Compulsory student association membership is now a thing of the past in New Zealand thanks to the passing of the Education (Freedom of Association) Bill.

One of the things that I’m really passionate about is first generation human rights. These are the kinds of rights that make up the bedrock of social justice. A fair society is unimaginable without them. Among such rights are thing like the right to life, the right to freedom of speech and opinion, the right of all people to be treated as equals before law, you get the idea. In a free society for a public figure to advocate denying people of these rights is – and should be – immediate political suicide. To undermine first generation human rights is to eat away at our basic regard for the dignity of persons. Indeed it is precisely when we see a society with patches of these rights missing that our “dictatorship” sensors start to go off.

For a shockingly long time, University students in New Zealand were denied one of those rights. Article 20 of the Universal Declaration on Human Rights reads as follows:

(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.

Likewise, section 17 of the New Zealand Bill of Rights Act 1990 is headed “Freedom of Association,” and it is to the point: “Everyone has the right to freedom of association.”

Up until today, New Zealand students, as a rule, didn’t have freedom of association. They were required – by law – to join a student association, which gathered the millions each year, spent it as it saw fit with little accountability to the student body, had executives who very often thought that speaking on behalf of students simply meant supporting left leaning policies (no matter what students themselves might actually think), with an absolute guarantee that no matter what they said or did, the money would come flowing in next year. It had to – it was the law.

Today that changed. The Education (Freedom of Association) Bill passed its third reading in Parliament and will become law in New Zealand.
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Hat tip to M and M for bringing this news story to my attention.

Remember that controversy over the anti-smacking law? The short story: The law change in New Zealand meant that absolutely any force of any kind used in the discipline of a child (such as a spank, or moving a child by force to his room, or anything else involving force) is a crime and there is no legal defence that can be made against the charge of assault in such cases. Realising that if actually applied, the law would be horribly unjust and crazy to boot, the current Prime Minister John Key (who was not in government when this law was passed) sought to put the mind of Joe public to rest by advising police and social agencies not to get carried away (my paraphrase). I’ve explained already that this is a fundamentally wrong approach to law, and I won’t revisit this here.

Fast forward to a story that appeared in today’s New Zealand Herald:

Judge turns tables on driver’s schoolboy accuser

A schoolbus driver was taken to court for grabbing the arm of a rowdy boy who would not stop pulling a girl’s hair.

But the judge threw out the charge – and had a policeman take the 12-year-old boy to the police cells as a warning.

Jim McCorkindale, 70, of Gore in Southland, told the Weekend Herald that while dropping off children last July, he saw two boys pulling the hair of a girl and got out of his driver’s seat to try to stop it.

“I went over and touched the boy on the arm to attract his attention, and that was the assault.”

When the boy did not respond to being told to stop, “I threatened to hit him in the ribs, and he flinched and let the kid’s hair go to protect his ribs”, Mr McCorkindale said.

“But I never touched him again.”

The boy had continued misbehaving after Mr McCorkindale returned to his seat.

Article continues below

Children on the bus called the police and he found officers waiting to talk to him when he finished his run.

When police rejected the option of diversion, Mr McCorkindale received a court summons.

But in the Gore District Court, Judge Kevin Phillips threw out the charge.

Instead, he told the boy he should be “thoroughly ashamed” of himself and had a policeman take him to the cells, the Southland Times reported.

Mr McCorkindale said he found it disgusting that he was charged in the first place.

“You can’t do a bloody thing,” he said. “It’s better to hop out of the bus and leave them to it. See nothing.

“The days of sit down, shut up, do as you are told, are gone. When I was going to school, you did what you were told. Now, you sometimes do as you’re asked – if it suits you.”

That’s right.  He took hold of the arm of a boy who was pulling a little girl’s hair, and for this, the police charged him with assault. These are the police who are being given the power to decide whether or not the law should be applied in cases of parents who use force in the correction of their children.

Feeling safe?

I’m going to start by painting pictures of two viewpoints. It might not be clear at first why I’m doing it, but just stay with me, all will be explained shortly.

Moral Relativism

On the one hand imagine a group of people who are moral relativists. Moral relativism is the view that there are no transcendant moral facts, but only relative moral perspectives. Regardless of one’s view of morality, pretty much everyone believes that a plurality of moral perspectives exist. This is just to say that not everyone agrees on moral issues – hardly a controversial observation. Different individuals and different cultural groupings hold different beliefs about morality. But moral relativists go much further than this simple factual observation. Moral relativists believe that this diversity of moral beliefs is reflective of the fact that there are really no universal moral facts. People hold different perspectives on morality, and those perspectives are all equally correct.

Relativism can be subdivided into two basic kinds: Subjectivism and conventionalism. Subjectivism is an individualistic take on relativism, where every individual person determines their own morality. Not only does a person decide what they believe about morality (a phenomenon that we all observe), but a person literally determines what is morally right for them. The boundary of moral truth is the individual. What is really moral within those boundaries depends on that individual, and is not binding on anyone beyond that boundary. You might hear overtones of subjectivism from people whether they have actually decided on subjectivism or not; “Abortion: maybe not right for you, but right for me!” “Don’t impose your moral views on other people, each person has to decide what’s right for them.” “If you think that your morals are right and mine are wrong, then you’re just being narrow minded.” You get the idea.

Conventionalism is more of a “group think” approach to relativism. Here, morality is the custom, consensus, or collective opinion of a group – perhaps a cultural category, tribal group, society, or some other kind of cluster of multiple people. In conventionalist relativism moral values are determined by one’s group, and what is deemed right really is morally right for that group, even if not for others. Different cultures will therefore have different moral codes, and what makes this a relativist approach is the further claim that none of these moral codes can truly be said to be morally better than any other, since there is no morality that stands over and above all different cultures. If I were a conventionalist, while I might not personally like Sharia law, female circumcision or honour killings, I would have no way of claiming that there was anything morally wrong with it, since it is acceptable to those cultures that practice it, and morality is constructed by cultures. As soon as I make the claim that other cultures ought not do those things or that they should conform to the values cherished by my culture, I have overstepped the mark, and I am no longer acting like a relativist.

The opposite of moral relativism is moral “objectivism” or moral “absolutism.” It’s the view that there really are moral facts – claims that are absolutely true, whether we follow them or not. Moral facts, being facts and not conventions, transcend individuals and cultures, much like, say, laws of science. I think that relativism is an absurd position to take, and it is no accident that moral philosophers have no time for it. It’s no accident that, as Chris Goawns noted, moral relativism has the rather undesirable distinction among ethical viewpoints “of being attributed to others, almost always as a criticism, far more often than it is explicitly professed by anyone” (see the “Moral relativism” link above). However, this blog entry is not intended as a critique of relativism, so I will not introduce reasons why I think it is wrong. The first thing I have set out to do is to paint a brief and accurate picture of what moral relativism is.

Human Rights

OK, that picture is painted. As promised, here is the second picture I want to paint. Imagine a group of people who are… there’s probably a really good one-word noun for it, but I can’t think of one off the top of my head, but we’ll call them people-who-believe-in-human-rights (I’d use the term “humanitarians,” but that’s a little broader than just a concern for rights). According to these people, everyone, everywhere, in all nations and cultures – all people – have some basic rights. These rights are basic things in that they’re fundamental. Human rights are not the product of human laws. In fact, these people say, it’s quite possible to have a collection of laws that are fundamentally wrong because they are contrary to human rights. Perhaps those laws deny people the right to freedom of speech or religion. Those laws might deny women to show their face in public. Perhaps those laws forbid journalists to publish anything that is unsupportive of the government. According to these advocates of basic human rights, there would be something terribly morally wrong with these laws, whether the laws were passed here in New Zealand, in Australia, in Japan, in Afghanistan – anywhere in the world. Rights are things that ought to be left alone so that people can enjoy them, and to do otherwise is wrong, whoever you may be. I’m not going to paint a picture that is so detailed that it requires you to imagine each and every one of the rights that these people believe in, for now it is enough just to say that they believe that there are some human rights of an unspecified number.

OK, the pictures have been painted. Now comes the claim that I want people to accept: These two pictures exclude one another. You cannot consistently think of yourself as belonging in both of these groups of people at the same time. You might believe in human rights, or you might be a moral relativist (or perhaps neither of these things apply to you), but you cannot consistently be a moral relativist and a believer in human rights.

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Don Brash - We were wrong

The Foreshore and Seabed Act 1994 was a moral travesty.

The Treaty of Waitangi – an agreement entered into by Crown and Iwi (Maori tribal groups) – made the following guarantee:

Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession.

Over the years, various claims have been made that this pledge in the Treaty has been violated. The Waitangi Tribunal was set up as a court that exists specifically to review claims of Treaty violation, and each claim is evaluated on – well, a case by case basis, quite literally.

The Foreshore and Seabed Act was an affront to due process. In fact, it abolished it altogether. In a move of remarkable corruption, the Crown – one of the parties to every dispute over alleged Treaty breaches, through Parliament, passed legislation declaring by Statute that the entire foreshore and seabed (parts of which may at times be subject to Treaty disputes) is the sole property of the Crown. Take a moment to reflect on the judicial evil and the abuse of power commited here.

I can understand that the Labour party passed this legislation. The outlook of the left is one in which individual rights can fairly easily be overturned in the interests of a larger group. In fact that, in my view, is one of the factors that contributes to just how “leftist” I will regard a point of view. That the National party at the time supported this move just revealed to the nation (a nation that, showing its ugly and frightening side, largely supported the law change) that they are anything but the opposite of Labour. This fact has been borne out as National moved into power as well. They may not be as far to the left as the former Government, but they are no conservatives by any means.

I am very relieved, therefore, to see signs that the current National led government is planning on dumping this draconian law. It cannot happen soon enough. A public apology – not just to Maori, but to all New Zealanders made vulnerable by this precedent of due process being thwarted by legislation – would be nice (but let’s not hold our breath).

Glenn Peoples

A parliamentary committee has recommended that the partial defence of provocation should be abolished. I explained in an earlier blog why that’s a bad idea.

However, the responses that the members of parliament have given to the very sensible concerns over the abolition of this partial defence confirm my worst fears about the whole process: They really don’t understand the laws they are trying to have changed. It’s the anti-smacking law all over again.

One concern raised was that the abolition of the provocation defence is an affront to women who have been subjected to years of abuse at the hands of their partners.  The glib reply of the parliamentary committee to this concern is shocking in its level of both expressed ignorance and injustice: “It would be more appropriate for them to rely on self-defence, which could result in an acquittal rather than a manslaughter conviction.”

Self defence? No. They really ought to have spoken to a few lawyers or judges in this process. The actions of a battered spouse who lashes out do not meet the legal criteria of self defence by virtue of the fact that the spouse is a battered one. No woman in a New Zealand court has been found not guilty by virtue of self defence on account of being a battered wife. It is also highly dubious as far as justice is concerned to assume that a woman who kills her husband and who is a battered spouse should be acquitted rather than receive a lesser conviction.

Not only would such a course of action not “be more appropriate,” but 1) It is very unlikely to ever succeed at all, and 2) his highly questionable on ethical grounds.

What is more, the parliamentary committee has also (whether they intended to or not) granted that they are attempting to seek a change that makes little difference. The new report says:

The committee’s report said that the law change would still allow judges to consider provocation as a mitigating factor in sentencing.

This would mean in extreme cases someone found guilty of murder could get less than life imprisonment if the judge believed that sentence was “manifestly unjust”.

In other words, instead of a reduced conviction, showing that provocation was a factor would result in a reduced sentence. When the provocation defence was highlighted when it was falsely appealed to by convicted murder Clayton Weatherston, outspoken politicans and media personalities were all but frothing at the mouth at this terrible defence that people were using as an “excuse” for murder (setting aside the ignorance involved there – it was never an excuse in law). Now the reformulated version of this outrage is that provocation can serve as a mitigating factor in obtaining a lesser sentence. Somehow that doesn’t draw the howls of outrage.

It’s a meaningless exercise that has done little but change labels around. The partial defence of provocation should remain because it is fundamentally just. This is just another case where politicians are taking away the clarity of the law and loading the scales more in favour of the “discretion” of the system.

Glenn Peoples

I’m not the kind of guy who tends to be fazed when people – even people for whom I hold a good deal of respect as insightful thinkers – do not agree with me. However, I’m also someone who likes to see people that I respect as insightful thinkers expressing the same conclusion as me. I like that kind of affirmation. I guess comparing these two facts just serves as evidence that I’m more likely to interpret evidence as suggesting that I got something right than that I got something wrong – even when I perhaps should!

Matt from MandM gave me a book for Christmas in 2008, and I’ve only just now started properly reading it through. The book is Justice: Rights and Wrongs by Nicholas Wolterstorff, and it’s a substantial and careful defence of his belief that justice consists in upholding inherent human rights. As I slowly progress through the book (I don’t get nearly as much time to just read as I would like) I’ll be posting my responses and comments here at the blog. I’ve got an immense respect for Professor Wolterstorff as one of the finest Christian philosophers around today, and one of the finest philosophers at all writing in political philosophy, justice and the role of religious conviction in the public square. Scanning the table of contents I can already see some areas that may provoke a few comments (either for or against what I read). His denial that rights are grounded in duties and his claim that rights are not conferred by God but exist because of human worth will prompt some close queries on my part as to whether Wolterstorff provides a theory of value where worth is not conferred by God – but these will have to wait until I have read that far into the book.

To the point – I was very pleased (in the entiely self-serving pat-myself-on-the-back sort of way) to see Wolterstorff saying in print in 2008 what I had written in my doctoral thesis in 2006 (which was later completed in 2007). I quote here from pages 15-16 of Justice:

A few paragraphs back I mentioned John Rawls. Such is the fame of John Rawls’s Theory of Justice that almost everyone who picks up this book will want to know what I have to say about Rawls. Apart from incidental comments, I do not have anything to say about Rawls. The reason for my silence is straightforward. Though Rawls’s theory of justice is an inherent natural rights theory, he does nothing at all to develop an account of such rights. He simply assumes their existence. My interlocutors will be those who do not just appeal to such rights but have something to say about them.

And:

Ronald Dworkin argued that when one looks beneath the surface [of Rawls's theory], one finds inherent natural rights at the basis of the theory. Fundamental to Rawls’s theory is the principle of equal respect for all members of the social order (or for all members who can engage in the relevant “bargaining”). The question is, what is the basis for this principle of equal respect? Dworkin’s conclusion is that “justice as fairness rests on the assumption of a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice.” Dworkin’s argument is almost entirely deductive: given other things Rawls says, this has to be his view. But there are passages in Theory of Justice that confirm Dworkin’s interpretation—though it has to be said that Rawls was evidently very reluctant to bring his appeal to inherent natural rights (and duties) to the surface, which is why most readers miss it.

And now from my thesis:

Almost incredibly on the one hand, but understandably on the other, Rawls never really argues that people are equal in any way, shape or form. I say “understandably” because Rawls does not, by all appearances, want to get bogged down in theoretical philosophical considerations, but simply wants to get on with the business of talking about how his theory of justice applies (see for example in the next chapter, page 205, where I note Rawls’ explicit claim that this is so). But it is just obvious that basic egalitarianism is an essential part of Rawls’ theory. As noted in the introduction to the new liberalism, Rawls’ most significant contribution to political science is the original position, that imaginary scenario where we, as relevantly wise and informed people, create a constitution when we are stripped of the particular information about what circumstances we will find ourselves in, such as wealth, geographical location (provided one is in the society in question), and apparently, beliefs about religion, philosophy, and much that we, in the real world, take to be important (but not, incidentally, the fact that we believe political liberalism to be just). This way we will refrain from advocating any social arrangement that favours any person on account of his wealth, geographical location or religion etc. The underlying rationale for this is that nobody should be unfairly advantaged over anyone else since we should all count equally in society. When it comes precisely to the claim that we are equal in Rawls, however, Amy Guttman’s question about Rawls’ device of the original position and the veil of ignorance must be answered by affirming the latter of the following two options: “Does it provide an Archimedean point of justification or does it simply suggest a framework that organizes the firmest intentions of someone who is already a committed egalitarian?” (Amy Guttman, Liberal Equality (Cambridge: Cambridge University Press, 1980), 120.)

Rawls apparently did not think that since equality is necessary for political liberalism, it is itself subject to any of the truth tests or justificatory obligations that other beliefs must meet.

Justice is the first virtue of social institutions, as truth is of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. Therefore in a just society the liberties of equal citizenship are taken as settled.

Rawls, A Theory of Justice (Oxford: Oxford University Press, 1999, 2nd ed.), 3.

But the claim that we are equal is surely – even if true – a theory. If any theory no matter how elegant must be rejected or revised if it is untrue, then the theory that citizens are such that they should be regarded as equal must also be rejected or revised if it is untrue. Notice that Rawls’ requirement for a theory’s acceptance is higher than the requirement for a policy’s endorsement. No policy should be endorsed unless it can be justified to other citizens in terms he or she accepts, but no theory should be accepted by us as philosophers and theorists unless it is true, regardless of who we could persuade to accept it. But Rawls does not argue that basic equality is true, nor does he spell out what it is. At most, he tells us what we should do because of equality. In the above quotation, the cynical reader might translate it to mean “no theory should be accepted unless it is true, or unless I need it to support my theory.” Rawls appeals to the fact of equality on many occasions. He says that the way to think of justice as fairness is to think of it as that constitution that would be reached just if people made the relevant decisions in the original position, “this position of equality” (Rawls, Political Liberalism, 102). It is a position in which all parties are “equally represented as moral persons,” unaffected by “arbitrary contingencies” such as, among other things, religion (Rawls, Political Liberalism, 104). Says Dombrowski, “the original position is meant to model what claims to justice ought to look like in the real world, for example, by modeling the idea that each is of equal worth” [emphasis added]. (Daniel Dombrowski, Rawls and Religion: The Case for Political Liberalism (Alany: State University of New York Press, 2001), 13.). In other words, it shows us what equality in practice would look like in the process. “If the original position is to yield agreements that are just,” Rawls tells us, that is, if it is to work at all, “the parties must be fairly situated and treated equally as moral persons.” (Rawls, Political Liberalism, 122). Quotations could be multiplied, but it is clear that Rawls’ most important contribution to political thought is one that works (setting aside for now problems it might have) just if equality is true. It is a game, and equality is one of the rules. Equality, in Rawls, makes his theory work. He needs it to be a fact, but it is prior to his theory, and never defended by it.

Yes, I used more words, but the point is roughly the same nonetheless.

Glenn Peoples

Larry Baldock, the leader of New Zealand’s Kiwi Party, was the main organizer of the recent referendum on the anti-smacking law (the ammendment to section 59 of the crimes act that, to cut a long story short, makes it a criminal offence to use any force in correcting one’s children). Kudos to him for that.

However, now that the Prime Minister has – in whatever nice sounding language he likes – revealed that he is not going to act on the outcome of that referendum, Mr Baldock has announced that he is going to begin collecting signatures to have another referendum.

Kiwi Party leader and organiser of the Anti-smacking referendum announced today that he had contacted the Clerk of the House of Representatives concerning approval to lodge an application as a proposer of a new Citizens Initiated Referendum.
…
“The final form of the question will obviously be the subject of public submissions as part of the process the Clerk is required to follow under the CIR Act 1993,” said Mr Baldock, but the wording of the question would focus on the issue of whether Citizens initiated referenda seeking the repeal or amendment of any law passed by parliament should be binding.

In short, because the government is not acting on the will of the people in this referendum, the Kiwi Party wants to see all citizen’s initiated referenda become binding on the government. The government, under those circumstances, is bound by law to do what the people have asked for, whatever it may be.

No. A thousand times, no! I can understand Mr Baldock wanting the government to act on the results of the referendum on smacking. I do as well. The anti-smacking law was unpopular because it legally restricts parents from doing something that is not wrong and which is normal and not harmful, the law makes no distinction between reasonable and unreasonable force (read: between discipline and abuse), and the current law is not as clear as it needs to be to actually tell parents what is allowed and what is not. In short, I think the government should act on the referendum outcome because I think it is a right outcome, and the government should have the humility to admit it.

However, to react to the government’s failure to act by saying that the government must always be bound by the will of the people in a referenda is just flat out terrifying. Let’s turn the tables. Let’s imagine that the old, sensible version of section 59 of the crimes act was still in place. If only! Now let’s imagine that Sue Bradford had managed to dupe enough people into supporting an ammendment banning smacking that a referendum was held and the majority of New Zealanders supported her law change (she wishes!). Would Mr Baldock want that wish to be binding on Parliament? Or imagine living in Germany, where homeschooling families are treated like criminals, parents are imprisoned and children removed from the household. If the majority in a referendum supported the amendment of existing education law, cementing the right of authorities to immediately and permanently remove children from families suspected of homeschooling, should the state be bound to obey?

Mr Baldock thinks that his proposed change would be a boost for liberty and a reduction in the power of the state. After all, we need it here, he says, because “New Zealand is the only nation as far as I am aware, that does not have a written constitution and no second chamber for legislation to pass through before becoming law.”

Here’s the problem: The fact that New Zealand has no one firm constitution (actually it has a constitution, made up of various pieces of legislation, but I won’t bother explaining all that just now), is what makes this proposal so worrisome. If we did have a constitution of the kind Mr Baldock refers to, one that placed limits on what the government can and cannot do, I could live with it (provided the constitution was a just one). That way, if the people wanted something (e.g. an ammendment) that was unconstitutional, the referendum result could simply be struck down. But this proposal, this terrible proposal, would give my fellow citizen literally unlimited power over me, my education choices for my children, my church, my income, my employment conditions, and everything else that is mine!

Governments should govern on principle, and that principle must never be “I leave this space blank, to be filled by whatever the people tell me they want.”

One comforting thought is that even if there is a referendum on whether or not referenda should be binding, it won’t be binding.

Glenn Peoples

The guilty verdict of convicted murderer Clayton Weatherson today came as good news. However, some people, including the father of the victim Sophie Elliot, are now saying that the defence should not have been allowed to use the defence of provocation. In fact, they are saying that there should exist no such defence in law.

Women’s Refuge chief executive Heather Henare joined Mr Elliott in calling for the provocation defence to be reviewed.

“Because of the way the defence was run, this trial became a perverse opportunity for a killer to continue to persecute his victim and her family after her death.

“The provocation defence is based on absolutely archaic notions about violence. Once upon a time, society accepted that an affront to male privilege or dignity was a reasonable excuse to fly into a homicidal rage.

“This trial turned justice inside out. The killer became the victim and Sophie Elliott was portrayed to us all as he chose to describe her. Unfortunately for Clayton Weatherston the jury didn’t buy it and nor did the hundreds of thousands of New Zealanders who watched him giggling on their televisions.”

Unfortunately, Ms Henare’s rather hasty comments display a lack of understanding of the law and a distinctly sexist view of legislation surrounding homicide.

The provocation defence does not suggest that an affront to “male privilege or dignity” is “a reasonable excuse” to kill. In fact even when the provocation defence is successful, the killer is not excused as Ms Henare claims. Provocation is and has only ever been a mitigating factor, never an excuse. What it says is that there is a difference between the premeditated murder of an innocent person, and the immediate reaction to a situation where one person provokes another so extremely that they cannot be expected to respond like the rational person. For example, a man has molested a woman’s daughter in the past, and he now horribly taunts her about it to her face, describing his revolting acts in detail. That would probably count as provocation.

Take note: To say that there should be no defence of provocation is to say that there is no moral difference between a woman like this who kills and a scumbag like Clayton Weatherston who committed premeditated murder against an innocent young woman. That, dear readers, is a truly disgusting claim and I defy anyone who makes it to defend it.

Of all people, Ms Henare should understand this. Women’s refuge and women’s groups are familiar with and sympathetic toward women who have been subject to prolonged abuse by their partners, only to finally snap and lash out in a calm moment. I’m not at all implying that I think this behaviour is justified, and I certainly do not believe that this is anything like what Clayton Weatherston did (after all, I don’t think he was provoked), but it sounds very much like Ms Henare is showing her bias here.

However it is surprising how pervasive this misunderstanding – or at least serious misuse of language – really is. President of the Law Commission Sir Geoffrey Palmer is himself guilty of doing it. In his call for the repeal of the provocation defence, he acknowledges that it is a partial defence (as Heather Henare does not), but even still he makes his appeal sound more rhetorically powerful by repeatedly saying things such as that the defence of provocation does not “offer a valid excuse for murder.” Once again, it is not and has never been intended as an excuse. Never.

Ever the enemy of due process, the Labour Party is also calling for the abolition of the provocation defence.

This kind of overreaction is common in New Zealand, but quite misguided. The line of thinking is that since Clayton Weatherston’s lawyer tried to use it, and since Clayton Weather was clearly not provoked, the defence of provocation should be repealed. What nonsense! What if his lawyer had been silly enough to claim that the killing was in self defence? Since it clearly was not self defence, would that prompt us to cry for the abolition of that defence? Clearly not. This is just like the ill thought out argument of those who reason that “since section 59 of the crimes act allows parents to use reasonable force when correcting children, and since some people beat their kids and then falsely claim that it was reasonable force, the section should be abolished!” It’s bad reasoning in that case, and it’s bad reasoning here as well.

Was Weatherston provoked? No, as the court easily found. Is anyone ever provoked? Undoubtedly. That Weatherston’s lawyer falsely put her client in the same category as those people is no excuse to rob those people of every defence to which they are entitled. What’s sad is that any disagreement with the many voices calling for the abolition of the provocation partial defence is likely to be seen as sympathy with Weatherston, in spite of the fact that I’ve said that he was not provoked at all. The fact is I think he should be executed. I’m not bothered by the herd mentality, because I’m more interested in what is right than in what is popular.

Glenn Peoples

Today, as I expected, Clayton Weatherston was found guilty of murdering his then girlfriend, Sophie Elliot.

He took a knife to her place, locked the door after him, stabbed her 216 times (in full view of her horrified mother), then mutilated parts of her body. The defence argued that he was provoked into doing all of this. Predictably, the jury were not persuaded (thank God).

Prior to the verdict, I’ve heard a few people say things like “he must be sick in the head” or “he must be insane. No sane person could do that.” I’m relieved that the court did not think this way. This line of reasoning presupposes that human beings who are not unwell simply aren’t capable of being gratuitously evil. Guess what? We are.

I figured this sort of empty threat would be made, which is why I posted my earlier blog entry on David Bain, Reasonable Doubt and Defamation.

As is no secret, not everyone agrees with jury verdicts. The David Bain trial is no exception, and some people still believe that David Bain murdered his Family. Some of them have even started a Facebook group  called “David Bain is Guilty” for people who think that this is true.

Apparently some media law experts think that this makes those people vulnerable to a defamation suit. Their reasons for saying so, however, are not at all compelling. According to media law lecturer Ursula Cheer, even a small note on a person’s facebook account indicating that they were part of this group could be an act of defamation. Wellington media law lecturer Steven price had this to say:

“The main defence would be, is it true? And if David Bain wanted to test that in court he could sue for defamation.”

The person making the claim would then have to prove on the balance of probabilities, that Mr Bain did it, Mr Price said.

“And that’s very different from a standard of reasonable doubt.”

Yes, it is a different standard from reasonable doubt – and that works in favour of the person making the accusation. It means that a person making the accusation doesn’t have to prove David’s guilt beyond reasonable doubt. It means that they would only have to show that it was more probable than not, which is a lighter burden of proof. Saying “and that’s a very different standard from a standard of reasonable doubt” as though that should be a daunting thing for the accuser is just strange. But secondly, that’s not the main defence at all. As I noted in my earlier blog on the subject, the accuser does not have to show that it’s true at all. All he needs to show is that it’s a belief that he reasonably holds, which is a much smaller burden of proof again.

These threatening sounding warnings carry no real weight. If you really do think that David did it, then as long as you hold your belief reasonably, you are allowed to say so in whatever forum you like.

Glenn Peoples