QCs, SCs, and republicanism

The Lawyers and Conveyancers Bill passed its third reading last week, and will shortly become law. When it does, the title of "Queen's Counsel" will pass from our legal lexicon, to be replaced with "Senior Counsel". Existing QCs will retain the title (if they want to), but it will gradually fade out as they retire or die of old age

This is entirely appropriate. After all, these lawyers don't work for the Queen, or the government - they work for themselves and their clients. While the title is currently awarded by the Governor-General on recommendation of the Attorney-General and Chief Justice, a key aim of the bill is to further formalise the appointment process so as to make it clear that the title is a mark of experience, seniority, and merit, rather than royal favour or (as at present) being a member of the legal "old boy's network". And it makes perfect sense to call these senior lawyers what they are - senior counsel - rather than sticking with the old title with its historical baggage redolent of privilege.

Predictably, the Monarchist League are not pleased, and are claiming that the move is a shift towards republicanism for which there is no popular mandate. They're right on the first part, but more by definition than by intent; while it is not its chief aim, this part of the bill does eradicate the monarchy from another small part of New Zealand life, and can therefore be said to be a step towards republicanism. However, I think they're completely wrong on the second, in that while there doesn't really seem to be an overwhelming public demand for the immediate severing of ties with the monarchy and the declaration of a republic, the public seem perfectly happy with the current project of gradual erosion, culminating in such a declaration in ten or twenty years time. This has been the programme of pretty much every government for the past 20 years (with perhaps the exception of Jenny Shipley, though I'm only saying that because I'm not sure where she stood on the matter) - and there's little reason to think that future governments will diverge from it. Oh, some may go a little slower and some a little faster, but the overall project of sleepwalking to a republic will continue. The process may speed up if the current monarch dies, or if a political party decides to make republicanism a key part of its platform and push for serious constitutional reform (hint to Peter Dunne), but I don't see it as ever really stopping or being reversed. The mere fact of our political independence and growing distance from Britain will drive it along regardless.

I should also point out that the monarchist's implication that MPs who voted for this clause (everyone bar the National Party) are disloyal and unpatriotic is about as crass and baseless as their previous allegations of sedition. And it's crap like that which makes me want to push for, say, the abolition of "God Save The Queen" as one of our national anthems, just to wind them up.

Update: Shipley was indeed a monarchist, so that means that its every government for the past twenty years bar one.

Shred it

Between 1978 and 2003, massage parlour owners were legally required to record the name, address and date of birth of their employees, and police were entitled to view and copy these records whenever they wished. They did, and used the information to compile registers of known prostitutes. Now that prostitution has been legalised, the information is redundant (if indeed it was ever useful), and the police want to pass it on to Archives New Zealand. Katherine Rich disagrees, and instead is calling for the registers to be shredded. While I'm generally in favour of a maximal archiving of government information for future historical study, I'd have to agree. This is information that should never have been collected in the first place. As Rich points out, it is like keeping a register of women who had abortions. It is deeply invasive of personal privacy, its future availability can only hurt people, and so it should be destroyed.

In the ballot VIII

Another batch of private member's bills currently in the ballot. Previous batches are indexed here.

Dog Control (Exemption of Farm Dogs) Amendment Bill (David Carter): This would exempt farm dogs (and other "working dogs") from having to be microchipped, on the erroneous basis that chipping is primarily about controlling dangerous dogs. It's not - or at least, won't be after July 1st, when it becomes a general requirement. It's simply a basic way of identifying an animal - and one that cannot be lost and is far more difficult to remove or change. But farmers in this country seem to think they ought to be above the law (witness their attitude to farm bike WOFs and basic OSH standards), and so have been whining for special treatment. They shouldn't get it.

Dog Control (Epilepsy Assist Dogs) Amendment Bill (Sandra Goudie): This would amend the Dog Control Act 1996 to allow epilepsy assist dogs (dogs with either the rare ability to detect the onset of a seizure, or who act as guardians when one is occurring) the same rights of entry as guide dogs for the blind. Until seeing this bill, I didn't even know that there was such a thing as an "epilepsy assist dogs", but having done a little poking about them, the amendment seems like a reasonable idea.

Animal Welfare (Prohibition on the Use of Cages and Crates) Amendment Bill (Sue Kedgley): I'd like to talk about this bill, but its sponsor, Sue Kedgley, "[doesn't] want the industry to campaign against it before it even gets drawn". This is disappointing, and it neatly highlights one of the problems with the Members' ballot as it stands: the public has no automatic right to know what our legislators are trying to get before the House. Member's bills are considered private until drawn, with access dependent on grace and favour. In this case, that privacy is being exploited in an effort to prevent public criticism. While it may sometimes be uncomfortable, democracy is far better served by full transparency.

Parole (Truth in Sentencing) Amendment Bill (Heather Roy): this bill would for all practical purposes abolish parole, limiting it to the final 60 days of a criminal sentence. It would also effectively double sentences for minor crimes by abolishing early release. This would no doubt please the "hang 'em high" brigade, but it is simply vicious, pointless sadism - not to mention a mistake. Unless we adopt a penalty of life imprisonment for every crime, almost every prisoner will eventually be released sometime. It makes sense then to have a reasonable period of supervised release, where prisoners can both be reintegrated into society and are subject to the threat of recall if they become involved in even minor criminal activity. Roy's bill would fundamentally undermine this, and by doing so destroy an essential means of influencing prisoner behaviour upon release. And of course it would require us to build more prisons. Don't we have enough of them already?

As usual, I'll have another batch when more bills trickle in.

He has them worried

Flight Lieutenant Malcolm Kendall-Smith was before a preliminary hearing last week to decide on key legal questions in his upcoming court martial for refusing to serve in Iraq. The case clearly has the British government worried. If Kendall-Smith is acquitted, it would set a precedent which would allow any British soldier to refuse to fight in an illegal war - something the local warmongers aren't too keen on. It may even require that all British troops be withdrawn from Iraq. It's indicitive of the cynicism people have for the British establishment that they are already saying that Kendall-Smith won't be allowed to win, no matter how good his case.

Meanwhile, the British government is moving to prevent an outbreak of Israeli-style Refuseniks by dramatically increasing the penalties for refusing to serve. The new Armed Forces Bill currently before Parliament imposes a penalty of up to life imprisonment specifically for those who refuse to participate in "military occupation of a foreign country or territory". If the government cannot win the argument on the legality or morality of invading and occupying Iraq and thereby convince its soldiers to fight for it, it will simply throw those who disagree in jail...

Supporting SuperSizeMyPay

At the moment, the Unite union is doing a fantastic job of organising fast food workers to push for better pay and conditions, under the SuperSizeMyPay campaign. The latest part of this campaign is a global email campaign targetting McDonald's management and their union-busting HR representatives, Teesdale Associates. You can join the campaign and show your support by clicking here. While you're at it, you can also sign their online petition here.

"If you don't make them bleed, they can't prosecute for it"

Today's New York Times has the story of yet more torture and abuse in Iraq, this time by a special forces unit at a temporary detention camp at Baghdad International Airport called Camp Nama. The unit, Task Force 6-26, was assigned to hunt down both Saddam Hussein and Abu Musab al-Zarqawi. As part of that, they conducted particularly brutal interrogations, in which prisoners were stripped, beaten, "had cold water thrown on them to cause the sensation of drowning", frozen, electrocuted with stun-guns, and shot with paintball guns. Here's one example:

In January 2004, the task force captured the son of one of Mr. Hussein's bodyguards in Tikrit. The man told Army investigators that he was forced to strip and that he was punched in the spine until he fainted, put in front of an air-conditioner while cold water was poured on him and kicked in the stomach until he vomited. Army investigators were forced to close their inquiry in June 2005 after they said task force members used battlefield pseudonyms that made it impossible to identify and locate the soldiers involved. The unit also asserted that 70 percent of its computer files had been lost.

The general rule was "no blood, no foul", or "if you don't make them bleed, they can't prosecute for it". The treatment was so brutal that both the Defence Intelligence Agency and the CIA withdrew their personnel, and Defence Undersecretary for Intelligence Stephen Cambone (who people might remember as responsible for establishing Copper Green, a secret program which authorised special forces to torture and abuse "high value" prisoners) ordered an investigation to

[g]et to the bottom of this immediately. This is not acceptable.

The investigation was of course a whitewash, and reported "no pattern of misconduct with the task force". Which is exactly what you'd expect when the special forces investigate their own. Meanwhile, another report into abuse by US special forces remains classified, despite a promise by Donald Rumsfeld that it would be released.

Five soldiers have since been court martialed for beating a detainee, and 29 disciplined by non-judicial processes. That's an awful lot of "bad apples" for a small unit - but its only the tip of the iceberg; conveniently "lost" files and a conspiracy of silence among the troops stymied 80% of investigations, and the vast majority of the abuse (including the most serious charges) has gone completely unpunished. But what's most telling is that the abuses were reportedly "well known throughout the camp" - something which makes it simply unbelievable that they were not tacitly condoned by the chain of command.

There's a section in Jared Diamond's Collapse where he talks about the reluctance of anthropologists to admit incidents of human cannibalism - even when confronted with archaeological evidence such as human bones that had been boiled in pots and cracked open so as to consume the marrow, the pots they had been boiled in, still containing residues of human muscle protein, and dried human feces containing similar residues which could only have come from the consumption of human flesh. Those who deny that US torture is both systematic and condoned at the highest levels are in a similar position. We have widespread reports of torture and abuse, documented in photographs, videos, and statements from both victims, US personnel, and official interrogation records; we have memos from those at the top (notably Secretary of Defence Donald Rumsfeld [PDF] and Lt General Ricardo Sanchez [PDF]) authorising such techniques to be used; testimony from commanding officers that in at least some cases such treatment was authorised (however erroneously) on the basis of those memos; arguments from Justice Department lawyers that its all perfectly legal [PDF] (despite clear statements in both international and US domestic law to the contrary); attempts by senior members of the executive to prevent it from being banned or even seriously investigated; and a stunning lack of prosecutions unless there are photographs which make the news (which implies that the crime isn't so much torture as getting caught). While we do not yet have a document from Rumsfeld or Sanchez ordering the torture of any particular detainee (though their memos suggest that such could exist, and we do have evidence that they ordered detainees to be kept "off the books" so their condition could not be monitored by the Red Cross), the abuses reported from the lowest levels match those authorised by the highest; while clearly some of what has gone on was unauthorised, it is also equally clear that there is a concrete policy that torture is acceptable in at least some cases, and that some of what has been reported was fully consistent with that policy. How much clearer can it be? And if this does not convince the apologists for US torture, what further evidence would possibly convince them?

New Fisk

The farcical end of the American dream

The laws mean nothing

What is the point of having electoral spending laws if they are not enforced?

That is the question we should all be asking in the wake of the police's decision not to prosecute Labour (or any other political party) for overspending and other violations of the Electoral Act. We have such laws for the very good reason of preventing the rich from buying elections. But the police's decision in this case sends a clear signal that they can buy all the elections they want - and get away with it. That is dangerous in a democracy, and not what our political system is supposed to be about.

The decision is particularly troubling in the case of the Labour Party. There, the police concluded that there was

sufficient evidence to establish a prima facie case in respect of an offence under s221 of the Electoral Act. Section 221 prohibits advertising promoting a party unless the secretary of the party gives written authorisation.

Given the nature of this offence, a prima facie case is a conclusive one. It rests on a judgement that the advertising must be authorised - which means that clearly, if it was not authorised, an offence has been committed. Labour would have challenged that judgement in every possible venue, and it would likely have turned into a messy and expensive legal argument before the Court of Appeal or even the Supreme Court - but that should not have dissuaded the police from bringing the prosecution in the first place. Ditto their decision not to prosecute for Labour's egregious overspending, where the police concluded there was "insufficient evidence". They filed a return saying they had spent more than they were entitled to - how much clearer can it be? Again, Labour would have argued over what did and did not count as election spending, and the case would have rested on those questions of law, rather than the facts - but it is the police's job to enforce the law as it is currently interpreted, and they should not have shied away from this case. Public confidence in the electoral system is at stake, and maintaining it would have more than justified the expense, no matter what the ultimate outcome.

I am similarly disappointed with their refusal to prosecute National for its convenient "mistake" of not including GST in their election broadcasting spending. While they couldn't attribute responsibility to any particular individual (GST being one of those things that apparantly no-one is responsible for), the could always have prosecuted the party for it. Corporations are legal persons, this one had a clear duty to comply with the law, and it equally clearly failed to do so. The party couldn't have been thrown in jail, but a fine would have been useful in deterring similar convenient "mistakes" in the future.

The police's failure to prosecute clear offences has shown that our electoral laws mean nothing. The onus is now on the politicians to fix this problem and make sure similar abuses do not happen in the future. And if they fail to do this, we should hold them accountable for it at the ballot box.

Agenda goes tabloid

Agenda returned this morning, with some unfortunate changes. I'm not talking about their new presenter, or even today's choice of topics (the focus wasn't always on politics and they may simply have not wanted to interview a politician this week). But a regular sports news slot? And betting tips? Could they think of any better way of saying "fuck you" to their ten viewers?

I watch Agenda precisely because it is not tabloid TV. But with the way they're going, they'll probably be adding a page three girl.

Can Helen say it now?

Tony Blair has finally stopped hedging and called for the closure of Guantanamo - though in typical weasel fashion he tried to pretend that it had been his position all along.

So, is it OK for Helen to say it now?

Correcting a mistake

Last night, Parliament passed the Land Transport Amendment Bill under urgency, in an effort to correct the mistake it had made last year of being overly harsh in stripping bus and taxi drivers of their passenger licences for offences committed long ago. Unfortunately, in the process, the Transport and Industrial Relations Committee made the same mistake again, by removing any possibility of reinstatement for those with convictions for violent offences. I'd expected the government to try and fix this with a Supplementary Order Paper, and they did. Two sets of amendments were successfully made (SOP 13 from Harry Duynhoven and SOP 14 from Jim Anderton), and together they seem to have largely fixed the problem in the bill. Previously, people convicted of serious offences were ineligible to hold passenger endorsements; now they can be eligible if they were sentenced to less than twelve months imprisonment and can convince the Director of Land Transport that they will not "pose an undue risk to public safety". Those who lose their licenses in this way or lost them due to the previous legislation can apply to have them reinstated, and are eligible unless they were sentenced to more than a year's imprisonment for murder or a sex crime. Otherwise, they must likewise convince the Director that they're not a threat. The previous test - of having to have a clean record for ten years - has been dumped, and so now practically everyone is eligible to apply. The criteria on which the Director makes their decision have been tightened (now they must consider offences, sentences, etc), but that isn't so bad. I am still concerned that the bill does not provide sufficient rights of appeal for murderers and sex criminals (I think that most of the latter would fail to convince, but they should at least have the opportunity to try) - but it is a vast improvement on the previous situation, and an even bigger one on what the select committee had handed back.

An attempt by National's David Bennett to set out different rules for new applicants was defeated 46 - 70.

Meanwhile, Wayne Mapp, who was on the select committee, doesn't seem to be taking the rejection of his vicious approach very well...

Doomed

As I mentioned yesterday, Ron Mark's Young Offenders (Serious Crimes) Bill is guaranteed to pass its first reading, Labour having sold its soul (and first reading support) to retain power. Fortunately, it looks like a rather different story once the bill emerges from select committee. Labour has already indicated that it is unlikely to support the bill through its second reading, the Greens won't support it, and now the Maori Party has said "Prison for twelve year olds? Absolutely not". I guess they at least care about children even if they don't care about workers.

So, we'll have to put up with a six-month spleen-vent by the "hang 'em high" brigade, and then we can probably relax. Unless the Maori Party change their mind, of course...

Escaping prosecution

Labour may escape prosecution for election overspending, as Police and Crown Law haven't got their act together enough to lay charges within the six month time limit specified in the Electoral Act. This hardly gives reason for confidence in the system. While such limitation clauses usually exist for good reason, in this case it is clearly too short and in need of extension. Unfortunately, any such extension will be too late to hold Labour to account for what seems to be a blatant violation of the law.

The important thing now is to push for a comprehensive reform of election spending rules, so that parties can't get away with similar overspending in the future. We must keep up the pressure on politicians of all parties to ensure that the law is actually reformed, rather than left open for exploitation next time.

A one-sided freedom

Five British men have been charged over their protests against the publications of the Danish cartoons in February. Two faces public order offences, but one faces charges of both incitement to murder and inciting racial hatred. The former IMHO is a crock - the demonstration, however disagreeable was simply an exercise of freedom of speech - but the latter is even more so. For the past five years, there has been an intense political debate in the UK around amending legislation to create a crime of "inciting religious hatred", as this is not covered by current racial hatred laws. This has culminated in the government's Racial and Religious Hatred Bill, which is currently having a very bumpy ride through Parliament. The bill has not passed yet, and in its absence, it is perfectly legal to stand outside a British Mosque or protest in the street with a sign saying "Kill All Muslims". But according to these charges, it is illegal to do the opposite. Quite apart from questions of how exactly that works (how can "non-Muslims" or "enemies of Islam" be considered a racial group when the qualification is clearly religious?), it is inconsistent and hypocritical - and this will not be lost on British Muslims. Combined with the opposition to the bill, this sends them a very clear message: they are subject to law, but not protected by it. And that is exactly the sort of injustice which encourages people to blow themselves up on trains.

Closer to home, a number of local bloggers (including myself) spoke out loudly against the Racial and Religious Hatred Bill on freedom of speech grounds when it was last before the UK Parliament. I wonder if the others will be quite so loud in condemning these charges, or whether the freedom they were defending was simply a one-sided freedom to abuse Muslims, while denying any right for them to respond in kind.

Where dissent is terrorism

Belarus goes to the polls on Sunday to choose a President in an election which is almost certainly rigged. The democratic opposition has already organised a mass demonstration to greet the election results in Minsk. The regime's response has been to threaten opposition leaders and demonstrators with terrorism charges, which carry the death penalty. In Belarus, then, the equation is clear: dissent is terrorism, and punishable by murder.

From this side of the world, all we can do is wish them luck and hope for the best.

Remembering an illegal war

This weekend is the third anniversary of the US's illegal invasion of Iraq, and the anniversary will be marked by peace protests across the country. In Auckland, people will be protesting outside the US Consulate in the Citybank building on Customs St East at noon on Saturday, just an hour before the Big pay Out. In Wellington, people will be marching from Midland Park to the US Consulate via Parliament, starting at noon. In Dunedin, they'll be starting from the Museum Reserve at 1pm. And in Christchurch, just to be different, they will be meeting at the Peace Circle in Cathedral Square at 7pm tonight. If you'd like to mark the anniversary and show your objection to the present occupation, then feel free to go along.

In the ballot VII

Another batch of private member's bills currently in the ballot. Previous batches are indexed here.

Resource Management (Restricted Coastal Activities) Amendment Bill (Nick Smith): This would amend the Resource Management Act to force the Minister of Conservation to follow the recommendation of the Environment Court when considering an application to grant a coastal permit. While I don't have a copy of the bill, I presume that it will do this by amending s119. It would also provide for any resource consent granted to commence on the date of the court decision or as determined by the Environment Court, rather than the date of the Minister's decision as at present. Finally, according to the Herald, the bill will be retrospective, and overturn the Whangamata decision, allowing the Whangamata Marina to proceed.

Marine Reserves (Consultation with Stakeholders) Amendment Bill (Eric Roy): This bill would require mandatory consultation with local stake-holders on the creation of a marine reserve. The Marine Reserves Act 1971 lays out a process for the creation of new marine reserves, requiring public notification and sufficient time for objections to be lodged before final consideration by the Minister of Conservation. While certain bodies (universities, iwi, marine research organisations and bodies responsible for administering existing reserves) can initiate the process, in practice it is usually begun by DOC themselves, meaning that they are effectively judge in their own case. Roy seems to think that reserves are often imposed over the top of the local community, and prefers the model set by the Guardians of Fiordland [PDF], a group of local businesses, recreational users and iwi who developed a plan for the management and conservation of Fiordland including the establishment of eight new marine reserves, from the bottom up. The plan has now been implemented in the Fiordland (Te Moana o Atawhenua) Marine Management Act 2005. It's an interesting idea, and one that at least deserves consideration by a select committee.

Local Government (Rating Cap) Amendment Bill (Rodney Hide): This bill would amend the Local Government (Rating) Act 2002 to limit overall rate rises to inflation + 2% per year, or inflation + 4% in any three year period, with the Minister able to grant exemptions. It will not however place any corresponding limit on the demands (e.g. for new roads, or functioning sewers) that ratepayers will make of local government.

I have plenty of bills this time round, and will likely do another batch over the weekend.

Let freedom ring

Or wedding bells, at least. The Czech Republic has become the latest country to join the civilised world and implement civil unions, with the Czech Parliament voting to overturn a presidential veto on the matter. The law is a compromise (as is ours), but an enormous improvement, and thus to be welcomed.

Drawn

The ballot for private member's bills has been held, and according to my spies, the following bills have been drawn:

• Resource Management (Climate Protection) Amendment Bill (Jeanette Fitzsimons)
• Young Offenders (Serious Crimes) Bill (Ron Mark)
• Residential Tenancies (Damage Insurance) Amendment Bill (Maryan Street)

Coincidentally, these are all bills I have discussed. The Young Offenders Bill (discussed here) would be expected to cause a total shitfight on law and order policy - except that Labour have agreed to send it to select committee. Whether it makes it further will depend on the Maori Party and whether they want to see kids in jail. Jeanette's bill (briefly discussed here) would allow restore the ability of local authorities to consider climate change when considering resource consents. It's something Climate Change Minister David Parker is already considering, so I expect it likewise to make it to select committee. As for the Residential Tenancies Bill (discussed here), I don't expect it to be that contentious, and may simply be voted to committee to see whether its a real problem or not.

The bills will get their first readings on the 29th of March.

Update (17/03/2006): Added links to bills.

The disease spreads

The UK Foreign office thinks that waterboarding - drowning someone till they talk - does not necessarily constitute torture. This despite a ban in international law on mock executions.

One of the worries about the US's acceptance of torture was that it would set a bad example to other states. I think we've just seen that fear realised. If the UK is willing to follow the US lead, then imagine what China, Cuba, and Uzbekistan will be thinking...