Franks Speech: What Is Cultural Liberalism?
What Is Cultural Liberalism?
Tuesday 19 Feb 2002
Stephen Franks Speech – Governance & Constitution -- The Liberal Project
This could be about an Arts Policy for ACT. We could discuss lots of interesting questions. Such as was the virgin in a condom art? What is the role of the State in relation to people just out to shock? Is the `artists on the dole' scheme a vital plank in nation building? Should artists who can't persuade anyone to pay for their work, get something from every worker for time in the sun to establish our national identity?
Those questions are about the froth of culture and that is not the subject of this address. Culture determines whether we want to live here or not, whether this is Godzone, or another Argentina. It determines whether we are rich or poor. In the longer run it will determine whether we have to guard our borders against clamouring migrants, or try a `Berlin wall' to keep our valuable people in.
Cultures are not all equally valuable to those who live them. They are not all equally deserving of respect. Continual judgment of cultural attributes is vital. Any vibrant people should be vigorously debating changes and trying to promote or stop changes in their cultures. They must have competing visions of how best to behave.
If we are lucky the competition to influence culture will be courteous and reasoned. Normally it will be passionate and often illogical. In a cursed or decaying country the cultural contest will be suppressed, or conducted by force through grabs for the coercive powers of the State.
I believe we are presently cursed by acquiescence in cultural engineering. And cultural relativism puts us at serious risk of decaying.
Aggressive cultural relativism is the mischief. It tells us we are deeply and inherently strangers to each other, but not permitted to act as strangers prudently do with each other.
It is not just a fashionable refusal to make comparative judgments. Anti-discrimination law may punish those who risk giving practical effect to adverse views of another's culture. Political correctness is enforced by the power to give or withhold promotion and State patronage. Normal debate over culture is suppressed. Our traditions of incorruptible secular government are threatened. Our rule of law is undermined, and with it security of person and property. And by telling us we are strangers to each other state enforced race consciousness diminishes our wish and our capacity to trust and feel for each other. Instead of debating to persuade, we now fight for control of State power, to decree a respect that is not earned.
To see how far we have sunk in a few years we must explore values at the very core of New Zealand's inheritance of liberty. I will argue a paradox. I want to persuade you that the liberal state has to be tolerant, yet as true or classical liberals we must be more intolerant. Liberty is state tolerance and that liberty is eroding with political correctness. Worse, political correctness, having stolen the clothes of liberalism, is now forcing us to tolerate the intolerable. The very cause of tolerance - of liberty, is destroyed when private individuals are prohibited from discriminating against what they believe to be falsehood and evil. * If tolerance means a child can be beaten for years, in the end to death, without an absolute determination to hold accountable those who do that, the liberal society loses its claim to superiority over a society that will punish those responsible for such crime. * If we only switch channels on a story of public funds going to political cronies or clients of a ruling elite in the name of "redressing inequality", core political virtue is in peril - honest stewardship becomes a mug's game. * When we tolerate a welfare system that makes bludging a better choice than working, indifferent to whether the beneficiary is a decent person down on his luck, or a vicious predator on the community, liberal concern for the poor becomes a vice.
This lecture is about the values that are at the root of our culture's most remarkable achievement. Freedom under the rule of law. Freedom with responsibility under law that protects ordinary people from abuse of power by rulers.
This lecture has to explore the values that sustain freedom. Freedom was so radical and rare and eventually powerful it became a brand worth trying to steal. The few peoples and nations who developed that brand ended up building our world, achieving more than humans had ever achieved before or even dreamed of achieving.
But freedom was always counter-intuitive. It offends the father/family model of the tribe or state. For most of humanity, for nearly all of time, it has been a moral right if not a duty for a virtuous ruler to use his power to compel his followers to be virtuous as he sees it. Now once again that view prevails. Freedom is mistaken for licence by both its supporters and it enemies. ACT has to talk of `choice' because political reactions tell us the word freedom scarcely means anything any more. It just a blurred sound in the phrase "freedom and democracy". Both words have just become synonyms for "things we like".
Our respect for the individual free will underlies individual rights and more importantly insistence on individual responsibilities. They are ACT's intellectual inheritance. I want to reconnect us to the true power and meaning of the word "liberal". I want to contrast that with the forces moving within the cloak of "identity" politics. These forces grope for the levers of political power claiming authority as representatives of races, or minority groups, or classes.
If I could I would drive out the squatters who have usurped that word `liberal' and made it a synonym for `collectivist'. They want to rule by separation, building the pressures that divide, by getting people to see themselves as victims, put upon groups deprived of entitlements. They promise privilege, setting old against young, women against men, Maori against pakeha, and poor against rich. They create guilt then trade on it, turning against them the decency and tolerance of those who meet the cost of these privileges.
What Did Liberalism Mean?
So unadorned `liberal' has gone. It has been stolen. I am not going to spend time arguing derivations or legitimacy. It doesn't matter now whether the takeover by the collectivists is unfair.
We can add `classical' to distinguish the liberals whose principles and beliefs and policies cherish freedom, from those who trample it.
So this lecture will canvass three things, first what liberal meant classically, secondly what has happened to it, and thirdly what we need to do to reassert the principles it stood for. What `liberal' meant, and what is has become will be explored together by reference to current events.
You can think of this section of this address as a sort of bleary survey of the morning after Woodstock. Perhaps a more apt image would be wondering how to clean up Moutua Gardens while the tangata whenua are still camping there.
President Bush recited liberalism's creed in his January "Axis of Evil" State of the Union address. He described certain "non negotiable demands of human dignity" "The rule of law, limits on the power of the State, respect for women, private property, free speech, equal justice and religious tolerance." Pretty much the same list as was described at greater length and more elegantly nearly two centuries ago by John Stuart Mill.
All (other than equal justice) are primarily to protect and require tolerance. And all those were aimed at the State, against the likelihood of intolerance by people wielding the police powers of the State. The architects of our freedom did not expect or require or even want compulsory tolerance from others. They just wanted the rule of a tolerant law. The law would protect everyone from violent coercion and expropriation.
The Rule of Law
The rule of law seems so elementary. Yet most of us, including lawyers, have forgotten what it is. Younger lawyers have never learnt. Many think it means making sure everyone obeys the rules. In practice it may have come to mean the rule of lawyers.
The essence was once not that the people must obey rules, but that rulers must obey rules. Rulers could not do anything using their powers that was not expressly authorised. The rule of law tradition inherited from England had clear distinctions between law and morality. The State could enforce rules designed to stop people harming others, but it could not and should not try to demand that they respect others. The law was to protect individual person and property, but not their feelings; nor was it to try to protect them from their own foolishness.
This was axiomatic, for freedom means nothing if it is not freedom to do things the majority consider wrongheaded or undesirable, so the classical liberal inheritance was of a rule of law that necessarily leaves a large realm for the operation of competing custom, morality, etiquette and courtesy. Without these supplements to law, liberty would become intolerable licence.
Liberals were free traders, believing it was wrong to expropriate the fruits of toil by preventing adults contracting as they wish. They believed in the sanctity or security of contract.
The "market place of ideas" was a natural phrase for our forebears to describe the competition between cultures, they saw cultures as distinguished by good ideas or bad, or good and better.
For New Zealanders the New Zealand Bill of Rights Act 1990 embodies many of these fundamental elements of classical liberalism and the rule of law.
But NZBORA had one great and telling omission. The drafters funked on property rights. This is telling because it shows what an empty husk was the understanding of liberty of Sir Geoffrey Palmer and the New Zealand parliamentarians who proclaimed it as a Bill of Rights. There are no conceptions of classical liberalism or even fundamental rights from our forbears, which omitted rights to hold and enjoy private property. Liberty does not work if the State or your neighbours can enter your property, or take your property or your use of your property whenever they feel their interests are more pressing than yours.
When the Treaty of Waitangi was signed, the Englishman's home was his castle. For Maori this was a primary reason to sign, to secure enforcement of rights of property as an end to a ghastly era of civil war. The war had extended for 30 years. Probably one third of the population had been slaughtered, many in circumstances far more dreadful than anything we have seen in Bosnia or Rwanda. Land title was needed for trade.
Tino rangatiratanga, assured in the Treaty was, I believe, no more and no less than a description of the sovereignty each property owner exercised over his own land and property under English law.
The Treaty underscored that its tino rangatiratanga were for "the chiefs, the sub-tribes, and all the people of New Zealand". Accordingly it is wrong to see property rights as reserving the existing sovereignty of the chiefs. Tino rangatiratanga was assured to all Maori. It was a description of English views of property rights, protecting equally the ploughman in his field and the lord in his castle.
Perhaps all New Zealanders could regain this assurance if Maori enforce it as a Treaty right. But until we repeal the RMA's contempt for property rights our land tenure is a kind of serfdom to the petty tyrants who use local politics and the levers of local government to satisfy their urges to tell others what to do with their land.
Property rights were bounded of course. Maori knew that tribal warfare would be suppressed, though one chief was disappointed four years later when Governor Gray did not answer his call to help him put down and recapture rebellious and escaping slaves. Comments at the time show they knew the English legal system would supersede their authority but uphold property rights.
Equality before the Law
Equality before the law was and is fundamental. Despite equality as a slogan in the laws left across Europe by Napoleon, embedded equality before the law was a distinctive achievement of English law. The law that Maori were offered and accepted was expressly to treat them the same as all other British subjects. There was an internal conflict in the Treaty with the Crown's pre-emptive rights to buy land. This exception was a mixed blessing, urged by missionaries to prevent unscrupulous traders, and rapacious chiefs from depriving people of their land. But later it meant Maori could not realise the premium they should have received in direct sales to settlers.
Equality is now unblushingly treated by the current Government as negotiable. When Annette King's new political District Health Boards were told by their Bill to give priority status to Maori, both in governance and in rights to treatment I was reminded of how far we've come since Shakespeare's Merchant of Venice reminder of our common humanity. Shylock's defence said it all about race discrimination in health.
"Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions, fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer, as a Christian is? If you prick us do we not bleed? If you tickle us do we not laugh? If you poison us, do we not die?"
Continuing domination of nurse education by `cultural safety' commissars has scandalised the public. There are racists in Government who do not care if Maori are treated by witch doctors not real doctors.
Last year the Justice and Electoral Select Committee considered a bill to give racially segregated electoral rolls and racial voting in the Bay of Plenty regional council. Only two local authorities made submissions against it. Local Government New Zealand and the Society of Local Government Managers told us the paramount consideration for elections was the Treaty of Waitangi.
Can you believe this? The peak body of our elected local government, and their senior executives, telling us the Treaty prevailed over considerations such as ensuring a free and fair ballot, one person one vote and even integrity and secrecy of the ballot. When questioned as to what their statement meant they could not tell us.
Canterbury can be proud of Sir Kerry Burke. He appeared before our Select Committee with strong and principled opposition. The only other Council with the courage to dissent from sickly establishment obeisance to racism was the Southland District Council.
Now the segregation proposed by that Bill is in the Local Government Reform Bill, to be extended throughout the country. The most common rationale is that without a race defined electoral roll Maori cannot be guaranteed representation, if elected Maori councillors offend pakeha voters. The counter argument seems to cut no ice - that one function of democracy is to find candidates who must maintain a sufficiently broad appeal to maintain a majority vote.
The rationale that most shocked me in 2001 came from Manu Paul of the New Zealand Maori Council. Supported by a prominent Rotorua Maori leader they argued that Maori had to be around the Council table, when contracts were being let. They saw Council membership as vital to getting a share of the spoils of government for Maori contractors.
I could understand better the other thrust of their submission, that council decisions were devaluing Maori land. Maori were the biggest landholders in the region. They argued that they needed to be at the Council in order to protect their interest as landholders when Council was making land use decisions.
If only they had instead tried to uphold their Treaty rights to private property ownership and enjoyment. They would have been serving the interests of us all, Maori and pakeha.
The Local Government Reform Bill requires Local Authorities to have a plan for remitting rates for Maori. In effect of course this means a plan for spreading the share of taxes for people with Maori genes onto their non-Maori neighbours. Only in Christchurch does there appear to have been any public debate on this matter. Thanks to Denis Hampton and to some other vigilant people at least the Letters column in the Press has shown that there is an appreciation of the principles at stake.
There is one dreadful kind of race equality before the law. Maori numbers in prison equal the numbers of offenders from all other ethnic backgrounds. Last year a Christchurch resident called to tell me how sick he felt attending the opening of a new prison unit. Most of the proceedings were conducted in Maori but one elder offered English words along the lines "Thank you for inviting us here. It is good to know our mokopuna are going to feel comfortable here".
Should they not have been appalled by the invitation - ashamed? They should have wanted their mokopuna to hate the place, to want to be out and never come back.
The role of tikanga Maori in our Corrections system is one of the unexplored hypocrisies with which justice is now riddled, as a result of Treaty worship. The Corrections Department is rolling out what it calls Integrated Offender Management. Every prisoner will eventually be assessed for a personally tailored programme of "researched" rehabilitative or reintegrative measures.
Meanwhile Maori focus units are opening in prisons throughout New Zealand.
I have no doubt that many of them do excellent work. Where they are established by charismatic and inspiring people with a commitment to transforming wasted lives, the inspiration works. But these are not "researched" techniques. No work has been done to establish that there is anything particular about Maori culture or training in Maori martial arts that is likely to reduce offending over the longer term. Experienced Prison and Probation Service officers and others have to pay lip service to the view that there is something transcendent about Maori culture. Ordinary rules and tests and requirements are suspended.
This is not an idle concern. At one level I can say "whatever works, lets welcome it". But if we are dishonest about what it is that is working we head for disaster. We will try to duplicate the results and fail.
The risks have started to mature. We are really depending on the efforts of outstanding people, while pretending that there is something intrinsic in the culture being embedded in these offenders.
In December last year a prison officer in the Waikeria Prison Maori Focus Unit was worried about a proposed 6 prisoner dive trip. They were to go hundreds of kilometres to a seaside marae to collect the Unit's Christmas kai moana. Some were seriously violent criminals. He was concerned that the marae was at the centre of a large dope growing area, that one of the people on the escapade was the son of a marae leader of doubtful role model value, and that the supervision could not enforce the Focus Unit rule that prisoners stay clear of drugs and alcohol.
What did the Unit boss do? She called off the trip, telling the inmate rünanga (committee) in writing that the officer's objection was the reason and that he had said the Marae elder concerned as "a drunk".
The responsible officer's career may be over. There is thought to be a contract out on him.
Why did the manager give copies of the statement to the inmate rünanga? It seems it was to curry favour. They are running the `asylum'.
Freedom of Religion
Religious toleration was not long established in the middle of the 19th century. It was not recorded in the Treaty, but Governor Hobson gave an express assurance of toleration, to the fury of some of the missionaries. Signing the Treaty was halted by Maori at the urging of Bishop Pompallier, until Hobson had indicated whether Roman Catholicism would be suppressed. He undertook that Maori "ritenga" or rites were to be equally "protected" along with Wesleyan and Roman beliefs.
The question of whether we would have an established church was then resolved in New Zealand by the Church Extension Ordinance of the British Secretary of State for the Colonies in 1843. We started out with a State that was at least tolerant in matters of religion even if it was not secular. But we did not have the explicit separation stipulated by that marvellous reflection of liberalism, the US Constitution.
Even so, tension between Catholicism and Protestantism gave us a range of protections for secularism. In provisions that seem quaint now, free and secular education was made part of the law, by strict patrolling of rules that prevented sectarianism and political bias in the State education system.
This does mean that religious tolerance has gone unthreatened. Here in Christchurch the Salvation Army was harried in the 19th century under bylaws passed expressly for that purpose. In the 1960s there was a serious attempt to ban Scientology. There are relics of the implicit assumption that New Zealand is a Christian state, for example in the prayer with which the Speaker begins the Parliamentary sessions every day.
Today, however, a sinister cult of "partnership worship" has infected many organs, government, schools, universities, and even hospitals.
Belief in the cult is enough to excuse superstition, cronyism, aristocracy, abuse of office, and incompetence. Though the cult has been given the backing of the coercive powers of the State, and local authorities must also support it, its beliefs and purposes have never been openly debated in Parliament or even on state radio.
The cult believes that "partnership" rights and duties trump all traditional civic virtues. After conversion to the cult certain principles become outdated, such as - one person one vote, appointments on merit instead of status or identity or connections, and rules against nepotism and exploitation of office. They are seen as mere evidence of mono-cultural arrogance.
Notions of a secular state, rules against conflicts of interest, respect for private property and equality before the law, even individual accountability are treated as quaint relics of a fuddy duddy era.
The cult obliges people to pretend to have faith. They must pretend to knowledge no one has. I believe more than 80 statutes require adherence to principles of the Treaty of Waitangi. There is no legislative statement of what those principles are.
Innumerable Government publications refer to them. Yet when the Prime Minister was asked for a statement of the principles in Parliament on two separate days in February, after 4 hours of prior notice, she was unable to point to any. She offered a statement of principles for settling Treaty claims, but was at pains to say that was not the same thing as a statement of the principles of the Treaty.
She was stunned the first day when I produced a copy of a document called "Principles for Crown Action on the Treaty of Waitangi" published by the Labour Government in 1989.
No answer could be provided when the question was repeated the next day. But the 1989 statement was then mocked as "something produced by Lange".
Great leaps of faith are required to understand how these unknowable principles come to mean a duty on the Crown to actively subsidise and promote Maori broadcasting, or a right for Maori to claim ownership (and naturally royalty entitlements) in respect of plants and bugs which have been in New Zealand for millennia before Maori and which will no doubt be in New Zealand for millennia after we have all passed on.
The cult has a tap into the Treasury. It pays its priests well, so well that many otherwise productive people are drawn into developing the beliefs of this cult - inventing onerous new obligations and way of showing piety as they go.
Last year we had the spectacle of the New Zealand Government solemnly lifting tapu to exorcise evil spirits in our embassies around the world.
The Royal Commission on Genetic Modification reverentially went about New Zealand holding hui. The subject was science so recent and so arcane that few scientists have a confident grasp of it. In truly laughable passages the Commission solemnly recorded the signs and portents of these hui, including a bird flitting from rafter to rafter, as showing special significance. They urged the Government to make all haste in ensuring Maori were put in a position where they could exercise their special guardianship and express their exclusive spirituality in relation to indigenous flora and fauna. Apparently these cultural requirements will be satisfied by conferring modern entitlement to lucrative property ownership.
So New Zealanders, without knowing it, last year saw a new religion growing. When the Royal Commission set out, few Maori had heard of genetic modification. By the time they had finished it had become an article of faith, asserted especially by those to whom there will be political profit in it, that Maori spirituality was outraged by the prospect of mixing genes.
There could be perhaps some slight consistency at least in the minds of the watching world, with the beliefs from which this has developed. Development of an emergency supply of water for Auckland from the Waikato has been delayed. Some Maori professed alarm about the effect of mixing the life spirit in Waikato water discharged after it has passed through the filters and processes and bodies of Aucklanders, with the life spirit of the water of Manukau Harbour.
This latest manifestation of our new State religion involves human sacrifice (not extending to martyrdom of the anointed leaders of course). Maori are represented as wanting to forego the benefits of genetic engineering - leaving Maori diabetics among the first casualties, given that diabetes seems likely to be one of the first diseases to be tackled by genetic engineering.
And this month Canterbury people would have seen the forthright comments of Judge Treadwell, fighting a rather lonely battle to keep the Resource Management Act from becoming a subject of even more mockery. He reproached the Maori objectors who wanted him to block a subdivision because of the death curse that would follow interference with sacred site objects. They were so secret the objectors could not disclose anything about them including where they were. Yet the RMA forces the judge, and councils to blow other people's time and money taking this twaddle seriously.
Two Governments, National then Labour held up an important trademark reform, to introduce a regime by which Maori who assert they are culturally offended by a mark can require the registrar to cancel registration, without compensation to the owners.
Nothing in the Bill protects trademark owners against cultural offence mysteriously induced by greed.
Cowardice and Venality
Our social and political immune system should have been activated against the cult. Instead it is knotted in confusion. With literally scores of euphemisms those who should be the guardians of our political culture tip toe around the edges of the septic spots. When journalists, academics and elected leaders are feeling particularly frank they talk delicately about "Treaty issues", or "ethnic tensions".
Ordinary New Zealanders, in private, or at least unpublished by the self-censoring media, express themselves much more frankly. They intuitively understand what race discrimination is. They don't buy the rationalisations and the hypocrisy.
We must continue to be tolerant. We must be tolerant of much that we abhor. If we are true liberals we will be humble, aware of how little knowledge is certain. We will be charitable, knowing how hard it is to understand a person until we have walked in their shoes. Ours is the tolerance that says "I accept your right to hold those views, to live like that, to look like that, to do things I abhor. But that does not mean I must agree, or decline to judge, or tacitly support you". It does not mean we must agree to our taxes going to support conduct that we believe damages our society including Maori.
We allow Ministers to support law breaking. We tolerate official cowardice. We have tolerated, for example, unlawful occupations of public and private land. We have seen farmers intimidated from their land. We have seen a system shutting its eyes to child abuse and incest while parroting patent untruths about the special regard that the so called clients of the welfare system who were Maori, had for their children as taonga.
This is not to say that child abuse, torture and murder is any more prevalent among Maori than among other debauched products of the welfare system, matched on an age, education and economic status basis. But if we had not been cravenly tolerant we would have objected when the law gave a status to whänau, and the importance of maintaining ownership of children by Maori families that was patently not justified by any objective assessment of the interests of the children.
We have been betraying our own values of integrity in public administration and in application of the law when endemic venality is tolerated in bodies now benefiting from the millions of dollars sprayed around in "capacity building".
We know what happens to people corrupted by prospect of unearned wealth. It doesn't matter whether you are Maori or pakeha, it is very hard to transmit the values of diligence, thrift, honesty and respect for education. The third generation of a wealthy family rarely keeps that culture intact. Wealth is a corrupter of such values. Yet we are pretending that Maoridom will be uplifted by distribution of more unearned money to families which have not known wealth for 3 generations. A calculating government is spraying out money for "capacity building". There is no structure in place to measure or require anything substantive in return, or even any intention to demand performance.
We have tolerated warped priorities such as that which is currently seeing DOC spend millions to build banks around Ruapehu to prevent a sulphurous overflow from the crater lake reaching Lake Taupo and poisoning it for decades. The simple and cheap course was simply to lower the ice dam which raises the level of the lake. A small bulldozer could do it as annual maintenance. That was blocked by a credulous minister acceding to some assertion of cultural or spiritual offence by a Maori splinter group.
The left in particular has been corrupted by its vote buying conversion to support inherited aristocracy and tribalism.
The left are successors to a noble tradition of opposition to inherited privilege of all kinds. We can thank the left for some of the institutions that support meritocracy. The constructive left saw egalitarianism in terms of equality of opportunity.
How can their successors have any integrity when they support undemocratic tribal structures? Such pakeha are complicit in driving enterprising Maori to escape to Australia.
A Shared Problem
This sickly tolerance is not confined to pakeha. I saw this in the meeting house at Waitangi on Waitangi day. Clean and neatly dressed elders, many lean from a life time of work, tolerated rancid slobs with matted hair wiping their filthy feet on a defaced New Zealand flag. Interruptions to Richard Prebble's courteous address might have been part of the reasons why the slobs attracted my attention. The spectacle made it hard to take seriously the oratory about Maori mana.
Pakeha ceremony is equally vulnerable to such disruption and dissonance. We have lost the confidence as well as rights to be intolerant as private citizens. So we have weak mechanisms for maintaining dignity even on private but common property, such as a marae or a school. A healthy marae might exercise enough social (or physical) pressure to persuade such slobs to stay out of sight when there is company visiting.
Much of the blame must go to the lawyers. They have cowed the individuals who should be exercising private rights to sanction or exclude those who offend them. Schools, for example, that wish to enforce their rules are second guessed by judges. For State schools there may be good arguments that this should be so. There should, however, be no doubt whatsoever about the freedom of private bodies to make and enforce whatever rules they wish. The Courts are imposing public or administrative law burdens on private bodies. That treats them as if they were wielding the coercive powers of the State, burdening them with all the impoverishing paraphernalia of natural justice.
This sickly tolerance is not a Maori problem. Just exhorting Maori to change, is not a solution, though there must be honest exhortation. It is a New Zealand problem. All leaders should be held to account if they fail to stand up for civic virtues.
If I were a young Maori I have no doubt I would be exploiting the opportunities given by credulous and craven government, just as Maori radicals have for the last 30 years. During young and irresponsible years it would be as much fun as anything else going, to see how far you could push, what indignity you could force on the establishment, how ludicrous you could make your demand or request, before they would jib and stand up for their own values.
Almost any of us could be seduced into accepting illegitimate privilege, when it is offered by fawning twits in leadership positions.
There are thousands of Maori whose feelings about disorder and insult and bloated claims and fake spirituality will be stronger than that of most pakeha. We have all been waiting for someone in authority to assert the values we grew up with, as New Zealanders. Most of us want the equality before the law promised by our cultural inheritance and the Treaty.
It is discourteous to lampoon someone else's religious faith. Matters of religion or faith are personal. Yet someone has to start mocking ludicrous superstition. That is how we defeated many earlier superstitions. The proponents are calling in the State to enforce their beliefs. Being identified with laughable science should involve cringing, and finding a way of disassociating oneself. Mockery is a responsibility for everyone of intellectual integrity.
How did our inheritance of Liberalism let us get to this?
The Human Rights Act 1993 was pushed through by Sir Douglas Graham. It reversed the common international pattern of human rights law. Around the world human rights law is largely to ensure that the coercive powers of the state cannot be used to oppress minorities. Ours left the State free. It did not apply to the State, while it imposed on private individuals liabilities for conduct toward each other which breached no other law. The liability depends on whether the conduct is motivated by a newly unlawful set of beliefs or judgments about the other person.
Christchurch was the scene of one of the early tests. In the Christian Forecourt Attendant case the Court held that it had become illegal for a Christian garage owner to advertise for a forecourt attendant who shared his beliefs. He could have achieved it covertly. He could have discretely wasted the time of numerous applicants until he found one espousing Christianity. But he was naïve enough to be open.
The pilot for this approach to law was our Race Relations Act 1971. We passed it to satisfy the requirements of a United Nations Convention. At the time there was principled concern that it breached important liberal safeguards, because it made your otherwise lawful acts unlawful solely if you had the wrong motivation. Enforcement difficulties that have always dogged such law. Cynicism grows when only the foolish can't disguise their views enough to avoid getting caught by these kinds of laws. But as those anxious in 1971 feared, it has now been used as a precedent to create a vast new range of privileges.
The acme of this foolishness has been reached. Age is now a prohibited ground of discrimination. Perfectly competent adults are no longer permitted to agree with each other that age is a relevant factor in their relationships. Masquerading as a move to add dignity to old age, it has an inevitable opposite effect. Retirement for age was a near universal way of dealing with one of the knottiest problems of any human organisation or society, how to ensure timely succession without fighting.
Organisations have retiring ages so that they know that there will be predictable room to introduce fresh blood. They have them because capacities do change with age. They have them instead of individually tailored agreements, because individual rules are expensive to negotiate and administer. They have them because we all get old, and the rules therefore affect all equally.
With retirement for age there is no necessity to prove that the aged one has become incompetent. Accordingly all can depart with dignity. And organisations can plan on perpetual renewal, knowing that while age may not necessarily mean incompetence, freshness and renewal are vital to every human endeavour. Only those willing to lie to themselves deny that age is accompanied by some fading of powers, even if wisdom is a compensation in many cases.
The rhetoric of liberty and tolerance were used and perverted when this law was made. The argument was that Parliament should make it illegal to have rules that assume characteristics of New Zealanders. Everyone must be treated as an individual, not as a member of a class. Perhaps there was a permissible argument to bind the State, even a State that was busy erecting discriminations and privileges based on race. But no Parliamentarian, or even as far as I can tell any significant commentator, pointed out the civil liberties travesty in including age as a ground of discrimination forbidden to private individuals, even by fully informed and objectively rational consent of competent adults.
No one even raised the practical own goal which has now put over 50's among the hardest to place in employment. Two decades ago they were among the least affected by long-term involuntary unemployment.
And at the same time our law has retreated from its respect for the individual right to choose of even the most humble citizen, safety liabilities have reinstated feudal responsibilities of masters for their servants. Employers are made liable for injuries or losses they often have no practical way of controlling, except with infinitely pin pricking supervision and management.
Their only defence is to show they have insisted on absolutely rule bound supervision. The law is making sure the jobs of subordinates become less satisfying, that individual initiative is crushed. It is also ensuring that we consume ever more resources in dispute resolution and second guessing excesses of authority (in employment law).
What Should We Do?
How should we express our intolerance of these assaults on `enlightenment values'? The answer is simple. It is the law and the State that must be tolerant. Not private individuals and companies. They should be required only to obey sound law. Law which prevents force and fraud in our attempts to persuade others. Law which requires us to reimburse others for injury we cause to their property or person. Private individuals and corporations cannot threaten others with unlawful acts, to coerce others exercising their similar freedoms. That is the beginning and the end of it.
Liberals can and should be intolerant of evil. They should express their views strongly. They should try to persuade, to shun, and to decline to employ or to support those whose values are antithetical to their own.
It is the task of the law to ensure that does not step over the boundary to become coercive by threatening violence to the person, or injury to property. The State has the monopoly of that kind of coercion.
The law and tax making and tax distributing powers, the coercive power of the state must be confined so that the prejudices or religious or other beliefs of rulers, or a ruling class, cannot be imposed on others.
Liberalism's greatest achievement is tolerance. Tolerance is the distinguishing badge, and the principle it must preserve at all costs. Yet tolerance is also its Achilles heel.
Tolerance can be the same thing as indifference or apathy. Forced tolerance of wrong is a weapon in the hands of the enemies of freedom. If tolerance means you have to be non-judgmental, people will excuse the inexcusable. If tolerance grows from a restriction on interference by the law, into interference with otherwise lawful actions, it can sustain not virtues, but vices. It is a vice not a virtue to impose liability on private individuals who discriminate against people they consider bad.
I would make an exception here for law against race discrimination, simply because race hatreds come so easily to us. Forestalling communal viciousness based on colour has been such a hard and endless task in every society.
And of course in distinguishing as I have, between Maori and pakeha as if they were two peoples, I run the risk of allowing a victory to the collectivists. Men and women of ill will on both sides want us to fall into that trap.
That is seeing each other first as members of another race or culture, and only then as fellow humans, or as neighbours, fellow sporting fanatics, members of a school community, fellow worshippers, shoppers - whatever.
Blurry inheritance of race as a qualification for state privilege should be illegal. That is what we must not tolerate. For most New Zealanders official identification by ethnicity is artificial, irrelevant and offensive. As private individuals, of course we must be free to identify in that way. There is no menace in a Maori All Black team, or a Celtic Rugby club, or a Samoan Church. None of these bodies are calling for the coercive powers of the State to grant them privilege.
Our forbears who developed, fought for, and then defended ideals of liberty in a hostile world knew these things about freedom and tolerance well. As their successors, after five generations of prosperity and domestic peace, we have forgotten much of the background. We use the language of rights and of freedom like children singing carols as a ritual, without any understanding of, let alone belief in, angels or Father Christmas.
Restoring and protecting liberty is a matter of summoning memory, then the energy and the courage. Because the formulae are already available. We just look at our forebears' work to know what liberty means and needs. We just need to clear away the rubbish that has accumulated. Nearly all that is needed to restore liberalism's values is to undo about 15 years of disreputable law.
The Treaty of Waitangi will be a vital element in restoring classical liberal respect for property rights. If that can restore and protect Maori property rights they will be protected for us all, because Article 3 of the Treaty says we are all to be equal before the law.
Without the false, recently manufactured, and now mysteriously unknowable principles the Treaty is a cultural treasure for us all.
The Tide is Turning
I believe the issues we are considering today will become major issues in the coming election campaign. Winston Peters, despite his sponsorship of the tight 5 warriors in the last Parliament, has now reverted to his earlier mode. In 1990, as a National Minister, he described the partnership description of the Treaty as a myth. He will campaign against the Treaty cult this year.
In Parliament last year, every fortnight for months, we had genuine debates about whether voting separatism was racist or just a Treaty obligation, or simple a way of advancing the interests of a group who would otherwise be submerged. Very little of that debate was reported. Ordinary New Zealanders who feel there is a vast media conspiracy to ignore their alarm would have been reassured had they heard that at last the politicians were getting the courage to debate.
There are many Maori leaders we classical liberals should honour, for they show liberal values in action. Sir Tipene O'Regan with his respect for property rights. Alan Duff for his willingness to attack the warrior mentality, the women who established Köhanga Reo in despair at where the state education system was taking their children, the hundreds of dedicated Maori wardens (and Maori Women's Welfare League people) who attend gatherings to help make sure bullies and vandals and thieves and drunks and people who abandon their kids don't spoil life for the rest of us. They are not resting on complaints that the police cannot do it all - on whining for more law.
It is the chemical fertiliser of government patronage allocated according to race or other class identity that is making it worth focussing on what divides us rather than what unites. That is the dioxin in the government spray. When consultation powers and veto rights and educational and health privileges, and excuses before the justice system can turn on asserting some inherited racial identity we can expect to feel poison in the system.
As liberals, we are the trustees of the ideals that generated the US Constitution, the United Nations Charter, the Bill of Rights, and the enormous liberation of human enterprise that came with freedom and property rights. We do not need to apologise to anyone for opposing racial identity politics, the false new privileges that hitch hike on and ultimately debase the language of rights.
We need to assert our values. We need to become intolerant of government discrimination. We need to point out hypocrisy and corruption. We need to mock pomposity and spurious religiosity wherever we come across it. We need to encourage people to recognise that the anointed are emperors without clothes, that they retain their power to force piety only because there has been so much silence that people do not realise how few actually believe the nonsense that is mouthed so widely.
We need to recognise that as one people living in New Zealand with streams of culture drawn from Europe, Polynesia and now Asia none should have trump card status. We have to demand high standards of all, and where there is failure, face it squarely. This cult rests on intellectual bullying, and cowardice in the face of it. Streams of money buys off those who are not cowed by social pressure.
We can fix some of this at an election. The rest we can fix only when the cult has become discredited by New Zealanders generally.
For ACT as a political party this is straightforward but not necessarily easy. It will be easy to mistake aggression for courage or dogma for confidence. But the way is simple.
One colour blind state, where the law is tolerant, and prevents the State from suppressing individual choice.
Equality of all before a tolerant law.