Stephen Franks

Speech Notes From ACT Wellington Regional Conference; Hotel Intercontinental; Wellington; Sunday November 21, 2004.

Ms Clark's draft terms of reference for the Parliamentary committee leave no room for doubt about her intentions.  It must stay in safe territory.  She does not want a magnet for scary advocacy.  Instead, the committee is to describe our current constitutional arrangements.  The terms describe a job that would ordinarily be done by officials or academics, and published in a government background paper.

This is supposed to take a year, safely past the next election.  The only forward-looking instruction is directed away from home, to review other countries’ processes for constitutional change.

Her nomination of Peter Dunne as chairman is supposed to distance the exercise from Labour.  He offers the bonus of being biddable and boring.  She can hope that the media will find the exercise a great yawn, as Mr Dunne blunts every issue with platitudes.  Remember his Families Commission?  It was going to put a stop to policies that undermine the family.  Mr Dunne was too pusillanimous even to insist on a definition of family that didn't mock his supporters’ deepest beliefs.

Still, awkward questions might get past Mr Dunne and the committee, like "what is a treaty partnership and how does that fit with one person one-vote democracy".  If so, Ms Clark will still be comforted that the attention is drown away from her complicity in creating monsters like the spurious partnerships.

ACT will nevertheless join the committee as a Parliamentary duty.  Ms Clark wants our involvement only to give credibility to her diversionary tactic.  But I think we will be able to make it much more.  If it becomes clear we are wasting our time we won't continue.

Submissions Please:

I hope you will give us a hand.  We will need submissions.  The Labour majority on the committee will be under instructions to reject awkward questions if only the ACT member is raising them.  It’s harder for a committee to ignore public concern. 

There is plenty to raise.  This is a chance to highlight the distortion of our institutions by the self-anointed over the past 20 years.  Some of it has been calculated hypocrisy, political opportunism and deception.  But mostly it has been well-meaning arrogance.  The ends justify the means.  They have abused the language of rights.  They mistrust and patronise ordinary people.

The Hard Constitutional Issues: 

There are three really hard issues in designing any constitution, whether it is for a country, a company, or a sports club.

First, how to minimise conflict over succession in leadership, without insulating leaders from the boot when they deserve it? 

Secondly, who has the power to ensure that the rules are followed?

Thirdly, who watches those watchers?

Our democracy has been good at kicking out leaders who have passed their use by dates.  The Parliamentary tournament continually exposes leaders to test and sifts out those who can only cope when sheltered by advisers.  Democracy is not so good at selecting the most competent leaders.  Job interviews in 15-second television sound bites are not reliable.  Accordingly all around the world, elections choose among candidates who are preselected by, or who claw their way to dominance of, tiny groups in parties, electoral colleges, and media and other networks.

Our judiciary enforce the process rules.  Our constitutional inheritance of equality under the rule of law requires independent judges with certainty of tenure and protection from interference from the executive and the legislature.

“Who watches these watchers?” is not so easily answered.  Under the traditional doctrine of Parliamentary sovereignty, and a rule of law that prized certainty, this was not such a vital question.  The answer was that "the voters" could, informed by vigorous and fearless journalists.  In essence, when judges could only interpret and apply existing law or law laid down by elected representatives, the risks of long-term rule by decree of the elite were low.

If judges can instead strike down Parliamentary law and make the rules up as they go along according to what they feel would be best, we need a means for the people to sack judges.  Otherwise, unelected lifetime rulers can trump democracy.

A Written Constitution?

It could offer better assurance against official abuses of power, and demagoguery, than our current position.  But thinking it would be a good idea to have one does not automatically mean it is a good idea to start work on getting one.

In the absence of some strong and uniting external threat, or the aftermath of civil strife that has left the exhausted survivors aware of how easy it is to fall into barbarism, a constitution drafting exercise is likely to become a scramble for political advantage.  Ordinary New Zealanders will not have the endurance to outlast the political junkies.  Hard-workers will have better things to do with their time.

The vast European Union draft constitution shows what happens when every interest group tries to entrench their current political passion.

Accordingly I suggest that ACT focus on restoring a few fundamentals lost over the past 20 years, and incremental improvement.  That is after blocking the Clark-Wilson project.

Issues For The Stocktake:

Here's a menu of issues any genuine stocktaking should explore: 

·         The absence from our Bill of Rights of any protection for property rights.  Only two other countries in the Commonwealth have not at least purported to recognise property rights as fundamental to freedom and prosperity.

·         The plethora of provisions discriminating on the grounds of race.  For example provisions reserving appointments for Maori, giving trump status under the RMA to Maori "involvement". 

·         Separation of church and State is seriously threatened by the entrenchment of Maori superstition without giving equivalent status to mainstream superstitions.

·         The transfer of political decision making to judges through the calculated use in law of undefined terms and weasel words which judges must then find meanings for.  For example; “kaitiakitanga”, “take into account”, “consultation”, ‘respect’, “recognition”, and of course, the “principles of the Treaty”.

·         The conferring on local authorities of so-called "powers of general competence".  This change in 2002 turned on its head hundreds of years of development of our law, which recognised that the liberties of individuals are only protected when local rulers with delegated coercive and taxing powers, can only use those powers for closely specified purposes.

·         The insertion of spurious "partnership obligations" into the charters and constitutions and the governing laws of myriad agencies and authorities.

·         The loss of open courts where justice is seen to be done, through blanket secrecy (Family Courts, Youth Courts), name suppression, and the suppression of criminal records.

·         The removal of de facto sentencing power from Courts to committees of officials on short-term ministerial appointments in the Parole Board.

·         Existing and threatened abridgements of free speech.  For example the "balance" requirements of the Broadcasting Standards Authority, more recent assertions of political correctness by quasi regulators such as the Advertising Standards Board, and the threatened classification of unfashionable views as "hate speech".

·         The surrender of control of political speech to the media establishment through prohibition of any radio or television political debate unless it is selected by the media, or allowed under the Electoral Commission's minuscule allocation for formal election broadcasts.

·         The bizarre abrogation of freedom of association for individuals in 1993 when antidiscrimination provisions in the human rights act prohibited the practical expression of unfashionable religious and other social attitudes, by private individuals but not the State.  It’s hard to imagine a more direct attack on a core element of social capital than the prohibition of positive discrimination for marriage.

·         The use of a bare majority's political muscle to sack all of our demonstrably independent top court judges with the abolition of recourse to the Privy Council, and the rejection of any convention that major constitutional change should be ratified by referendum.

·         The increasing use by Courts and Ministers of so-called international law to trump demands by New Zealanders for Parliamentary action.  For example, we have been told that prisons cannot be made any more unpleasant than they have to be, that we cannot abolish compensation to prisoners for alleged breaches of human rights, that we cannot eject dishonest refugee claimants summarily, all because of United Nations rules.

The Living Document:

I am looking forward to this exercise.  I look forward to officials trying to explain how they care for their “living document” like their Treaty. 

I know there is a real and valuable Treaty.  I’ve seen it on display in its shrine in Murphy Street here in Wellington.  It promises to Maori and all New Zealanders secure property rights, and equality under one government.

But Ms Clark, Dr Cullen and Ms Wilson, and some judges, seem to have another one somewhere.  They claim it is a living document, whatever that is.  It apparently helps them to muster Maori and wet academic voters. It may be a deity.  It demands huge sacrifices, preferably from unbelievers.  It gobbles money, and requires nepotism, official patronage, the suspension of common sense and the tolerance of soft and not so soft corruption, and it legitimises bigotry.

Is it animal or vegetable?  Does it need fertiliser?  What does it feed on?  We could theorise that it has coped well with an environment rich in nitrogenous matter.

How big can it grow?  Who has authority to put it on a lead if it starts menacing its keepers?  What do you do if parts get gangrene, as seems to have happened to Article Two’s exclusive Crown rights of pre-emption over land?  Can this living document be pruned?  Who gets to hold the secateurs?  Has it been grafted on to old-fashioned political opportunism? 

When it sprouts a new limb who decides whether it is becoming an octopus? Is this living document still being properly cared for since Dr Brash made its devotees in the Cabinet embarrassed by it?  Is it still getting oxygen hidden away in the cupboards while Minister Mallard’s needs review sweeps through?  Or does his team knock politely and behind closed doors continue to pay their respects?

I look forward to finding out.

ENDS