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Value the Fourth Estate -- Stephen Franks

Value the Fourth Estate

Sunday 1 Dec 2002 Stephen Franks Speeches -- Governance & Constitution

Value the Fourth Estate:
Otherwise it is Lonely Defending Liberty

Speech by ACT New Zealand Justice Spokesman Stephen Franks to the ACT Auckland North Regional Conference, Bruce Mason Centre, Takapuna, Auckland, on Sunday December 1, 2002

We often complain about the media. In the last election we had to go past them to communicate directly with voters. That was because the issues that we care about simply did not fit their view of what the election was about.

Television wanted to run the election as the presidential worm episode of a soap opera. Meanwhile we were trying to campaign on substance, on things that will determine whether in 20 years we are living in some trashy backwater, festering in compulsory stone-age superstition and cronyism. We campaigned on our sheer hard work in and out of Parliament on the issues that will decide whether we as a nation can retrieve our place as a proud part of the world's leading civilization, worthy inheritors of the Enlightenment.

Issues like education standards, criminal law that means what it says, and welfare's destruction of the family and the work ethic. It was hard. Faced with superficiality and a conscious or unconscious bias, it is easy to see some journalists as the problem, and not as allies. So I want to tell you a heartening story from my Justice and Electoral Select Committee meeting on Wednesday last week.

First, the background:

We were hearing submissions on the Government bill to suppress records of all ten year old criminal convictions if there have been no new convictions since. It was brought in as a political tactic by Phil Goff to ensure Nandor Tanczos was not left with the political credit for his earlier Clean Slate Bill.

Both Bills appeal to New Zealanders' sense of fairness. Nearly all of us are willing to give someone a chance, to overlook minor convictions after ten years of going straight. And that is how we act. Justice officials told us there are around 700,000 people in that situation, even ignoring traffic infringements. There is no evidence that many of our minor offenders have suffered permanent social and economic exclusion

Of course most of the submitters were eager to show that they were compassionate. Asked whether they support the Bill most seem to have treated it as a question whether they personally believe in giving offenders a second chance. But the Bill is not about second chances. People can already grant second chances.

The Bill does not wipe the record. It is rightly there to be revived if the offender is caught again. Section 11 (2) of the Bill orders the person to lie if asked about their record. The drafting is coy, "... if the individual is eligible under the scheme, the question must be a way that is consistent with the scheme". That can only mean an instruction to lie. There is a $10,000 fine for coercing an individual to provide information "that is required to be concealed under the scheme".

When faced with the real question, whether they wanted the state to punish anyone who mentioned or asked about the criminal record after 10 years, some had second thoughts. The Police Association looked uncomfortable. The National Council of Women said they would put freedom of speech above the Bill.

Think, for example, of Bill Clinton's "I did not inhale" TV interview. That was asking about an offence - whether or not he inhaled. The pressure to tell the truth is plainly coercive. Our TV submitters confirmed to my questioning that television interviewers will have to work under new rules to ensure they do not ask such questions. That famous Bill Clinton interview will become illegal in NZ.

Alone in Parliament, ACT had no doubt about the way to vote on this Bill. We start from first principles. We stand, for a start, for transparent justice, open courts, open sentencing, and open access by New Zealanders to know whether sentences are served.

We stand against name suppression. Name suppression after conviction is an interference with the right of a free press, it is an interference with the right of people to know that their justice system is working, and it is bad for the justice system. We stand against secret courts.

The Family Court fails on that ground, and so do the proceedings in the Youth Court. They fail also because secrecy has hidden such bad results. Youth justice in New Zealand is a disaster. The primary beneficiaries of clean slate laws will be kids who already believe that their offending does not matter. And ultimately they will be the victims, because telling families and kids that good reputation does not matter will mean many never acquire the habits that could give them one.

We stand simply for freedom in its oldest and most crucial form, the right of free speech. These bills say that there is a certain category of truth that no one may speak. No one may speak the truth about someone's record. Even in praise it would be illegal to do so, and praise is what many of the offenders who live down their records deserve.

If ten years ago someone had a misdemeanour or a series of misdemeanours, but has been straight since then and become of benefit to society, the fact of that record is something to be proud of. It shows that that person has genuinely lived down their past has actually overcome obstacles, and not merely been allowed to pretend their actions never happened.

This bill undermines normal social sanctions. The Government is trying, with `judgment free' welfare, privacy law, name suppression and now this Bill, to eliminate all the normal social sanctions for offending.

The most elementary sanction - the most elementary reason not to offend - for most people in society, is fear about their reputation or concern about their family's reputation. Real remorse and real conscience is driven by real consequences. This bill is saying to young offenders, to entry-level offenders - the ones we really have to deter if we are to get on top of crime - is "Don't worry about it. The State will hide your past. The State will instruct you to lie". That is what clause 11(2) is about.

The drafters could not bring themselves to say that the question must be answered "No". That would have been simple, plain language, straight-forward drafting. Instead, we get this coy little euphemism: "must be answered in a way that is consistent with the scheme". Does someone in the Government feel some shame?

It is injustice when a person who has no reason to be embarrassed, who has no record to live down, is judged in the community as if he or she has no advantage and has done nothing better than the person who has any number of offences to live down.

ACT also stands for compassion, but it has to be genuine compassion. The community is not being compassionate when the State decides that it will forgive on behalf of the community because it feels that the community might not forgive. That is not compassion, that is not forgiveness, that is not living down the record. It is suppressing the record - they are two entirely different things.

This kind of law starts New Zealand down the Soviet Union route. Must people be discreetly airbrushed out of a photographic or video record because it discloses the commission of an offence for which there was a prosecution and a conviction? Newspapers and libraries all over the country will have to purge or white out articles and archives that contain reports of conviction records taken from official court documents.

The law is touted to allow the rehabilitation of minor offenders. But there is a tell tale of dictators' totalitarian instincts to shelter their cronies, even after death.

The Bill says the records are to be kept secret for 25 years after the death of the offender. Plainly Labour takes a very long-term view of rehabilitation. Don't write criminals off just because they are dead - you just never know when their innate goodness will shine through and self-esteem will finally start to work.

We also see the sinister hand of the Associate Minister of Justice - Margaret Wilson, the one who tried to revive, for the benefit of politicians only, the threat of criminal defamation charges.

It seems she has again breached section 7 of the NZ Bill of Rights Act that requires her to provide an opinion on whether a Bill conflicts with our fundamental rights. Obviously this Bill does trample all over section 14's freedom of speech right.

This law will be unenforceable unless we are willing to sacrifice not only freedom of speech, but also freedom of association. Surely it is an essential part of that right, to be able to decide whom you want to associate with, on an informed basis. It is utterly immoral to make it illegal for a women (or her family) to enquire about the past convictions of a partner, for parents to ask about a would be baby-sitter, for an employer to ask in relation to a job as cashier, or receptionist handling confidential medical records, or trust clerk, or security guard.

The enquiry does not mean the applicant is necessarily excluded - but a positive answer is a good signal to ask further, perhaps to get more references. Instead this law says the applicant must lie.

And so I get back to where I started, asking you all to consider where we would be without the media on freedom issues. Because there were only two submissions over that long day which raised the freedom issue and opposed the bill. One was from the country's newspaper editors, and the other our television broadcasters. I commend them to you. They were the only submitters who even thought to mention freedom of speech.

And who were all the others?

Worthies like the Law Society. They like to support lawyers' privileges on the grounds that an independent profession defends our freedoms and the rule of law against overweening government. What a laugh. No mention of freedom of speech from them. Their contribution was technically helpful, but with no more understanding of the constitutional and legal importance of the bill than the teacher union's bleat against an exemption releasing the criminal records of teacher applicants. What a union. To want their members to be at risk of working alongside offenders without being able to find that out!

At least the lawyers' disciplinary body wanted an exemption for continued access to the criminal records of lawyers, and would-be lawyers.

The standout submitter was the Human Rights Commission. If any body in the country has a duty to weigh impulses to compulsory charity against elemental human rights to freedom of speech and association it must be them. What did we get? Pages and pages of sentiment based on unsourced impression. No mention of the Bill of Rights. Not the slightest hint of awareness that there might be a freedom issue, and that MPs might appreciate some information in balancing it against the slogans behind the Bill. No research to see whether there was a real mischief, or whether the Bill was the best or only way to fix it.

Ah yes, without needing research they did know of another way to fix it. Make it illegal to discriminate against people on the grounds of a criminal record. Then the human rights and employment lawyers and judges could review any case to decide whether the individual should be allowed to take into account any crimes they are allowed to find out about.

After the Human Rights Commissars came the saddest submission of the day.

Business New Zealand told us they supported the Bill. Worse, they came to the same point as the Commissars' experts. Apparently, all of the (many?) employers they had consulted were happy to forgo the right to truthful answers about prior convictions, or even to ask such questions as long as they had a right to ask about relevant convictions.

When asked who would have the final say on relevance she had the grace to look unhappy, before advising that it should be the normal anti-discrimination processes, under employment law. Ms Knowles explained that the organisation's opposition to a record suppression proposal in 1988 was outdated, because the country and employers were now more humane and forgiving. That made it a bit harder to explain why the law was needed, if employers had become happy to employ without regard to old criminal records even when they were allowed to ask about them.

But unlike the National Council of Women, Business NZ did not resile, as it sank home that they were favouring more compliance traps with which rat-bags could hound hapless employers.

So spare some gratitude to Gavin Ellis of the Herald, and Bruce Wallace for the Television Broadcasters, and Lincoln Gould and Hilary Souter of the Newspaper Publishers Association. The media may irritate us, but at least on obvious free speech issues they stand with us, classical liberals, in defence of liberty.

For more information visit ACT online at or contact the ACT Parliamentary Office at

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