The puerile scuffles of the kiwiblog commentariat diminish kiwiblog. If DPF will not simply scrub them he should have a colour code paint brush to help us go only to those that engage the issues.

I know I am not alone in treating DPF’s kiwiblog posts as must reads, but not the personal abuse. I made an exception yesterday, when I heard that apologists for the fascisti had been attacking the credentials of the lawyers whose work DPF might have drawn on. I will not dignify the attacks with a link.

In a major achievement over two years DPF got to the essence of Labour’s public money theft, when the Police would not, and drew out the practical implications of the woefully written current Bills.

If those attacking his law statements genuinely wanted information from authoritative lawyers there is a simple answer. The NZ Law Society submission, signed off by President John Marshall, had plenty of non-trivial  examples of uncertainty, and  potential oppressions. The witting or unwitting allies of the fascisti among the lazy journalists who keep pretending that there are two sides to this story, could have done the same. With John Armstrong and Audrey Young as honourable exceptions (supported by some editorial writers) most seem to have decided to stay ignorant so they can stay uncertain and thus ‘neutral’ on the government lies about the Bill.

Here (with thanks to Scott Clune) are some examples from quick technical analysis of issues in the reported back version:

·           clause 5(1)(a)(iii) has gone. It would have made virtually all political speech an ‘electoral advertisement’. Now the gag is defined by 5(1)(a)(ii). It restricts anything “that can reasonably be regarded as … encouraging or persuading voters to vote, or not to vote, for a type of party or for a type of candidate that is described or indicated by reference to views, positions, or policies that are or are not  held, taken, or pursued (whether or not the name of a party or the name of a candidate is stated)”.  What amounts to encouragement or persuasion is wholly unclear.

·           For other sample uncertainties see clause 61 (what specific knowledge is required to ‘wilfully contravene’ a provision of an enactment?) and clause 85A(4)(b)  (who is to say what is ‘appropriate’ to a particular ‘form of election activity’?);

·           Amended clause 5(f) has wide scope for unfairness or inequity. Any group could take a view that could wound deeply held convictions, or legitimate interests of others. For example AA, the Cancer Society, the Rugby Union, Federated Farmers, Greenpeace or even “Fly Buys” could properly take a stance on a matter where they want politicians to commit, and attempt to influence their members. Their unrestricted advocacy could not be opposed by a targeted community or sector outside the restrictions.

·           The new “donations protected from disclosure” regime is not an anonymous donations regime (as the Dominion Post 20/11/07 might be forgiven for thinking).  Donor identity must be disclosed to the Electoral Commission (28B(3) with no explanation of the purpose. The secret ballot was introduced to defend people  against local oligarchs. It protected the freedom to support political activity without being targetted by the vindictive winners. It was an integrity measure.

·           The cut-off for registration as a third party remains at writ day.  Writ day has historically been around one month prior to polling day. This prevents registration during the critical period when, inevitably, parties will announce new policies or make new claims. W Peters has a history of false allegations of scandal against some person or body on the Thursday before the election. It is usually too outrageous and vague to be properly rebutted before voting, but the Bill would stop the targets of such claims even countering the lies. If there was any good faith in this Bill the registration cut-off at clause 17(a)(ii) in respect of snap-elections would apply in all cases.

·           The restricted period has not been reduced.  An incumbent government always has advantage. They have power, so their pronouncements are news. In addition they can lawfully pay for propaganda about government initiatives.  If this Bill was genuinely an attempt to redress a percieved imbalance of power, it would have given challengers extra spending power for paid communication to balance the incumbency advantage. Instead they’re creating a restricted period of up to 11 months. In a 3 year election cycle that gives the incumbents the means to control political speech in New Zealand for greater proportion of the time than in any comparable country.

·           The Committee failed to address the compounding of the incumbent advantage in 80(d).  There may be a principled justification for leaving political parties, through incumbent members, outside spending restrictions while challengers are restricted, but the Bill does not make it.

The definition of “electoral advertisement” at clause 5 of the EFB seems incompatible with permitted uses of parliamentary funds in clause 3 of the Appropriation (Continuation of Interim Meaning of Funding for Parliamentary Purposes) Bill. If they mean what they say parliamentary funds could lawfully be spent on an “electoral advertisement” while Parliamentary Services is legally prevented from paying for it.

Any one of these issues justifies subjecting the Bill to a fresh round of error testing in the public submissions process.

 Yesterday I mentioned to the demonstrators at Parliament the correspondence between one of the founders of my law firm (Chapman Tripp) and J S Mill. I would quote from it for you, but I’ve mislaid it.

Among other things they were debating proposals for the secret ballot. Mill was anxious that allowing people to be secretive about their vote could realise the great fear of many democrats – that the majority poor would vote to plunder those with property if they could be irresponsible in private. On the other hand both acknowledged that transparent voting was influenced by the risk of retribution by the victor (and the losers).

Neither fear was idle. Argentina is a current example of a rich country made poor and violent by recidivist voting to plunder wealth. 

I’ve heard even Labour MPs admit that some privacy for donations is important if parties are to be funded. They treated it as an awkward practical problem, best dealt with by replacing all private funding with state grants. Thwarted in that, even the reported back bill allows some privacy in the new “donations protected from disclosure” rules. But it is not an anonymous donations regime (as the Dominion Post 20/11/07 might be forgiven for thinking).  Donor identity must be disclosed to the Electoral Commission (28B(3)) with no explanation of the purpose.

It is time to stop apologising for privacy. The secret ballot was introduced to defend people  against local oligarchs. It protected the freedom to support politicians without being targetted by vindictive winners or losers. It was an integrity measure.

Today’s commentators, deeply ignorant of history, have accepted the rewriting that  has tied privacy of political support to secrecy to sinister forces. It is ironic that more than a hundred years after secrecy was introduced to protect electoral integrity from incumbent power, none have dared challenge the corrupt incumbent’s linking of secrecy with the opposite.

Opponents of the secret ballot, when it was introduced in Victorian times, used all the ‘transparency’ arguments. It is revealing that those arguments have re-emerged to support the fascisti’s attempt to drive out of politics and political support, people like the EB, and now anyone else who might be vulnerable to their power.

The transparency slogan was accepted unquestioningly even by the NZ Law Society and the editorial writers who have seen the menace of the Bill. None have recognised that much of it flows inevitably from abandoning the old principle that lead to the secret ballot – namely that power is always abused, that people may legitimately want to keep their political views to themselves while supporting those who have the courage to engage in open challenge to incumbent power.

The last time this was important in NZ was when Muldoon was abusing his power. Now it is important again. The right to offer passive support without fear of the Police will be even more vital some time in this country. We are human, and there is no society where political power has not been turned to terror against opponents at some time or other. People have good reason for their wise instinct to keep your head down.

Our law should honour those who are prepared to stand publicly, and encourage their less bold but still essential supporters who would rather keep their political leanings private, but still want to participate actively. It can do it by upholding law that worked tolerably for 100 years.

Consensus on constitutional issues was a strengthening constitutional convention, until the  barbarians tutored in the student unions of the 60s  became drunk with power after 1999. They’ve become the ‘end justifies the means’ fascists they’ve spent so long looking for.

Steven Price speaking for the Coalition for Open Government on RNZ this morning was saddening. An idealist a few years ago, a lawyer of perception, descending to justify corrupt law in debate with a non-lawyer on the grounds that it will not be enforced.

I hate seeing people lose their intellectual integrity. I dare think that one day he will feel ashamed of this episode.

In its early days I was a ‘Coalescer”. I wrote briefs of Bills for their newsletter. I think most I worked with were genuine idealists, not stooges for the totalitarians.

Today I heard Price minimising the freedom of speech limit in a law that will “permit legitimate lobby groups to carry  on” if they comply with “minimal” registration requirements (not mentioning the accounting, auditing, record keeping etc) so long as they “do not advocate for or against any politician or party”.

In other words you can have ‘free speech’ as long as we know where we can get you, and only so long as you do not let people know which politicians support or oppose your policy position.

What do the equivocaters think elections are about? We do not elect policies, we elect people – we get a chance to decide who wields the rule-making power. There is no free speech if it ends as soon as you talk about the people standing. As the media show by what they publish (trivial amounts that mean anything on policy) election speech on a policy or issue not relevant speech. It is only relevant when it is connected to the people, and the company they keep (political parties).

Price was justifying law that says your free speech ends the moment you start telling which of the politicians is a liar, or hostile, or a hypocrite, or a sincere champion, or straight talker. New Zealand is passing law to nobble lobby groups in their chief constitutional function – that is monitoring and reporting on the rulers, so that voters can can have more to vote on than politicians’ claims.

The law is designed to abolish the purpose of free speech while pretending that free speech remains. Why do we think elections are better than wise dictators? Precisely so that citizens, at all other times the outsiders to the process, can persuade and agitate each other to kick the incumbent bastards out.

I rue the time I spent helping give the COG credibility, when it was a coalition of people afraid of Muldoonism. I could see then how attractive it was to the nosy folk who try to exorcise their personal demons by making rules for others. But I did not forsee “Open Government” becoming an Orwellian joke.

It is now yet another front (like CORSO and myriad others) taken over by the types who can rationalise anything. They can not help themselves. By character they are drawn to support violent heros the Castros, the Pol Pots, the Sandinistas, the Ho Chi Minhs, the Mugabes,  all at some time or other the darlings of the NZ Labour Party’s current leading lights, simply because they were ‘anti-capitalist’.

Now of course H Clark has the Steven Prices of our little world salivating as she dog whistles them with terms like “hollow men” her updated code for ‘capitalist’.

‘Toast Martinborough’ was all that a wine festival  can promise at this time of the year, though to me the name does not promise much. The dry toast image of a partly burnt crust did not fit yesterday’s lush Martinborough.

With odd words  in mind – why do bus labels say ‘air-conditioned for your comfort’? Why not just “air-conditioned”?

Cheesy grovelling superfluity is a fungus. Market-speak mycelia insinuate everywhere, blurring any crisp edges in our minds.

Why else would they air-condition? For our discomfort – to burn up more diesel – to make other people feel bad?

Tomorrow TV One’s Sunday programme will show us the ‘confession’ video the jury was not allowed to see before they let Noel Rodgers walk free on a murder charge. I salute TV One for pursuing the case, and the Supreme Court decision that (in this case) openness outweighs Rodgers’ privacy claim.

A pattern of Supreme Court decisions against court secrecy is delicately pruning three decades of erosion of our British inheritance of open courts. That trend may help the Fairfax papers.

More significantly, if the Rodgers video stirs up outrage, perhaps the judges might even be persuaded to revisit judge-made rules that deny victims justice. The courts exclude evidence that police have collected in a way the judges don’t like. They’ve made up these rules themselves, though some Parliament-made law now reflects that approach. The theory is that if the evidence will not be useful, then Police will not collect it in that way. The problem is that the rules about what the police can and cannot do have become ever more remote from what should be the over-riding concern (what is the truth). The exclusions ignore the victims’ right to see justice done. 

In effect when the courts feel there has been Police misconduct, instead of punishing the Police, they give the wrongdoer a windfall free pass, and punish the victim.   It is consistent with the justice system’s casual dismissal of the victim’s interests throughout the centuries since the Crown seized the victim’s right to pursue the wrongdoer. System apologists justify Crown exclusivity on crime on the untested fear that victims would get “undue influence” under any other system.

But it was not highminded determination to protect the rights of innocent accused that lead to our current system. The Crown asserted that crime was an offence against the King’s peace (first on the King’s roads, then throughout the country) for far more venal reasons – to profit from seizing the assets of wrongdoers.

French law allows to victims full party rights in criminal trials. When I asked French lawyers about it in 2003 none mentioned any miscarriages of justice attributable to it. Whenever any relevant law came before my Select Committee, I suggested changes to prevent the judges excluding evidence that pointed to the truth, and instead punish the procedural wrongdoer directly, but the committee was far too respectful of the status quo.

A reform is well overdue. The Courts should ask Parliament to create offences of which they can convict cops who break the evidence rules. Securing conviction and penalty is the way they insist that other people enforce rules. It is time they practiced as they preach. Sure, it will make it harder for judges to invent new rules about Police behaviour as they go.

But witnesses must promise to “tell the whole truth”. It is time to restore meaning to the part of the oath. There is no addition to the oath saying ” except when the judge is not happy about the way the cops behaved”.

The bad drafting of the Terrorism Suppression Act has been referred for Sir Geoffrey Palmer’s wisdom. I thought I might give him a hand. What about something along the following lines?

•  “[It shall be an offence to act with] an intention— 

   To bring into hatred or contempt, or to excite disaffection against, Her Majesty, or the Government of New Zealand, or the administration of justice; or

   To incite the public or any persons or any class of persons to attempt to procure otherwise than by lawful means the alteration of any matter affecting the Constitution, laws, or Government of New Zealand; or

   To incite, procure, or encourage violence, lawlessness, or disorder; or

   To incite, procure, or encourage the commission of any offence that is prejudicial to the public safety or to the maintenance of public order; or

   To excite such hostility or ill will between different classes of persons as may endanger the public safety.”

From what the DomPost published yesterday that would not leave the Police helpless.

Funnily enough there is a wee bit of precedent.

Those words are in the Crimes Act definition of sedition, abolished only two months ago amidst legislative self congratulation. 

Some of the PC twits were smugly satisfied that human nature had changed so much that we would never need it again. I’d warrant that few of the rest bothered to read the existing law, just as few read the TSA.

Did the Police (or the PM if she was briefed in time) wonder whether the surveillance of the Tuhoe terrorists raised doubts about the rush to repeal sedition? Why did the Solicitor-General not warn Parliament that it needed reform, not removal, if he was consulted by the Police throughout the operation. If his office was fully informed they should have alerted the Police to the inadequacies of the TSA before the the arrests.

Parliamentarians responded to Sir Geoffrey’s whistle. He has an awesome power to cause group genuflection. It is not as if nobody warned them, but he had them in the grip of something more powerful – fear of seeming unfashionable.

Now they want him to tell them how to fill the hole he dug for them.

Has anyone in the Opposition thought that Parliament might be better to seek advice from someone with less reason to be embarassed, or at least less likely to hypnotise them all into Labour groupthink?

According to the DomPost “Police have sought legal and cultural advice to decide the culpability of those involved in the [Wainuiomata makutu cleansing] ceremony. They say the question remains whether the cultural practices were acceptable, or whether those who ran the ceremony had gone too far.”

A poor woman allegedly dies of drowning after being held down and pumped full of water, and the Police  wonder whether it was “acceptable”. What would go too far?Surely they mean they are not sure whether they can establish the necessary intent to make murder stick, instead of manslaughter.

By publishing the terrorists’ boasts and threats the DomPost and the Press have served Phil Kitchin (the journalist credited with the story) their readers, their country, and the finest traditions of the fourth estate.

They’ll be damned. People who can not see the wood for the trees will whine on about the rule of law. The only complaining should be about the state the law has reached where it is even conceivable that such stuff might be kept permanently from the people who were to be the victims of these strutting thugs.

The publishers should be prosecuted, to uphold the rule of law. If convicted the judge should set a nominal penalty.

Then the law should be changed to reinstate the openness our courts worked under before the insiders were allowed to get so precious about pre-trial disclosure. Jurors can sift out the effect of early reports in the sober stillness of the court room.

I feel sad for the people caught up in the 22 year old mother’s death. I imagine those who try exorcism are usually sincerely trying to help, and not getting a vicarious kick out of the ‘punishment’ of the evil spirit they detect in the victim.

Nevertheless it is hard to stomach the unctuous tones of caring caution oozing from the media persons ‘approaching’ makutu. Makutu cries out for immediate thumping ridicule, unreserved derision.

Of course ridicule is hard for people reared as moral relativists, piously respecting all beliefs no matter how malign. They cling to their faith that all cultures deserve equal respect. They make an exception of course for one set of superstitions –  traditional Christians are fair game.

Assuming the facts are confirmed as they seem to be emerging, this kind of tragedy is typical of those that were among the reasons for law suppressing tohungas early last century. We don’t yet know whether this family was led by a charlatan preying on their credulity, but they often are. Low schooling success in sciences makes Maori especially vulnerable.

Though often cited by folk trying to stir up race resentment (at pakeha cultural imperialism), or pakeha who want to wallow in shame for an imagined past, tohunga suppression law was supported by reformers, including progressive Maori, precisely to reduce the costs of beliefs such as in makutu.

Now of course the whole of New Zealand is caught up in a revival of animist superstition, as ‘nature’ is worshipped and the works of man reviled. The Greens reject any inconvenient science. School enrolment in hard science education is withering.

Do I correctly detect a contrast with the condemnation so quick for the sadly misguided Northland parents charged over the death of their child whose medical teatment they delayed too long?

I hope Labour, National, ACT and United Future have the wit and energy to ensure success of the Greens’ call for a formal inquiry into the Police decision to make the arrests. Parliament’s Justice and Electoral Committee should take it on, if a better qualified body is not appointed by the government. Only rampant hypocrisy could have the Maori Party not supporting it.

We should know what the Police found. It is important to know whether the Police are foolish, or racist, or merely misled by stupid law.

When the smug left (and right) are congratulating themselves on abolishing the offence of sedition, the people are entitled to know what kind of judgment is applied to the messy and essential task of detecting and disabling our local Rambos. Thugs will always emerge to take advantage of democracy’s apparent weakness. Democracies need Orwell’s “rough men” who defend it from those who would get their way by violence and threat when they know they can not persuade their fellow citizens with reason.

But they must be properly led and controlled. Only a full inquiry into what the Police acted on can reassure us that the Police are properly led, controlled under law, and competent.

If there is no successful charge, so that our racist would-be terrorists go free, we should all know why, and exactly what kind of behaviour is beyond the law. The people, not only political insiders,  should be equipped by the experience to judge what kind of law is needed to replace the stupid Terrorism Suppression Act.

The insiders have shown they can’t be trusted to make sound law. The Foreign Affairs Committee was usually incompetent on liberties issues.

Hearing that former Chairperson Graham Kelly thinks that Act is fine reminded me of some of their other pathetic work. The Bill which signed New Zealand up to the International Criminal Court is equally offensive.