How does the operation of PHARMAC's 'Community Exceptional ...

The consequence of this type of term inserted into the Bill, as appears in Clause
4, is those citizens and institutions required to comply, cannot know what they
are required to do or omit. The only way to discover this with any certainty is
through obtaining a ruling from the courts. By using so general a term as ‘the
principles of the Treaty of Waitangi’, Parliament in effect is delegating its law
making function to the courts. It is the court then who must invent the meaning
that parliament has failed to articulate itself (PB/150w The Law Commission,
2000).
Dugdale drew attention to the cases where the expression ‘the principles of the
Treaty of Waitangi’ has led to litigation, the best known example is Section 9 of
the State Owned Enterprises Act 1986. In this example the court when asked
to interpret the expression, sought to understand the intention of parliament and
could do no better than to declare the expression “has led to uncertainty”
(PB/150w The Law Commission, 2000).
Finally, the Commissioner invited the Select Committee to spell out what
particular policy Parliament wished the courts to adopt when referring to ‘the
principles of the Treaty of Waitangi’. He made three suggestions which would
help the Select Committee clarify thinking on the matter.
The intent might state in the interests (implicit in the preamble of the Treaty) of
all New Zealanders, that the Act is to be interpreted in a manner that is
consistent with the principles implicit in the Treaty of Waitangi. Namely that in
New Zealand the cultural and spiritual values of all New Zealanders must be
respected and protected. Institutions and practices must be so shaped and
conducted, that no New Zealander is excluded from their benefits, or feels so
excluded (PB/150w The Law Commission, 2000).
Or the intent might state, particular to the interests of Maori that this Act is to be
interpreted in a manner that is consistent with the following principles implicit in
the Treaty of Waitangi. These are that there be special recognition of the
values and culture of Maori (for example the promotion of rongoa, Maori
methods of healing) and the use of Maori institutions to assist the better delivery
of health services to Maori. This could be achieved by a combination of the
above or omitting the Clause all together and relying on the explanatory note
already in the Bill.
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