Friday, June 29, 2012

Dotcom Decision Shows Rule of Law Still Alive in NZ

Just when all right-thinking New Zealanders thought the rule of law was well and truly dead in this country, replaced by the all-powerful and unfettered authority of the Nanny State to do whatever it sees fit, Justice Winkelmann of the High Court has proved that vestiges of ancient legal rights remain.  I am referring, of course, to Winkelmann's decision that that search and seizure of Kim Dotcom's Auckland property, under the direction of the US Federal Bureau of Investigation, was illegal.

When this case broke with an avalanche of international media coverage and comment, I was immeidately concerned on several levels.  I am not an international law expert but I know something about copyright law, having been involved in many contract negotiations for IT software and services, and it seemed to me that even in the United States, the primary offence that Dotcom was being accused of - that of hosting illegal copying services - was a very grey area of the law. 

Fristly, even if Dotcom's Megaupload service has been used for wholesale copyright infringement, it is yet to be conclusively established in US courts that he can be held accountable for the actions of his clients. 

Secondly, even if he is proved to have knowingly colluded in copyright infringement, there is considerable doubt as to whether criminal sanctions can be applied or whether that is something that should be dealt with through the civil courts.

And thirdly, given his services were hosted in Hong Kong and not New Zealand, there is doubt as to whether New Zealand authorities have any legal interest in the case.

If proof were needed of the dubious nature of the offences alleged against Dotcom, the New Zealand authorities only needed to apply the time-tested rule of international extradition treaties - is it something that is illegal in New Zealand?  Dotcom is charged with racketeering.  Racketeering is one of those catch-all offences that United States authorities are fond of applying when no other charge seems to fit.  It is usually used for incarcerating murderous gangsters.  It is not an offence under New Zealand law and therefore would not be able to be used as grounds for extradiction.

All of the above means the New Zealand authorities should have had pause for thought before charging into Dotcom's house during a social event, arresting Dotcom and his employees, and seizing a whole raft of property, including cars, that had little or no connection to the crimes being alleged.

It is highly likely now that Dotcom will walk away from all this a free man, at least in New Zealand.  He will, however, be forever damaged by the illegal actions of the New Zealand authorities.  His business has been largely destroyed and he, his family and his employees are unlikely to get any compensation for their assault by the agencies of the New Zealand Government.  The US Government will never back down and apologise or stop trying to hound him, wherever in the world he may end up (as he will almost certainly be expelled from New Zealand for immigration issues).  Such is the nature of law enforcement in America these days.  The normal mode of operation for the FBI and other US agencies these days resembles the tactics of the gangsters or the terrorists they pursue. New Zealand authorities should not be drawn into this sort of intemperate, thuggish, so-called law enforcement. 

I am grateful for Justice Winkelmann's wisdom.  We might all need it one day.

Wednesday, June 13, 2012

Paying Family Members to Care for Their Disabled Relatives is a Step Too Far

I have some sympathy for the plight of people like this gentleman who have to devote a considerable portion of their lives to looking after sick and disabled relatives at considerable personal time and cost to themselves.  But I think the decision of the New Zealand Court of Appeal that says the Government is discriminating when they don't pay such people for such care is a step too far in the constant expansion of the welfare state.

It is yet another example of the activist judiciary in this country going outside their constitutional role and making social policy law.  The judiciary should not make such law because they are not accountable to the public, as the legislative and executive branches are meant to be, for the funding and outcomes of such policies.  Unfortunately it is the poor taxpayer that once again will have to pick up the tab for the judiciary's largesse, as they have had to do with the flood of Treaty of Waitangi claims following Justice Cooke's infamous determination of the principles of the Treaty of Waitangi (where no such principles previously existed).

This decision sets a dangerous precedent.  It seems there is now no limit on what is a reasonable claim on the welfare system.  Should adult children now be paid for the care of their elders?  Should teenage children be paid by the state for the babysitting of their younger siblings?

New Zealand, like most other Western nations, is already living well beyond its means.  Last year the Government spent a third more than it took in taxes and all this profligacy has to be paid for by current or future taxpayers.  The taxes that are required to fund the welfare state are already crippling personal and business enterprise and eliminating our ability to save and invest for the future.  Demographic factors (i.e. the aging population and proportionately ever-smaller number of taxpayers) mean that by any measure the current situation is unsustainable.  The Court of Appeal decision just adds to the unsustainable burden.

The appropriate response of the Government to the Court of Appeal's decision is to stop all payments to carers of sick and disabled people.  This would be tough on the current recipients of paid care and their families, but the Government must demonstrate to the judiciary the implications of such activist decisions.  If it is now  discrimatory to expect families to look after their own, then we must non-discriminatorily abolish all such benefits.

Wednesday, June 6, 2012

New Zealand Driving Rules

The inclement winter weather has brought out the worst craziness in New Zealand drivers, but it is not as if they need the catalyst of poor visibility and icy roads to show how appalling they are.

I have traveled extensively and driven on most of the world's continents and I have concluded that, given the relatively benign road and traffic conditions that New Zealanders are faced with, they are the worst drivers in the world. There seems to be an unofficial Road Code that parallels the official one in providing guidance on how New Zealanders should behave behind the wheel.  I haven't been privy to the secrets of this black book, but I have deduced that the following are some of its rules:

1) In a 50km/h urban area, slow down to 15km/h in case you miss a vacant parking space.
2) Never indicate that you are about to turn or pull over.  Never.  Especially if you are a taxi or courier.
3) On a narrow street, never give way to on-coming traffic.  Never.
4) On a multi-lane highway, stay in the centre-most lane, no matter what speed you are doing.
5) In a 100km/h open road speed zone, slow down to 83km/h, except...
6) Where there is a passing lane, speed up to at least 125km/h to prevent anyone passing you.  Resume 83km/h as soon as the passing lane ends.
7) When a multi-lane road reduces to single lane, never let any other car merge in front of you.  Never.
8) If there is a gap between your vehicle and the car in front of you, you are not following closely enough.
9) When approaching an intersection, check to see whether the way is clear and, if it is not, stop in the middle of the intersection thereby blocking all cross traffic.
10) Traffic light colours mean the following:
     RED - Go until the cross-traffic blocks your way.
     AMBER - Speed up. Do not stop.
     GREEN - Slow down and if in doubt stop in the middle of the intersection, thereby blocking all cross traffic
[Update: one more occurred to me:]
11) The dashed line in the centre of the road is for decorative purposes only.  You may drive on either side of the road.  Approaching traffic will pull over to the shoulder to make way for you.

Tuesday, June 5, 2012

Honours System is Anachronistic and Paternalistic

Once again in New Zealand we have had the announcement of the Queen's Birthday Honours, which of course are nothing to do with the Queen and are not announced on her actual birthday.  A more fitting name for them would be the "New Zealand Government Good Subject Awards" because they are a system of favours bestowed by the government of the day on those they consider to have been worthy.

The current honours system dates from medieval times when the monarch favoured those who supported him or her with lands, money and titles.  The good deeds that were considered most worthy back then would be regarded in most cases today as worthy only of a long sentence from the International Court of Justice, being acts of great cruelty and abuse of human rights such as the dispossession of the Catholics, the expulsion of the Puritans and the Jews, the subjugation of the Irish and the like.  The Queen no longer gives out land and money but her governments around the world still bestow titles on those who are in their favour. 

It has been interesting watching the changes over the years in the nature of the deeds considered worthy of honours.  As recently as thirty years ago, the ranks of the honours lists were full of successful businessmen.  In recent times, the selfish pursuit of wealth, with its consequential benefits to the entire nation, no longer merits honour.  If a businessman receives any recognition, it is only because of their service to some charity, sports foundation, or other 'worthy' pursuit.  Senior judges still get honoured almost as a matter of course, and similarly those from the senior ranks of the civil service.  The awards still remain a reward for political service, irrespective of whether the political colours of the recipient match those of the government doing the awarding (hence the National Government's award to Labour Finance Minister and Deputy Prime Minister Michael Cullen).  It is a system of "you scratch my back, I'll scratch yours" that members of successive governments dare not break for fear they will not get their turn.

The whole idea of a government honours system is inherently corrupt because it inverts the respective roles of government and citizen.  Governments should exist only to serve the citizen through a limited range of executive, legislative and judicial functions (which functions should be tightly defined in a written constitution - but that is for another blog).  The greatest statement of the role of governments ever written says, "Governments are instituted among Men, deriving their just powers from the consent of the governed". In other words, citizens should be the masters of governments, not the other way around.  A government that presumes to reward its citizens for what it regards as good behaviour regards its citizens as subjects, not as masters.  Citizens should not compete for the government's favour, rather the government should compete for our favour.

For eight hundred years years since the signing of the Magna Carta Libertatum (the "Great Charter of Liberties"1), we in the West have fought to restrain the executive power of the monarch in favour of individual rights and self-determination.  It is time we cast off this anachronistic and paternalistic vestige of unrestrained power that is the Queen's Honours system.

1 We seem to have lost the "liberties" bit along the way.