Waka Kotahi's Road to Zero Paved With Bullshit

Waka Kotahi are an opaque bureaucracy that use “consultation” in a way that would make George Orwell the writer of 1984, rub his eyes. Their recent “consultation” over speed limits of State Highway 2, brought back memories of an Uber driver I once represented. This driver had made the mistake of buying some pushbikes off Trade Me and Facebook Marketplace, that subsequently turned out to be stolen. He was a hardworking young man, and the sole income provider for his young family (a wife and three young children). He did this through working as a driver and buying bikes and other things cheap, repairing and on selling them. Anyway Police initially charged him with receiving stolen property. Eventually the matter was resolved, and he was not convicted. In the  meanwhile Waka Kotahi for reasons they maintained of ‘public safety’ moved to suspend the passenger endorsement on his licence. He could of course, ‘consult’ with them over their decision.

I wrote to the agency asking how could the purchasing in good faith of bicycles, had anything to do with ‘public safety’, especially when he was not convicted and as it turned out, never would be. In short  their  concern was a nonsense. Further, the result of a suspension  would be economic ruin for this vulnerable family. The response I got back, betrayed the level of discretion and compassion of a Dalek. I was told that the ‘fact’ of being charged was enough, and that met their criteria. Having “consulted” they suspended him. I obtained an injunction and had the suspension quashed. Prior to my proceeding with a review, Waka Kotahi sensing defeat, reversed their ‘final’ decision.

 

Waka Kotahi’s bizarre logic can be seen again over their moves to lower the speed limits on State Highway 2 in the Wairarapa. In  late July 2021 Waka Kotahi announced a period  of ‘public consultation’ over proposed speed restrictions in specified zones on the state highway between Featherston and Masterton. The reason promulgated was that in 9 years there have been 488 crashes in which 4 people had died. No further information was provided. The inference being that crashes are bad and people dying is even worse, so therefore the entire population, will henceforth travel at the rate of motorised snails. We are left in the dark as to rate of accident versus the number of commuter trips. Further we are not told about the particular breakdown of what each of the 488 crashes relates to by type of accident. For example a  reversing accident, would have little to do with speed on an open road and would have more to do with visibility and or driver error. Similarly, a driver could suffer a medical event and lose consciousness. Speed limits has little to do with those crashes. 

Waka Kotahi has now issued its decision, again devoid of analysis or perspective (DomPost 13/02/23). To understand the causes of accidents in the specified zones between Featherston to Masterton that occurred over the nine year period it is important to consider the following. As it stands over nine years (Jan 2010 - Dec 2019) to have four fatalities out of 488 crashes is a fatality rate of 0.82%. If there is an average of say 6100 trips per day between Featherston and Masterton, over nine years that amounts to 20,038,500 commuter trips. Which means over that nine year timeframe only 0.002% of trips result in crashes. What does Waka Kotahi’s definition of “crashes” capture, and how does the crash rate compare to other highways? 

 

Obviously, artificially slowing vehicles means less crashes, but it also means less pressure to spend money improving and repairing roads. Anyone driving between Masterton and Carterton over the past two years would have seen the phalanxes of road cones and signs slowing traffic. Driving conditions might actually be safer if Waka Kotahi were to spend a greater portion of their road cone budget on actual road repairs. Many people believe that they are being forced to travel at ridiculously slow speeds just so bureaucrats can  achieve this “Road to Zero” policy goal on the cheap.

 

No doubt the earnest folk at Waka Kotahi mean well, but In the absence of any serious analysis, will the people comply with the changes, or will frustration, propel, more dangerous, driving, behaviour, and yet more crashes?

Trump and "Shit-Hole Countries"

During his presidency Trump referred to certain 3rd world countries as "shit-hole countries." This was ironic. If one looks at these countries, they all have authoritarian leaders, with officials who are appointed based upon their fealty to the leader. These countries have no transparency, crumbling infrastructure, non-existent social welfare and dysfunctional to non-existent health care. They have no genuine open, free and fair elections and lack judicial independence. Science and 'reality' are ignored, with the 'party-line' being preferred. In short the "shit-hole countries" represent the very 'qualities' that Trump sought to impose on America.

The Tory Party has Become the Snake that Eats Its Own Tail

The idea of leadership as service for the good of the majority and the betterment of society appears lost on the Tory Party. 12 years of Tory misrule has seen the growth of toxic nationalism, fuelled by economic disparities, tax cuts for the wealthy and the cruel freezing or underspending on the UK's poorest. This pain was falsely attributed to EU membership and immigration. This led to Brexit, which was promoted as the cure for Britain's woes.

In reality Brexit was the gun to the head of the UK, and the Tories in pursuit of power for its own sake pulled the trigger. Brexit is leading to the evisceration of the UK economy as it now lacks the protections and market influence that the EU membership affords its members. Britain also lost its as of right easy access, to its biggest export market - Europe.

Ironically Brexit, pitched as a sign of the independence of a dynamic UK is leading to the sundering of the UK as Scotland wishes to assert its independence and rejoin the EU. Meanwhile Northern Ireland, the site of years of bloodshed has seen the seeds of division grow again. Protestants remain loyal to the United Kingdom, while many Catholics favour a united Ireland. The sectarian divide is growing, as uncertainty about a hard border with EU member country the Republic of Ireland continues.

Economic deprivation continues to grow, leading to a shrinking of the middle class and driving more anger among those who suffer disproportionally the effects of deprivation. This inequality fuels the growth in extremism, upon which the right appears to feed. Bereft of a long term vision the Tory Party has become the snake that eats its own tail.

In a healthy legal system there has to be a popular respect for the rule of law. The population and its political leaders should ideally abide by the decisions that flow from its courts. 

One of the hallmarks of totalitarian regimes is that Judges are not independent of political leaders and the decisions they often issue in important cases, don't reflect constitutional norms, but rather the wishes of those who appointed them. In such cultures the wishes or the rights of citizens are either ignored or treated as subservient to the wishes of the leaders. In such cultures the population has little respect for the rule of law and judicial decisions are accepted with with a resigned sigh. Our own Court of Appeal recently commented upon the justice system in China, making the following observations (Kim v Minister of Justice [2019] 3 1 NZLR 173)

(i) The right to a hearing before an independent panel or public tribunal: 

Mr Kim has a right to be tried before a tribunal that decides cases on the evidence before it and free from political pressure. There was material before the Minister to suggest that political influence is pervasive in the PRC’s criminal justice system and this is how the system is designed to work. There was also material to suggest that the political influence prioritises social policy objectives over individual procedural protections. 

(ii) The right to legal representation, including the right to present a defence, receive legal assistance, adequately prepare a defence and to examine witnesses: 

there were a number issues in connection with this right including the discretionary nature of disclosure to the defence and the fact that witnesses for the prosecution rarely give evidence with trial mostly being conducted on the papers. More troubling is the position of the defence bar in the PRC. Defence counsel must be able to honestly and responsibly represent an accused person without fear of repercussion if the procedural right is to operate in accordance with its purpose. There was material before the Minister to suggest that defence counsel operate in an environment in which they fear persecution for their representation of their client. 

(iii) The right not to be compelled to testify or confess guilt: 

there was material before the Minister to suggest that Mr Kim could be interrogated for a period of months in the absence of a lawyer.

A justice system that lacks independence from the political process is corrosive of fair trial rights and the rule of law. Similarly a justice system where the results are an outcome of political patronage is similarly corrosive. For decisions to be respected by the population it is important that people understand why decisions are made and to a degree that outcomes accord with principles that the general population accept. 

Part of this also includes the fact that the senior judiciary is to a degree representative of the nation. If judges come to be seen as alien and non-reflective of the values of the nation it erodes public confidence in the courts. This is a legal, social and constitutional matter. 

As a matter of practice, if a potential court user does not have faith in the process, it's reasonable to expect that they will be less likely to bring a claim or come forward as a witness in a case, negatively affecting the administration of justice. 

That a non-representative judiciary is a hallmark of authoritarianism can be seen from our Court of Appeal's observations in Kim (above) 

The Supreme Court of the United States (SCOTUS) is rapidly finding itself winding up in this position now. Through political machinations the GOP are in the process of completing a extreme right-wing super majority in the nation's highest court. What is worrying about this, is that the Republican Party has only one the popular vote once out of the last seven presidential elections. SCOTUS is increasingly reflective in its decisions of extreme right wing views of the fringe of legal thinking. 

Barring a miracle, the court Trump is fashioning will be viewed for decades with anxiety and derision by the majority in a society that has traditionally looked to it as the ultimate bulwark against government oppression. That would be a shame for the court, but it will be a catastrophe for Americans whose liberties will be on the chopping block

Another Police Shooting

I am shocked at the latest reporting about another person shot dead by Police (Stuff 20 April 2020). Hitesh, a Fijian Indian was carrying a machete which he was using to smash windows and some power lines. He was deeply upset at the loss of a significant sum in an overseas family dispute and had obviously become emotionally distraught. Police were called and warned him to drop the machete, when he advanced on them he was shot by an officer. 

I am not saying that this was not a tense or fast moving situation, but are there not other courses of action that you can take before killing someone? What about Tasers or firing a net? These are less than lethal options designed to incapacitate without inflicting a mortal injury. I feel uncomfortable with the ease with which we appear to accept that killing a person in a situation like this is automatically justified. Increasing access to firearms by Police will only mean that these sorts of incidents will become more common. 

I have every sympathy for Police. To my mind they are underpaid and resources are stretched. However, the killing of an ordinary person, with no previous criminal history, in these circumstances raises significant questions. It is time that all frontline Police are issued with body cameras that record every use of force interaction, situations leading up to an arrest and tragic outcomes like the decision to discharge a firearm. This technology would assist with understanding the reasonableness of use of force decisions and provide a further piece of evidence in assessing whether the decision to shoot someone was justified. 

I became convinced of the need for this technology several years ago, when I was cross examining some officers in a High Court trial that followed after a case in which Police shot a man in the Wellington Region. Police raided a house, armed with Tasers and firearms and my client had holed himself up in a bedroom wardrobe. He had a .22 rifle with him, and was hidden behind the wardrobe door. Long-story short, Police forced there way in to the bedroom and an officer became aware of my client with the rifle hiding behind the door. The officer fired through the wardrobe door and my client was shot. Was my client presenting the rifle in a manner which conveyed an imminent risk of harm to the officer, or was he cowering behind the door frightened at the speed with which events unfolded?

The case made it to trial. From the disclosure and from cross-examination during the trial it emerged that the Police officers who attended the scene during the events leading up to the shooting and its aftermath, were advised by a lawyer from the Police Association that because this was a shooting case they were not to make contemporaneous notes recording what they saw. As one officer disclosed in cross-examination: " ....by the time I got to Palmerston North and met up with other Palmerston North staff, because it's a police investigation and I know we're going to be questioned about the shooting, you seek advice and the advice was not to record anything."

Also the ESR scientists that were tasked with examining the scene, were instructed to do so, solely from the perspective of the officer who fired the rounds. This meant that no contemporary forensic analysis was undertaken from the position of the person who was shot by the officer. The problem with this is that the Police appeared to direct the gathering of forensic evidence, which would later be used as evidence in a Police prosecution, that was based upon instructions to analyse the evidence solely from the perspective of the officer who fired the rounds. There was no analysis from a neutral examination from the perspectives of both parties involved.

While the forensic scientists instructed by Police, may be organisationally independent of the Police, the fact is that the bulk of their work comes from the Police, who pay for the scientific services provided by them. This is important because basis principles one might think, in terms of scientific analysis include neutrality and objectivity. A resonating concern with this, in my shooting case is whether Police were being provided with objective and unbiased advice about the crime scene from the scientists; or were they being given opinion based upon instructions given by Police, that fettered the independent forensic analysis of the scene?

Ordinarily, officers will make contemporaneous notes of what they observed. The analysis of these varying perspectives enables a decision maker to gain a fuller understanding of what occurred and it is vital to fair trial rights. While we all like to think Police officers will always be truthful, in my close on two decades of experience at the bar, occasionally the odd officer will lie under oath, or they may unconsciously interpret events in a way the coalesces with their theory of the Police case. 

Body cameras would provide a protection against issues of unconscious or actual bias and would provide a neutral record of events in situations such as this and would be one further potentially useful form of evidence. Body cameras are regularly used overseas and it is time they were used here.

Capital Gains Tax and Fairness?

The Capital Gains Tax proposals are throwing up some oddities. A family home on a section up to 4500 sqm won't be subject to CGT, but the percentage of land over that 4500 sqm will be. Hundreds of sections are on blocks, where a steep unusable section is covered in bush, why should that unusable land be subject to CGT?

Also, what about the thousands of Kiwis who live on uneconomic lifestyle blocks? There is one on the market with a block size of 1.2 ha (12,000 sqm) in Eketahuna at the moment, for $195,000.00. Under the proposed rules 7500 sqm of that block will be subject to CGT, whereas the apartment on Oriental Bay, Wellington, worth $2,500,000.00 will not be. It also gets worse for the family in Eketahuna - they will have to hire an accountant to work out the proportion of land is subject to CGT, whereas on bluechip row Oriental Bay, there is no complex formula or CGT liability due, as the apartment is the family home and the total area is under 250 sqm.

On a more technical note, currently in relation to Kiwisaver, the investments in New Zealand, in shares and the like, will be subject to CGT (at a tax rate of around 28% for people whose income is over $70,000). The regime for shares and dividends from offshore investments is a lot less onerous (i.e considerably a less than 28%). As a matter of commonsense this disparity will potentially lead to an increased flow of investment funds heading offshore.

If the CGT is about fairness, these issues will need to be addressed.

Don't give a shit? Then give a Cadbury

As a child, every Christmas was a time of magic, made more special by my being given a two tray deep box of Cadbury Continental Chocolates. Every year without fail, mum would put a box of these treasures under the tree.

There was a French cafe scene, complete with Eiffel Tower reproduced on the lid. Peeling back the cellophane unleashed the comforting, yet decadently rich aroma of dark dairy rich chocolates with an array of drool inducing centres. Roses, the slightly down market version also offered the same heady sensations.

Every pay day with my first job as a shop boy, I would buy - no invest in, a family sized block of Cadbury's Caramello or Dairy Milk, with it's famous, "glass and a half of full cream milk" emblazoned on the wrapper.  I would tear the wrapper off and hastily devour the contents on the walk home.

Leap forward now several decades and Mondelez International an American multinational has bought the Cadbury brand. Gone is the dairy content. The caramel hard centres, Turkish delight and venetian fudge, so loved by generations have been consigned to history, replaced by insipid sickly "chocolates", devoid of taste. This company seems driven in a pursuit to show complete contempt for its market in a race to prove, "if we can't be the best, then hell we'll be the worst."

In the past, a gift of Cadbury chocolates was a thing to look forward to, now they are something to avoid. If you don't give a toss about someone and just want to go through the motions (incidentally that is what Cadbury chocolates now taste like), then give a nod to your gift buying obligations by giving the object of your contempt this Claytons gift. Now New Zealanders think of Cadbury chocolates, as the "gift you give, when you don't want to give one."

Perhaps the new phrase to emblazon Cadbury products should be: "Don't give a shit? Then give a Cadbury."