Month: January 2015

(Almost) unconditional support : ACT forgets to play its hand

On National Radio’s Morning Report show this morning, ACT leader David Seymour provided an excellent example of how not to negotiate. With Environment and Housing Minister Nick Smith set to announce tomorrow National’s proposed changes to the Resource Management Act, Seymour was asked whether he would be supporting the yet-to-be-announced changes.

The response was a clear affirmative. “It is extremely urgent that New Zealand reforms its Resource Management Act…” Therefore, he’s got National’s back on this one.

So what are the reforms? Well, we don’t know. They haven’t yet been announced.

Does Mr Seymour know? Has he been given a pre-announcement heads up, to ensure that his support is based on some actual intel, or is he simply making the assumption that the changes will be identical (or almost identical) to the proposed changes that were abandoned prior to the last election? It’s an assumption, he confirmed on Twitter to me this morning, based on where Mr Smith’s “thinking is usually at”.

To be fair, it isn’t completely unconditional support that is being offered. On Morning Report, Mr Seymour reserved his right to pull back, should the changes, once announced, be materially different from his assumptions.

Of course, we all know that ACT went into the 2014 election promising to repeal the RMA. Here’s a quote from former ACT leader Jamie Whyte during the election campaign:

The problem is not with the administration of the RMA. The problem is with the very conception of it. The RMA is an assault on property rights that stifles investment and economic growth. The restrictions it puts on using land for residential development are the reason housing is so expensive.

Nonetheless, from a realpolitik perspective, why would ACT simply blindly agree to support National’s proposed changes? If the changes are essentially what National tried unsuccessfully to push through last year, then National will struggle to get support from Peter Dunne or the Maori Party. If National doesn’t want to water down its proposals, then that leaves just ACT. And given ACT’s hatred of the RMA (except, of course, where it stymies intensive development in Epsom), surely this would be a perfect opportunity to press for additional changes?

With National able, on every piece of legislation, to go to just one of ACT, United Future or the Maori Party, opportunities to extract a pound of flesh aren’t going to come along often for those three minor parties. ACT seems to have just blown a prime opportunity to extract concessions on one of the party’s main election policy platforms.

How to spot a cannabis plot

Should you not know how to recognise a cannabis plant, the Southland District police have released a helpful poster:

Cannabis Wanted! Southland Police are committed to ensuring the population knows what cannabis looks like...

Cannabis Wanted! Southland Police are committed to ensuring the population knows what cannabis looks like…

And to aid in the hunt, Stuff reports that they’ve even issued “a helpful guide to identify cannabis operations”. Should you be blissfully ignorant about how people grow cannabis, I guess it’s always good to know that:

People carrying shovels, spades and similar equipment into the bush may be up to no good, as may people repeatedly visiting places at unusual times.

Unusual sightings of lights, head torches, and headlights in rural areas at night may be people growing marijuana.

And did you also know that cannabis can be grown inside?!?

Constantly closed curtains and blacked-out windows, with bright lights on constantly or at strange times may indicate an illegal indoor gardening operation.

I have in fact had cause to call police to alert them to a cannabis growing operation, as, despite philosophically having no issue with people growing their own cannabis, I’d really rather they didn’t do it next to my house.

You see, between my property and the river lay a long swathe of bamboo, part of an ill-maintained council reserve. And at about midday one Monday, I heard the sound of much crashing about from within the bamboo. For a good half an hour, the crashing continued, as several individuals fought their way back and forth, never managing to emerge in the grass at the other end. Occasionally, out would ring the sound of a spade attempting to unsuccessfully dig through bamboo roots.

Eventually, they disappeared back from whence they had come, at which point I ventured down to check out what on earth they’d been up to. It was, of course, an attempt at cultivating cannabis, although they’d eventually given up on the spade-work and simply left several containers filled with dirt and young plants. They’d attempted to conceal the containers, using a screen of fallen bamboo, but this was largely unsuccessful due to one of the containers being a bright pink plastic box. Bright pink is not easy colour to disguise in the wild…

And so I called the local constabulary, who kindly came and took away the plants and their various containers. For ‘twould have been most unfortunate for the police to have located by other means a cannabis-growing operation right in front of a local defence lawyer’s house…

So keep an eye out, oh law abiding populace, for those with spades, head torches or constantly closed curtains. And remember also this further piece of enlightened advice from the Southern District police: a “distinctive smell” coming from rural areas or properties is another obvious sign. No, really?

Restorative Justice changes – thus far, a dog’s breakfast

Late last year, I wrote about a new change to the criminal sentencing process, involving the mass rollout of Restorative Justice:

Essentially, in every criminal case in the District Court where a guilty plea is entered and there is a victim or victims, the case must be adjourned for an investigation into whether a restorative justice meeting should occur. That’s a meeting between the offender and victim, presided over by a restorative justice coordinator, with the results of the meeting able to be taken into account at sentencing.

My post was in response to a column by Mike Yardley, who appeared to have simply reprinted a anti-Restorative Justice press release from the Sensible Sentencing Trust. In my post, I criticised Yardley and the Trust for their knee-jerk antipathy towards the entire concept of pre-sentence Restorative Justice. On the other hand, I agreed with the other main thrust of his column, which was that the new Restorative Justice system was likely to be hugely time-consuming and expensive.

To date, the new system has come under heavy fire, from both lawyers and judges. In Christchurch, earlier this month, Judge Alistair Garland described the forced delays as “an appalling situation”, before going on to state that:

“Not only do we now have this mandatory referral, but there appears to have been no consultation between the legislature and the community. It was wholly predictable that Restorative Justice Services would be completely overwhelmed.”

Meanwhile, in my home court of Gisborne, Judge Tony Adeane last week said that the court, and others in New Zealand, would grind to a halt if the requirement is carried out in strict compliance.

The major issue is that very basic projections don’t appear to have been carried out. In Christchurch, Restorative Justices services are apparently funded for only ten referrals per week. With current referrals this year estimated at about 70 per week, it’s obvious that things will grind to a halt. In Gisborne, a staff member at Te Runanganui o Ngati Porou, who run the region’s Restorative Justice services, confirmed that they were funded for just one referral per week. They would need to be applying for further funding, based on the number of referrals coming through.

I’m at a loss as to why these numbers hadn’t already been estimated and provided for by the Ministry of Justice on a court-by-court basis. The MoJ should surely have access to court-by-court figures regarding the percentage of cases that involved a specific victim or victims (as opposed to victims in general, for crimes such drug dealing, or victimless crime). It is mind-blowing that resources would not have been made available up front, ready for the influx of referrals, based on easily calculated projections.

However, on a tangent, let’s look at Judge Adeane’s criticism, cited above, that the courts would grind to a half if the requirement is carried out in strict compliance. What is strict compliance?

Section 24A of the Sentencing Act states that:

(1) This section applies if—

(a) an offender appears before a District Court at any time before sentencing; and
(b) the offender has pleaded guilty to the offence; and
(c) there are 1 or more victims of the offence; and
(d) no restorative justice process has previously occurred in relation to the offending; and
(e) the Registrar has informed the court that an appropriate restorative justice process can be accessed.

(2) The court must adjourn the proceedings to—

(a) enable inquiries to be made by a suitable person to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and
(b) enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case.

The key issue to me is the requirement that a “suitable person” is to inquire as to whether Restorative Justice is appropriate. Just who a “suitable person” is isn’t defined. Must it be a Restorative Justice co-ordinator? Surely not, given that at Gisborne District Court those initial inquiries tend to be made by the Court’s victim advisor services.

If it doesn’t have to be a Restorative Justice co-ordinator, why then can’t the courts simply deem the police officer in charge of the case to be a suitable person? When the officer in charge takes a Victim Impact Statement, all they’d need to do is canvas with the victim whether they want to undergo Restorative Justice. If it’s made clear on the Victim Impact Statement that Restorative Justice isn’t wanted, why then adjourn the case? Sentencing should surely be able to proceed immediately.

And speaking of strict compliance, here’s another thing. The Registrar must have informed the court that an appropriate Restorative Justice process can be accessed. If there’s no funding for Court referrals, and Restorative Justice staff simply cannot cope with the workload, can the court simply rule that an appropriate process simply cannot be accessed?

That’s not to say that Restorative Justice is a Bad Thing. My previous post on the matter should make it clear that I’m a supporter of it. As the Howard League points out:

[R]esearch shows that it reduces reoffending by 12 percent, and that’s surely what matters. Less offending means less victims of crime.

Furthermore, the overwhelming majority of victims who undertake RJ benefit too: as one Ministry of Justice study shows, rates of satisfaction among victims who attend RJ are very high, with 74 percent saying that they felt better after attending a conference, 77 percent saying they were satisfied with the overall experience and 80 percent saying they would recommend restorative justice to others.

The initial failure of the new Restorative Justice system is one of logistics and bad drafting. It’s the fault of our lawmakers and their advisors. They failed to consult with the courts, the judges or the criminal bar. They seem to have failed to run basic projections, and even if those projections have been compiled, they’ve failed to provide funding based on them. All in all, they’ve completely failed to consider how the law would work in practice.

And in doing so, they’re giving Restorative Justice a bad name that is undeserved.

Fundamentalist Islam and freedom of speech

Re-posted after accidental deletion…

Those who find the truth of human evolution repugnant (“I’m not descended from a monkey!”) can never be persuaded that evolution is a scientific fact. All the proof in the world will never be enough to convince them. They’ll create their own strange alternative universe in their head: a conspiracy theory in which scientists the world over have fabricated fossil evidence, carbon dating (and other radioactive isotope) data, DNA and RNA trees, …

Personally, I find it incomprehensible that anyone could read Richard Dawkins’ The Greatest Show On Earth : The Evidence for Evolution, and still deny that evolution occurs. But of course, those who deny evolution aren’t going to be reading Dawkins. Or Stephen Jay Gould’s magnum opus, The Structure of Evolutionary Theory. And if they did, they’d simply assert that Dawkins and Gould are (or, in Gould’s case, were) a part of the grand conspiracy. Evidence schmevidence. There is no logic that can be brought to the table.

To be truly religious, one needs a blind, unshakeable faith. I know a fair few truly religious people. For the most part, we coexist pretty happily – I try not to convert them, they try not to convert me, and all is good. We try not to be offensive to each other. (Mind you, I haven’t always been like that, as my wife loves to remind me…)

But here’s the thing. The Quran, the holy book of Islam, contains over a hundred verses that call Muslims to war with nonbelievers. Muslims who don’t join the fight are threatened with Hell. Of course, the majority of Muslims choose to interpret their holy book in a different way, just as most Christians ignore or reinterpret the more insane and/or genocidal parts of the Old Testament. Unfortunately, the fundamentalists who gunned down the staff of Charlie Hebdo don’t believe in watering down the Quran. Non-believers are to be put to the sword, as in fact are moderate Muslims, for they too are sinners.

For Islamic fundamentalists, there can be no such thing as free speech. A cartoon that mocks Islam or its prophet can only be punished with violence. It’s a war with the fundamental ideals of the West.

So what of Charlie Hebdo? The magazine and its editors and contributors have been accused of bigotry and intolerance by many. And at face value, many of their cartoons seem decidedly bigoted and intolerant. Nonetheless, I can’t read or speak French, so I don’t know whether there’s important context or subtext that I’m missing. At any rate, a great deal of their cartoons that I’ve seen online seem decidedly tasteless, at the very least. (For a defence of Charlie Hebdo, follow this link.)

However, it shouldn’t need to be said that no one should ever be executed on the grounds of taste. And even if Charlie Hebdo’s content was bigoted and intolerant, it also shouldn’t need to be said that bigotry and intolerance aren’t grounds for execution either.

Religion is an idea, and any idea should be able to be defended in debate. These fundamentalists are attempting, through violence, murder and intimidation, to suppress a contest of ideas. And for that reason – regardless of whether Charlie Hebdo’s publications were tasteless, bigoted and intolerant – the offending cartoons should be reprinted around the world, to show that those who seek to spread their ideas through violent means will never win.

2006 Charlie Hebdo cartoon: "Muhammad overwhelmed by fundamentalists".

2006 Charlie Hebdo cartoon: “Muhammad overwhelmed by fundamentalists”.

2011 response to the firebombing of the Charlie Hebdo offices.

2011 response to the firebombing of the Charlie Hebdo offices.

"I'm the Prophet, moron!" "Shut up, infidel!"

“I’m the Prophet, moron!”
“Shut up, infidel!”

Freedom to offend?

In the wake of the Charlie Hebdo shootings, much has been written about the importance of freedom of speech. And many here in New Zealand have waxed lyrical about just how much freedom of speech we have here. It’s enshrined in s14 of our Bill of Rights Act, which states that:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

“Free speech includes the right to offend others and the right of others to denounce you in equally offensive terms,” trumpets a Dominion Post editorial. Which is all very well in principle, but is that really true in practice in New Zealand?

Not so much, apparently.

Lets take a look at at s4 of the Summary Offences Act 1981. Section 4(a) makes it a criminal offence to, within view of any public place, behave in an offensive manner. Likewise, s4(b) criminalises someone who in any public place, addresses any words to any person intending to insult or offend that person.

Of course, s4 of the Summary Offences Act must, where possible, be interpreted in a way consistent with our right to freedom of expression. So what is one to make of last year’s case involving the Queenstown police constable who was convicted of using offensive or insulting language, after she racially abused a Malaysian taxi driver?

Constable Jenny McNee, while pissed as a chook, told a taxi driver to:

“Fuck off to India, you come here and get all the Kiwi jobs. Eat your fucking curry and fuck off to India. This is a Kiwi job.”

Now that’s certainly a fairly offensive and insulting thing to say to a guy who’s just trying to earn a living. In addition to her getting his nationality wrong. Should it be a criminal act though? In my opinion, certainly not. Individual concepts of what is offensive or insulting are frighteningly diverse. Make a derogatory comment about Lorde to one of her devoted fans and you’ll see what I mean…

If “[f]ree speech includes the right to offend others”, then s4 of the Summary Offences Act needs to be drastically rewritten. In the meantime, the idea of a blanket freedom to offend is somewhat hyperbolic…