Legal aid or legal trough? [updated]

Legal aid is lawyer aid. It’s a legitimate use of govt’s money to pay for a legal system, but nowhere does that mean it’s legitimate to make people independently wealthy on govt money.

As a poor much put-upon taxpayer, there’s something distasteful about watching a courtroom lawyer running run a defence for a scumbag based on narcissistic whining and flatulent self-delusion (Ms Judith Ablett-Kerr defending Sophie Elliot’s murderer), or watching Michael Reed run a $2.6 milion defence-by-media on behalf of David Bain – watching all that courtroom legerdemain and knowing that I’m picking up the tab for the whole legal charade. (Not to mention Deborah Manning's McLeod & Associates who pulled down $2 million from us taxpayers a few years ago to plead for Ahmed Zaoui. Or Joe Karam, who we all applauded for putting his bankroll where his support for David Bain was, only to discover that it was in fact we taxpayers who had been bankrolling Mr Karam.)

This is not legal aid so much as a legal trough, and as inner-city restaurant owners know those be-wigged snouts have very rich tastes – and they know how to inflate a bill. There’s no species more venal than lawyers making up their bills (un less of course it’s politicians making up their expense claims).

Just as the injustice of prohibition keeps gangsters rich, so too does the iniquity of the legal aid system keep lawyers farting through silk.

The just-announced radical review of the welfare system for lawyers that is legal aid is long overdue.  Regular readers of this blog would know that I’ve long been a fan of removing lawyers from sucking off the state’s tit, replacing legal aid welfare payments with a public defenders’ office. 

In fact way back in 2005 I wrote that with some very few noticeable exceptions, the more I see of lawyers and their venality, the more I find myself in favour of nationalising the lot of them. When considering justice of removing their taxpaid path to riches, you might consider the words of H.L. Mencken:

“All the extravagance and incompetence of our present Government is due, in the main, to lawyers, and, in part at least, to good ones. They are responsible for nine-tenths of the useless and vicious laws that now clutter the statute-books, and for all the evils that go with the vain attempt to enforce them. Every Federal judge is a lawyer. So are most Congressmen. Every invasion of the plain rights of the citizens has a lawyer behind it. If all lawyers were hanged tomorrow, and their bones sold to a mah jong factory, we'd be freer and safer, and our taxes would be reduced by almost a half.”

Ain’t that the truth. Simon Power should send the country’s lawyers a copy of Mencken’s words on a piece of stiff parchment, with the advice that if they disagree with being removed from the state tit that they fold it until it's all sharp corners, and then insert it where the sun doesn't shine – and consider themselves lucky the country’s mah jong factories are oversupplied.

So legal aid can go.  I’m quite comfortable with the concept of the public defenders’ office instead as a way to defend those who can’t afford their own counsel, or who can’t attract the attention of private organisations like the American Institute for Justice – funded by donations to fight for individual rights whenever they’re menaced. (If only New Zealand had such a place, or lawyers with such an interest.)

Frankly, once you start ‘nationalising’ a few lawyers and take away their golden spigot we’ll soon see lawyers fees coming down. And start hacking back the intrusions of excessive and non-objective law and regulation that feed the parasites, and you’ll find that we won’t need so many of the elegant bastards anyway.

UPDATE: I liked this comment from Bez:

“Law is one of the few legitimate purposes and activities of the state. The question however is where to draw the box inside of which that activity must be contained. Because we don't have that clear there's just too much 'wetlands' in which leeches prosper.”

Provocation is not a legitimate defence [update 3]

Lawyer Stephen Franks argues at his blog this morning that provocation should be a defence in law, though not to the extent that it’s just been abused in a Christchurch court by a clear-eyed killer and his loathsome legal team.

Self defence (or accidental death) isn’t enough to cover all situations, says Franks, who offers this example:

    If Henk Bouma had been able to free himself to attack Poumako and his henchmen while they were leaving his Reporoa farmhouse no legal system with any respect for normal human emotions should convict him of a wrong. They tied Bouma up, took his wife Beverly to suffer for hours in another room, taunted Henk, then shot her dead.
    Self defence would not be available to someone in Henk’s position if he attacked the home invaders as they were leaving, because they were clearly then ending their threat. If only the facts had played out as proposed in this thought experiment. He would have deserved commendation, not conviction.

I don’t agree.  Don’t agree at all.  Much though it pains me to say it, Henk Bouma would have deserved conviction if he’d lost self control and done to those animals what we’d all like to do in his place. The provocation certainly should have been grounds for a light sentence, but his guilt would be beyond doubt. 

Our right to life gives us our right to self defence – what it doesn’t do however is give us a right to retaliate in cold blood, or even highly-charged blood. The very point of law is to place the retaliatory use of physical force under objective control – to take retaliation away from the lynch mob and place it in the hands of civilising force.

The use of retaliatory force [summarises the Clemson Institute] cannot be left to the discretion of individual men who may disagree about its use in particular circumstances. By delegating this power to their agency, the government, the citizens can ensure that objective rules in the form of objective laws [exist] to guide its use.

We can surely sympathise with a Mr Bouma who had attacked and killed his wife’s torturers. Given the shambles of the present legal system – a place where objective rules in the form of objective laws are celebrated only in their absence – a place where courts put victims on trial and convict people for crimes without any victims at all – where murderers kill while out on bail, convicted criminals remain unincarcerated even after dozens of guilty verdicts, and jailed criminals can enjoy all the comforts of home – a non-objective “system” where there’s every expectation that Mrs Bouma’s murderers could easily go unpunished – in this sort of place we should sympathise if Mr Bouma had given vent to what we all would have felt in his shoes. 

But that doesn’t make it right.  Life is not a Charles Bronson movie.

Let’s use the anger instead to keep insisting that the justice system be just in more than name only, not further contaminated by the existence of bogus defences to compensate for what is becoming a bogus justice system.

* * Other posts on this trial:

• “He was asking for it”
• Sticks & stones will break my bones, but names might get me manslaughter

 

UPDATE 1: The jury has declared Sophie Elliot’s killer guilty of murder.  The correct result.

The job now is to ensure that no other victim’s family has to endure in court and from the country’s media what Sophie’s family and friends had to endure at the hands of this lowlife and his loathsome lawyer – which means working to remove the (now lessoned) defence of provocation from the books.

UPDATE 2: Greg Edwards, who took down his Facebook group last week at the request of Sophie Elliot’s parents – the narcissist’s lawyers were using it as an excuse to delay the trial – has started a new one: No More Provocation Defence for Murder!!! Enough is enough!!!.  Don’t just get mad, let’s get good law.

UPDATE 3: Perhaps something else for which to use this case as a spur: just consider the legal aid bill that the abominable Ablett-Kerr will now be presenting to taxpayers for an open-and-shut case she dragged out for weeks.

“He was asking for it” [update 3]

There’s no excuse for murder.

You can kill in self-defence if your life is in danger.  That’s justified.

You might kill by accident.  That’s manslaughter.

But if you kill because you’ve been “provoked” – an excuse being run in two recent trials – now that’s just bullshit.  It’s not killing in self-defence: a dose of the verbals is not a threat to your life. It’s not an accident: if you can’t control your anger, then you need to learn how to.

Killing when provoked is not manslaughter; it’s murder. Killing while claiming “diminished responsibility” is not manslaughter; it’s murder. In both cases, the killer has to take full responsibility for what he’s done.

There is no argument for retaining in law either the “defence” of provocation, or the defence of “diminished responsibility.”  Self-responsibility means taking responsibility for what you’ve consumed (no matter what your consumption might lead to), and taking responsibility for your actions – however angry you might have been.

Living in a civilised society means recognising that force must be barred from social relationships – even if you’re provoked; it means recognising the right to life,  even when some arsehole makes you want to strangle them.  The right to life means what it says: the right to be protected even when you’ve just pissed off someone who has a drug habit or a short fuse.

The “defences” of provocation and “diminished responsibility” reverse the order of objective law.  Instead of protecting the victim it puts the slain on trial; instead of condemning the guilty it offers them a free pass and a grandstand; instead of inviting good court reporting it gives media ghouls a chance to contaminate the airwaves with grotesquery and narcissistic whining; instead of a simple trial based only on the facts, it grants defence lawyers a fortune in legal aid to run a defence based on narcissistic whining and flatulent self-delusion; and instead of reflecting good objective law it makes a mockery of law, of justice, and of the very right to life that good law is supposed to protect.

There is no argument for retaining the “defence” of provocation.  None at all. Murder is murder. 

“He was asking for it?”  “She was asking for it?” No, you arseholes.  They weren’t.  Sticks and stones will break your bones, but provocation isn’t going to hurt you: Get over it.  And if you can’t, if you “snap” and do your worst, then take responsibility for that instead of whining and wasting everybody’s time – while besmirching the memory of your victim.

UPDATE 1:  Philip comments (thanks Philip) that those who are interested in reading more about the issue of provocation should read the Law Commission’s pretty comprehensive report released back in 2007, which concluded “that section 169 of the Crimes Act 1961 should be repealed, thereby abolishing the partial defence of provocation in New Zealand. We believe that it will be preferable for provocation to be dealt with by judges solely as a sentencing issue.”  For once, I agree with the Law Commission.

UPDATE 2: Greg Edwards has started a Facebook group called Clayton Weatherston is a Murderer. He committed murder, not manslaughter.  Join up now before Facebook (or the Solicitor General) closes it down as “hate speech.”

UPDATE 3: ‘Blunt’ takes on the “brainy guy defence”:

Would you rather hug a lawyer?

Jonathan Krebs of the Law Society is bleating this morning about two former jurors on the Bain case who hugged David Bain after the trial, and then joined Team Bain’s after-match party back at the Bain HQ.

This is "a bad look"  says Mr Krebs. Asked to explain what’s actually wrong with it, Mr Krebs could only say that it is "all about appearances" (and I feel obliged to point out that much the same might be said about lawyers’ honesty).

But in fact this is not “all about appearances” at all.  Whatever Mr Krebs or I or anyone else thinks about the jury's decision, they had all the evidence in front of them to make their decision and we did not. 

And once that decision is made their job is done. At that point they become former jurors and are free to do whatever they like, with whomever they like, at whatever time they like – without having to ask Mr Krebs whether or not it looks okay to him.

And if it really were all about appearances, then I feel obliged to point out that this is the same Law Society that decided after Clint Rickards was sacked by the police that if he was unfit to be a policeman then that he was at least of sufficiently "good character" to pay his dues to the Law Society. The same Law Society continually demanding that taxpayers be dunned even even more to make up their members’ already vastly inflated legal aid bills.

Not a good look at all, Mr Krebs. 

UPDATE:  Obviously short of a headline, Labour’s Lianne Dalziel joins the Krebs chorus about the honesty or otherwise of former jurors.

Ironic, really, since the appearance of the Labour Party’s honesty over both the Pledge Card and the Electoral Finance Act – over more specifically, the obvious lack thereof – was what eventually brought the last Labour Government down.  Ms Dalziel would be well advised to pay attention to what does matter, not what doesn’t.

Justice delayed is still justice denied, but . . .

I’m in two minds about Simon Power’s latest justice reforms.

A radical review of the welfare system for lawyers that is legal aid is long overdue.  Regular readers of this blog would know that I’ve long been a fan of removing lawyers from sucking off the state’s tit, and replacing legal aid welfare payments with a public defenders’ office.  There’s no species more venal than lawyers making up their bills (un less of course it’s politicians making up their expense claims).

In fact way back in 2005 I wrote that with some very few noticeable exceptions, the more I see of lawyers and their venality, the more I find myself in favour of nationalising the lot of them. When you consider the justice of removing their taxpaid path to riches, you might consider the words of H.L. Mencken:

All the extravagance and incompetence of our present Government is due, in the main, to lawyers, and, in part at least, to good ones. They are responsible for nine-tenths of the useless and vicious laws that now clutter the statute-books, and for all the evils that go with the vain attempt to enforce them. Every Federal judge is a lawyer. So are most Congressmen. Every invasion of the plain rights of the citizens has a lawyer behind it. If all lawyers were hanged tomorrow, and their bones sold to a mah jong factory, we'd be freer and safer, and our taxes would be reduced by almost a half.

Ain’t that the truth. Simon Power should send the country’s lawyers a copy of Mencken’s words on a piece of stiff parchment, with the advice that if they disagree with being removed from the state tit that they fold it until it's all sharp corners, and then insert it where the sun doesn't shine.

So legal aid can go.  I’m quite comfortable with the concept of the public defenders’ office instead. But I’m not so happy to see the right to a jury trial so peremptorily dismissed. The right of a person to choose to be tried by a jury of their peers is just one valuable, time-honoured legal protection against innocent people being rail-roaded into prison. 

It is certainly true that the wheels of NZ justice spin slowly – and it’s true too that justice delayed is justice denied.  But the cure for this is not to remove legal protections to make it easier to lock people up – they key fix would be to remove so many of the ridiculous laws on our books that clog the justice system up.  Restrict law only to those that protect individual rights, you can take a chain saw to the country’s statutes.

Back in the 1800s lawyers like Abraham Lincoln could ride around on horseback from trial to trial with only three legal books in his saddlebag, one of those being a copy of Blackstone’s Commentaries on the Law of England, the bible of English-speaking law for more than a century.  Right now that lawyer on horseback would have to be a accompanied by a whole wagon train of toadies towing a whole caravan of legal books, if they were to carry with them all the laws that now assail our country.

Start hacking back the intrusions of excessive law and regulation, and you’ll find that courts will unclog themselves very quickly.

A Tuesday ramble

A Tuesday avo’ ramble through a bunch o’ links, a bunch of good stuff, that I’ve been meaning to write about more thoroughly, but haven’t had sufficient time. Here we go with all the stuff that’s too good to miss, in no particular order:

• New Zealand monetary policy criticised … by Peter Schiff. Listen here to him criticise Alan Bollard’s approach at the Reserve Bank. “Really irresponsible” is the kindest thing he can say about Alan – but he’s got much worse to say about America and the Fed.
  
• The Libertarianz party notes with alarm the arrest of the Aotearoa Legalise Cannabis Party's candidate in the Mt Albert by-election, Dakta Green – an arrest that seems strangely consonant with his announcement as a candidate. “While Libertarianz believes that political party candidates should be subject to the laws of the country like any other citizens, the timing of the arrests rings alarm bells that the police are politically motivated in their actions.” Read Libertarianz: Free Dakta Green!.
  
• Tim Selwyn likes the look of the support. “This is a wonderful development. If ever there was a political movement that needed to spark up and chill out it would be the Libz. Good for them.” Read Mt Albert - Libz backing stoners?.
  
• Lindsay Mitchell discovers belatedly that Chris Trotter talks nonsense:

Chris Trotter writes ... that Mr Key and his right wing mates are showing signs that they are about to get rid of "what's left of the welfare state."
This implies most of what constitutes the welfare state has already been dismantled.
All that remains are the unemployment, sickness, invalid and domestic purposes benefits; the independent youth, emergency, and unsupported child benefits; super and veteran's pensions; accommodation supplement and state housing; the minimum wage; Working For Families; residential care subsidies; childcare subsidies; Paid Parental Leave; student allowances; interest free student loans; 'free' public hospitals and public schools; various family and child tax credits; universal no-fault accident compensation; widow's benefit; orphan's benefit; free dental care for the young; free healthcare for under sixes; the Super GoldCard; the Community Services card; the methadone programme; legal aid; Restart and Replace; 9 day working fortnight subsidies; subsidies to hundreds of 'charities'...
No. There's not much to remember. Did I miss anything? Oh yes, there is a case to include corporate welfare, and grants to the arts and sports as part of the broadest-sense welfare state.

So Trotter exaggerates just a little. Who knew?

• On his Fox News Show, Glen Beck is working his way through the people at the Ayn Rand Institute. This week on his show he’s got Harry Binswanger. Watch here at YouTube.
  
• Everyone’s saluting Margaret Thatcher. And why not, she changed a bankrupt Britain for the better. Read:
  • Division of Labour: “Thirty Years Ago Today ... Margaret Thatcher became PM of the UK. Alas, her fine work is being undone by Gordon Brown.”
  • Mark Steyn (via Tim Blair): “Margaret Thatcher was a great leader, who reversed her country’s decline – to the point where, two decades later, the electorate felt it was safe to vote the Labour Party back into office. And yet, in the greater scheme of things, the Thatcher interlude seems just that: a temporary respite from a remorseless descent into the abyss.”
  • Liberty Scott: 3 May 1979 - the day Maggie's revolution started.
  • The Fairfacts Media Show has a musical tribute. I fear the worst.
  • Read the confession of utter economic failure by the Prime Minister Thatcher threw out, James Callaghan. It’s a message for finance ministers everywhere, and everywhen.
  • And in a related note, I recall a few weeks back how Britain’s economic depression, brought about by three decades of socialism, inspired a generation of musicians to get angry.
    
• And everyone’s favourite present-day British politician, Daniel Hannan, talks to the Freedom Association & Conservative Future organisations. Kaiwai has the videos.
  
• Meanwhile, news just in that Wall Street II is in the wings. Cactus Kate looks at what might be on the cards for an ageing Gordon Gekko. “Let’s make him a winner this time in trading the bullshit and hot air that are carbon credits off the credit-crunch crisis in 2009.”
  
• While we’re on Gordon, let’s ask the question “Is Greed Good?” Says the Ayn Rand Institute’s Yaron Brook in answer, “The answer to this question really depends on what you mean by ‘greed.’ If you mean the pursuit of short-term gratification at any cost, then I do think greed defined that way is bad.” However . . . read Is greed good? Yaron Brook responds for the full answer.
  
• Chrysler (and Gekko) is what happens when CEOs don’t pursue their rational long-term interests, and sell out instead to the short term. The final injustice, as George Reisman points out, “is that the United Automobile Workers Union and its pension fund is to become the largest stockholder in Chrysler when the firm emerges from bankruptcy. his is the very same union that brought about the collapse of Chrysler in the first place. Its philosophy and policy of grabbing ever more in wages and benefits while doing almost everything possible to prevent the company from earning the wherewithal to pay those wages and benefits made it impossible for the company to survive in the face of competition not subject to such union bloodsucking.” [And be warned that George Reisman’s blog may not be long for this world.]
  
• The Depression Recession World Economic Collapse affects everyone, even porn stars. Says ex-porn star Penny Flame,“The funny thing about the industry, right now . . is that NOBODY IS WORKING. . .” In a classic description of how malinvestment in a boom leads to tumbleweed in the bust, she continues, “Too many people shot too much content. That’s why none of the girls are working [now]. . . But in the end, everybody getting excited and over shooting has over-saturated the market, and now there is all this porn with no home, not enough people to buy it, not enough horny men and women to watch it….” It’s not lack of demand, it’s too much malinvestment, baby.
  
• How do you make a reduced amount of money go around in a Depression? Well, one thing you don’t do is raise wages. Australian Mark Wooden is the latest to make that case: Minimum-wage freeze will keep people in jobs.
  
• Oh, what do you think has been the nest performing asset class over the last decade? No, guess again. It starts with a ‘g.’ See below, and the same thing here for American assets.
  
  It’s the “decade of gold.” “How come so few people have noticed...?" wonders Adrian Ash. Read When Gold Ruled The Earth.
  
• And I can’t resist pointing out how well the Iraqi dinar has been doing. From nearly 2,000 to the US dollar immediately post-Saddam, it now sits at 1158 to the dollar. That’s not a bad return over just a few years since I first wrote about it.
  
• Meanwhile, Matt & Madeleine explain how to be a famous blogger. It’s childishly simple:
  
  
• And when better to gab about God than after linking to M&M. Danyl at Dim Post looks at nudity, new clothes, and why there isn’t turtles all the way down – and ridiculous reviews of The New Atheists. Scratch your atheistic itch at Gabbin’ about God redux.
  
• Why do politicians break their promises? asks Brian Caplan. Might as well ask why cats lick their arse. Same answer: Because they can.
  
• Vital Signs has more on Militant Islam Moves to Dominate Pakistan's Prosperous Swat Valley. Worrying.
  
• And the Cato blog has more on the destructiveness of using the reputation of good banks to prop up the failed positions of bad banks. See Bank ‘Stress Tests’ Need Transparency. Urgently.
  
• Yaron Brook reckons there’s an Ayn Rand Renaissance going on.
  
• Even long-time arch-enemy National Review is starting to come around, as Samizdata notes. Slightly. Read Objectivist Philosophy for Fun and Profit, (Subtitle: “How a banker avoided ruin by cleaving to Ayn Rand’s system of ethics.”)
  
• It’s all part of the The Irrelevancy of Conservatism, says Edward Cline, who explains why conservatives still need to attack Rand, even when they purport to support her.
  
• And here’s the banker that got the Samizdata and NRO boys excited: John Allison of BB&T, who with his “open defence of rational/individualist/objectivist philosophy, a credo that runs counter to 2000 years of Judea/Christian/subjectivist/marxist ethics … and explicit defence of reason [shows that] Yes, such businessmen do exist, they are not merely the stuff of a well-known novel.” Here’s Allison back in January, in the talk that’s got them excited: The Financial Crisis: Causes and Possible Cures.
  
• And congratulations to Andrew Medworth, proprietor of Britain’s Ayn Rand Forum, who in one thoughtful post at Samizdata cut through so much of the usual bullshit and bluster that usually follows an endorsement of Ayn Rand.
  
• Ever noticed "the troubling correlation between the number of homicides committed by Palestinians and the level of funding of the Palestinian Authority"? The Middle East Quarterly has. Do you think these two things are related? Undoubtedly, they say.
• The Daily Show's Jon Stewart suggested that Harry Truman was "a war criminal" for dropping nuclear bombs on wartime Japan. Sam Pierson points out a kick-arse presentation at Pajama TV that shows "with due respect, just how moral it was. A kick-arse presentation, and worth the 17 minutes," says Sam.
  
• Frogblog is quoting a survey saying "a majority of kiwis support taking real action to combat global warming". “Fine,” responds Liberty Scott, “who is stopping them?” And how come all the measures the Frog supports involve force?
  
• Gonzo has some good news for impecunious art-loving Wellingtonians: “The season of Monet & the Impressionists is winding up its run at Te Papa. Before it goes, Wellington City residents too poor to score the entry fee get in for free this Thursday 7th May.” But watch the small print.
  
• What Can Architecture Learn From Nature? Brett Holverstott finds out.
  
• And finally, guess what happens if you watch Jaws backwards. It becomes “a movie about a shark that keeps throwing up people until they have to open a beach" And what movie do the Ku Klux Klan enjoy watching most? Roots backwards, so they can watch all the slaves go home.
  Jimmy Jangles has more playful thoughts on that theme.

NB: And finally, really and truly, here’s an important and timely P.S. The most thorough interview Ayn Rand ever did was sitting down with Alvin Toffler for the ‘Playboy Interview’ – and the good folk at Playboy magazine have just put it all on line!
As a few of my friends have said, “The interview is a virtual primer, and a teaser of sorts.” And, “No matter how many times I’ve read this interview over the years, it’s the precision, the clarity of mind, that continues to amaze me.”
And, naturally, it means you really can say you’re reading Playboy for the articles.
Read it all here: Playboy Interview: Ayn Rand, March 1964.

All care, no responsibility -- and no privatisation

You'll have heard it reported that National have finally announced a policy that distinguishes the from Labour: if elected, they'll be privatising that bloated bureaucracy ACC.

Sadly, those reports are wholly incorrect. 'Privatise' means "to sell off; to denationalise; to transfer to private ownership."

Unfortunately, National hasn't pledged to privatise ACC at all ... all they've said is that they're willing to open it to competition.

And they haven't even promised to do that; all that they've promised to do is investigate the possibility of opening up ACC to competition ... and this investigation will apparently take three years.

So the reports of a spine are premature.  They're timid even in their timidity.

The latest policy is still replete with timidity.  There's no sign that what is effectively a payroll tax on all employers would be removed -- a payroll tax that is essentially a top-up to the welfare system.  There's no sign that the socialised 'all care, no responsibility' situation would be completely removed.  There's no sign that the compulsion element of workplace insurance would be removed.  There's no sign that victims of incompetence would be able to hold those responsible for their injuries accountable -- incompetence would still be socialised. 

Sure, removing ACC's monopoly over workplace insurance would see premiums plummet, just as they did in the late nineties when the ACC's monopoly was last removed -- and as premiums plummeted so too did the number of workplace accidents, just as rehabilitation and 'customer care' improved markedly. 

Safe employers would no longer need to subsidise the unsafe to the extent they do now, but compulsion is not going to be removed, employers will still be subsidising sporting injuries and the like, and being able to sue those responsible for your injuries will still be illegal.

As long as the ethic of 'no responsibility' and the element of compulsion remains, then even if competition were removed we'd still be the only place in the world with a system that socialises incompetence.

NB: It's worth reminding yourself that the only place in the world that has compulsory 'no fault' insurance is New Zealand.  That's no accident.  No one else wants it.

The shriller opponents of so-called 'no fault insurance' being removed, which it isn't, point to places like the US where the ability to sue those responsible for injuring you has led to outrageous payouts and the enrichment of that class of lawyers known as ambulance chasers.

But as David Littel points out in The Objective Standard, the outrageous payouts and the rewards for ambulance chasing -- the serious problems with the US system -- are not a problem of too much freedom but too little.  American law has become so poisoned by the destructive doctrine of "vicarious liability" and the use of law to achieve social ends instead of corrective justice, that American tort law can now only be described as a weapon of injustice. 

And in any case, it's not what's proposed for New Zealand.

UPDATE:   Says Liberty Scott:

[When] John Key says National will "investigate" opening the ACC Work Account to competition, you have to wonder why it is so insecure about a policy that it implemented, whilst a minority government, in 1999. A policy Labour gleefully repealed, with legislations overriding commercially negotiated contracts and effectively banning the private sector from providing ACC services that it had offered. Why isn't it even mentioning the ACC Motor Vehicle Account, which at the time was in the "investigate opening to competition mode"? I mean seriously, why is providing competition to a government monopoly something that so frightens John Key?

He's right, you know.

Pictures from Auckland's free speech march

Momentum is building. Yesterday, five thousand of us took to the streets in Auckland to protest the Clark/Peters/Fitzsimons/Dunne Electoral Finance Bill: protesting the speech rationing, democracy rationing and electoral corruption that this Bill entails: protesting now while it's still legal...



Keep sending me pictures.

UPDATE: More pictures and story at Infonews, No Minister, and at Whale Oil's - who was out with his video camera, so keep checking back at his site for more.

TV3 report here. "Strong message sent to Government" says TVNZ.

UPDATE 2: John Boscawen thanks supporters.

UPDATE 3: More pics and commentary at MikeE's, including this pic above and the accompanying potent observation:

The above photo shows that freedom of speech and the EFB is no longer a beltway issue. Today we had conservatives and liberals, left and right, maori and pakeha, anarchists and statists marching side by side in disgust at the EFB. Some might claim that this is a National and ACT thing. It wasn't, I spotted: National, Act, Labour, [Libertarianz,] Socialist Workers, Free Palestine, Maori Sovereignty movement, Tuhoe Anti-Terror Bill protestors, war veterans, mothers, accountants, lawyers, students, anarchists, businessmen and women all marching against this disgusting piece of legislation. They will not stop, this bill will will be the end of those politically who support it.

He's dead right, and more mongrel MPs should be listening. As a few free-speech-supporting green friends have said to me, a few of whom marched yesterday, "We didn't vote Green for this!"

UPDATE 4: More pics here of Saturday's march for democracy and free speech, including a surveillance photo of the plotting beginning at the aftermatch...

Law is the loser on the day

No one comes out well from Solicitor General David Collins' decision not to prosecute the 'Urewera 16,' least of all the law and the lawmakers.

Several basic principles of British law that for centuries have acted as bulwarks of liberty have been exposed as damaged if not entirely absent from New Zealand justice: The presumption of innocence... the right to face your accuser ... the principle that justice must only be done, it must be seen to be done... in recent weeks all these fundamental legal principles have been more evident by their absence than their presence.

Starting with the last, in the absence of the evidence against the defendants being made public (which it now never will be), no one in the country outside the police the Solicitor General and the defendants know for sure just what the hell was going on. For public vindication, the police have to point to the only independent person to have seen all the evidence, the Solicitor General, and to his strongly worded vindication of their work, which stressed

that the police have successfully brought to an end what were very disturbing activities. That the police did so without a single shot being fired, injury or loss of life, is a tremendous reflection on the professionalism and integrity of the New Zealand police.

Let's just repeat that: The police have successfully brought to an end what the only independent person to review the evidence says were very disturbing activities. So we have a right to feel grateful, it seems, that the police were acting to prevent something very disturbing happening.

But just how disturbing were they?

Was the scale of the police operation justified?

Did they overreact?

Should we be scared?

Sadly, all these questions which have been hotly debated ever since this show began will never really be properly answered (and here into that vacuum will rush in much flatulent speculation, media moronry and a mah-jong of lawyers hungry for work) because the Act under which evidence was acquired and under which charges for the very disturbing activities would have been brought if they could be is so "incoherent,"as to make that impossible, according to Collins, meaning the evidence will never be made public and will probably have to be destroyed. The law is so bad that as Colin Espiner describes it:

For all the bragging from both major parties about the steps taken to protect us against terrorism, it now appears that Osama bin Laden himself could have been conducting operations from a cave in Ruatoki and the case against him would have been thrown out of court.

So we'll just never know, which is unfair to the police, to the defendants, and to us, the public. Justice cannot be seen to be done. It's reassuring that the independence of police and judiciary has been demonstrated (something some protestors might care to focus on), but less than comforting that without having seen the evidence for ourselves we're left instead to rely on the judgement of one man. David Collins.

We're back to the rule of men, not of law.

And this damages the defendants as well. They've been neither cleared by yesterday's ruling nor properly charged. Defendants properly have the right to face their accusers; the right to know what charges are being laid, and the right to answer those charges and (if they can) to clear their name. But because of an incoherent law, these defendants have lost that right, and we the public will never know whether they would have been able to clear their names or not.

The further tragedy is that they're entitled to the presumption of innocence instead of the whispering about them that will now take place to fill the vacuum, but because of that incoherent law we'll never know for sure whether they would be able to face the charge, and explain the evidence and to have their names cleared or not. They deserved that chance. And we deserved to know. Everybody loses because of bad law, because of an act that, in the words of the Solicitor General is

unnecessarily complex, incoherent and as a result almost impossible to apply to the domestic circumstances observed by the police in this case... A number of people could, on one view of it, [have] possibly come close to meeting the criteria under the act. If the legislation had been framed differently, it is possible that charges under the Terrorism Act may have been able to be brought.

That last sentence is hardly a ringing endorsement of innocence, is it; but the defendants will never be able to properly challenge the odour that it leaves.

So who's to blame for this "incoherent" legislation? It's partly due to the difficulty of drawing up law to stop an act of terror before it happens, rather than gathering evidence afterwards when the evidence can be counted in dead bodies. That said however, it's not beyond the wit of man to draw up such a law, and Winston Peters was commendably direct this morning in fronting up and saying who was fundamentally responsible. referring to himself and his parliamentary colleagues who were responsible for drawing up and voting for it he told Sean Plunket who asked him who's to blame, [audio here], "We are."

It's true.

It's essential that the error is fixed soon, but to be fair the same errors permeate far too much of New Zealand law, and not just this incoherent legislation: lack of clarity; lack of precision; law that is unpredictable in outcome; that ignores fundamental legal principles; or that ignores or explicitly overrides fundamental individual rights. These recent events show again the danger of law that is not objective-- ie., law that is clear, precise, predictable, contextual and rights-based. Harry Binswanger explains the importance of objective law:

Laws mean force; but "the rule of law" - objective law - means force limited, checked, supervised, tamed, so that it becomes the honest citizen's protector, not his nemesis. To achieve this goal, laws must be objective in both their derivation and their form. In regard to derivation, "objective" refers to that which is tied to reality by man's only method of knowing reality: reason. In regard to form, "objective" refers to that which is tied to reality by man's only method of knowing reality: reason. In regard to form, "objective" means that which has the character of an object in reality: a firm, stable, knowable identity. In both respects, legal objectivity stands opposed to the subjective, the arbitrary, the whim-based.

It is to the subjective, the arbitrary, and the whim-based to which New Zealand law under Geoffrey Palmer's influence has been explicitly directed for some time. Let us hope this case acts as a wake-up call to drafters of future legislation. The two problems drafters need to face with specifically the anti-terrorism legislation are these. First, in the words of a colleague:

The grounds, under NZ law, for 'terrorism' to exist are fairly narrow. To cut a long story short, the Crown would need to prove [for example] that Tuhoe was an 'ideology.' To give an analogy, if you are found in possession of flour, eggs, butter, milk, a bowl, a wooden spoon and an oven NZ law requires you to prove the person intended to bake a cake. Simple as that..a cake, nothing else. Their defence could be they intended to make pikelets or scones...and a Jury must take that possibility into account. It is a case of badly drafted law and insufficient debate in Parliament, in the heat of the World Trade Center bombings.

And second, in the words (again) of the Solicitor General:

The fundamental problem is that the legislation focuses upon an entity that carries out a terrorist act, and if individuals are actually developing towards ... carrying out a terrorist act, they aren't yet an entity that is carrying out a terrorist act, and so there is a tautology in the legislation which is extremely difficult to unravel.

It is essential that all such difficulties are unravelled swiftly, and before respect for the country's laws does.

Fisking Nick Smith's conference speech: "Gutting"? What gutting?

Says Nick Smith at the weekend's National Party conference:

The problem is that while Helen Clark is chanting 'sustainability' like a Hare Krishna her Government's laws and departments are making it harder than ever to advance renewable energy projects.

An amusing soundbite, but perhaps the chief problem here is that while Helen Clark is chanting 'sustainability' like a Hare Krishna seeking electoral nirvana, Nick Smith is chanting the self-same incantation like a catholic trying to buy electoral indulgence.

What's different between them is only the colour of their robes.

The real problem is both of them. The problem with Nick is that he's still to acknowledge that "the Government's laws and departments that are making it harder than ever to advance renewable energy projects" (or any energy projects at all) were put in place by Nick's mentor Simon Upton, and kept in place by Nick without amendment when he was Minister.

He knows that. He hopes you've forgotten.

So it's impossible to take his criticisms seriously. Or him. His criticisms are valid, but there's nothing he's got that's going to make any difference at all.

The Dobson hydro project on the West Coast was blocked by her Minister of Conservation, Chris Carter. Project Aqua was killed off by Minister Marian Hobbs and then local MP David Parker. The Wairau Hydro Scheme in Marlborough, granted consent last month after a tiresomely long 18-month hearing process, has now been appealed to the Environment Court by none other than the Department of Conservation."

All too true, and all too sad, but what's even sadder is that nothing Nick proposes would make a difference. Nothing in Nick's plan to "simplify and streamline" the RMA will make a blind bit of difference to any of the problems he identifies.

Wouldn't you call that dishonest?

Russel Norman makes headlines by claiming that Nick wants to "gut" the RMA. Frog Blog says he wants to "subsidise urban sprawl." Neither are true. Smith, you'll recall, is on record as wanting to "soften" National's environmental message, and even that would be too bold a description for what Smith proposes here and elsewhere. "Window dressing" would be more accurate, and too kind.

Smith claims that as minister he will "streamline and simplify" the RMA, or at least that's what the headline says. But what's needed to fix all the ills he cites in energy production, in tranport, in aquaculture and with housing affordability is not "streamlining and simplifying" the RMA, but actually gutting it, as Russel so erroneously claims is on the table; what's really needed is not softening, tinkering or simplifying (even if it were true) but putting a stake right through the heart of the RMA, burying it for good, and starting again with a property-rights based common law system that protects both the environment and property owners.

But that's not on offer.

What is on offer is Smith's plan to streamline and simplify that's so crucial to so many other policy proposals from the Pink Tories, not least in Key's four-point plan to improve housing affordability. What is the plan? Says Smith, "There are three broad themes that make up National’s proposals." Remember as the read these "broad themes" that the National Party is, in Smith's own words, "a pro-market, pro-enterprise party that hates bureaucracy and stifling red tape."

Firstly, the Act needs greater central government direction. It is the most devolved environmental statute in the world resulting in every Council having to reinvent the wheel. We propose setting up to 20 national environmental goals to clearly guide decision makers on what needs to be achieved and will measure progress towards them. That is also why we are keen on an Environmental Protection Authority.

Greater central government direction. An Environmental Protection Authority. Does that sound like less bureaucracy and less stifling red tape? Is he stupid, or does he think we are? What's next?

Secondly, National wants greater use of price signals, markets and better recognition of property rights.

Well, that would be good, wouldn't it. But what does this mean to Smith? It means "in areas like water permits, greenhouse gas emissions, and nitrogen discharges, we favour cap-and-trade systems over bureaucratic systems of allocation." To Smith, "greater use of price signals, markets and better recognition of property rights" looks like just another form of bureaucratic rationing. Frightening, isn't it. No mention of securing the property rights of land owners, or even of placing property rights at the heart of the RMA. No mention at all, and no chance of it ever happening under a Smith-led environment ministry. To Smith, "property rights" means that bureaucrats can take your land or strip the value from your land by bureaucratic fiat, and you might be able to receive some "compensation." That's the gist of his third "theme":

We also want to improve the compensation mechanisms in the Public Works Act. We want to make explicit that landowners must be consulted over rules affecting their land and believe a net conservation benefit approach would get better environmental outcomes. We want less litigation and more science in decision-making. We propose refocusing the legal aid fund and putting the money into more technical support and into mediation services.

Explain that gibberish if you can (and try to explain to someone like The Castle's Daryl Kerrigan that compensation for their property is tantamount to protecting their property rights).

So much for the "themes"; what about the details? How, if at all, will he go about "simplifying and streamlining the processes of the Act to reduce the delays, uncertainties and costs."

Let me detail some of our proposals for simplifying the Act:
1. We propose to limit the definition of environment to natural and physical resources so as to avoid vexatious arguments over trade competition and where the Taniwha might live.

A small change. A very, very small change that without a substantive change to section 5 of the RMA is all but meaningless.

2. We propose to reduce the number of consent categories from the current five to three, so it is not nearly so complicated.

The number of consent categories were increased so as to make consent applications easier; reducing them is going to make applications harder, not easier.

3. We propose fixing the vague Treaty clause by removing the broad reference to it’s principles [sic] that nobody understands and be quite specific about the consultation requirements with iwi.

"Fixing" would be good, if we could be certain that "fixing" meant removing. Nothing less will do.

4. We propose reducing the number of plans. We note with interest that Northland has adopted a ‘one plan’ policy integrating its Regional and three District Plans into one, and we are exploring applying it nationwide. Eighty-five plans for a country of four million people is excessive.

Irrelevant window dressing.

5. We propose integrating the RMA properly with the Historic Places, Forests, Building and Fisheries Acts, so applicants are not confronted by multiple hurdles.

And just as irrelevant is this last point. Taken together then Smith's five points are a mixture of irrelevant, meaningless, hopeless and more damaging, much like himself really. What about his next five points, which he promises will "streamline the Act:

1. It is a waste of everyone’s time to go through years of double process of a consent hearing and then the Environment Court. That’s why we back the direct referral of major applications straight to the Environment Court.

Small and worthwhile, but hardly a king hit to bureaucracy and red tape.

2. It is wrong that Ministers can veto the process as we saw with the 13-year debacle over the Whangamata Marina. That veto will go under National and decisions will be left with the Environment Court.

A long overdue change, and helpful to those few projects that the minister reviews, but irrelevant to ninety-nine-point-nine percent of resource consent proposals that linger for months or even years, and no help at all in reducing the thirteen years it took for the Whangamata Marina application to even get to the minister's desk. In other words, more window dressing.

3. There should be a penalty when Councils ignore the 20-day timeline for resource consents. Councils charge penalties when the ratepayer is late, as with rates. If it is good enough for the goose, it is good enough for the gander.

This is something that sounds good but will deliver the opposite of the intended result. Councils are already adept at asking pathetic and irrelevant questions to extend that nominal twenty-day limit they have for considering resource consent applications; making "a late consent a free consent" won't make consents arrive any earlier, or save anyone any money: instead applicants will simply be assailed with even more stupid and irrelevant questions to justify those processing applications "stopping the clock" than they do now. And although it's hard to image how much more stupid some of those questions can get, it's clear enough that the stupid questions will increase under Smith's stupid proposal. That he wants to hang his hat on this is a sign of how little he really understands the Kafka-esque problems with making and receiving Resource Consent applications.

4. There should be limits on requests for more information. An applicant should be able to require that a consent be processed, albeit they run the risk of being rejected. They at least then have the option of appealing to the Environment Court.

Few applicants that I know of want to got to the Environment Court at all, as most council planners are aware. As an empty threat, this one is much emptier than most.

5. The Court should have the power to require security for costs, a power taken away by Labour. If an application or objection is weak and likely to involve a costs order, this discretionary power of the Court helps get rid of the vexatious and frivolous.

An improvement perhaps, if only a minor improvement, but given the irrational, unpredictable and (as I described it) Kafka-esque nature of Resource Consent law, no rational submitter on (for example) an overbearing District Plan or on council zoning abuses is going to be risking their houses to stand up against the council, and none is likely to be either solvent or active for very long.

So that's it. This is what Smith calls "streamlining and simplifying" the RMA. This is what Russel Norman calls "gutting" the RMA. This is what Key, in his own speech, says is going to "ensure there is an increased supply of suitable land available to build houses on."

They're all wrong. This is pathetic and ineffective window dressing. Nearly twenty years after its introduction the Resource Management Act continues to destroy wealth creation and savage New Zealander's property rights and home-ownership aspirations, and this pathetic soft-shelled excuse for a human being has yet to learn to identify the solution: a stake through its heart.

If he really believes that his pathetic, weak-kneed ten-point plan is anything other than hopeless drivel, then he's even worse than I ever took him for. No wonder Lindsay Perigo calls him a man with a tongue so forked you could hug a tree with it.

NB: You're not going to find serious environmental reform by thumbing through the bland promises of the mainstream parties. Look out soon for the release of Libertarianz' seven-point plan to begin the deregulation of the environment. That's something that, if implemented, really would recognise individual freedom and personal responsibility, and kickstart a genuine environmental revolution for the better.

Arrests and beatings in racist Fiji

The hopes that some libertarians have for Bainimarama's coup in Fiji -- well, that one libertarian has (see below) -- must surely be put to the test by increasing attacks on free speech in Fiji, including most recently the arrest of bloggers for nothing more than doing what bloggers do.

Intelligentsiya reports that a Fijian businessman was arrested, detained and mistreated by the Fijian army, who suspected him of writing blog posts... Soldiers have apparently also pressured FINTEL, Fiji’s sole ISP, to block blogspot.com altogether...

"It seems," notes NZ's Pacific Empire blog [to whom the hat tip goes for the reports], "that anonymity is the only protection for the Intelligentsiya bloggers." Fiji's bloggers are annoying the regime with posts such as these:

• ...it now a case of "once more into the breach, dear friends" for those of us who detest this governing parasite... We are fighting for our rights and as history has shown over and over again, in every age, every nation, under every tyrant(s), the truth always prevails. And the truth is Mr. Bainimarama, you have committed a wrong so vile that I hope the Lord can forgive you. You have killed, tortured, threatened, bullied the citizens of this nation in the misguided notion that you were doing the right thing. You might say that you did not do these things but as Commander, yours is the responsibility... We blog because this is now the only way we can speak out freely. We have no other avenue that we can safely use to express our mounting dissatisfaction with the way our nation is being raped... [Good Men (and Women) Doing Something]
  
  
• Commodore why don't you tell the people how your officers like army rugby players Komaitai, Dere, Rokowailoa and now Naulia are being hitmans [sic] in your outfit because you have a weakness for rugby and in turn they become your most loyal subjects who will commit anything you bid them to do from hunting down men to actually abusing them and finally killing them. How long do you think this fact is going to remain hidden? Your army boys are talking and this is becoming a known fact. Their families are dying and their children are going to be victims of your sin and the sin of their fathers so do the honest thing and relieve them of the responsibility that you have placed on them knowing they are your murdering dogs!!! Be a man and take it like a man since you were the one who gave them that order as your shadow hit team to do the killing! [Resist Frank's Coup]
  

• Deputy Solicitor General Savenaca Banuve was sacked today by the military junta for refusing to defend cases pending against the interim administration. Intelligentsiya sources confirm that Mr Banuve was given an ultimatum about handling cases brought by ousted Prime Minister Laisenia Qarase and two members of the Great Council of Chiefs. We understand that Mr Banuve replied that his lawyers would not handle those cases as they already had a heavy load and that, secondly, it was their viewpoint that the current regime was illegal... [Intelligentsiya]
  

• Fiji' s Military Dicktator once said in a moment of Strongman Madness and clapped on by his purile fans dressed in green, "We can argue on the legality of the government until the cows come home."
  
  Well as you can see Mr DickTator, the cows ARE coming home, and this 'cow' will hold out a signpost for you to look at everyday until you get off the grass, stop chewing the nation's fat (whats left of it), and go plug yourself into an halal abattoir somewhere so we the nation's citizens can rebuild what is left of our shattered sovereignty... [Discombobulated]

All bad. But here's a challenge: it's worth making the point that if he's to be believed, Bainimarama is genuinely trying to right a real wrong: the wrong of corruption in Government, and of a racist Fijian Government system that has in the past favoured indigenous and well-connected Fijians over other citizens -- and it's worth noting that at least some of the resistance to him is along racist lines. This post and comment for example at The Rotten State of Fiji gives some idea:

Frank has gone completely mad! I wouldn't be surprised if he is sentenced to the mental ward of St. Giles once all this is over.

A lot of stupid Indians here continue to support Frank and his cronies. This isn't helped by the vengeful mob of Indians settled overseas in Australia and NZ. In the media, they continue to support Frank. Infact, I reckon, Australia and NZ should send those lot back to Fiji and ban them from returning. [Comment: I am with you...this coup was pro Indians and these stupid lot should be sent back to their motherland ... just like Butadroka said, quote Indians will always be Indians...unquote.]

Tim Wikiriwhi argues in The Free Radical that

Bainimarama’s coup is the complete opposite of the previous three coups, each of which attempted to establish absolutely the UN’s apartheid agenda for "indigenous rights." Whereas Rabuka and Speight were acting to cement the racist laws that raised indigenous Fijians over other Fijians, Bainimarama is a defender of the principle of equality.

Bainimarama said he was compelled to act against the government because corruption had flourished under Qarase, whom he himself appointed after the 2000 coup, and because of proposed laws that would grant pardons to plotters in a 2000 coup and hand lucrative land rights to indigenous Fijians at the expense of the large ethnic Indian minority.

Wikiriwhi finds comfort in words such as these from the Commodore: “We want to rid the constitution of provisions that facilitate and exacerbate the politics of race,” arguing that

In seeking to put a permanent end to the racist Fijian electoral system and to permanently abolish laws that grant favouritism to indigenous racists, he is in my estimation worthy of praise and support...

In seeking to permanently abolish laws that grant favouritism to indigenous racists you're unlikely to attract the support of the racists themselves, but it seems to me that if that's genuinely what Commodore B. is trying to do -- and for myself I'm still to be convinced -- then rather than shutting down free speech he should be daily and regularly making his case that racist government is wrong, and that he is the enemy of racist law and of racist government in Fiji.

If he's right, then truth should be his ally, not his enemy.

An example of the damage caused by Fiji's racist property law is highlighted this month in Time magazine, which has an article and photo essay on Fiji's squatters -- those dispossessed non-indigenous Fijians who haven't received the 'favour' of being allowed to own land, and who are left at the mercy of shifting economic and political tides. As that photo-caption above notes, "Most of the country's 100,000 squatters [ten percent of the country's 900,000 population] are Indo-Fijian origin; many have been driven to the cities as a result of expired farm leases" -- a fragile leasehold being the only form of ownership allowed to Indo-Fijians.

The drift of rural families into cities in search of better jobs and improved living conditions is part of a global trend, but in Fiji the country's [racist] land-ownership policies have exacerbated the problem. Laws passed in the 1970s obliged non-indigenous farmers to take 30-year leases on the land they worked.

As leases expired, government's "encouraged" indigenous Fijian "owners" to eject leaseholders (leases being all they were allowed to own), resulting in a surge to Suva by squatters in the late 1990s, who live in shameful conditions, excluded as they are from the "mainstream" of Fijian economic life by racist laws, and a racist constitution.

Farming families like the Kumars, from the Nanuku squatter settlement on the coast near Suva, were among those who lost their farms and were driven into the city in the late 1990s. "My father and I went twice to the landowners to ask them to renew the lease," says Rohit Kumar. "But both times they refused. I was crying when I left. I was looking around seeing this place I had grown up farming, seeing the place where I used to play as a little boy." Today Kumar, his wife and four children are crammed into an 8 m by 5 m shack located in the middle of a mosquito-infested mangrove swamp. Around them is a garbage tip of old tyres, tins and broken-up asbestos sheeting; human waste fills a network of stinking open drains that regularly overflow during high tide.

If this is what Commodore B. is fighting, then I'm with him. But how would we know if he is?

A necessary obsession with justice

I wasn't in New Zealand when the Bain family was killed or when David Bain was convicted, and I know too little of the details of the case to form an opinion myself on that verdict ... but with last night's decision from the Privy Council, it's a strong reminder that if you do want to get justice in New Zealand that you need to be as single-minded as a Joe Karam -- a single-mindedness that goes almost beyond reason and into an obsession -- an obsession that last night was triumphantly vindicated!

But is it a justice system worthy of the name when it takes such an obsession -- an obsession reportedly costing former All Black Joe Karam (right) in the order of $4-5 million to receive it on Bain's behalf -- the same sort of single-minded devotion that drove someone like Karam to be the outstanding All Black full back that he was? As Karam said this morning, his dozen years of single-minded devotion to justice is not something he'd recommend to others, but without others like Karam with obsessions like these, where and how and when do people like David Bain get a fair hearing?

And what does this decision from the Privy Councillors say about the Clark Government's decision to abandon our link with the Privy Council and introduce instead a local Supreme Court, a Court on which now sits two members of the Court of Appeal whose decision the Privy Council so derisorily dismissed. Speaking then I said,

the Privy Council isn't just a medieval relic leftover from the dusty days when common law still protected people's rights (though it is that) it also gives New Zealanders who are eager for justice access to some of the world's best legal minds. Further, having the Privy Council as our supreme court means there is a clear separation of powers between New Zealand's legislators and its supreme court - in this case 12,500km of ocean worth of separation!

... But surely, I hear you cry, [government]-appointed judges wouldn't just be tame poodles, rolling over whenever called to? Well, they don't have to. Despite being overrun with lawyers in shiny suits, the talent pool from which judges are chosen in New Zealand is remarkably small - everybody knows everybody else, and legislators and judiciary are often separated by no more than a restaurant table and a bottle of chardonnay.

It's not too late too reopen that debate.

UPDATE: Stephen Franks launches a salvo in that debate. "The Privy Council decision," he says, "is a catastrophic affirmation of the size of our loss when we abandoned our right to neutral international referees."

Joe Karam called this morning for the resignation of the two Supreme Court judges who refused an appeal while on the Court of Appeal. That kind of erosion of confidence in the quality of justice in New Zealand was inevitable from the moment the “indigenisers”, led by Hon Margaret Wilson, got their hands on the tiller...

The right of appeal to neutral outsiders was a priceless assurance of integrity for our otherwise unhealthily small hot house legal cabal...

Our legal profession thinks its privileges are justified by their championing of the the rule of law, of the rights of the citizen against the state. Some individual lawyers do that... [b]ut to me as an MP their advocacy as a ‘profession’ was marked by cowardly group think, often self interested, and suffusing political correctness.

This last Privy Council case is a sad measure of our exposure to that group think.

Read Franks' full piece here.

Justice delayed makes a mockery of justice.

Michael Bassett makes the point in a recent column that justice delayed is justice denied -- that these days one may wait up to five years just for a court fixture, with all the attendant costs and anguish and uncertainties. It was not always so, he says, and he puts the question: Why?

Why have so many elements of today’s justice system seized up like arthritic joints?

NZ's arthritic justice system has not just denied justice to victims, to litigants and to all those in the dock for years while they await a verdict; it hasn't just denied it to the families of all these New Zealanders; it has not just left people's guilt and innocence in limbo for years; it has not just left a whole mah-jong factory full of lawyers rich beyond their dreams, while delivering little but lawyers' letters and invoices; it has also meant that the arthritis of delayed injustice has fed through to NZ's commercial system, where we find that the delays and the costs of justice are reason enough for justice not even to be pursued, since any gain made in the roundabout of litigation is lost in the swings of delay, and in the litter bin of lawyers' bills.

Contracts below a figure of, say, $50,000 are now hardly worth the paper they're on since a remedy is both too time-consuming and too expensive to realistically contemplate; and contracts between financial unequally parties are hardly worth the risk, since when justice is delayed and debauched as it now is, the winner is generally the one with the biggest pockets -- and of course, their lawyers.

Justice delayed makes a mockery of justice.

Which still leaves the question: Why is this so? Why do we see so much of the justice system and its accoutrements, and so little justice -- why does it take so goddamn long? It's not for a lack of political attention to the question -- as Bassett notes, if anything in recent years we've seen the opposite:

[We've]tried more police, more judges, more prisons and more crisis intervention officers, but our justice system nears a standstill. Many civil litigants have no hope of an early fixture, and dates for serious trials and sentencing take far too long.

Almost everything has been tried, says Bassett, but still the problem increases. But let me sound a cheerier note. There are two thing that haven't been tried - or not at least in recent years:

1. Fewer laws.
   
2. Better law.

I'll let you think about that for a bit.

Thought about it? Well, think about this in relation to dire need for fewer laws: Geoffrey Palmer once boasted of preparing and having passed the most pages of legislation in a year, ever. Boasted, so he did. He's now been surpassed. Legislation is now churned out at the rate of, not hundreds, but thousands of pages a year. Last year alone 1,324 pages of statutes were passed, (comprising 76 public Acts and two private Acts) and 2,762 pages of Statutory Regulation (comprising 325 Statutory Regulations). But this was a slow year, due to the election. In the previous year, the respective figures were 2,062 pages of Statute and 4,116 of Statutory Regulation.

That is over six-thousand pages of legal garbage in just one sitting year. No one can digest all that! No human being anyway. Not even the high-priced vermin that infest so many of our local legal high-rises can read all that.

And Geoffrey Palmer has something else to answer for: the making of bad law. When I call for fewer and better laws, objective law is what I mean by that -- law that is clear, precise, predictable, contextual and rights-based. Geoffrey was explicitly opposed to that. He introduced to local law the concept of ambiguous law -- of law that is intentionally vague and imprecise; law that was totally unpredictable, that in order to be 'understood' needed to be defined in lengthy court struggles (with all parties in limbo until it had been clarified, and with justices frequently asking themselves the question: "What was in the minds of MPs when they wrote this?" Cometh the all-too obvious answer: "Nothing at all.").

The Resource Management Act stands as a monument to Geoffrey's slap in the face of objective law, which principles have been all but forgotten. The undefined (and undefinable) "principles of the Treaty of Waitangi" that Bassett bewails, and that has introduced so much uncertainty into the very heart so much recent legislation is another monument to Geoffrey's work (and as I recall, its introduction to so much legislation was the brainchild of and happened with the enthusiastic support both of Richard Prebble, and indeed of Michael Bassett himself).

Setting a scrubcutter to nonsense law, and to nonsense in law, would at once clear the shelves of law libraries and the overbooked schedules of law courts, and it would give effect too to the promise of the Libertarianz unemployment policy, which promises an enormous rise in unemployment ... among the likes of lawyers, law clerks and court booking agents.

A bonfire of rules, regulations and statutes would lead to less work for lawyers, but better access to law, and more justice for litigants.

Simple.

The astute reader will by now have a number of questions. Perhaps the foremost amongst them is this one: what did I mean by the term "a mah-jong of lawyers"? Ah, I'm so glad you asked. I shall let the great HL Mencken answer that one:

All the extravagance and incompetence of our present Government is due, in the main, to lawyers, and, in part at least, to good ones. They are responsible for nine-tenths of the useless and vicious laws that now clutter the statute-books, and for all the evils that go with the vain attempt to enforce them. Every Federal judge is a lawyer. So are most Congressmen. Every invasion of the plain rights of the citizens has a lawyer behind it. If all lawyers were hanged tomorrow, and their bones sold to a mah jong factory, we'd be freer and safer, and our taxes would be reduced by almost a half.

Wise words. I must confess, I enjoyed sharing them with the editor of the Law Society's journal, Law Talk before a recent election. I doubt that he published them.

Perhaps, given the current apoplexy over legal aid rates, he might consider doing so now?

LINKS: Slowing down justice - Michael Bassett [Hat tip, Leighton Smith]
What is objective law? - Harry Binswanger
Policies - Libertarianz
Legal snouts - Peter Cresswell

RELATED: Law, NZ Politics