NZPols

Wednesday, June 25, 2003

PROSTITUTION DECRIMINALISED: After all the doom-mongering in the public press over the last two days (see here, here, here and here) I'd pretty much resigned myself to the Prostitution Reform Bill failing. I thought that Tim Barnett had thrown away his opportunity to get the Bill through when he rejected a suggestion by some members of the ACT party that it be taken back to select committee. (In fact, I still think Mr Barnett took an unnecessary risk in continuing with the Bill, when he should have been able to guarantee its passage.) But in the end he (and we) weren't punished for it. Expect Ashraf Choudhary, the member who abstained (and thereby allowed a 60-59 majority in favour to carry the Bill) to wear a lot of flack for his decision.

¶ 9:00 pm

Tuesday, June 24, 2003

IN LATEBREAKING NEWS: Our darned comments thingee is bloggered again. Please bear with us.

UPDATE: It's back. Yay.

¶ 11:57 am

Monday, June 23, 2003

EUROPE SNUBS WORLD'S POOR: Yup. Surprise. Read all about it here (in today's NYT), here or here (The Economist).

¶ 10:47 pm

TAXING: Some incredibly stupid things are being said at the moment about the "flatulence tax" and other 'Kyoto' initiatives being pursued by this government.

Dail Jones reckons doing anything to further the Kyoto Protocol is contrary to International Law, because it has yet to be ratified by 55% of the signatories. Unless I've missed some intricacy of his argument, this is just absurd. Jones is right that Kyoto is not, as yet, law. But lots of things that governments do aren't mandated or required by international law; that doesn't mean they're in beach of it. Suggesting that the silence of international law on a matter can prevent a government from acting is bizarre.

United Future's Larry Baldock argues that we shouldn't tax cows that produce methane because we can't tax swamps that produce methane. Does this mean that we shouldn't tax anyone in NZ because we can't tax people in Tokyo? Or that, because we can't prevent accidental deaths, we should allow murder? (I could go on, but you get the point.)

Gerry Eckhoff (usually one of the least impressive ACT MPs in terms of intellectual rigor) does somewhat better, arguing that we don't need a levy because private research is sufficient. As I noted yesterday, I probably agree, but think that the tax has other benefits that Mr Eckhoff ignores.

There are coherent arguments against this tax. That United Future and NZ First have come up with ones like those above is somewhat depressing.

¶ 4:32 pm

NZPOLS=FISH?: Steven Franks doesn't support the prostitution reform Bill, and as usual he makes some valid points.

I still think that on balance the Bill is a good one (I don't have time to set out why, but press releases here and here should give a good overview, even if I don't agree with all of them). However, even if Franks is right, and the Bill does more harm than good when viewed in isolation, I still think it's in the country's long term interests to pass it. It should be possible to tinker with problematic details as they become apparent, once the principle of decriminalisation is accepted by Parliament; whereas if the Bill is defeated now, we're unlikely to see any movement on this for a very long time.

NB: Commentary from United Future is available here, here and here. Can't track down much from anyone else.

UPDATE: Jim Anderton wades into the fray

¶ 1:12 pm

ENGLISH=FISH?: Peter Dunne also spotted Bill English's apparent flip-flop on the impact of Helen Clark's "anti-Bush" comments on our chances of a free trade deal. (See my previous post here.)

¶ 12:53 pm

SEABED CLAIMS: The politcal fracas over the Court of Appeal's seabed claims decision continues here, here, here, here and here. Tariana Turia agrees with my previous post claiming that ACT is being completely inconsistent on this (though, unlike her, I actually think they're right.)

¶ 12:46 pm

Sunday, June 22, 2003

LESBIAN BARBIE: This Reuters report, (link courtesy of How Appealing and the Conspiracy) about a New York teenager who is suing her school because they suspended her for wearing a "Barbie is a lesbian" T-shirt, got me wondering how 'Lesbian Barbie' would fare here in New Zealand. (Assuming it's a mufti day, or a school that doesn't have uniforms.)

Schools have been held not to be covered by the Bill of Rights Act. But they are subject to the anti-discrimination provisions of the Human Rights Act (specifically, section 57). And they'd be in fairly obvious breach. Although they could argue that they weren't discriminating against lesbians because anyone - lesbian or not - wearing a lesbian Barbie T-Shirt would be suspended, this would still constitute indirect discrimination under section 65, either on the grounds of sexuality, or political opinion.

The school could still get away with the prima facie breach if they had a "genuine justification" for it under section 97 of the Act. The argument, presumably, would run something along the lines of protecting young people from harmful things. However, they couldn't rely on homosexuality being considered harmful, so the only way it could succeed is by drawing some sort of analogy with censorship of pornography or other objectionable publications.

Somewhat ironically, the decisions of the Court of Appeal and the Film and Literature Board of Review in Living Word and Re Gay Rights/Special Rights quickly puts paid to any argument of this sort. In those cases, anti-gay videos were deemed unobjectionable, on the basis that they did not deal with "matters such as sex" that could be subject to censorship. The same conclusion would necessarily follow here.

UPDATE: NZPundit doesn't reckon this would fly at his daughter's school.

¶ 11:35 pm

A TAX ON BOTH YOUR HORSES ... UM, COWS, SHEEP ETC: NZ has been getting a bit of attention in the blogosphere this week over the recently announced levy on the cows, sheep, goats and deer that produce approximately 50% of this country's greenhouse gas emissions. Reaction from most on the right has also been predictable: tax=evil. But is this move actually a bad idea? NZPols thinks not.

Yes, this will hurt farmers, who are already suffering from low milk prices. But the tax is fairly small. It shouldn't amount to more than $300 per annum for most medium sized farms, and the case for or against it should depend more on its microeconomic than its macroeconomic effects. (If you're really worried about the latter, then you can argue that the tax should be delayed, but it won't get you much further than that.)

The government intends the levy to fund about $8.4 million worth of research into methods of reducing the aforementioned gas emissions, on the basis that the privately funded research so far carried out by the Pastoral Greenhouse Gas Research Consortium has not been up to standard. I have absolutely no idea whether this is true or not. However, there are some potentially sound theoretical reasons why this might be the case. The results of such research will be both non-rival and (to some degree) non-excludable: i.e. the reseach is a public good, which suggests a potential role for government. Absent a compulsory levy, one would expect some farmers to attempt to free-ride on research that others paid for, with the result that the research would be underprovided. This would be exacerbated by the fact that there are currently no financial incentives on farmers to reduce emissions.

There are two problems with this line of reasoning however. The first is that it's not clear this has actually happened: instead, the threat of government taxation appears to have acted as an incentive to reduce free-riding, and farmers have chipped in to fund research themsleves (although at $800 000 pa, this is dwarfed by the government's proposed scheme). The second is that it's not clear that government will do any better: it seems equally like to overprovide (who says we need $8.4 million worth of research?); and I've yet to hear a compelling case for why the government's reseach is likely to be any more efficient.

Nonetheless, while the timing could be better, I still think the levy is a step in the right direction.

Why? Because, as well as seeking to fund research, the levy is also, to some degree, a substitute for an earlier proposed tax, designed to reduce our greenhouse emissions. Because the costs of these emissions currently are not internalised, the market does not account for them, leading to excess provision. The levy, although crude (a better solution would probably be an emissions trading market along the lines suggested a few years ago) goes some way to addressing this.

No doubt the government will continue to face vocal opposition to the "flatulence tax" (and we will probably continue to be ribbed from overseas). For our sake, I hope they manage to resist it. Now, if only other countries would follow suit.

¶ 5:28 pm

PROSTITUTION REFORM - LIBERALS OF LEFT AND RIGHT UNITE: Kiwi Pundit posted this yesterday. You should read it, and do what he says.

"Prostitution Reform Bill: This bill, an attempt to legalise prostitution, will be considered by parliament again this week, as reported in the Herald here. The second vote on the bill, held on 19 February, succeeded by a margin of 62-56, so it's very close. A list of how MPs voted is here.

The bill is not perfect and contains more regulations and politically correct nonsense than I would like, but it's a big improvement on the status quo. Not only is it wrong to criminalise voluntary commercial transactions between consenting adults, but the practice of selective prosecution has become so well established that the opportunities for abuse by the police are enormous, for example here.

Below is a short list of those MPs I believe to be undecided on the bill, with their emails. I'd really appreciate it if you would write to some or all of them, expressing your views.

David Carter ( David.Carter@national.org.nz )
Ashraf Choudhary ( Ashraf.Choudhary@parliament.govt.nz )
Judith Collins ( Judith.Collins@national.org.nz )
Gerry Eckhoff ( Gerry.Eckhoff@parliament.govt.nz )
Stephen Franks ( Stephen.Franks@parliament.govt.nz )
Martin Gallagher ( Martin.Gallagher@parliament.govt.nz )
Phil Goff ( pgoff@ministers.govt.nz )
John Key ( John.Key@national.org.nz )
Wayne Mapp ( Wayne.Mapp@national.org.nz )
Murray McCully ( Murray.McCully@national.org.nz )
Simon Power ( Simon.Power@national.org.nz )
Lockwood Smith ( Lockwood.Smith@national.org.nz )
Nick Smith ( Nick.Smith@national.org.nz )
Pansy Wong ( Pansy.Wong@national.org.nz )"

Although I also think that the Bill has flaws, I agree with Kiwi Pundit that it's better than the status quo. If it fails now, it won't be back for a very long time.

¶ 11:20 am

Saturday, June 21, 2003

THE PRIVY COUNCIL, THE SUPREME COURT, AND BOB JONES: Kiwi Pundit has welcomed Thursday's Privy Council decision to grant an appeal by Sir Bob Jones' (against the Court of Appeal's summary dismissal of his complaint against a Police Officer in relation to a traffic incident). He goes on to opine that the Court of Appeal's error "adds further weight to the case for retaining the Privy Council as our final appellate court."

Unsurprisingly, NZPols begs to differ. Not only does the decision do little to further the case for the retention of the Privy Council, it also provides a clear illustration of why we should bring our final appeal court back home.

The Privy Council's judgment itself is probably correct (though I am less optimistic about the chances of Mr. Jones' substantive cause of action succeeding). Moreover, I'm prepared to accept that, on balance, the Privy Council has a better decision-making record than the Court of Appeal. Indeed, if our highest Appellate Court didn't have a better record than its immediate inferior, you'd be worried, especially when you've got a requirement for special leave to appeal that weeds out all but the handful of cases most likely to be overturned.

However, this doesn't matter particularly for the Supreme Court vs. Privy Council argument. Contrary to the assertions of Privy Council defenders, this trend isn't evidence that New Zealand doesn't have the calibre of judges to sustain a domestically based court of final appeal. The 'poorer' quality decisions of the Court of Appeal is not due to poor quality judges. Rather, it reflects structural constraints on the Court of Appeal's decision-making.

In 1999, the NZ Court of Appeal disposed of 737 appeals. By contrast, UK House of Lords and the Privy Council combined disposed of 140. (The US Supreme Court disposed of only 79.) I have heard at least one previous member of the Court of Appeal recount how its incredibly high workload affects judges' ability, not only to make individual decisions, but also to engage in the wider research and reading that is integral to high quality decision-making in the long term. (As an aside, one also gets the impression that the Department for Courts is chronically under-resourced. A friend who clerks for one of the current Court of Appeal judges recently had a request for a desklamp declined due to lack of funding!) Under such circumstances, it should not come to us as any surprise that the Court of Appeal sometimes makes mistakes. Indeed, it is a credit to the quality of our judges that they make so few.

So what does the Jones decision really illustrate? Consider how many people apart from our dear friend Sir Robert would have been able to take an appeal like this to the highest court 'in' the land. This case shows us exactly why we need our own Supreme Court: so that people other than just Sir Robert can have access to justice.

¶ 11:58 pm

Friday, June 20, 2003

WHALING (AGAIN): I've already posted on why we probably shouldn't have a South Pacific whale sanctuary. The Dom-Post today disagrees.

To the extent that the piece contains anything resembling an argument, it runs something like this.

(1) More people dislike whaling than like it, so whaling should be stopped.

Majority rule arguments like this aren't generally something liberals (on either the left or the right) are attracted to, even less so when they involve states rather than individuals. Moreover, they're likely to be counterproductive. If you rely on majority will to batter your opponents into submission in a forum like the IWC, they may just get up and leave. If you're going to argue against whaling, at least grace us with an argument.

(2) Having alive whales is good for New Zealand whale-watching enterprises, so whaling should be stopped.

The link between the premise and the conclusion assumes that killing some whales is the same thing as killing all whales; or, to put it another way, that there is no such thing as sustainable whaling. The evidence (as well as common sense) suggests otherwise.

ALSO: Check out these posts from Darkness, Circling Apollo and Tam I Am).

¶ 1:29 pm

BACKTRACKING?: Bill English seems to have admitted that Helen Clark's now-infamous Bush-Gore comments probably didn't affect our chances of a free trade deal that much after all. Commenting on his talks with US Deputy Secretary of State Richard Armitage:

"I think the lesson is that if New Zealand had been able to come to the table alongside Australia then we would be getting a FTA. But that fell off the table two or three years back and it looks like that's too late."

¶ 11:58 am

THE WONDERFUL WORLD OF POLITICS: Talk about playing the man and not the ball.

John Tamihere opines that older Maori leaders should make way for new blood.

Predictably this bring brings scorn from said older Maori leaders, and support from the new blood.

Less predictably, it also brings an angry Winston Peters to level fraud allegations against him under Parliamentary privilege (Hansard transcripts here and here).

Turns out Tamihere plead guilty to a fraud charge a few years back, though he was discharged without conviction (and details of the case were supressed), and still maintains he was completely innocent.

¶ 11:51 am

MAORI CLAIMS TO FORESHORE AND SEABED - MORE ACT INCONSISTENCY: ACT deputy leader Ken Shirley is calling on Helen Clark to 'act consistently' in relation to yesterday's Court of Appeal decision (available in pdf form here) that the Maori Land Court has jurisdiction to hear claims relating to the foreshore and seabed. I am reminded of a saying to do with pots and kettles.

Mr. Shirley seems to claim that the government should rely on the Territorial Exclusive Economic Zone Act and Foreshore and Seabed Empowering and Reinvestment Act as negating customary title. It's not entirely clear what he means by this, but it's either constitutionally illegitimate, or inconsistent with ACT's own principles.

Constitutionally illegitimate because a five-judge bench of the Court of Appeal has just unanimously decided that he is wrong, and that neither of these acts has any effect on customary title. The case (as with most that reach the Court of Appeal) was arguable, but that's why we have courts: to settle such disputes definitively. It's not the place of government (or for that matter Mr. Shirley) to question them.

If the government is to get involved here, the only legitimate way for it to do so is to have Parliament pass another law that clearly removes any remaining Maori customary rights to the seabed and foreshore. But the inconsistency of ACT's supporting such nationalisation of private property intetrests is simply astounding. What's happened to the party of principle, advocating one standard of citizenship for all?

Of course 'inconsistent with ACT's principles' is not the same thing as 'wrong', and ACT's inconsistency does not excuse the same fault in Helen Clark. The government has recently shown itself willing to consider the 'national interest' in relation to Treaty claims, and should continue to do so. However, the problem may be more complex here than it first appears. Because Maori customary rights are not necessarily the same as freehold title, it may be that their recognition will have little effect on the national interest. Although we can guess, we won't really know in each case until the Maori Land Court determines the issue. While the 'national interest' is important, we shouldn't rush into nationalisation just yet.

UPDATE: Although I disagree with Kiwi Pundit, at least he's consistent.

¶ 9:41 am

Wednesday, June 18, 2003

GAY MARRIAGE: In response to the recent decision of the Ontario Court of appeal the Canadian Cabinet has announced that it will move to allow gay couples to marry. Kiwi Pundit doesn't reckon we should give them too much credit for this, as the courts probably would have done it anyway. I'm inclined to be a little more charitable: I suspect that the court decision has simply given the government the opportunity to do this without wearing too much of the flak from conservatives themselves.

Unfortunately, unlike the (apparent) situation in the US, section 3 of our Marriage Act means NZ won't recognise gay marriages solemnised in Canada. But it will be interesting to see whether the decision has any spillover effect here regardless. Perhaps the current battle with Peter Dunne over the Care of Children Bill is just testing the waters.

¶ 11:04 pm

WHEN PRINCIPLES AND POLITICS CLASH: The Libertarianz appear to have a point in questioning Muriel Newman's liberal credentials when she slams the government for failing to crack down on Meth. Politically of course, the 'tough on crime' line's a winner. But it does seem a bit odd coming from a bunch that just last week was raving about how it was the only party of principle left in Parliament.

¶ 10:24 pm

WHALING: NZ's recently defeated bid to establish a South Pacific whale sanctuary reminded me of a Gwynne Dyer article I read in (of all places) the ODT a couple of years back. It still seems rather apposite.

Salient points:

(1) NZ is being a little hypocritical in denouncing Japanese 'stacking' of the IWC. We did the exactly the same thing with countries like Belize, Costa Rica and Senegal to get the current moratorium passed in 1986.

(2) Some degree of whaling is sustainable (check out the IWC site.)

(3) The real reason for wanting to ban whaling has less to do with conservation (as most people assume), and more to do with squeamishness about killing animals that are 'intelligent'.

Personally, I'm not huge on animal rights - killing animals for no particular reason disturbs me, but probably as much for what it potentially says about the people doing the killing than any innate sense of injustice. In any event, I'm unconvinced that forcing 'our' conception of animal rights on countries like Japan and Norway is justifiable, beyond what is strictly necessary to sustain the species.

At the very least, if the debate is really about whether it's right to kill whales, let's have a debate about whether it's right to kill whales, rather than hiding behind sustainability arguments.

It may also be worth checking out Dan Goodman's criticism of Greenpeace's stance, and Greenpeace's (somewhat less convincing) response.

UPDATE: As well as this piece from today's herald that I missed earlier.

¶ 8:11 pm

APOLOGIES: for the recent lack of activity on this site. Your correspondents have been respectively bed-ridden (with flu) and exam-ridden (with, um ... exams). We'll be resuming normal broadcasts soon.

¶ 7:10 pm

Sunday, June 15, 2003

ANOTHER AGE-OLD TRADITION UNDER THREAT: The Economist (sorry, subscribers only) writes that Bill Frist, the Republican leader in the Senate is pushing "'with regret but determination' to restrict the right of senators to 'filibuster' a presidential nomination - in other words, to keep talking until the nomination is withdrawn or shelved." Currently, filibusters can only be overridden by a 'cloture' vote, requiring a supermajority of 60 of the 100 Senators. Frist intends to reduce this progressively to 51, and then a simple majority of the members present.

The ostensible justification for the move rests on the idea that the filibuster, in providing a means for a passionate minority to oppose the will of the majority, is anti-democratic. However, the real reason is more likely the upcoming resignations of two Republican-appointed judges from the Supreme Court, William Rehnquist, and Sandra Day-O'Connor. Republicans fear that, in the face of democratic filibusters their 51 seat majority in the Senate will not be enough to get their preferred replacements appointed. (Indeed, two Bush-nominees for lower judicial positions have already been blocked this year.)

This is not, of course, to say that the objections to filibusters should not be taken seriously: to the extent that democracy is equated with simple majoritarianism they are undeniably un-democratic. However, as the Economist points out, the US constitution is full of features designed to protect against the 'tyranny of the majority' (the prime example being the Supreme Court itself). Moreover, the Republican's target is not all filibusters; only those directed at judicial nominations are to be subject to the new cloture requirements.

Frist argues that this is because normal legislation has other means of overcoming a block in the Senate, while judicial appointments do not. However, it seems odd that appointments to a body which is itself designed as an anti-majoritarian safety measure should be made in the face of such vehement minority opposition as a filibuster requires. (Despite Republican accusation of Democratic misuse, filibustering expends valuable political capital, and is unlikely to be used lightly: Democrats did not, for example use it to block the appointment of John Ashcroft.)

In fact, it is arguable that judicial appointments should require a supermajority as a matter of course, even without an attempted filibuster. A less politically charged Supreme Court could not only bring more stability to constitutional law, but also serve to shift debate about many currently vexed issues (e.g. abortion, civil rights vs. national security and the death penalty) back into the political realm where they belong (see my earlier post on 'the false promise of judicial activism'.)

Somewhat ironically, the proposed amendments require a (virtually unachievable) 67 vote majority to pass. That is, unless Vice-President Dick Cheney exercises what has been dubbed the 'nuclear option' and unilaterally rules that filibusters do not apply to judicial appointments. Whether Republicans are willing to suffer the fallout of that remains to be seen.

¶ 12:50 am

Saturday, June 14, 2003

GOODBYE PRIVY COUNCIL: The debate in this country about the abolition of the Privy Council has taken an interesting new twist: Tony Blair has beaten us to it.

The British government yesterday announced it will replace the Privy Council with a "US-style Supreme Court" and abolish the post of Lord Chancellor. And, while traditionalists will no doubt hate abandoning the 1400 year old post, it's high time it was done. It was always rather ironic that the nation which Montesquieu had praised so highly for its separation of powers could persist for so long in such transparent breach of his principle: retaining a position that combined the roles of Lords' speaker, cabinet minister and head of the judiciary. This decision simply cements what many Law Lords have been calling for, for some time now.

The more interesting question is what this means for the Supreme Court debate here. It is possible, of course, that the decision has already been made for us. However, this seems unlikely. Although the current changes may prompt the British government to re-evaluate whether it still wishes to fund other nations' judicial structures, one expects that if NZ truly wished to retain the British Supreme Court as our highest court of appeal, we would not be rebuffed.

Instead, the real effect of this decision here is likely to be rhetorical. The argument that NZ 'shouldn't fix something that ain't broke' no longer holds much water. For those, like NZPols, who think that argument was rather leaky to begin with, this doesn't make much difference. But it certainly adds rhetorical momentum to the abolitionist cause: saying we should 'retain' the British Supreme Court as our highest court of appeal suddenly seems like abdicating our national sovereignty, rather than maintaining a valuable tradition.

Moreover, one aspect of the British proposal may further advance the case for the Supreme Court here. Although details are still vague, part of the proposed British changes involve removing the power to appoint judges from the Queen acting on the advice of the Prime Minister, and entrusting this to an independent Judicial Appointments Committe. If Margaret Wilson were to adopt a similar solution here, it would take much of the sting from the anti-abolitionists arguments.

For those like NZPols, who think that access to this country's final court of appeal (currently confined to a handful of cases each year, mostly involving large companies who can afford the bills) needs to be both wider and more equitable, the British decision is a welcome development indeed.

¶ 2:58 pm

Thursday, June 12, 2003

A BIT OF PERSPECTIVE: This decision of the Ontario Court of Appeal, holding that the common law's traditional exclusion of gay marriage breaches the right to equality in the Canadian Charter of Rights and Freedoms (equivalent to our own Bill of Rights) puts some perspective on the reforms proposed in the Care of Children Bill. We may be moving in the right direction, but there's still a long way to go.

¶ 9:44 pm

Wednesday, June 11, 2003

CHILD(ISH) BILL FAILS TO IMPRESS: Bill English's comments that the Care of Children Bill "says fathers no longer need to be men" are, well, childish. I may not agree with Peter Dunne, but at least he's fairly open with his party's homophobia, and doesn't try to hide behind churlish pedantry over the wording of a deeming clause (see Lianne Dalziel's response).

Apart from recognising the rights of same sex couples, the Bill also appears to move in a welcome direction on other issues, such as the openness of the Family Court and the ability of fathers to seek paternity orders. NZPols will follow its development with interest.

¶ 11:50 pm

MORE OF THE SAME: I'm clearly not Kiwi Pundit's favourite person today. However, this particular criticism seems to have missed my point. I have never claimed that the abolition of the Privy Council would have no practical consequences. What I have claimed is that Parliament is perfectly capable of dealing with these (so that, absent a significant public push for a referendum, one should not be necessary). To date, I have heard nothing to convince me otherwise.

My previous post on this issue may have been slightly misleading: it suggested the important factor in whether a referendum is necessary is whether the decision will significantly alter the constitutional power structure. In fact, the key point is whether, because of this, Parliament should not be trusted to make the decision. Usually the two will follow from one another (and here they do). But this might not always be the case.

¶ 11:03 pm

RIGHT, BUT FOR THE WRONG REASONS: Kiwi Pundit has taken me to task for claiming that Phil Goff's plan to retrospectively apply 'penalties' to paedophiles doesn't breach section 26 of the Bill of Rights Act. Now, technically I'm right: section 26 has nothing whatsoever to do with this issue. However, this is only because the relevant section is in fact 25(g), which grants an accused:

"the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty."

But this still shouldn't apply to the case at hand. The implication of section 25(g) is that 'penalty' includes only that part of the punishment handed down at sentencing: later decisions, for example regarding parole or supervision, would not appear to be covered. (If they were, the results would be bizarre: offenders already serving jail time could have their punishment increased, but those not yet sentenced could not.)

In any event, quite independently of the legal issues involved, I stand by my earlier comments that there is nothing necessarily wrong with retrospectively altering penalties for known offences. With one slight amendment.

Commiting a crime is not like entering into a contract with the state ("if I rob this house, you get to lock me up for two years"). Thus, the state is not bound by the terms of this non-contract. What the state is obliged to do is to administer a penalty consistent with the purposes for which punishment is used. These are generally accepted to be the following: deterrence; rehabilitation/prevention of future offending; retribution; and (sometimes) restoration. The only one of these which is potentially compromised by retrospectivity is deterrence (because a penalty that an individual does not know about cannot deter them). The other three are unaffected.

Because Mr Goff's proposed "punishment" is aimed at the prevention of future offending rather than deterrence, there is no reason to prohibit it. If it is unjust, it is unjust independently of whether or not it has retrospective effect.

¶ 10:36 pm

Tuesday, June 10, 2003

RETROSPECTIVE INJUSTICE?: Phil Goff's plan to introduce a backdated law to keep convicted paedophiles under close supervision for up to 10 years has divided commentators. Civil libertarians are outraged, and such luminaries as Kiwi Pundit (again, the permanent link is a bit screwy) and some "top Palmerston North and Wanganui lawyers" have slammed the decision, which they claim breaches section 26 of the New Zealand Bill of Rights Act.

So clearly, it's a bad idea, right? Act's Deborah Coddington and I aren't so sure.

Section 26(1) of the Bill of Rights provides that:

"No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred."

This makes sense: it's not (usually) fair to punish someone for something that wasn't illegal when they did it. But this isn't what we're dealing with here: paedophilia has always been a offence. What's changing is the consequences, and on its face, the Bill of Rights doesn't seem to have a great deal to say about this. There are a couple of obiter statements by judges that this sort of thing might be caught by section 26(1), but they're not entirely convincing. The fact is that the case against changing penalties retrospectively is far weaker than the case against creating offences retrospectively. Somehow saying "I thought I'd only get locked up for a couple of years for raping small children" just doesn't seem right.

In any event, it's debatable whether the proposed monitoring should even be considered a punishment. It may be disadvantageous to the offender, and it may be linked to their offence. But fundamentally it's more about preventing future offending than about punishing past crimes.

¶ 11:39 pm

SUPREME COURTING: A friend of mine bailed me up today about my claims we don’t need for a referendum on the Supreme Court issue. He began by asking whether I would think we should have a referendum on replacing the Queen in right of NZ with a local Head of State (assuming the new position was to remain a figurehead). When I said yes, he then asked me how the case of the Supreme Court was different.

Of course, he had a point. Surely I must either deny that the two cases are analogous, or I must think that the second shouldn’t need a referendum. I do think the cases are analogous, and I’ve already admitted that I think the latter warrants a popular vote. So I’m stuck, right?

Well, not quite.

The reason I think a referendum would be needed for the Head of State decision, is because I think that the vast majority of people would want one if the issue arose. If I turned out to be wrong, and the vast majority of people actually didn’t care, then I would have no problem with the decision being made by Parliament - for precisely the same reasons as with the Supreme Court (i.e. because it wouldn’t significantly alter the political power structure). In both cases the ‘important’ changes are largely symbolic, and it’s up to individuals themselves to decide whether they care about symbolism. By contrast, MMP is something I think the people of New Zealand were obliged to have a say on (even if originally they might not have cared) because it proposed to fundamentally alter the power structure of our constitution.

NB: I took the liberty of polling my flatmates (all well-educated people) as to whether they would want a referendum on the abolition of the Privy Council. Responses fell into 3 categories:

(1) “Hrmph.” [shrug]
(2) “I’m sure some people would be interested.”
(3) “What Privy Council?”

This may not be robust evidence of widespread apathy over the issue. But it at least makes you wonder whether we all take ourselves too seriously sometimes.

¶ 9:39 pm

A WAR ON TWO FRONTS: Labour is under attack from both sides over the government's decision to send support personnel to Afghanistan and Iraq, with those on the left and right accusing Helen Clark of inconsistency: the Alliance reckons we're now part of a "colonial occupation"; National that Clark is trying to curry favour with Washington (which, incidentally, appears to have worked).

Inconsistency has been a hallmark of Clark's policy on Iraq, in which she has very much tried (and largely succeeded) in being all things to all people. But I confess I struggle to see it here. Whatever one might think of Labour's original policy, a willingness to help clean up the mess in no way depends on having been in favour of the war in the first place; and a decision to commit troops now (when it is clear that the UN will not have charge of the rebuilding effort) is in no way at odds with the government's original preference for greater UN involvement - it is simply pragmatic.

¶ 9:55 am

Monday, June 09, 2003

BUYING JUSTICE?: Representatives of both centre parties (United and NZ First) are aghast at the recent decision to reduce the sentence of a speeding driver, who killed a four year old girl, because of a $40 000 donation to the girl's kindergarten. (NZpundit is too.) Of course, the girl's death is tragic. No-one with their faculties intact (including the speeding driver) would dispute that.

However, quite apart from the constitutional issues involved with MPs publicly criticising particular judicial decisions, their comments that this puts a price tag on justice (or worse, on a little girl's life) miss the point. A jail stint is as much a price tag as a cheque, albeit one of a different kind. Both are intended to impose a cost on the villain as punishment for the pain they have caused.

The principle of taking into account genuine attempts to make reparation in sentencing is far from a novel one, and not one it would be sensible to abandon. (Admittedly, if this were a case of intentional, rather than reckless killing then the argument might be different. But it is not.) The real issue is how this should be done. Simply looking at the dollar amount someone has handed over doesn't make sense. It allows one law to operate for the rich, while another operates for the poor - and in doing so it opens up the justice system to deserved criticism. Why not look instead at the level of sacrifice actually involved for the accused? A $40 000 donation from a millionaire would then attract little in the way of leniency, while a $40 000 donation from me (which would effectively amount to an extended stint of hard labour) should count for rather more.

While we're at it, why not go the way of Finland and make the size of speeding fines dependent on income too?

UPDATE: National and ACT have also come out with comments in similar vein. Notable however, is the more moderate tone of both their press releases, in which they are very careful to aim any potential criticism at the Sentencing Act, rather than the judge's decision.

¶ 6:50 pm

Sunday, June 08, 2003

WHERE HAVE ALL THE CIVIL LIBERTARIANS GONE? Whenever anyone suggests banning anything, there usually follow howls of protest from civil libertarians complaining that their rights (read, their ability to do whatever they like regardless of the consequences) are being infringed by a totalitarian/socialist government. (Sometimes, they even have a point.)

So the most surpising thing about the commentary so far on the recent proposal to ban drivers from using cell-phones, is the the resounding silence from libertarian quarters. The best Rodney Hide could manage is worrying about the impact on business if Aucklanders stuck in two-hour traffic jams couldn't continue their wheeling and dealing. (But let's face it - the likelihood of effective enforcement in grid-lock is virtually nil anyway.) Vodafone and Telecom have predictably come out against, but their argument is simply that "it doesn't really cause that many deaths."

Given that it's unlikely that we've all turned utilitarian overnight, I'll assume that the onslaught is coming. It'll have to be pretty good to get past 83% public backing for the proposal.

¶ 4:14 pm

UNIONS: MISGUIDED ENERGY?: The Economist this week reckons that, despite recent shows of strength across Europe, unions are on the decline. Ho hum. More interestingly, it goes on to set out a number of prescriptions for unions to follow if they are to arrest this decline. The key message: start providing services that workers actually need - adapt or die. (The main article is restricted to subscribers, but this one addresses some of the salient points.)

Much of the criticism is valid: adopting a more co-operative, and less confrontational modus operandi would be valuable; unions do need (finally) to drag themselves away from their mysogynistic past; and they would also do well to appeal more to part-time workers. To grow numbers, it makes sense for unions both to widen their potential membership base, and to adopt more effective means of achieving their goals.

The Economist also argues that unions need to reduce their role in non-workplace related areas (such as political posturing over, say, the war on Iraq, or a European constitution). If the benefits unions provided were of the private kind usually traded in markets then this would make sense: by tailoring their offerings to specific workplace needs, unions could not only avoid the risk of alienating potential members who did not share the political views of the majority, but also provide their remaining services at a lower cost.

The problem is that the benefits unions offer to their members are often non-excludable (i.e. when empoyers offer the same benefits to all employees, regardless of union membership), and therefore resemble public goods as much as private ones. As such, unions are faced with a collective action problem: if non-members can gain the wage and other benefits of membership without paying dues, then rational, self-interested actors will not join, and union services will be underprovided (which, of course, is precisely the result employers are aiming at.) So unions need to appeal to something other than workers' rational self-interest to survive - and this is where politics come in. Adopting stances on wider political issues allows unions to exploit the more collectivist, solidaristic motivations of their traditional core constituency, and thereby preserve their membership.

There are, admittedly, other ways of addressing the collective action problem, most notably by providing members with other, excludable goods, such as financial or legal services. However, these are not necessarily mutually exclusive. As yet, (and for better or worse) it remains doubtful that wider political involvement will see the demise of unions.

¶ 3:12 pm

Saturday, June 07, 2003

LESS DEMOCRACY, PLEASE: In the NBR today, Associate Professor of Law James Allan appears to join the chorus of politicians and media commentators calling for a referendum on the abolition of appeals to the Privy Council. While I am by no means opposed to such a referendum being held, I confess to being somewhat perplexed by arguments that it is a necessity. Coming from someone who only yesterday argued in favour of greater democratic checks on judicial power, this might seem a little odd, so perhaps I should explain myself.

For those who know Jim, the primary theme of his argument will be familiar: we cannot trust 'elites' to make our decisions for us; 'democracy' should decide. So far so good. (Indeed, this is the thrust of the case I advanced yesterday.) However, this time the argument is different, in one imporatant respect: this time the 'elite' that bears the brunt of Allan's criticism is not an unelected judiciary, but our elected representatives in Parliament. Usually, this is precisely the 'democratic' institution whose decision-making power he is concerned to preserve.

So what makes this case different? It cannot simply be that referenda are more democratic; if that alone were sufficent, it would follow that we should make virtually all decisions by referenda. There must be something different about this particular decision, that distinguishes it from the vast majority of those that we are perfectly content to leave to politicians.

The case most often made here is that the Supreme Court proposal is, like the shift to MMP, an issue of such fundamental constitutional significance that it demands that the voice of the people be heard. On its face this seems reasonable enough. But recall for a moment what is actually being proposed here: it amounts to little more than the replacement of a group of English judges with a group of New Zealand judges. Not the creation of a truly 'new' tier in our court structure (though new tiers have been created before without referenda). Not the endowment of judges with a raft of new powers (though new powers - such as those contained in the Human Rights Amendment Act 2002 - have been granted before without referenda). Not, in short, the sort of thing that would generally be thought to require a popular referendum.

A quick review of the sorts of issues being raised in the substantive debate about the court confirms this: business interest in retaining the Privy Council; judicial knowledge of tikanga Maori; whether there is a sufficient pool of judicial talent in this country to sustain such a court etc. Not exactly matters of great constitutional significance.

The only issue upon which referenda proponents even begin to get any traction relates to the method of appointing judges to the court (which some fear will result in Margaret Wilson stacking it with political appointees). Yet there is little to suggest that Parliament cannot act as an adequate safeguard here: the vigorous oppostition expressed so far has already resulted in an announcement that the judges are to come from the current Court of Appeal (many of whom were National appointees).

By all means, if the public truly wants a referendum, let them have it. But let's not pretend that this decision would be morally flawed without one.

¶ 7:24 pm

Friday, June 06, 2003

THE FALSE PROMISE OF JUDICIAL ACTIVISM: This is a couple of weeks old, but it's one of my pet gripes: The Economist reckons that the "new judicial activism" David Blunkett has recently been complaining about is:

"for those, like this newspaper, who think that the British constitution (or lack of it) endows the executive with too much power, ... a welcome development. Britain's judiciary is a pale shadow of that in countries with written constitutions, such as America, where the Supreme Court constantly scrutinises the actions of the executive and the legislature in the light of the constitution. But the growing assertiveness of Britain's judges is an indication that things are moving in the right direction. The crosser Mr Blunkett gets, the better."

Many in New Zealand might express similar sentiments (though the same kind of executive-judicial standoff as has occured in Britain has yet to manifest itself here). However, in doing so both they, and The Economist fall into an all too familiar trap, referred to by economists as the 'nirvana fallacy'.

The argument for judicial activism essentially runs as follows:

(1) Governments sometimes make 'bad' decisions.
(2) When they do, judges should step in and stop them.

The problem with this is that it assumes, without analysis (a) that judges will make fewer 'bad' decisions than governments; and (b) that no alternative oversight institutions (such as Parliament) will make fewer 'bad' decisions than judges. In fact, there is a good deal to suggest that we should not be so sanguine in our estimations of curial competence: judges make bad decisions too. In the US (which is held up as a shining example by The Economist) judges have been complicit in some of the most grievous governmental rights breaches (see e.g. Korematsu v US). Moreover, in a system that gives power to the judiciary, judges can overrule 'good' decisions with 'bad': The Economist itself has noted the way Supreme Court interference has distorted the abortion debate in the US (see "The war that never ends").

In making the assessment between judges and democratically elected representatives, it bears emphasising that most of the issues we are talking about here are not susceptible of easy answers: striking the 'right' balance between citizens' civil rights and the nation's security (to take Mr. Blunkett's example) is a difficult task. Many (myself included) would go so far as to argue that such problems have no 'correct' solution at all. These are precisely the sorts of issues that are best dealt with by a democratic process of compromise, and (where that fails) majority will. Yet arguments for greater activism on the part of a small coterie of unelected judges lead us in precisely the opposite direction.

The Economist's diagnosis of a too-powerful executive may be correct, but the suggested cure - which amounts to replacing it with a too-powerful judiciary - is too simplistic. In moderation, a little judicial activism may be warranted (particularly if confined to the protection of democratic and minority rights, which governments are perhaps more likely to trample). But in general, a better solution would involve more democracy, not less.

Proportional representation anybody?

¶ 11:00 pm