time they were passed. Judges could resolve ambiguity but not override the actual words of a law.

On the legislative front, ACT proposed stopping governments from writing vague Treaty clauses into law that create uncertainty and leave courts and officials to work out what they mean. Any bill referring to the Treaty of Waitangi would require Cabinet to agree which interests were engaged, who they apply to, and what obligations they create.

The broader context here is that the package touches several live constitutional fault lines at once. Adding parliamentary sovereignty and equality before the law to the Constitution Act 1986 would give those principles a statutory grounding they do not currently have in a single instrument. The Constitution Act is not entrenched — it can be amended by ordinary legislation, just like any other law. Whether a future Parliament would treat these additions as binding in practice, or merely as a statement of values, is a question the policy does not address.

The tikanga restriction is the element most likely to draw a sustained response from the legal profession. The Supreme Court's decision in Ellis v R, which recognised tikanga as part of the common law of New Zealand where relevant, was widely regarded by the bench and legal academics as a careful, incremental step. Restricting its use to only those areas where Parliament has expressly provided would shift authority over tikanga's legal role from the judiciary to Parliament. That is a structural change to the separation of powers between courts and the Legislature, not merely a policy disagreement about outcomes.

The Legislation Act proposal also warrants scrutiny. The current Act already directs courts to interpret legislation in accordance with its text and purpose. What ACT is proposing appears to narrow that further by anchoring a law's meaning to the context of when it was passed, which would constrain interpretations that draw on evolving social conditions.

The Treaty clause mechanism requiring Cabinet sign-off on scope, application and obligations would impose a new procedural discipline on the executive. Legislation containing Treaty references has historically varied widely — from broad statements of principle to detailed procedural requirements. The proposal would standardise that at the front end of the policy process.

For Press Gallery observers, the fact that this policy revisits Treaty principles territory that proved politically contentious for ACT during the previous parliamentary term is notable. Seymour's December 2025 commitment to reignite the debate was unequivocal, and this package delivers on it with a more developed statutory framework than the earlier Treaty Principles Bill. Whether National would entertain any of these proposals in a coalition negotiation after the 2026 election is the political question that now sits alongside the constitutional ones.