Guidelines on a website are not advice

datePosted on 15:31, July 28th, 2009 by Lew

I’m not a big-city lawyer either, but Paula Bennett might have done well to consult one here.

In response to a parliamentary question from Charles Chauvel asking whether she’d taken advice as to whether the two women whose details she revealed after they questioned the government’s decision to cut the Training Incentive Allowance could be deemed to have given consent for the rest of their details to be released by going to the medias. Her answer was, more or less, “I looked at the guidelines that were on the Privacy Commissioner’s website” and a wee bit of misdirection about the previous Labour government.

The guidelines specify that a minister “need only believe, on reasonable grounds, that the individual has authorised the disclosure”, and later admitting that she did not make enquiries of “her officials or anyone else” as to the details she released. Without checking precedent or taking legal or policy advice, how can she claim “reasonable grounds” for implicit consent from a few brief and specific quotes in the Herald on Sunday?

The problem her stance raises – and perhaps the very reason for her taking it – is its chilling effect on political speech. If anyone who is dependent on the government for any part of their income (or other services) is liable to have the details of their cases made public for criticising the department upon which they rely, then that department is very effectively insulated from criticism. Being insulated from criticism means not being held to account for failings, and not being held to account for failings leads to a culture of impunity, a central plank of National’s election campaign against the former government.

I expect there will be a few smart privacy lawyers who’ll offer their services to the two women in question for a nominal fee, and the government would do very well to sharpen up. This is political gold for the opposition if the minister does not immediately back down and offer mea culpas of some sort. If the Prime Minister is required to pick sides, this is an important juncture for the government. She didn’t take advice. She can’t know what reasonable grounds are. Being a cabinet minister requires high standards of conduct and certainty. An employer would never get away with ‘I checked the website and then fired him’. If this goes to court, it won’t matter who wins or loses the case – the government will lose a bit of its shine, and so will its beleaguered Minister of Social Development.

There are good threads about this at the Dim Post.

Edit: Eddie has done some further digging to nail this down, too.

Edit 2: Woah, simultaneous linkage. There is no cabal, really.

Edit 3: It occurs to me that this is a political n00b’s monkey-see-monkey-do response to the Burgess case, where Labour and the media released some but not all details, and National used the remainder of the details to invalidate the political points being made. The differences with this case are that someone’s property holdings are a matter of public record, not information held by the government; and even if they were, property holdings are directly relevant (implied consent clearly applies) since the issue at hand hinged on the Burgesses losing their house, a matter which they brought into the public sphere.

I reckon Bennett saw what a big win the government had with the Burgess case, figured she’d do the same with this case, and overreached. Schoolgirl mistake. But I think it’s giving far too much credit to call this a rope-a-dope by Labour.


Young and free

datePosted on 13:19, July 28th, 2009 by Lew

It seems that Australia is considering a measure which would give 16 and 17 year-olds the right to vote in federal elections.

There are some aspects of Australia’s political system which make this sort of measure perhaps less controversial than in NZ. Australia’s electoral system is more complex than NZ’s; there are many more levels of representation, with two chambers at federal and state level (excluding Queensland); the right being proposed only extends to federal elections, not to state elections which are arguably more important to local electors; and it is a right to vote in a country where adult electors are required to vote. In a sense, proferring the opportunity to vote to those young’uns who consider themselves sufficiently informed and engaged to do so could limit cases of people being thrown into the deep end of compulsory voting in a complex system without a clue.

Politically, this was poison in NZ not so long ago, with most of the vitriol directed at Sue Bradford (who sponsored the Civics Education and Voting Age Bill), and the Greens’ secret conspiracy to take over the country.

But wait a minute, didn’t that bill include civics education? Wouldn’t that make NZ’s electorate more aware of and engaged with political systems and norms? While those with an ideological barrow to push would deride the teaching of civics as a propaganda exercise wherever it didn’t take their particular viewpoint, it is perfectly possible to teach the broad strands of political history, principles of government and representation and the bones of the major ideologies in a non-partisan manner – not an unbiased manner, mind; in a manner which makes the presence of bias clear and obvious enough for students to go and educate themselves. As far as I’m concerned, civics education and democracy should go hand in hand – and civics education and compulsory voting must go together. As it stands, we rely exclusively on the media to give us the information we need to be free and self-governing – without any sort of formal idea about what it means to be free and self-governing, or any critical tools to judge whether we are, or whether the information we get is sufficient to that end.

So, while I’m unconvinced that 16 and 17 year-olds should vote, the idea of them voting with a civics education is frankly less frightening than the idea of adults voting without one.


Aren’t they precious?

datePosted on 09:11, July 27th, 2009 by Lew

DPF is trying – on an experimental basis, mind, without any predetermined outcome in mind, no horse-scaring intended – to impose standards on his comment threads at Kiwiblog. The proposed standards are not especially onerous:

  1. Respond to the topic and the arguments
  2. Don’t get personal

Even these are too much for the commentariat on the announcement thread (which at time of writing has only been going for a bit over an hour and a half); plenty of high dudgeon, snark and poorly-masked animosity. They just can’t help themselves, dear wee things.

I’ll watch with interest, but it looks to me like David will need to give up his day job to keep on top of it, or appoint some of the usual suspects as deputies to enforce these standards (presumably with zero tolerance for misbehaviour and draconian penalties for miscreants). At worst, one dysfunctional community culture (of incessant attack disguised as ‘robust debate’) could end up replaced with another which is just as bad (of obsequious positioning, sucking up to authority, and (where that fails) of alleged bias being transferred from commenters to the moderators). The General Debates will remain a lawless free-for-all, and I predict also that the worst vitriol will simply spill over into them. Can anyone say “you wanna take this outside?”

At best, though, the move could result in a culture which might actually do some justice to David’s frequently thoughtful and relevant content.

If he has time to write any.


Bronagh Key has a husband who is home a couple of nights a week, who brings in a good income, who loves her and supports her, who goes shopping for tea pots and oven mitts with her in the weekend, who attends their kids sports matches and events, and who goes on family holidays with her and the kids. Apparently that’s what John Key thinks is the life of a solo mum.

Now I’m not saying that her life is as easy as it would be if he wasn’t PM, but it is nothing like the life of a solo mother. That Key thinks it’s a sensible comparison says a lot about the rose tinted world he lives in, and how disconnected he is from the real lives of real New Zealanders.

We live in a country where thousands of children will go to school hungry tomorrow, where nutrient deficiencies affect the health of one in ten children in our largest city, where poor overcrowded housing is linked to outbreaks of TB amongst children, and where about quarter of a million children live in households below the income poverty line. National has done nothing for those children and it has done nothing for the thousands of actual solo parents in New Zealand.

In the midst of the noise about the cycleway, the jobs summit, the recession, the credit rating and the fortification of bread the poor have been forgotten again as National, Labour and the media talk up the difficulties of the middle class.

So next time John Key waxes lyrical about the need to “balance the demands and requirements of all New Zealanders” it might be worth asking if he’s actually aware that there are poor New Zealanders, or perhaps we should just borrow Bronagh Dougan’s response to John Key’s aspirations:


If you’re interested in more detail about our child poverty problem I recommend these reports by the Children’s Commissioner and the Child Poverty Action Group.

Word of the week

datePosted on 16:22, July 24th, 2009 by Lew

Scienticians. Thanks James.

(Now I’ll stop copying Danyl and get back to work.)


That’s good advice

datePosted on 15:21, July 24th, 2009 by Lew

It is the judiciary’s job to apply the law as set by Parliament … this Government was elected on this sentencing policy. Judges are appointed to apply it. The Chief Justice’s speech does not represent Government policy in any way, shape or form.

Simon Power, Minister of Justice, 17 July 2009.

Read the Chief Justice’s speech before you judge it.

Lianne Dalziel, Labour Justice Spokesperson, 18 July 2009.

Lawyers should read proposals before criticising.

Simon Power, Minister of Justice, 24 July 2009.

You can’t judge an apple by looking at the tree
You can’t judge honey by looking at the bee
You can’t judge a sister by looking at the brother
You can’t judge a book by looking at the cover

Willie Dixon, 1962.


NZ’s Joe the Plumber?

datePosted on 22:46, July 22nd, 2009 by Lew

Bruce the Engineer.

Turns out he and his wife have a lifestyle block in John Key’s well-heeled electorate and two rental properties, and the whole story was a plant by Phil Goff. This was a very poor choice of poster boy: nobody with a lifestyle block and two investment properties is entitled to cry poverty. Even if their cashflow situation means they’ll be doing it hard until Bruce finds another job, arguing that they should be entitled to full benefit plays right into the hands of those who argue Labour is all about middle-class welfare or, in this case, welfare for property-speculator millionaires. There is no way Labour can claim to speak to genuine need while they nail their colours to cases like this, people far better off than most of those who are Labour’s nominal constituency. What of all those who don’t have two houses and a lifestyle block to fall back upon? Honestly, it’s insulting.

Labour, if you’re going to try to cynically manipulate public opinion, can you at least make a halfway-competent job of it? Poor Bruce and Jo have been used as propaganda pieces by Phil Goff, and badly so. They lose, Labour loses, NZ loses.

Edit: Shorter Lew: “There are plenty of people for whom Labour could be going into bat during the current recession. These ain’t them.”


Weatherston guilty, what about provocation?

datePosted on 11:31, July 22nd, 2009 by Lew

Clayton Weatherston has been found guilty of murdering Sophie Elliot, to nobody’s great surprise, perhaps, except his own.

First thought: good.

Second thought: should this be taken as evidence that the provocation defence doesn’t need to be abolished?


What is (or should be) NZ’s international role?

datePosted on 22:32, July 20th, 2009 by Pablo

News that the National government has in principle accepted the US request to deploy the NZSAS in Afghanistan once again raises questions as to whether NZ has a dog in that fight, and if so, why it got there. I am already on record in this forum and elsewhere as believing that the NZDF presence in Afghanistan is just on both moral and practical grounds. But many others disagree. That brings up the larger point, which is what, exactly, is (or should be) NZ’s international role? The paradigm shifts and dislocations that followed the Cold War stripped NZ of many of its traditional foreign policy referents, some of which were already being eroded prior to 1990 by the nuclear-free declaration and embrace of market-driven macroeconomic principles. As Lew mentioned in a previous post, trade now appears to be the basis for most contemporary NZ foreign policy, particularly under National governments. I have argued at various times that NZ foreign policy is a mixture of principle and pragmatism, but as of late I am not so sure that the former obtains in any significant measure.

Thus the questions begs: in a fluid international environment such as that which exists today, in which traditional alliance structures and security partnerships have been replaced or overlapped by new trade networks and the emergence of a raft of non-traditional security concerns and policy issues, what role does NZ play? Does it remain a committed multilateral institutionalist? Or is more of a junior partner to a variety of larger countries on a range of selected issues? Should it take the lead in pursuing matters of international principle like the pursuit of non-intervention, disarmanent, non-proliferation, climate change and human rights, or should it wise up and curry favour by getting with the bigger player’s projects, be they Chinese, American or Australian? Does realism or idealism drive NZ foreign policy, and if it is a mixture of the two perspectives, which should dominate given current and near future conditions?

There is a strong isolationist streak in NZ that spans the spectrum from Left to Right, one that sees nonintervention in foreign affairs to be the preferred standard when approaching the international community. In contrast, the trade liberalizers in both major parties and the foreign party bureaucracy speak of trade openings as the end-all, be-all of NZ growth and thus a reason for ongoing and deeper engagement with a multitude of partners. But what happened to principle in all of this, particularly the notion that as a good international citizen NZ has a duty and obligation to support with its active involvement actions that are sanctioned by the UN and other international agencies (the principle that I just happen to believe in when it comes to the foreign policy behaviour of small democratic states)? The ISAF mission in Afghanistan is just one such action, but there are a multitude of others that are seldom mentioned, much less discussed by the NZ political elite or public.

Given the hard economic times of the moment and the folly of recent great power interventions in international affairs, what exactly is or should be NZ’s response to recent international trends, and thus its role in the international environment? Should it lead, follow, be neutral, selective or withdraw when considering its potential range of international commitments?  What should be the criteria for foreign engagement, and to what extent or degree? Should certain existing international commitments be dropped and new ones adopted? Should the traditional pro-Western foreign policy perspective shift to a more Eastern view?

I post this simply as a general reminder that the role of NZ as an international actor gets far too little play in the public discourse, yet is one that it absolutely crucial not only to its international reputation and stature, but also to its continued well-being as a small, vulnerable and dependent nation-state. The question must therefore be repeated: what role should that preferably be?

The role of the judiciary is to judge

datePosted on 00:29, July 19th, 2009 by Lew

There has been much wailing and gnashing of teeth over Dame Sian Elias’ remarks about the prison muster. Nevertheless, this is what Chief Justices (and their equivalents elsewhere) do from time to time – make pronouncements about the law and the state of the justice system, which carry no policy mandate but tend to get people talking.

I would note that the speech was much broader and more considered than ‘let the prisoners go free’ as it has been dramatised. But that Dame Sian has made a pronouncement so far out of step with government policy and public consciousness demonstrates either a remarkable sense of personal responsibility for the justice system or a desire to legislate from the bench.

There are three ways to slice it:

  1. The judiciary is right to involve itself in this sort of thing and you agree with the position taken
  2. The judiciary is right to involve itself in this sort of thing and you disagree with the position taken
  3. The judiciary is wrong to involve itself in this sort of thing, and should stay the hell out of wider matters of justice regardless

I’m the first, with Toad and most commenters on Eddie’s post on The Standard. Labour Justice spokesperson Lianne Dalziel is too. In another case I might be the second. Danyl Mclauchlan seems to be either in the first or the second; Idiot/Savant and Bomber are clearly the first; Madeleine Flannagan, herself a lawyer, seems somewhat grudgingly to be in the second camp. Peter Cresswell definitely is.

But it’s tricky; the third is a cover for the second. I think Simon Power and Garth McVicar (along with DPF and some stalwarts of the KBR hang’em-flog’em brigade) are taking the third position for rhetorical purposes when, if they were honest, they’d be defending the right of the judiciary to participate in NZ’s discourse of criminal justice but disagreeing with Dame Sian’s argument in this case – the second position. Dean Knight points out that, when it suits, the government does actually consider the judiciary’s views as integral to justice policy.

If the particulars of the Chief Justice’s speech had been different, I reckon they’d be singing from a songsheet other than the one which reads ‘butt out, you lily-livered liberal panty-waist’. Perhaps the one which reads ‘I disagree with your position but, as the head of NZ’s judiciary, you are entitled to take it’.

The flipside, I suppose, is whether those of us who agree with Dame Sian’s general position today would be supportive of her right to take it if we disagreed. We should be; all of us.

Edit: Andrew Geddis is in the first position; Stephen Franks is in the second.


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