Worth quoting

KiwiPundit on Phil Goff's plans to seize the assets of suspected criminals:

The phrase 'criminals who had been acquitted of criminal charges' is so perfectly Orwellian it really deserves some kind of award.

It's also good to see Rodney Hide and ACT weighing in on the right side of a human rights issue for once. But I guess that can be explained by the fact that it involves property rather than legal protections...

Meanwhile, the Ministry of Justice apparently opposed the proposed regime, pointing out serious problems with double jeopardy and the presumption of innocence, as well as "a perverse incentive to divert police resources away from criminal investigation in favour of pursuing civil forfeiture". And National and United Future think that this is too "soft"...?

Waiting

The Supreme Court will be releasing its decision on whether Ahmed Zaoui is eligable for bail at 2:15 this afternoon. The judgement should be on the Ministry of Justice's Judicial Decisions of Public Interest site soon afterwards, and on Scoop as soon as they can convert it to HTML.

Clearing the air

The PM has announced an inquiry into the allegations that the SIS spied on Maori groups. I guess a united stance from all other parties really can achieve something.

No matter what it turns up, I think this will clear the air. At the same time, we should not allow it to distract attention from the need for reform of the SIS's general oversight provisions. A committee that meets for one and a half hours a year and which is forbidden from investigating operational matters simply is not enough to watch the watchers. We need a broader committee, with real powers of investigation, which will hold the SIS to account for any "mission creep".

Fascination

I've been the growing crisis in the Ukraine with fascination. A disputed election and widespread allegations of electoral fraud have resulted in mass-protests and a general strike, and threats of civil war. So far things have followed the "people power" model - turn out the people and get them to march round and round the government buildings until the authorities give in. This has been successful in Georgia, in Yugoslavia, Argentina and the Philippines, mainly due to the reluctance of the government to use military force (and the reluctance of militaries to act against popular demonstrations). But I'm worried that in the Ukraine, with its history of authoritarian government under the Russians, it may simply turn into a Tiananmen-style massacre.

"Social engineering"

ACT's Deborah Coddington complains about "social engineering" in a recent NCEA economics exam, pointing to two specific questions:

'The New Zealand government provides 'free' education at state secondary schools. Explain why this results in a better resource allocation than the free market.'

'Explain why using 'free market' policies causes income inequality.'

Coddington's objection is obviously that these questions place her party's policies in a poor light - and they do. But the problem lies not with a cabal of evil collectivist examiners waging a revisionist campaign to poison the minds of the young against ACT, but with mainstream economics. And it is not the examiners who are being "revisionist", but Coddington herself.

The first question is about market failure, something that ACT likes to pretend don't exist. Why do we have universal public education? Because the free market failed to provide adequately. In the Nineteenth Century, education was a private affair, handled by private schools and charity. Unsurprisingly, this resulted in many people missing out, as the poor chose to put immediate goods (like food and shelter) above long-term ones, while employers generally chose to freeload rather than educate an increasingly mobile workforce. In economics terms, there was substantial underinvestment, because the multiple beneficiaries of education meant that even those who could pay for it had a lower incentive to do so. Universal provision resolved this, to the benefit of all.

It also raises questions of what constitutes a "better" resource allocation. ACT adheres to the dogma that the best allocation is whatever the market produces, but this ignores the fact that markets exist to serve people (rather than vice versa). Most people would consider an allocation where everyone was educated superior to one where some missed out. If ACT disagrees with this, they have not yet been brave enough to say so.

The second question is obviously highly damaging to ACT given the egalitarian attitudes of most New Zealanders, but is widely accepted by economists. The tradeoff between economic efficiency and equity (or equality) is well-known and included in most basic economics textbooks. But what's most interesting is that it is accepted by ACT. In her 2002 conference speech, ACT President Catherine Judd quotes Jim Peron, giving a textbook answer to the question:

A free society will not be one of equality. Once human beings are free, the choices that they inevitably make will change their levels of wealth. Even if we were able to redistribute all wealth equally, once the heavy hand of centralized control was removed, inequality would immediately result. Imagine a society of complete equality of wealth but one where all people were free to make decisions regarding their own lives. If wealth were equal at 8 a.m. it would be unequal by 8:01. Some individuals would spend their money, while others would invest it. Some would gamble with it or buy pastries. Others would purchase tools for work or pay for education or training. Each choice means that the distribution of wealth will become progressively more unequal.

(This parallels Nozick's famous Wilt Chamberlain argument)

The idea that inequality is both a consequence of the free operation of markets and vitally necessary for their proper functioning is a key component of the social darwinist strand of classical liberalism ACT espouses. For Coddington to deny this and complain about economics students being asked to confirm her own party's core beliefs is simply intellectually dishonest.

Coddington ends with a quote from 1984 calling for people to be free to acknowledge the truth. I agree wholeheartedly. But the truth here is not as Coddington claims. The fact is that stones are hard, water is wet - and free markets cause inequality.

Embarrassing for Auckland?

The promoter of the V8 street race thinks that Auckland's rejection of his event is an embarassment to the city.

Well, only if not being internationally known as suckers is embarassing. Personally, I think it's a good reputation to have.

The V8 street race was a scam. There's no other way to describe an event that would have shut down the city while billing Aucklanders for the privilege. It would have added very little to the local economy; with car races everything comes in on the back of a truck, and it was unlikely to attract the same level of international visitors as the Americas Cup. Aucklanders would simply have got a very expensive traffic jam - something they're quite capable of arranging for themselves for nothing. Viewed this way, they are well rid of it.

If hoons want to race their cars, then they should do so on a race-track; if people want to watch, then it is they who should be paying for it - not ratepayers in general.

Twenty minutes into the future

The US Congress wants to make it illegal to fast-forward through the ads on a video recording. What next? Forbidding people to change the channel or get up during a broadcast ad-break? Making televisions with no off-switch...?

Uncrossing our fingers

With the Civil Union Bill reportedly coming before Parliament again next week, it's time for us all to (as Jordan said) uncross our fingers and start lobbying MPs. The easiest method is email, so I've included email addresses below; however if you can lobby directly through an MP's electorate office, so much the better.

Based on the Campaign For Civil Unions' page on how MPs voted, I've picked out the following targets for extra-hard work:

National, ACT, and NZFirst MPs who voted for the bill and whose support needs to be shored up:

• Brian Donnelly (List) Ron Mark (List)
• Gerrard Eckhoff (List)
• Stephen Franks (List)
• Rodney Hide (List)
• Richard Prebble (List)
• Heather Roy (List)
• Ken Shirley (List)
• Don Brash (List)
• Katherine Rich (List)
• Clem Simich (Tamaki)
• Lockwood Smith (Rodney)
• Pansy Wong (List)

The support of these MPs will be critical to getting the bill over the 61 vote mark - and some may have voted for it solely to get it to committee. Try thanking them for their support, and (for ACT), appealing to the principles supposedly underlying their party.

Absentees:

• Ashraf Choudhary (List)
• Luamanuvao Winnie Laban (Mana)
• Janet Mackey (East Coast)

These MPs have since voted for the Omnibus Bill, so they're probably nominally sympathetic - but they need reminding anyway.

MPs who voted for the Omnibus Bill but not the CUB:

• Gordon Copeland (List)
• Peter Dunne (Ohariu - Belmont)
• Judy Turner (List)
• John Key (Hellensville)
• Wayne Mapp (North Shore)
• Georgina te Heuheu (List)
• Murray McCully (East Coast Bays)
• Roger Sowry (List)
• Maurice Williamson (Pakuranga)

Their votes for the Omnibus Bill likewise make them at least somewhat sympathetic, so they may be able to be "flipped".

Regressive Labour MPs, who need to be reminded of what Labour is supposed to stand for:

• Clayton Cosgrove (Waimakiriri)
• Harry Duynhoven (New Plymouth)
• Taito Phillip Field (Mangere)
• Damien O'Connor (West Coast-Tasman)
• Paul Swain (Rimutaka)
• John Tamihere (Tamaki Makaurau)

Frankly, these people need to be bullied. The best way to do it is by directly threatening to vote for a party with a better record on human rights. This is obviously more powerful if you live in their electorate, but threatening the party vote is not without weight. Make it clear that their vote is costing their party support.

The Unknowns:

• Tariana Turia (Te Tai Hauauru)
• Kenneth Wang (List)

There's no vote recorded for Turia, and Wang is new so no-one knows what he thinks. Time to find out.

Unfortunately, there's one area I don't know about: Labour MPs who may be wavering. If you have any rumours in this area, I'd love to hear them.

(If you'd like to save time, the Voter's Voice website has a script for mass-mailing MPs. Unfortunately, it will tag an ad for them at the bottom of every message (See correction))

Obviously, the more MPs you can lobby, the better, but if you can contact even one, please do so. Every message of support for this bill counts, and weneed to let those who may be wavering know that we want them to stand up for equality, freedom and fairness and pass the Civil Union Bill.

Update: Corrected Stephen Franks' and Pansy Wong's email addresses; it seems Parliamentary Services' information is a little out-of-date...

Update (30/11/04): Fixed Heather Roy as well. Also, added Ron Mark, who I seem to have forgotten for some reason.

Ahmed Zaoui standards of evidence

Phil Goff has introduced his move in his struggle to pander to the "hang 'em high" brigade and be ever more vicious and vindictive towards criminals: a civil forfeiture regime. In English, this means "taking stuff off criminals". But Goff's plan goes well beyond that, to taking stuff off criminal suspects:

"Under the legislation, the Crown will be able to seek a High Court order restraining a person's assets if it can show there are reasonable grounds to believe that person benefited directly or indirectly from serious criminal activity.

"The Court can then order confiscation if it is satisfied the Crown has proven on the balance of probabilities that the person derived some benefit from criminal activity in the previous seven years. No specific criminal offence need be proved."

Reasonable grounds. No specific offence. There's not even any suggestion that the "criminals" targeted even need to be charged. Instead it's proof by suspicion, and guilty until proven innocent. In other words, Ahmed Zaoui standards of evidence.

We have only to look to the United States to see why we should not go down this path. In Reefer Madness, Eric Schlosser touches on US federal asset seizure laws and the role they play in the war on drugs. Goff's suggestion follows the US model, in that

Property may be seized and forfeited even after a defendant is found innocent of the offence, since the strict burden of proof that applies to people - "beyond a reasonable doubt" - does not apply in accusations against inanimate objects. Property can be forfeited without its owner ever being charged with a crime...

In the US, this system has led to gross injustice. Seizures have been made for budgetary reasons, and guilt or innocence sometimes takes a back seat to demands for revenue. That is if they're even a consideration:

In California, thirty-one state and federal agents raided Donald P. Scott's 200-acre ranch on the pretext that marijuana was growing there. Scott was inadvertently killed by a deputy sheriff. No evidence of marijuana cultivation was discovered, and a subsequent investigation by the Ventura County's District Attorney's Office found that the drug agents had been motivated partly by a desire to seize the $5 million ranch. They had obtained an appraisal of the property weeks before the raid.

It has also led to corruption, cronyism, and double standards from police and prosecutors, as well as further injustice from informers motivated by a share of the spoils:

Informers have been caught framing innocent people. Law enforcement agents have been caught using nonexistant informers to justify search warrants. "Criminals are likely to say and do almost anything to get what they want," Stephen S. Tott, a federal judge who was chief of the Justice Department's Criminal Division during the Reagan years, told the National law Journal. "This willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies, and double-crossing anyone with whom they come into contact, including - and especially - prosecutors."

New Zealand so far has an admirably low level of corruption in our police and justice systems. Do we really want to bring all that here?

At its heart, asset seizure is a punishment. It is no different from a fine; instead of taking several years of a criminal's life through a jail sentence, they take their possessions. It should therefore be subject to exactly the same safeguards as any ordinary criminal penalty. I say "safeguards" because the basic standards of justice - innocent until proven guilty, security from unreasonable search and seizure, proof beyond a reasonable doubt - serve a very real purpose: preventing injustice. They provide built-in checks against innocent people being unjustly punished, and some safety against mistakes and malevolence - problems that can exist within any justice system. In his lust for vengeance, Phil Goff wants to eschew these safeguards. The result will be injustice - innocent people losing their houses, cars, livelihoods. That is not something we should tolerate. If the government cannot punish those they believe deserve punishment within the current bounds, then so much the worse for the government. The solution is for them to work harder, rather than abandon the principles of justice itself.

Liberalism and Civil Unions

Jordan has a good post on Civil Unions and our character as a liberal nation over at Just Left. He holds out a vision of New Zealand as the new home of freedom, which is one I wholeheartedly endorse, and one with a solid grounding in the new national identity we have defined for ourselves since the 80's (and which the Labour government is helping to define further).

Unfortunately he also buys into the "moral values" angst currently stalking American liberals, saying that:

The challenge facing liberals (who are both left- and right-wing) is to be much better at explaining the moral reasoning behind our positions. In the absence of strong moral claims about why what we support is right, we leave all the running on "morality" to the conservatives, and that is not ground any of us should be considering giving up.

The irony here is that we do have strong moral arguments for our positions. Civil Unions, like all liberal positions, are essentially about equality, freedom, and fairness:

• the equality of everyone before the law;
• the freedom of everyone to pursue their life without unnecessary interference by the state, or (in a positive sense) the freedom of everyone to enjoy a full human life;
• the recognition that current arrangements, which deny full equality and limit freedom on the grounds of sexual orientation, are unfair. Sexual orientation is not a morally relevant characteristic.

While diehard conservatives reject these values, the New Zealand public in general does not, and so they cannot be easily dismissed.

Embedded blogging

Kevin Sites, the NBC journalist who captured last week's chilling footage of a US Marine executing a wounded prisoner, has a blog. And on it, he has posted his description of the incident, as an Open Letter to Devil Dogs of the 3.1.

Fundamental incomprehension

Judging from SageNZ's latest response on the Privy Council, it seems I was right in thinking that he fundamentally fails to comprehend the nature of our legal system, past or present. To correct his two most obvious errors:

The Privy Council was not a link to European jurisprudence, on human rights or on any other matter. As I said earlier, and as Holden Republic points out, the Privy Council interpreted New Zealand law. While the European Convention on Human Rights is an admirable document, it does not and never has applied in New Zealand. Likewise, the Privy Council did not represent a link to any wider system of law; it was not a Commonwealth equivalent of the US Supreme Court whose decisions had universal applicability in all former British colonies.

We do not need the Privy Council to take cognisance of other jurisdictions' judgements. In fact, we've never needed it for that, because it is a basic part of the common law paradigm. Common law works by precedent; where there is no specific precedent, it works by analogy. And here there are no real limits on what it draws on. If another court in another jurisdiction has dealt with the same sort of problem in a broadly similar framework, then lawyers and judges will pay attention to their reasoning. This takes place at all levels of the court system, and foreign judgements have been recognised in new Zealand courts since the beginning. To use some examples in the area of aboriginal title: early cases such as R v Symonds (1847) and Wi Parata v Bishop of Wellington (1877) both reference US Supreme Court decisions. More recently, a Privy Council judgement Amodu Tijani vs Secretary, Southern Nigeria (1921) has been influential in laying out the nature of customary rights, while the Australian Supreme Court decision in Mabo v Queensland (No 2) has influenced their scope and recognition. And the notion of "fiduciary duty" has been introduced from Canadian decisions. All of these foreign decisions have been recognised not because they are binding precedent (they clearly are not), but because the problems they addressed were analogous to problems faced here, and their reasoning could be easily adapted to local needs. This does not require the Privy Council - all it requires is a good library and access to legal databases. The fact that our original two Supreme (High) Court justices could do it at the arse-end of the world's communications links back in the 1840's shows that we have no need to go to London.

Shorn of these two misconceptions, its quite clear that we have lost nothing by ditching the Privy Council, because it did nothing that we could not do for ourselves. At the same time, we have gained a great deal. Our justice is more accessible, more timely, and (most of all) ours.

Appalling ignorance II

Tristan objects to being called ignorant for "not being fully briefed on the The Kauwaeranga case of 1870". Except that it's not just about the Kauwaeranga case, and his ignorance goes well beyond "not being fully briefed" - I'd call it "total unawareness". And it has consequences - a strong subtext of Tristan's post was that foreshore claims were a scam and that Maori had made the whole thing up. It is only through ignorance of continuous assertions of ownership in numerous cases over a period of 130 years that such beliefs can be maintained.

(This is not to say that claims are justified - it's perfectly possible to regard the case for Maori ownership as weak. Maori have after all lost almost all of those cases. But it is impossible to argue that modern claims are automatically brought in bad faith in light of the historical background).

There's no implication that ignorance disqualifies anyone from having an opinion. However, it may result in that ignorance being corrected, or the opinion not being taken seriously. These are the risks you bear when you venture into the marketplace of ideas...

However, beyond his huffiness over having his ignorance pointed out, Tristan makes a good point as well:

many if not all claims to the foreshore and seabed before our current state were in regards to fishing and collecting shellfish. Now those rights are already safe guarded under the fisheries act. In fact even the case that brought this all to a head was in fact about who could build a mussel farm and where.

Yes - and both the fisheries and aquaculture settlements undoubtably weaken the strength of territorial claims. The most important rights in the bundle have been dealt with, leaving little else to support a claim of exclusive ownership.

SIS roundup

Tariana Turia says her phone was bugged. This was briefly mentioned in the SST story on Sunday, and this is an expansion on that.

The Prime Minister has questioned the credibility of the allegations, and demanded that the sources come forward. This would of course expose them to prosecution under section 12A of the New Zealand Security Intelligence Service Act 1969.

On National Radio a short time ago, Don Brash expressed support for an open and independent inquiry by someone from outside the SIS, saying that the National Party would "put party politics aside". Winston Peters was a little more doubtful, saying that "many allegations are made all the time and most of them are baseless", but that it was difficult to see any reason for the SIS to spy on MPs. (Obviously I'll ignore the enormous irony in both of those statements...)

The Greens likewise want an inquiry, saying that "the present accountability mechanisms are not working" and

"There is no evidence that the Prime Minister or the Inspector-General of Intelligence and Security knows what is going on, and the Intelligence and Security Committee in Parliament has only met for three hours since the last election."

I think the latter point in itself proves the need for more serious oversight. A committee which meets for one and a half hours a year can't even examine the accounts to determine whether there has been a proper expenditure of public funds, let alone act as a proper check and balance on an organisation whose very existence poses a threat to democracy.

Civil Unions ad

If you missed seeing the Campaign for Civil Unions' ad on Sunday, you can see it here (large). Apparently 1050 people signed it.

30th January

Iraq has a date for elections: 30th January. Here's hoping they can meet it.

Victory on torture outsourcing!

The US torture-outsourcing bill is dead! While the conferance committee reached an agreement (reportedly not including some "controversial" provisions), Congress will not be recalled to vote on it - meaning that the bill will die when the new Congress takes office in January.

It may not be the repudiation we hoped for - we need to see exactly what the conferance committee agreed to - but the bill dying is still a victory.

Time to leash the spies

The Sunday Star-Times has broken a major story alleging a widespread spying by the SIS on iwi, activists, and other Maori groups - supposedly without the Minister's knowledge. The allegations are sourced from former SIS operatives, who also express discontent with our spies' handling of the Zaoui affair and their subserviance to foreign intelligence services (government agencies working for a foreign power - isn't that the sort of thing they're supposed to guard against?). The full story is available on Scoop:

• Spies Blow Whistle On SIS Bugging
• Spies Blow Whistle On Operation Leaf
• ‘We could see it was for dirt collection’

Given the past activities of the SIS - spying on unions, the peace movement, and anti-globalisation activists - this is hardly surprising. And it again stresses the need for proper democratic oversight of our intelligence services. The danger of intelligence agencies defining domestic political opposition and dissent as a "security risk" which needs to be investigated has been well-known for quite some time (remember COINTELPRO?), yet our current oversight arrangements - a lapdog Inspector-General and a Minister who clearly can be kept in the dark - are manifestly inadequate. Our spies are a law unto themselves, with no commitment to democratic values and no accountability. This is not good enough in an open and democratic society.

Sunlight is the best disinfectant. Drag the fuckers kicking and screaming into the light of day and hold them to account. Parliament must hold a full and wide-reaching inquiry into the domestic operations of our intelligence services, and it must do so publicly and openly. Those responsible for initiating operations against domestic political activists must be driven out, and the institutional culture of hostility to democracy must be changed. The SIS must know in no uncertain terms that they work for us, and we will not tolerate them running wild.

At the same time, we must institute better oversight arrangements. Rather than being responsible solely to the Prime Minister, the SIS should be overseen by a Select Committee including the PM, Leader of the Opposition, and representatives of other parties. This will reduce the chances of "capture", while increasing the chances that our spies will actually be forced to justify their operations rather than simply being allowed to do whatever they want.

Spies are dangerous, and in a democracy they must be kept on a very tight leash. In New Zealand, it seems that the leash has grown too long; it is time we shortened it again.

An appalling ignorance

Tristan of About Town has some thoughts on the passing of the Foreshore and Seabed Act 2004. However, in pointing out that the Court of Appeal decision in Ngati Apa v Attorney-General did not mean that Maori owned the foreshore, only that there was no law which automatically said that they did not, he says

They came out and said we knew we owned it all along…. That is after being silent for 160 years, and allowing dozens of mariners, ports and boardwalks over land which apparently, they knew they owned.

(My emphasis). He later repeats this claim, saying

Maori never owned it (you would think there would be some kind fuss in the last 160 years if they did)

All I can say is that this shows an appalling ignorance of the history of Maori claims to the foreshore and seabed. No matter what you think of the merits of those claims (which are now almost certainly a dead issue, at least as far as the courts are concerned), it cannot possibly be said that Maori have never raised the issue until last year. The ownership of the foreshore has been contested in the courts by Maori since the 1860's. A 1996 report [PDF] to the Waitangi tribunal by Richard Boast lays out some of the history. According to Boast, the earliest cases date from the 1860's, and at that stage the Native Land Court sometimes granted title to parcels of foreshore. However, following the discovery of gold under mudflats near Thames, the government acted to exclude that area of the foreshore (and that area alone) from the Court's jurisdiction, resulting in an end to cases in the area. This was presented as a deferment, rather than a denial of claims, and the exclusion lapsed in 1873, by which time the Crown had purchased most of the land in contention.

The Kauwaeranga case in 1870 resulted in a different solution. Rather than grant exclusive title to the foreshore, Chief Judge Fenton instead granted an exclusive fishing right, on the basis that that had been the extent of Maori interests. The Native Land Court followed this practice until 1909, when the present "freehold title or nothing" system was instituted.

The early part of the twentieth century saw several cases over the ownership of the Awapuni Lagoon near Gisborne and Te Whanganui-a-Orotu (the inner harbour, later raised in the earthquake) near Napier. The latter case dragged on for thirty years, but was inconclusive. The matter has since been revisited by the Waitangi Tribunal. It also saw the beginning of a protracted series of cases in Northland, which involved direct action as well as appeal to the courts (Whina Cooper was involved in destroying the stop-banks of a farmer trying to reclaim contested mudflats in 1922). The final case in this series was the oft-mentioned In re Ninety Mile Beach (1962), which ended Maori claims for a generation but kept legal academics (including Boast) in papers for forty years arguing over whether it was correctly decided; in Ngati Apa, the Court of Appeal decided that it was not.

An examination of the history shows that Maori have not been silent on the issue of the foreshore; they have, in fact, made "a fuss", asserting their rights by protest, petition, legal and direct action, in the face of continuous denial by the Crown. Why is Tristan unaware of this? I can only speculate that he has never bothered to look. Sadly, that explains the views of far too many on the foreshore and seabed issue...

New kiwi blog

Reinventing TVNZ - an anonymous group blog of people who want positive change in our major public broadcaster.