Stephen Franks Maiden Speech

Published: Wed 9 Feb 2000 05:54 PM
Wednesday 9th Feb 2000
Stephen Franks
Speech -- Other
It is customary to open with humble appreciation of the honour of being a member of this House, and by thanking family and supporters. I do both sincerely. I certainly honour the positive and public spirited people who campaigned for ACT, and put me here. I also thank my father and family for their encouragement and advice, despite misgivings over what this might mean for my family.
But respect for this House is necessarily qualified. Voters tell us that this House falls short. Their cynicism has some justification.
I want to explain why. I want to explain what propelled me out of my legal practice, and what I hope Parliament changes while I am here.
At the risk of being an upstart I will say that Parliament and its Members have been too responsive to New Zealanders concerns. We shouldn't be disparaged for inaction. Instead, I believe, Parliament has been too ready to deliver new laws to scratch every itch.
New Zealanders are changing from the irreverent, stoic, modest, self-reliant, practical, inventive, people we think we were. I see us being turned by new slogan laws into the kind of society immigrant New Zealanders wanted to leave behind. These new feel-good laws make us as openly insincere and back-covering, dependent, victim oriented and status and rule bound; trying to blame others for every misfortune. They encourage us to boss each other around.
What are these slogan laws, these feel-good laws? Most often they are laws that are passed with the best will in the world, because of real public concern about real problems. Concerns about the degradation of our environment, for example, or safety in the workplace, or low wages for young people. These are all real issues, but fixing them is complex, and often the law that's designed to fix them fails and instead brings about other problems. So we pass a law to protect our native trees, but it ends up penalising conserving owners and actually encourages them to cut trees early, or to plant exotic rather than native trees.
Our laws should be more than slogans. They should work. I'm here because I want to make laws that work. And I care passionately about getting the balance right in our laws - the tie between freedom and responsibility.
I have come to this House, therefore, because I believe that what we do here matters. Because Liberty and Responsibility matter. They are undermined by law that shifts liabilities and risks and choices to others, to government; to employers, to anyone we can throw so called "accountability" at.
Liberty was evolved by people who took personal responsibility very seriously. Balancing freedom with responsibility under the rule of law was an unprecedented political mechanism. It was a fantastic experiment in trust. Free countries trust people to find out and pursue the best interests of their families and communities without dictation by those who know best. That core value distinguishes our heritage from that of nearly all other peoples. And this House has not recently defended it.
This concern for freedom is not a new theme for a maiden speech. As a lawyer I of course looked for precedents. I found one from Sir John Marshall who became the member for Mt Victoria in 1947. He elegantly surveyed the difference between the views of liberals and collectivists. He was serious about it, so soon after somewhere between forty and seventy million lives had been lost in a war to preserve freedom and democracy. A price which is almost immeasurable.
But through lip service "freedom and democracy" are now often just rhetoric. They mean "things I am comfortable with". We have to recapture what it means to believe in freedom.
Without it, in the past two decades we have created a mudslide of new law to engulf New Zealanders. It has been great for lawyers, but not for New Zealand.
There are more than twice as many lawyers and judges as when I began practice, while the country has grown at a fraction of that rate. I am satisfied there is no lawyers' conspiracy to grow the legal industry. As a practising lawyer and more recently as a member of the Securities Commission, and a member of the Law Society Committees I never heard a serious suggestion that we should use our influence to create additional law for business development.
But lawyers are sympathetic to worthy purposes. New liabilities, politically correct processes, compliance officers, and legal risk management plans proliferate.
Though lawyers may feel they defend individual liberty against the State, many also sincerely think that for every loss or misfortune, someone must be to blame and should be held "accountable". They are shocked by talk of resource constraints ("rationing justice"). Many feel that if only society put more money into legal processes, loss shifting - more crying over spilt milk - we could litigate or mediate or prosecute our way to fairness and equality.
So lawyers and accountants are thriving, taking our best and brightest who might otherwise go into jobs that create real wealth.
As a lawyer I must therefore look to Parliament to protect New Zealanders from the rule of lawyers.
It is politicians in Parliament who must look at the actual effects of law, at who and what it rewards, and who and what it actually penalises. The job of politicians, and my duty now, is to foresee which is worse: the mischief the law is intended to fix, or the unintended consequences. Will the law instead discredit law itself? Too many recent laws do that.
I want to mention a few examples that should have embarrassed this country since Christmas. They include name suppression, dismissal compensation, and the safety of waka paddlers.
Our name suppression law is a mess. Unlike in the US which values freedom, our media cannot publish the name of the rich American who appears to have bought exemption from New Zealand drug law justice. In these repeated cases the lawyers and the state decide that it is better for the people not to know. The claim for concern about the individual denies the rest of us freedom of speech. It may also condone irresponsibility.
Freedom of speech is not only a value, it persuades us to behave decently - if only to protect our reputation. We agonise ineffectually over ballooning crime. Yet recent laws have suppressed that shame mechanism. The liberals of Sir John Marshall's generation who repealed severe punishment laws and passed the Official Information Act, believed fervently that sunlight was the best disinfectant. We children of the sixties have given ourselves instead the Privacy Act. It does not protect information as property yet pretends that reputation is a personal privilege. We even talk of "clean slate" legislation which really means prohibitions on asking about, knowing and telling the truth about a criminal.
Golden parachutes for sacked bunglers and duds have much to do with public mistrust of leadership in business and government.
Yet freedom was not discussed 9 years ago when our employment law prohibited competent adults from agreeing to forego grievance rights on being sacked. I know, having acted for some of New Zealand's biggest organisations, that high salaries were previously the trade off for job insecurity. But economically ignorant judges together with Parliament's disrespect for freedom have given us our scandals. The sacked get both the money and the bag.
Should paddlers in waka be forced to wear lifejackets? This has been debated as if it was a question of cultural sensitivity. What about simple freedom? Setting aside risks to children, how can there be any question whatsoever in a free country of denying adults the right to run a considered risk if they choose? If we interfere with waka paddlers in their own interests should we forbid kayakers to run rivers? Three of them drowned in January. Should we try to stop those bold spirits who run the Huka Falls in kayaks? Should we stop people eating themselves to death, from drinking, from mountain climbing?
If waka paddlers do not want to wear lifejackets it is plain they have consented to run the risks. They could be charged the cost of rescue.
Our so called "OSH' laws are closing down traditional access freedoms and amenities. They may even result in greater hazards, for example if DOC removes back-country shelters because it fears its own liabilities more than it cares about lost New Zealanders.
New personal liabilities can discourage sensible and valuable people from acting as school trustees or offering children adventure experiences. Who now wants to teach bush craft in adverse weather? We have long-standing school adventure playgrounds closed because of possible liability threats. We all suffer when our school grounds are sanitised and made safe to the point where children cannot practise taking risks.
We are now so much more safety conscious and yet our youth suicide rate has climbed to be among the highest in the OECD. Children court risk; it is part of learning. They compete, and push against boundaries. Yet we try to eliminate all the traditional risks, we scorn competitive bravado as evil "machismo". Why then should we be puzzled when our youth later turn to risky drugs or nihilistic lifestyles to generate risk, when they gamble their futures by doing things they know to be harmful?
I am part of a generation, the cosseted '60s teenagers, which has dropped the ball. Despite spending billions every year since 1975 on welfare, our country now has worse comparisons with its neighbours in crime, health, education, savings, suicide, family breakdown, race relations and earnings than we inherited.
But if our generation has dropped the ball it is not for want of good intentions or shared goals in Parliament. As Members' sincere maiden speeches show, we all want New Zealanders to be confident, kind, prosperous, healthy, well educated, creative and so on. We all want to reward the hardworking, those who meet their responsibilities. We want honesty to pay, generosity not to be abused. None of us wants cheats to prosper.
I venture that most members even broadly share views on the preferred ways of to our goals.
So what frustrates us? Why are we failing? Why are so many of our brightest and best educated leaving? Why will foreign countries get the benefit of our education investment, and their drive and initiative? Why is New Zealand's future seen by so many as moving beyond any Government's power to transform? Is it because we know that law may no longer be changing behaviour in the ways we want?
I believe that it is because Parliament has devalued law, by passing slogan laws.
Because we confuse mercy with the true compassion that requires and reinforces personal responsibility.
Because we childishly take good intent as sufficient justification for law. We convert what may be justifiable moral principles into coercion.
Because political correctness stops us from asking how our criminal procedures or business law actually affect behaviour.
Because our welfare system has removed many normal consequences for damaging behaviour, both legal and illegal. The criminal or antisocial may be treated more generously by the State than are students.
Because our penalties show we are not really serious about our law. We have far too much of it - but that affects mainly the law abiding. The truly evil know that the system does not take enforcement seriously.
Because we will not look at what countries with improving statistics have required of their people to achieve that.
Yet I am optimistic. That is because I think the remedies are not mysterious. The answers are not foreign to us. We risk becoming a Sri Lanka or a Uruguay because this generation has lost sight of our heritage of liberty, but there is nothing deep in our culture that makes it impossible to recover. We need not be like old China which discovered and knew things that later made the West rich, like paper, and gunpowder, and some engineering principles, but forgot and lost them itself.
There may be a huge task in front of us, or it could be straightforward. It is about a state of mind. We can simply regard the past fifteen years as the aberration of the befuddled children of the '60's and restore freedom.
We can simply provide in many laws that informed consent of an adult is a fundamental principle which waives so called protections. The condition is: they accept the consequences themselves.
Simple rules for a complex world.
Without freedom we have the forms and levers and costs of a free society under law, without the risky vitality that makes it worth being in it. We could have a society like an old body - all the parts there, but none working properly. Staggering along waiting for a cryogenic miracle - when our forebears discovered and tested the elixir of youth some 200 years ago.
They found out how to create an economy and a political structure, and a society that constantly renewed itself. For that, individual freedom and personal responsibility were both equally important. The results transformed the world.
But they are expensive. Freedom requires eternal vigilance to keep it alive; it sometimes tastes bad, and many of us may have forgotten the theory of how it works, so we are trying to do with as little as they can get away with.
They require us to have:
Law that means what it says.
Law that is both enforceable, and routinely enforced.
Law that generally leaves losses with those who cause them.
Law that does not rewrite adults' voluntary agreements.
Law that is reasonably certain, that does not leave wide discretions to well meaning but narrowly educated judges. Law that keeps within boundaries ordinary people can understand. Law that leaves people free to choose to do things others might not like, provided they are not harming others. Law that upholds property rights. Law that applies equally irrespective of status, gender, race or other class. Law that does not trespass into morality, yet does not mock or negate it. Law that is observed by Government.
Only Parliament can ensure this. That is why I want to be here.
Contact Stephen Franks 04 4706628 or 025921983 or Kathryn Asare 04 4706637
For more information visit ACT online at or contact the ACT Parliamentary Office at

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