I may rue this column.

Most politicians will be feeding the hysteria over the Police “computer porn scandal”. They’ll assert their own ‘purity’ by frothing public indignation and alarm to all who’ll listen. Some will be keeping their heads down; hoping their party ‘thought police’ have not noticed any initial scepticism or amusement. Even the tiny few, who would like to stand up for common sense, will be politically calculating enough to wait. They will want to know how much of the “porn” is so bestial that no one would risk being thought to defend anyone touched by the scandal, even if most of it turns out to be routine grubbiness.

Representing ACT gives me privileges other MPs have lost. We abhor the cowardice of political correctness and the intellectual dishonesty of those who promote it. When all other politicians go silent, or join in conspicuous outrage it is time for a genuine opposition to stand up.

So when I heard Attorney General Michael Cullen this morning, damning the “macho culture” in the Police, and the PM reviving her suspended ‘Police culture’ inquiry, I hear the echo of John Tamihere’s warning about Labour’s pathological political correctness.

There are three vital points to be made.

First, someone must call for fairness to the cops involved. What I’ve heard so far suggests that most of the targets will just be victims of fashionable prudishness, not porn perverts. Even the Police Commissioner has said they won’t lose their jobs, as long as they recant and promise never to show signs of heresy again.

Every practical leader knows there will be laddish humour, tasteless and black jokes in most workplaces where lots of males work under pressure. That is how many healthy work cultures cope with stress.

Of course the Commissioner has the right of any employer to enforce a computer use code that protects his organisation against dangerous critics. If the rules have been breached there should be sanctions.

But I’m worried that the woeful face of the Commissioner and the solemn faces of the reporters revelling in the news of more than 300 cops in trouble, are signs of a building over-reaction that does not distinguish between sicko stuff that should be criminalised and the everyday lewd and grubby stuff that should merit no more than a lip service warning. Police Association President Greg O’Connor’s cheerful face belied his serious words condemning the culprits. Can it be that he too just can’t afford in Labour’s new order to be suspected of trivialising something that may in fact be everyday and trivial?

When Police are so short staffed, it would be tragic if the same government that has legalised prostitution and taken away Police powers to enforce laws against underage sex, then drove out 300 more Police for being sadly, too normal.

The Commissioner can’t put up his head to call for balance and the Police Minister won’t. They will be only too aware of the vengeful attitude among Labour’s powerful women. When one of the country’s best judges was alleged to have sex images on his computer, Attorney General Margaret Wilson condemned him immediately, even though the Chief Justice had already dealt with it.

The second concern was prompted by the sad voices of spokespeople for women’s groups, who said it will be worrying for the women who will have to lay crime complaints with police they may now suspect of having seen “inappropriate” images. Worries about collections of vicious images, illegal images I could understand, but they seem to be working on the theory that only the politically correct could be good cops.

Does that mean assault victims should be scared to seek protection from cops who like karate, or boxing, or a bit of “biffo’ in rugby? I’d say the opposite. Does it mean our army should weed out the guys who hunt, or read war comics, in case they can’t be “peacekeepers”?

If I were a victim of violent crime, I would be more worried about complaining to the Police about the grovelling nancies we will have after their cringing leaders have driven out everyone whose taste in humour fails the Labour Cabinet’s cultural safety test.

I know of no evidence that a “macho culture’ is incompatible with diligent and honest upholding of the law. I’ve seen nothing to support theories that being a good thief-catching cop is compromised by irreverence toward the sinister sisterhood. A macho culture could be one of the better methods of eliciting selfless courage when it is called for. I suspect that far more unhealthy cultures will revegetate any cultural desert left after Labour’s Commissioners finish their inquiry into the Police culture.

This brings me to my third concern. Where is this fear of “objectionable” thoughts taking us? What prompts a credulous Radio New Zealand to solemnly pass on an expert’s warning that undesirable material is “a major problem for NZ corporates”, with over 30% of work computers infected?

I believe it is undiluted hypocrisy and we are all victims of it. A large proportion of the population has been forced to swallow their daily offence at public lewdness, degrading acts broadcast to every family living room, raunchy billboards and print in every magazine rack. Yet the secretaries’ flirtatious teasing of my naivety in my first law clerk workplace would now count as harassment and the employer would be at grave risk. The fake high-mindedness forced on employers gets more pressing with every government move to foster public squalor and degradation in sexual matters.

The cops who will be pilloried are just collateral damage to a Government desperate to look terribly strict on computer images of sex to distract attention from the actual sex loosed by their own dodgy agenda described by John Tamihere

I may rue this column if too many of the images prove to be truly disgusting and illegal. But in the meantime I’ll stand up for the many normal folk among the unlucky 330 caught by the Police November snapshot of their database.

I am proud to be an ACT MP, not obliged to mouth the platitudes of all the others.

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.

Who me? A criminal record? Nope.

Since May 2004 the government’s new Clean Slate Act has hidden the criminal records of over 500,000 New Zealanders.

However criminals don’t have to apply for a clean slate.

No. It is automatic. The government automatically conceals the criminal past of offenders after seven years of not being caught.

The obvious pointer to future offending is past offending, especially multiple past offending, and one of the best incentives to stay straight is concern about your reputation, and the reputation of your family or iwi. So if your past offending is concealed by the government then criminals are encouraged to lie about their past law breaking.

Young offenders need not worry about their reputations.

Those who employ people in positions of trust are not allowed to know of their past history.

This law isn’t about giving second chances. It is about nine, ten or fifteen second chances. Most New Zealanders who know about one or two long past offences will as a matter of course give offenders a second chance.

But this Bill is about forcing forgiveness, not because of compassion, or being satisfied that the past is the past, but through compulsory ignorance.

This law will not work. It will hurt people who might expect help from it.

We are your vocal watchdogs in this time of pussyfooting on crime.

Give your Party Vote to ACT.

If you think that we should be able to find out about a persons criminal record before employing or trusting them, then send me your views to me in an email.

“Yeah whatever!!!”, was the first reaction to my applause of yesterday’s winner in the member’s bill raffle. The next response said “It’s a dangerous statement”, meaning dangerous for me, of being misinterpreted. Here is the statement:

“Stephen Franks today pledged ACT’s full support for MP Gordon Copeland’s member’s Bill to extend the New Zealand Bill of Rights Act 1990 to protect property rights.

“No reputable human rights code omits property rights as a foundation,” Mr Franks said. “Some historians and scholars make a strong case for property rights being more essential than democracy to establishing freedom, and more valuable in preserving it.

“Six years ago Act MP Owen Jennings tried to achieve the same thing in a bill of the same name but Labour and National ganged up against it.

The release then praised Mr Copeland’s selection of the topic for his member’s bill, and added “This Bill should get unqualified support from all Maori MPs. Disguised confiscation under the RMA has devalued land owned by Maori just as it has for other New Zealanders. Classical English property rights were promised to New Zealanders in Article 2 of the Treaty, but Labour and National governments have trashed them.

Other feedback was more encouraging. A supporter pointed to colonial Hong Kong, as an undemocratic haven of relative freedom for Chinese.

Then a prominent NZ liberal academic affirmed the intellectual credentials of those who’ve argued that property rights protect human rights better than democracy, concluding “I’d say both… are vital”.
Private Property Rights in History

The original champion of property rights was John Locke, but it took the 5th amendment to the US constitution (“property shall not be taken without just compensation”) to lock property rights in to the grandfather of all constitutions that make human rights the heart of the rule of law.
Modern Scholarship

In “The Mystery of Capital” Hernando de Soto explains how a lack of secure property rights leaves most of the world’s population without the mechanisms to turn their assets into more productive ‘capital’. Tom Bethell’s “The Noblest Triumph” illustrates similar points in a comparative historical review of prosperity waxing and waning.

David Landes, in “The Wealth and Poverty of Nations” links the property rights characteristics of peoples to their cultures. He explains the high correlation between respect for property rights, and wealth. What incentives do cultures set up in what they reward and punish? Do they reward taking more than making? Or making over taking?

Harvard scholar Richard Pipes in “Property and Freedom” builds the case for the essential connection between property rights and the development of law and individual liberty, beginning with Greece and Rome. He contrasts England, where property rights and parliamentary government advanced hand-in-hand, with Russia, where restrictions on ownership for centuries abetted authoritarian regimes, and have left a culture where “might is right” persistently defeats attempts to create a climate of commercial and political morality.
New Zealand’s PC Version of Human Rights

The omission of property rights from the New Zealand Bill of Rights Act 1990 was disgraceful. Many Commonwealth constitutions were framed during the baleful intellectual reign of post-Fabians of the London School of Economics. Independence leaders often saw property rights as an unfortunate impediment to ‘land reform’. Most Commonwealth constitutions nevertheless provide for property rights. Singapore is the notable exception, along with New Zealand.

The significance of this omission – and the extraordinary New Zealand ignorance of its importance, can be seen in Tom Allen’s “The Right to Property in Commonwealth Constitutions”. In Allen’s comprehensive work, New Zealand does not even have an index entry. Of the hundreds of case citations only four are New Zealand cases, none upholding property rights. Among over 200 works in Allen’s bibliography there is only one with any recognisable New Zealand connection.(1)

All power then to Mr Copeland’s arm. If they are serious United Future should require a Labour undertaking that the Bill will not lapse when Parliament rises for the election. They should make it a condition of voting for May’s Labour election budget, that the Bill will be part of the carry-over motion.

(1) An essay by Michael Taggart in Forsyth and Hare (eds) ‘The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC pp91-112, Oxford: Clarendon Press, 1998. Michael Taggart is also acknowledged as having read a draft of chapter 7 of Allen’s book.

What have these two Bills in common? Both are the brainchildren of Justice Minister Phil Goff. Both have been delayed by Ministerial dithering, the first by a few months, and the latter for nearly six years. Both will embarrass their promoters if they pass but I think neither will pass in its current form. I hope to be blamed for blocking both.

Lawyers and Conveyancers Bill

On Thursday 31 March Dr Michael Cullen shelved the Lawyers and Conveyancers Bill. He blamed me, for being armed with amendments to force a longer Parliamentary debate than he will tolerate before the election. If that Bill never comes off the shelf after the election I’ll proudly claim the credit. It is rare indeed for a Deputy Prime Minister to acknowledge that a minority opposition party MP has derailed 330 pages of government law fiddling.

The public will be indifferent. Some lawyers close to the Law Society politician/bureaucrats in Wellington will grieve. Few others will pay much attention.

But the shelving has political significance. It reveals the weakness of a seemingly strong Minister who tries to change law without a framework of principle.

In opposition the Hon Phil Goff staked his populist reputation on two vows. The first was to toughen up on bail, which he managed in 2001 with only a little watering down by his officials. The second was to end the lawyers’ alleged monopoly on conveyancing.

Who better to deliver on such a promise than a Minister of Justice with an army of policy advisers and law drafters, and the advantage of starting with his own Member’s Bill already before a Select Committee?

Seven years and two full terms as Minister of Justice have shown the second vow to be empty. Even if passed, the now monstrous Bill would have mocked his original intentions. The Law Society lobbyists got the better of him, though ultimately they scored an own goal with an embarrassingly muddled bill (Unfranked 30 last August summarised my criticisms. See http://www.act.org.nz/item.jsp?id=25979).

So the new Attorney General’s decisive shelving has rescued Mr Goff. A freshly empowered law society could have flexed new anti-competitive muscles against the eight non-lawyer conveyancers now in practice, against the accounting profession’s competition with law firms, and against innovative lawyers working outside the traditional private partnership.

Prisoner Payouts Bill

This companion example of dithering ineffectuality is still unfolding. The Select Committee report is due in early May. The Minister was forced to produce this Bill to hose down near universal outrage at cash awards for prison guard breaches of prisoner treatment rules. After months of huffing (and a draft ACT Bill) Mr Goff produced a Bill to freeze payments until the prisoners’ original victims have had a chance to pursue any civil damages claims.

There is a major drawback. Few victims have civil claim rights worth a fig (ACC blocks them). The bill does not expand victims’ rights to reddress. On the other hand prisoners’ rights may be limitless. They are shiny works in progress by judges making up so-called human rights law as they go. Young J’s judgment reveals a man just thinking of numbers and comparing them to numbers in earlier cases equally unrelated to any measurable loss or damage.

Submissions to the Justice and Electoral Select Committee, including an excellent one from the Law Society, showed conclusively that the Bill will not work even as a cosmetic. It sets up a lottery with derisory odds. Damages to prisoners will be unpredictable and unrelated to the losses caused by their crimes. The few successful victim claims will either undershoot or vastly overshoot the amounts available by way of prisoner payout.

Victims were virtually unanimous in telling us they were not interested in getting money, they just wanted to stop weak sentencing being made even more hurtful by criminals getting money for comparatively fanciful “injury” when their victims got nothing for grave injury. The bill magnifies the insult felt by victims.

The message to MPs from the submissions is crystal clear. The Bill must ensure that criminals are not entitled to cash windfalls unless our law is changed to ensure that victims are at least equally treated, and victims want justice, not cash.
Self governed or UN governed?

There is only one problem – the opinion of UN committees.

New Zealand expressly reserved its freedom not to compensate when signing up to one set of UN rules. But Mr Goff has a burning desire to be lauded by the international bureaucrats who claim that the rules demand cash payouts rights for aggrieved criminals. Not for Mr Goff Australia’s robust response when those hypocrites criticised Australia’s human rights.

I say the answer is simple – just assert NZ’s right as a sovereign nation to do what New Zealanders overwhelmingly want. But Mr Goff’s officials are on the rack to find cute ways to make the Bill look more effective without challenging the UN. And Mr Goff wants to keep getting invited to international photo opportunities (holding hands with Arafat was such a buzz), so he will not tell his foreign affairy mates to take a flying jump.

Contrast that with Dr Cullen’s blithe unconcern about the racism in his Foreshore and Seabed Act, fingered by a UN committee. Dr Cullen will consider that rage from the Law Society about its dud bill is a small price to pay, and Mr Goff should be glad he’s been forced to pay it.

Mr Goff should be equally grateful if the Select Committee submitters, and the MPs who now have a clear idea of what is needed to stop prisoner payouts, save him from more derision.

The biggest changes should be in entry-level crime.

It’s too late once they have a life pattern of offending.

Adult sentences for adult crime. Reduce criminal responsibility to age 10 for homicide and age 12 for all other offences. Give adult sentences for adult crimes but ensure they are served in youth facilities away from career criminals.

Don’t patronise young people. Hold young people responsible for law breaking, as well as the adults who facilitate offences. They should know it is unlawful when they buy cigarettes or alcohol or are drunk or offer themselves in prostitution.

Bad company breeds bad behaviour. Restore non-association orders as a routine and strictly enforced consequence of offending, to break up gangs and make bad company a burden.

Treat crime as crime. End Family Court involvement to show crime is taken seriously.

Two chances, not fifty. Allow family group conferencing only for initial offences, so that it is seen as a second chance, not a soft touch.

No real family, no group conference. End the charade of family group conferencing when offenders have no responsible family members.

Restore shame. End name and record suppression for guilty young people and their families; to cancel the message that youth offending does not really matter. Shame is the first deterrent to offending in healthy societies.

Punish bad parents. Hold parents responsible for readily preventable child offending.

Protect good parents. Protect parents, clubs, schools and employers who set behaviour standards from being pilloried by the courts in hindsight for trivial breaches of process.

Make restorative justice restore. Pay more than lip service to restorative justice by making outcome agreements enforceable and authorise probation officers to supervise performance.

Uphold police discretions. Legitimise police diversion/detention and tough love programmes for first offenders as an alternative to ordinary court enforcement

An elderly relative advised me that successful gamblers were in a pact with the devil. But then a brother-in-law who finds it hard not to win raffles is so non-Satanic that I had lost faith in that childhood advice.

Now I’m back to worrying for my brother-in-law. Only the devil could give Winston Peters the gambler’s luck that won a Parliamentary slot so near to the election for his “Principles of the Treaty of Waitangi Deletion Bill”.

Richard Prebble and I have each had a Bill with similar objects in the ballot since the middle of last year. With Mr Peters I’ve pestered Ms Clark and Ms Wilson to define the so-called principles.

Meanwhile I’d had fun at Mr Peters’ expense, drawing attention to his continuing votes (up until yesterday), for bills referring to the “principles”. But Winston struck back. Late last year he drafted his Bill then noisily called on all other MPs to boycott the ballot to ensure his Bill was drawn.

Of course Richard and I thought we had at least a two to one chance of being drawn before him, and his Bill was so crude I feared it would actually discredit the cause. So for months each ballot has had three bills to abolish the principles.

So what does the winning Bill do?

In a page and a half the Peters bill lists sections from 27 Acts containing the words “the principles of the Treaty” or variants, and simply repeals those sections. It also omits those words “from every preamble and every schedule” of those Acts, and it revokes “every regulation made under any of” those Acts where it “contains references to” those words.

What the Peters bill doesn’t do

It doesn’t try to make sense of legislation after creating gaping holes, by deleting Treaty references supposed to indicate the intent of other provisions. For example it removes Section 4 of the Local Government Act 2002, a thoroughly racist piece of law, but does not touch 10 other sections directing councils to give privileges to Maori.

Judges required to plug the gap would probably reinstate the spurious principles and the mythical partnership, in spite of the removal of section 4.

The Peters bill does not worry about certainty. It will leave bizarre sentences without objects. Does revoking a regulation cover the entire order, or simply the rule containing the offending words? It does not touch the myriad charters and protocols and guidelines now entangling officialdom all over New Zealand.

The Act Bills

My Bill deemed all official references to the principles to be references to the actual and literal words of the Treaty without extrapolation as a “living document”, and without implications of partnership. If the actual words would not apply without strain the relevant rule would be treated as if the reference had no effect.

Richard Prebble’s Bill defined three exclusive principles from the Treaty. For example, his second principle stated, “the Crown has a duty to uphold citizens property rights. No property may be taken by the State without good cause and full market consideration paid”.

The political significance of the Peters bill

For political purposes the deficiencies in the Peters bill are mere quibbles. Plainly I could have stopped when I had enough words to generate political theatre. But I’m cursed with a passion for law that means what it says. I spent hours working through solutions to such problems for my Bill.

If Labour, United Future and the Greens do not stop the Peters bill from reaching Select Committee, it can be repaired, drawing on the Act work. But even the first reading debate will be a watershed event. The people’s representatives will confront squarely what the people have been saying. It marks the end of decades of suppressed debate. Until now the anointed have managed to scare the media into self-censorship. They have characterised opponents as ignorant.

My five years of argument that the partnership is a myth have gone unreported. It was unfashionable. When Derek Quigley of Act won a ballot in 1998 for a Bill that proposed time limits on Treaty claims, all other parties howled “racist”. Now it is the Prime Minister’s policy.

Mr Peters’ explanatory note encapsulates our key concerns. ” these principles have become a diversion away from the true pathway to success for both Maori and non-Maori: a strong education system, reliable healthcare…and a spirit of entrepreneurship and vision. The principles have allowed some Maori to continue to portray themselves as victims constantly in grievance mode, a mentality which leads down a dead-end path from which no true progress can come… These principles are a divisive mechanism which has set one group of New Zealanders against another.”

Will excising these pestilential principles be enough? Mr Peter Dunne has a member’s Bill to change the name Waitangi Day back to New Zealand Day. The arguments for changing the name are the same as the arguments for dumping the entire Treaty industry. In my obligatory Waitangi Day speech < [A href="http://www.act.org.nz/treatyspeech">http://www.act.org.nz/treatyspeech] I argued that we should debate the underlying issue.

If the Dunne Bill and the Peters Bill force the anointed into that debate we should all be grateful for that gambler’s luck.

In 2004 Labour Ministers woke up to what they had done in getting rid of appeals to the Privy Council. Shocked recognition of the government’s vulnerability to “judges who would be Kings”, as columnist Chris Trotter called them, produced curt exchanges between Ministers and top judges. Dr Cullen used his speech at the one hundred and fiftieth anniversary of Parliament to warn of judicial threats to Parliamentary sovereignty.

More extraordinary was the current Attorney General’s reaction. Could the Margaret Wilson calling the Chief Justice a “shop steward’ for the judges be the same person who in 2003 rammed through the Supreme Court Bill expressly so the court could “develop an indigenous law for New Zealand”?

Until then it was never worth trying to stack our courts with political cronies. Their decisions could be appealed to neutral international umpires in London. They tended to cut down the hobbyhorses of local judges.

The next six months could see Act working with Dr Cullen in his new job as Attorney General, and with Labour MPs, to curb judicial ambitions. As the Act member of the new Parliamentary committee to review our constitution I want to highlight the lawyerisation of New Zealand. We must end constant second-guessing by unelected judges and beat back the swarms of lawyers who now afflict every decision process.

It is wrong to blame the judges. Both Labour and National knowingly wrote law in fuzzy, feel-good terms. They wanted judges to invent the details they dared not make clear in Parliament. For example, Ministers were too cunning to set out race discrimination and privileges in recent education and local government laws. Instead these laws refer to the spurious “partnership” and the mythical “principles of the Treaty of Waitangi”. Judges have to try to give meaning to these terms.

Our rule of law once ensured that people could shape their conduct according to rules stated in advance, and not to the discretionary whim of rulers or judges. That meant rule-makers could not make up rules in hindsight, as they went.

Parliamentary sovereignty protected the people against arrogance in their lawmakers. Once every three years, MPs who make law we don’t want can be sacked by voters without explanation or appeal for unfair dismissal.

The rule of law also required impartial judges. Their independence from the government is secured by near lifetime job security. Only Parliament can sack them, and it virtually requires catching them with their hands in the till. There is a price for this job security. Judges are supposed to apply Parliament’s law whether they like it or not.

Now we have judges who claim that they can over-rule or define some Parliamentary laws out of practical existence. Consider a trivial example. Six months ago a judge decided that teacher Paul Hopkinson’s protest burning of our flag did not “ destroy or damage the New Zealand flag in any manner with the intention of dishonouring it”. She persuaded herself that such burning was instead “free speech” in terms of international human rights law.

In these decisions modern judges are changing the law as they go. That is what the seabed and foreshore decision did. The Court of Appeal reversed longstanding law to hold that the Crown did not own the beaches. Under the conventions of our constitution if they thought a mistake had been made 40 years ago, they should have upheld existing law, and then urged Parliament to change it.

Some of our judges are openly ambitious to stand equal with Parliament as a source of law. Recently retired Lord Cooke of Thorndon proudly acknowledges that he is within the class labelled by critics as “judicial supremacists”. And while taking issue with the label, he mentions a recent article by Chief Justice Sian Elias as confirming, “that she is a notable recruit ”.

Such judges claim to draw on alleged “deep common-law constitutional rights”, and the “growing tide of international laws” to overrule or disregard law they think is old-fashioned. But international law is rarely law at all. It has been described as “instead a series of political platitudes cited by devotees to bolster their latest agenda”. Some judges call on their superior knowledge of ”community values” to decide that law is outmoded. But how do they know more about community values than the community voting on its own behalf?

Those who want power without the risk of being sacked can have good intentions. In some countries the military take over from chaotic democrats. Priests overrule the wicked representatives of the people. Judges in countries with written constitutions have powers to strike down legislation. It is often abused.

That experience shows limited success for protective devices, like multi-party or ’apolitical’ appointment processes, and carefully worded oaths of office.

Some have tried a more obvious way to deal with political judges. They are made to face the politicians’ discipline of having to be voted in by the people, and the risk of being voted out.

Most thoughtful commentators reject voting judges in. Democracy leaves them beholden to their supporters. Nor is it good at selecting the best candidates. On the other hand democracy is very good at voting out people who have outstayed their welcome.

Some Pacific neighbours, including Californians among fifteen States in the US, and the Japanese have the right to vote out Supreme Court judges. Japanese voters get the right once every 10 years. The nearest a judge has come to being removed was a 15.2% vote. In California voters have a rarely used right to block the renewal of Supreme Court judges’ appointments. In a celebrated 1986 case Californians removed three out of five Supreme Court judges, after they had persistently frustrated criminal law reforms and blocked the use of California’s death penalty.

My New Year’s resolution is to press Parliament’s new constitutional review committee to take a close look at citizens’ rights to recall judges.