Franks Stephen: General Debates 
Franks Stephen: General Debates 
[Volume:611;Page:8548] 
STEPHEN FRANKS (ACT NZ) 
: 
 I want to talk about a matter of some constitutional delicacy. It arises from the foreshore and seabed debate that the country is now engaged in. Yesterday I watched two Ministers of the Crown being humiliated. They are going through days of distraction from their real duties. They suffer hours of indignity as they have to listen to speeches that are variously full of impassioned pleas nonsense and thinly disguised insult. Dr Cullen admitted to—[ 
Interruption 
] 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I just want to caution the member on my right that there have been far too many interjections. 
STEPHEN FRANKS 
: Dr Cullen was forced to admit that “public domain” was replacing “Crown ownership” because the latter term was “too confrontational with Maori claims to ownership”. Now of course the Crown is renouncing ownership of the foreshore and seabed. Why are we in this position in this country? How did that happen to a competent and popular Prime Minister? More important how do we ensure that this disgrace is not the natural order for Ministers of the Crown? 
What has brought Ministers to this situation? There is something other than the logic of their own position as Chris Trotter points out in today’s  
Independent 
. It is overweening judges. On 19 June the Court of Appeal decided to make law instead of applying it. The Ninety Mile Beach case had stood for 40 years. Sixty years earlier than that Salmond our foremost lawyer and most of this country had believed that the Crown was the source of title since 1840 and that the foreshore was clearly owned by the Crown unless otherwise alienated. On 19 June the Court of Appeal made a radical decision. It should simply have told Parliament that it thought the law was mistaken and invited Parliament to fix the law as soon as it had gone through the sort of process we are going through now. Instead the Court of Appeal caught the Crown unprepared—shamefully unprepared but unprepared. Why was it flat-footed? The reason I believe is that the “sisterhood” is planning to usurp our constitution. The Supreme Court Bill is planning to give to judges the role of being able to pass law that Parliament would never pass but the judges jumped the gun. They went ahead before the rest of the “sisterhood’ had said to do so. 
The Court of Appeal decision was led by a judge who should not have been on the case. She had at the very least an apparent conflict of interest. In Britain where it is thought that these things matter a bit more and apolitical unbiased justice is important the Pinochet case was reversed for much less. A new hearing was ordered there when Lord Hoffman was shown to have links with Amnesty International which had appeared in the case. Dame Sian Elias should have excused herself from this particular case for the same reasons. Dame Elias has been passionately partisan in treaty matters. Before her appointment she described my scepticism about sanctifying the treaty—if it was widely shared among lawyers—as a cause for her despair about New Zealand’s future. Dame Elias made her enlightened legal name in work for Maori claimants and much of it was pro bono. Without that work she would have been too inexperienced and too little-known to be appointed to her high office even with the drive to make the courts more gender-balanced. 
This is not to say that a judge is incapable of applying an unbiased judgment to a matter where he or she has represented clients before being appointed as a judge. Barristers are often simply silver-tongued paid mouthpieces for their clients. But in those cases Dame Elias was campaigning for her adopted cause; she was not simply a barrister. And it gets worse. In 1985 Dame Elias was the losing counsel in the Manukau iwi case seeking ownership of the bed of Manukau Harbour. The Waitangi Tribunal said it was crystal-clear that the Crown owned it and tossed the case out. She has now reversed that. Of course Dame Elias’ presence does not necessarily mean that the court was biased but it is the appearance of bias that matters. She may have addressed the case with completely impartial judgment but it is the appearance of impartiality that the House of Lords said matters. Here where a radical decision was delivered where the role of Parliament was usurped by unelected judges where Parliament which can be subject to the will of the people was not given the opportunity the Chief Justice should have disqualified herself. 
This case is a classic example of the limitations of our country’s small size and of the reason that it is so valuable to have a right of appeal outside the smug little group that controls justice in this country. Those judges are convinced that they are virtuous enough to determine race policy even where the politicians have been too cautious to tread and these legal breast-beaters have invented doctrines that are legal nonsense in order to cover their tracks.