Thursday, 5 May 2016

7 Sharp and the Tyranny of the Majority

Last night (5 May 2016) TV One on its 7 Sharp programme aired the sad story of New Plymouth mayor Andrew Judd. Mr Judd was like a number of politicians and knew nothing about Maori history and how Maori were systemically robbed of their land and effectively became aliens in what was once their own land. Unlike a number of politicians he decided to find things out for himself and he was prepared to admit he was wrong.
On being elected he was faced with Maori land claim issues and started for the first time in his life to read about Maori history and was shocked at what he read. He now describes himself as "a recovering racist". He knew he had to do what was right, not what the majority wanted. In one small way he wanted to address the low participation of Maori in local government with the by establishing of a Maori Ward, whereby of the 14 seats there would be one for a Maori representative providing a wholly Maori perspective on issues that arise within New Plymouth. Not a big change - just a start. 
New Plymouth Grey Power were up in arms, one councillor resigned in protest. A referendum was held and the citizens, the majority of whom are Pakeha, soundly rejected the idea of Maori having a dedicated voice on council. The argument being, the Maori Ward was favouritism, and an affront to democracy, if Maori want to get a voice, they can put themselves forward like every other candidate. It mattered not that Maori participation in local government is low or that New Plymouth had only one popularly elected Maori councillor on the council. With 83 percent rejecting the idea of a dedicated Maori ward position the electorate showed they had no openness to Maori issues.
In the meanwhile Mayor Judd became the target of abuse from members of the public. One day while at the supermarket with his children, a woman approached him and spat in his face. He was routinely abused, sworn at. Eventually he stopped going out in public with his family. He kept a notebook in which he recorded every time he was assaulted and or abused. The notebook is full.
He has now decided that he will not seek reelection. The personal cost being too high.
The 7 Sharp clip of his story was just over 4 minutes in length. What especially interested me were the comments of show host Mike Hosking immediately after the story. In remarks of less than a minute in length, he effectively dismissed Mr Judd's position and ignored completely the thuggish behaviour he was subjected to. Effectively what Mr Hosking said, was that personally he had no problem with Maori being on council, or even having a Maori Ward, you merely have to put these things before the electorate first. In other words - if the Pakeha majority in the electorate reject the proposition - there's an end of it.
This amounts to what is popularly known as the mandate theory of legitimacy. What the majority says goes. What they chose is right. Is this correct?
In the 1930s Hitler went to the German people and the Nazi Party became the largest party in the Reichstag. Eventually, through alliances, he was appointed chancellor. Arguably at the start at least, Hitler had a mandate. He published a manifesto - Mein Kampf, in which his anti-semitic views, were advanced as being essential to the national reconstruction of Germany. Applying Mr Hosking's reasoning Hitler's election and the policies he implemented, at least at the start, reflected his mandate. Does that therefore make it right? I do not think so. Sometimes the will of the people, can in fact become what has been called, "the Tyranny of the Majority."
I first read French political philosopher, Alexis de Tocqueville on the Tyranny of the Majority, from his book Democracy in America:

There is no power on earth so worthy of honour in itself or clothed with rights so sacred that I would admit its uncontrolled and all-predominant authority. When I see that the right and the means of absolute command are conferred on any power whatever, be it called a people or a king, an aristocracy or a democracy, a monarchy or a republic, I say there is the germ of tyranny, and I seek to live elsewhere, under other laws.

In my opinion, the main evil of the present democratic institutions of the United States does not arise, as is often asserted in Europe, from their weakness, but from their irresistible strength. I am not so much alarmed at the excessive liberty which reigns in that country as at the inadequate securities which one finds there against tyranny. an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority and implicitly obeys it; if to the executive power, it is appointed by the majority and serves as a passive tool in its hands. The public force consists of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain states even the judges are elected by the majority. However iniquitous or absurd the measure of which you complain, you must submit to it as well as you can.
But Tocqueville did prescribe some solutions. He hoped that those having read his prescient book would become alive to the defects of modern democracy and show great attention and careful management. Specifically, he hoped, we would strive “to preserve for the individual the little independence, force, and originality” that remains to him.
In other words, when looking at any given policy, lawmakers might look not at the benefits for their electorate, or vainly calculate poll swings as a result of the latest PR stunt or slogan – but instead look at what any given policy proposal’s long-term effect will be on securing freedom and rights. The goal being to make individuals more independent, stronger, more able to properly resist the tyranny of the majority and the constant encroachments of the administrative state. Over time, he feared, the state would take away citizens’ free will, their capacity to think and act, reducing them to “a herd of timid and industrious animals of which the government is the shepherd.” 
Given the absence of intelligent political analysis, the dumbing down of media comment and the triumph of political spin over reporting, and the apparent acceptance of the comfortable populism of the likes of Mike Hosking in support of this state of affairs; it appears that Tocqueville's cautions are coming home to roost.

Wednesday, 13 April 2016

Begging and the Right to Freedom of Expression
1.             Currently some right wing candidates in local body elections are advocating the criminalisation of begging. Does this make sense and will it help anything?

2.               Pursuant to section 14 BORA all persons have the right to freedom of expression, including the right to seek, receive and impart information through any media, including orally, in writing or in the form of art.

3.             As a first principle I consider that the proscription and criminalisation of begging constitutes an infraction of the fundamental human right to freedom of expression.

4.             Such restrictions violate the right to freedom of expression in two basic respects. First, the proscription of begging renders peaceful verbal or written communication unlawful. Anti-begging provisions apply whether a person adopts passive begging techniques (such as sitting or standing in one spot with a cup, a hat or a sign) or more active begging techniques (such as approaching passers-by and entreating them to donate money). In each case, it is the act of expressing a need for money, rather than the conduct associated with that expression, that is the target of anti-begging provisions.

5.           If people begging begin to directly and forcefully approach people and inhibit the movement of citizens as they walk along footpaths with aggressive demands for alms or financial assistance that can be easily controlled via bylaws. However banning the poor from seeking help from others more fortunate is overkill.

6.             Anti-begging provisions infringe the right to freedom of expression in that they proscribe the imparting (and, by extension, the receiving) of communications regarding the way in which society treats its poor and disenfranchised. In many cases, begging amounts to an expression of poverty, alienation, homelessness, dislocation and the effects of inadequate social security, public housing and public health systems.  In the US, many anti-begging provisions have been struck down or narrowed on the basis of inconsistency with the First Amendment right to freedom of expression: see, eg, Benefit v Cambridge, 424 Mass 918 (1997) per Greaney J:
We conclude that no compelling State interest has been demonstrated that would warrant punishing a beggar's peaceful communication with his or her fellow citizens in a public place. (6) As one writer on the subject has observed: "At the least, for some panhandlers, begging is a way to augment their meager sources. For a few, it may be their only source of income. Panhandling is therefore close to the center of the personal liberty of some people in contemporary American society." Munzer, Response to Ellickson on "Chronic Misconduct" in Urban Spaces: Of Panhandlers, Bench Squatters, and Day Laborers, 32 Harv. C.R.-C.L. L. Rev. 1, 11 (1997). The statute intrudes not only on the right of free communication, but it also implicates and suppresses an even broader right -- the right to engage fellow human beings with the hope of receiving aid and compassion. The streets and public areas are quintessential public forums, not because they are a particularly convenient platform for expression, but because they are the necessary, essential public spaces that connect our individual private spaces, from which we legitimately may exclude others and likewise be excluded, but from which we almost all must inevitably emerge from time to time. If such a basic transaction as peacefully requesting or giving casual help to the needy may be forbidden in all such places, then we may belong to the government that regulates us and not the other way around. (7) [emphasis added]

7.             The criminalisation of begging denies to persons who beg a form of expression that may be necessary for survival. It also denies the truly poor the right to impart, and society the right to receive, information regarding poverty, inequality, structural inadequacies and the need for urgent social reform. By silencing people who beg, anti-begging provisions stifle debate about social policies regarding the poor.

Tuesday, 25 August 2015


A Christchurch man was refused entry to a bar because of his facial tattoos. He was not wearing gang patches, nor was he intoxicated. Can bars refuse anyone on the basis of tattoos? What about tā mokothe permanent body and face marking by Māori?

Technically, the refusal of entry to a bar amount to a revocation of the implied licence for a member of the public to enter the premise. At that point, the person refused entry, should they remain, commits a trespass. Pubs and bars are private businesses and they at first blush appear to have the right to determine who can enter their premises or not. However, it may not be as simple as that.

The sale of alcohol to the public is an activity that is tightly regulated. You cannot serve alcohol to the public without meeting strict regulatory criteria. You must be licenced to supply and serve alcohol.

Arguably the Human Rights Act 1993 applies:

133  Licences and registration
(1)   Where any person is licensed or registered under any enactment to carry on any occupation or activity or where any premises or vehicle are registered or licensed for any purpose under any enactment, and where the person or other authority authorised to renew, revoke, cancel, or review any such licence or registration is satisfied—
(a) that in the carrying on of the occupation or activity; or
(b) that in the use of the premises or vehicle,—

there has been a breach of any of the provisions of Part 2, the person or authority, in addition to any other powers which that person or authority has, but subject to subsection (2), may refuse to renew or may revoke or cancel any such licence or registration, as the case may require, or may impose any other penalty authorised by the enactment, whether by way of censure, fine, or otherwise.

(2)  Any procedural requirements of the enactment, including any whereby a complaint is a prerequisite to the exercise by the person or authority of its powers under the enactment, shall be observed.

(3)  In any case in which any of the powers conferred by subsection (1) are exercised,—
(a) the person or authority shall in giving its decision state that the decision is being made pursuant to subsection (1); and
(b) any person who would have been entitled to appeal against that decision if it had been made on other grounds shall be entitled to appeal against the decision made pursuant to subsection (1).
(4)  In this section the term enactment means any provision of any Act, regulations, or bylaws.

This being so, a bar or pub clearly conduct a business that requires a licence pursuant to the Sale of Liquor Act 1989. Part 2 of the HRA states:

21A Application of this Part limited if section 3 of New Zealand Bill of Rights Act 1990 applies
(1) The only provisions of this Part that apply to an act or omission of a person or body described in subsection (2) are—
(a) sections 21 to 35 (which relate to discrimination in employment matters), 61 to 64 (which relate to racial disharmony, and social and racial harassment) and 66 (which relates to victimisation); and
(b) sections 65 and 67 to 74, but only to the extent that those sections relate to conduct that is unlawful under any of the provisions referred to in paragraph (a).
(2) The persons and bodies referred to in subsection (1) are the ones referred to in section 3 of the New Zealand Bill       of Rights Act 1990, namely—
(a) the legislative, executive, and judicial branches of the Government of New Zealand; and
 (b) every person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

Pubs and bars are private businesses but it can be argued they conduct a public function, and have  duties, imposed on them pursuant to law (the sale and supply of alcohol to the public). This interpretation is consistent with a purposive and rights affirming reading of the Bill of Rights Act, as expressed in the Acts long title:
An Act - (a) to affirm, protect, and promote human rights and fundamental freedoms in New Zealand

This being said the bar or pub a person may well fall foul of the HRA and the New Zealand Bill of Rights Act 1990 if it can be shown that the decision to bar them was discriminatory on grounds of sex, race, disability, religion, freedom of expression or sexual orientation.

So in the case of a Christchurch man excluded from a bar because of his facial tattoos, it is arguable that the bar must conduct its business, that is in serving the public alcohol, in a manner consistent with the Bill of Rights Act 1990.

It is axiomatic that persons subject to BORA are bound by the BORA and must exercise their discretionary powers consistently with the BORA. This is explicitly required by s6 BORA.

Section 5 of the BORA provides that the rights and freedoms contained in the Act may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In determining whether a limitation on a right is “demonstrably justified”, the Court of Appeal in its Moonen decision set out its own test to determine whether or not a limitation is “demonstrably justified” (Moonen v Film and Literature Board of Review (1999) 5 HRNZ 224, 234 Para [18]):

1) Identify objective which the Legislature was endeavouring to achieve by the provision in question;

2) Assess the importance and significance of that objective;

3) The way in which the objective is statutorily achieved must be in   reasonable proportion to the importance of the objective;

4) The means used must also have a rational relationship with the objective;

5) In achieving the objective there must be as little interference as possible with the right or freedom affected;

6) The limitation involved must be justifiable in light of the objective.

In Moonen the Court stated, “where an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, that meaning shall be preferred to any other. Thus if there are two tenable meanings, the one which is most in harmony with the Bill of Rights must be adopted” (Moonen v Film and Literature Board of Review (1999) 5 HRNZ 224, 233 Para [16]).

When considering the meaning of the words “promotes or supports” in Section 3 of the Films, Videos, and Publications Classification Act 1993 the Court emphasised that a Bill of Rights consistent approach was required and that those words had to be given such available meaning which impinges as little as possible on freedom of expression. 

The Moonen test underwent a slight refinement in Hansen v The Queen [2007] NZSC 7; [2007] 3 NZLR 1; (2007). The majority of the Court approved the methodology of Richardson J in Noort. McGrath J gave the most thorough outline of the approach to be taken, which was broadly consistent with that of Blanchard, Tipping and Anderson JJ (at [192]). The Court recognised that an obvious first step was to ascertain whether there was a prima facie conflict between an enactment and a Part II right (at [92]).

If an inconsistency does arise, the Court will apply s 5 to determine whether the limitation upon the Part II right is demonstrably justified. 

Further, where someone is barred from a pub they may have a legal ground of challenge where the decision to bar them was discriminatory on grounds of sex, race, disability, religion, freedom of expression or sexual orientation and therefore would fall foul of laws which prohibit discrimination on those grounds in the provision of goods and services.

Obviously there are occasions where these rights can be limited. But such limitations must be demonstrably justified. So it may not be clear-cut. Human rights are engaged. Pubs and bars are private businesses but they have public duties imposed by law. Watch this space

Friday, 23 January 2015


The New Zealand media, are publishing with relish (23 January 2015),  4 photographs taken by commercial freelance photographer Mr. Geoff Walker, of the awful Carterton balloon tragedy from 2012. Mr. Walker objects to this, but the Courts have said that the photographs were produced in open court and as the media have opined, “their publication is in the public interest.” Is it really? What are the issues at play?

Some family members of the deceased say that it is right that these images are published because it will highlight to the public, the risks of ballooning. This argument can easily be dealt with, and will be addressed first. Balloons have been defying gravity for years. For as long as hot air balloons have gone up, they have also come down, in controlled and uncontrolled ways. There are numerous pictures of crashing balloons readily available. Further, the media regularly carry images of crashed and mangled cars, and most of us still elect to drive. Further, we all know that from time to time aircraft crash, yet most of us still elect to fly. There is in short little educative value in the public seeing yet more images of a burning balloon dropping from the skies.

What has not been discussed in the media is that Mr. Walker is a professional photographer. He derives his living by taking photographs, the copies of which he sells. All images he takes are copyright. Mr. Walker was an associate of Mr. Hopping a hot air balloon operator. Mr. Walker would frequently attend at the morning balloon rides and would photograph the people and various stages of the ballon rides. Mr. Walker would then sell CDs of the balloon flights to passengers for a fee if they so wanted.

On the morning of the balloon crash (7 January 2012) Mr. Walker was in attendance and photographed the inflation, and other aspects of the balloon ride. After watching the balloon take off from its point of departure, Mr. Walker was travelling to the projected landing destination.

Mr. Walker took photographs of the crash, the ensuing fire and recorded on film the accident. As the balloon was descending at a faster rate than normal, Mr. Walker began to take photographs from the road side where he pulled his car over.

After Police arrived under the direction of a detective he took photographs for Police. Apparently Mr. Walker never asserted any proprietary right in relation to those images.

Out of a spirit of goodwill to assist Police with their inquiry Mr. Walker provided access to his own images. At all stages Mr. Walker’s clearly asserted his copyright in terms of every image he loaned to Police. Police of their own motion, without consulting Mr. Walker took his images and provided them to the Office of the Coroner.

Without consulting Mr. Walker these photographs became part of the evidence in this inquest. The news media, in particular TVNZ, a commercial enterprise, that in relation to its own news services asserts its copyright over its news content[1] applied to the Coroner to use without Mr. Walker’s consent, or payment of any fee to Mr. Walker, four of the images that Police took without Mr. Walker’s consent and provided to the Coroner.

This case clearly raise profound public interest arguments. Some will argue that this is a profound tragedy and it is immoral for people to make money out of the misfortune of others. There are two arguments to this. First, Mr. Walker has never sought to “cash in” on the photographs. Rather he is merely asserting his intellectual property rights over his images. He in fact turned down lucrative offers from local and international media for access to the images in the aftermath of the tragedy. Second, so what? Police, ambulance officers, undertakers, embalmers, florists and even coroners and some lawyers etc are all paid or derive income from tragedies. There is no moral difference with a photographer doing the same.

At issue in this case, amongst other things,  is that in allowing publication of the images without Mr Walker's consent is to deny Mr. Walker control over his intellectual property and then sees the handing of a selection of his images to a commercial media organisation that asserts its own copyright over those images.

There is also a strong public interest argument at work. Might it not be that had Mr. Walker known that Police would use his images in the way that has transpired, that he would not have been as co-operative in the first instance?

While it might be argued that Mr. Walker gave Police access to his intellectual property, he did so under licence. He did not relinquish ownership in his property when he did that.  In the same way as a person might hire a trailer from a garage, the initial act of taking of the trailer under conditions is lawful. It becomes an entirely different matter when one refuses to return the trailer in compliance with the terms of hireage, or uses the trailer outside the terms initially agreed. 

No matter the words used by the Courts, for a third party to then publish Mr. Walker’s images, without seeking Mr. Walker’s licence for their use sees him lose control over the use and distribution of those images. In essence his proprietorial rights of ownership and control are lost and or ignored, having been supplanted by another party that asserts its rights over those of Mr. Walker.

A coronial inquiry is an inquisitorial inquiry. As the Ministry of Justice website says, “[t]he coronial process is fact finding, not fault finding. This means it is not there to blame or punish anyone, but instead it aims to work with the families of the person who died to try and answer any questions they might have, and to improve public safety.” Ideally participants operate to assist with the public interest goals and ultimately broader social good. In this context, such public mindedness would be undermined if professionals in the shoes of Mr. Walker were to lose control over their intellectual property through assisting Police on a voluntary basis with the investigation of fatal accidents.

While there is a public interest in having relevant details reported, there is also a strong public interest in having intellectual property rights protected,  and in having people feeling that they can co-operate in an unfettered way with volunteering information and assistance to Police in the investigation of deaths, without their legal interests in their intellectual property being eroded or as in this case lost through the fact of this co-operation. To accept without challenge what has happened to Mr. Walker may likely create a chilling effect for professionals. After all  if they seek to assist Police they could see their legitimate commercial expectations over the control of their work eroded in favour of corporate media interests who use “open justice” as a tool to evade having to seek the permission of and pay the owner of the copyright for the use of that owner’s intellectual property.

As a result of what has happened here, a public spirited professional, a photographer has lost control over his intellectual property. This must cause others, should they find themselves in a similar situation, to think twice about their willingness to assist Police. Such a chilling effect is unfortunately a natural outcome as professionals have just seen the erosion of their intellectual property rights in favour of commercial news media. Perhaps such people may not be so public minded in the future. Such an outcome cannot be in the public interest.


[1] See for example: Copyright © 2014, Television New Zealand Limited. Breaking and Daily News, Sport & Weather | TV ONE, TV2 | Ondemand