Sunday, October 31, 2004

Redirect for Holden Republic

My link to The Holden Republic was going to an old site which is not completely updated. On the basis of a quick spot sample I'd say that's also true of most NZ blogs. The followingis the text of an EMail from Lewis.

Hi there,

Yeah the should be re-directing to my new URL, blogger just kept publishing to the old account, hence the confusion.
So yes, is the right one.
Lewis Holden

l'État, c’est nous

You might care to check your link.

Religion, Culture and other Disabilities

The recent case of the Muslim woman who is unwilling to give testimony with her face uncovered presents a complex series of issues which will test the wisdom of the Judge burdened with deciding how to handle the matter. Unfortunately much of the commentary surrounding this case has been distressingly simplistic, insensitive and xenophobic.

It is, of course, a central plank of our justice system that the parties may confront and cross-examine the witnesses who testfy against them. Ideally this should happen in open court, the witness should be fully visible to all parties so that their demeanour and body language may be assessed, and all questions and answers should be subject to the rules of evidence. But there are circumstances where this ideal cannot be attained or can only be attained at an unreasonable cost to the witness.

A quadriplegic patient may exhibit very little "body language" no matter how much of their face and body is visible. In some neuromuscular disorders the patient may have no control of all or most body movements or facial muscles and may be unable to speak normally. Such a patient has no body language and no way of indicating demeanour other than by the content of their answers which may be given via (eg) a blow-tube activated computer screen. In an extreme case a patient may be able to communicate only by a single muscle (eg twitch the left eyelid) and may be able to answer only Yes (one twitch) or No (two twitches). Such a witness would be able to respond only to leading questions whether on direct or cross examination.

All of the above examples provide unavoidable difficulties far more serious than those resulting from a female witness wearing a burqah and yet they would normally be considered competent witnesses. Their testimony would be disallowed only where their mental competence, ability to hear and understand the questions or exercise full conscious control of their "answers" (particularly for the Yes/No example)were in question. The exceptions would require the judge to determine that it was unsafe to allow their testimony under the circumstances - it would not be enough merely to show that the circumstances tilted the playing field for "the games lawyers play".

There are other situations where the difficulies could be resolved but only at a clearly unacceptable cost to the witness. A burn or severe trauma patient with a fully bandaged face or full bodycast would, as a witness, present at least comparable problems to a burqah. The witness could be forced to have the bandage/cast removed while testifying but this would compromise the witness's treatment and such compulsion would be obviously unacceptable. Similarly a severely immune-compromised patient could not be safely forced to appear in open court and would presumably be allowed to testify by video link.

And then there are the vexed circumstances where the damage done to the witness is psychological and is the consequence of religious, cultural, political or idiopathic (nothing to do with savant:)) conviction or psychological condition (eg Acute Anxiety Disorder). In these cases the judge must determine

1) the sincerity of the proclaimed belief / condition
The judge must be satisfied that the condition or belief is genuine. There is no way that either side should be able to use the veil as a tactic to hide a witness that comes across badly.

2) the extent of the damage that will be done to the witness if forced to testify normally

3) the extent to which the pursuit of justice or the position of either side will be damaged if the witness testifies under special conditions (eg veiled)
Note that justice and the interests of either side are not the same thing. Just consider the legal maxim "never ask a question if you don't know the answer". The judge may well wish to give more weight to something that effects the jury's ability to assess the truth than to something that merely complicates he legal tactics of defence or prosecution. But they both matter.

4) the extent to which the pursuit of justice or the position of either side will be damaged if the witnes does not testify at all

5) any means by and the extent to which the damage in (2)-(4) may be mitigated.

The judge will (rightly) pay no attention to -

1) Whether the witness's belief is rational

2) Whether the view is religious, political, cultural or idiopathic

3) Whether a religious view conforms to canon
Theologians may debate how many angels may hide behind a burqah but the law (in the words of Porcius Festus) "will be no judge of such matters"

4) What the Q'ran or any other authority says
Even if you take Q'ran as an inviolable authority you still have to decide what "modestly dressed" means. Ashraf Choudhary, most modern Islamic scholars, Jacques Chirac, this writer and no doubt, dear reader, yourself believe that it does not imply a full burqah but the only relevant belief is that of the woman herself.

5) Whether the witness's beliefs are indigenous, majority, minority or unique
need you ask why?

6) What consideration Afghanistan, Iran, Turkey, Malaysia, Saudi Arabia or any other islamic country would extend to the cultural sensibilities of Kiwis
Our concern is for New Zealand values

I am confident the judge will use his best efforts to balance his duties to protect the welfare of the witness, the pursuit of justice and the right of the accused to a fair trial. In doing so he may (presumably) consult both counsel for an agreed solution (eg witness testifies unveiled on video link and is cross-examined by a female lawyer. Her face is pixilated out on the view shown to everyone else.) None of these principles are, however, absolutes and a blind adherence to standard procedure is not necessary. Witnesses do suffer discomfort - the judge can only ensure that the level of discomfort is not unacceptable or more than necessary. The defendant's right to a fair trial is fundamental and anything that makes it harder for defence counsel to assess the witness's demeanour and body language (including the fact that the witness is from a foreign culture) does some damage to that right. There is, however, a certain threshold quantum of such damage which must be inflicted before the trial can be considered unfair or the verdict unsafe. If it were not so rape victims and children would not be allowed to testify behind screens or by video link and the likes of Stephen Hawking or the late Christopher Reeve could never be considered competent witnesses in a criminal trial.

The extent to which a witness for the prosecution appearing in a burqah, behind a screen or on a video link depends on the specific circumstances of the case and there is no automatic assumption that a burqah would preclude a fair trial. If (as it seems) uch a decision would break new ground in New Zealand law then I would certainly not be surprised to see it decided in a higher court if a consensus decision is not reached.

Friday, October 29, 2004

Where are they now?

In 1994 Yitzhak Rabin, Yasser Arafat and Shimon Peres were jointly awarded the Nobel peace prize for concluding the Declaration of Principles for peaceful coexistence between Israel and Palestine. A year later (and just 9 years ago by the Hebrew calendar) Yitzhak Rabin was assassinated by a national terrorist's bullet and today Yasser Arafat lies critically ill in a Paris hospital. Perhaps the old fox may elude even this most implacable of enemies but, if it is not to be, then he too must, like his Jewish counterpart, leave the conclusion of his legacy to his successors.

The original peace proposal came about because both sides recognised that they had fought too long, that no peoples should have to endure 50 years of war, death and the bitterness that bred more war, death and bitterness. That was ten years ago. Too much water has flowed under the bridge in that time. And far too much blood.

The Knesset has finally moved to implement that peace agreement (at leat in Gaza). It is not enough but it is an important beginning. That move has divided Ariel Sharon from much of his Likud party but brought him closer to mainstream Israeli opinion and to the Labour Party. It is fitting that Peres may have a more important role in the end-game (if such it proves to be) of the peace process he began. Liberals may find it less palatable that Sharon should be at its centre but that is not important. All that matters is that peace is achieved with honour and goodwill to both sides. It matters little by whose hands.

It is of course too soon to expect peace, but it is not too late to hope. Not just because that peace will make the whole world safer but because the people of Israel and Palestine have already suffered far too much. May that peace be the legacy of those who have died, the reward of those who bring it to pass and the hope of future generations of all nations in the middle east and in the world.

Tuesday, October 26, 2004

In Defence of STV

This morning's DomPost has a somewhat intemperate if not positively spleenful diatribe by Michael Bassett entitled "STV is flawed madness". Leaving aside the vexed question of whether flawless madness would be preferable, it seems to me that the practical problems encountered with STV are not the end of the world. They ought not to have happened but they have been overcome without injury to the democratic process. The people have voted. The votes have been counted and the counts have been audited. The mayors and councillors elected by STV may, indeed, justly claim a more legitimate mandate than that of, for example, John Banks in 2001 under FPP. Experience with FPP voting technologies in the USA show that it could be much worse.

Bassett's article lists a series of advances that had been made over the years

We fought for a standard system of enrolment at the central and local levels instead of maintaining local rolls where many names were duplicated and others were missing altogether. We fought for a ward system so that locals were guaranteed involvement in decision-making that affected them. And when voter turnout to polling booths dipped below 10% in some areas by the early 1980s, we introduced postal voting. Participation rates leapt, then subsided to levels that are still many times higher than in the good old days. Labour's goal was always to make the system as simple and local as possible to encourage people to participate in civic affairs.
and then asks

What on earth decided the present Labour Government to play games with these basic principles in the recent election?

This is pretty misleading. The change to STV (where it happened) had no effect whatever on enrolment, wards or postal voting. Perhaps the author only intended the question to apply to the last "principle" (keep the system as simple as possible) and the ambiguity was accidental but then again - perhaps it wasn't.

Michael Bassett's specific objections to STV are that it is too complex, too many spoiled or blank ballots, the particular version used in NZ was the wrong one, second preferences of elected candidates get less weight than those of excluded candidates and that the final results were incomprehensible. I suspect, however, that his real problem is with any proportional system that threatens the two party monopoly.

STV is not, of itself, particularly complex. It has been used successfully in Australia and Ireland (inter alia) for many years. I don't believe that New Zealanders are any less intelligent than Irishmen or Aussies (even if we do earn a little less). Michael Bassett is, however, making a reasonable point when he questions "running different voting systems at the same election" particularly when the STV and FPP ballots looked very similar and often occurred on the same page. It would be interesting to know whether spoiled ballots for the DHBs were higher for those centres where everything else used FPP. Of course, the risk of spoiled ballots for STV depends on how rigorous the rules for valid voting are. If all the measures suggested here were adopted I suspect that the overwhelming majority of those spoilt ballots would have been valid.

Blank ballots are a slightly different matter. A voter might conceivably be put off voting by the perceived complexity of the system but a blank ballot will be generated only when a voter votes for one local body (or referendum) but not another on the same sheet of paper. If they didn't vote for anything they wouldn't (usually) send their vote in. It is hardly surprising that the DHB elections (no wards, no real power and large numbers of candidates the voter has never heard of) would be prime candidates for blank ballots from electors who voted for their Mayor or City Council on the same sheet. this would have happened regardless of the system but, in fact, all DHBs were STV.

In any event the total impact of spoiled ballots, blank ballots and reduced turnout appears minor. The Wellington mayoral election (under STV) had 268 informal votes and 1046 blank ballots out of 53,483 papers returned while the neighbouring Hutt City mayoral election (under FPP) had 83 informal votes and 1282 blank ballots out of 26,018 papers returned. The informal votes are a slightly higher percentage under STV (0.5%) then FPP (0.3%) but it's a pretty small number in any case. The blank ballots were a higher percentage in Hutt City (5%) than Wellington (2%) but this may be due to reasons other than the voting system. The total informal votes for councilors (summed across wards) were about double those for mayor at 563 (1.1%) in Wellington and 171 (0.7%) in Hutt City.

There are major differences in counting procedure for STV electing only one candidate per "electorate" and STV electing several candidates per electorate. The voting procedure is exactly the same in either case but in the single member instance only the lowest polling candidates are excluded. This makes it effectively equivalent to (but quicker than) the exhaustive ballot system used in the French presidential elections or by most political parties to elect their parliamentary leaders. It is also the system used in Australian lower house elections. With multi-member electorates (eg council wards) STV redistributes both the total vote of excluded (lowest polling) candidates and the "surplus" votes of elected candidates and is an (approximately) proportional representation system. This is the system used for the Australian senate.

There are only very minor differences in the way votes can be counted within either of these variants (single member or multi-member) and there is nothing unusual about the specific calculation algorithm adopted for New Zealand. Nor, to the best of my knowledge, was the electoral calculator module responsible for any of the counting problems encountered.

The claim that second preferences of votes for winners counted for less than those of winners is specious. Under STV every vote always counts as a full vote in total. If the quota is 2000 and candidate A receives 3000 votes in the first round then only A's surplus (1000) votes is redistributed. This means that A's 3000 votes will all be distributed but will count as 0.33 votes each. If you voted for A then your vote counts as 0.67 for A (minimum to elect A) and 0.33 for whoever you gave your second preference to. If A had been the lowest scoring candidate with (say) 300 votes then A would be excluded and all 300 votes would be redistributed. A vote for A then counts as 0.0 for A and 1.0 for the second preference. Under FPP a vote for a very popular candidate (who will get in anyhow) or a very unpopular candidate (who has no hope) will both be "wasted".

The last claim - that the presentation of results is confusing - is fair enough. All the required information is available from the calculator output, it's just a matter of presentation. David Farrar gives an excellent example of how this can be done. Hopefully city councils and mainstream media will follow this lead.

However, it is the second last paragraph of the Bassett article that really got to me
The early Labour Party experimented with proportional voting at local elections , then reeled back when they saw the results.

I don't know what the historical incident referred to is but the only legitimate goal of any voting system is to fairly reflect the choice of the voters. Not (not EVER) to produce an outcome acceptable to Labour or any other political party.

Tuesday, October 19, 2004

Sanctuary and Politics

In 1849 a philosopher was expelled from Belgium and France because of subversive views and political activities and came to Great Britain. Despite pressure from Prussia and other european nations the British government refused to expel him because they believed in freedom of expression. The British government was no more enamoured of these philosophies than their european neighbours nor were under any covenant or obligation to accept this refugee. They simply stuck to their liberal principles and did "the right thing". Today Karl Marx's grave is a tourist attraction in Highgate Cemetry.

In 2002 an Islamic politician and scholar, expelled from Belgium, France and Switzerland for alleged political activities came to New Zealand. The NZ Refugee Status Appeals Authority examined the previous allegations against him and rejected them. The SIS (under pressure from undisclosed other countries)issued a security risk certificate allowing him to be deported in spite of the RSAA ruling. Ahmed Zaoui has remained in prison since that time amidst repeated litgation over that certificate and its review. During this litigation it has become increasingly apparent that alleged secret evidence held by the SIS contains nothing of substance beyond the allegations that have already been discredited by the RSAA.

The Sock Thief and The Whig have pointed to a Herald article on Zaoui's party (the FIS) and suggest that he should be deported because his politics are objectionable. Lord Russell (an altogether nobler Whig) would have found Karl Marx's politics no less objectionable and a far more credible threat but put human decency, freedom of expression and a conviction that dangerous ideas should be confronted by counter arguments rather than suppression first. I do not believe that this (or any recent) NZ government is any less committed to human rights or freedom of expression and we have the additional argument of international obligations under the Refugee Convention. What is on trial is whether they have the moral courage of their earlier British counterpart.

Saturday, October 16, 2004

The New Zealand Way

No Right Turn has an interesting post on the Third Way. I think it's interesting to consider this in a New Zealand context given our much younger history. First, however, let me acknowledge that I am speaking only of the post-treaty history of NZ government economic and social policy. It includes the Maori perspective only insofar as Maori have been a part of those policies. I accept that there is an important Maori story of a much longer history but it is a different story and one others may be much better qualified to tell. There is also a Maori dimension to New Zealand's future which I do not specifically address in this post. This is in part because I will deal with it later and in part because the latest opinion polls give me some hope that Orewa was an iceberg we will safely negotiate.

The Blair/Schroder pamphlet NRT links to contains the following quote -

The politics of the New Centre and Third Way is about addressing the concerns of people who live and cope with societies undergoing rapid change - both winners and losers. In this newly emerging world, people want politicians who approach issues without ideological preconceptions and who, applying their values and principles, search for practical solutions to their problems through honest well-constructed and pragmatic policies. Voters who in their daily lives have to display initiative and adaptability in the face of economic and social change expect the same from their governments and politicians.

Compare this to Michael King's description of our first Liberal government (1891-1912)
Their unifying belief was in a dominant role for central government in the nation's affairs, but on pragmatic rather than ideological grounds. Private enetrprise was weak in New Zealand. Only the government could assemble sufficient capital to extend the country's transport and communications infrastructure.

The legacy of the Liberal government included a strong State sector (12 new departments), land reform (large stations broken up into smaller holdings), income tax, compulsory arbitration and targeted old-age and widow's pensions and universal suffrage. Compulsory free secular education had already been established in 1877.

The seeds of a centralised "Welfare State" were thus sown before the turn of the 20th century and the basic economic model served for the best part of a century. The changes brought in were a response to the opportunities afforded by refrigeration enabling New Zealand farms to export meat and dairy produce rather than just wool. The more intensive farming was conducive to smaller farms worked by their owners rather than large stations with separate land-owning and labouring classes. The class system was thus largely strangled at birth in New Zealand unlike many other new world countries where it merely shifted to a different elite.

The welfare state was greatly extended by the first Labour Government in 1935 but the changes were changes of degree rather than of kind and the motivation of Savage, Fraser and Nash was no less pragmatic than that of Ballance and Seddon. Again quoting Michael King -
Real progress was not made until the [NZ Labour] Party abandoned its programme of socialisation, particularly the threat to nationalise land and until it had convinced the electorate at large that it was not made up of fanatical reformers. By the time Labour took office in 1935 it had become apparent that the party, like most of its supporters, wanted to 'improve capitalism, not ... abolish it'.

The National Party eventually became the government in 1949 and ruled for all but six of the next 35 years but did not reverse any material part of the Social Democratic framework they inherited. The Muldoon government (1975-1984) was arguably the most interventionist government in New Zealand's history.

The owner-operated farm remained the driving force behind the New Zealand economy prior to the UK joining the European Union in 1973 (and the expiry of subsequent transitional arrangements for NZ). The Social Democratic model created by the Liberal and Labour governments proved an effective tool for managing this economy and ensuring that the benefits of our relative prosperity were widely enjoyed. The model was left largely intact by successive National and Labour governments and full employment, social security, free health and education were widely perceived to be part of our national birthright.

But this economic model could not last forever. Improved technology reduced farm labour requirements while New Zealand's overall population expanded. An increasing urban population created demand for more imports than could be financed from farm commodity exports. Much of the marginal land enthusiastically converted to pastoral farming (often with government subsidies) proved to be unsuitable for sustainable conversion. Even, without the loss of the UK market the need for economic diversification would have asserted itself. The UK accession to the European Union, precipitated our problems and a crisis was reached in 1984 under the newly elected Labour government of David Lange.

The government response to the crisis was with a series of measures that could well be characterised as a neoliberal revolution. Certainly these measures are classic "Washington Consensus". Specifically -

1) The exchange rate was floated
2) Income tax rates were reduced and GST introduced
3) Import controls were abolished and Tariffs reduced
4) Micro-economic controls and regulations were relaxed
5) Government assets were privatised

The supporters of these reforms within the Lange government were split between ideologues (eg Roger Douglas) who saw these moves as a first step on a neoliberal highway and pragmatists (David Lange) who saw them as a "necessary evil". This split became highly publicised and contributed to the government's defeat in 1990.

The incoming National government was similarly split between ideologues (Ruth Richardson) and pragmatists (Jim Bolgier). They introduced a second round of (generally harsher) reforms including -

1) Benefit cuts
2) The Fiscal Responsibility Act
3) The Employment Contracts Act
4) State spending cuts
5) More Asset sales.

Again, these were pretty much one-off measures. The election of a minority governmen in 1993 and tne subsequent introduction of MMP made it highly unlikely they would progress further even if the natural pragmatism and caution of Jim Bolger did not. The Clark government has rolled back some of the changes made by Douglas and Richardson and there is no immediate prospect of NZ making any further radical moves to the right economically.

We have much freer trade, a more competitive and less regulated economy then we had before 1984. We have an Employment Relations Act which is more Worker and Union-friendly then the ECA but is a very far cry from the regime we had before the ECA (Compulsory Unionism, National Awards, Compulsory Arbitration). We have had an eonomic system based on pragmatism but that has looked awfully like Social Democracy for almost a century followed by a brief period of "neoliberal reform". For the last decade (or very near) we have seen what may be a new pragmatic economic consensus emerging. This new concensus strikes a balance between fair redistribution of income and low tax rates not greatly different to that described as third way in England or Germany.

New Zealand must now trade in the global market to survive. We must adapt to those economic niches where small size and isolation are not too great a disadvantage and fully exploit those areas wheere we have natural advantages. We must produce a widely diversified range of high value products rather than a small number of bulk commodities. This means that we can never return to the economy or society we had before 1985. But just how much do we need to change?

The reforms between 1985 and 1993 include many measures which were obviously necessary and which are very unlikely to be reversed. These measures mainly relate to regulation. The pre-1985 regulatory regimes seem quite bizarre when we look at them now from a mere twenty years perspective. I cannot see that we will ever return to licensing milk vendors, granting import licences from government departments or requiring Japanese car manufacturers to smash the tops of the spark plugs on the engines they exported to New Zealand assembly plants so that they broken plugs could then be drilled out and replaced with legitimate Kiwi-made ones.

The reforms also included committment to greater transparency of government accounts, more rational control of departmental expenditure and separation of responsibility for monetary policy. Experience would suggest that these changes were mainly positive and they are unlikely to be reversed.

Changes to labour laws were also dramatic. Under the old law union membership was compulsory and union coverage was rarely contestable. Wages and conditions were defined in national awards negotiated between the union and an employer's representative (or imposed by arbitration). The Employment Contracts Act changed all these practices and adopted a model in which the employer-employee relationship becomes a simple contract (subject to statutory minimum conditions and the right to collective agreements). The ECA was repealed by the present government and replaced by the Employment Relations Act. Despite the orgy of ink-letting that surrounded this last move the ERA and ECA differ only in detail and both are light years away from the old system. Compulsory unionism and national awards seem most unlikely to return.

The top rate of income tax varied from 46 to 67% over the 1948-85 period. (Before 1948 the top rate of income applied to a taxpayer's entire income rather than just the portion over the threshold making comparisons difficult). For most of the period the rate was over 60%. In the reforms this rate was reduced to 33% but this was partly offset by the introduction of GST. A new top rate of 39% was introduced in 2000. The tax cuts were financed by reductions in government expenditure including social welfare benefits but the basic structure of the Welfare State remained. New Zealand is a less equal country than it was twenty tears ago but not greatly so. The "Working for Families" package may well restore much of this equality as it comes into force. New Zealand continues to recognise the need to look after the unfortunate and the value of state-provided health and education services. We also recognise that these things have to be paid for and that their is a balance to be struck between lower taxes and better services. The only real dispute is over where that balance is.

The final feature of the reforms was asset sales. For various historical reasons the New Zealand government owned a lot of assets (Banks, Airline, Railroads, Hydro stations, Telecommunications, Postal services, etc) which didn't need to be owned by the state. Many of these were sold off - partly for cosmetic book-keeping reasons and partly for an ideological belief that the private sector could manage these assets better. Subsequently the Government has reacquired a part share of Air NZ and the railway track as a result of distressingly clear proof that the private sector couldn't manage them better. It's likely that the government will continue to take a pragmatic and ad hoc approach to the question of monopoly regulation and state ownership. There is little enthusiasm for renationalisation and little left to privatise.

The New Zealand (Pakeha) economy and society between 1891 and 1985 could be characterised as Social Democratic but was really a pragmatic (within a general humanitarian liberal ethos) adaptation to particular external market conditions that are no longer with us. The reforms between 1985 and 1993 could be seen as a neoliberal (or even neoconservative) revolution. That was, no doubt, the intention of some of the architects and would have been the result of a continued trend in that direction. It seems more likely, however, that the reforms were a "jump to the right" rather than a change of direction. That we will now travel forward with an economy much better adapted to trading on a rapidly evolving global market but with a society, direction and values no less compassionate than before. This may or may not be the "third way" but to most New Zealander's it is "our way".

Thursday, October 14, 2004

Dear Helen

The following is the text of an open EMail I have sent to the Prime Minister -

Prime Minister

Last night TVNZ screened an item on the continued incarceration of Ahmed Zaoui and his possible deportation from New Zealand. While this documentary added little new to the debate it reinforced a growing sense of unease among many New Zealanders.

Such unease is inevitable when a man can be incarcerated for two years without being charged with any crime; when the government strives to overturn the carefully considered decision of the Refugee Status Appeal Authority and other courts and above all when the case depends on evidence so secret that ( it is asserted) its credibility, substance or even existence cannot be tested in open court.

The unconscionable time Ahmed Zaoui has spent in prison is now largely beyond the government's power to rectify (provided the government's latest appeal and the Inspector General's review are dealt with as expeditiously as possible) but, even at this late stage, freeing him (under whatever consitions are necessary) would mitigate the injustice.

The RSAA determined that Ahmed Zaoui was entitled to refugee status under the Refugee Convention and reached this determination after fully considering his convictions in and deportations from France, Belgium and Switzerland; his alleged breaches of NZ immigration law and the unclassified summary of evidence against him presented by the SIS. The only circumstance under which this decision might be overturned without offence to due process is if the classified material disclosed new credible and substantial new evidence which would probably have reversed the RSAA decision had it been available to them. The strictures the Court of Appeal has placed on the Inspector General's review seem to do little more than give effect to this requirement.

It seems unlikely that the Supreme Court will have any more enthusiasm than the Appeal Court for the position that a secret administrative review can lightly or narrowly overturn the open decision of a judicial body and, to that extent, the Crown's appeal may not be a bad thing but the potential for further delay in a case that has already taken far too long outweighs the advantages of having our highest court adjudicate on the Inspector General's powers. Besides the likelihood of a general constitutional review (which can hardly fail to address the Crown's exceptional abilities to restrict fundamental liberties) raises the possibility that any such decision may subsequently require relitigation.

It is, of course, the matter of secret evidence that goes to the heart of our unease in this matter. This unease is not helped by the fact that no credible or material new allegations have been put forward following the Appeal Court's earlier ruling that Ahmed Zaoui was entitled to a summary of allegations against him. Nor has anyone privy to the evidence made an unequivocal statement to the effect that such evidence exists. Nor have they revealed the nature of the alleged security risk to NZ. If, as seems likely, it is just a matter of how NZ (or the SIS) is viewed by foreign secret services then let us be viewed as a country that puts the values we are defending before the mechanics of defending them. The French secret service, at least, know we are not as soft a touch as they thought.

The present law for secret evidence means the Government is, in effect, saying to the people "Trust us, we are your guardians". I would trust your government before some of its predecessors but any government truly worthy of that trust would know better than to ask for it. If I may take the liberty of paraphrasing your own words -

If we relax our vigilance and turn a blind eye to secret trials by a government we trust, with what moral authority do we reassert it when those same measures are taken by a future government we do not trust?

Prime Minister, I was proud to hear our country playing the part of a friend to our allies that was prepared to tell them they were taking the wrong turn. It is in the same spirit that I write to beg that we do not defend our country by abndoning the values that make it worth defending.

I have posted a copy of this letter to my blog and would be happy to publish any reply with your permission.


Reply received as follows
Kia ora,

Thank you for your e-mail message. It is difficult to respond to
the many e-mail messages received. We do however read
everything that is sent and if a unique issue has been raised or
new information presented we will respond as soon as possible.

Naku noa, na

Dinah Okeby
Private Secretary

Fair enough.

The Brain Drain

Was David Richwhite part of the "Brain Drain" of NZs brightest and richest who left because of oppressive red tape, high compliance costs and excessive tax burden?

Wednesday, October 13, 2004

The Gunsmiths of Peshawar

The Michael Palin documentary last night showed a fascinating insight into a part of the World unfamiliar to most Westerners. His travels along the Himalayas started off in Peshawar (North-West Pakistan) close to the Khyber Pass and the border with Afghanistan. It was not surprising that one of the main local industries was guns but the numerous small "Mum and Dad" gunshops were not selling the wares of perfidious European gun-runners. Everything they sold was made locally by hand.

But these weapons were a very far cry from the handmade guns associated with PNG Raskols or Solomon Island warlords. They were made to the same specifications (and I suspect to much better quality) as their official military equivalents. You could buy anything from a hand-crafted AK47 to a micro-miniaturised "James Bond" gun concealed in a pen.

If anyone ever manages to fabricate a weapon of mass destruction from a few aluminium pipes then, for my money, it will be the gunsmiths of Peshawar.

Superman's Last Battle

In 1995 Christopher Reeve was in the prime of his life both personally and professionally. He was in his early forties and had every expectation of living a further four decades, of further building on a distinguished career, of growing old gracefully with his chosen partner and watching his grandchildren grow up. Then a cruel accident left him totally paralysed and denied him those most basic of hopes which we all so lightly take for granted.

Christopher later admitted that he contemplated suicide in those first dark days and who would blame him? What better example could those who argue for "death with dignity" demand than a once-active man dependent on a machine for his breath and on the hands of others for every bodily function? But Christopher chose to "fight the unbeatable" rather than to accept the unacceptable and, in the nine years that followed, he left an imprint on this world deeper than the previous forty could ever make.

In the years following his accident Christopher Reeve devoted his life to promoting research into the palliative and therapeutic treatment of paralysis. His considerable fame and personal resources were matched by his willingness to devote his time and efforts to these causes without regard to the limitation or personal cost his condition imposed on those efforts. The practical results were considerable. The Christopher Reeve Paralysis Foundation, The Reeve-Irvine Resarch Center and the Christopher and Dana Reeve Paralysis Resource Center remain as important players in the battle against spinal cord injuries and disease. His lobbying has led to increases in federal funds going to spinal cord research.

But Christopher's greatest contribution has been as an inspirational example. His courage gives hopes to many thousands of others. His fight has given him only nine more years but they are precious years shared with a loving wife and family and with the world. Above all he has shown us that even the totally paralysed may know a purpose and quality of life finer than most able-bodied will ever know.

Tuesday, October 12, 2004

Why not Laurel and Hardy

Is it just a sign of cumulative Anno Domini or is there some other reason why noone else has commented on the fact that John Howard's likely successors are Tim Abbot and Peter Costello.

Monday, October 11, 2004

Core Human Rights (III)

I see that Dave agrees with me that freedom from discrimination is not a core human right (see earlier posts here and on No Right turn. My position is based on a specific view of core (or basic) human rights as the sort of thing we would like to see entrenched in a Bill of Rights rather than as ordinary legislation. They represent the boundary that separates, not the compassionate from the unfeeling or the social democrat from the neoliberal society but the acceptable from the unacceptable, the free from the totalitarian, the marginally civilised from the totally barbarous.

These rights are universal and, in practice, laissez faire. In granting them the state merely undertakes not to actively deprive its citizens of those rights or to allow others to do so. There is no undertaking that citizen's will be able to exercise these rights nor promise to facilitate them. The right to life does not, for example, confer immortality or even a promise of free medical care. Nor does the right to work guarantee a job.

Discrimination may of course be a breach of basic human rights if, for example, the state makes it unlawful for a negro to live in a certain suburb (as happened under apartheid). Similarly if a group of vigilantes were permitted to pressure the landlords in a suburb not to rent to negroes we might argue that this is also a breach of the same basic human right. If, however, no pressure is put on anyone but there happens to be a popular prejudice against letting to negroes then the net effect may be much the same. The state could prevent this by passing a law similar to the NZ Human Rights (or Race Relations) Act which makes it illegal for landlords to discriminate on the basis of race. It is not, however, immediately obvious that the state should pass such a statute or exactly what form that statute should take. If the state were to pass such a law it needs to consider

(1) whether a general prejudice which significantly impairs a negroes ability to obtain housing (and choose where they live), in fact, exists.

(2) whether the legislation proposed will overcome this problem

(3) whether an alternative policy would be more effective.

Failure to consider these points could mean the state was in breach of Article 29(2) of the Universal Declaration of Human Rights by unnecessarily restricting the landlord's exercise of property rights. Given this complexity it would be harsh to argue that a state was breaching basic human rights merely because they failed to pass such an act.

We can also argue that the right to join another person in a relationship and to formalise that relationship is a fundamental human right. Certainly it was a serious breach of human rights when the old NZ law imprisoned same-sex male couples for exercising this right (or just having casual sex) but that law is now repealed. Under current NZ law only different sex couples may be legally married but any couple may consider hemselves married, call their union a marriage, associate with friends who recognise them as married, join a church which recognises and blesses ther union as a marriage and sign a contract agreeing that their relationship is subject to the provisions of the marriage act. The maximum difference any change to the law can make (and the CUB doesn't go that far) is to have the law formally recognise their marriage (many opponents of gay marriages still won't).

The present law does discriminate against same sex couples, if only because of the greater trouble they need to go to to have their union recognised, but I don't believe it constitutes a "Basic Human Right". The Race Relations and Human Rights Act are desirable if not essential legislation (at least in NZ today) but they are less fundamental than the Bill of Rights. The CUB is also desirable, "flagpole" legislation and, if passed will place New Zealand in the forefront of liberal democracies. Should we allow fundamental breaches of Human Rights by returning Ahmed Zaoui to torture or death in Algeria (or leaving it to Malaysia to provide him the protection that was our responsibility under the refugee convention) we attack the foundation of human rights in a way 1000 CUBs will not redeem. Perhaps history will view this as an abberration of a mostly decent society but might we not equally justly be lumped in with the USA, Australia and the other victims of terrorist paranoia as part of the decade when the West forgot their values.

Friday, October 08, 2004

Waiouru Initiations

Recent reports of "cadet abuse" at Waiouru have produced strongly polarized responses. Left-wing bloggers such as No Right Turn have reacted with horror. Right wing blogs such as SageNZ take the view that it's all part of turning cadets into real men. When I first heard the news three words lit up in capitals in my mind STANFORD PRISON EXPERIMENT.
This experiment showed how easy it was to corrupt good people into committing horrific acts simply by placing them in an environment where such behaviour was expected and permitted.

Now I'm quite happy to concede that the staff at Waiouru were skilled professionals and that they treated their charges harshly but properly. I'm willing to believe that the "sadistic" sergeant instructor is doing no more than he has to to bring his recruits up to the necessary level of toughness and ultimately to help them stay alive. But the instructor is an expert. He knows how far to go. And he doesn't rape or broom his trainees. Or bash their testicles to the tune of Jingle Balls. And anyone who simply hasn't got what it takes winds up out of the army, not out of the human race.

The problem was letting untrained cadets exercise unsupervised authority over younger cadets. The reported stories are exactly what you would expect to happen. The army was at fault, not for any abusive behaviour by the staff but because of inadequate supervision and a culture of silence which inhibited cadets reporting abuses to staff and proper investigation of those complaints that were reported.

Hopefully things have now changed and the army no longer allows this sort of abuse to happen. Whether the culture of secrecy and closing ranks to protect wrongdoers from the scrutiny of outsiders has also been discarded remains to be seen.

More on Human Rights

I see No Right Turn takes issue with my previous post on the Human Rights Act. I suspect we differ only on a point of semantics and not one I would go to the wall for. I would like to avoid confusion between the "basic human rights" which I believe we would both like to see strengthened and entrenched in a new Bill of Rights Act and anti-discrimination measures. NRT asserts that "Freedom from Discrimination is a core human right" and of course it is, as is the right not to be raped, murdered or robbed. But as NRT states

There is however one significant difference between freedom from discrimination and other human rights. Where freedom of expression and the right not to be tortured etc are primarily about how people are treated by their government, freedom from discrimination or the right to participate in society is really all about how people are treated by each other. This explains the different legal approach - while it's fine to lay down broad principles (such as those in the BORA) to guide and bind government action, law aimed at individuals and backed by possible criminal penalties needs to be a lot more specific. And so we get legislation like the Human Rights Act, designed to protect and enable a core right, rather than simply affirm it.

Precisely, but so many laws are designed to protect and enable our rights rather than simply affirm them. So we have the Crimes Act to protect us from rape or murder and the Race Relations Act to protect us from racial discrimination. Why not the "Unlawful Discrimination Act" to outlaw the other forms of discrimination.

Thursday, October 07, 2004

Real Human Rights

I have long felt uneasy about the name we give the Human Rights Act and the Human Rights Commission. It's not that I disagree with the act or institution per se. I'm just not sure that the issue they deal with (unlawful discrimination) is really a "Human Rights" issue. Not at least compared to the rights to life, liberty, due process, freedom of expression, etc. Are we devaluing the currency in applying this term too liberally? At least, I used to think, real Human Rights are not an issue in NZ so maybe it's OK to use the term more broadly. It was a wake-up call to read Dave's post at BigNews on Positive Human Rights Culture. Dave points out that the Government's treatment of Ahmed Zaoui is a serious breach of real Human Rights and takes issue with the Government calling the CUB evidence of a "positive human rights culture".

Now, I don't know to what extent my views differ from Dave's on the background issues. I support the CUB (and gay marriage), I believe prisoners should have recourse to due process when mistreated (but much better not be mistreated in the first place) and should not be subject to retrospective legislation (see previous post). Subject to certain reservations about free speech, I support the Human Rights and Race Relations Acts. But I agree with Dave that we should reserve the term Human Rights to real Human Rights issues. To do otherwise makes abuses less visible and eternal vigilance more difficult and less certain of success.

Our anti-discrimination legislation prohibits certain forms of discrimination on the basis that (in New Zealand today) the legal limitation of the discriminator's rights by this legislation is more than balanced by the practical limitation to the victim's ability to exercise their rights which would occur in the absence of the legislation. This is a pragmatic decision and in another society or at another time we might choose to outlaw quite different forms of discrimination. Under the present law we may not discriminate against employees, residential tenants or in the provision of essential services on the basis of race, gender, sexual orientation, religion, political views or age but we may discriminate on the basis of star sign, hobbies, hair colour, height, weight or breast size unless these are held to be surrogates for race, gender etc. The law presumably considers that systematic discrimination on these grounds is unlikely and that for every boss who would seek to hire a personal secretary with a 38C bust there is another whose wife would hire him a 30A. The rules apply in only one direction. A person averse to working for Jews, renting a house from an ACT supporter or shopping at an Indian grocery may indulge their prejudices with impunity.

Real human rights are based on fundamental principles and apply universally to all times and societies. We rarely have difficulty in agreeing on these principles. Sometimes we may not like the result when these principles are applied to specific cases but that is because our gut reactions are not thought through. Mature reflection will show us that a compensation award to criminals is a consequence not of a bad law or an activist judge, but of prison officers behaving badly. And that's why we need to uphold human rights and the rule of law - unless we would have our own rights conditional on the gut reactions of others. It's why we should enshrine them in a stengthened and entrenched Bill of Rights. And it's why we should stop confusing it with perfectly good but non-universal legislation.

Tuesday, October 05, 2004

Prisoner Compensation

I see from No Right Turn that the Government has announced its policy on Prisoner Compensation. The policy announcement appears to address two separate issues.

(1) How to prevent prisoners getting compensation payments or failing that making absolutely certain they don't benefit from them.

(2) How to try and get money for victims of crimes when perpetrators "come into money"

The first part of this policy deserves all the opprobium NRT heaps on it but nonetheless contains a kernel of sound policy. In fact, if you strip away all the excess spite, fearmongering and verbiage youare left with a very sound policy reproduced in full below -

"Stopping the breaches is the most effective way of stopping compensation payments"

Unfortunately much of the rest of the policy runs counter to this nugget of common sense. Apparently it will be ok for corrections staff to break the Human Rights Act, Privacy Act and the Bill of Rights provided the breaches are not "exceptional cases". (Exceptional for whom). And even then nothing happens if they can stop the prisoner complaining "at the earliest opportunity".

Not surprisingly we need to spread the net a bit wider for the second part of the proposal.
Victims will of course be able to bring civil claims for damages not only when the offender receives state compensation but also for any other windfall gains such as inheritance, the proceeds of any book written, or even winning lotto

Should a prisoner gain compensation the government will suspend the statute of limitations, hold the money in trust for any victim that may bring a successful claim and "take measures" to assist the victims bring their claims.

Now I don't have any problem with victims getting compensation whenever possible but this issue has nothing to do with prisoner compensation. The victim of a criminal who is sentenced to a prison where they obey the rules is no less deserving than a victim whose attacker is sent to the Kiwi version of Abu Ghraib. We have long recognised with accident compensation that adversarial damages claims are a much more effective way of taking money off defendants than delivering it to complainants. Why then is this the preferred model for obtaining victim compensation under this policy?

The statute of limitations is there for a reason. Physical evidence degrades. Exhibits get lost. Witnesses forget or their memories get corrupted. Or they die or leave town. Justice becomes increasingly expensive and increasingly uncertain as time progresses and the law has recognised this by imposing a six year limit for civil cases. None of the above processes stop just because the defendant is in jail.

By far the best time to assess criminal damages is at the original trial. The factors affecting damages will almost always be relevant to sentencing and the additional costs for the trial judge to make a damages (reparation) award are minimal. Under current law the judge often declines to make such an award because the accused lacks the means to pay. This law could easily be changed and the victim would then have the same right as any other creditor (we could even make them a preferred creditor) if the prisoner subsequently receives money from any source. This debt (and other debts) could be protected by amending the insolvency act so that bankrupts going to prison would not be eligible for automatic discharge until three years after release (ie the period of bankruptcy would be "frozen" while the bankrupt was incarcerated). This seems much preferable to overriding a statute of limitations. It also removes any element of retrospection since the compensation order is made by the trial judge at the time of original sentencing.

Friday, October 01, 2004

The Ultimate Trivial Pursuit

First Against the Wall has a very amusing item on the Sydney police capturing a sock thief at the very time when we are told The Sock Thief is in Sydney. My first reaction was to marvel at the thought of NSW's finest mounting a nocturnal stakeout on a clothesline in the outer wilds of the Mosman and Cremorne district just to crack a case of transtasman petty larceny (hosiery, used). My second was to wonder how Jarrod had come across this remarkable news scoop. And then I realised. He was googling.

Always a believer in empirical verification, I tried a google on "Sock Thief". There was a news item about a sock theft at the top of the list, but in Chicago. There were many other links including a gratifying number to the Blog of we all know and love. I then tried "Sock Thief" Sydney and bingo there was the article at the top of the list (with FATW's post close behind).

BTW had anyone out there heard of Senator Simon Greyshade. Apparently he is a senator, not of the USA but of the Vorzyd sector in a certain faraway long-ago galaxy. His enduring claim to fame is as the original owner of Anakin Skywalker's speeder.