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The constitution is broken but who would fix it?

The constitution is broken but who would fix it?

Stephen Franks
Wednesday, 10 August 2005
Press Releases - Governance & Constitution

ACT Justice spokesman Stephen Franks today described his service on Parliament's Constitutional Arrangements Committee as an "unsatisfying duty".

"We knew that Helen Clark planned the committee to divert public interest after the bare majority Privy Council abolition, and other more covert constitutional vandalism. We knew we were being used to hose down concern but we had to serve to deny Labour and the Greens a parliamentary free hand (see

"The report will be summarised as saying 'If it ain't broke don't fix it'. A better description would be 'It is broke but don't let any one near it until more people can tell bogus mechanics from real ones'," Mr Franks said.

"I believe we would be better served now by a written constitution. However, a constitution-writing project now would be like the EU debacle, a ruthless struggle by every special interest group to get its own legal button on the state's compulsion levers. It might be deliberately written to help unelected judges implement an elite agenda through so-called 'interpretation'.

"Constitutions are best written in reflective exhaustion after a crisis or under uniting external threat, when people are focused on the core values they share, rather than the legal leg ups they want over each other.

"Constitution writing would absorb the busybodies. Ordinary hardworking New Zealanders have better things to do with their time than try to outlast the political junkies.

"On the other hand, I strongly support the proposed specialist parliamentary committee as a small safeguard against the kind of covert or ignorant constitutional changes we have suffered recently. Some are recorded in the report, others are not. For example:

- New Zealand passed law against race discrimination then made it nonsensical with provisions like reserved appointments for Maori, and trump status for Maori spiritual and cultural values under the RMA. Does New Zealand still have separation of church and state when Maori superstitions are given legal force?

- Transferring political decision making to judges through undefined words for which judges must find meanings, like 'take into account', 'consultation', 'respect', 'recognition' and 'partnership'.

- Conferring on local authorities so-called 'powers of general competence', reversing hundreds of years of protection of the liberties of individuals by closely specifying the purposes for which local rulers may use their powers.

- The loss of open courts where justice could be seen to be done, through blanket secrecy (Family Courts, Youth Courts), name suppression and the suppression of criminal records.

- Abridgements of free speech by the Broadcasting Standards Authority, the Advertising Standards Board, and the threatened classification of unfashionable views as 'hate speech'.

- The loss of freedom of association under anti-discrimination provisions like those that attack positive discrimination for marriage.

- The use of so-called international law to reject New Zealanders' demands to abolish compensation to prisoners for alleged breaches of human rights, or to eject dishonest refugee claimants summarily.

"I would like to have been working on remedies for these problems, but the warnings in the report against rushes of blood to legislative heads is better than nothing," Mr Franks said.


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