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Unfranked Constitutional stocktake?

26 May 2005

Unfranked Constitutional stocktake - what stocktake?

I appreciated today’s web report of another Attorney General speech across the bows of the judicial supremacists. I am in Australia with the Justice and the Electoral Select Committee. Today we are to sit humbly at the feet of Australasia's most "heroic” sitting supremacist - Kirby J (though in the NZ pantheon Lord Cooke will outrank him).

But the report reminds me of Labour's success in quelling public uneasiness about our constitutional fragility.

I’ve been a grumpy member of Parliament’s Constitutional Arrangements Committee since last December.

ACT agreed to participate though National and NZ First refused. We all feared that its sole purpose was to bury public concern about Labour’s partly completed agenda of constitutional changes. Those fears were justified.

The committee’s public output speaks for itself. As a political tactic, Labour’s move worked. Despite refusing to submit to Labour's referee, National and NZ First have not kept their own constitutional balls in political play. Now Dr Cullen is fronting for Labour as a responsible constitutional conservative.

Have a look at the interim report on the Constitutional committee's web- site http://www.constitutional.parliament.govt.nz/.

How many of the following issues are dealt with?

- Giving powers of general competence to local councils in 2002. That swept away the centuries-old protection created by the courts, when they confined artificial legal persons strictly to the purposes and powers expressly granted. How will “consultation’ protect citizens from being taxed to fund their competitors, or to pay for bread and circuses for mass voters, or to favour particular business owners with grants and rate relief, or to promote contentious socio-religious or political causes. What now protects individual liberties from local authorities’ new powers?

 What is the current status of the evaporating conventions that previously protected judges against unfair political criticism for trying to make the best they can of deliberately vague legislation? How could they be reinforced?

 What mechanisms resolve tensions when Parliament fears that judges are usurping the law, making function of Parliament short of open reversal or confrontation. Should Parliament need to contemplate the sacking of law-making judges to restore the democratic right of the people to sack those who make the law?

- What defences do we have against the strongly interventionist tradition of our State, dating from when we were the laboratory for ‘socialism without doctrine’, with German style laws like the Industrial Conciliation and Arbitration Act 1894, the first universal old age pensions shortly thereafter and the use of law to minutely regulate private business for much of the 20th century

- How far have we eroded our secular state traditions?. The landmark Education Act 1877 over-rode the Protestant/Catholic divide that bedevilled other countries.

Broadcasting and other state functions were consciously secular until recently. Numerous recent provisions give trump card status to undefined Maori spiritual or cultural values, putting the coercive power of the state at the service of superstitious charlatans. Meanwhile the adherents of our mainstream traditions are rightly told they must just lump their hurt over deliberate insult to their beliefs, but wrongly forced to pay taxes for state bodies which join in the insult (e.g. NZ on Air funding of programmes that offend them, the “virgin in a condom”)

- The sale of “indulgences” by way of the paid withdrawal of RMA objections to spiritual and environmental “affronts”.

- What is left of the statutory independence of the Commissioner of Police?

- How many recognise the unique initial focus of our human rights law which reversed the common pattern of protection of the citizen from the abuse of state and political power? Instead it interfered with otherwise lawful conduct between citizens, while letting the state discriminate.

- How much damage have we done to our inherited commitment to equality before the law, and appointments on merit, from historical and new “positive discrimination” such as reserved Maori seats and appointments and racial or quota entitlements to publicly financed services? How many provisions now discriminate on the grounds of race (like laws reserving appointments for Maori, giving privileges under the RMA to Maori)?

- How far does international law trump New Zealand law? For example, Ministers Paul Swain and Phil Goff say that United Nations rules tell us we can’t make prisons any more unpleasant than they have to be, that we cannot abolish human rights compensation to prisoners, nor eject dishonest refugee claimants summarily. Are they right? What are the limits to the scope of “international law” and the vague pronouncements of international bodies to justify new discretions for judges to change longstanding existing law and to circumscribe Parliamentary sovereignty?

- Why have none seen, as constitutional problems, the creation of new sources of patronage and corruption outside the scrutiny of Parliament and the safeguards of the appropriations process, by regulatory takings and grants of non-monetary, but extremely valuable privileges, such as carbon credits and land use consents.

- What has been the cost of the absence in our human rights law of any express protection of property rights, despite that being internationally odd? What is left of the principle of compensation for takings?

- Why have both big parties continued to slough off political decision-making to judges through the calculated use of undefined terms and weasel words which judges must then find meanings for? For example; "take into account", "consultation", `respect', "recognition", and of course, "kaitiakitanga", the “principles of the Treaty”.

- Is the Treaty a "living document" as Margaret Wilson and Dr Michael Cullen believe? If so who can decide what bits will grow and which bits will be pruned?

- What are the "partnership obligations" in the charters and constitutions and governing laws of myriad agencies and authorities? What have they done to “one person - one vote” democracy?

- What have we gained, having lost the principle of open courts where justice was seen to be done, given blanket secrecy (Family Courts, Youth Courts), name suppression, and the suppression of criminal records?

- What use is the balancing provision in the NZ Bill of Rights Act and requirements to report on consistency, given the smooth passage in to law of blatant attacks on freedom of association and on social capital, like the prohibition of positive discrimination for marriage, age discrimination prohibitions and employment law’s abolition of freedom of contract between consenting adults.

I’ve put most of these issues to the committee in writing twice since ACT first told Dr Cullen on 28 November that we expected a stock take to assess obsolescence, list missing items, record damage and generally value the stock.

The anodyne descriptions of our constitution, you’ll see on the committee’s website, are the product of highly qualified advisers. I can not say more without breach of privilege. Draw your own conclusions.


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