Month: March 2014

Does systemic polling bias actually exist in NZ?

In my post yesterday about polling bias, I compared the polling bias conclusions of Gavin White of UMR to those of Danyl McLaughlan.

There are five major polling firms that publicly release their findings – One News Colmar Brunton, NZ Herald-Digipoll, TV3 Reid Research, Fairfax Ipsos and Roy Morgan. Gavin White notes:

Four of those five polls were around at the 2011 election, with exception being Fairfax (then conducted by Research International). Although some on the left wing blogs have been critical of the Fairfax poll on the grounds that it was a long way out in 2011, I think that’s manifestly unfair as Ipsos weren’t doing it. That’s like criticising Cadbury for the taste of a Peanut Slab. The most we can say about the Fairfax Ipsos poll in 2014 is that we don’t know how it stacks up historically.

I was interested in what happened to historic polling bias if Fairfax was taken out of the equation, as its results were so far out (both when Research International was running its polling in 2011, and when Nielsen was its pollster in 2008 and 2005).

I’ve looked at the final polling results from the last three elections (2005, 2008 and 2011 for the major polling companies), and the results are quite interesting.

In 2011, the average error across the final polls of each of the five main polling companies was:

  • National: 3.7% too high
  • Labour: 1.2% too low
  • Greens: 1.3% too high
  • NZ First: 2% too low

In 2008, the average error was:

  • National: 1.5% too high
  • Labour: Correct (to one decimal place)
  • Greens: 1.6% too high
  • NZ First: 0.6% too low

In 2005, the average error was:

  • National: 0.3% too high
  • Labour: 1.4% too low
  • Greens: 0.7% too high
  • NZ First: 0.5% too high

Overall, across all three elections, the average error across the final polls for each of the five main polling companies (in their different incarnations) was:

  • National: 1.8% too high
  • Labour: 0.9% too low
  • Greens: 1.2% too high
  • NZ First: 0.7 too low

Now that’s all very well, but what happens if we take into account only those polling companies that are still running publicly released political polls? As Mr White noted, there’s no point in comparing Fairfax’s Ipsos poll results with those of Fairfax’s Research International or Nielsen polling. They were evidently concerned about the inaccuracies with both prior polling companies, and have now changed to Ipsos. Likewise, 3 News’ polling in the 2005 and 2008 elections was performed by their earlier pollster TNS, whereas prior to 2011 their pollster has been Reid Research.

So if eradicate the now non-existent public pollsters (all of Fairfax’s polling and the TNS polling from 2005 and 2008), thereby only looking at the track record of the existing polling companies, what happens?

First of all, let’s look at the individual elections:

2011:

  • National: 3% too high
  • Labour: 1.1% too low
  • Greens: 1.4% too high
  • NZ First: 1.8 too low

2008:

  • National: 0.7% too high
  • Labour: 1.3% too high
  • Greens: 1.5% too high
  • NZ First: 0.5% too low

2005:

  • National: 0.6% too low
  • Labour: 0.7% too low
  • Greens: 0.4% too high
  • NZ First: Correct (to 1 decimal place)

And the total average error across all three elections?

  • National: 1.4% too high
  • Labour 0.3% too low
  • Greens: 1.2% too high
  • NZ First: 1.0% too low

That’s just a 0.5% divergence between the National v Labour & Greens blocs. Not a hell of a lot.

I commented in my last post that I saw the polling divergence in 2011 between final polls and actual elections results to likely be the result of the final polls not picking up a sudden last-minute switch from National to NZ First due to the teapot tapes saga. Those 2011 results for National and NZ First really do seem to be outliers, compared to the other election results.

So one final piece of analysis – what happens if we take the 2005 and 2008 elections, and compare only the poll results for the currently existing public pollsters?

  • National: Correct (to one decimal place)
  • Labour: 0.3% too high
  • Greens: 1.0% too high
  • NZ First: 0.3% too low

The left can hardly complain about those figures…

The lesson? Numbers can be arranged and re-arranged to suit whatever thesis one is currently banging the drum for.

Which is why my Poll of Polls doesn’t try to correct bias based on deviations from election day(s). Occasionally Erudite’s Poll of Polls corrects for deviations from the industry average, but that’s as far as it goes. On 20 September, if it turns out the same sort of error rates exist in the major polls as occurred in 2011, then I’ll undoubtedly be taking that on board and trying to factor in a broader polling bias. However, at present, I’m unconvinced…

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Polling bias

Individual polls are biased. That’s not to say that they consciously try and favour one party or another. Instead, the way that they sample and weigh their samples results in bias, with that bias being measured by how far the particular polling company is from the average of all polls.

Occasionally Erudite’s Poll of Polls tries to account for the bias of individual polling companies by adjusting each poll by how far they deviate from the industry average for each party. But does this go far enough? After all, if the polling industry average is too high or low for each party, any attempt at correcting bias won’t fix the industry-wide problem.

The political left tend to give great credence to Danyl McLauchlan’s bias corrected Poll of Polls. Mr McLauchlan calculates the polling bias by looking at how the polling industry did in picking each party’s 2011 election result and then calculating the discrepancy between their average final polling and that party’s actual result. As it turns out, the pollsters got Labour and the Greens roughly correct – Mr McLauchlan adjusts Labour down by 0.6% and the Greens down by 0.5%. It’s National and NZ First that are badly out of whack, with the final polling average being out by a whopping 3.1% for NZ First (too low) and 4.1% for National (too high). McLauchlan therefore adjusts his non-bias corrected Poll of Polls by those amounts, to get his bias corrected version.

To me, McLauchlan’s approach is fatally flawed. One needs to ask the question, ‘If the pollsters got Labour and the Greens almost right, why did they get National and NZ First so badly wrong?’ So what did happen in the final build up to election day. The obvious incident that springs to mind is the teapot tapes saga, with National giving Winston Peters vital oxygen in the dying last weeks of the campaign. The teapot tapes conversation occurred on 11 November 2011, with the election occurring 15 days later on 26 November 2011. Rumours slowly circulated about just what John Key and Don Brash had discussed, with Winston Peters tantalising media with leaked tidbits. NZ First went from being nowhere in the polls to breaking 6% on election day (6.59% to be precise), while National’s vote plummeted from the ‘governing alone’ predictions that had been swirling for months to its final result of 47.31%.

Is it more likely that the polls were inherently biased against NZ First by 3.1% and in favour of National by 4.1%, or is it a case of the polls not reacting to the sudden speed of the anti-National/pro-NZ First reaction that the teapot tape saga produced? Is the 2011 election an aberration or are the polls consistently over-representing National to that degree and under-representing NZ First?

Gavin White of UMR wrote a fascinating blog last month about the accuracy of companies’ final polling prior to MMP elections compared to actual election results. He concludes:

Counting all mainstream media polls since 2005 (i.e. excluding UMR but including TV3 and Fairfax / Research International polls in 2008 and 2011) leaves 14 polls, and an average error of:

    • National: 2.4% too high
    • Labour: 0.5% too low
    • Greens: 1.5% too high
    • NZ First: 1.1% too low.

That’s a significant difference compared to McLaughlan’s bias corrections. But it does show that the polling average for the left-right bloc gap is likely to be skewed in favour of the right by 1.4% (given that I place NZ First in the centre, separate and distinct from the centre left and centre right).

(It is, however, worth noticing that the Fairfax poll for 2011 was probably the worst of the bunch from the major polls, over-estimating National by 6.7%, under-estimating Labour by 1.5%, over-estimating the Greens by 0.9% and under-estimating NZ First by 2.6%. Fairfax now has a different pollster. I therefore wonder whether there’s any significant change if Fairfax’s historic pre-election poll results are removed from the mix. If I have time, I may try and replicate Gavin White’s analysis, with the removal of Fairfax.)

And Gavin White’s conclusions?

I think history suggests that:

    • If the total for Labour + Greens is within about 2% of the total for National and its allies (whichever of ACT, United Future and the Conservatives makes it into parliament), then it’s actually pretty much a deadheat. 
    • If NZ First gets 4% in most of the mainstream polls, then they’ll probably pass the 5% threshold on election day.

Not many silver linings for Labour in latest polls

Last night’s TV1 and TV3 polls weren’t crash hot for National, but the news was still relatively grim for Labour.

National will be looking in concern at TV3’s Reid Research poll, showing their support at 45.9%, but it’s still an increase from the last TV3 poll. And besides, in both channels’ polls National’s share of the vote was greater by several percentage points than the combined Labour / Greens vote. With National’s support parties, ACT and United Future still looking good to hold their respective seats, and with the Maori party keeping two seats, that’s enough to get National over the line. Just.

Labour won’t be happy with its polling position. There have now been five separate major polls in a row showing Labour flatlining between 29.5% and 31.5%. And worse, David Cunliffe’s preferred Prime Minister ratings were down in single digits in both of last night’s polls, suggesting that the more people see of Cunliffe, the less they like.

Cunliffe is course still talking positive, because (let’s face it) he really doesn’t have a choice. He’s reported by stuff.co.nz as follows:

Cunliffe insisted that the Labour-led block was “neck and neck” with National and its support partners.

“Polls bounce around but all the recent ones are showing that the election will be too close to call. We are confident that as New Zealanders focus on the issues that really matter, there will be a change of government in September,” Cunliffe said in a statement.

Which is absolute rubbish. The Labour-led bloc has been “neck and neck” in just one poll recently – the latest Roy Morgan. Every other poll has shown National to be streets ahead of the collective might of Labour, the Greens and Mana. There needs to be a several percentage point swing to the left for things to be neck and neck, and that might very well happen in the coming months, but right now the polls are not saying “too close to call”. (It’s worth noting that my Poll of Polls currently shows the left-right gap to be 6.2% in favour of the right – that’s not close…)

National’s main concern will be NZ First’s position. With NZ First sitting at 7% in the Colmar Brunton poll (the party’s best polling this year by a long shot), that requires only a small shift from National to Labour, and suddenly NZ First gets to choose the government. Even with the Reid Research poll, 4.9% is dangerously close to the magic 5% threshold; indeed, it’s likely that NZ First are in fact over 5% already, given that Reid Research has historically under-reported the party’s polling position.

Poll of Polls update – 30 March 2014

The Poll of Polls has been updated following the release of two major polls tonight, TV1’s Colmar Brunton and TV3’s Reid Research polls going head to head. The two polls don’t show hugely differing results for the National, Labour and the Greens, but the results have some significant differences for some of the minor parties.

The major mover in the Colmar Brunton poll is NZ First, which explodes to a massive 7%, the party’s highest result this year. In the same poll, United Future, ACT and Mana don’t even feature.

Over on TV3, the Reid Research poll shows NZ First dropping to 4.9% (from 5.7% last poll), with ACT suddenly shooting up to 1.1%. The big news in that poll was that the Internet Party shows up for the first time in any major poll, hitting 0.4%.

So how does the updated Poll of Polls look now?

National: 47.1% (-0.8%)

Labour: 31.6% (-0.1%)

Greens: 11.5% (-0.1%)

NZ First: 4.7% (+0.6%)

Maori: 1.1 (-0.1%)

United Future: 0.2% (-0.1%)

ACT: 0.6% (+0.1%)

Mana: 0.4% (nc)

Conservative: 1.8% (nc)

Internet Party: 0.1% (+0.1%)

 

Based on those percentages, the new seat predictions are:

National: 61 (nc)

Labour: 41 (nc)

Greens: 15 (nc)

Maori: 2 (nc)

United Future: 1 (nc)

ACT: 1 (nc)

Mana: 1 (nc)

With no change to the division of seats, National still requires one of either United Future or ACT in order to govern. Labour, the Greens and Mana are still stranded 5 short of the 62 seats needed to govern.

The results are deceptive though. Despite National’s coalition position remaining unchanged, with the centre-right bloc holding 63 seats and easily able to govern without even the help of the Maori party, National’s 47.1% is the lowest it has been this year in the Poll of Polls. National’s saving grace is that Labour has continued to drop with every update, from a high of 33.3% to a new low this update of 31.6%.

The big minor party news is of course that the Internet Party registers on the Poll of Polls for the first time. It’s not much, just 0.1%, but it’s finally there. Of course, herein now lies the difficulty of a Poll of Polls – just as with ACT, the Internet Party (presuming it continues to register in the upcoming major polls) will take some time to overcome the weighting effect of the numerous previous polls that showed it flatlining at 0.00%. It’s likely that the party’s Poll of Polls results will slowly creep up in the next few months, as long as it continues to record a presence in the major polls. Whether it can break even the 1% mark remains to be seen, but it’s certainly had more than its fair share of publicity lately.

And of course, NZ First is now creeping up towards that magical 5% threshold, thanks to these two good poll ratings. Up 0.6% to 4.7%, and with just shy of six months to go till election day, that’s not a bad position for Peters to be in.

So what happens if Peters makes 5%? Taking 0.1% from each of National, Labour & the Conservatives and giving it to NZ First in order to get it to the threshold, provides a large change in the numbers, giving the kingmaker role to the Maori party. National would require the Maori party’s two seats in order to govern, while Labour would require both the Maori party and NZ First (in conjunction with the remainder of the left bloc of the Greens and Mana).

ACT’s ‘three strikes for burglary’ policy – when is a burglary not a burglary?

Here in Gisborne, where I reside, burglary is endemic. The East Coast has, so I am told (by the Judiciary, no less), the highest rate of burglary in New Zealand, on an even par with Manukau. The Judiciary has declared war on burglary here, which is fair enough (although it certainly makes it rather more difficult to keep my clients out of prison on second or subsequent burglary convictions).

ACT’s policy of having three strikes for burglary (with a minimum sentence of three years’ imprisonment for a third strike) is therefore undoubtedly attractive to the good, law abiding citizens of Gisborne. Not so attractive, perhaps, for the less law abiding ones…

My issue is that sometimes a burglary is not a burglary.

The definition of “burglary” in s 231 of the Crimes Act is astonishingly wide:

(1) Every one commits burglary and is liable to imprisonment for a term not exceeding 10 years who—

(a) enters any building or ship, or part of a building or ship, without authority and with intent to commit an imprisonable offence in the building or ship; or

(b) having entered any building or ship, remains in it without authority and with intent to commit an imprisonable offence in the building or ship.

(2) In this section and in section 232, building means any building or structure of any description, whether permanent or temporary; and includes a tent, caravan, or houseboat; and also includes any enclosed yard or any closed cave or closed tunnel.

To most people’s minds, the usual concept of a burglary involves an offender breaking into a home or business, taking what they can find, and leaving. But you don’t have to enter a building to commit a burglary – just being in an enclosed yard can be enough. And you don’t even have to steal or intend to steal anything.

Imagine this scenario, if you would: The local flasher sees a lady walking down the street towards him. Trenchcoat-clad for action, he ducks through an open gate into a fenced yard, ready to leap out and unveil himself in all of his supposed glory. But luck is not with our protagonist, for a passing police officer has spotted his sudden disappearance from the street and wanders over to investigate. Panicking, the would-be flasher tries to bolt, but hindered by his trenchcoat, he is easily apprehended and is taken down to the station for questioning, where he admits during a DVD interview that his intention was to leap out and reveal his genitals to the world.

A burglary? Surely not, one may cry. But the circumstances fit the elements of the Crimes Act definition. Our would-be flasher was in an enclosed yard, which fits the definition of a building, and he had no lawful authority to be in that yard. And he was there with the intention of committing the crime of indecent exposure, punishable by a maximum 3 months’ imprisonment pursuant to s 27 of the Summary Offences Act 1981.

So here’s my problem with ACT’s three strikes policy – is it really fair to throw someone in jail for a minimum three year sentence (assuming of course that our flasher had two prior strikes for “actual” burglaries), when the crime that they were intending to commit had only a three month maximum sentence?

 

Teina Pora and the High Court bail decision

I’ve just read the High Court’s decision not to grant bail to Teina Pora ahead of his appeal against conviction to the Privy Council (copy attached here). It’s a curious decision, because Lang J both accepts that the High Court has an inherent jurisdiction to grant bail, and that the Court has no jurisdiction to grant bail in relation to appeals to the Privy Council.

At para 31 of the judgment, Lang J holds open the right of the High Court to invoke its inherent jurisdiction to grant bail, but limits the use of that jurisdiction to situations “where it would be manifestly unjust and patently wrong for a sentenced prisoner to remain in custody until his or her appeal could be heard by the Privy Council”. The full paragraph is as follows:

I leave open the possibility that the Court may need to review the position in the future in the event that the facts of a particular case require that to be done. It is possible to imagine a situation arising where it would be manifestly unjust and patently wrong for a sentenced prisoner to remain in custody until his or her appeal could be heard by the Privy Council. If no other practical solution could be found, this Court might need to reconsider whether it should resort to its inherent jurisdiction to ensure that an injustice is not perpetuated. The present case does not come close, however, to justifying that step being taken.

However, the problem for Mr Pora is that the Bail Act 2000 grants an explicit ability for the Court to grant bail in relation to appeals against conviction to the District Court (s 53), the High Court (s 54) and the Court of Appeal and Supreme Court (s 55). There’s no mention in the Act of appeals to the Privy Council. Justice Lang notes that Parliament amended the Bail Act to include the Supreme Court when the Supreme Court Act 2003 was passed, and concludes that Parliament must have made the conscious decision to not include any provision relating to the Privy Council. Therefore, Parliament did not intend for prisoners to be granted bail ahead of appeals to the Privy Council.

Essentially, Lang J reaches the conclusion that the Court should not over-turn the will of Parliament by exercising the High Court’s inherent jurisdiction to grant bail, except in situations where to not do so would result in a manifestly unjust and patently wrong outcome. That’s a serious threshold to reach…

Is the decision the right one? I’m in two minds. On the one hand, I can appreciate how Lang J has reached the decision that was reached, and the Court does not want to lightly bypass the supposed will of Parliament.

However, I think that a completely opposite decision was easily available to the Court if it wished, and that such a decision would have been more in the interests of justice.

The line of reasoning that would have allowed the Court to invoke its inherent jurisdiction, flows from the timeline of when the Bail Act and Supreme Court Act were passed, and when the case of Zaoui v Attorney-General [2005] 1 NZLR 577 (SC) was decided. Justice Lang noted that, in 1982, the Court of Appeal in Re Brown v Attorney-General (1987) 15 NZLR 165 ruled that the Court has no power to “suspend the execution” of a lawfully executed sentence of imprisonment. This was the only case that could be pointed to in which bail had been sought by a prisoner ahead of an appeal to the Privy Council. Thus, the situation as at 1982 was that the Court did not have inherent jurisdiction to grant bail to a sentenced prisoner, even where the Privy Council had granted an appellant leave to appeal.

In 2000, the Bail Act was passed, and it seems logical that Parliament failed to include a provision relating to the Privy Council due to Parliament’s belief that no ability to seek bail was in existence at that time. Parliament was therefore continuing with the status quo position. Likewise, when the Supreme Court Act was passed in 2003, the status quo would have been consciously preserved.

However, the Zaoui decision essentially stated that the High Court may exercise its inherent jurisdiction to grant bail, unless there is an express statutory exclusion. Justice Lang, in Pora, looks at the Zaoui decision in light of its particular context – namely, that Mr Zaoui was being detained under a warrant issued by the District Court. Therefore, Lang J concludes that the Court in Zaoui did not intend for its observations on inherent jurisdiction to overturn the existing wisdom that sentenced prisoners cannot be granted bail.

It would have been an easy thing for Lang J to have come to the complete opposite decision – that the Court’s observations in Zaoui were meant to be applied broadly and that the decision in Re Edwards had been effectively overturned. The decision as to bail would then come down to a broad range of matters, whatever the Court thought was relevant really. Such a decision would, to my mind, be far more in the interests of justice than the creation of a threshold of manifest injustice.

Of course, at the end of the day, I’m not commenting on whether Mr Pora should have received bail. The High Court, having declined jurisdiction, didn’t need to look at any arguments as to why bail should be granted or declined. I simply think it’s a pity that the jurisdiction was declined.

 

Some post-launch thoughts on the Internet Party

Some thoughts, in no particular order, on Internet Party-related issues:

Does Slater have proof of the Nazi flag in the basement?

Cameron Slater has made the allegation that Kim Dotcom was given a Nazi flag for his birthday in 2011, and that it was kept in Dotcom’s basement until just before John Campbell was allowed in with his cameras following the FBI-instigated raid. Dotcom has now explicitly denied owning a Nazi flag, according to this NZ Herald story:

He repeatedly disputed claims that owning a rare signed copy of Hitler’s book marks him as a Nazi sympathiser and says he does not own a Nazi flag as claimed by Whaleoil blogger Cameron Slater. [Emphasis added]

Presumably, the story has come to Slater through the former Dotcom staff members who are subject to Court injunctions preventing them from telling all to the media. Given the way Slater broke the Len Brown / Bevan Chuang story (getting a full affidavit sworn by Chuang before he went public), and the evidence he has thus far presented in this “Dotcom Nazi” story (videotaped material from Dotcom accuser, Alex Mardikian), I would be surprised if Slater weren’t already in possession of affidavit evidence from at least one of the staff members allegedly involved in tidying up the flag before the cameras arrived.

There are a few options here:

1. Dotcom is lying: Which may go very badly wrong for him if Slater has an affidavit or two in his back pocket that he can release. Or if someone comes forward who was at the 2011 birthday party and can confirm that it was indeed given as a gift.

2. Dotcom’s staff are lying: It’s a possibility.  But it’s a very specific series of allegation they’re making (assuming it’s come from the staff), involving the exact date Dotcom allegedly received the flag, the circumstances in which it was received, where it was stored, why it’s no longer stored there and when it was moved. On the other side though, when Police raided the mansion, you’d have thought they’d have gone through the place with a fine-toothed comb, yet no mention was ever made of a Nazi flag, an item which would surely have provoked comment.

3. Dotcom’s denial is “Clinton-esque”: The denial, as published, says that Dotcom “does not own a Nazi flag”, which could be taken to mean that he once owned one, but at the date of interview no longer owns one. Of course, as with an outright lie, it will still look terrible if Slater releases proof that Dotcom once owned a Nazi flag, even if he doesn’t now.

Polling numbers

The Internet Party chief executive, Vikram Kumar, appeared on TV3s The Nation this morning, making the claim that the party’s internal polling had it on track to reach 5% by election day. This was after the party’s new media man, Jim Tucker, made the claim that the party was polling at 2.6%, despite the Internet Party having comprehensively failed to even register on any major poll this year.

Kumar, when pressed on this polling issue, seemed to let slip just where the party’s numbers are coming from, when he talked about the large numbers of undecided voters who would be prepared to consider voting for the Internet Party. Expressions of interest from undecided voters are very different from actual percentages of people who will vote for you… It will be interesting to see whether the Internet Party begins to feature in the next round of polling, now that the party has actually been launched.

Most democratic selection process?

While on the Nation, Mr Kumar also made the interesting claim that the Internet Party would have New Zealand’s most open and democratic selection process. Well, according to the party’s rules, the process for producing a party list seems fairly similar to that followed by the Greens – an “Indicative Party List” is produced, and the members get to vote on their ranking preferences before the list gets finalised. However, rule 12.4.7 of the Internet Party rules states that:

Having regard to the ranked lists provided by members, the Executive Committee will produce a “Final Party List” at its sole discretion that will constitute the final Party List.

That sounds to me as if the membership consultation phase can be completely ignored by the Executive Committee, whereas the Green Party leadership don’t have that luxury. Thus, the Greens definitely win the prize for most democratic way of producing a party list.

Does the Internet Party win on ‘most democratic way of choosing electorate candidates’ then? Well, no. Rules 12.6 and 12.7 states:

12.6 Once the Party List has been finalised, the Executive Committee may ask candidates on the Party List to stand in electorates as Electorate candidates.
12.7 Which electorates candidates are asked to stand in is at the discretion of the Executive Committee.

So, not very democratic at all.

Sorry, Vikram, the Internet Party can’t claim to be the most open and democratic party around. In fact, as David Farrar asks, is the Internet Party even democratic enough to be registered with the Electoral Commission?

Membership numbers

Some strange numbers regarding membership were floating around on the stuff.co.nz site on the day of the Internet Party’s launch. For instance, just after the membership app went online, it was reported that members were signing up at the rate of 14 per second, and that the 500 member threshold would be reached within hours. Which was odd, as my calculator informed me that it would take just under 37 seconds to get 500 members at the rate of 14 per second. That piece of reporting then seemed to get amended to read 14 new website visitors per second, which made rather more sense…

Free speech and racism in Australia

Australia has, for several decades, had some quite wide-ranging rules regarding racially discriminatory speech, in the form of the Racial Discrimination Act 1975. Now, Australia’s federal Attorney-General, George Brandis, is championing a re-write of certain sections – a proposal that has sparked a somewhat furious debate about the limits of free speech.

The main issue seems to be with s 18C(1) of the Act, which states that:

It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

There are some exemptions, set out in s 18D:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

However, to Attorney-General Brandis, s 18C goes too far. He proposes that the test for racial vilification should change from conduct causing offence, insult, humiliation or intimidation, to be replaced with a test of “conduct that is reasonably likely vilify or to intimidate”.

To me, that’s a change I support. The existing Australian test is simply too broad to comfortably fit within my views on the sanctity of free speech. Conduct that causes offence, insult or humiliation may not be pleasant. It may even be deeply unpleasant. But the law is not there to force people to be pleasant.

Those who oppose the proposed law changes argue that the law is there to protect against harm – the harm in these circumstances being racist speech. Nonetheless, the right not to be subject to racist speech has to be weighed against the right to freedom of speech. To my mind, the right to free speech wins out.

Racism may not be pretty, but outlawing racist speech only creates martyrs. Just look at conservative columnist Andrew Bolt, who was convicted under s 18C for attacking “fair-skinned people” of diverse ancestry who he argued chose to identify themselves as Aboriginal for financial or political gain. Sections 18B to 18E of the Act are now colloquially known as the Bolt Laws, and Mr Bolt has a widespread network of sympathisers. It is arguable that the audience for his views has only increased because of the successful prosecution against him.

Now, astute readers may have noted that I haven’t addressed whether I support removing the term “intimidation” from the definition of racial vilification. The reason is that intimidation is a step up from being offensive, insulting or humiliating. It’s not quite so clear-cut for me. Intimidation can be an offence in its own right, whether it has racial overtones or otherwise.

Regardless, in terms of balancing the rights to freedom of expression and freedom from harm, I think New Zealand has got the balance about right, and Australia should look to our example. Intimidation is a crime that exists in its own right here, as is offensive behaviour (with the Courts having read in a requirements for offensive behaviour beyond the standard dictionary definition), while our Sentencing Act makes race-based offending an aggravating feature at sentencing. Thus, racist speech can be prosecuted if it meets the criminal thresholds for intimidation or offensive behaviour, which will be seldom, whilst racist actions are subject to our laws against discrimination.

Racism should be condemned, but at the end of the day, people do have the right to be a bigot. People who say “I don’t like blacks” should be ridiculed, not criminalised.

They seek him here, they seek him there…

So, the Scarlet Pimpernel of NZ politics remains elusive. The hunt continues for the MP who has allegedly agreed to join Kim Dotcom’s Internet Party…

When Dotcom first unleashed the mystery upon an unsuspecting media, he said only that the MP was a sitting MP. There was no mention of an electorate MP, causing the finger of suspicion to hover above that paragon of ideological nothingness, Brendan Horan.

Since then, Mr Horan has denied everything, and Mr Dotcom’s language has now firmed up. This article on stuff.co.nz reports that:

Internet entrepreneur Dotcom said this afternoon that a sitting electorate MP would join the party but he would not say who the person was, what party they currently belonged to or what electorate they represented.

So… It’s now definitely an electorate MP, eh? But who? Who???

I’m stumped. I’ve just trawled through a list of every electorate MP and drawn a blank. None of them make sense. Of the major party MPs, they’re all either too tribally National or Labour, or such miserable non-entities that they surely wouldn’t gamble their political existence away on a tilt at Internet Party stardom. And of the minor party electorate MPs, it’s obviously not Hone Harawira (Dotcom has explicitly ruled him out as our Pimpernel) or John Banks. Peter Dunne doesn’t strike me as having a death-wish, and Te Ururoa Flavell sure ain’t going anywhere that Harawira might conceivably end up.

So in a wild stab in the dark, let’s point the bone of prophecy at Trevor Mallard! He’s on the outer at Labour – everyone wants him to resign, he’s lost his role as campaign manager and he’s part of the ABC club, so Cunliffe won’t give him any interesting portfolios… Must be Trevor.

Release the hounds! And the dogs of war.

Cameron Slater’s paymasters (whomever they might be in the National party) are evidently taking the political threat of Kim Dotcom’s fledgling Internet Party seriously.

Dotcom was obviously ambushed yesterday when TV3 asked him whether he owned Nazi memorabilia, with Dotcom admitting that he had purchased a rare first edition of Mein Kampf signed by Hitler himself. He tried to balance and justify by noting that he also owns one of Churchill’s cigar holders and Stalin’s pens, and by claiming it was all because of his Call of Duty fetish.

Whoever gave the story to TV3 evidently also shopped the story to Slater, and they either gave the story to Slater earlier or gave him more details, because he had a blog post this morning providing rather more ammunition against Dotcom than Gower could garner.* The extra details were that a Mr Alex Mardikian (who seems to have worked on prior projects with Dotcom) was shown the copy of Mein Kampf just after it was purchased, with Dotcom asking Markikian what he though about the fact that Dotcom now owned a book written by “the greatest German who has ever lived”. Plus, there was the additional allegation that Dotcom was given a Nazi flag for his birthday in 2011:

At the time of the birthday and the gift Kim Dotcom exclaimed to all in attendance that this was “the best present he had ever been given”.

He profusely thanked the guest repeating over and over how happy he was to have received the flag. Again his closest confidantes remonstrated with Dotcom over the flag and he shrugged off the criticism by claiming it was all a big joke.

WOBH can confirm that the flag is still in the possession of Dotcom because in the days after the raids two staff were tidying up ahead of the arrival of John Campbell and his cameras. They were going to tour the mansion for a soft piece on the aftermath of the raid.

Those two staff thought, rightly, that the flag wouldn’t look good on television and so folded it up and put it away for safe keeping in some boxes also stored in the cellar.

One former staff member spoken to by WOBH (who wishes to remain anonymous due to ongoing threats from Dotcom) in our ongoing investigations of the REAL secret life of Kim Dotcom has told us that regularly, at dinner, Nazi salutes would be made and Nazi chants like “Heil Hitler” and “Sieg Heil” were made, especially if the guests were mainly German.

The fact that all of this has just come to light as Dotcom attempts to finally actually launch his Internet Party seems just a little suspicious. One gets a wee feeling that someone from on high has given the order to unleash a full-scale assault on Dotcom’s credibility, to sabotage the party launch amidst a sea of unsavoury allegations, and to put paid to Dotcom’s manoeuvres with other small political parties who might be prepared to share a list.

What will be the result?

Well, Dotcom and Harawira already seem closer together… Dotcom has now agreed to Harawira’s bottom line that  he rules out working with National:

“I’ve said before that I can work with anybody but I have to tell you that after this recent disgusting smear campaign which obviously originates out of the National Party leadership camp, I’m not going to work with National.  Everybody knows where it’s coming from. It’s no secret.”

While Hone Harawira has already come out and said he is not bothered by Dotcom owning Mein Kampf – “And I don’t think he bought it particularly to read. I think it was a massive investment.”  Whether the rest of the Mana membership shares Harawira’s sanguine approach remains to be seen.

The reaction from the public will be interesting. When the TV3 story ran last night, there was a rather differing reaction in my household. I blanched, concluding that people who buy Nazi memorabilia tend to have some rather nasty secret fixations (a conclusion based purely on the way such collectors tend to be portrayed in the media, since I personally don’t know any collectors of Nazi memorabilia, let alone have insightful knowledge into their secret fixations), while my wife simply shrugged and concluded that he could buy what he wanted, that it was historic, that history should be preserved (even the bad stuff) and that Dotcom had probably made a good investment.

I would imagine that most people below a certain age will simply shrug and carry on with life. However, if the mainstream media (oh, that pejorative term!) should pick up Slater’s baton and run with it, the public perception may well begin to darken. Patrick Gower’s performance tonight may well be interesting viewing…

* Oh, okay, there’s the possibility that both TV3 and Slater have been conducting their investigations using entirely different sources, but a good conspiracy theory is far more satisfying…