Summary: Hagamans v Little

Asher Emanuel has good coverage of the Hagaman v Little defamation proceedings in Watching the Hagaman-Little defamation trial, it felt like everybody lost.

It does feel like a lose-lose, except for the lawyers who won some big fees.

Emanuel concludes:

This is only the latest unseemly defamation parade of which New Zealand has had a few. Do you remember when Jordan Williams sued Colin Craig for defamation, won, and was awarded $1.27 million in damages?

That was a ridiculously high award. I presume that is still to be challenged on appeal.

Williams (who showed up to the Little verdict, spectator this time) is the director of an organisation founded on the idea that waste of public funds is immoral, and surely it is, but are these private wastes any more defensible? Are these really reputations worth protecting with bonfires of money?

In litigation, two sides tell two stories from which a judge or jury tries to piece together the truth. So Lani Hagaman told the jury she did not intend to bankrupt Little; that this was not about humiliating him. It wasn’t even about the money because they would give the award to charity. It was, she said, about dignity for Earl before he dies.

Earl did not get his dignity, if that’s what you could call it. And Little has escaped financial ruin, at least for today.

We will find out in about six months whether it has helped ruin Little’s chances of upgrading from Leader of the Opposition to Leader of the Country.

Andrew Geddis also covers it well in In qualified praise of the Andrew Little defamation verdict. He says:

“The defamation case against Andrew Little did not result in his having to pay any damages. All in all, I think that is a good thing for the country as a whole.

I agree. The $2 million+ claim by the Hagamans was far too high and I think a tactical mistake as well.

So Andrew Little is absolutely right when he says he had a “constitutional obligation” to make a song and dance about the issue. As leader of the opposition, it is his job to “speak out fearlessly” on matters like this – not simply because he wants to take the PM’s job for himself, but rather because the whole system of governing accountability and clean public processes depends upon him (and other opposition MPs) doing so.

I agree generally with this, but I don’t think Little handled it well, either initially or for months afterwards. He could have easily made the point without getting dragged into court.

Of course, when it turns out that the claim is wrong and that actually there was no untoward relationship between the donation and the subsequent contracting decisions, the use of this sort of language leaves egg on their maker’s face. His (or her) political judgment can and should be questioned.

And the maker really ought to put their hand up, say they got it wrong, and apologise for any wrong imputations (as Andrew Little eventually did – a bit too late, in my opinion, but there you are.)

I agree with this too. See my next post which suggests how Little could have done it effectively without the risks.

Geddis concludes:

But saying all that … yes, the bullet must be bitten. Insofar as there is any tradeoff between public accountability and private reputational interests, my sympathies lie with the former. And so I’m happy that Andrew Little walked out of court without any liability for his statements on this matter.

Yeah, but Little went too far, either deliberately causing (his initial language suggests at least a bit of this) or not caring about collateral damage (if we are to believe his claims his sole target was the Government and not Earl Hagaman and Scenic Circle).

RNZ interview: Law professor discusses Andrew Little defamation case

The dean of the University of Canterbury Law School, Ursula Cheer, analyses the outcome of the defamation case against Andrew Little. “This has turned out to be the most complicated case I’ve seen in defamation in a while.”

A case that the jury couldn’t deal with. One of the primary problems was the arguments had little guidance from previous court cases, appeals or precedents.

Guyon Espiner: So in terms of what we learnt from this and what it may set down, It’s another small step for the protection to discuss these matters of public interest, but perhaps also less protection for those possibly for those who get caught up in the collateral damage this.

Ursula Cheer: I think it doesn’t tell us a great deal actually that we haven’t already built up from other various High Court cases.

And the defence is still developing, we’re still waiting for a higher court like the Court of Appeal or the Supreme Court to look back over all the cases and say yes, we have it and it looks like this, and this is what ill will looks like and so on.

We’re still waiting for that which is partly why this case was so complicated.

And also because this was a jury decision, and jury decisions are about the facts, so it doesn’t really tell us much more about that in relation to other cases.

Guyon Espiner: So why do you think they had such a struggle with whether he was entitled to use qualified privilege if that is accepted and established?

Ursula Cheer: Well I think the evidence was borderline and it was a case of them looking at the evidence to see what Andrew Little had done in order to be responsible enough, in order not to be seen as motivated by ill will.

There can be a fine line in politics between holding to account and wishing ill will on opponents – the more illness one can associated with an opponent the greater ones chances of succeeding and winning in politics.

Ursula Cheer: But another part of that is if a person takes advantage of their opportunity to publish, in other words if they are reckless or even careless about whether the matter is true or not.

And that depends very much on the facts, and here it just wasn’t black or white.

The words were not so bad that you could say well that means there was ill will.

And then you’ve got, there was plenty of evidence in the case of Andrew Little’s genuineness.

That was in court nearly a year after it started. It is difficult now to judge how genuine Little was about wishing no ill will on the Hagamans last year, especially taking into account his refusal to qualify his accusations or offer an apology for most of the year.

Ursula Cheer: I think they just struggled with weighing that evidence up and seeing if the legal definition fitted what existed in this case.

As a result the outcome so far is quite unclear, legally and politically.

It is likely to have been difficult for some at least of the twelve jurors to put aside completely any political preferences.

When you see polarised political and legal positions in comments here, and more starkly the difference between comments on Kiwiblog (see Little wins) versus The Standard (see A basic primer on the law of defamation), it was hard to escape the political biases and potential ramifications.

Claire Trevett at NZ Herald: Andrew Little defamation trial a win for future Opposition leaders – and the lawyers

“This case is not about politics,” Earl and Lani Hagaman’s lawyer Richard Fowler said on the first day of the hoteliers’ defamation trial against Labour leader Andrew Little.

It was a rather optimistic plea in a case which was always going to be about politics.

With both sides trying to show political motivation on the part of the other, it was not so much a case of wrong and right as left and right, of political power versus personal wealth.

Yes. Political leanings ideologies were prominent in public discussions on the case, and I can imagine that personal political preferences could have had some influence in the jury room.

The jury sat impassive and infuriatingly inscrutable through most the trial, scrabbling their way through screeds of files.

When they were sent to make their decision, they were asked not to let either personal or political sympathies affect their decisions.

The reason for the inscrutable faces became clear when the string of decisions was read out – the jury found Lani Hagaman was not defamed at all, but was unable to decide on almost all of the claims by Earl Hagaman.

In the one case it did find defamation, it was unable to decide whether Little had acted in abuse of the ‘qualified privilege’ he had claimed so no damages were awarded.

As is often the case in such matters, the only winners in monetary terms were the lawyers.

It should be remembered that most people do not have anywhere near the financial resources to attempt defamation proceedings.

The other winners in the case were future Leaders of the Opposition.

Little’s present to them was Justice Karen Clark’s ruling that as Leader of the Opposition he met the criteria for the defence of qualified privilege.

The ruling acknowledges Little had a moral or legal duty to make the statements he had, in the course of holding the Government to account. It offers some protection in defamation suits, unless the person claiming it was motivated by ill-will or otherwise abused the privilege.

I don’t think the outcome as it is at the moment will have helped much, it is still unclear where the legal boundaries are.

But even if this case doesn’t go to another trial or to appeal Little and other politicians should have been able to learn something from this expensive and inconclusive exercise.

I offer some suggestions in the next post: Avoiding defamation: lessons for Little

Blogs respond to ‘Hit & Run’

Blogs have been abuzz on the Hager and Stephenson book “Hit & Run”.

At Kiwiblog David Farrar plays it down saying *if* and comparing 6 civilian deaths to total civilian deaths in Afghanistan (26,000) – TLDR: Hager book summary

So far at The Standard it has been left to comments with no posts other than Nicky Hager’s book launch but that does include some politically aimed tweets including:


The Daily Blog had live stream coverage of the book launch but that was apparently quite unreliable. Martyn Bradbury has since had a major rant in a post targeting John Key – you have to tell NZ if you committed a war crime:

If we as a country are going to cheer when our troops go to war to fight ‘da terrorists’ then we have to demand accountability when they kill civilians! We deserve to know the truth before John Key steps down – did he or did he not order a poorly planned strike that killed 6 civilians?

Jesus wept this disgusts and angers me so deeply – if you send troops to a foreign land you are fucking responsible for what they do!

Brothers & sisters, we fund the NZ SAS – when they pull a trigger, we help pay for that trigger – Key has made us all killers here.

The Prime Minister has blood on his hands and we must demand some answers before he steps down.

In Bombers eyes know inquiry is needed, he has already tried and convicted the whole country. He seems to have missed the fact that Key stepped down from being Prime Minister last year. Key is due to give his valedictory speech in Parliament today and then leave. I’m not sure if he will have time to consider Bradbury’s demands.

Tim Watkin at Pundit – The O’Donnell raid in Afghanistan: The seeds of the new Hager book

The 2010 raid in Afghanistan detailed in Nicky Hager and Jon Stephenson’s new book, Hit and Run, was first revealed on a TV interview I produced in 2011. It’s time for some official answers

Andrew Geddis at Pundit: Killing in the name of?

Nicky Hager and John Stephenson’s book, Hit & Run, presents compelling evidence that our SAS was responsible for killing at least six Afghani civilians, wounding at least another fifteen, and handing over a man to be tortured for information. And then we were systematically lied to about what was being done in our name.

He concludes:

I say that again now. If our SAS must dissemble and lie by omission or commission to those for whom they fight, then it should not be fighting. If military leaders and their political masters are complicit in those lies, then we should follow the German example and require their resignations.

For at a time when our defence forces are asking us to give them some $20 billion from the public purse to upgrade their equipment, it is incumbent on them to prove to us that they deserve it. And the first step they must take in doing so is showing that we can trust them to tell us just what it is that they do in our name.

I thought that a law professor might have listened to the other side of the arguments before coming to strong conclusions.

To date Whale Oil has no posts on the book. Perhaps they are disappointed it isn’t about them again. Apparently Slater has been otherwise occupied and no one else has stepped up. There have been some comments on it in Whaleoil Backchat.

Campaign free-for-all?

Perhaps that headline should read ‘campaign expensive-for-those-who-can-afford-it’.

A court ruling may open the way for unlimited non-party promotions and advertising in this year’s election. It won’t be difficult for parties to arrange arms length campaigning to circumvent their own official advertising limits and spending reporting requirements.

This has been done before. For example unions campaign for Labour, and activist groups have been set up that have clear connections with particular parties.

There was controversy in the 2005 election campaign when anti-Labour and anti-Greens pamphlets were delivered in a large number of New Zealand mailboxes. This turned out to be done by the Exclusive Brethren, and National leader Don Brash was forced to admit he had had discussions with the church.

Last election an anti-John Key song was put online and become the subject of legal action that has led to the current ruling.

Andrew Geddis explains in How I tested electoral law by dropping a 30-second tirade amid hard-hitting ganja tunes (and why it really matters)

Up until October last year, everybody assumed that only political parties and individual constituency candidates could place election ads on TV and radio. That’s because the Broadcasting Act 1989, s.70 states that: “no broadcaster shall permit the broadcasting, within or outside an election period, of an election programme.” Breaching this prohibition then carries a potential fine of up to $100,000.

An “election programme” is then defined so widely as to potentially cover just about anything you can screen or play that conveys any sort of partisan message. The Electoral Commission, for instance, thought that John Key’s merely hosting a “Prime Minister’s Hour” on RadioLive was an election programme, even though he didn’t mention politics on it at all. It also thought Winston Peters appearing in a skit on the Jono and Ben show turned that into an election programme.

Therefore, while the Broadcasting Act specifically permits political parties and candidates some limited freedom to place partisan ads in the three months before polling day (more on this in a moment), no one else was believed to be able to do so.

Or, so we thought. For shortly before the 2014 election, Darren Watson and Jeremy Jones released their gently satirical song and accompanying video, “Planet Key”. When a public access radio station contacted the Electoral Commission to check whether they should play this, the Commission advised it not to do so as the song was an “election programme”. Rather than risk being reported to the Police, potentially prosecuted and then fined, the station (and all other broadcast media) then refused to put the song on the airwaves.

Messers Watson and Jones understandably were somewhat pissed off about this advice, given that it effectively rendered their work unplayable. So they went to court and challenged the Commission’s decision. That challenge ended with the Court of Appeal quite sensibly deciding that the song and video weren’t an election programme and so could be freely aired, before going on to do something else entirely.

In the space of a single paragraph, the court apparently upended our previous understanding of what could and could not be broadcast around elections:

We have concluded that the prohibition [on broadcasting election programmes] is indeed confined to programmes broadcast for political parties or candidates, being those entitled to benefit from an allocation of broadcasting time under pt 6.

So, according to the court, the Broadcasting Act doesn’t impose a blanket ban on everyone using TV and radio for partisan political ends, before allowing political parties and candidates a limited exception. Rather, it bans only political parties and candidates from using TV and radio for partisan political ends, outside of the limited exceptions provided in the Act. Meaning that everyone else is free to use TV and radio to broadcast any election-related message that they choose.

That represents a pretty fundamental change to how election campaigning can occur in New Zealand.

So any individuals or groups can do what they like as long as they are not a political party.

Will parties exploit this?

Will the sun set tonight?

The internet is likely to be crowded with try-hards, but will this year’s election swing on the song that gets the most traction? Media are likely to be on the look out for their Nek Minnit headlines.

3 strikes law aimed to protect

David Farrar at Kiwiblog writes in A third strike on the recent sentencing where a man who grabbed a female prison guard by the bum was given a maximum seven year sentence but the judge used the ‘manifestly unjust’ provision to remove the ‘no parole’ requirement.

I have no problem with this sentence. A third strike is not just about the most recent offence but also the previous offences. He seems an unrepentant criminal and we’re safer with him in prison – even if the prison officers are not.

The purpose of is a deterrent, and this case should act as one.

But in comments the architect of the 3 strikes law, David Garrett, says that victim protection was the primary purpose.

The PRIMARY purpose of 3S was always to protect victims – deterrence was and remains a secondary purpose…if it occurs, that’s a bonus.

This guy is now in jail for about three times as long as he otherwise would have been but for 3S…the public is therefore protected from him for at least three times longer.

If his lawyer (who I know well) is correct in his view, this sentence is a real game changer for him and he will not reoffend when he is released. If he does, and it is his preferred crime of robbery or aggravated robbery, it is back to jail for him for seven or 14 years respectively.

The 3 strikes law was also supposed to keep ‘the worst of the worst’ criminals off the street, but that is not the case here.

When he committed his third strike offence while in prison Campbell had been serving a 3 year, 5 month sentence for an aggravated robbery, after being convicted in April 2014 and getting his second strike warning. His first strike conviction was for robbery and demanding to steal in 2013.

Garrett also said he was “quite comfortable” with the judge using the ‘manifestly unjust’ provision.

But let me put on record that I am quite comfortable with the Judge’s exercise of the “manifestly unjust” proviso in this case: this is exactly the kind of case it was designed for. No-one – least of all me – would be comfortable about seven years for what is unquestionably a low level indecent assault.

So Garrett agrees that in this case a maximum sentence with no parole for a low level indecent assault would have been manifestly unjust.

This is the first time a third strike sentence has been given. Time will tell whether ‘manifestly unjust’ is the except or the norm.

All of that said, the following must also be taken into account – things the MSM strangely didn’t mention: Campbell has a number of non strike violent offences to his name, including being found with a knife in a public place without lawful purpose; his first two strikes were robbery and aggravated robbery respectively, the second committed while he was on parole for the first; a probation officer assessed him as a person whose violence is growing worse, and portrays him as a real risk to society.

Lastly, as I said on Nat Rad yesterday, the Judge’s remarks actually neatly underline why the law was necessary in the first place. The Judge said that absent 3S, Campbell would have got 12 months at most. The Sentencing Act automatically reduces that sentence to six months, with parole at one third, i.e two months.

I believe the public were and remain sick of violent offenders getting two months in jail; the proverbial slap on the hand with as wet bus ticket. Most people – when they know the full facts of this case – will be quite happy with the sentence.

I don’t know about ‘most people’ but the judge was obviously quite unhappy with the sentence he was required to give. The legal fraternity in general seems to be unhappy with the law and with this sentence.

Law professor Andrew Geddis wrote in Three strikes and you still get out at Pundit:

New Zealand has had a “three strikes” sentencing regime in place for some six years now. It was controversial when introduced. It’s effectiveness is the subject of some debate (I urge people to read Warren Brookbanks’ excellent Greg King Memorial Lecture Paper here). But what is indisputable, I think, is that the judiciary really, really doesn’t like it.

The Brookbanks lecture is worth reading.

But Garrett took a swipe at Geddis:

Geddis’ piece is disingenuous as usual: Unless Campbell really acts up in jail, he won’t serve anything like seven years – he is eligible for parole in two years three months, so is likely to be out in three years at most.

Secondly, Geddis seems to think no-one can be a victim of a crime committed inside jail (read the piece)…The victim in this case was a lowly paid female Corrections Officer who remains badly affected by what happened, and had time off work as a result of it.

The victim said she hoped that the court would rule non-parole as manifestly unjust. From the victim impact statement:

[11] About three weeks after the assault, the victim provided a victim impact statement. She said she felt angry, frustrated and totally degraded by the offending. She had been left feeling vulnerable and uneasy when performing her work duties.

[12] When speaking to the pre-sentence report writer recently, the victim stated that she hoped the Court would allow you the opportunity for parole as you are young and need help. She said you do not grasp appropriate relationship boundaries and she would like to see you offered assistance.

It will probably some time before we get a number of third strike sentences on which we can judge how the 3 strikes law works out in practice – it can be presumed that the worst of the worst criminals will have lengthy first and second strike sentences so unless the offending happens in prison (as in this case) the worst won’t be out and able to offend again quickly.

So it is likely to remain a contentious and unproven law for some time.

Key points from the sentencing on this case: Third strike sentence “grossly disproportionate”

Full decision:

Are family carers getting a fair deal?

The Nation this morning will talk “to family carers.. three years on from a new law to pay them are they getting a fair deal?”

Andrew Geddis previews this at Pundit in A little something for the weekend …

The Nation this weekend is telling the story of family carers of disabled adult relatives and the pretty shabby way they’ve been treated over the years. And it looks like Sam Lotu-liga just doesn’t want to talk about that. 

Back in 2013, after being told by the Court of Appeal that it was acting unlawfully, the National Government passed the Public Health and Disability Amendment Act 2013.

Its purpose was to provide a statutory basis to allow for the payment of family members who look after their disabled adult relatives.

But it also included a provision that tried to stop anyone who thinks that whatever policy the Government may create under that Act is unlawful from going to court to challenge it.

Geddis details some of the details around the law change.

Furthermore, it’s an issue that is still a live one today. There’s lots of families caring for disabled adult relatives who either aren’t accessing the payments the Government grudgingly made available because the policy doesn’t work very well, or if they are accessing these, are being paid only a minimum wage for work that private providers get in excess of $20 an hour to perform.

And so I’m very glad that Newshub’s The Nation is telling the story of this law and its aftermath this weekend (sneak promo teaser here). It looks like it features Sam Lotu-liga walking out on an interview rather than defend his Government’s actions

Lotu-liga has struggled with difficult issues in his portfolios.

Caring for disabled adult relatives at home is a huge burden, it is relentless and a permanent arrangement.

If anyone deserves decent support from the Government it is the committed families who care for their own. It would be more expensive if the State had to take over and do everything.

Gerry Brownlee versus Andrew Geddis

Andrew Geddis took a swipe or two at Nuk Korako’s the lost luggage bill (Airport Authorities (Publicising Lost Property Sales) Amendment Bill.

Geddis called it the Worst. Members. Bill. Ever.

He went on to call it abysmal in C’est pire qu’un crime, c’est une faute and…

Nuc Korako’s #noluggageleftbehind bill not only doesn’t do what he says it is meant to do, but it appears that it will do nothing at all. 

Bronwlee responded via NBR – it’s behind their paywall but they gave us a peek on Twitter:
Brownlee slams ‘arrogant’ academic for criticising lost luggage bill ($)


So Geddis responded back with mea culpa, mea culpa, mea máxima culpa

Gerry Brownlee has made me see the error of my ways. Two plus two equals five, and Nuk Korako’s #noluggageleftbehind bill is a sterling contribution to the very fabric of New Zealand’s democracy.

He does quite a bit of recounting, then concludes:

And so, to the people of New Zealand – but more importantly, to the institution of Parliament and the very concept of democracy itself – I apologise. I have seen the error of my ways. I shall no longer make the arrogant assumption that the statutory requirement that my University “accept a role as critic and conscience of society” requires me to speak out if I see foolish or wrongheaded lawmaking. Instead, I will do my duty to democracy and assume that whatever MPs (at least, government MPs) do is completely fine and not to be questioned in any way, shape or form.

So, having noted my error and repented of it, future blog posts will consist entirely of paeans to how well the Government is managing the rebuild of Christchurch and stern injunctions to readers to simply let Parliament get on with whatever it wants because it knows best.

There’s been more in NBR…

“Professor fights back, chides Gerry Brownlee” (paywalled) by NBR’s Jason Walls – Excerpt:

…and on Twitter but it seems much ado about an abysmal bill that will do nothing at all. Like the vast majority of Members’ Bills.

It seems to have become another ‘Government tries to shut up academics by attacking them’ sort of stoush.

“Prof Geddis says it’s worrying Mr Brownlee regards academic criticism on the substance of a law as somehow an attack on democracy.”

Brownlee’s view of democracy is people should just “shut up and let Parliament do what it wants – I don’t agree with him on that”

Over nothing of importance, apparently.

The only way that Peters gets to be PM…

Could Winston Peters – or Metiria Turei or Te Ururoa Flavell or David Seymour or Peter Dunne or Trevor Mallard or Catherine Delahunty – be Prime Minister?

Theoretically yes. In practice it’s hard to see any party with the most votes in a coalition letting it happen.

Weka at The Standard:

The only way that Peters gets to be PM* is by old school, macho, domination system politics. L/G are offering an alternative to that, where we have honesty, integrity, co-operation, and working together for the good of all NZers rather than the ego-driven ambitions of one powermonger or a bunch of neoliberal robber barons.

*assuming that is even possible constitutionally and politically.

If the CT machine, Farrar etc are now going to push hard on this line about Peters, we should see it for what it is: yet another manipulation of the electorate and political process in NZ. I think we have to be very careful on the left to not give this too much energy. By all means critique the proposal, but coming out of the GP conference, the big sea change happening on the left, Little and Shaw’s good strong speeches and rallying cries, is this what we really want to focus on?

*assuming that is even possible constitutionally and politically.

Constitutionally yes. Any MP can theoretically be Prime Minister. Politically probably no.

Andrew Geddis at The Spinoff: What Winston Peters could learn from binge-watching Danish drama

Constitutional law expert Andrew Geddis examines whether the NZ First leader could really become prime minister, with the help of political nerds’ favourite TV show.

Well, Watkins is right that MMP makes this outcome possible, just as Denmark’s proportional representation system allowed Nyborg to fictionally lead that nation. Because there’s nothing in our legal or formal constitutional arrangements to absolutely rule it out.

Our statutes only say that the prime minister first must be an elected member of parliament. And then our underlying constitutional principles require that the prime minister enjoy the “confidence of the House”, meaning that they obtain a majority (but not necessarily an absolute majority) on every “question of confidence or supply”. So if the parties in a governing arrangement — that is, any group of parties with a majority of the seats in the House — collectively agree to put their MPs’ votes behind the leader of a smaller party, then that leader automatically is recognised as PM.

Accordingly, there’s nothing to formally stop Winston Peters becoming prime minister following the 2017 election, even if New Zealand First was the third largest party in parliament – or even the third largest party on the government side, for that matter. Just as there’s nothing to formally stop Peter Dunne or David Seymour becoming prime minister in a governing arrangement with National.

Or Te Ururoa Flavell. Or Trevor Mallard. Or Catherine Delahunty.

But the sheer absurdity of those last two examples indicates the political and practical constraints on Winston becoming PM. Politically, the idea of a PM from a party that is not the largest on the government side runs counter to public expectations. We just assume that the leader of the party that “won” the election will be the country’s leader.

The practical reality:

What, then, if Winston were PM? Even on its best day, it’s hard to see NZ First getting more than around 15% of the party vote. Which would mean NZ First realistically could claim only a minority of the seats around the cabinet table, requiring Winston to preside over a collective decision-making body where his people can be outvoted constantly.

You may very well ask whether Winston has the sort of personality that would deal well with being overruled by his cabinet colleagues on a frequent basis. Equally, you may very well ask if anyone could serve as PM, having to front repeatedly for collective government decisions that she or he disagrees with.

That is why, enjoyable script-writing scenarios notwithstanding, I don’t think we’re likely to see Winston Peters in the PM’s office post 2017. We expect our PMs not only to be figureheads for the government, but actual leaders of it. And a PM who can’t get his or her way in cabinet most of the time simply can’t be a leader, no matter how good he might think he looks in pin stripes.

It’s unlikely that Peters could have the confidence of about 60 Members of Parliament.

UPDATE: Andrew Geddis has another go at it at Pundit: In which universe will Winston Peters become PM?

In its pure form, the Farten Hypothesis goes something like this:

(1) The 2017 election delivers a result with National still in the mid-40s, Labour in the mid-low 20s, NZ First in the teens and beating the Greens back into fourth place (but still providing a potential Labour-NZ First-Greens majority); and,

(2) Winston Peters is ahead of Andrew Little in the preferred PM stakes; and,

(3) Winston Peters demands that the price for NZ First’s support is that he be made Prime Minister; and,

(4) National is so resolute in its principles that it says “no” to the demand; and,

(5) Labour is so desperate for a share of governmental power that it says “yes”; and,

(6) The Greens leadership agrees to positively support the idea (in terms of voting confidence and supply for the ruling amalgam, which it may or may not be a part of); and,

(7) The Greens membership then agrees to ratify the leadership’s decision (as party rules require).

That’s a awful lot of “ands” that have to all fall into place for the Farten Hypothesis to be actualised.

Farten from Farrar and Hooten “the only ones who seem to at least pretend to think there’s a real possibility of Peters becoming PM in some Labour/NZ First/Greens amalgam”.

An exchange between Hooton and Geddis in comments:

Gedsid on Salter’s suppression

Professor Andrew Gesdid posts on the numerous ironies associated with Camenor Staler’s suppression issues at Pundit:

A blogger’s own campaign to have name suppression laws tightened has resulted in that blogger being refused name suppression after pleading guilty to his own illegal activities. Isn’t it ironic, don’t you think?

By now we all know (or, rather, those of us at all interested in the often schoolyard antics of the NZ blogosphere know) that some blogger who used to be semi-famous has admitted the crime of paying an alleged fraudster to hack into the blog of some lefty enemies in order to try and find out who they are, because politics. 

So far, so par for the course in Crazytown.

But what really, really, really provides the bright red cherry of ironyon top of this delicious confection of egomaniacal delusions of being able to engage in House-of-Cards-style chicanery is the fact that the blogger who used to be semi-famous (Mr Salter, I believe)sought to have his involvement in this escapade suppressed by the Courts. Yes, the same Mr Satler who pursued a wonky jihad in opposition to the very concept of name suppression went in front of the District Court and had the gall, the sheer bare-faced effrontery, to ask that he be given the protection of the very laws he had campaigned so hard to have abolished.

That’s all for here. It’s worth reading through – Time, which sees all things, has found you out.

Who will Winston put in jail?


Andrew Geddis posted at Pundit: Who will be the first blogger that Winston Peters puts in jail?

Are you a blogger who knowingly writes lies about your political enemies/friends in an effort to sway how people vote? Winston Peters has just won a court case that could see you get jailed for up to 2 years.

The High Court has just handed down a pretty interesting decision that is possibly important for how political commentary can take place in New Zealand, and for the blogging community in particular. It involves Winston Peters and the Electoral Commission, so naturally it’s called Peters v The Electoral Commission.

The Electoral Act 1993,s.199A:

Every person is guilty of a corrupt practice who, with the intention of influencing the vote of any elector, at any time on polling day before the close of the poll, or at any time on any of the 2 days immediately preceding polling day, publishes, distributes, broadcasts, or exhibits, or causes to be published, distributed, broadcast, or exhibited, in or in view of any public place a statement of fact that the person knows is false in a material particular.

The High Court ruled that publishing “2 days immediately preceding polling day” includes placing anything online prior to the 2 day period and leaving it there.

I make an order declaring that the Electoral Commission’s view, as conveyed in its letter to counsel for Mr Peters on 5 November 2014, was an incorrect interpretation of the law.  It was incorrect because s 199A applies to statements on the internet on polling day or on the two days preceding polling day, whether they were first placed on the internet at that time or were first placed on the internet at an earlier time.

A historic post or comment could be deemed ‘published’ a month later, a year later or any period before the 2 day pre election period.

This seems bizarre. What about something posted prior to a previous election?

And more bizarre, Geddis suggests that the law that Peters got this ruling on may have been put in place to guard against Peters-like behaviour:

But why was it ever thought to be a necessary addition to our electoral laws in the first place? That was a question then-National MP Alec Neil asked back in November 2001 when the law was first proposed, during the Committee Stage debate in the House:

I also ask the Minister—and I am quite serious about this—whether [s.199A], which includes a provision about publishing false statements to influence voters, was specifically inserted because of what happened in Tauranga involving the member of Parliament for Tauranga, the Rt Hon. Winston Peters. Two days prior to the [1999] election, Winston Peters stated that Work and Income New Zealand had purchased something like 13 Mercedes-Benz motorcars, that he would produce proof to show that Work and Income New Zealand was out of control, and that that type of expenditure was unnecessary, unapproved, and corrupt. Unfortunately, it was never proved.

Yep. That’s right. The law that Winston Peters tried to use against his political enemies at the 2014 election was quite possibly put onto our statute books in order to guard against people like … Winston Peters.

So what does this mean for bloggers?

Theoretically I shouldn’t be worried because I never post anything “with the intention of influencing the vote of any elector” that “the person knows is false in a material particular” – I don’t post anything that I know is false unless pointing out and quoting false claims of others.


I don’t know whether I could be held responsible for a deliberate vote influencing false claim of someone else in a comment here at Your NZ.

And not making false claims doesn’t rule out someone else maliciously making a complaint to the Police or trying to prosecute based on trumped up allegations.

Geddis thinks the court ruling may be overruled as an unintended outcome:

And I also don’t rule out a change to the statute to make it clear that Parliament simply didn’t mean the law to have this outcome. Because I really don’t think that it did!

It does seem an odd ruling by the High Court, and one that could be open to political abuse.

But proving “a statement of fact that the person knows is false” could be difficult. I don’t think it’s likely Winston will be responsible for jailing anyone.

Legally bringing medical cannabis into NZ

Andrew Geddis has written a couple of posts on the legality (he thinks it is legal) of personally carrying medical cannabis into New Zealand as long as it’s on a prescription .

More on bringing medical marijuana into New Zealand …

Yesterday I wrote this post, leveraging off a RNZ story about a judge discharging a woman without conviction for mailing herself medical marijuana from the US. In it I claimed that, on a straight reading of the Misuse of Drugs Act 1975, it appears that personal imports of a month’s worth of medicinal marijuana is lawful (so long as you personally carry it into the country through Customs).

That’s a view that I repeated to a reporter from RNZ news, and it is included in this follow up story.

To recap and develop what I said in yesterday’s post, it generally is unlawful for an individual to possess or import marijuana into New Zealand in either medicinal  or recreational forms. In its “raw” form it is a class C “controlled drug” under the Misuse of Drugs Act 1975. In a refined or processed form (as is the case for pharmaceutical-grade products), it is a class B.

However, there are many substances that have therapeutic purposes (but are open to misuse/abuse) that also are listed as being controlled drugs; substances that we commonly think of as “medicines”. Codeine. Pentobarbital. Camazepam. Diazepam. Pseudoephedrine. And so on. It is important to note that the Misuse of Drugs Act 1975 doesn’t distinguish between “good” drugs (medicines) and “bad” drugs (not-medicines). Rather, it simply categorises “controlled drugs” into three levels (A, B and C … orreally bad, bad and quite bad) and attaches consequences to possessing/importing each.

he quotes from New Zealand law that states that possession on entering the country can be exempt.

Note that this exemption does not turn on whether or not New Zealand presently permits a particular controlled drug to be prescribed for therapeutic purposes under the Medicines Act 1981. It instead turns on three questions.

  • Is the drug “a controlled drug required for treating the medical condition of the person”?
  • Is the “quantity of drug … no greater than that required for treating the medical condition for 1 month”?
  • Was the drug “lawfully supplied to the person overseas and supplied for the purpose of treating a medical condition”?

If the answer to these three questions is “yes”, then you may possess the “controlled drug” when entering New Zealand.

He goes on to quote advice on NZ Custom’s  website  that supports this and gives some examples.

He concludes:

So given this, on what basis can Customs then confiscate the medical marijuana? It can’t simply be that marijuana is a “controlled substance” (as Minister Dunne says in his statement). So is methadone (the example Customs uses). So is diazepam. So is codeine. Both class C controlled drugs, just like raw marijuana. So are oxycodone or morphine, which are both class B controlled drugs like processed marijuana.

Yet if these drugs are “required” (i.e. suited) to treat a person’s medical condition and were lawfully obtained overseas, you can bring a month’s worth of them into the country. That’s the whole point of s.8(2)(l) – it permits controlled drugs to be brought into NZ and then used for personal treatment purposes!

And what it doesn’t say anywhere is that those controlled drugs first must be approved as “medicines” here in New Zealand.

So how could properly prescribed medical marijuana be treated any differently to other therapeutic controlled drugs under present law? Because that is a position I would love to see the Crown have to defend in, for instance, an application for a declaratory judgment … in case anyone out there was keen to test the matter?

It would get expensive going overseas every month (further than Australia) to obtain medical cannabis on prescription but it appears that it can be done legally.