The Third Place

The Grey Power Pre-Election strategy report describes the Prime Minister as "bossy, arrogant, too-big-for-her-pants Helen Clark"- a view that is of course their right. That said, things start to become unstuck however when its unclear who exactly is behind the message being pushed. Grey Power are described as having "more than 90,000 active members" and is "a leading support organisation for many of the 750,000 retired New Zealanders." Most importantly, it has said that "it will not endorse any candidate or party." This of course contrasts starkly with the until-recently unknown role of the Exclusive Brethren beavering away behind the scenes of the National Party's campaign. Of course, there's nothing to show that National had a hand in the dissemination of the now-infamous leaflets, yet it is those leaflets that leave one wondering where the line should be drawn on third party advertising.

As it stands, the rules - courtesy of a press release from the Chief Electoral Office - simply require that the advertisements carry the "true name and [street] address" of the person who directed their publication. So what that means is that if anybody wished to distribute a leaflet or buy billboard or print media space to push their views on a particular issue or party, they're free to do so (provided of course that they can front up with the money to pay for it in the first place). Obviously, for most individuals the costs involved with such an undertaking would be well beyond their budget. However, for organisations - who are themselves better placed to spread and absorb the overall costs - the question is more one of when and not if. Therein lies the problem.

When the rules are considered in this context, their inherent shortcomings are all too exposed. While it is common practice for some of the more traditional political and quasi-political groups to include their name or logo within the advertisement, for other groups the practice is observed more in the breach than the compliance. Yet, voters should be able to know which group or groups are responsible for any given advertisement; armed with this information, they are able to view the advertisement in its complete context including with any added skepticism that context may bring. For example, the full-page print advertisements calling on the country to "Wake Up" were supposedly by a group of "concerned citizens". What they didn't say was that those citizens just happened to all be members of the Exclusive Brethren Church. While the Church and its members are of course full entitled to their views and to express their views, the public are equally entitled to know of the all too-common connection between those citizens. Similarly, in the case of the anti-Green Party leaflets that were recently distributed, knowing that the driving (and financing) force behind them was again the Exclusive Brethren considerably changes the context in which most people would view the message being pushed.

What those leaflets also showed was just how easily the loose rules in this area can be circumvented, if not overtly flouted. Whether the Mr J. Hawkins, of 3 Brent Place, Christchurch actually exists has yet to be established and, in all likelihood, will probably never be established conclusively. This apparent anonymity seems to be simply a means of paying little more than lip service to the law, allowing the advertisements to be published almost unchecked. Again, the issue is one of context and applies irrespective of who the actual advertiser is. New Zealanders would undoubtedly demand to know if there was a potential for profit through vested interests, but the determinator for disclosure should be more than just pecuniary interest. Other interests are equally as important and so the requirements for revelation should apply irrespective.

Consequently, it is clear that a new minimum standard for compliance is required. All third party advertisements should be made to display the name and logo of the organisation which authorised their publication. In the unlikely event that a single citizen or small group of citizens were the authorisers, then their names, addresses and occupations should all be required. Furthermore, a mandatory requirement for registration with the Chief Electoral Office should be introduced in all cases. This would allow the office to offer voluntary advice on the compliance (or lack thereof) with electoral law, as well as providing the office with a chance to check on the bona fides of the person or organisations purporting to be behind the publication of the advertisements - preventing anymore Mr Nobody's from passing themselves off as actual people. Finally, in order to determine who the provider of the actual impetus behind the advertisement is, the only question that needs to be asked is: who is paying for it?" By doing this, it is likely that anonymous slur campaigns can be avoided and any advertisements viewed in their complete context.

Third party advertisements can carry considerable influence and are a very powerful tool. Exempt from the standard spending cap that apply to party and candidate advertisements, and subject only to a weak authorisation clause, theirs is a power that can be wielded almost unabated. It is for this reason, and in the light of recent events, that the rules and restrictions on such advertising are in urgent need of serious scrutiny and tougher controls. Without such measures in place, it is almost impossible for the public to know the true purpose behind any of these advertisements - the message behind the message will always remain a mystery and complete story will not be told. Put simply, the public have a right to know - everything.

Left off the Invitation List

The decision of Justice Ron Young on Thursday should not have been entirely unexpected - after all the arbitrariness of TV3's decision was fairly obvious. As was pointed out in that judgment, the difference in percentage terms between the fifth, sixth, seventh and eighth placed parties was less than the margin of error - that in itself should have been sufficient to signal a need for caution. Add to that the fact that both Anderton and Dunne currently hold and, barring any seismic shift unforeseen by the political soothsayers, will continue to hold electorate seats (and probably nothing short of the death of either candidate is likely to change that). Yet in spite of this (or perhaps because of it) TV3 and the media in general have reverted to some sort of rabid state in their response to the decision. Taking on the Chicken Little mantle, the Herald's editorial predicted dire things for the freedom of the media in New Zealand as a result of Justice Ron Young's decision and its perceived precedential value. The reality is however, considerably different.

Firstly, a decision argued and reached in the space of 24 hours is one which could fairly be described as being somewhat limited, besides which, one decision does not a precedent set. Yet the media invariably insist on having things both ways - that is, their way every time. Of course everyone else should have to act fairly and the courts should supervise this - just not when it comes to their own editorial decisions. The bottom line is, like it or not, the media (particularly the television media) perform a public function at election time by promoting political issue through things like leaders' debates. As a result, they're required to act fairly (that is, not arbitrarily) in doing so. Of course, having said that, TV3 is still a private company and can, if it so chooses, remain comfortably aloof from the public arena by simply not doing things like, well hosting leaders' debates. While that may not do much for their ratings (or their advertising revenue for that matter) it is, nevertheless, a simple solution.

As far as Destiny's pipe dream of similar action against TVNZ is concerned, I don't rate their chances particularly highly. While it does seem that TVNZ is acting somewhat inconsistently (or at least that their reasoning is somewhat inconsistent) in flip-flopping between inviting two or three candidates, the fact remains that Destiny's candidate (like their party) does not have nearly the same strength of claim that Anderton and Dunne had. The one poll I managed to find for the Waiariki electorate showed the Maori Party and Labour candidates on 31% and 55% respectively and the "others" on 2%. Accepting that there seems to be some considerable degrees of fluctuation and inconsistency in some of the Maori electorate polls (for a whole variety of reasons). I think it's safe to say that they're not that inaccurate! What this means for Destiny is that any court action would be doomed to fail. While it is possible that the court would find TVNZ had acted inconsistently the outcome would remain unchanged (one of the lesser known aspects of judicial review) simply because the Destiny cannot show a credible claim to be included.

Finally a quick question - if Destiny Church and Destiny Party are essentially joined at the hip (by virtue of an attachment called Brian Tamaki) should Destiny Church advertising therefore be considered Destiny Party advertising (or at least third party advertising in support of Destiny Party)?

When So Little Says So Much

Yes I know who the two "high profile former sports stars / television personalities" are. I've heard that The Footy Show described them as "former league players" and I've even received the incredibly ingenious e-mailed image that's doing the rounds. So am I going to dish up the dirt - answer no. The fact is that the two individuals in question have name suppression - admittedly even before they've been charged with anything. The are of course good reasons for both of these things. In my industry (criminal law) we like to say that the quickest way to get your name published is to ask for name suppression - you instantly attract attention to yourself as well as the ire of the media. The cold hard reality is that most of us are nobodies and, unless your charged with possession of kiddy porn or something equally as insidious - you'll just remain another name on the lengthy list. That said, in this case had the devious duo been named, they would be sure to be front page news - the stuff headlines are made of. Unfortunately, prominence is hard to play down - scandal and celebrity make for a succulent mix. While a major event can push even page three prominence out of most people's attention - the chances of something significant enough doing that are obviously slim.

So anyway, the two sports celebrities haven't been charged yet - so why name suppression? Well it seems that they are going to be charged - it's a matter of when not if - but the police are taking a firm but friendly approach to this. Basically, because the two are currently overseas, they're not going to be charged until they return. However, there's nothing to stop them being charged now (from the sounds of things), which would lead in turn to them being arrested overseas at the request of the New Zealand police, and held in custody there until they could be extradited - a long, slow and painful process. This way, the Kiwi taxpayer isn't picking up the tab for airfares for two people who can more than afford to pay their own way.

The problem from my perspective is that, as a lawyer I shouldn't go around circumventing suppression orders - even if they don't apply to me or I think I can get away with it for some other reason. All I can really say is be patient, pay close attention to what the media are reporting and soon you will know (if you haven't already figured it out). It'll all be revealed in time anyway.

On an unrelated note, the threat of terrorism (from a cocooned Kiwi perspective) seems less alarming than the threat of anti-terror legislation. Allowing people to be detained without trial for up to three months is a swift start down the slippery slope from democracy to dictatorship. Defeating terrorism is about winning hearts and minds - of all people. Locking someone's brother, son, sister, daughter, father or mother up for three months is not going to do that anytime soon. Of course, if they just happen to be innocent - all a nasty coincidence / misunderstanding don't you know any compensation for their sufferings is likely to be a long way off. Admittedly, my attitude on this probably contrasts starkly with my attitude towards the shooting of a suspected suicide bomber last night (NZ time). According to BBC News, London police chased the man into a tube carriage, basically pounced on him and shot him five times. As you might expect he is now very dead - which is what happens when someone shoots you five times with an automatic pistol at point blank range. It turns out that he did not in fact have any explosives on him but he was wearing a thick winter-style coat (in the middle of summer) and had attempted to run from the police. In the current climate it is unsurprising that they chose to "shoot first ask questions later". Without knowing for sure that he was unarmed, the police evidently elected to "neutralise" the threat posed by the suspect. The alternative is unthinkable yet the chances of it happening were no doubt incredibly high.

I might post something controversial myself sometime soon. It's just a matter of wording it right to avoid defamation as well as double-checking the law to make sure my understanding is right. Watch this space...

The aptly -named "Token"

The cartoon series, Southpark features a character aptly-named "Token Black" who's the elementary school's only black student (hence the name). In one episode, Cartman (the fat kid) throws a rock at Token in response to some schoolyard squabble and promptly gets arrested for committing a hate crime. The rock was always a rock, but the ethnicity of Token made all the difference.

Here in New Zealand, some stupid teenage decides to go out one night and spraypaint some graffiti on buildings. The paint was always paint, the graffiti was always graffiti but the particular words used, and the buildings vanadalised - in this case, mosques, made all the difference. Even then, the matter would likely have ended with charges of "unlawfully in an enclosed yard" and "willful damage" had it not been for the timing - the day after the London bombings. Timing is everything it seems - in the law as well as in the theatre. Now he's waiting to hear whether the Attorney-General will grant permission to the police to lay an additional charge of "inciting racial hatred".

Of course had his actions been part of a protest, or even on a web site he could invoke a New Zealand Bill of Rights Act 1990 as a shield - freedom of expression being an important value in a democratic society. After all, if it's good enough to protect the National Front, why not some bored teenager? Admittedly, such a defence is not completely out of the question - although it does seem somewhat far-fetched. "It's like this your Honour - my client wanted to protest against what he perceived to be the militant nature of the Islamic faith and its manifestation in the minds and actions of those who committed the atrocious acts in London. He wasn't just out to commit mindless damage for kicks..."

Then again, why should it matter if that was in fact his intention (mindless damage for fun)? Yes there will be those who will think unpleasant thoughts about Muslims but those people no doubt did so before the bombings and have continued to do so afterwards. Spraying "RIP London" on the side of a mosque is certainly not going to change any reasonable persons perspective in a hurry. If anything, it's more likely to engender sympathy amongst your average Kiwis than anything else - after all nobody likes graffiti!

So then what's the purpose of the police in seeking to lay the charge? The main reason is simply as a deterrent to other, like-minded individuals. That said, it's hardly the heaviest book to throw at a defendant, given that the maximum penalty is only 3 months imprisonment or a $7000 fine. While the maximum fine for that offence is larger than those for the other possible offences , the level of reparation sought for the damage is probably likely to be larger than any fine imposed (presuming of course, that the individual in question has the ability to pay a fine in the first place). Therefore, it comes down to deterrence; but whether it will have any actual effect is another question.

In then end, the plan's of the police may well backfire on them. By charging him with inciting racial disharmony they are, in effect drawing more attention to the issue that there needs to be. In doing so, they are giving the miscreant the very attention he probably sought in the first place. It may even make him a living legend amongst members of his scene. The best approach, in my view, would be to treat him and the London bombers alike; that is, no differently from anyone else who chooses to commit similar crimes. Their aim is to divide through fear, intimidation, persecution and isolation. By setting them and their crimes apart from others, we are actually imitating their own actions - divide and rule. Whereas what we need to be doing is starving them of the attention they so desperately seek. Their crimes are committed against the community as a whole, our response should therefore be a community response - a united front.

Hate crime legislation will always be problematic because it involves policing thoughts and the nature of an offence can be changed by what was or wasn't supposedly going through someone's head at the time. Thus, like Cartman's rock throwing, if the attack had been on the Catholic Church across Vermont Street from the Ponsonby mosque, what was committed would not have been a hate crime - context is everything!

Bridging the Public / Private Divide

The publicisation (as in the opposite of privatisation) of Auckland Central Remand Prison (aka ACRP - the big cream-coloured block next to Mt Eden Prison) leaves me with mixed feelings. On the one had I'm morally opposed to private prisons - the idea of people making profits from prisons repulses me. Yet at the same time, the fact that it was well run is simply indisputable. As the Managing director of GEO New Zealand Ltd noted in the Herald his company had delivered far more than was required under the contract to run the prison and set a benchmark for performance. In fact the mark set has yet to be reached by any of the other prisons in the Auckland region. Admittedly money may be part of the problem - as one Corrections Officer I raised this with wryly noted "if you pay peanuts..." That said, all public sector corrections officers receive the same levels of remuneration - yet the quality delivered varies from institution to institution.

Mt Eden (aka "The Rock") is a basket case. The "check-in" area for visits is ridiculously cramped, the staff are surly (on good days), and the atmosphere reminiscent of a medieval dungeon! Needless to say, suicide and other forms of self harm are a major problem. On the other side of the bridge, Auckland Prison at Paremoremo (East division) is somewhat better (although it would be difficult to be worse). Arranging visits (and the visiting system generally) is easier although there is still a serious lack of communication between different parts of the place. While its World War II military base appearance does allow for certain creature comforts such as natural light - this, along with fresh air, is still in limited supply. On the upside, the inside is actually warmer than outside! Finally, Auckland Prison at Paremoremo (West division) tops the list of also rans. Here inmates can actually see (and, dare I say it, feel) grass and other aspects of nature. Indeed, the outdoors generally is something that they can sample (unlike their eastern counterparts). That said, the place still resembles the land the time forgot.

I'm not under any illusions about inmates belonging behind bars - any more than most inmates themselves are. Yet there is something to be said for a society which treats its inmates like what they are - human beings. Yes it would be easy to lock them in some coal hole somewhere and forget about them but it would be nice to think that we've actually moved beyond what was popular in the 19th century. ACRP had the lowest suicide rate of any prison in New Zealand - zero. Hopefully, the Corrections Department won't make a mess in the nice "new" prison they've just been given.

A final thought: the term "penitentiary" is derived from the way prisons were once run. Inmates would be kept in solitary confinement - often with hoods over their heads to block out any visual or aural stimuli. The idea was to make them think about their "sins. In fact, most of them simply went insane. Sometimes I wonder how far we've actually come?

Work in Progress

After an all too long hiatus from blogging am looking to brush off the cobwebs and get rid of that mothbally smell.

An all new number60 coming soon...

UniVARsity - Whaddarya?

The news that Unitec is suing the government for $3.5 million in damages signaled a significant turning point in their "long march" towards university status. Although it's been clear for a while now that the past permissiveness towards aspirational tertiary institutions were long gone, Unitec's persistence with their campaign and the latest ugly turn show that, as far as Unitec's concerned, the past is anything but forgotten. The halcyon days of technical institutes "graduating" to university status (brief though they were) reached their zenith with the conferral of the great "U" upon the then-Auckland Institute of Technology. With the susbstitution of a single letter their dreams were fulfilled and the hopes of Unitec (as the leader of the wait-list for this oh so exclusive club) raised. However, those hopes were soon to be short-lived as a change of government brought about a distinct cooling towards the idea of vertical mobility in the social strata of tertiary education. The New Zealand Qualifications Authority "stonewalled" their application in 2000, leaving them in a no-mans-land between the polytechnics and the universities.

The problem, according to Unitec, lies in the government's "very traditional" view of what a university is; a view which they say is "seriously out of touch" with international developments. Of course, this fighting talk is a reaction to the government's failed attempt to place a moratorium on the number of universities by way of special legislation (which could have been called the Education (Unitec Will Never Be a University) Amendment Bill). Ultimately, the government failed to muster the numbers and the sky still remains the limit. But what many people are asking (even the Herald in their self-asserting, bluff if you don't know, sort of way) is what is this really about - or, to put it another way, what's in a name? Simple - dollars, dineeros, moolah, shiny stuff, our mutual friend, the green light, etc... By achieving (or more correctly, being granted) accreditation as a university, Unitec can increase the numbers of international students it attracts, the quality of staff it attracts, and with them, more external research funding from private sources. Oh, and its students get to say they go to university - image and appearances are very important (just ask the Universal College of Learning - formerly known as Taranaki Polytechnic!).

Part of the issue is of course, the question of what is a university? Traditionally, the role of a university has been focused around scholarship and higher learning - commercialism is a beast of the modern era. However, in the pursuit of the almighty dollar the traditions and touchstones of old have fallen (or rather, been deliberately discarded) by the wayside. These days, as parodied by Bob Jones in his novel Degrees for Everyone, it's about getting bums on seats; so the focus shifts to what sells. In particular, it's about what sells overseas in the global tertiary education market. Unitec, unsurprisingly, is after a greater share of that market and no doubt feels that it would be able to more competitive with university status. How much of a difference this would actually make - I doubt there are too many overseas students yearning to study interior design in New Zealand. While I have heard of at least one overseas student undertaking an automotive engineering course. I suspect his decision to study here more more based on social reasons rather than academic ones.

In the end though, even if Unitec does meet the waffly legislative criteria for university status, the question that has to be asked is do we need (yet) another university? One might equally ask where does it all end - will all techs (that can) eventually want to become uni's? Maybe the best answer is that techs should stay as they are, doing what they do. There's obviously a domestic market for non-university tertiary education - not everyone wants to do a PhD in floristry - that could be left the loser in this battle for betterment. The idea of a "university of technology" is an interesting one but probably doomed to create confusion. The American community college concept has some appeal however. As it stands - AUT aside - NZ's universities could teach more than they do without debasing the university concept. At the same time though, they teach very little that they shouldn't. If Bob Jones' premonition is to stay fully fiction then this is the way that things should be.