Mediawatch on Radio New Zealand this morning gave good coverage (and acknowledgments) to Cactus Kate’s expose of the ABN stable’s unwillingness to budget for defamation defence.

But they are all still appealing to the ideals of noble journalism and the altruism of media owners to defend the role of the media and free speech. They will never be enough to counter the serious threat to free speech now represented by the toxic mix of sound defamation principles with nice but stupid rules on cost awards in the procedural swamp of our courts.

Even an outright win in a defamation case leaves the publisher deeply in the red. That is because dopey judges over 4 decades have left all litigants in New Zealand (other than those on legal aid) facing discouraging costs for even the most simple cases. They mean that winners don’t win. At best they’ll get an award of perhaps half the real costs. To add to the risk there’s little willingness to require dodgy plaintiffs to post security for payment of costs awarded against them.

And that is for trials that end. There is no upside from the  preparatory spending forced on an innocent defendant, if the plaintiff has the wit to drop the case before trial. So many of them can expect the gagging writ to do the trick – the defendant will fold and settle at an early stage top avoid huge wasted time and costs.

Our expectations of courage from publishers developed in times when a routine win could result in serious reimbursement of costs, and when the whole process took perhaps one quarter of the time a case would take today.

Tim Pankhurst and the Media Freedom Committee of the Commonwealth Press Union should be finding an MP to sponsor some new directions to the judges. They’d spend their time more productively targeting the cause than defending or bewailing the symptoms. I tried to interest them in this a few years ago after we’d successfully resisted Margaret Wilson’s attempt to revive criminal libel in electoral law.

I suspect that there is a place for an offense of criminal libel, but far more urgent is a reform along the lines I urged  in posts here and here.

With the Minister of Agriculture off overseas to talk emissions I’m reminded to ask if there’s been any published discussion in New Zealand of Mootral?

A company with an inadequate website claims to be able to cut cow methane emissions by as much as 90% using a garlic extract or derivative.  It sounds wacky, but no more so than extending the ETS to cover agriculture in a country dependant on agriculture.

Mootral is sufficiently credible to come runner-up in a Financial Times competition, and to get recognition by the BBC.

Anything that works as Mootral is claimed to do might become hot property here. If it works Nick Smith might point to the incentive to adopt things like Mootral to justify the Green hair shirt he is obliging us all to wear, even those who are already wearing Swannees.

The Aussies have made the sensible decision to force Green hair shirt wearing only on those who can change what they do to reduce the sweating and itching. They’re leaving agriculture out of their emissions scheme. So their dairying will get an advantage over ours. Presumably that will mean losing to Australia some of the production and profit NZ would otherwise get, notwithstanding the world’s net environmental loss from moving dairying to a country with less water.

Is ETS debate really over? If the Maori Party listen to their agricultural constituency they might vote with ACT against the inclusion of agriculture. It is hard to see what is gained by including price taking industries that can not change their behaviour in response to the "tax", other than by letting production go to countries where the same production does more environmental damage.

So back to Mootral.  Have I missed the NZ references to this product?

Does it make the milk and cheese taste like garlic? So what , now our restaurants and cafes are mostly better than those of  the  French. We can all tolerate garlic breath now.

Justice Minister Simon Power responded instantly and sensibly to the launch of the SST campaign to allow victims to give the Court their views on sentencing.

More sensibly than the new President of the Law Society. The latter could have said something like "I commend the quick response of the Minister of Justice, and I hope that the law change is thorough enough to start reassuring victims that the justice system cares as much about them as it does offenders". Instead he focussed on the threat that victims will risk arrest for contempt of court until they are no longer gagged.

There are many ways to ensure that a right to comment does not degrade the court process (bearing in mind that all this occurs after the guilt of the offender has been determined). I comment on some of the safeguards at the end of this post.

The Victim Impact Statement provisions were well meant, but in 1990 a case meant in effect that they could do little more than confirm the "loser" position of the victim, in front of the convicted offender. Instead of being part of the community’s reassurance to victims that society now stood beside them, it sucked them into reinforcing the message of the offender’s power to hurtm and their relative powerlessness, even after the conviction.

A 2007 academic paper by Peter Sankoff and Lisa Wansbrough gives a good background to the issues.

A Court of Appeal case this year (R v H [2009] NZCA 77)  confirmed that the 2002 law changes did not change the way the courts should treat these statements. The Appeal judges said the High Court was wrong, for example,  to allow the victim to say that the offending rapist was "cynical, predatory and manipulative in the extreme", of a rapist who groomed a young girl who came to live with his family.

I’ve waited for this campaign for a long time, since my amendments were rejected by the Select Committee on the Sentencing Bill, and then by the House, in 2002. I  tried to ensure that victims had at least as much right to express themselves as that Act gave to the offender and his family and whanau.

Compare the law’s tender care of the offender in  section 27 of the Sentencing Act with its grudging discretionary permission to victims in section 17 and 18 of the Victims’ Rights Act. 

My firm has subscribed to NBR’ twice daily internet bulletins. We are very satisfied, though irked by one feature – not being able to email effective links to the stories that are reserved for  "subscribers only".

Is that irritation fair? Is it only because we have got used to things being free when they should not be? The world’s newspapers are dying. I was shocked by last month’s figures for US newspaper circulation and readership. Over 10% down across the board in one year. The Wall Street Journal is holding its own, and is now the largest circulation US paper at just over a tiny 2 million.

The internet is killing newspapers. We can get material free (though it remains expensive to produce) that was once available only to people who bought a newspaper or could borrow one or copy the story  – all just dificult enough to make it worth buying your own copy.

The Wall Street Journal has always restricted access. Now, it appears, Rupert Murdoch is planning to extend his counter-attack, with Google in his sights. He told a Sky News Australia interviewer that his pay to access material will be made  "invisible" to Google.

The interview was drawn to my attention in commentary in a Swiss based internet daily.

I wonder if New Zealand might be an early venue for an attempt by the Murdoch lawyers to redefine the relevant law?

And could Barry Colman work out a way for us to pay a little extra to be able to send working links to articles, perhaps with a built in number ration per week?

Apologies to people who’ve complained of clicking  fruitlessly through to  this blog for the past several weeks. It has had nothing new.

My law firm is going too well. Concerned when we started that we might not have enough to do, we accepted all work offered. The consequence has been unplanned evening and weekend work.

If I were a client I’d be annoyed if my lawyer was having trouble delivering on time, but could still find time to post  blog entries.  

Hence the gap. I’ve had plenty of things to mention, but no time to do it. You’ll know when I’m over-committed at work from now on.

Will insurers come back to compete with ACC if ACT obliges National to deliver on its own policy of reintroducing contestability? Or will they be too wary of investing in the set-up then having to write it all off again, like last time?

I helped in drafting the reform law in 1998. I think all of us who worked on it were surprised by its success, not only in waking up the Corporation and lowering premiums, but even in dropping accident rates. I don’t think there has ever been an entirely convincing explanation of that drop, because it seemed too quick to have a cause and effect relationship with the reforms. At last our rates had headed in the direction of Australia’s lower rates.

The reform was reversed because someone made a silly campaign promise. Labour MPs had no pride in their work as they delivered on their promise. Cullen had not by then discovered his phrase "the ideaological burp" but I think he might admit that the repeal was worse than a burp – perhaps it was an ideological fart. I remember a discussion with a couple of them about the success of the reforms, the benefits in cost terms, the apparent benefits in tems of reduced pain and loss as accident rates dropped. They said that when National reinstated contestibility no one would make a silly promise to repeal it again.

We shall see.

I hope that ACT insists on committment to some of the elements of the reform that National was too timid to allow last time. There were several changes dropped that could help make ‘no fault’ more robust for the long term (to put further out of contention any restoration of tort).

Among them must be an option for workers and earners generally to elect a higher than zero deductible. All sensible insurance has deductibles, to save on administration costs for trivial claims that would be better dealt with directly and to reduce the moral hazard of entitlements with no co-payment obligation at all on the person suffering the "loss". At the least people should be permitted to choose to cover their own minor accidents and perhaps up to the first month off work, in return for a good share of the resulting savings to the ACC/insurer.

And the law needs some extra principles written in. Among them should be:

• another go at sorting out the boundaries with crime and criminal law reparations. The courts are busy recreating the equivalent of tort liability, but without the common sense of tort, by directing payments in HSE cases to the "victims". Some of the worst results of US style tort risk aversion are now affecting New Zealand, as land-owners close off access, employers deprive employees of discretion and recreational choices are restricted in the interests of protecting against hindsight court judgments that ignore individual choices and responsibilities.
• a requirement to show that counselling and other feelgood "treatments" help more than they damage. For example there is research evidence that counselling for one off trauma may harm. It may diminish the normal protective loss of short term memory. Rehearsing and  dwelling on an incident may instead cement  it into long term memory. "Harden up and forget about it" may be the best therapy.
• new mandatory prosecution provision to apply to Directors and other people in control of insurers (including ACC) if they lie like Labour Ministers about the financial condition and the provisions for coverage. They perverted a scheme that has always been vulnerable to serious boundary arguments, into a welfare election bribe..

Another reminder to New Zealanders to be ashamed of our criminal justice system. A reminder that the self-absorbed folk in charge have neither the sense nor the concern to take the simple steps to end pointless appeals. The Minister of Justice and the Attorney General should now do it for them. Meritless appeals affront the victims. They insult us who pay the judges on whose watch crime has blossomed while the numbers of lawyers, and the length of trials has rocketed. They make mugs out of those who plead guilty. So it’s time to legislate past the judges who think it is sacriligious even to ask that trials and appeals focus on distinguishing the guilty from the innocent and the remorseful and deserving of mercy from those whose post-crime conduct multiplies their culpability. These are not games the rest of us must sponsor. Meritless appeals would largely dry up the moment they ceased to be costless to the criminal and lucrative for the criminal bar. Appeal judges could achieve that overnight by extending sentences without letting the criminal drop the appeal. They have every reason in the insult they represent to victims. Meritless appeals get more state resource in a day than the victim has received through the whole process. Judges would also curtail this waste of precious time and money if they could resist the temptation to reward non-compelling try-ons with trivial sentence adjustments. Pursuing sentencing "consistency" is an indulgence of dubious logic in any event.

I have no idea who’s been charged nor any inside information about the case, but I wonder if the accused has really thought through his name suppression application in the case headlined "Senior public servant on assault charges".

"Prosecuting lawyer Paul Dacre told the court the teenage victim had taken credit cards belonging to the defendant’s wife and withdrawn $700 from an ATM, spending $200 of that on a cellphone, cigarettes and a bag.

On finding the victim the defendant grabbed him and walked him back to his car, threatening to break his legs if he tried to run away, Mr Dacre said.

Once in the car he punched the victim five or six times, with one blow hitting him in the head, he said."

If the facts are as alleged  and the punches did the "victim" no permanent injury the guy who caught the victim should rise enough in public estimation to outweigh any loss. Why worry about the opinion of the kind of people who would think worse of him.

The consequences of conviction might be serious for his career, but at least he should collect the benefit of public approbation.

There’s something weird going on here. The World Economic Forum has issued its second annual financial development report and rated Australia as second in the world after the UK and ahead of the US?

Isn’t the UK a basket case? Am I just too close to realise how well our cousins are doing?

Yet the report’s authors include the vindicated sceptic Nouriel Roubini.

The report ranks 55 of the world’s leading financial systems and capital markets. It analyses the drivers of financial system development and economic growth in developed and developing countries to serve as a tool for countries to benchmark themselves and establish priorities for reform.

So the Aussies have reason to trumpet the report, even if one doubts that its criteria can have much to do with longer term prosperity, seeing as all three leading countries have been living off other countries savings for some time.

Perhaps that is what most of those criteria boil down to – success in persuading other people to let you have their money.

The report ranks 55 countries, New Zealand not included. Here are the top 10

It is unfortunate for New Zealand that we still draw so much on the UK for our ideas of what is internationally ‘normal’.

I was reminded of how dumb that is by the joy of some UK migrants to find that they could rent a house with all the owners’ furniture in it.  According to them, in the UK furnished house letting is drying up, because of a ‘protective’ law the requires all furniture (as well as the house) to be certified safe by specialists before a house can be let.

Yesterday’s Herald on Sunday reprinted a Daily Telegraph report about the British Government’s persecution of two women who looked after each other’s children in turn so that they could share their job (they are Detective Constables). OFSTED (the Office of Standards in Education) warned them, then put them under surveillance because their arrangement  violated the British law against any unregisterd person looking after another’s child for more than two hours a day for reward.

The reward was each other’s reciprocal free care on the other days.

What a pity the HOS did not check to see what prevents our own absurd law governing paid pre-school child care from a similar intrusion into the private arrangements of normal good parents.

I also hope that  our Minister of Education  follows up to see how our law will treat the inevitable accidents that will allow her official prune-faces to punish the owner-operators of ‘forest kindergartens’, highlighted in yesterday’s Sunday Star Times. Esther Harward’s report shows that the law could be a serious problem

Our Law Commission has just recommended law changes to give our government powers to close down private schools that the Secretary of Education considers to have "unsuitable" premises or curriculum.

The definitions of "suitable" are laughably vague. For example look at the definition for curriculum:

 "35H Suitable curriculum A suitable curriculum for a school registered under section 35A is one which enables students, when their education at the school is completed, to participate in and contribute to their own community, and to New Zealand society as a whole."

The closure power is similarly broad. In effect the Law Commission has chosen not to recommend law (rules which enable people to know in advance what is lawful and what is not). Instead they’ve said – "lets trust wise officials".

"The Secretary may at any time suspend the registration of a school registered under school registered under section 35A if he or she considers that the welfare and safety of the students at the school are at serious risk, and—  

“(a) that it is unlikely that the risk can be avoided by any practicable means other than by suspension of the registration; or

“(b) that, although the risk could be avoided by means other than by suspension of the registration, the amount of time necessary to do so is likely, in the opinion of the Secretary, to be excessive."

Be worried if you are not an establishment educationalist.