Garth McVicar recently made comment that New Zealand ought to adopt a system of judicial election.

Presently judicial appointment is governed merely by convention. Candidates are drawn from a pool of experienced senior counsel and appointed by the Executive after a not insignificant amount of vetting. This longstanding approach seeks; amongst other aims, to ensure the impartiality of the judiciary.

Judges need to be free from fear or partisan politics in delivering their judgments in order to do justice between the particular parties before the court.

Mr. McVicar’s suggestion that the election of judges is the only way to hold the judiciary to account is patently untrue. It seems only to emphasise McVicar’s misunderstanding of the purpose of the judicial branch of government.

There’s an air of hypocrisy and sophistry in suggesting that judicial elections will ensure accountability, if we unpack McVicar’s comments this writer believes what is actually saying runs something more like this:

“We need more ‘hanging judges’. We also need a way of removing any judge who in the public’s eyes fails to live up to the ‘popular’ mandate for more punitive sentencing”

Such a system runs contrary to the impartial application and interpretation of the law that the courts exist to provide. If judges are elected it would result in a more politically charged judiciary. The very nature of the political process could jeopardise the proper execution of judicial office “without fear or favour, affection or ill will.”

The policy that McVicar espouses has nothing to do with accountability and everything to do with injecting bias and prejudice into the courts.

Edward Ryan, former Chief Justice of the Wisconsin Supreme Court noted that the judiciary “represents no man, no majority, no people. It represents the written law of the land… it holds the balance, and weighs the right between man and man, between rich and poor, between weak and the powerful.”

Policy and value judgements are not to be done by stacking the bench, they are the realm and purpose of the legislature.

Harsher sentencing does not work. Criminals do not rationally weigh up potential sentences - the impetuses for criminal offending are far more varied and complex.

It’s time McVicar was ignored, his comments clearly illustrate the ill considered nature of his viewpoints. Why does this man remain the go-to guy when there are so many other people; both professional and academic advocating for a fair and effective criminal justice system?

Public funding for tertiary education comes from a limited pool, as do the academics and multitude of other resources that comprise a good tertiary qualification. The Tertiary Education Commission report to the incoming Minister stated that one of the key challenges facing tertiary education planning in New Zealand is how, “a university system featuring more differentiation between institutions can make best use of scarce resources.”

In the face of this statement the curiously branded AUTU (”Auckland University of Technology University”) will now offer the LLb (”Legum Baccalaureus”) or what’s commonly known as a law degree. AUT ‘differentiate’ their law degree by suggesting it will have a strong commercial focus by;

“Adopting themes (such as ideas of property); by using cases involving crime in a business context (rather than the murder/manslaughter type of offence commonly used in other law schools) to illustrate relevant principles in the Criminal Law paper; by using examples of business enterprises challenging decisions of government and local bodies in the Judicial Review paper.”

In a press statement made by the New Zealand Law Students Association concern was raised about the proposed curriculum, noting that AUT seem to have confused their experience in teaching limited commercial law subjects to Commerce Students with providing the widely balanced, well resourced, comprehensive curriculum that is necessary for offering a viable law degree.

The Council of Legal Education is required to moderate entry level examinations between law schools. However, it will be interesting to see how a Criminal Law paper can disregard the classical curriculum in favour of more simple regulatory offences and the like yet still remain as challenging to students as traditionally covered material.

Many institutions including the University of Auckland and AUT already offer ‘Commercial Law’ majors under their Bachelors of Commerce and Business respectively. There is no reason why then that the traditional Llb needs to be revised from it’s role of training fully versed legal professionals. Those with a penchant for commercial law may pursue such a course under an alternate degree or as a follow on specialisation from their Llb should they wish to practise. The existing law schools all offer commercial and business law papers which build upon a general legal education provided in the initial years of the Llb. The reasoning for which is that as the concepts learnt in the initial years are the central tenets of the operation of law in all spheres.

AUT states that, “Law graduates consistently have one of the highest employability rates of any groups of graduates with only 50 per cent going on to practise law.” It is well recognised that the market for law graduates is reaching saturation, particularly in these strained economic times and it is in the interest of existing institutions and students to oppose AUT’s new ‘commercial law degree’. If AUT plans to run a programme without the intention of its graduates practising law then such demand is already well catered for in existing business programmes.

The reason law has high employability rates is that employers recognise the holistic nature of the education provided by the Llb and the intellectual rigour it demands of students. Maintaining the value of the LLb is as much in the interest of students as it is in the publics. Being awarded an Llb is a prerequisite for admission as a Barrister & Solicitor of the High Court, a profession with duties to the justice system, one another, the public and the rule of law. It is everyone’s interest to ensure our society is well served by competent lawyers who are able to competently defend citizen’s rights and coordinate the framework of morality and commerce that is the legal system.

The perception of a foreign degree in most countries is based upon the perception of all graduates from that foreign nation awarded said degree. If one institution lets down the degree it will damage the international reputation worked hard for by the existing faculties.

AUT believe that the Auckland ‘market’ is currently, “underserved compared to other New Zealand major centres and Australian cities”. Entry into the University of Auckland’s law programme is competitive with typically over 1000 applicants applying and only 300 being accepted based upon their grades in the first year program. This entry requirement reflects the current strains on teaching resources, the need to ensure that applicants possess a sufficient standard of intellect and ability and in recognition of the limited demand for law graduates. It would appear that AUT’s target market will be students who don’t cut the mustard for the limited places in the University of Auckland’s Law School. University of Auckland lecturers apparently told first-year students who might not get into its shrunken second-year intake, to take a look at AUT - who seem excited at the prospect of having those who were not of the callibre considered suitable by UoA.

AUT is better off remaining focused as a technical institute and avoiding the more academic subject of law. New Zealand is well served by the existing law schools. It doesn’t need another law school targeting those who perhaps ought not be pursuing a profession which prides itself on the skills of reason and advocacy combined with academic merit, duty and integrity.

Lest the next Auckland University Law Students Society tshirt read, “If you go to AUT and study law, you’re a bloody idiot.”

Granting creators of content a temporary monopoly over their content in order to derive financial return is part of fostering a creative New Zealand and upholding our international intellectual property agreements. Development of content takes considerable effort and if we value the fruits of professional commercial creativity (questions of legitimacy aside) then we need to safeguard the property rights of creators.

As we’ve seen with the recent pullback on Digital Rights Management (DRM) the non-rival nature of ‘intellectual’ property combined with emerging technologies has made it increasingly difficult to enforce copyright. The largest conduit used for the dissemination of copyright infringing material is the Internet, an international technologicaly and legally complex system making rights management all that more arduous.

In an attempt to improve the balance the Copyright (New Technologies) Amendment Act 2008 was passed into law on 11th April 2008. It’s primary role was to update our Copyright Act 1994 to deal with new modes of content use and sharing. Some of the amendments made are most welcome, such as allowing for time-shifting, format shifting and expanding fair use.  However, the most contentious aspect of this new law is the lumbering of enforcement responsibility upon Internet service providers. The Telecommunications Carriers’ Forum has described it as ”deeply flawed”.

Notice & Takedown

Section 92B provides that ISPs are not liable for any copyright infringement by content stored on their services, or by their own automated caching activities where they are unaware of the infringement. They do however become liable for copyright infringement where  they fail to, “as soon as possible after becoming aware of the infringing material, delete the material or prevent access to it”. Following any takedown the ISP must also as soon as possible notify the, “user that the material has been deleted or access to it prevented.” This is known as ‘notice and takedown’ roughly the same procedure in place under the Digital Millenium Copyright Act in the USA; except under the DMCA you can issue a ‘put back’ notice and have your content resinstated within 10 to 14 days if the matter is not pressed by the copyright holder to Court.

What this means is that as a ‘copyright holder’ if you provide the ISP with the required information at the risk of becoming liable for infringement themselves the ISPs are going to pull the content. Matthew Bolland of TelstraClear says that, “We don’t check or verify. We take it down.”  This validates the Consumer’s Institute concern that “the procedure is open to malicious abuse by parties who wish to close-down websites or disrupt in some way another person’s business or enjoyment of the use of the internet.”  The proposed offence of filing recklessly erroneous or misleading infringement notices was removed from Act as Christopher Findlayson described it as, “heavy-handed“. Malicious issuance of take down notices can have major financial repercussions for website owners, a stifling effect on creativity and a chilling effect upon freedoms of speech. If anything it is the notice and take-down procedure that is heavy handed. It seems absurd to have no explicit disincentive to use them in this fashion, and no provision requiring users content to be reinstated where they contest the notice - allowing content to be deleted is likely to hinder any further inquiry of the matter.

Section 92B means you are guilty until proven innocent, in an bias forum no less. This contravenes basic principles of natural justice.

A fairer procedure would be a variation on the ’notice and notice’ system as employed in Canada and advocated for by the Consumer’s Institute to prevent non-infringing material from being taken down under the guise of copyright infringement. A notice is passed via the ISP to the user notifying them that they are infringing copyright in some way. The user can then decide to voluntarily pull the content within a reasonable time period or the ISP can block access to it, or alternatively contest the notice and the matter may be adjudicated in court from there. 

Reasonable policy for termination

From 29th February 2009 s 92A of the Copyright Act 1994 will require that, “Internet service provider[s] must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account… of a repeat [copyright] infringer.” The Commerce Select Committee report recommended that new section 92A be deleted as, “the standard terms and conditions of agreements between an Internet service provider and its customers usually allow for the termination of accounts of people using the services for illegal activity.”

 The Telecommunications Carriers Forum are at present coming up with policy on how to comply with the law, although they are unsure whether it will be ready by the 29th February deadline, good luck to them. The requirement of a reasonable termination in appropriate circumstances for repeat infringers  (helpfully defined as;  “a person who repeatedly infringes”) is incredibly imprecise and ambiguous and will no doubt be the subject of future litigation.

How this law was ever passed in it’s current form is a testament to the adage hard cases make bad law.

The imposition of an average 10-15% holiday surcharge began with the passing of the Holidays Act 2003. ‘The Act’ entitled workers to time and a half and a day in lieu, meaning payroll costs are increased some 150% where merchants choose to open on a public holiday. A worker previously on minimum wage at $12 now effectively earns $30 for working on a public holiday.

Cafes started the trend, and given hospitality’s high labour component most businesses in the industry soon followed.

Judge Thoburn’s ruling in Commerce Commission v Air New Zealand (2005) concluded that not including operating expenses in the ‘headline’ price, “seems wrong in principle and unfair to the consumer, because it could open the door to self serving and indulgent practices”. I wholeheartedly agree with this assessment, and on point here His Honour notes, “an increase in wages by a general wage order of the Government could be separated out”

His Honour suggested that where “headline” advertised prices do not include internal expense, as was the case with Air NZ’s fuel surcharges then its likely to be considered a false price, having regard to how a business must work out its basic pricing structure. Seperating out the cost of wages is, “in principle [unfair] in the marketplace of fair trading practice”, it cannot be remedied by the drawing attention to additional information.

While the average NZ shopper isn’t going to be misled where a sign informing them of a surchage is clearly displayed, employing a surcharge to cover what is clearly an operating expense seems offensive. The test to consider is whether the charge is an integral essential and non-negotiable part of what is required in the operation of the business. A business makes a choice whether to operate on a public holiday, and meeting payroll on this day, as on any other, is quite clearly an internal cost of the business - should they wish to remain open they should spread their overhead costs as they do for all other fixed costs through the year.

As the Holidays Act 2003 does not call for the collection of an additional charge it cannot be invoked by merchants claiming a, “government surchage tax” regardless of their view. This is simply untrue and in breach of the Fair Trading Act 1986.

The extra business transacted on a public holiday should go some way towards meeting the increased costs if they do choose to trade.

Yes it is possible we will see more doors shut these coming public holidays, perhaps those businesses who choose to eschew the surcharge may do a roaring trade as consumers become wary of where every penny is spent.

Fiji has a history of civil unrest over the divisive issue of how political power is to be distributed between ‘Fijian-Indians’ and the ethnic or indigenous Fijian population. 

The Fijian-Indian population is the legacy of the British attempt to establish an economic base for the ex-colony. Between 1879 and 1916 Indians were bought to Fiji as indentured labour for the sugar cane plantations, by 1987 they comprised an estimated 46% of the population. Given the increase in Fijian-Indian numbers a multiracial government was elected in April 1987, which was promptly overthrown in May of that year by Colonel Rabuka. Fiji eventually declared itself a Republic having been suspended from the Commonwealth and introduced its 1990 constitution. This constitution favoured indigenous Fijians, reserving for them two thirds of the Senate, much of the House and banning any Fijian-Indian from holding Prime Ministerial Office.

In 1997 a Constitutional Review Commission returned its recommendations for a multi-racial constitution founded upon the protection of basic human rights which was passed in the House on 3rd of July 1997.

On May 19, 2000 George Speight took Prime Minister Chaudhry hostage and attempted to abandon the 1997 constitution to institute indigenous-Fijian supremacy. However, as the security situation worsened Colonel Bainimarama imposed martial law fully abrogating the 1997 constitution effective 29th May 2000. Following this Bainimarama vested in himself complete executive authority with the military might to enforce this.

Mr. Prasad a farmer exiled from his land took a case to the High Court in order to establish that the 1997 constitution was unlawfully suspended, and was successful. Curiously the the Interim Civilian Government appealed to the Court of Appeal vesting the judiciary with the extraordinary authority to determine the status of the constitution. They found it to have been unlawfully abrogated and such it was subsequently reinstated with Parliamentary elections taking place in September 2001.

Then in 2006 as a response to the leniency to be shown to the perpetrators of the previous coup d’état, and his dislike at government policy; which he feared would return the country to, “paganism and cannibalism” Bainimarama decided to topple the government. He unconstitutionally installed himself as Prime Minister, a post which he has now enjoyed since January 2007.

Bainimarama declared High Commissioner Mr. Michael Green persona non-grata shortly after citing his, “persistent interference in Fiji’s domestic affairs”. 

“The practice of quiet diplomacy was foremost given all the chances to prevail by Fiji authorities in our efforts to seek understanding and co-operation of H.E Mr. Green to stop interfering in Fiji’s domestic affairs given our status as a sovereign nation.”

More recently the Fijian Government has repeated this action with our subsequent High Commissioner Mrs. Caroline McDonald. Although Article 23 of the Vienna Convention on Diplomatic Relations 1961 does not require a state to give reasons as to why consular staff are to be declared persona non-grata the imposition of travel sanctions seems to the the likely reason behind this move. As stated by Fiji the sanctions are “one of the clearer indicators of the state of our current relations”.

At present there is a ban on all members of the Fijian Military Force, certain individuals associated with supporting the coup as deemed by the NZ Minister of Immigration and their close associates, sectaries of Fijian government departments, and the immediate family members (partners, children and children’s partners) of all those banned. Our sanctions primarily inconvenience the Fijian ruling elite. Any new aid initiatives that involved partnership with the Fijian government have been suspended. Our 2008/2009 aid allocation to Fiji is $5M for NGO projects.

The balance of political power in Fiji is contentious, and it appears as though there was some corruption in the Fijian government prior to it’s dissolution. However, nothing on the scale of what we’ve seen after the coup. Bainimarama’s undermining of the electoral system to seize power for himself is in no way legitimate, using force claiming to uphold the constitution is nonsensical. The correct process for reform is to be made by the voters, with free universal suffrage. A coup is the antithesis of the rule of law.

Expelling our High Commissioner on grounds of claimed domestic political interference seems to be a front for the fact that the Fijian elite are upset by the travel sanctions imposed upon them by NZ. Do they expect us to turn a blind eye to the treatment of citizens and foreign journalists post coup.  Perhaps showing some movement toward a fair and just elected government of the people would’ve gone some way toward lifting these sanctions. However, Bainimarama appears happy to continue his dictatorship of what is aptly being termed Bainimarama’s banana republic. Fiji’s economic decline is likely to highlight the disparities between Fijians and make the process of moving forward that much more difficult.

Upon reading my local paper I noticed an editorial by Pat Booth suggesting that we ought to review the ‘right to silence’ afforded to defendants in criminal trials.

Nemo tenetur seipsum accusare, that no man is bound to accuse himself, does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance as promulgated by Lord Mustill in R. v. Director of Serious Fraud Office, ex parte Smith (1992). The contemporary form of these rights stems from Judges Rules 1912 issued by the Kings Bench to the Police force concerning how they conducted criminal procedure, ending beating and torture. Its historical origins are a little more confused, it is believed initially to have come in response to the practices of the Court of Star Chamber where the accused were required to answer questions without knowing what they were accused of. It acts to protect defendants from torture and compulsion and the system from false confession.

Upon his retirement the late Kevin Ryan QC suggested to the surprise of the legal community that the right was designed for an illiterate populous quite different from contemporary society. His comments seemed to stem from the recent number of high profile child abuse cases, in particular the Kahui debacle in which the family closed ranks and refused to answer questions. My thoughts on this one were that both Mr. Kahui and Ms. King ought to have been committed to trial as co-defendants meaning you’d likely ensure at least one conviction preventing them from pointing the finger at one another. As we know hard cases make for bad law and one can only hope Justice Minister Simon Power keeps this in mind with his upcoming review into the right.

Sensible Sentencing suggests the removal of this protection, but then I’ve never really had much time for an organisation which advocates for the removal of the ‘cab rank rule’ but sees the reinstatement of the death penalty in New Zealand as a viable option for combating crime. Removing protections for competent and adequate representation while attempting to reinstate the death penalty is a little sickening.

I think they real issue is that the invocation of the right to silence by a defendant cannot itself be bought as evidence at trial from which a jury may infer guilt. You may ask if one has nothing to hide why would one need to avail themselves of such a protection – and perhaps rightly – this fact should be admissible. However, a jury must still be satisfied beyond a reasonable doubt and in my mind drawing inference from such a confession is dangerous and may threaten to erode the cornerstone of criminal justice that “it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer.”
I would not support granting Police powers to question akin to those given to the SFO under ss 5, 9, 45 of the Serious Fraud Office Act 1990.

If an individual refuses to answer, do we torture them, imprison them or just fine them. Do we want a state where you can be punished for simply failing to answer questions to the standard set by and demanded by investigators . What questioning is appropriate? Vesting such powers to the police poses much scope for abuse.

We mustn’t forget the criminal defendant is pitted against what Gary Gotlieb terms the “might of the state” – the job of prosecuting criminals can and has been done for over 100 years with this liberty intact. I can’t see how a system which requires an admission of guilt to ensure a conviction as being sufficiently robust to be vested with the power to imprison, fine and otherwise restrict individual freedom.

As it stands employees can bring a ‘personal grievance’ where they are unjustifiably dismissed, that is, dismissed outside of how a fair and reasonable employer as objectively assessed would act. This means that a reason for dismissal should be given as well as proper procedures followed, it’s a bit of a legal minefield for small business.

Dr Wayne Mapp’s Employment (Probation) Bill 2008 being passed under urgency proposes to abolish this protection where both employer and employee agree to do so. As we all know employment negotiations don’t always play out on an even pitch therefore it’s likely the probation period will become standard boilerplate given to employees from now on. Especially for unskilled labour who often benefit the most from union assistance (for which dismissal for association will no longer constitute a personal grievance in the probation period) as opposed to those capable of negotiating their own contracts.

To dispel some of the misinformation floating around, there will be no constant firing and rehiring of employees as the Bill will only allow one probabtion period per employer-employee relationship. Although in my opinion the hire-fire scenario would be unlikely given the negative impact this would have upon the employment relationship dynamic and the economic cost of the resultant high staff turnover. It is also only applicable to businesses which employ less than 20 staff, those likely to recognise the importance of good staff and to be most hurt by a less than suitable employee bringing a grievance. The Bill will remove access to employment mediation services, however employees can still avail themselves of the Human Rights Act 1993 if they feel they have been unfairly discriminated against.

I find little weight in the argument that this Bill needed to be passed under urgency, perhaps it’s only real function is to herald a change in the process of government. It may have already been assessed under the previous government but this does not mean any adjustments should be exempt from review. I for one can’t see the large impetus for passing this under urgency, it’s painted as a Bill to help employees by allowing employers to take a ‘risk-free’ chance on them, and by the same token assist employers by letting them vett potential employees for a lengthy period - what’s the big hurry?

No industry where it takes three months to assess employee suitability springs to mind, and therefore this seems to be an overly lengthy time period.  Job stability is a socially important goal allowing people to plan into the future, three months is but a pinprick in eternity but reducing the time period to one month (the usual maximum pay period) seems to strike a better balance.

Small business is an important part of our economy and does often run on very slim margins, so protections need to be afforded to those who choose to run such businesses - but only insofar as they do not erode the rights workers have fought tooth and nail for.

The real issue I take with this Bill is that it means employers can act in an unfair and unreasonable fashion, or at the very least not be required to act in a fair and reasonable one. Yet for many small businesses doing so and showing they have done so can be a tricky process that is perhaps slated against them from the beginning, let’s trial it - if it’s abused and the subject of well founded complaints then lets revert back. Given what I predict will be the minimal impact of this legislation it comes across as just a bit of tinkering, unless you like slippery slope argument.

Vince Siemer is a name seldom discussed beyond the walled garden of New Zealand’s legal community. Behind the name however is a man who loudly expounds what he believes to be the injustice done to him by the judiciary. Or perhaps just a man who has no concept of, or simply no respect for the rule of law in NZ.

In 2005, Seimer an American businessman, had a significant (to say the least) falling out with Mr Michael Stiassny, an Auckland insolvency expert. Stiassny was appointed as receiver for Paragon Oil Systems Ltd, a firm in which Seimer was a significant shareholder. Seimer then chose, in true American style to go public with his claims of improper personal enrichment against Stiassny. He rented a car park billboard which directed viewers to his website populated with what has since been described by the Supreme Court as material highly critical of Stiassny. Stiassny then sued Siemer for defamation and applied for an injunction. All rather straight forward stuff.

Now, ordinarily the courts will not provide interim injuctive relief in cases of defamation where the defamatory material has some ground of justification. However, as a result of a 1992 Court of Appeal judgment interim injunctions for defamation can be awarded where there is in the Court’s view no reasonable possibility of a legal defence. This is tempered by the right to freedom of expression in the NZBoRA thus the jurisdiction to award injunctions is only available for clear and compelling reasons.

The High Court took the view that this was such a case. Hence Stiassny was awarded a rare interim injunction ordering Seimer to remove anything about Stiassny from his website. This injunction was perhaps unduly wide and was later recast on appeal. Ordinarily this would be where the ride stops, Seimer complies and if he wishes may push for a trial where the truth can be uncovered in his defence.

Seimer however, chose not to comply and as a result in early July 2007 upon returning from the United States, he was picked up by police and taken to the cells underneath the High Court in Auckland to be tried for contempt. There he remained until Justice Potter ordered his incarceration behind the formidable stone walls of Mt Eden prison for six weeks which he served out, complete with hunger strike.

Vince and his supporters argue that because the action originated as one of civil defamation, prison is not a possible sentence. They fail to see that the reason Vince went to jail is for failure to comply with a court order. Succinctly stated by University of Auckland Associate Professor Bill Hodge, “Society falls apart if we don’t obey court orders and the court order is cease publishing this material on this website”. Vince held the keys to his jail cell so to speak, as soon as he complied he would be released. Yet he still didn’t comply.

One has to wonder why, if Siemer strongly believe that all the defamatory material was true then why would he not push for his day in Court and call the truth to his defence. As Seimer has disregarded the original injunction the prospect of pushing to go to trial probably now seems futile to Stiassny. What hope would there be of enforcing any further court order.

Given Siemer’s total disregard for the order Solicitor-General David Collins (now a target of Vince’s attack) really had no choice but to apply to have Siemer imprisoned until he abides by it. This application was successful and Siemer now faces six  months imprisonment. However, as put so well by lawyer Steven Price of Media Law Journal, “the court in Siemer’s case ignored the indefinite detention penalty sought by the Crown and instead told Siemer he had two weeks to comply with the order, or he’d be off to jail for six months. He didn’t comply. So now this does look like a punishment. And he can’t foreshorten it by caving in and being released. No keys-in-the-pocket there.” So it appears Vince has finally raised a valid legal argument under the NZBoRA. Is there a right to elect trial by jury in civil law contempt proceeedings where their purpose is clearly punitive in nature.

To underscore his utter contempt for the judicial system Siemer dressed up as Alice in Wonderland to present his case to be tried by jury to the Court of Appeal. Thankfully the court has appointed Rodney Harrison QC as amicus, so the right to trial by jury and potential for punitive imprisonment for civil contempt does not rest with Alice.

Vince also runs a website detailing the personal lives of judges that runs close to contemptuously bringing the standing of the New Zealand judiciary into disrepute. It appears as though anyone who has adversely ruled against him becomes a target of a personal smear campaign orchestrated by him and Penny Bright.

I believe what this whole mess boils down to is the old argument that the law of defamation exists as a plaything of the powerful to silence detractors. Prima facie this is a valid concern, given the importance we place on the freedom of speech in this country, but this must be balanced against the individual’s right to protect their personal and professional reputation from unfounded criticism. Freedom of speech is an admirable principle but it’s not an absolute right. With it comes the responsibility, and it must be open to justified limitations. Ultimately we are all equal before the law, in accordance with the duties and freedoms it places upon us. Mr. Stiassny has a right to have Siemer injuncted, and Siemer has the responsibility to comply.

Siemer should pick up a copy of any constitutional law text and read just a little about what the rule of law means.

The recent civil unrest in Thailand brings in to question just how onerous is the duty owed to our citizens abroad, if any.

Michael Jenkins and Tessa Welsh of Morrinsville were less than happy with the level of assistance provided by the NZ consulate in Thailand. Having been delayed by the protests they complain that the $200 loan offered by the government (which would have to be repaid upon their return) was a, “joke”. Mr Jenkins states that, “As of yet we have received no financial assistance and [we] are running up a large debt to keep ourselves going.” Whilst we can empathise with their predicament, travel abroad is inherently risky. There are a multitude of security, legal and health risks when travelling, and it would be cost prohibitive and diplomatically dicey to guard our citizens against all of them. If one happened to travel to Kabul or Baghdad it would be unreasonable to expect the government to provide a contingent of security personnel, the responsibility for your personal safety is your own.

Financial help for kiwis overseas is limited to assisting with access to private funds and transfer of aforesaid, which is an appropriate practice and in line with the majority of other nations including Australia, the United Kingdom and the United States. Private insurance is available, and advisable for exactly this reason.

Overseas nationals can find themselves in a number of undesirable situations, hospitalised, arrested, lost, detained or even kidnapped – these are risks the NZ government simply cannot guard against. In many high risk countries, where kidnappings and hostage takings are regular occurrences the government may have little or no presence. The risk must be borne by those who choose to venture to such areas. That’s not to say the government shouldn’t assist in any way possible, just that there should be no expectation of help.

I submit however, that organising physical extraction and logistical support where circumstances change extraordinarily rapidly due to political upheaval, war, environmental disaster and the like is good practice. The risk of travel can only be assessed where those risks are at the very least remotely foreseeable, and ensuring the physical safety of our citizens in wholly exceptional circumstances ought to be an ideal held high.

“Neither a borrower nor a lender be” was the advice given by Lord Polonius at Act I, Scene III of Shakespeares Hamlet. It is said that Polonius, the mouthpiece of this advice, was created by Shakespeare so as to mock those dispensing such homespun wisdom. With this in mind I’m going to profer a little advice of my own, never ignore the central tenets of risk and return.

Looking to the origins of the global credit crisis it boils down to a bunch of less than ideal NINJA-esque loans being made, securitized, that is packaged up and sold onto other institutions. Believing that property prices which backed the loans would continue in an upward spiral as they had done for the last 50 years lenders provided these ‘subprime’ loans, borrowers took them up on their cheap credit and investment banks bought all the cashflows. Credit ratings agencies with conflicts of interest gave the securitized mortgages higher ratings than their risk profile warranted. Some institutions such as AIG insured the banks to remove the risk involved in purchasing the securitzed loans effectively linking the entire banking sector with credit default swaps. The constant theme through all of this is that risk is inadequately assessed, and returns set too low accordingly.

As we know when the US sneezes the world catches a cold. Problem is the US hasn’t just got a cold this time, it’s got yellow fever. The US NBER announced officially that the US is in recession and on cue both US domestic and world markets took a steep dive, with the DJI down 7.7%, S&P500 down 8.93% and the Nasdaq faring even worse. The NZX was down 1.17% for the day.

Figures show that 1.2 million US jobs have been lost so far, China’s factory output is falling, NZ housing construction is down, NZ house prices are estimated at 30% above long term trendlines (Barfoot & Thompson annoucing a 56% drop in house sales), all of this is making investors cautious about acquiring anything, let alone consuming and we’re now all just parking cash in ‘risk free’ government bonds or government insured deposits.

Interestingly as NZ banks come to refinance their offshore borrowing NZ’s AA sovereign credit rating may take a hit. The new wholesale bank deposit scheme creates a large contingent liability on the governments books, and the risk that banks are unable to refinance their debt due to the credit crunch may mean lenders demand higher returns from the NZ government. And this is how the system should’ve worked in the first place.

When return no longer bears upon risk and vice-versa the system falls apart.