The Electoral Finance Act 2007 was a real bone of contention when the Labour Government introduced it. The long and short of it was this: It was a way of preventing private citizens and groups from spending however much of their own money they like to encourage people to support political parties or their policies leading up to an election. The Act made it illegal for any person or group “to spend more than NZ$12,000 criticising or supporting a political party or taking a position on any political matter, or more than NZ$1,000 criticising or supporting an individual member of parliament, without first registering with a state agency, the Electoral Commission.” That registry is public information and can be read by anyone. If you spent $1,001 criticising the Prime Minister leading up to an election, her supporters, whether politicians, union bosses or common thugs (Helen Clark was Prime Minister at the time) would know who and where you were.

That alone is fundamentally wrong in a free society. But what’s worse, the Bill limited private spending to $60,000 – although this was increase by recommendation of a Select Committee to $120,000 before becoming law. It may be your money, and your opinion, but how much of it you can use was not your decision. This was a clear free speech violation.

Thankfully, the Act was repealed in March 2009.

Not so thankfully, those experts in tinkering with things until they break otherwise known as Government Ministers are at it again:

Justice Minister Simon Power has just announced changes to the laws governing campaign spending during elections, and details of next year’s referendum on the MMP electoral system.
Under the changes, people who spend more than $12,000 on parallel campaigning will have to register with the Electoral Commission. The register will be publicly available.
But unlike under the previous Electoral Finance Act, which was repealed by National last year, parallel campaigners such as unions – or the Exclusive Brethren – will not be limited to spending $120,000 during the campaign.

Is it better than the Electoral Finance Act? Yes, but let’s not get carried away. It is not generous to allow people to spend their own money expressing their political viewpoint. They should have that right without any dispute. Not limiting that right in this case simply amounts to refraining from a great injustice. But why impose any injustice at all? Why make people who want to advertise political values tell everyone else who and where they are? Not to keep them honest, for there are already laws in place against false advertisement. Why then?

What is more, “the Government has rejected proposals that would have allowed third parties to advertise on television or radio during campaigns.” Just so that you realise that this is as bad as it sounds: Private businesses and private individuals are forbidden by the government from doing business involving the expression of political values during election time.

It’s like dumping Heroin and taking up Cocaine. Arguably not as bad, but why would you?

Glenn Peoples

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

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

Ian Harris tells us (“Honest to God,” Dominion Post, [Dominion Post. Saturday July 11, 2009. Page B5], reproduced at the YesVote website) that we should reject the “harsh views” on child rearing found in the Bible.

Mr Harris, unfortunately, joins many of those who promote the criminalisation of good parents by muddying the waters. He notes, for example, that someone who defends the right to use physical discipline also believes that children (like adults) are sinners. He then announces that since “progressive” Christians (by which he seems to mean those who no longer accept Christian theology) realise that this is based on an antiquated view, we should likewise reject the right to use physical discipline and we should criminalise those who do.

It is difficult to interact charitably with those who support the ban on smacking if this is the contorted way they are going to reason about the subject. Whether or not one thinks the theology held by some supporters of the right to use physical discipline is correct is quite a different matter from whether or not one thinks they ought to be made into criminals, surely!

Unfortunately again, Mr Harris attempts to use his platform as a mouthpiece of liberal (what he calls “progressive) Christianity to give credence to scientific claims that are obviously subject to great dispute. He makes the sweeping claim that this nebulous thing called “modern research” (while he cites no actual studies) shows that although corporal punishment does help bring about short-term compliance, it does not help a child to “internalise positive values for the longer term.”

I am constantly bemused by the way in which conservative religious spokespeople are ridiculed even when they do cite research, but obvious nonsense like this can be peddled by the liberal voices without so much as a single scholarly citation, and nobody is expected to bat an eyelid.

But even if what Mr Harris says is correct, the implication is that corporal punishment in and of itself has short term benefits and no long term ill effects. Hardly something to be prosecuting people for! The reality is that the effects he cites are perfectly compatible with the good of corporal punishment. Such punishment usually is administered to children when they are not willing to reason or reflect on the long term consequences of their actions. It is for when children are being unruly and unwilling to listen. Circumstances in which they are willing to do so are the circumstances under which corporal punishment is less necessary (meaning that the older a child becomes, the less frequent a smack will become). None of this gives the careful reader any reason to think that the occasional smack is immoral, much less worthy of criminal prosecution.

Bereft of compelling moral or scientifically grounded arguments, Mr Harris turns instead to arousing prejudice against the religious convictions of those who disagree with him about child discipline. Unable to find anything strong enough in what all Christians consider their holy book, he reaches into the book of Ecclesiasticus (part of the so-called “apocryphal” writings that did not make up part of the Hebrew canon) to find the claim that “he who loves his son will whip him often.”

But not only has Mr Harris strayed into literature that the so-called “fundamentalists” (most of whom would identify as conservative Protestants) that he attacks do not even regard to be part of the Bible at all, he has clearly sought out the most extreme translation of the verse that he can find. He conjures up grizzly pictures of leering parents towering, horsewhip in hand, over the broken and bleeding bodies of little children with misleading language like this.

But just a few minutes research would dispel this attempt. The New American translation reads, “He who loves his son chastises him often.” The Douay Rheims translation (the Catholic Bible, which does include this book as part of the canon) reads “He that loveth his son, frequently chastiseth him.” The old King James version, the one that “fundamentalists” are most likely to read if the read this book at all, reads “He that loveth his son causeth him oft to feel the rod.” Of course, because it’s a metaphor for physical discipline that’s probably still too much for Mr Harris, but needless to say, it robs him of his “whipping” bogeyman.

After the rhetorical debris is stripped away, all that’s really left is a string of namecalling and fearful language. He calls the views of his opponents “repugnant.” He calls them “fundamentalists” with “antiquated” views that are opposed to “progressive” thought. But where’s the actual substance? Like much of the rhetorical fireworks that is being leveled at those who want the law changed to a common sense view that refuses to place thousands of good parents in the criminal category, Ian Harris offers more heat than light, and manifests just the sort of shallowness and bias that this debate could do without.

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