Three key issues emerge from our review of submissions to the Select Committee which considered the Bill in 2004: public ownership, access and navigation, and protection of Māori customary interests in the foreshore and seabed. In our view, these issues remain at the very heart of ongoing concerns about the legislation.[1] [Emphasis added]

In summary, the Court ruled that:

• the Crown was wrong to contend that certain statutes affecting the foreshore and seabed had had the effect of extinguishing such Māori customary title as might exist; and
• the Māori Land Court has jurisdiction, under Te Ture Whenua Māori/Māori Land Act 1993, to determine whether any part of the foreshore and seabed is still Māori customary land.

While the decision gave rise to uncertainty regarding the “ownership” status of the foreshore and seabed, it also confirmed that this could be tested in the Māori Land Court. However, rather than let that process run its course, the government decided to legislate. The Act vested in the Crown title to all foreshore and seabed land not already in private ownership. It also made some provision for Māori customary interests to be recognised in limited circumstances.[4]

a) What were the nature and extent of the mana whenua and public interests in the coastal marine area prior to Attorney-General v Ngāti Apa [2003] 3 NZLR 643

b) What options were available to the government to respond to the Court of Appeal decision in Attorney-General v Ngāti Apa [2003] 3 NZLR 643

c) Whether the Foreshore and Seabed Act 2004 effectively recognises and provides for customary or aboriginal title and public interests (including Māori, local government and business) in the coastal marine area and maintains and allows for the enhancement of mana whenua

d) If the Panel has reservations that the Foreshore and Seabed Act does not provide for the above, outline options on what could be the most workable and efficient methods by which both customary and public interests in the coastal marine area could be recognised and provided for; and in particular, how processes of recognising and providing for such interests could be streamlined

The Panel will also need to consider how these processes will integrate with legislation that regulates the coastal marine area.

The NBR reports that the controversial s92A of the Copyright Amendment Act will be scrapped.

If you recall its implementation was to be "delayed a month while ISPs and copyright holders continued efforts to work out a voluntary agreement on how it would be enforced ... if they could not agree, the clause would be suspended." I predicted then that "in other words, as written, it's dead."

TelstraClear bailed from the talks, making it pretty clear that not only was it not the job of ISP's to be judge and jury, so also was it not their jobs to fix badly drafted legislation. Given how pear shaped things had become, today's announcement from Prime Minister John Key that that the government would be redrafting the section was not surprising.

Awesome victory for the blogosphere whose blackout campaign placed considerable pressure on the government to act.

My post about student association membership reminded me that just yesterday I stumbled accross this article that I wrote for Critic's diatribe column when we were at Otago.

Despite the fact that OUSA membership has probably increased since we were there, that NZUSA's annual budget is now almost certainly much more than the figure I quoted below and these days the student associations tend to promote Green party policy more than the Alliance's it is still very applicable so I have reproduced my article here.

They Just Want Your Money

Free education will never exist.

Even if the government funded 100% of tertiary study costs, students would still have to pay to get an education – even if it were a fact that ‘government money’ grew on trees.

Why? Because student association membership fees are compulsory.

Want a tertiary education? Then you have to join the student association. No choice, no argument; if you want to get your grades then cough up the best part of $100 to OUSA.

Apart from being a violation of the Bill of Rights – s17: “everyone has the right to freedom of association” – it smacks of hypocrisy.

The loudest campaigners for free education, the advocates for hard-up students, are funding their campaigns, national and international flights, their catered conferences, the very handcuffs they chain themselves to government architecture with, with a total budget estimated to be around $18 million annually.

This income is sourced entirely from the pockets of the very people they claim should not have to pay a single cent to get an education.

So long as student association membership remains compulsory, free education can never exist.

Effectively, NZUSA’s $400,000 annual budget – also taken entirely from students – is a total waste of money. And for what? To tell us to vote Alliance. Who? Over 90% of us did not vote for free education last election, demonstrating most of us think we should pay something substantial towards our education.

OUSA use our money and voice for things political, controversial, environmental and occasionally student related. Maybe I would mind compulsion less if they steered clear of the political, did not comment on controversial topics, that those they allegedly represent have a diversity of views on, and provided good services. However, even if they did all this, their compulsory subscription would still be immoral.

It’s that pesky Bill of Rights again. OUSA could be the most wonderful, student advocate and service provider in the country but they would still have no right to hold my grades to ransom unless I forked out and joined them. No more right to do so than any workers’ union has a right to garnish pay-packets, a church to forcibly extract an offering, the Salvation Army to make a benefit deduction.

Student associations are kidding themselves if they think they are any better than any of these organisations – which, incidentally, all manage to stay afloat, be effective at what they do and who they serve by being voluntary. The only type of association that has anything to fear by giving its members a choice to join is one that knows it’s so irrelevant, unaccountable, ineffective and useless that no-one will choose to join it unless they are made to. Which begs the question; why should they be able to force you to prop it up if it is so useless? You’d join if it were good.

Voluntary membership fosters accountability, relevance and effectiveness, because if a union is not these things it will go under. Having cash flow contingent on performance is incentive, having thousands of cash cows you can simply burden further if you blow the budget on, say, ummm, a book store, gives you no incentive to perform relevantly at all. It leaves members totally reliant on the ethics of the student politicians (did I just use ethics and politicians in the same sentence?).

But, we’re told, students can conscientiously object (CO) so it’s not really compulsory, it’s not really a violation of your right to freedom of association. Really? Putting aside the fact that you have to first join or risk late fees and grades being withheld before you can even think about CO-ing, you have to apply to the student union for permission to be exempt from membership. If your evidence is not compelling, they don’t have to grant you a CO. Even if successful, they get to choose which charity to donate your $100 to; you don’t get it back.

I see. I don’t have to associate with anyone as long as I first associate with the student union so I can disassociate with them, assuming they let me, and then make a donation to an ‘appropriate’ charity of their choosing?

It’d make a good Tui billboard: “Student unions don’t violate civil rights. Yeah, right.”

They want you to believe a lie that voluntary membership is some kind of right wing conspiracy, championed by white middle class male members of ACT, when in fact outside of tertiary institutions it’s normal.

Student politicians want your money, they want to illegitimately use your voice to push their personal agendas – the ones they think you should hold. They want you to shut up, roll over and take it. The question is, will you?

On Monday a new University year begins for thousands of New Zealand students. If you are a student, you probably don't even realise that when you paid your fees to enrol at University, most of you joined a political organisation; a political organisation with strident viewpoints on all sorts of controversial hot potatoes that speaks out publicly, lobby's NZ and international governments and claims you share its views.

I am talking about your campus student association and the fact that in New Zealand membership of it at most universities is compulsory.

That "free" alcohol available during Orientation week, those free condoms and dental dams, that gay pride week, the feminist meetings promoting abortion, the of trashing Christianity, the trespassing and occupying of buildings, the protests and demands and all those posters and press releases that sound suspiciously like they were written by Green and Labour party members are all supported, paid for and made on behalf of you.

At Auckland University yesterday, whilst on a campus tour, I was urged to go and join the Auckland University Students Association (AUSA). (AUSA is the only university student association in New Zealand for which membership is voluntary as students there managed to navigate the impossibly difficult method available at law to get rid of forced subscription. However, funding is not voluntary; AUSA's funding is compulsory.)

The enthusiastic recruiter told me and the group I was with that we should join because "you'll get a free jelly-shot and it will cost you nothing." He looked really confused when I was clearly not tempted and seemed very unimpressed when I pointed out to the group that while they wouldn't have to hand over any cash because they had already paid, their membership enabled AUSA to 'legitimately' claim to speak on their behalf on any polarising political and ethical issue they choose to, such as, abortion, euthanasia, terrorism, war, environmentalism, the status of[insert terrorist/communist/liberation organisation], etc giving the false impression to the media and society that all students share their controversial viewpoint; the power they wield and its influence on society is staggering. Your membership also ensures that the University will continue to force all students to fund them if it perceived that AUSA had wide student support. The University is aware of how apathetic students are so it counts support as membership. (The recruiter was even more unimpressed when every member of the group, including those that had begun to eagerly step towards the sign-up table all immediately saw my point and refused to sign up.)

Compulsory membership and compulsory funding of student associations is another issue that this government needs to address. It is not acceptable that these organisations can falsely claim legitimacy on behalf of all students, speak on their behalf on issues that have nothing to do with education that the rest of society is split on and violate the consciences of many they 'represent.' When their policies include campaigns to actively educate the student body that viewpoint X is right/wrong they are forcing some students to fund and endorse campaigns against their own beliefs.

Compulsory membership and funding of political organisations, regardless of how wonderful some of their non-political services might be, is a violation of freedom of conscience. Forced membership of a political organisation is a violation of freedom of association; both are rights protected under both New Zealand and international human rights legislation yet violated by the New Zealand government to this day.

The internet blackout is at an end and the government has responded; s92a of the Copyright Act has been officially stalled and looks rather doomed. The Herald reports:

Section 92a was to have come into force this weekend, but Mr Key said it would be delayed a month while ISPs and copyright holders continued efforts to work out a voluntary agreement on how it would be enforced.

He said if they could not agree, the clause would be suspended.

If they did reach an agreement, it would be reviewed in six months.

So in other words, as written, it's dead. Yay.

Tumeke report that most of the NZ blogosphere has gotten behind the blackout, blacking out chunks of their pages and/or running banners highlighting the campaign. Tim made this mosaic showing the impact on the front pages of NZ's top 50 or so blogs - you can see MandM towards the bottom right corner.
The government really has to act on this one; it is not everyday you see so many people, commonly at odds with each other, representing pretty much the entire political spectrum, agreeing on one issue. I mean, when Not PC sings the same tune as The Standard surely the resulting blogosphere shockwave has to be able to reach the Beehive?

Over recent years [read: under the previous Labour government] we have been increasingly concerned at ill thought out, badly drafted legislation that removes power from the judiciary and confers it on other bodies within society that are not subject to the rules of evidence and due process.

The anti-smacking bill is an obvious example. The bill removed the defence of reasonable force for assault from the Crimes Act and instead placed discretion as to what is reasonable in the hands of the police as opposed to the court.

The Seabed and Foreshore Act prevented private citizens from taking a property dispute with the Crown to court and instead the legislature, in a massive conflict of interest, simply declared that the property belonged to them.

The weakening of due process is further evidenced by the abolition of an independent appeals court (The Privy Council) and the changes to double jeopardy and the requirement for jury unanimity.

The Copyright Amendment Act, due to come into force on 28 February 2009, is another example. The Labour government wanted to tighten up copyright law, particularly around internet copyright violations so far so good. Except that bits of it were not drafted so well and despite the Select Committee deciding, unanimously, to delete the questionable section from the proposed law the Labour government decided to keep it in.

The sections at the heart of the controversy are:

92A Internet service provider must have policy for terminating accounts of repeat infringers

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

At first glance this might seem a bit innocuous. However, as David Farrar points out:

The bill did not define “reasonably implement”, “appropriate circumstances” or who decides if someone “repeatedly infringes”. It also turned ISPs into an unpaid enforcement arm for copyright holders.

Farrar’s article explains the issue well citing intellectual property experts and is worth a read. Essentially, ISP’s will be subject to the threat of legal action if they allow a person who repeatedly offends to use their internet services. The problem is that without these terms being defined they simply will not know whether acting on or failing to act on a complaint subject them to legal action. Being on the wrong side of the law is costly so these providers will have to set in place fairly draconian policies to ensure they are indemnified. As the NZ Computer Society states, quoted by David Farrar, The law essentially places “ISPs in the position of potentially having to be the policeman, judge, jury and executioner in what are often vague and unclear situations”

For some people a website is a bit of fun, a creative outlet, for others it is their business, their livelihood; for all, regardless of whether it is a source of income or not, a website and its contents is the private property of its owner. When a law is passed that allows a single citizen the power to lawfully deprive or interfere with another citizen’s property on the basis of a single accusation, with no requirement for evidence and no opportunity for a hearing, a first year law student should be able to tell you there is something wrong with the law.

The National government needs to repeal this section. Like all governments they are more likely to do this if they feel there is wide spread community support (as lousy a reality as that is) so the internet community is banding together with an Internet Blackout from February 16-23 that calls the government to fix this legislation.

I just stumbled across this from Kiwipolemicist; it seems that if you were born in New Zealand from 1969 onwards, chances are that the New Zealand government is holding a sample of your blood. Some 2.1 million blood samples taken from newborns via the 'heel-prick' test are still on file today stored on "Guthrie cards."

This is basically an inchoate genetic database; if the government wanted to, it could easily tap into this info and have the means get a substantial head-start on creating a DNA profile of all its citizens. The Hon Peter Dunne is quoted in a report by the Privacy Commissioner, at para 7.4, arguing that the database has the potential to be “a powerful weapon in the fight against crime.

But hang on a minute, this powerful weapon would be obtained without probable cause; in this instance, evidence that a reasonable person would deem sufficient to conclude that a particular person will or has committed a crime. There are strong arguments to justify the New Zealand DNA Data-Bank's holding of two crime based DNA databases, the National DNA Database (containing DNA profiles from those convicted of serious offences) and the Crime Sample Database (containing DNA profiles from crime scene samples). However, to talk of creating one from every citizen is to consider a serious breach of civil liberties; such liberties as the right for innocent people to be protected from unreasonable searches and seizures on the part of the State.

One might argue that if the State has not made this move having had this database since 1969 it is not likely to. In addition to being, not the point, I think this is naive and KP agrees with me:

[T]rusting the state to properly use personal information is like putting a dog and a steak in a closed room and expecting to find the steak untouched the next day.

A Memorandum of Understanding regulating requests from the Police for access to the Guthrie Cards is already in existence and has been put to use, more than once. Further, we are all familiar with NZ governments, from both camps, being too loose with civil liberties when they have an end in mind.

As Franklin said, an ounce of prevention is worth a pound of cure, so while I still can, I am going to apply to have mine and my children's DNA returned.

Michael Laws has written a strong piece in the Sunday Star times on child abuse which pulls no punches and calls for a return of the death penalty. Most of what he says is spot on (well there is a bit of the 'someone else should be doing something' going on) but this statement is so far off it warrants a response:

... stop buying the liberal excuses. Every blame-shifter, every apologist, every politically correct naysayer is, in reality, part of the problem. They are the pimps of abuse - they condone ill-treatment because they make excuses for the perpetrator.

And I include defence lawyers in that retinue because they whore their intelligence to protect the evildoers. As a rule, criminal defence lawyers have no soul. ... [emphasis added]

Now maybe I took issue with this because of my vocation, but 'defence lawyers whore their intelligence?' Is Laws arguing against due process? Should every accused automatically be assigned an in-intelligent lawyer? Perhaps we should forget about a trial altogether?

Further, 'defence lawyers have no soul?' Is Laws aguing against the presumption of innocence? If the court finds the accused not guilty then we must assume the defence lawyers were right.

What's next? A complete removal of autrefois acquit and autrefois convict (commonly dubbed "double jeopardy") in cases where the public 'know' the court got it wrong?

The defence laywer's job is to present their client's case. The state's job is to present the evidence that the accused is guilty. If the public is to have faith in the integrity of the justice system we should hope that both sides are highly skilled; the standard of evidence must be so high that the court, and the public, are left beyond any reasonable doubt of the accused's guilt, or lack thereof; expecially if we are to consider re-introducing the death penalty.

If the state is competent, and it is patently obvious the accused did it, then the most intelligent defence lawyer in the world will not be able to combat this. When the state bungles a case the last thing we should be doing is booing and hissing at the defence, do we really want to drop the standards and make it easy for the state to get a prosecution? This will give the state far too much power and society far too much uncertainty in the justice system.

We have to remember, as FE Smith points out in the comments section here, that it is not the defence lawyers who kill the Nia's of this world and we must put our faith in the presumption of innocence and in due process because the alternative is worse.

As I have previously argued, the presumption of innocence means, inevitably, that sometimes the guilty will walk and the innocent will be convicted. Whilst no one likes or condones these negative connotations the alternative is worse because the solution to ensuring that the guilty always get convicted is to imprison every accused and likewise, the solution to ensuring the innocent never get convicted is to never convict anyone. The system is balanced to make it difficult to convict, and this is where the intelligent defence lawyer is necessary, because it is generally deemed worse to send an innocent person to jail, or give them a lethal injection, than to fail to punish the guilty.

So we are left having to accept that once a court has heard a case, weighed the evidence and ruled, that's that. Demonising the defence lawyer because, despite the court's assessment, the public "know" this person is guilty (good ol' trial by media) is to give the state far too much power and to give society far too much uncertainty in the justice system. Whilst it may succeed in increasing the chances of nailing the guilty it equally runs the risk of allowing the state, with its vast resources, to hound and harass the innocent.

None of us like the idea that the someone will not be held to account when a child is abused to death but we must be careful we are not calling for anyone to be held to account; what we want is the guilty to be held to account and for that important distinction to be drawn we need good defence lawyers.

I was absolutely horrified to wake up this morning to hear that Parliament had passed the Criminal Procedure Bill last night.

While there were some good things in the Bill (as there usually are) such as the district courts being able to hear P cases, I am most appalled at the attack on double jeopardy; the rule that a defendant cannot be tried more than once on the same set of facts (note: we are not talking new facts, new evidence). This law was laid down in section 26 of the NZ Bill of Rights Act:

"No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again."

The doctrines autrefois acquit and autrefois convict (the defendant has already been acquitted or convicted on these facts) have long been established within common law and find their place in human rights charters around the world so for the government to erode them in this manner is yet another example of their disregard for rights and freedoms.

In the system of law we use in New Zealand a person is innocent until proven guilty. This system means inevitably that sometimes the guilty will get off and the innocent will be convicted. Whilst no one likes or condones these negative connotations the alternative is worse because the solution to ensuring that the guilty always get convicted is to imprison every accused and likewise, the solution to ensuring the innocent never get convicted is to never convict anyone. The system is balanced to make it difficult to convict because it is generally deemed worse to send an innocent person to jail than to fail to punish the guilty.

So we are left having to accept that once a court has heard a case, weighed the evidence and ruled, that's that. Allowing the state to keep having a go because despite the court's assessment, the state "know" this person is guilty (or worse because of trial by media, the public "know") is to give the state far too much power and to give society far too much uncertainty in the justice system. Whilst it may succeed in increasing the chances of nailing the guilty it equally runs the risk of allowing the state to run trial after trial after trial with its vast resources against the innocent.

Labour undid hundreds of years of jurisprudence on human rights formulated by far greater legal and ethical minds than any of them possess in one sitting last night. Just remember that next time you decide that someone guilty got off after listening to the 8 second soundbite on the news or reading the 600 word article in the Herald; if a judge and 12 of your peers who heard all of the evidence, got to see the body-language and hear the tone of voice of the witnesses ruled the other way, maybe they were in a better position to assess the case. If the police failed to build their case then tough. If anything, knowing they can have a second crack will encourage them proceed with a lower standard of evidence.

Of course with the passage of this Bill the government have not completely removed Double Jeopardy but have only removed it in certain circumstances which the Herald reports as:

"when compelling evidence has been presented that is likely to lead to conviction, and when an acquittal is found to have been tainted."

However, the common law already allowed this following Connelly v DPP [1964] AC 1254, which allowed exceptions on the grounds of special circumstances such as so called tainted trials and new evidence but this law goes further than that.

When you put together:

The Doonegate affair
The repeat failure to rosecute politicians who commit crimes
The abolition of the Privy Council replaced with a unilateral state appointment of judges
The passing of the Terrorism Suppression Act
The Electoral Finance Act
The illegitamcy of retroactive legislation
The placing of what consistutes reaonable force in the hands of the police rather than a court
The personal use of police resources
The public commitment to marginalise critical viewpoints from society
The increased presence of trial by media
The increased growth and intrusion of the state into daily life
(and probably more than I can think of just now)

alongside a series of reforms, the common thread of which makes it easier for the state to successfully prosecute we realise just how scary New Zealand has become in the few short years of this Labour government.

Madeleine

UPDATE:

I discovered on reading Don't Vote Labour "The bill passed its third reading 108-11, with the Greens, the Maori Party and independent MP Gordon Copeland opposing it."

While I am not surprised to find myself in the same company as the Greens and the Maori Party on this one as the Greens do occaisionaly stand on the right side of these types of ethical issues (though often the reasons they give are completely bizarre) and the Maori Party I have a lot of time for on some issues of this nature such as the Seabed and Foreshore, but what was with ACT voting for it?