Franks Stephen: Business of Select Committees — Appointments 
Franks Stephen: Business of Select Committees — Appointments 
[Volume:622;Page:18021] 
STEPHEN FRANKS (ACT) 
: 
 The terms of reference that have been put in the motion describe a job that would ordinarily be done by officials or academics or be published in a Government background paper. I believe that this committee was originally conceived as an exercise to take awkward issues safely past the next election. The only forward-looking instruction in the terms of reference is directed safely away from home—to review other countries’ processes for constitutional change. Nevertheless we join in this knowing that we could be part of a tactic to give credibility to a diversionary manoeuvre. But I believe that the committee can make it much more and if it becomes clear that we are wasting our time ACT will not continue. 
There are plenty of issues to raise. Over the past 20 years there have been distortions in a number of our institutions by what essentially has been an elite consensus. Some of it has been calculated hypocrisy—just political opportunism and deception—but not necessarily ill meant. It has been well-meaning arrogance in a view that the end justifies the means by historians by people outside the political process by the judiciary and by many who mistrust and patronise ordinary people. But on a constitutional matter there are really only three hard issues: firstly how to minimise conflict over succession and leadership without insulating leaders from the boot when they deserve it; secondly who has the power to ensure that the rules about succession are followed; and thirdly who watches those watchers. Our judiciary has been watching the rules from the sidelines because our conventions have been so strong but those conventions have been modified and I believe that this committee can describe not just what they ought to look like but the way that they are actually operating. 
In essence deciding who watches the watchers has been the hardest issue for most countries and the easiest for us when the watcher was the Privy Council. When judges could only interpret or apply existing law which was laid down by elected representatives the risk of the judges getting out of their station was low. But now we have considerable tension in this area. I believe that the Hon Michael Cullen made a thoughtful and useful contribution when he moved the motion. He has been watching closely. He has moved considerably since his speech to the Labour Party in Gisborne when he essentially told us there is a separate status for Maori—“Eat that!”. I think he wants to see this committee deal with some of these issues in a way that is very difficult for a governing party to do on its own. We have a Chief Justice who only last month told the International Bar Association conference that in constitutional law even Parliament was not sovereign. It appears that these judicial supremacists as Lord Cooke identified them are confident that they are on a roll. 
Well these are the matters that this committee can look at. But they are too large and I do not think we will see solutions. What we must report on are the many minor changes; the things that have happened that have evolved our constitution without any significant public debate such as the absence from the New Zealand Bill of Rights Act of protection for property rights and an interpretation of the “living document” treaty that has actually buried the only really substantial property protection for New Zealanders in it. The Chief Justice at that same conference gently mocked property rights as a focus of a Victorian bill of rights. We have provisions reserving appointments for Maori and giving trump status under the Resource Management Act for example to Maori spirituality. Where is our separation of Church and State in that position? There is a transfer of political decision-making to judges through the calculated use in law of undefined terms that Parliament has deliberately left in the law. We did it last week when kaitiakitanga was given no definition and was left for the judges to flesh out. Then there will be criticism of the judges for being inventive. 
I refer also to the powers of general competence of local authorities. I hope the committee will revisit the changes made only 2 years ago when we turned on their heads rules that had underpinned liberty for hundreds of years. The liberties of individuals are protected only when local rulers cannot use coercive powers for anything they have a bright idea about. Then there are the spurious partnership obligations that Mr Hide talked about and the loss of open courts—we have courts that are closed and where justice can never be seen to be done because of blanket secrecy. In the court area again de facto sentencing power has gone to the Parole Board instead of to judges. The judges are involved in just a charade. 
But I do not think this committee should think that its task is to prepare the ground for a written constitution. In the absence of some strong external threat or exhaustion after civil strife a constitution drafting exercise will just be a scramble for political advantage. Ordinary New Zealanders will not have the endurance to outlast the political junkies and the ordinary people have better things to do with their time. So I believe that this committee would be best served if it looked at a few incremental things that it can fix and some protections it can put into our arrangements to prevent the sort of mudslide of new law that we have had over the last 20 years and the surrender of political control of speech to the media establishment. 
I also hope it will come back and put a nail through the heart of the “living document” treaty. Dr Cullen Ms Wilson and Ms Clark still seem to think that there is a “living document” somewhere. It seems to be some sort of deity. Maybe Dr Cullen is no longer a believer. We think this committee can help put a stake through its heart so that it becomes a genuine document once more.