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On this site you'll find posts and pages from recent years. The site began as part of my public law practice after leaving Parliament in 2005. Accordingly it records my opinions, not necessarily those of Franks & Ogilvie of which I am a principal, or any client, or the National Party for which I contested the Wellington Central electorate in November 2008.

From the Wellington Writers’ Walk:

“It’s true you can’t live here by chance, you have to do and be, not simply watch or even describe. This is the city of action,the world headquarters of the verb”

– Lauris Edmond, from The Active Voice

Must be all that toxic masculinity

  • September 11th, 2018

Nelson College’s advertorial on Stuff is best in class. It is interesting, informative, and it serves the school’s interests.

It also illustrates the importance of freedom to advertise. It conveys information that is highly “out of step” with recent elite consensus hostility to gender specific institutions. I doubt that I would have known the information if they had not paid to have it published.

It appears to indicate that concentrated masculinity (single sex educati0n) may work well for boys. And similar results have been reported for girls at girls schools. So why is “diversity” one of the faiths that must not be questioned?

Has the free speech tide turned again?

  • August 9th, 2018

Let us give thanks for Massey University’s sacrifice.  It has devalued its brand and revealed laughing stock leadership quality (Chancellor Ahie and the cringing Council members who have failed to respond to their earned ridicule). But it has managed to stir resistance to the “hate speech” movement from a range of people. Without this incident too many might have continued to wait for others to defend the four freedoms until too late.

Three outstanding contributions appeared in my internet feed today. I will not excerpt any of them because they are all easy reads, and all worth clicking, though the last is to me the most significant.

Former Canterbury Law School Dean Chris Gallavin who is now a senior figure at Massey has published a dignified reminder of the virtues/necessity of debate for a university. I hope he does not pay dearly for it.

Pol Sci Prof Bryce Edwards has published on Newsroom a well considered reflection on the outcome of the controversy so far. And he is not sitting on the fence.

But for me the most welcome sign of resistance is in The Standard.

The NZ left has broadly capitulated to identitarians. Dialectic has become an exchange of allegations about discovered totem words and symbols which indicate relative degrees of Wokeness.  Once an author has been categorised  “analysis” thereafter is essentially collective ad hominem assertion. Logic is immaterial. What matters is how closely an argument hews to the Woke line of the day.

But today,  “Advantage” has published a powerful reminder of what New Zealand and the left owe to decades of adherence by NZ establishments to free speech principles,  despite abhoring radicals.

I assume many on the left know who writes as “Advantage”. Will the neo-clericals of the left now mount a furious Inquisition to hunt down this sinful heretic?

There is a long way to go before the four freedoms are safe from their enemies. The National Government’s Harmful Digital Communications  Act 2015 was reckless with civil rights. It was either a cunning early fired round toward the death of free speech, or terribly bad drafting.

The Human Rights Commission and Minister Little are reported to be plotting a “hate speech” regime. But the long memory and crisp writing of Advantage from the left is a significant step. He or she may help left aligned New Zealanders to regain their courage, to withstand the neo-clerics who are stealing their movement.

 

Massey University breaks the law

  • August 7th, 2018

David Farrar has a superb response to Massey University’s authoritarian breach of a student group’s right to assemble peaceably, to hear from (and appraise), and to associate with whoever they choose. The ban happens to be by an inferior university apparently aiming to cement its inferiority internationally into the minds of all but a few post-modernists. That is a shame for the graduates who have to rely on its qualifications.  It is also a shame for New Zealand.

Michael Reddell backgrounds the issues  with his usual penetration.

The move might have been dismissed as the aberration of a Vice Chancellor who had already displayed her analytical limits, but she appears to have been supported by her colleagues. Rather risky for them when the ban is aimed at one of New Zealand’s rare public intellectuals with genuine international credibility. Dr Brash gained international renown as Governor of the Reserve Bank when it was considered the best central bank in the world. Few of our intellectuals have actually successfully run major institutions.

Massey does not have a Law Faculty. But presumably they still spend hundreds of thousands on lawyers. Have they persuaded themselves that s 161 of the Education Act 1989 is trumped by reciting a health and safety mantra?

The Free Speech Coalition’s next job seems likely to be to ask a court to tell us about the mystery safety-above-all provision that it appears Auckland Council and Massey University believe in.

But Massey has another obstacle. Have its Council or lawyers turned their minds to an unusually specific section in the Human Rights Act?  No section of that Act is more specific than section 57’s application to educational institutions. Read the relevant sections for yourself (emphasis mine).

57 Educational establishments

(1) It shall be unlawful for an educational establishment, or the authority responsible for the control of an educational establishment, or any person concerned in the management of an educational establishment or in teaching at an educational establishment,—

(a) to refuse or fail to admit a person as a pupil or student; or

(b) to admit a person as a pupil or a student on less favourable terms and conditions than would otherwise be made available; or

(c) to deny or restrict access to any benefits or services provided by the establishment; or

(d) to exclude a person as a pupil or a student or subject him or her to any other detriment,—

by reason of any of the prohibited grounds of discrimination.

(2) In this section, educational establishment includes an establishment offering any form of training or instruction and an educational establishment under the control of an organisation or association referred to in section 40.

21 Prohibited grounds of discrimination

(1) For the purposes of this Act, the prohibited grounds of discrimination are:

………

(j)   political opinion, which includes the lack of a particular political opinion or any political opinion:

Among David Farrar’s suggested actions to defend our fundamental freedoms is the conversion of the Free Speech Coalition into a permanent action agency. Steps are in hand to do that.

The last few weeks have shown us the need. The existing database of principled people who donated to the Free Speech Coalition opportunity can be the foundation of an organisation committed to protecting genuine civil liberties.

New Zealand once had its own vigorous and principled version of the ACLU – a beacon of freedoms that distinguished the US from most other nations. As a liberal establishment body it  nevertheless defended the fundamental freedoms of people it deplored – precisely because that best demonstrated the need for utterly consistent principles.

The ACLU was often unpopular with majorities. It defended people who caused offence, people on the margins, people hated by main stream opinion leaders. They included atheists objecting to school prayers, raunchy novelists, and deliberately offensive artists determined to rub the faces of others in what they claimed was “gritty reality”. The ACLU drew the same line as our current law – they would not defend violent coercive “expression”. But in landmark law cases they defended freedom of speech and assembly against political abuses of authority over people who wanted to play sport with apartheid era South Africans, communists, nazi sympathisers, union leaders, socialists and even the Ku Klux Klan.

Our equivalent organisation split four decades ago over that need for consistency. During the anti-Springbok tour years the limbs withered into irrelevance because they were too divided to stand up for principle. The current remnant organisation is too scared of being branded by association with politically incorrect exercisers of fundamental freedoms, to be relevant in public debate.

Our Human Rights Commission was expected to do for us, what in the US was done by the ACLU and NAACP and the now discredited SPLC.

Instead the HRC has become a bad joke – lacking the intellectual capacity, or integrity (it is never clear which) to lead and inform public debate. At least lately they’ve given us the compensating  amusement of seeing how they do fill their time – tormenting each other with complaints of offensive behaviour internally.

Time to step up Free Speech Coalition. If you’ve been watching and scarcely believing where your media and country are heading – Massey University shows that the risk is here, and not just to fringe Canadians.

A fair account of the expropriation effort at Hawea

  • July 27th, 2018

What a pleasure to come across this informative report on what’s going on with Matt Lauer and Hunter Valley station. Makes me ashamed of the years of subs that indirectly funded  the opportunists of the Federated Mountain Council.

Thanks David Williams and Newsroom for exemplary journalism.

Auckland freedom of speech court case will get world attention

  • July 22nd, 2018

The court hearing on 30 July of the Free Speech Coalition’s application to reverse Mayor Goff’s ban on “divisive” speakers in Auckland’s public halls will get world-wide interest. The application is supported by the top US civil liberties law professor, who was the president of the American Civil Liberties Union for more than 16 years.

Mayors who’ve decided they are above the law get international attention for their cities. Most of us heard of Toronto’s cocaine-using Mayor and of Red Ken Livingstone, former Lord Mayor of London who fawned on anti-semitic and homophobic Islamic clerics. Duterte, the the Philippines President who urges his police to murder suspects, came to notoriety as Mayor of Davao.

They say all attention is good attention, for a politician. But what happens to a city that wants to be all about “diversity” but has a mayor who insists that speakers in “his” meeting venues promote only “unity”. World-wide mockery of Auckland’s pretensions to sophistication may be on the way.

The Free Speech Coalition’s challenge to the Diversity Mayor who hates diversity of opinion has caught the attention of Nadine Strossen. She has just published with Oxford University Press a definitive book on so called “Hate Speech”.?HATE: Why We Should Resist it With Free Speech, Not Censorship.?Her Wikipedia entry says she “has been called one of the most influential business leaders, women, or lawyers in National Law Journal and Vanity Fair.”

The ACLU she led is at the heart of the US liberal establishment. Wikipedia says its annual budget is over US$100m. Prof Strossen’s support may direct international derision to the Councillors who have been too scared to stand up for the fundamental right of Aucklanders to attend meetings where people might say things that offend Councillors.

Current positions of the ACLU include: opposing the death penalty; supporting same-sex marriage and the right of LGBT people to adopt; supporting birth control and abortion rights; eliminating discrimination against women, minorities, and LGBT people; supporting the rights of prisoners and opposing torture; and opposing government preference for religion over non-religion, or for particular faiths over others

Here is the email I received two days ago:

Dear Free Speech Coalition New Zealand,

I am sending this to the Members who signed the July 17 letter to Auckland Mayor Phil Goff, and also to the three attorneys whose names were on the July 18 Statement of Claim, which I read yesterday with concern about the government’s censorship, but enthusiasm about your resistance.

I am so grateful for your staunch support of neutral principles of freedom of speech and due process, which I am convinced are essential not only for individual liberty and democracy, but also for meaningful equality and dignity, as well as societal harmony. I have staunchly defended these principles for many years, and am more convinced than ever that censorship of hated and even hateful ideas, no matter how well intended, will do more harm than good for all of these vital goals.

I say ‘more convinced than ever’ in light of the research and analysis I have done recently, including about the experiences in many countries, which are reflected in my new book that Oxford University Press published in the US in May and in the UK last month: “HATE: Why We Should Resist It with Free Speech, Not Censorship.” Although it describes US law on point, it makes the anti-censorship case based on universal principles as well as strategic/practical/policy concerns; it also quotes many human rights advocates and other experts from around the world who also support the non-censorial approach to “the idea that we hate”. In a future edition, I will be delighted to add quotes from your impressive group!

All best wishes in your important efforts.

Yours truly, Nadine

Nadine Strossen

John Marshall Harlan II Professor of Law, New York Law School

Immediate Past President, American Civil Liberties Union (1991-2008)

Author of HATE: Why We Should Resist it With Free Speech, Not Censorship (Oxford University Press, May 2018); https://www.amazon.com/HATE-Should-Resist-Censorship-Inalienable/dp/0190859121

“Hope is more the consequence of action than its cause.You have two choices in this life: you can be a fatalistic spectator, or you can engage and produce hope.” David Cole, ACLU Legal Director (paraphrasing Harvard Professors Roberto Unger and Cornel West)

 

Minister Lees-Galloway shows Rule of Law in action

  • July 20th, 2018

The Minister of Immigration has issued an exemplary statement explaining why in a free society he can not like some people and their views, but not try to ban them from New Zealand.

He’s granted 10 day work visas to Molyneux and Southern, the two controversial Canadian speakers banned by the Mayor of Auckland from public meeting halls in “his” city.

The statement is also a great example of the Rule of Law in action:

a) it shows a Minister applying and working under the law;

b) it shows how the law protects unpopular views and the right of people to express them;

c) it protects the rights of people in New Zealand who:

  • want to hear these speakers and make up their own minds whether they are repugnant;
  • want to see and hear them unfiltered by the distortions of social media;
  • want to question or challenge them in person, where others can see and hear, and where they can’t block the questioner;
  • don’t want politicians to decide who and what they can hear.

c) it shows how the law protects the Minister from unfair and dangerous pressure to abuse power to exclude political speech that is unwelcome to the establishment.

But most clearly it shows the Mayor what he should be doing.

Theodore Dalrymple profiles a notable NZ murderer

  • July 11th, 2018

Theodore Dalrymple in City Journal concentrates on a New Zealand born murderer in his reflection on the evolution in our criminal justice system, discerned from a quiet evening’s reading of Notable British Trials.

He observes that for roughly 200 years, trial transcripts were popular, if not the favorite, reading material in the English-speaking world?especially in Britain. He describes them “as complete an inventory of human depravity as has ever been assembled.”

John Donald Merrett’s brilliant defense counsel, Craigie Aitchison got a Scottish jury to declare the charge of murder “not proven” after Merrett shot his mother in the head when she discovered he had been forging cheques on her account.

Dalrymple quotes from Aitchison’s final address to the jury: ?I will say only this to you, as one who has been much and intimately in contact with him in these last few days. . . . Send him out from the Court-room this afternoon a free man with a clean bill, and, as far as I can judge, he will never dishonour your verdict.?

Twenty eight years later Merrett killed his estranged and fearful wife, and his mother-in-law, after a life of typically psychopathic financial crime, indifference to danger ( he became a war hero, including to the men he lead) and risk taking with others’ money.

Not the first or the last time that brilliant counsel have fallen for the evil genius of psychopathic criminal clients.

Goff: freedom of speech – partisan abuse of political power

  • July 9th, 2018

I have agreed to be named on a website promoting a court challenge to Auckland Mayor Phil Goff. He has claimed the power to decide which political views can be discussed in Auckland public halls.

If the Mayor of Auckland has that power it is no local matter. With it he could deny nearly half the population of New Zealand a practical chance to see and to assess for themselves any speaker the Mayor decided they should not be free to judge. He may claim he has that power to ban things he sees as inimical to the “social” or “cultural” health of his subjects.

The law deliberately gave the Auckland Mayor presidential authority plus a Council with limited power to control him. But even if the Councillors had normal council powers over Council officers and the Mayor, a Council should not have the power to stop people from meeting in public halls to hear and judge unpopular speakers.

The long established legal boundaries on freedom of expression are all the “protection” Councillors should be allowed to assert. Public authorities at both central and local government level should now be scrupulously secular and politically neutral in their stewardship of public assets.

The bitter struggle to win freedom of religion, thought and expression was marked by majority tyranny.

Local oppression can be the most insidious, because local power is pervasive. “You can’t beat City hall”. Coercive local governments can make it costly in daily life and business to dissent from dominant beliefs. Local oligarchs can ignore fundamental rights and freedoms when common law protections are too expensive to enforce. And they can often ignore the intentions of law. Consider, for example, how helpless central government has been against Christchurch and Auckland planners who have the backing of elderly voters who like the status quo in their leafy suburbs. They’ve blocked densification to shut young families off the housing ladder.

I’ve been concerned about the risks to our democracy at local level for many years, long before Auckland lost its genuinely local government into the UberCity. In 2002 the Local Government Act removed centuries-old constraints on the power of local politicians. They were given the incredibly vague freedom to pursue the four “well beings”. They can claim to be advancing their community’s cultural or social well being, to boss their neighbours around in ways that even central government would not dare to do.

I was concerned they would abuse their new power to enforce dominant orthodoxies. So, with Nandor Tanczos (Green) support, I moved the insertion of s 155 (3) of the Local Government Act 2002. Unexpectedly we succeeded. It reads:

(3) No bylaw may be made which is inconsistent with the?New Zealand Bill of Rights Act 1990, notwithstanding?section 4 of that Act.

That was as far as we could get then in subordinating local government to NZBORA (though NZBORA is expressly not binding on central government). It is limited but I am proud of it. And now we must ask a court to make it clear that the principles recorded in NZBORA are fundamental elements of our rule of law, as a constraint on the non-bylaw decrees of local lords.

I mentioned in the Parliamentary debate in 2002 some historical attempts by local councils to suppress the Salvation Army in its early years. At the urging of publicans and established churches they passed bylaws against band music in public places and noisy gatherings in streets. Among other reasons the Salvation Army had to attract support in the streets was that they were banned from hiring public halls.

I am inspired by the American Civil Liberties Union. Over the years after the McCarthy hysteria they went to court to stop local authorities from banning speakers and gatherings of Communists and Nazis and apartheid era sports teams, from public property. They argued consistently that it was too dangerous to freedom of communication to give those in power the right to decide what was desirable or undesirable. Because it would end up being used by the powerful (and majorities) to block challenging ideas. But also because it would prevent ordinary citizens hearing wrong talk for themselves and learning how bad or ugly it was.

Freedom of assembly and speech may be even more important now, in the era of social media echo-chambers and bubbles. Most political and religious discourse is now in soundbite abbreviations. Many political debates never reach the public, except as a species of comedy, lampooned by ignorant scoffers in media programmes that specialise in mockery. There is little chance for people to get the kind of sustained sequential argument and discussion that happens at public meetings.

Mr Goff, somewhat ludicrously, said he will not allow divisive speech. He wants speech for unity. What about diversity Mr Goff. Have you turned your back on that? What do you seek from it? All thinking and speaking in unison? If our society has become so fragile it can’t handle awkward or unsettling speech or challenge, then it may be because young people have had too little practice.

Barack Obama is not too busy with golf and Sir John Key to write to me

  • March 22nd, 2018

Today Obama emailed me personally despite his busy schedule in Auckland. He asked me to get active for the Democrats. I?m sharing his message with you, at the end of this post.

Former NZ PMs often regard it as bad form to stay active in partisan politics after retirement. There is a feeling they should give their successors a reasonable shot at maturing into office and effective leadership without a predecessor?s sniping.

That was also a convention in the US.
But not now. Not in the Montagu v Capulet acidity of the USA?s tribal democracy.

Since Trump?s victory the legendary Democrat internet comms machine has been running hot. It was created by Obama to win the Presidency.

A Democrat supporter can expect a personalised email almost every day over the signature of some Democrat notable, including Michelle Obama and Hillary Clinton. Sometimes there are two in a single day.
Most ask for money. They often refer to events in the recipient?s locality.

I signed up all those years ago out of curiousity. I?ve never sent money because it is unlawful for US politicians to receive foreign funds, though some of the pitches have been compelling. Hillary?s campaign sent some great messages, though the hindsight slagging of it is not entirely unfair. Contempt for the values of ordinary Americans seeped through in many repulsively partisan messages.

But Obama?s message today matches his dignity.

?From: Barack Obama
Date: 22 March 2018 at 4:24:26 AM NZDT
To:
Subject: 2018:
Reply-To:

Organizing for Action

A little over a year ago, at my farewell address in Chicago, I asked you to believe. Not in a candidate, or a politician, or a party — in yourself.

In your own ability to make a difference in your community and your country.

For eight years in the White House — and long before that — I’d seen it happen time and time again: ordinary people who got involved, stayed involved, and pushed for a better future for this country we love.

That’s how change happens.

And this November, we have a chance to make that change happen in local and federal elections across the country. We cannot squander it.

Commit to vote in November 2018. Say you’ll fulfill your duty as a citizen, and that you’ll keep pushing for progress.

That faith I placed all those years ago in the power of ordinary Americans to bring about change — that faith has been rewarded in ways I couldn’t possibly have imagined.

In the past year, I saw people like Kim, an OFA volunteer in Virginia, bravely share her story during the health care fight — of how, before Obamacare, her 13-month-old son Isaac was on the verge of being kicked off insurance as he went through surgery after surgery. She spoke up, and helped save health care for Isaac and millions of Americans.

I saw folks in South Carolina identify a problem with their town’s outdated, dangerous school buses — then roll up their sleeves, do some organizing, and get the statehouse to fund new buses for Charleston’s kids.

And I saw a new generation of young leaders grab clipboards, collect signatures, and decide to run for office themselves.

Throughout 2017, I saw Americans all over the country step up, have the tough conversations, and speak out about the issues affecting us all. We have to keep it up in 2018 — because every ballot measure, every election, every conversation on an issue we care about — it all matters.

There are no do-overs.

So right now, I’m asking you to make a commitment: Seize the power you have. Speak up. Make this democracy work. Do not succumb to cynicism. And say you’ll vote in 2018 — there’s too much at stake this year to sit this out.

I’m in

Thank you,

Barack Obama

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Surprise that Chris Bishop not contending

  • February 14th, 2018

I’m surprised that none of the speculation on National Party leadership has extended the field to Chris Bishop. He is the stand-out MP of his intake. PM Ardern, and before that David Lange showed that being far down the seniority list is no bar to early elevation to Deputy Leadership or to electoral appeal

He should muscle into contention even if none of his colleagues step up to draft him and whether or not success is likely this time.

Voters may say they do not like naked ambition, and it is more graceful to look as if one is being dragged unwilling to leadership, but subconsciously we don’t want to be led by someone who does not have enough confidence to tussle for it. Ambition is a necessary but not sufficient condition.

Richard Prebble used to attribute to Napoleon the claim that he did not appoint generals unless they’d been carrying a hidden field marshal’s baton since being young officers.

Chris should be impudent enough to step forward now. He may think there is time to wait, but there is no knowing how soon the need to lead could arise. He should be impatient, and not only because there is no clear inspirational leader in the generation that has their hands up now.

Sure – the attention if he seeks the deputy position will be positive and negative. The non-story will re-emerge from the snowflakes who want teenage females walled off in social media convents. But he does not need to respond to that. His colleagues might slap him down. That’s a risk a confident leader does not worry about. And if he runs now, irrespective of the outcome, he not them will be front of mind if and when the current aspirants lose their gloss and eventually their mandate.

 

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