Franks Stephen: Supreme Court Bill — Instruction to CommitteeCWH In Committee Speaker Recalled In Committee Speaker Recalled In Committee 
Franks Stephen: Supreme Court Bill — Instruction to CommitteeCWH In Committee Speaker Recalled In Committee Speaker Recalled In Committee 
[Volume:612;Page:9009] 
STEPHEN FRANKS (ACT NZ) 
: 
 I want to speak to the first two of my three substantive amendments to Part 1. The first proposes that the commencement involve a referendum. In my opinion a referendum is not the most desirable way in which to achieve a constitutional change of this type. A referendum necessarily would involve debate about the comparative or relative merits of our court and what the overseas judges can do. I know there are many judges who quite properly are anguished about the damage that may occur to the reputation of the judiciary as we go through the next few months. A referendum is constitutionally a very appropriate way for a country with a Parliament that has only one Chamber and no written constitution to establish a change of this magnitude. It should be in the hands of the people and require their endorsement. I am nevertheless sensitive to those who think that it is an unhappy necessity. But I am now persuaded by the passage of this legislation and by the haste with which we are dealing with it that it is absolutely essential that the commencement require the endorsement of New Zealanders. 
This bill is treating our highest court and the tenure of the judges of that court as potential playthings of a minority ruling party. There may be no one in this House who would think it possible or likely that that precedent could be misused lightly. I believe there is no doubt at all that at some stage in the future what we are doing here tonight and will be doing over the next week or so will be cited as evidence that it is possible to tamper with the courts when it is convenient for a ruling party. I am sorry that the Greens are not supporting us—in particular Rod Donald who makes such a play of the constitution being the property of more than the generation currently exercising its powers. I am sorry that that is a matter where we will possibly— 
The CHAIRPERSON (H V Ross Robertson) 
: The member may not refer to the absence of members from the Chamber. That is a longstanding convention. 
STEPHEN FRANKS 
: I am sorry. I meant that they are not supporting us. There are Green members present and they are not supporting us. ACT’s proposed commencement clause which I am pleased to hear that United Future will support and which I know the National Party and New Zealand First will support is very simple. It enables all the detail to be before the people. It is all worked out: the bill is passed by the House but comes into force only when it has been endorsed by New Zealanders in a referendum. 
I have a suspicion that many New Zealanders see this in the same crude nationalistic terms as the Attorney-General does. This Clark-Wilson Government is contemptuous of people and of their ability to understand but the question of whether a court that is utterly independent of New Zealand political pressure and whose appointees are right outside the reach of any kind of caucus calculation is replaced with a court that is subject to the main constitutional problem for any country—who watches the watchers—is simple for people to understand. If they choose at the end of the referendum process to vote for it the court will have been validated. The Supreme Court will have a mandate that the House cannot give. 
The House is not giving a mandate to the Supreme Court but by the squalid process of ramming the bill through now is doing the very opposite. There will be no mandate. The new court will have to earn it painfully over many years of probably hostile scrutiny because it will set off with people being suspicious about the motives for setting it up and concerned about its quality. Instead of being a celebration of nationalism as it was in Australia and Canada it will start under the sort of scrutiny that may mean that it fails—and New Zealanders will lose confidence in yet another of their institutions. I urge that the Committee in the interests of the new court vote for a referendum process that will enable the court to be established properly.