Friday, August 27, 2004

Peter Dunne, David Irving and Brian Tamaki

NRT has a recent post about an article by Peter Dunne calling for free speech for David Irving and Brian Tamaki. Now, at first blush, there might appear to be a case for David Irving (although NRT rightly wonders why Peter Dunne would seek to make it now) - he was after all denied entry into NZ and thereby the opportunity to express his views here. If you look into it, though, David Irving (whatever the rights or wrongs of his original German conviction for defamation) played silly buggers with Canadian immigration authorities and is the author of his own misfortunes. The Minister has no duty to bend over backwards (or forwards) and waive the good character requirement of the act (as long as they're consistent when a similar case arises with a left-wing or zionist activist).

Brian Tamaki is another matter altogether. I'm not aware that anyone is trying to censor his message. Indeed it got the sort of media coverage David Irving (much less the average citizen) can only dream about.

The nasty twist in Peter Dunne's article is in the words

prohibiting or ridiculing the expression of their views will simply reinforce the stereotyped images we have of both.

"prohibiting or ridiculing"- no. No! NO!!!

To prohibit the expression of Brian Tamaki or David Irving's views is wrong - not because it reinforces our stereotyped views of them but because freedom of thought means "Freedom, not for the thought of which we approve but for the thought we hate". To ridicule those thoughts OTOH is perfectly right and proper. It was the ridicule that Reuben Ship and others poured on McCarthyism that exposed the absurdity to which Peter attributes its fall. I, no less than Voltaire, will oppose to (well at any rate until) death any who seek to prohibit Brian Tamaki from spreading his ideas but I will oppose (and already have) those views with every legitimate means of discourse (including ridicule) at my disposal. And I will gladly hold the coat of anyone else who does the same.

Peter, come back to the light side. Please.

Thursday, August 26, 2004

More on Constitutional Reforms

I see there has been further posting on the (NZ) Blogosphere. Holden Republic has posted a carefully considered (and mostly supportive) analysis of my earlier posting on constitutional reforms from a republican perspective. David Farrar has responded to No Right Turn's post on dropping the threshold, which was also one of my proposals.

I'd like to point out that
(a) I am a republican but my proposals actually work just as well if (or while) we remain a constitutional monarchy.
(b) I'm quite happy with MMP (sans threshold) but again my proposals work equally well with any more or less proportional voting system.

I don't believe the fears of the "threshold defenders". Even if we did get four or five extremist parties with 2-3% each it's much more likely they would cancel each other out rather than form a Communist-National Front-Destiny NZ-Libertarian-Maori Independence grouping committed to the advancement of the "extremist point of view". When the Germans had the MMP system selected for them after the war the threshold was included to keep out the "nutbars". I suspect that the framers of the new German Constitution had a rather specific nutbar in mind - and (while it may have been magnanimous to gloss over the fact) the Nazis had over 30% of the vote when Hitler came to power. Even then it was the politicians (not only in Germany) who were willing to deal with the Nazis that were the real problem.

However if the threshold is controversial why not switch to STV. With modern technology the complexity of voting need no longer be an issue. STV imposes a significant hurdle to very small parties getting in but allows voters extended choices between candidates within parties. It also means that a centre party that is preferred by 5% of the voters but acceptable to 90% will do better than an extremist party which also has 5% support but is detested by 80%.

It seems that there is quite widespread support for the fixed parliamentary term (though some would prefer four years to three), and for the formal election of the PM by parliament. Could this be the beginning of a concensus?

Please let me know your views - particularly if you disagree.

Tuesday, August 24, 2004

Political Correctness and Liberalism

No right turn refers to the application of the term "Politically correct" to left/liberal causes. That this is happening is hard to dispute but it is a palpable misuse of the term and ought not to beguile a liberal (and particularly an anarcho-liberal) into approval of the more or less stalinist
attitudes to whch it is more accurately applied.

The word "correct" has strong connotations of objectively measurable conformity. Thus something may be said to be factually correct or historically correct if it comforms to actual reality (ie the facts asserted are true, the historical events described did, in fact happen as described). If we speak, however, of correct speech, spelling, grammar, etiquette or behaviour we imply conformity to a supposed authoritative standard. To state (in a positive manner) that a particular position is "politically correct" is to invoke a supposed single authority against which the correctness of political views may be measured. A liberal denies the legitimacy of any such authority. Indeed even a non-liberal might argue that politics, by definition, involves multiple competing views and that the anti-pluralism of "political correctness" is oxymoronic.

The latter part of the 20th century saw rapid advances in many liberal causes (gay rights, racial equality, women's liberation, etc) but not all advocates of these causes were liberal. There were also authoritarian feminists / gay rights / equal opportunity /etc advocates who followed the illiberal path of suppressing opposing views rather than engaging them in the "Marketplace of Ideas". The term PC was originally used to lampoon their authoritarianism and in particular the favoured Orwellian tactic of regulating language as a means of controlling attitudes.
Certain elements of the right (who have always been happy to invoke the authority of "right-thinking" or "God-fearing" people) have recently misappropriated the term to attack the concepts of equality, women's rights, gay rights, etc themselves rather than the supposed pompous antipluralism of their authoritarian left avocates. This linguistic theft should be resisted.

Had the CUB included a provision to outlaw "gender-exclusive" language (eg "Man and Wife") from any marriage ceremony it could be properly attacked as "Political Correctness". Had it sort to outlaw any form of marriage which was not available to all couples regardless of gender, race, creed, etc it might have been called something much worse. But it does not. Any heterosexual couple who prefer a conventional marriage may have one. Any individual, couple or group who prefer to remain legally single may do so. The CUB is entirely permissive rather than prescriptive in its effect and as such it can never be "Politically Correct". Peter Dunne, at least, should know better.

Spooky Deja Vu

It was kinda' spooky (even for the corporally challenged). First we watched Brian Tamaki and his blackshirts (the So Straights?) in a mass parade on the streets of Wellington - then we switched over to Prime for the final of Cross of Fire (mini-series based on the real life downfall of a corrupt Ku Klux Klan leader in the 1920s). The marching blackshirts were replaced by marching whiteshirts (or white knights in nightshirts) but the social dynamics were the same and so was the message of hate and intolerance so obscenely wrapped in supposed "christianity".
It may be that Brian Tamaki stands above the venial corruption of Grand Wizard Stephenson. It may be that he faithfully accounts for all the tithes paid into his church and expends them only (at least according to his beliefs) on the Lord's business. (It may even be that there are real Nigerian philanthropists who genuinely seek to give large sums of money to deserving recipients over the internet). But if not, he would not be the first televangelist to prove a fraud and a hypocrite. Nor is he the first leader of the religious right to set fire to the cross with Jesus still on it but that assuredly is the act we witnessed last night.

Monday, August 23, 2004

Separation of Powers

In an earlier posting. I dealt with the questions of a written constitution, sovereignty and conventions. I concluded that we cannot (short of a revolution) avoid parliamentary sovereignty but we can enact (and even entrench) "constitutional provisions" which allow us to specify the mechanics of our system of Government. In this posting I'm looking at some specific ways in which we could fine-tune our current government mechanisms without requiring any revolutionary change to our constitution.

IMHO (for reasons covered elsewhere) we should not look to dramatic constitutional change. The worst problems of "unbridled power" arise from executive dominance of parliament rather than the other way around and are (or can be) largely fixed by MMP and some minor associated constitutional changes which I discuss here. The purpose of these changes is twofold -
(1) To make it much harder for a government to capture parliament
(2) To make it easier for a legitimate government to govern without a captive parliamentary majority.

The changes are -

(1) Lose the threshold. The present 5% threshold gives undue prominence to the outcomes in particular electorates and distorts voting patterns in the party vote. It also creates the risk that parties with substantial (nearly 5%) do not get represented which is undemocratic. (Try National 42%, NZ First 3%, UF 1%, Act 1%, Labour 38%, Green 4%, Alliance 4%, PC 1%, MP 3% with Act, Green, Alliance and MP failing to win electorate seats). If we lose the threshold people can concentrate on voting naturally (ie for the candidate and party they like best) and a genuinely representative parliament will result. The threshold also encourages aggregation to larger parties (eg the split of Greens and the PC from the Alliance COULD have reulted in both Greens and Alliance getting 4% with no electorate seats - OTOH a voter should be able to vote green without having their vote counted as red, brown or electric purple. (Mind you it's even tougher if you want to vote grey).

(2) Formalise parliament's role as an "electoral college" choosing the executive. This could be done by exhaustive ballot to appoint a Prime Minister who would then appoint the rest of cabinet (or we might have parliament directly elect the Attorney General as that is a constitutionally separate positon). The same procedure could be used to appoint the Speaker although this might conventionally be done by concensus. Parliament would hold a ballot following each General election or if the government is defeated on a confidence issue. A lost confidence vote would require a parliamentary ballot for a new Prime Minister but the old executive would remain in office until its successor is elected (or the old executive reelected) at that ballot. This is close to the "Swedish model" mentioned by No Right Turn but specifies a parliamentary voting procedure rather than relying on the speaker's discretion. If we retain a titular HOS (President or Governor General) than the law could specify that, when appointing/replacing a PM, the HOS must act on the speaker's advice that the house has voted to elect the new PM.

(3) Adopt a fixed parliamentary term. The Electoral Act would specify something like "a general election shall be held on the second Saturday of November in the year 2005 and at three-yearly intervals thereafter". This would be the only time general elections can be held or parliament dissolved. (A no-confidence vote simply means that Parliament conducts a new ballot for the Government).

(4) Limit the size of cabinet to (eg) 12. We used to manage with much smaller cabinets (than the present) in the 50s and 60s and the new State Service arrangements should greatly reduce the need for "Departmental" cabinet ministers. "Operational" departments now have CEOs who are supposedly accountable for the performance of their departments and who are directed (in writing) by cabinet to implement specified govt policies. Appointing a minister in charge of each department appears to duplicate the CEOs function and dilutes accountability. If there is a need for ongoing oversight I'd like to try using select committees. The committee chairs would be an alternative career step for MPs who miss out on cabinet. Committees also allow us to tap into the talents of opposition members and retain greater continuity of experience when governments change.

(5) Relax the rules of collective cabinet responsibility. At the very least the rules should not apply to a Minister voting in the house or advocating in caucus. The minister is wearing his or her MP's hat at these times and it is constitutionally wrong for the cabinet manual to override the MP's duty. I have no particular quarrel with barring a cabinet minister from disclosing cabinet proceedings or campaigning against collective cabinet policy outside the house.

(6) Allow parliament to delegate executive authority to the government - particularly with regard to financial appropriations. The notion that the ability of the govt to raise taxes is a major constitutional issue is an anachronism. The full range of political views espoused by New Zealanders (or covered within the greater Blogosphere) encompasses passionate differences as to how much the govt should tax its citizens (or for what purposes) but does anyone deny that the govt has a right to raise taxes or suggest that it ought not to pay its day to day expenses as they fall due? In the 21st century we might reconsider the convention that a govt falls if defeated on a "financial matter". OTOH this is less critical with a single house since a parliament of a mind to play silly buggers with supply would presumably have the numbers for a no-confidence vote anyhow. (At least the "Whitlam scenario" where the upper house blocked supply until the GG dismissed the govt doesn't arise).

(7) Entrench as much of the constitutional arrangements as is possible (basically the bits relating to the electoral system, role of parliament, speaker, HOS, judiciary, etc) along with a Bill of Rights. This could and should include the role of the Treaty provided that the entrenched provisions are securely founded on a broad concensus (which has yet to be built). To entrench (by a simple majority) a strongly contested interpretation of the treaty (or anything else) is to invite a future legislative challenge to those provisions (eg repeal by a simple majority) to the detriment of our entire constitution.

Thursday, August 19, 2004

League Tables Don't Matter

Don Brash's recent Australian speech (see Just Left and No Right Turn) includes the old chestnut that NZ will become (or already is) a "failed state" because we are slipping down the international GDP league table. I shall leave the questions of whether and why we are, in fact, so slipping to Jordan and Idiot and ask why it, in fact, matters. In the 1950s NZ was near the top of the international league today we're around the middle of the "developed nations". This simply reflects the fact that -

(1) Japan and most of Europe have recovered from the ravages of WWII
(2) We no longer have an automatic high-price market for "all the meat, wool and butter we can grow"
(3) NZ has significant natural disadvantages (eg remoteness from markets) and our major natural advantage (low-cost pastoral agriculture) is undermined by the present world trading order.

In addition a number of former third-world countries (emergent economies) are achieving very high GDP rates as they develop and in the near future we will probably be overtaken (in GDP per capita) by Korea and many of the new EEC members. Further down the track we may be passed by Malaysia and Thailand (Singapore, Taiwan and Hong Kong are already ahead). But this is a good thing. These countries are our friends and neighbours and we should applaud their good fortune. And they'll want to buy food, textiles and timber and they'll want to take holidays to exotic spots where sheep graze in lush pastures, you can ski in majestic snowy mountains, the sky is blue and the air and water are transparent.

Don Brash suggests that our best and brightest will inevitably leave us for Australia (presumably leaving an unskilled rump of our population that will lack the acumen to do any more than join the "failed" Pacific Island states in the queue for AusAID handouts and expatriate remittances). There will, of course, always be those stellar talents that can shine only on a larger stage than NZ can offer and they will inevitably leave us (for Australia or elsewhere) just as others leave Timaru for Auckland, Cairns for Brisbane or Sydney for New York. No doubt our problems in recruiting or retaining nurses or teachers will depend to a considerable degree on the relative rates of pay for their professions on each side of the Tasman. But not directly on the per capita GDP.

The CIA Factbook ( gives a "cost of living equivalent" per capita GDP comparison of over 200 countries. According to this source Australia ($28,900) is about 33% richer than NZ ($21,600). This pales into insignificance compared to the range within (the old) European Union which ranges from Luxembourg ($55,100) through Norway ($37,700), Denmark ($31,200), Ireland ($29,800) down to Italy ($26,800) and Spain ($22,000). There is no mass exodus of bright Italians (or Frenchmen) to Luxembourg or of Spaniards to Norway even though the differences in GDP are much greater than that between NZ and Australia.

An even more extreme example is the Cook Islands with a GDP of only $5000 per capita (less than a quarter of NZs). Cook Islanders have an absolute right of entry to NZ and many of them do, in fact, live here. The population movement is, however, in both directions and the population resident in the Cooks is stable. The population density in the Cook Islands is almost 90 per square km, twice the world average, three times that of the USA and about six times that of NZ. If there were no legal barrier to settlement within the combined borders of NZ and the Cook Islands (ie non-Cook Island New Zealanders were allowed to settle in the Cooks) then the population of the islands would, presumably be higher but, even as it is, the population density shows that the Cook Islands are disproportionately preferred as a residence by the combined population.

Evidently money isn't everything.

Wednesday, August 18, 2004

Fighting History

I'm interested that in all the discussion of the relative merits and electoral chances of past and present National and Labour leaders no one seems to have noticed a simple rule that has held with a single exception throughout (at least) the life of the current National Party. That rule is that a leader who has fought a previous election will always defeat an opponent who has not. The results of all the elections since 1935 are as follows where * indicates a leader fighting their first election -

1938 Savage beat Hamilton(*)
1943 Fraser(*) beat Holland(*)
1946 Fraser beat Holland
1949 Holland beat Fraser
1951 Holland beat Nash(*)
1954 Holland beat Nash
1957 Nash beat Holyoake(*)
1960 Holyoake beat Nash
1963 Holyoake beat Nordmeyer(*)
1966 Holyoake beat Kirk(*)
1969 Holyoake beat Kirk
1972 Kirk beat Marshall(*)
1975 Muldoon(*) beat Rowling(*)
1978 Muldoon beat Rowling
1981 Muldoon beat Rowling
1984 Lange(*) beat Muldoon
1987 Lange beat Bolgier(*)
1990 Bolgier beat Moore(*)
1993 Bolgier beat Moore
1996 Bolgier beat Clark(*)
1999 Clark beat Shipley(*)
2002 Clark beat English(*)

The solitary exception to the above rule was the 1984 election where a dynamic young David Lange defeated the senescent government of Robert Muldoon. On no fewer than 11 occasions (including all three elections contested by Helen Clark) the rule dictated the outcome. On the other 10 occasions both parties fielded new (1943 and 1975) or veteran (1946,1949,1954,1960,1969,1978,1981 and 1993) leaders.

If Don Brash is to win in 2005 he needs to emulate David Lange. Perhaps he too can rejuvenate his own party. Perhaps he can project the same dyamism (though obviously not the youth) but that is not enough. The key to the 1984 result was the state of the Government which had squandered its political capital and the wealth of the country alike, was racked by internal dissension and weighed down by the ruins of failed projects and, above all, bore all the hallmarks of a government and prime minister whose time was up. The present government shows no such signs (nor should it in only its second term). If Don Brash fails in 2005 will he remain to contest the 2008 election or will National offer up yet another new leader to the imevitability of defeat?

Sunday, August 15, 2004

The Treaty, the Court and the Constitution

There have been some interesting posts on the above themes from antipodean journal, No Right Turn and Just Left. FWIW here are some of my own thoughts on he subject.

There are three separate political threads developing at very different rates but all running into the same tapestry and in danger of getting knotted.

Firstly there is the issue of republicanism. Few New Zealander's feel this to be the burning "affair du jour" but most of us acknowledge that there is something vaguely anachronistic about owing allegiance (however symbolic) to a foreign monarch. We also have to recognize that republicans are a majority among the young and "demographic evolution" will eventually make them a clear majority amongst all New Zealanders. Besides as long as we use someone else's monarchy the decision may be taken out of our hands (as could easily have happened with the Privy Council). But there is no particular urgency. Most Republicans are probably willing to defer any decision to (eg) the next succession.

Then we have the issue of the electoral system and separation of powers. The old FPP electoral system (largely) guaranteed a majority government which in our "unary" system can exercise "unbridled power". In fact the NZ version of the Westminster System is not unary - we do have a separation between executive and legislature but a separation that is vulnerable to party manipulation. With MMP we have an opportunity to make that separation stronger and to make minority governments (what's wrong with a government that can't get everything it wants) the norm. The challenge is to define the proper role of the two branches of government and clarify/fine-tune the relationship between them to ensure that minority governments can govern effectively while retaining legislative and ultimate authority with parliament. Undue speed is the last thing we need, here. We are progressing to a system that can give us a genuine democracy but the former and wannabe power-brokers are getting reckless.

The Treaty issue is a narrower one but it has now assumed an urgency that we cannot deny. Prior to the "foreshore and seabed" issue and Don Brash's opportunistic abandonment of the previous bipartisan concensus the "Waitangi Process" was working and on track to a future where historic breaches were settled, contemporary breaches not contemplated and a broadly accepted and clearly understood concensus view of treaty principles well established in New Zealand jurisprudence. How soon has it turned to custard?

The trouble is, these threads interact. The treaty involves the vital issues of sovereignty, citizenship, indivual rights and the roles of the two races/cultures in NZ society but falls far short of a complete constitution. A republic would give us the opportunity to effect a separation of powers by a directly elected executive (ie the USA system) - if that's what we want. Some Maori believe that a republic extinguishes the Crown and is thus a threat to the Treaty. The electoral system and the roles of parliament and the executive are intimately linked to the issue of separate Maori seats (with FPP they're clearly needed, with MMP they're probably not but, OTOH do no harm).

A complete new constitution addressing all the relevant issues (and addressing them in a way we approve of) would be nice. But from whence does it derive its authority? The "unwritten conventions" of the Westminster system derive their authority from the weight of history - 700 years since Magna Carta, 300 since the Glorious Revolution and the Bill of Rights and (in New Zealand) over 100 years of Universal Suffrage. There is a clear but unwritten limit to the powers of a democratic state. If the state crosses this line it destroys its own legitimacy and stands in peril of overthrow or must defend itself by force. Oliver Cromwell, Adolf Hitler and Robert Mugabe all crossed that line and retained power by force. Richard Nixon crossed the line and fell. But in all these cases there is little dispute that or where the line was crossed.

The executive branch of the government may not unilaterally repudiate the checks and balances placed on it by the legislative or judicial branches, the state may not interfere in the fair running of elections, use its powers to abrogate the rule of law, grant immunity to persons clandestinely committing crimes on its behalf or maintain a private army to harrass or intimidate its opponents. These acts all strike at a government's claim to "represent the people" and so destroy the basis of its authority. That line exists independently of any written constitution - there is after all no provision of the US constitution that expressly prohibits the president authorising covert operations against his electoral opponents, or using executive pardons to protect the perpetrators when they get caught. Yet we all know that "He can't do that". The USA constitution provided a specific mechanism for calling Nixon to account - but that depended on non-partisan action by congress. (I'm not sure I'd count on the present congress to impeach Bush if he had committed Nixon's crimes.) Under the Westminster system a simple no confidence vote brings an erring government down.

Countries with written constitutions may employ a complex web of checks and balances and separation of powers between institutions but these safeguards are all too often corrupted or abused by gaming politicians so that they may unreasonably restrain or seek to overturn legitimate governments (Clinton, Whitlam) while proving inadequate defence against genuine evil (Adolf Hitler). What ever constitution we may have, our freedom rests ultimately on each citizen's duty of eternal vigilance. Perhaps the greatest danger of institutional safeguards is that they may persuade us to the lie that we might pass that burden on to other shoulders and thereafter rest in peace.

A written constitution allows more specific restrictions on the powers of government but it can do so with no greater authority than that of the act whch created it. The passage of years and accumulation of precedent may strengthen an act (including an act creating a constitution) in law and reduce the likelihood that it will be lightly repealed but, ultimately, a future parliament has the power to unmake any law made by the present parliament. We are no victorious revolutionary army watching the surviving redcoats sail back home (or listening to the tumbrils bearing the aristocrats to the guillotine), we are an established nation with a legal heritage to preserve and the only conceivable way for us to create or modify our constitution is through an act of parliament. Such a "constitution act" should rest securely on a broad concensus or it is unlikely to survive long enough to acquire the gravitas of maturity.

Rohan is concerned about the fact that we have no constitution that can limit the power of parliament but it is very doubtful whether this is possible. A "constitution act" may "entrench" itself (in whole or part) by specifying that it can only be amended by a 75% majority but the legal validity of such clauses is highly dubious. Better to concentrate on ensuring Parliament is broadly representative of a well-informed public and is not captured by the executive or any other narrow-interest group. The "Unbridled Power" Geoffrey Palmer and others warn of refers to excessive power vested in an executive which controls a clear majority in parliament through a block-voting government caucus, which is itself dominated by a block-voting cabinet that is hand-picked by the Prime Minister. An MMP parliament will (usually) exhibit a reasonable dispersal of power. We could encourage this by (eg) -

(1) limiting the size of the cabinet (Microsoft board has 10 directors );
(2) abolishing the threshold for party seats ( a party getting less than 0.4% would still round down to 0 seats);
(3) modifying the doctrine of collective cabinet responsibility so that it does not restrict parliamentary advocacy or voting on legislation by individual ministers;
(4) fixed electoral term. Parliament votes in government and can remove government only if it votes in a successor.

The treaty cannot of itself bind parliament. It has a 160 year history but as the "founding document" of NZ, not as a constitution or even as a legally binding contract. Indeed it was consistently ignored over most of that history. The founding document of the USA is the Declaration of Independence. It is no less revered than our own Treaty but it would be absurd to treat it as law. True, the "inalienable right to life" would forbid the death penalty but what punishment could be given to a criminal without infringing the equally inalienable rights to liberty, or the pursuit of happiness? And what about those words "among which" - what other inalienable rights do we have? Or should the court simply make its own judgement as to which truths are "self-evident"? The treaty is equally unsuitable as a constitutional / legal document not because of the "motherhood" principles it states but because of the practical details on which it is silent.

NRT quotes a draft provision that would have enacted the treaty as part of the Bill of Rights. I don't believe this would have been a good idea. IMHO the government of the day "passed the buck" by leaving it to the courts to determine what the "principles of the treaty" were. To have invited them to interpret the "spirit and true intent" of the entire treaty from the plain text of the two (English and Maori) versions as the basis of an entrenched bill of rights would have been a "hospital pass". It's asking a great deal to consider such a provision non-controversial and to entrench controversial materials is to invite legal challenge to entrenchment itself. This is particularly foolish with "minority issues" since entrenchment may be particularly ineffective in such issues. The present parliament, for instance would divide (on strict party lines) 101:19 on a simple question of whether to "confiscate" Maori rights to ownership of the Foreshore and Seabed. (Labour(51), Progressive(2), NZ First(13) for the bill, UF(8) were for a slightly different version and National(27) wanted outright confiscation without any of the mitigating measures in the bill). Entrenchment simply won't work against this sort of majority.

We are left faced with the harder task of defining a new set of "Treaty Principles" which are clearly stated in proper legal form, capture the "spirit and true intent" of the Treaty and have the support of a broad concensus among and between Maori and Pakeha. The enduring principles so agreed may then be enacted as all or part of a new (entrenched) bill of rights. Non-enduring matters (such as redress of historical breaches) may be addressed in separate legislation. Other constitutional matters (electoral system, republic, etc) can be safely left to other legislation (and times) as our overall constitution remains firmly grounded in the jurisprudence and history of the Westminster tradition.

I believe (or at any rate advance the narrative that) the original treaty was signed in a spirit of trust, mutual respect and goodwill and a common vision of a shared future. Today the trust is gone but the shared vision remains and the respect and goodwill may yet be salvaged. The concensus we build can no longer rest on the luxury of trust but to build an understanding between people of goodwill in the absence of trust is the thing the law does best.

Saturday, August 14, 2004


I was pondering about connections individuals have to the various pieces of land we call home. Don Brash reckoned it was the lump he got in his throat when he landed back in NZ after an OS tour but I'm not so sure. There are so many other things that can effect your emotional state on a long flight - the length and class of travel, the degree of pre-travel stress, the effects of sleep deprivation, cramped seating, strained bladders and the number and strength of complimentary emotional stimulants consumed all play their part. On the occasion I remember, coming back to NZ after a three-year absence, I definitely didn't get a lump in my throat when the plane touched down. It was when some bastard slipped that schmaltzy number "Welcome Home" into the Muzak stream that I lost it. Fortunately other passengers don't look backwards when they're queueing to get off aircraft and I had plenty of time to compose myself before actually deplaning. But these are ties to an abstraction not to a specific place. We identify ourselves as New Zealanders because that is part of who we are rather than because that is where we live, and we retain that allegiance wherever we may travel.

Those of us who are relatively recent (second-generation) Kiwis may retain connections to distant places - I remember visiting my grandparents ancestral home in Ireland and the attachment I felt to that place at the time. Maybe it was an illusion, perhaps I would be none the wiser had I been shown a completely different place, but it felt real.

And then there's the place (or places) where we grew up. The old home where our attachment is built on childhood memories. My parents spent most of my childhood in Fiji so, for me, this attachment lies in yet another corner of the globe.

These attachments to foreign places may bring a degree of affinity to their respective countries. I am proud of my Irish heritage and retain a vaguely exasperated affection for Fiji but this in no way lessens my commitment to New Zealand. They are linkages of another kind.

Those who live or grow up in the place that has been their ancestral home for many generations may develop a deeper attachment to that place as the depth of ancestral connection is reinforced by personal childhood memories. These people are "indigenous" to that place and have a powerful special realtonship to it. But that special connection is to a specific place not to an entire nation. If they get a lump in their throat it is not at an international airport but at the first glimpse of the vale, isle, glen, hill, lake, river, mountain or beach that they call home. That attachment is a thing quite separate from nationality or citizenship, nor does it depend on ownership.

It is also not, of itself, a racial concept (although, in practice, few non-Maori could claim "indigeneity" to any part of NZ). I wonder if some form of legal recognition of this attachment might provide a way forward in our current "racial crisis". More later.

Thursday, August 12, 2004

The McNee Manslaughter - a question

Does anyone know what the effect of a hung jury is in a homicide trial where manslaughter is conceded but murder is contested? It would be somewhat perverse if juror(s) demanding a murder verdict would jeopardise the manslaughter conviction if they stuck to their guns. On the other hand, I've never heard of a case where a defendant was found guilty of manslaughter but the question of murder was left undetermined.

Monday, August 09, 2004

Free Speech at any Price

I see (No Right turn, Aug 6) that the government is to review the law on 'Hate Speech'. I don't believe anyone has ever expressed the case for free speech better than Oliver Wendell Holmes' dissenting opinion in Abrams v USA 1919.

"...Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 (Act July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States. "

Not free speech at any price then, but curtailed only in response to an immediate threat of actual harm. Otherwise "leave the correction of evil counsels to time". If only our politicians can display as much wisdom.