Vox Media – Media Commentary and John Campbell

I came to Media Law and the study of communications media as a result of a number of accidents. It all started with the availability of the Internet and the use of that medium as a tool for lawyers – primarily in the area of research.

That expanded as it became clear that the new medium provided a number of challenges to existing rules of law – copyright in particular was an early focus – and so I drifted from a consideration of how the technology could help lawyers to whether the rules around intellectual property would need to be revisited.

Then there was the question of computer crime and propose amendments to the Crimes Act in 1999 which were finally enacted in 2003. Defamation on the Internet and associated issues of jurisdiction also became apparent.

There was the move towards digitisation of news media which raised question surrounding the rules about media regulation (which still, in the minds of some I don’t include myself in that cohort, require State intervention). It was a developing, dynamic field characterised by continuing disruptive change.

For nineteen years I taught a course – Law and IT –  at the Faculty of Law, University of Auckland which led to writing a text book entitled internet.law.nz published by LexisNexis and now in its fifth edition. My studies and the development of the law surrounding new technologies resulted in my PhD studies on the impact of a new information technology (the printing press) on the law and legal culture in Early Modern England. That was published as a book – The Law Emprynted and Englysshed – The Printing Press as an Agent of Change in Law and Legal Culture 1475 – 1642. The analytical model that I developed in my PhD study was further developed and refined for a new book which was published as Collisions in the Digital Paradigm – Law and Rulemaking in the Internet Age. And in the meantime a University colleague, Rosemary Tobin, and I co-authored a text New Zealand Media and Entertainment Law.

I don’t teach any more. The Law and IT course fell into abeyance and Covid did not help. I was delighted to learn that Auckland Law is offering an ICT Law course as an elective next semester and I understand that there is to be a dedicated Chair in ICT Law the occupant of which is yet to be announced. In the meantime I have taken a door tenancy with a set of Chambers in Auckland – Sangro Chambers – which focusses on Media and IP Law. The head of chambers, Willy Akel is a leading media lawyer both in New Zealand and internationally.

The field continues to develop. The new new thing (As Michael Lewis described the phenomenon) is artificial intelligence although in truth the focus seems to be more on Large Language Models like ChatGPT. The truth is that AI has been with us for a long time. It has just become more immediate as one of its uses has become more available.

Keeping up with developments in the field is time consuming. There are a number of commentators on the state of the media in New Zealand. Radio New Zealand’s Media Watch which looks critically at the state of media is one such source. An independent organisation – NZ Media Watch – has been recently set up which provides a different and independent perspective. Shayne Currie, a former managing editor at NZME and experienced journalist, writes a weekly column for the Herald entitled Media Insider which features a number of stories about different aspects of the media ecosystem including news media, television and the advertising and associated media industries.

Currie at times is a rather lengthy read and often a reader might wonder where he is heading. He indirectly acknowledges this in a recent article where he concedes his columns are lengthy. But as so often is the case the journey has its own rewards although I wonder if at times Currie tends to be a bit too gossipy. But then the column is entitled Media Insider – and there are times when it is definitely that.

Earlier this year I published an article entitled “Vox Populi”. It was a critique of an article by John Campbell which appeared on the TVNZ Website. To be absolutely clear Campbell’s article was clearly presented and labelled as an opinion piece.

Campbell wrote another piece covering the Turangawaewae gathering on 20 January 2024.

That article attracted the attention of Karl du Fresne who was highly critical of the fact that TVNZ – a state broadcaster- had allowed such a partisan piece to be published. Du Fresne called for Campbell to be sacked, not because he disagreed with Campbell – although clearly he does – but because he is of the view that Campbell had a special duty of impartiality. Thus the thrust of du Fresne’s critique is directed to an absence of journalistic integrity.

In his latest Media Insider, Currie examines the “Campbell Phenomenon” and squarely confronts the issues that du Fresne has raised. In part he agrees with them. Because Campbell has been so clear on his position he is unlikely to present the news again in future.

Currie observes as follows:

“In my own opinion, du Fresne was over the top in his comments about  Campbell; some of the language he used about him was unnecessary.

I was indeed surprised that a well-known promoter of free speech had penned such a column. His call for Campbell to be sacked was excessive.

But I do think Campbell has painted himself into a corner in terms of his future responsibilities – something that TVNZ will need to be careful about, even though it insists its happy for him to present any of its news shows.

There’s no issue with Campbell continuing to investigate newsworthy issues – something he has done with distinction in the past, most notably with his team of journalistic crusaders at Campbell Live during that show’s 10-year run on TV3.

But this time last year he was reading TVNZ’s 6pm news – part of a summer roster of newsreaders at the state broadcaster.

In my view, it would be very difficult for Campbell to perform that particular role again – perhaps, at this stage of his career, he might not want to anyway.

Most newsreaders consider themselves unbiased and dispassionate, disseminating information that leaves the viewer free to make up their mind on news events without being coloured by who’s sitting at the desk.

As one senior TVNZ staffer told me a fair while ago: “Other presenter roles exist to enhance core material by adding personality, experience and opinion to the core material; with news, the content is inarguably the star of the show.”

TVNZ might also have to be careful about whether Campbell could fill in as a presenter on some of its other news and current affairs shows, for example, the politically focused Q+A.”

Currie continues as follows:

I personally don’t have any issue with Campbell writing a column, or TVNZ giving him a platform. I’m sure the TVNZ digital editors will be keen to ensure they have a wide range of views, from across the political spectrum.

As long as the columns are clearly marked as opinion – and they are – then fine.

But Campbell’s commentaries raise points about whether he can now fulfill certain other roles at the state broadcaster.

TVNZ insists he can.

“We are happy for John to step out of his chief correspondent role to present any of our programmes if the need arises, including the 6pm bulletin,” said a spokeswoman, adding there were no specific plans.

She said Campbell’s focus hadn’t changed but it had grown. His was a senior role, providing “indepth reporting and specialist expertise” across the news and current affairs portfolio.

She also reiterated my point above that Hosking and du Plessis-Allan write columns for the NZ Herald “and front news-leaning shows on ZB”.

On this point, I think there is a subtle difference.

Hosking and du Plessis-Allan are broadcasters – rather than journalists – whose shows and special talents draw big audiences expecting to hear their views, interviews and approaches to the day’s top issues.

They do not read the news at the top of the hour or chase down their own stories in the field.

On du Fresne’s column, the TVNZ spokeswoman said: “Opinion pieces and editorials are not new journalism formats. They play a role in holding power to account, reflecting different perspectives held in our communities and inspiring robust conversations.

“John’s pieces are doing that – they’re resonating with New Zealanders who agree or disagree with the perspective and driving huge digital audiences. Given du Fresne also engages in this style of reporting himself, the irony is not lost on us.”

Currie’s position about the extent of Campbell’s role with TVNZ is not as confident was Campbell’s TVNZ employers and I think they need to reconsider their open support for him. Campbell may have diluted the value of his brand in taking the clear positions that he has.

In many respects I agree with Currie. I think du Fresne, with whom I agree on many matters, overstated the case. But to be fair he is consistent. Du Fresne on his blog has long been a critic of what he sees as declining media and particularly journalistic standards. But sacking Campbell is a bridge too far. I understand the concern with his position of influence using a State broadcaster as a platform but as long as his material is entitled “Opinion” there should be no problem. Although TVNZ is clearly supportive of him, and more extensively than Currie would have, it does not necessarily mean that it endorses his views.

From my earlier post it will be clear that I hold no brief for Campbell. I find his style pompous, self-righteous, booming and overbearing with faux bonhomie and a vision of New Zealand as he would like to think it was or should be but never was and is unlikely to be.

That said, I would never deny him a platform nor would I deny him the right to hold and to express an opinion. That is an essential aspect of our liberal democracy. And although I don’t like his style and find his pomposity grating, I will still read and consider his material and his opinions, in the same way as I do with another self-righteous progressive, Simon Wilson, who writes for the Herald.

Points of view are all important in allowing individuals to arrive at a conclusion about an issue. Consideration of differing points of view requires an open mind, which is often not easy to achieve but attainable with practice. Disagreement with a point of view does not justify shutting it down. At some stage the points of view and the information contained can crystallise an issue and at times allow for consensus or acceptance of a position.

Shutting people down and stifling their opinions is not the way to go.

Critical Theory – Identifying Post Modernism and the “Woke” Ideology

This piece was posted on my Substack – https://djhdcj.subtsack.com but comments made suggest it may be appreciated by a wider audience, hence my posting it here. I hope you find it informative and possibly entertaininjg

Introduction

In my critique of the Disinformation Project I identified a number of problems with their approach to research. Among these problems were a lack of objectivity, a lack of verifiable evidence, a subjective approach to interpreting findings and a general lack of rigour in analysis.

I pointed to the fact that the Director of the Project, Kate Hannah, acknowledged that she adopted a Marxist approach to her research and work. I suggested, rather obliquely, that the Disinformation Project was driven by a Critical Theory approach to their studies rather than an objective and empirical one. And this highlights a problem. Those who adhere to Critical Theory dismiss objectivity and an empirical approach. If evidence is used it is obtained by “story telling” or what empiricists would describe as anecdotal evidence.

The Disinformation Project and its members are free to adopt whatever techniques they like in the pursuit of their objectives, whatever those may be. They are entitled to express their points of view. But by the same token readers of their papers should be aware of the approach that is taken and what thinking lies beneath the discussions and conclusions that the Project adopts.

Sadly such analysis is not a characteristic of the news media for whom the Disinformation Project is the “go to” source for fear-based headlines or convenient and exaggerated sound bites. News media uncritically report what the Project states without checking, verifying or seeking evidential support for their propositions. Added to this the Department of Prime Minister and Cabinet continues to provide funding to the Project despite a clearly biased approach to research.

In this article I shall explain as briefly and as clearly as I can the factors behind Critical Theory as a part of the Post-Modernist movement to explain why it is that the Disinformation Project and organisations like it such as FACTAotearoa address issues in the way that they do. Armed with this information, readers may be able to make an informed judgement about the validity of the claims of organisations that use Neo-Marxist Critical Theory in their pronouncements.

The Starting Point

Critical theory should be understood and critiqued for what it is. Critical theory is grounded in Marxism and postmodernism that seeks fundamental and radical structural change of society through activism.

The Marxist theory of history is called dialectical or historical materialism. Marx’s central claim is that class struggle is the driving force of history. Under capitalism, this struggle occurs between the oppressors and the oppressed. Thus there is an imbalance which in current terms is represented as empowerment and disempowerment.

Marx looked at capitalism as an example. The capitalist class (the empowered) owns the means of production and rules over the proletariat (the disempowered). Marx believed capitalism’s long-term function was to create the conditions necessary for the awakening of the proletariat class consciousness who then organise into a collective and overthrow the bourgeoisie in a revolution which leads to socialism. This “awakening” or awareness has given rise to the quality of being awoken which has become the basis of the term “woke” – being awoken to important societal facts and issues – especially those of social justice. I think the better term is “awakened” but in this respect, sadly, idiom prevails over good grammar

Thus a critical aspect of Marxism is the awakening of a collective class consciousness in the proletariat -making them aware of the true nature of their oppression. It is only at this stage that they can form into a collective class, overthrowing the ruling capitalist class in a social revolution and conquer political power for themselves.

By the 1950s, Marxism was in crisis. Marx’s  predictions about history’s progression had failed to materialise and Capitalist and Liberal Democratic societies were seeing rapid improvements in the average quality of life. The world was learning of the horrors of communism and the Soviet Union, Maoist China, Vietnam, Cambodia and South America. The abolition of private property, central economic planning and the forced collectivisation of industry and agriculture had catastrophic consequences.

Postmodernism

In the 1960s, a new political, cultural and intellectual movement called postmodernism emerged in a period of significant social change. It is difficult to provide an overarching definition for postmodernism due to the sheer breadth of its applicability, including in music, art and architecture.

It is characterised by a deep suspicion, scepticism and distrust of broad historical concepts, universal values and of any attempts to ground knowledge and truth on absolute foundations.

It is particularly antithetical to the principles of the Enlightenment. Because there can be no universal truths any claims to truth cannot be valid. Or alternatively, all claims to truth are equally valid. Therefore there is no one truth.

Postmodernism is highly critical of the Enlightenment, which was predominantly a European intellectual movement associated with the principles of justice, rationality, individualism and the Scientific method as a means of determining objective and universal truth. Enlightenment thinkers rejected divine revelation and religious belief as the source of moral knowledge.

Postmodernists shared Marxism’s views on the structural power. But instead of economic analysis, they focused on differences in power between groups along cultural and identity lines. Postmodernism was a reaction to the conditions of modernity such as objectivity, individualism, liberal capitalism, and the principles of the Enlightenment which the postmodernist philosophers believed had led to a death of authenticity in Western societies.

Postmodernism is suspicious of any systems or processes that push for unity, homogeneity and all-encompassing conditions. Instead, they emphasise the fluid and the unstable, the diffuse and the fragmented, and the local and the micro, by studying the marginal, the different and the other.

For postmodernists, everything is about power. It determines how society is structured and how we think and speak. These ideas can be traced to critical theory, which emerged in Western Europe in the early 20th century.

Postmodernism and Critical Theory

Critical theories identify structural forms of oppression. For this reason, critical theories are popular with left wing academics and are common in fields of study like disability and fat studies, feminism and gender studies, post colonial studies, sexual diversity studies, critical legal theory, and critical race theory.

A critical theory has three criteria.

It must be explanatory in that it explains problems with the current social reality – practical in that and identifies who should change the social reality and how and normative.

It outlines the standards for criticism and the achievable goals for transforming the problems through praxis.

The third feature is the most crucial and embodies Marxist proposition that philosophers have hitherto only interpreted the world in various ways. The point is to change it. In philosophy, praxis means implementing a theory in the world to achieve an aim.

The core function of critical theory is to awaken a critical consciousness in members of an oppressed group. This is comes directly from the Marxist concept of awakening class consciousness as the precursor to a revolution.

The first step in the liberation of the oppressed to superior of enlightenment during which the oppressed experience a radical change in consciousness that awakes them to the true nature of their suffering. This period of education then turns into practice which is manifests in demonstration, confrontation and rebellion.

As I have already mentioned this is where the term “woke” comes from. Although frequently used to mean politically correct ideas, it refers to being awoken to the reality of oppression. If someone is “woke”, they are awake. They are enlightened and therefore possess a critical consciousness of oppression.

Thus, a person who is “woke” is enlightened and aware of the tension between empowerment and disempowerment and has the ability to recognise oppression.

In addition because of the way that post-modernism and critical theory have developed the “woke” person will reject objectivity and the empirical analysis that characterises Enlightenment thought and will prefer, rather than consider all of the evidence will prefer to adopt the anecdotal “stories” that are interpreted to mean whatever the woke person wishes them to means, given that reality is a subjective condition.

A critical consciousness has three components.

First, it requires a critical reflection and a moral rejection of any identified social and political injustices, which are usually systemic or structural in nature.

Second, it develops political efficacy, – to change the social and political reality through individual or collective activism.

Third, it requires actual participation in social justice activism to transform the perceived opposition.

Dealing with Critical Theory

It is almost impossible to have a rational discussion with adherents of critical theory because the approach is irrational. The rejection of an empirical examination, the rejection of the Enlightenment approach to reason, the rejection of individuality and any objective examination makes any discussion slippery in the extreme.

Frequently arguments from the rational side are met with all-embracing “veto” words which in essence sum up the critical theorist approach. If you do not agree with them you will be silenced. The veto word – which sums up critical theory thinking on a subject – will not brook dissent.

For example, if one were to question a certain interpretation of the Treaty of Waitangi the critical theorist would dismiss the question as racist. Added to the mix would be a question about whether one referred to the Treaty (in English) or Te Tiriti o Waitangi (in Maori).

The use of racism as a veto word is a form of shorthand for the subset of critical theory embodied in Critical Race Theory

Racism and Critical Race Theory

At its heart critical race theory exemplifies the Neo-Marxist and Postmodern approach by emphasising the conflict between the empowered (the whites) and the disempowered (the coloureds).

Critical Race theory defines racism as an all-encompassing system reinforced by legal authority, institutional control and social power that does not require people to be intentionally racist. One’s very existence is demonstrative of racism.

Racism is also something that is unique to white people. White people benefit from the system of racism through their white privilege, the term that was first outlined in 1989. White privilege refers to unearned advantages based on skin colour that are often unnoticed by white people.

Critical race theory assumes that white people are the de facto beneficiaries of a racist, white supremacist system set up by members of their racial group for their own benefit. White people are therefore responsible as a collective, not as individuals, for the structures and systems of domination, meaning that individual white people are complicit in racism, even if they oppose racism themselves.

It is correct that in some countries such as South Africa under apartheid and certain states in the USA under Jim Crow laws used legal authority, institutional control and social power to enforce segregation and provide for privileges for whites that were not shared with blacks.

However, racism as an epithet has expanded beyond the obvious and no, according the critical race theorists bores into the subconscious. And because you have to be white to be racist, any comment or critique of a white person by as non-white cannot be racist, because racism involves and imbalance of power – and the disempowered cannot be racist. The language may be offensive or insulting to the listener but it is not racist.

Colonialism and Decolonisation

Associated with racism as a veto word are the words “colonialism” and “decolonisation”. The critical theorist sees the exercise of power by a colonising nation as another form of the empowerment/disempowerment dichotomy that underpins critical theory.

The praxis that is sought is “decolonisation” – the removal of the elements of the colonising power that created the power imbalance. This form of praxis could run very deep indeed. For example the introduction of the English legal system and the Westminster model of governance are extensions of colonial power.

It is probably for this reason that Maori like Wille Jackson and John Tamihere are critical of democracy with its “one person one vote” model because that means that unless the “disempowered” votes with the majority, the minority will never have a voice. This, of course, is arrant nonsense because it overlooks the fundamental premise of democracy which is majority rule with minority rights.

The introduction of the English legal system and the way that system has operated for just over 180 years is currently being challenged by the introduction of considerations of tikanga or Maori cultural customs and practices into the law. It is in this way that a gradual decolonisation of fundamentals of the New Zealand legal system is going to take place. The issue of tikanga is the subject of an examination by the Law Commission in its paper He Poutama which can be found here.

I have two minor observations about that study. Although it purports to be a relatively typical piece of academic writing – the sort of thing that one would expect from the Law Commission –  it uses some of the critical theory tools in developing its discussion. One of these is the frequent use of metaphor rather than a clear analytical discussion of an issue. This allows for a wider range of interpretations because the meaning behind a metaphor is very much a subjective matter. By using metaphor the authors of the paper have conveniently dispensed with rational and objective analysis which Critical Theorists disavow.

The other problem lies in the nature of tikanga itself. In He Poutama and indeed in a recent case, tikanga has been ascertained by evidence from an expert described as pukenga.

This immediately creates a focus for the problem in that there is an absence of a written record of precisely what the tikanga or custom may be.

The law recognises the importance of the written record. The written record fixes information in time and space. The importance of the written record is its reliability and as we know written records offer contemporaneous evidence of transactions that are frequently moulded in different way by the workings of memory and subjectivity.

It is for this reason that documentary discovery is so important in court proceedings. It provides records that may differ from recollections stored in memory or even expose a lie (disinformation is the word so often used today but “lie” is simple and direct)

For this reason it is unwise to rely on the oral tradition because the story changes from telling to telling – shifts in wording, changes in emphasis, bits left out, new bits inserted. Because of these shifts and changes the meaning can alter and the reliability of the account becomes suspect.

In law the written record was everything. The printing press saw to that. From the 1530’s when Justice Fitzherbert told lawyers to put their handwritten casenotes to one side because that did not reflect the law – “put that case out of your books for it is not the law, without doubt” (Year Books 27 Hen 8 23 (Tottell, London, 1556) fo 11 STC 9963: ‘Mettez cest cas hors vostre Livres, car il n’est Ley sans doubte.’)– the reliability and standardisation of the record that print allowed enabled Lord Camden to say in Entick v Carrington “If it is law. it will be found in our books. If it is not to be found there, it is not law.” Behind that statement is an understanding of the reliability of the written record as opposed to an oral remembering. Thus to introduce into the law rules that are based on a variable oral tradition – one that even varies from place to place within the same culture – is a fraught and risky enterprise.

Michael Clanchy has written a seminal work (From Memory to Written Record – England 1066 – 1307 3^rd ed. Wiley Blackwell Oxford 2013) on the importance of the written word and the transformation of English oral culture to a literate. The production and retention of a number of written records was extended from royal and monastic agencies to much wider forms of everyday business. Charters, writs and other documents became commonplace. And England’s literate mentality developed.

Even so there was a halting acceptance of literate modes by both clerical and lay rulers. The use of writing for business purposes was almost as unfamiliar to many monks in the twelfth century and earlier as it was to knights and the laity. Rules of business such as dating documents were learned with difficulty as did the recognition of the writer’s place in the temporal order. Forgery was rife.

Even as the use of documents increased reading aloud was often preferred rather than scanning silently with the eye.

In the eleventh century unwritten customary law had been the norm, but by the reign of Edward I memory, whether individual or collective, if unsupported by clear written evidence, was ruled out of court. Property rights depended on writing and not the oral recollections of old, wise men.

Thus, the absence of a written record means that a judge must take tikanga as he or she finds it without reference to any authoritative written or recorded source.

Misogyny

For the critical theorist any adverse comment about a female is evidence of misogyny. Even if the issue of gender is absent from the comment, there is clearly a form of unconscious or subconscious misogyny especially if the person making the adverse comment is male.

The empowerment/disempowerment issue assumes that the person making the comment is empowered whereas the person about whom the comment is made is disempowered.

It provides an example of the febrile nature of the critical theory analysis and is evidence of the way in which a single word, embodying a complex concept, can disable any further discussion on a topic.

The Trans Problem

Any expression of discomfort about transgender people and their practices is defined as hate speech and as evidence of a desire for genocide – the elimination of trans people.

The comment only need be slightly negative to attract hostility, and the significant point is that although the speaker may not intend hate or genocide what is important is the perception or interpretation of the comment by the person about whom it was made.

Once again this is demonstrative of the disempowerment/empowerment dichotomy and of critical theory because it ignores and overlooks the intention or nuance of the speaker’s remark – an objective view – and concentrates on the impact of the remark upon this listener.

In the wider scheme of things the use of the phrase “I’m offended” expresses a feeling but does not tell us how the listener thinks and why.

Feeling Safe

A term frequently used particularly in discussions about the online environment is that of “feeling safe”. This is a highly subjective use of language but in reality – which the critical theorists would wish to avoid – what is being discussed is an acceptable level of risk.

By concentrating on subjective safety the critical theorist avoids any sort of empirical discussion about a level of risk and then politicises the discussion by suggesting that language itself can generate a sense of “unsafety”, that words can be weapons (as was stated by the former Prime Minister Jacinda Ardern at the United Nations) and expressed points of view can be tantamount to assault.

Once again this is nonsense and has the following implications. First, it has the effect of eroding the resilience of listeners. Once they are told that certain language or point of view are “unsafe” that message will become a part of the psyche. One need only observe the way in which the phrase is used throughout the media and by organisations to understand this.

Secondly the phrase is designed to restrict and inhibit robust discussion. As a “veto phrase” the words “I feel unsafe hearing that” effectively shuts down discussion which may need to be robust and at times confronting. That is part of living in a democracy which allows for the expression of different points of view. However, an edict that a certain point of view is “unsafe” shuts down the discussion.

The empowerment\disempowerment dichotomy is present in this example in that the empowered is the speaker and the disempowered is the listener who feels “unsafe”. The praxis that resolves the problem is to disempower the speaker. This means that the previously disempowered becomes empowered and the dialectic is reversed.

Misinformation and Disinformation

Misinformation and Disinformation are words that are frequently used as “veto words” and indeed the Disinformation Project has weaponised these words. I have written at length about these words and the Project itself. Suffice to say that in most of the circumstances where the words are used they are directed towards a point of view with which there is often disagreement, but, in the true spirit of critical theory refuses to engage rationally by describing the “misinformation” and analysing or explaining why its amounts to misinformation.

By using “veto words” the critical theorist calls “accepted wisdom” into question.

Closing Comments

Postmodernism has been praised as a useful means of calling everything taken for granted into question. And of proposing alternative accounts of social reality.

Postmodernism and Critical thinking dismiss objectivity and individualism as Western ideologies that are based on the propositions that race is irrelevant, that there are no individual barriers to individual success, and that failure is not a consequence of social structures but of individual character.

This is grounded in the post modern rejection of Enlightenment rationality in the scientific method. Critical theorists suggest objectivity prevents us from examining or changing our own biases, and that it undermines the value of subjective knowledge derived from lived experience.

Critical theory critiques of individualism are also influenced by Marxism. To Marx, individualism is a feature of capitalism because it is synonymous with private property rights. The capitalist ruling class created the ideology of individualism to justify their ownership of private property. Since private property must be abolished, so too must individualism. Following the abolition of private property, individuality vanishes and the bourgeoisie individual is swept out of the way.

In this article I have considered the basis for Critical Theory and the way that it is manifested in modern discourse. I do not suggest for one moment that Critical Theory should be suppressed. However, I do consider that there should be an awareness of some of the tenets of Critical Theory so that when it is encountered it can be recognised and should be exposed and critiqued for what it is. Critical theory is grounded in Marxism and postmodernism is a tool of the Political Left and seeks fundamental, and radical structural change of society through activism.

Dead in the Water

A review of a book by Matthew Campbell and Kit Chellel  Atlantic 2022

On 28 November 2018 we were on a cruise en route from Aqaba to Oman on the Red Sea. In the later afternoon our cruise ship slowed and on the port quarter was a smaller ship that dispatched an inflatable in our direction. Yes we were in dangerous waters where the presence of pirates were well known. But those approaching our ship were anything but pirates. Rather they were a protection group. The members of the group had boarded in Jordan. What was being loaded at this point was their hardware that they could neither possess not load in Jordan. There were some serious looking and rather large Pelican containers that were loaded aboard. One can only speculate exactly what they contained although it would clearly be lethal. This was a protection group who would “discourage” the unwelcome attentions of pirates should the appear on the horizon. The pirates made no appearance but I gather that our protection crew carefully scanned the horizon as we transited these dangerous waters.

All this came back to me in August 2023 as I read the extraordinary story of the Brilliante Virtuoso, a large oil tanker that in July 2011 was drifting in the Gulf of Aden. It was boarded by a group of armed men and was set ablaze after a devastating explosion. This was unusual. Hijacked ships and their crews were usually taken for ransom. Destroying a ship with $100 million worth of oil aboard was unthinkable.

The ship didn’t sink. It was salvaged by a company based in Yemen and was examined by David Mockett, a maritime surveyor working for the insurers Lloyds of London. Mockett was puzzled by what he found, including what appeared to be evidence of a bomb place in the engine room. But within a few days he was murdered when a bomb exploded in his car.

This book tells the story of the investigations that followed upon the death of Mockett (still an unsolved crime) the complex nature of international shipping, the even more byzantine world of shipping insurance (I thought I knew a bit about that given that the law firm in which I practice 34 years ago acted for maritime insurers – how wrong I was) and the intricacies around sheeting home responsibility for loss, whether or not to pursue those involved in fraud, the realities of litigation over insurance claims and the many layered nature of shifting responsibilities and liabilities for loss.

The authors describe the background of the players in some detail. The Insurance business comes under examination.

“The first thing to know about Lloyd’s,” they write, “is that it doesn’t, in fact, sell insurance, and it never has. The name instead refers to an umbrella organization for hundreds of ‘members’ — a mix of corporations and wealthy individuals — who actually provide policies, which are then said to have been sold at Lloyd’s.”

Lloyd’s is one of those global organizations that undergird modern life, providing liability insurance for everything from airlines to zoos. It functions like a gigantic shock absorber, or, rather, risk absorber. To ensure that no one member is saddled with catastrophic loss, the liability is spread broadly enough that members trade in it the way investors trade in stocks and bonds. Everything about this business is bewilderingly complex, by design.

“Shipowners and a fleet of enablers, most of them in London, have spent a half century making their world harder to understand, hiding maritime tycoons’ true identities — and their tax and regulatory obligations — within nesting dolls of shell companies.”

So it is hard enough to figure out who owns a vessel, much less who should foot the bill if it founders.

In addition the authors recount the way in which the shipping industry – a vital lifeline in the area of international commerce – works. Although the presence of Stavros Niarchos and Aristotle Onassis in the sixties and seventies epitomised Greek shipping magnates, who would have thought that Greek interests controlled international shipping to such a degree.

Brilliante’s owner was a colorful Greek magnate named Marios Iliopoulos, who was found to have staged the hijacking and destruction of his own vessel – and, it is suggested – not the first time.

The authors paint a vivid portrait of the man, who races cars under the name “Super Mario” and who terrorized a British courtroom after he was briefly detained and questioned in London

 “with the swagger of a professional wrestler approaching the ring, his unshaven features twisted into a scowl, arms swinging by his sides, untucked shirt over an ample stomach.”

The real heroes of the story are two tenacious British investigators – former members of the Met, Richard Veale and Michael Conner who brought their police experience to bear in tracking down witnesses not only from the crew of Brilliante but also a critical witness who was a member of the salvage team and who was able to give a detailed account of what happened. His evidence was accompanied by threats and fear of reprisal from unnamed sources.

Although the insurance fraud is uncovered, despite the machinations of the various lawyers involved who seemed to treat the investigation as some sort of power play the ending is inconclusive as far as finding Mockett’s killer is concerned. Given the raging civil war in Yemen and the difficulty of working through local officials in Aden, the detectives can’t find who ordered the hit on Mockett, although the facts point in a clear direction. And while the detectives assemble enough witnesses and evidence to prove that Iliopoulos orchestrated the “hijacking,” astonishingly, he escapes not only criminal but financial consequences.

“In the confusing netherworld of insurance law, the owner of a wrecked ship wasn’t the only one who could pursue compensation from Lloyd’s. Instead, an owner’s claim could be ‘assigned’ to another entity that had suffered a loss when the vessel was destroyed.”

The authors conclude that the shipowner came out “at least, tens of millions of dollars better off.”

The tale is told as very long form piece of journalism and is well-paced and told in gripping style. The world of international shipping and insurance is esoteric and at times mysterious but the authors drill down below the surface, telling of the origins of Lloyds, how it works and the intricacies of marine insurance. They take the reader to the wharves of Piraeus and examine the development of Greek shipping companies and how they operate.

The book is an expertly constructed crime thriller—the sort of work of narrative nonfiction that seems destined for a film adaptation. It is also an unexpected case study in the way that fraud has permeated the global economy, undermining democratic governance by both feeding off and facilitating government corruption.

And as I read it I thought of those security men who came alongside Nautica in November 2018.

Luxon on Sentencing

My object all sublime

I shall achieve in time —

To let the punishment fit the crime —

The punishment fit the crime;

Gilbert and Sullivan “The Mikado” Song 6

On 25 June 2023 Christopher Luxon gave a speech to the 87^th National Party Conference. In it he outlined aspects of National Party policy. Some of his policies related to law and order and specifically the way in which Courts dealt with sentencing. He suggested changes that would be made should National become the Government.

There were four major issues that he raised in this regard. What follows is a commentary on those issues. It is not to be taken as a political endorsement nor rejection of one party over another. In essence I argue that sentencing is a difficult and nuanced process, the rules for which are set out in the Sentencing Act 2002.

In this commentary I shall set out verbatim what Mr Luxon said  about each issue and follow it with my comments

1.   We’re also going to end the practice of taxpayers paying for written cultural reports about offenders’ backgrounds in an effort to reduce sentences.

This used to be rare but this practice has morphed into a cottage industry that’s lowering sentences and taxpayers are footing the bill. There were eight taxpayer-funded reports in 2017, and more than 2400 last year.

National is going to unwind this growth. Offenders will still be able to ask the court to hear from someone who knows them, but taxpayers won’t be paying for that.

Section 27 of the Sentencing Act is one of a series of sections that set out sentencing procedure.

I have written three papers on section 27 – Discounting Cultural Issues (2021) Discounting Cultural Issues Revisited (2022) and Background Information and Section 27 Reports for Sentencing – R v Berkland in the Supreme Court (2023)

Section 25 provides that the Court may adjourn for inquiries as to suitable punishment. I should observe that the word “punishment” appears in the section description and is the only time that word appears in the Sentencing Act.

Section 26 gives the Court the power to call for a pre-sentence report and sets out the information that such a report may contain. These reports are prepared by probation officers.

Section 27 allows an offender to request a court to hear any person or persons called by the offender to speak on a number of factors including the personal, family, whanau, community, and cultural background of the offender as well as the way in which that background may have related to the commission of the offence.

Section 27 was not new in 2002. In the Criminal Justice Act 1985 section 16 provided for similar information to be made available.

The practice developed for written reports to be made available rather than an oral presentation as envisaged by section 27. There are a number of reasons for the development of this practice. I have noted these in the articles referred to above. One important one is that the information about background and the causative link to offending is complex, detailed and nuanced and Judges are assisted by the provision of written material made available prior to the sentencing hearing. Background reports can provide more detailed and insightful information than may be available in a section 26 probation officer’s report.

The explosion in the use of background reports developed after the case of Solicitor-General v Heta [2018] NZHC 2453. Because many offenders are on legal aid, applications are made by counsel for funding for the compilation of such a report. This is where the taxpayer funding referred to by Mr Luxon comes in. An offender can, if he or she has the resources, commission the preparation of a background report privately. So Mr Luxon’s target is the public funding of section 27 reports.

Implicit in his comment is the suggestion that the provision of a background report automatically entitles an offender to a sentencing discount. This is simply not the case. There must be a causative link between the matters raised in the background report and the particular offending.

Once that is established the Judge assesses what discount may be available. My researches indicate that in the majority of cases a discount of 15% is allowed. In some cases discounts of 35% have been allowed. In others the discount has been as low as 5%.

What Mr Luxon is saying is that legal aid funding will not be available for the provision of background reports.

Those who require criminal legal aid are at the most disadvantaged end of the socio-economic scale. More often than not their backgrounds are significant contributors to their offending. Mr Luxon’s proposal would deny them the opportunity to put relevant and potentially causative material before the Court in written form from an experienced report writer.

The information may still be made available in the form originally envisaged by section 27 – by means of an oral presentation.

This means that those who can afford to privately commission a section 27 report can have their written background information placed before the Court whereas those who cannot must rely on an oral presentation which may reduce some of the opportunity for a judge to give careful deliberation to that material.

Is that equal justice before the law?

Finally on this topic it should be noted that section 27 is not the only provision that allows a judge to take personal or background matters into account. Section 8(i) states that in sentencing an offender the court must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.

The language of section 8(i) is directive. It would be quite possible for a Judge to order the preparation of a report for the purposes of complying with section 8(i) notwithstanding the provisions of section 27.

Section 27 provides a mechanism for getting that information before the Court. Furthermore when that information is available the Court must hear it unless there is a special reason that makes it unnecessary or inappropriate. (Section 27(2) Sentencing Act)

Thus it becomes immediately apparent from this example alone that the Sentencing Act contains a number of interlocking provisions that underpin the sentencing process

2.   National also says that an offender will receive a reduced sentence for their youth, and for remorse, only once. You might be sorry the second time, and you might still be young, but if you’ve enjoyed a previous sentence reduction because of it, then that ship has sailed.  It’s a reminder to learn from experience.

This proposal suggest that the so-called “youth discount” will be available to an offender only once.

The age of an offender is a mitigating factor – section 9(2)(a) Sentencing Act 2002. Age – and youth – are not static but dynamic – at least until death. It is a quality that is part of a continuum.

The problems surrounding youth and the way that youth can affect culpability is set out in the case of Churchward v R [2011] NZCA 531. The Court in that case emphasized that:

(a) There are age‐related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.

(b) The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.

(c) Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.

The Court also relied on evidence that established developmental aspects associated with youth. Their decision-making capabilities are different from those of adults. The Court observed that adolescents have less future orientation than adults, tending to focus on the “here and now” rather than long‐term consequences.

Research findings suggest that adolescents discount risks and calculate rewards quite differently from adults, tending to assign less weight to consequences over the immediate risk and thrill of the current challenge. This is not because adolescents are less knowledgeable about risks, but because they attach different values to rewards that risk‐taking provides.

[A]ccording to developmental psychology research, the task of adolescence is primarily concerned with the formation of personal identity and, where that process is disrupted, problems often result. Identity formation concerns values, plans, attitudes, beliefs, work choices, sexual orientation and partner choices. The process of “finding oneself” tends to lend itself to experimentation which, for some adolescents in unstable environments, means engaging in risky activities.

Finally the evidence suggested that there were two primary groups of offenders: those dubbed “Adolescents‐Limited”, typical delinquents whose involvement in crime begins and ends in adolescence; and a much smaller group of youths labelled “Life‐Course‐Persistent Offenders”. This group’s anti‐social conduct begins in childhood and continues into adulthood.

Mr Luxon’s proposal in this regard is that youth could be taken into account only once. This ignores the fact that “youth” is a continuing process and the problems referred to above are not going to vanish after one encounter with the justice system. Bad decision making and risk taking behaviours may continue. Rehabilitation is an ongoing process and often requires years of effort to adapt to new and acceptable behavioural traits.

The one chance only ignores the evidence of developmental psychology and misunderstands the nature of rehabilitation as a long term and continuing process. As the advertisement says “it doesn’t happen overnight”.

3.   We’re also going to restore the Three Strikes policy for serious offenders…. We will bring it back with clearer guidance on where judges can make exceptions – and where they can’t.

The three strikes policy was contentious from the outset. It was prescriptive, arbitrary, unnuanced and harsh. It placed a significant fetter on judicial discretion at sentencing.

Sections 86A – 86I of the Sentencing Act provided for a three stage approach to sentencing for qualifying offences. For a first offence there was a warning given. For a second offence any sentence of imprisonment would be served without parole. For a third offence the maximum penalty would be applied. No parole was available.

The warnings did not expire. Thus an offender may commit a second “strike” offence 10 years after the first offence and still qualify for “second strike” treatment.

The only “escape clause” from the rigours of the three strikes regime was that if the Court was of the view that to impose the prescribed penalty would be manifestly unjust. On occasions judges went to some lengths to fit a case within that rubric.

It is difficult to understand what Mr Luxon means when he says that there will be clearer guidance on where judges can make exceptions and when they can’t. In the minds of many criminal lawyers the provisions of the earlier three strikes regime gave judges very little room to move. The only inference that can be drawn from Mr Luxon’s statement is that the restraints on judicial discretion will be even greater.

I am not going to get into a detailed debate about the usefulness of the three strikes regime. My view should be clear from the second sentence of this section.

The Sentencing Act contains a number of principles and purposes all of which have been incorporated into the sentencing process. There is considerable allowance for nuance and the ability to take individual circumstances into account. The three strikes regime deprives the Judge of the opportunity to impose a sentence tailored to the particular offender as well as providing for victim and societal interests.

4.     I’m announcing today that National will impose a new limit on judges’ discretion.

They will be allowed to reduce a sentence by no more than 40 per cent. Any more than that undermines the purpose and impact of the sentence and undermines the public’s faith in the courts.

The proposal to bring back three strikes is an example of fettering judicial discretion in sentencing. The final proposition to be discussed is an undisguised attack on that discretion and proposes an upper limit of 40% by way of discounts.

It seems that this proposal is based on a misunderstanding of the way in which the sentencing discounts actually reflect what Parliament has directed the Judges to take into account at sentencing. It also reflects a lack of understanding of the way in which the provisions of the Sentencing Act are interlinked.

Setting an upper limit on discounts will not be achieved by a couple of sentences in an amending statute. It will require a complete reconsideration of the way in which the principles and purposes of sentencing are incorporated into a sentence along with a complete reconsideration of the aggravating and mitigating factors that should be taken into account. Other factors also come into play including offers and measures to make amends.

What is particularly confusing about Mr Luxon’s comment is that he says that anything more than a 40% discount undermines the purpose and impact of the sentence.

The whole fabric of the way in which discounts are applied in fact relies on the interlocking provisions of the Sentencing Act starting with the purposes of sentencing in section 7. The principles of sentencing are set out in section 8. There are 10 of them. The language mandates that the principles must be taken into account. Section 9 then directs the aggravating and mitigating factors that must be taken into account. It is within the scope of these factors that the discounts tend to come into play.

For example section 9(2)(b) says the Court must take into account the mitigating factor of a plea of guilty and when that took place. That has formed the basis for the range of discounts available for a guilty plea with the highest discount (25%) available for a plea at the earliest opportunity to the lowest discount available for a plea on the morning of trial.

If we take Mr Luxon’s 40% limitation that means that if the 25% for an early guilty plea is available that leaves only 15% to be divided between other factors such as youth, remorse, rehabilitative efforts post-offending, addiction, background information linking deprivation to the offending as well as any discount for previous good character along with any other factors that may be relevant.

Such an approach does not allow for the nuances of the offending and the offender to be taken into account on an individualized basis, although that said, there must be consistency at least of approach as well as with other sentences for the same offending.

In addition the approach does not allow for proper consideration and evaluation of all the factors that may mitigate the offending and give them proper weight and recognition. It is in this area that judicial discretion comes into play. It is one of the reasons why we have judges who are trained and become experienced in dealing with the variations and vagaries of offenders and their individual circumstances. I have discussed the judicial role in sentencing in my article “Replace the Judges?”

Sentencing is not a “cookie-cutter” exercise. A “one size fits all” approach results in injustice. A wide discretion afforded to Judges allows for individual justice to be dealt with depending upon individual offences and individual offenders.

Underlying Mr Luxon’s comments is a concern about public perception and what would seem to be a desire for harsher outcomes. Mr Luxon may not be aware of the fact that the word “punishment” occurs only in the title of section 26 of the Sentencing Act. The word “punishment” does not appear in the purposes of sentencing nor is it present in the principles of sentencing nor is it present anywhere else in the Sentencing Act.

Perhaps before developing the policy further Mr Luxon might benefit from a closer study of the Sentencing Act to gain an appreciation of how it works and if he wants to continue with his proposals, the changes to the Act that will be required. They will be extensive.

The Wealth Tax and Christian Values

This post first appeared on my Substack “A Halflings View” but I thought it warranted a wider audience.

Tom Holland is a very readable historian. His books on the Caesars (Rubicon: The Triunph and Tragedy of the Roman Rebublic and Dynasty: The Rise and Fall of the House of Caesar), on late Antiquity (In the Shadow of the Sword – The Battle for Global Empire and the End of the Ancient World), on Persia (Persian Fire: The First World Empire and the Battle for the West), on Western Europe at the end of the first Millenium (Millenium:The End of the World and the Forging of Christendom) are excellent. Holland is able to take complex ideas and express them in a readable form.

As fortune would have it I came across an address by Holland entitled “Why I changed my mind about Christianity” – a lecture that he gave in November 2022. It can be found here and I recommend it.

In the lecture Holland referred to his book Dominion – The Making of the Western Mind. The book tells the story of how those in the West came to be what they are and why they think the way that they do. It explores why, in a society that has become increasingly doubtful of religion’s claims, so many of its instincts remain irredeemably Christian. Even those who have abandoned the faith of their ancestors and dismiss religion as mindless superstition remain heirs to Christianity and its fundamental values.

An example has occurred this week. But before I discuss that let me refer to some material from Holland’s book.

In a chapter about the way the Catholic Church underwent a revolution under the Papacy of Gregory VII and Urban II he discusses the founding of the University of Bologna and the influence that it had on the development of Canon Law and Gratian’s work on the Decretum.

Natural law played a significant part in Gratian’s formulations. Holland states it thus:

‘The entire law is summed up in a single command: “Love your neighbour as yourself”’. Here for Gratian was the foundation stone of justice. So important to him was the command that he opened the Decretum by citing it. Echoing the Stoics much as Paul had done, he opted to define it as natural law – and the key to fashioning a properly Christian legal system. All souls were equal in the eyes of God. Only if it were founded on this assumption could justice truly be done. Anything obstructing it had to go. ‘Enactments, whether ecclesiastical or secular, if they are proved to be contrary to natural law, must be totally excluded.”…

Gratian, by inscribing this conviction into the Decretum had served to set the study of law on a new and radical course. The task of the canon lawyer, like that of the gardener, was never done. The weeds were always sprouting, always menacing the flowers. Unlike the great corpus of Roman law, which scholars in Bologna regarded as complete, and therefore immutable, canon law was oriented to the future as well as the past. Commentators on the Decretum worked on the assumption that it could always be improved. To cite an ancient authority might also require reflection on how best to provide it with legal sanction in the here and now.

How, for instance, were the Christian people to square the rampant inequality between rich and poor with the insistence of numerous Church Fathers that ‘the use all things should be common to all’? The problem was one that, for decades, demanded the attention of the most distinguished scholars in Bologna.

By 1200, half a century after the completion of the Decretum, a solution had finally been arrived at – and it was one fertile with implications for the future. A starving pauper who stole from a rich man did so, according to a growing number of legal scholars, iure naturalis – – ‘in accordance with natural law’. As such, they argued, he could not be” reckoned guilty of a crime. Instead, he was merely taking what was properly owed him. It was the wealthy miser, not the starving thief, who was the object of divine disapproval. Any bishop confronted by such a case, so canon lawyers concluded, had a duty ensure that the wealthy pay their due of alms. Charity, no longer voluntary, was being rendered a legal obligation.(My emphasis)

That the rich had a duty to give to the poor was, of course, a principle as old as Christianity itself. What no one had thought to argue before, though, was a matching principle: that the poor had an entitlement to the necessities of life. It was – in a formulation increasingly deployed by canon lawyers – a human ‘right’.”

This passage came to mind when I read on Saturday of the Green Party policy to impose a wealth or asset tax. Criticism of that proposal has come from many quarters. It is often described as an “envy” tax. It has been pointed out that one of the rationales for the tax is the “stashing” of assets in trusts.

New Zealand has one of the highest number of trusts in the world. They have been formed for a number of reasons. One has been to protect assets like the family home from the hands of receivers or liquidators should a business be financially unsuccessful. Another has been to ensure the preservation of assets in the event of a relationship breakdown. Yet another has been to spread the liability for tax on income derived from assets owned by the trust – although that has recently been scotched by equating the tax rate on trust income at 39% – the same as the highest band of income tax.

One of the issues arising from the wealth tax proposal is essentially unwinding trusts to get at the assets which can then be taxed in the hands of individuals. Alternatively, what may really be proposed is not a wealth tax but an asset tax. The tax proposed on trust assets confirms this.

Ultimately what is proposed is a complete redistribution of assets (referred to perjoratively as “wealth”) and it is here that we see the fulfilment of Holland’s thesis about the prevalence and continuity of Christian values. In this case a wealth tax fulfils Holland’s characterisation of the legal obligation of charity and the enforcement of equality using the coercive power of the State.

It may come as some surprise to the Greens and to James Shaw, Marama Davidson and Chloe Swarbrick in particular that they are espousing a proposition that is rooted in Christian values and natural law and that echoes back to Gratian and the Decretum. I am not sure that they may have given any thought to the historical and philosophical basis for their proposal. But certainly the rhetoric that has been delivered surrounding these proposals has this effect.

The counter argument may be that what is being proposed is morally correct and that it may be. But we must look at the foundation for that moral argument and it may be found in Gratian and the Decretum.

If you want to avoid the traps of a moral argument you can always suggest that the wealth tax is “fair”. But fair on what basis? Equality seems to be the only argument and once again we return to natural law principles which are firmly rooted in Christian values.

No matter how you look at it, the answer remains the same.

Strengthening Resilience to Disinformation – A Solution

This post appeared in a very slightly different form on my substack site “A Halflings View”

I have been referred to a webpage from the Department of Prime Minister and Cabinet. I have adapted the heading to the page as the title for this post.

The webpage starts:

“The way that people access and consume information has radically changed in the last few decades. The ease and speed of access to digitised information has come with numerous benefits. However, these technologies can be used in ways that cause harm. Where individuals or groups communicate to shape public perception in ways that may be manipulative, deceptive or misleading, this can be referred to as ‘disinformation’.”

It goes on to note that the effects of disinformation and misinformation are of concern to New Zealanders and those concerns are high on the list of national security threats people felt would likely occur in both the short and long term.

The message advises that

“The Government is seeking to support a “whole-of-society” approach to build understanding and resilience against the harms of disinformation, that can be led primarily by those outside government. This approach recognises the need to maintain an open internet and uphold the right to freedom of expression.”

Three initiatives are proposed

1.   Convening a “civil society-led group” to scope longer-term work

2.   Working to design a one-off fund to  support community projects and organisations in helping to build New Zealand’s resilience and capacity to respond to disinformation.

3.   Commissioning public research and analysis into the problem.

What is the purpose of this? The Request for Proposal (RFP) states as follows:

“The government is seeking to support a “whole-of-society” approach to build understanding and resilience against the harms of disinformation, that can be led primarily by those outside government. This approach includes commissioning reporting to build a transparent empirical foundation for any policy response; enhancing community capacity and capability outside of government; and promoting civil society leadership.”

It should be remembered that it was the same Department that in 2020 suggested that

“Ideally efforts to counter mis/disinformation should be led outside of government by the media, civil society, NGOs, academia and the private sector. Several leading academics, research organisations such as Te Pūnaha Matatini, and other organisations such as Netsafe and InternetNZ have already been very active, and we are exploring how to support them and lift their capacity in this work.

Oversight of mis/disinformation is a sensitive issue, as any public commentary or perceived control of a ‘counter-disinformation effort’ can reinforce conspiracy meta-narratives about state manipulation of information and give legitimacy to those claiming an erosion of free speech. For this reason, we would not recommend formal allocation of disinformation responsibilities or the identification of a government spokesperson. A group of relevant Ministers with whom significant issues can be highlighted and public communications approaches approved will, however, be important to ensure appropriate proactive oversight of official activity in this area”

One can only speculate that the current proposals are yet another example of the State “distancing” itself – at least as far as public perception is concerned – from interference with matters of expression whilst at the same time driving, indirectly, the campaign against disinformation.

And what is seen as the final outcome? The RFP states:

“The reporting produced as a result of this RFP is intended to be released publicly. DPMC is aware that this kind of work is a matter of evolving best practice, and while we will scrutinise proposed solutions carefully, we are realistic about the need to support a developing community of local practitioners.”

There are a few issues that arise out of these proposals.

1.   The opportunity for citizens or groups to put their names forward to help is obscure. It is located on the Government tender page. I would have thought that there would be a link but there is not. Input is not sought from individuals. A certain level of organisation and structure is required of applicants. Institutions are clearly the target. I would suggest that  at the end of the day the “civil society-led group” will probably be appointees which will probably include well-known groups who frequently appear in the “Disinformation” space. Outcomes in such a situation become predictable.

It should be remembered that in its paper “Dangerous speech, misogyny, and democracy: A review of the impacts of dangerous speech since the end of the Parliament Protest” (August 2022) the Disinformation Project recommended:

The establishment of a transparent, outside government entity to provide research, analysis and advice for communities, civil society organisations, agencies and independent crown authorities on information disorders and their impacts in Aotearoa New Zealand.

I suggested that this recommendation was clearly a pitch by the Project to be an “outside of government” entity. As I observed – the best way to get a job is to suggest that there is a need for it.

When one reads through the Request for Proposal (RFP) documents it becomes clear that the Disinformation Project will be a likely appointee.

2.   At no time – and indeed throughout the whole campaign against disinformation- have any concrete examples of disinformation been provided. Rather the all-embracing catch-words of dis and misinformation and conspiracy theories are flung about without any clear examples. It would be helpful to have examples rather than the use of buzz-words like hate speech, misogyny and the rhetoric that emerges from the Disinformation Project.

3.   Although the terms misinformation and disinformation are defined (on the definition of disinformation see the next item) there is ample scope for “mission creep”. The RFP states

“This RFP is primarily focused on disinformation, but acknowledges that reporting may cover a wider spectrum of false and misleading information.”

4.   There is in fact a very simple solution to the “disinformation problem”. It works like this. Let us start with the definition advanced by the DPMC

“Disinformation is false or modified information knowingly and deliberately shared to cause harm or achieve a broader aim.”

Let’s cut through the rubbish of bureaucrat-speak (There is the Plain Language Act 2022 statute on the books but reading the RFP one would not know it) The Plain Language word for disinformation is lies. Call it for what it is.

The business about sharing knowingly or deliberately adds nothing. Information is passive unless it is published. The same is the case with disinformation. It is axiomatic it should be shared. Otherwise it is neither information nor disinformation

What is the antidote and antithesis of lies – the truth. John 8:31, writing in another context, made it clear – “the Truth will set you free”. That is how you “strengthen resilience to disinformation.”

Rather than engage in a complex bureaucratic process – for that is what is envisaged – simply use counter-speech (advocated by Nadine Strossen in her recent visit to New Zealand) to address the lies and counter lies with plain unvarnished truth.

Sadly however I think the agenda may go deeper than merely countering disinformation and reference is made in the opening statement to the use of information technologies as a means of disseminating disinformation.

My concern is that this is a covert attempt to regulate the means of distribution of information – a blunt instrument approach to a subtle and nuanced problem.

Certainly that is what has been advocated in some of the papers released by the Disinformation Project.  

In its RFP the DPMC states

“The protection and promotion of human rights, including freedom of expression, a diverse range of views, and rights to privacy, are critical to this work programme. Any solutions must proactively incorporate structures and safeguards designed to build public trust and confidence and enable robust testing of data collection, analysis, and conclusions.”

This is encouraging. In addition the RFP states:

“We do not want solutions oriented toward intervention in disinformation, reporting particular instances of disinformation to platforms or governments, or censorship.”

The ultimate goal is stated to understand the problem of disinformation in New Zealand, to continue that understanding, to encourage future reporting, to maintain independence of reporting from Government and to confine the scope of the work to monitoring the problem and insights into it.

In the final analysis the target of this proposal is the transmission of information. It must always be a matter of concern when the State involves itself in this activity. We already have significant regulation of the means of communication of information (radio and TV licences as examples) and a means of managing and controlling content (the Classification Office and the Broadcasting Standards Authority as examples).

Because “disinformation” is acknowledged to be a problem occurring mainly in the digital space – the Internet which is largely unregulated – it seems to me that understanding the distribution of this form of content is a prelude to an attempt to regulate this means of distribution of information – hence my earlier expressed concern.

Watch this space.

Elegant Argument and the Heckler’s Veto

I have written before about what I consider to be the decline of reasonable discourse. Certainly any hope for reasoned argument and a discussion about differences in opinion and point of view has gone out the window.

If anyone thought that the recent incident involving Kellie-Jay Keen-Minshull (aka Posie Parker) was unusual they are forgetful of earlier examples of shutting down disagreeable points of view. Massey University’s cancellation of Don Brash’s invitation to speak in 2018 provides one example although to be fair he later spoke at Massey in 2022.

Brash’s “cancellation” took place around the same time as the attempt by controversial Canadians Lauren Southern and Stefan Molyneux to speak publicly in Auckland at the Bruce Mason Theatre. They were denied that venue by Regional Facilities Auckland although the then Mayor Phil Goff did not hesitate to express his opposition to them using public facilities made available by the City Council. This refusal gave rise to litigation which went all the way to the Supreme Court – see Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138– where the approach by Regional Facilities was upheld.

From time to time controversial speakers visit our shores. Often their presence or their opportunity to express their views is challenged. In 2022 there were calls to cancel Jordan Peterson’s presentation in Auckland in 2022 by Auckland feminists and by transgender activist Shaneel Lal. Lal was one of the organisers of the what was described as a counter protest (it was in fact a protest) against Ms Keen-Minshull.

An attempt to seek a High Court decision to review the fact that Ms Keen-Minshull was permitted to enter the country was unsuccessful, notwithstanding sympathetic comments by the Judge hearing the application – see Auckland Pride v Minister of Immigration (Reasons Judgment 5 April 2023) [2023] NZHC 758. One of the concerns that was expressed by the applicants was that the extreme views expressed by Ms Keen-Minshull attracted conservative, far-right, white supremacist groups and that her presence might constitute a threat to public order.

That in fact came to pass. In one of what must be the most extreme examples of a cancellation or deplatforming of a person who was entitled to express a point of view, Ms Keen-Minshull was set upon and allegedly assaulted by one of the protesters present. This cancellation was subsequently celebrated by Shaneel Lal.

There were people present who genuinely wanted to hear what Ms Keen-Minshull was going to say and who had a right to receive the information imparted albeit that information may have been unacceptable. I am sure that Shaneel Lal as a law student, is acquainted with the provisions of section 14 of the New Zealand Bill of Rights Act 1990 which guarantees the freedom to seek, receive, and impart information and opinions of any kind in any form. He and the protesters not only cancelled Ms Keen-Minshull’s right to express and opinion but also cancelled the right of members of the audience to hear her opinion.

Another example of “official” cancellation may be seen in the withdrawal of a venue previously available to Julian Batchelor who faced threats of disruption from opponents of his position.

This trend of cancellation, deplatforming or “the heckler’s’veto” was considered by the Supreme Court. It noted that the “heckler’s veto describes the situation in which those wishing to exercise their free speech rights are prevented from doing so by actual or threatened protests, particularly threats of violence. (See Moncrieff-Spittle at para [93]. Although it could be suggested that there may be attendant health and safety issues arising from the exercise of free speech it may be that the cancellation of a venue hire agreement (as was the case in Moncrieff-Spittle) may be reasonable limit that could be justified in a free and democratic society. (Moncrieff-Spittle at para [101] and following.)

The Supreme Court was at pains to point out that every case had to be dealt with on its individual merits. The problem is whether or not every controversial speaker who comes to New Zealand will run the risk of threats of violence and disruption to such a degree that the authorities will not make venues available or the speaker is silenced by a level of violent and disruptive behaviour as was experienced by Ms. Keen-Minshull.

This does not bode well for the freedom of expression in New Zealand – where a vocal minority can shut down the expression of an opinion by one person and prevent the hearing of that expression of opinion by another.

However, this form of cancellation or deplatforming by threat is not the only way in which points of view may be silenced.

Recently Sean Plunket, an outspoken broadcaster who runs a show on the Platform was banned from Twitter. He was reinstated a few days later. I also know of a person who was banned from a discussion group (the organisation does not matter) although his posts were rational and polite. That person was asked to justify his position and have his continued participation in the group reassessed. He has since been reinstated.

It is acknowledged that platforms occupy a somewhat different position from Government organisations when it comes to freedom of expression, and in many cases rely on contractual terms to moderate content that may be permissible. But that said, a person who uses such a platform has an expectation of fair treatment. Rather than be deplatformed without a hearing, and then have to justify reinstatement (an interesting reversal of the traditional flow of proof burdens both civil and criminal where the accuser has the burden of proof).  My view is that a warning should issue advising that deplatforming is likely if the conduct complained of is continued. That at least could be the starting point of a dialogue where the accused person would have an opportunity to put his or her point of view (in law the principle is audi alteram partem – hear the other side – before reaching a decision).

This leads me to a theme which I have expressed before in other posts. Many of those opposed to a particular position would rather not debate it for fear of giving the oxygen of publicity to the opposed point of view. Rather those opponents would like to see the point of view remain unpublished or shut down entirely.

This runs contrary to the “marketplace of ideas” position which suggests that contending positions should be discussed and considered. If an idea has validity or is acceptable it will survive the debate. If it is invalid or unacceptable it will be dismissed or at best relegated to the margins.

But what is important in this process is that an idea, opinion or point of view should be properly and objectively debated. That debate should not involve emotive language, the use of “veto” words like racist, conspiracy theorist  or toxic. Rather, if an idea or opinion does contain elements of say, a conspiracy theory, identify the theory and explain why it is incorrect or wrong. Admittedly, many of those advancing a contrarian position (probably a better term than the emotive “conspiracy theory”) are monist in their approach. But while the person expressing the contrary opinion may not be convinced of the invalidity of the argument advanced, a member of the audience may be and in that way the marketplace of ideas succeeds.

The problem as I see it is that in the current climate rational and objective argument seems to be sidelined in favour of emotive outbursts, veto statements and cancellation behaviour.

My professional background has been in the environment of a highly structured approach to contending positions. In addition there are a number of fundamental rules underlying that approach. One side has an opportunity to put forward a proposition and produce evidence to support it. The other side has an opportunity to critique the evidence by way of cross-examination and put forward a contending point of view supported by evidence. The decision-maker may intervene in argument by questions or to test it in a Socratic manner. This process of argument, when done properly, has a high degree of elegance to it. Sadly it is too much to hope that it would be a characteristic of public debate.

There can be no doubt that the comments sections of the NZ Herald, Facebook, LinkedIn or Twitter itself are hardly venues for the level of debate that should take place in the marketplace of ideas. But in public fora a person should have the opportunity to put a point of view, stand ready to justify it and debate the rights and wrongs in an objective and rational manner. Heckling can often be amusing but is something of a distraction and in my view characterises the heckler as one who is not prepared to properly engage.

It is for good reason that the current trend of cancelling and deplatforming is called “the heckler’s veto”.

Withdrawing the “Hate Speech” Amendment

Earlier this week it was announced that the Govenment intended to withdraw the Human Rights (Religous) Amendment Bill. The Bill was designed to deal with what is generally referred to as “hate speech” against religous groups. The issue is now going to be referred to the Law Commission. The terms of reference for the Law Commission have yet to be released but I would imagine that they will be considerably wider than “hate speech” against religous groups.

I made a submission the the Select Committee on the Bill. I thought that I would make it available via this medium, given that I have earlier posted on the subject of “hate speech” and freedom of expression.

The submission follows:

Summary of the Argument

My starting point is that this amendment is problematic and should not proceed in its current form.

In summary I consider that the amendment constitutes an unjustified interference with the freedom of expression guaranteed under the New Zealand Bill of Rights Act 1990 (section 14) and the right of a person guaranteed under the New Zealand Bill of Rights Act 1990 (section 15) to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

In addition, I submit that the proposed amendment is unduly discriminatory for it protects those who have a religious belief. It offers no protection for those who do not have such belief but who have an ethical belief. To be consistent, if the Legislature wishes to protect belief systems (whether religious or otherwise) there should be protection for those who subscribe to ethical belief systems.

Thirdly I submit that if there is to be protection for those who practice religious or ethical beliefs, there should be an exception similar to that which appears in section 29J of the Public Order Act 1986 (United Kingdom).

There are also some definitional difficulties. “Religious belief” is not defined whereas in the principal Act ethical belief is clearly defined. My suggestion (which I shall develop in the submission) is that the term “religious belief” should be substituted with “faith based belief”.

The term “harm” is not defined and should be clarified. At the moment the term is too wide and imprecise and could well result in an unjustified limitation on the freedom of expression.

Discussion

Bill of Rights Act Issues

The starting point for a discussion of this amendment is that it constitutes an interference with the freedom of expression as well as having an impact upon the freedom of religion guaranteed under the New Zealand Bill of Rights Act 1990 (NZBORA).

Any interference with the rights guaranteed under NZBORA should be limited to that which is absolutely necessary to protect a group from a clearly defined outcome.

The proposed amendment poses some difficulties insofar as the limitation of these rights is concerned. In a number of respects the two rights are entwined. The religious belief right involves the manifestation or witness of that belief coupled with the practice or teaching of that belief. This necessarily involves communication at which stage the freedom of expression right is engaged.

Because faith-based belief is strongly held, discussions surrounding doctrine or belief systems can become highly contentious and emotive. Care must be taken to ensure that the spirited nature of faith-based debate is not inhibited.

If there is to be a restriction of the NZBORA rights to which I have referred, those restrictions must be clearly expressed. As the proposal in the Bill stands this clarity is absent.

The extent of the restriction of a NZBORA right must be necessary. The following is a test for the scope of such necessity.

The Scope of Necessity

Without the requirement to comply with NZBORA, restrictions on expression could fall within what is referred to as the “harmful tendency test”.

This is based on a vague, general fear that the speech might indirectly contribute to some possible harm at some indefinite future time. This test is quite extensive in its effect and could allow the State to punish speech that contained ideas that it opposed or did not favour. That includes speech that criticized government policies or officials.

The provisions of NZBORA and the fact that a restriction on a right must be necessary demands a higher test. This stricter test is known as the “emergency” test. Under this test the State could punish speech only when it poses an emergency – that is when it directly, demonstrably and imminently causes certain specific, objectively ascertainable serious harms that cannot be averted other than by censorship. This would fulfil the necessity requirement for an abrogation of a NZBORA right.

The issue then is whether the language of the amendment falls with the emergency principle or whether it is more oriented towards a harmful tendency model.

I suggest that the language which makes unlawful excite hostility or ill will against or bring into contempt or ridicule a religious group does not contain the necessary element of immediacy of harm that would bring the speech within the “emergency” test and therefore demonstrates that the amendment falls within the “harmful tendency” test.

It is submitted that this is insufficient to warrant an abrogation of the rights under NZBORA guaranteed for section 14 and 15. The insufficiency of language is further demonstrated by a semantic analysis.

The words ‘excite hostility against’ or ‘bring into contempt’ any group (s.61) or threatening, abusive, or insulting and which are likely to ‘excite hostility or ill will against, or bring into contempt or ridicule’ (s.131) are imprecise.

The use of the word “hostility” is a part of this absence of precision. “Hostility” and its close relation “hatred” are powerful words.

The emotion of “hatred” or “hostility” is far deeper and more visceral than that which may be engendered by abusive or insulting speech. Abusive or insulting speech may be rude, uncouth, ill-mannered or offensive. It may prompt a reaction or a response from the person against whom it is directed. But it would be unlikely to be able to go so far as to stir up hostility towards a group of people based on a shared characteristic.

To engender the incitement of hatred or hostility the language used would have to be far stronger. For this reason it is my submission that the language must be such that it stirs up, maintains or normalizes violent hostility against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons or that a person says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for or threatens violence or hostile action against such group of persons.

This emphasizes the importance of the speech engendering or threatening violence or hostile action. There must be an immediacy of harm or threat – what is referred to as the “emergency” principle – a clear and present danger arising from the speech.

It eliminates the slippery and emotive concept of hate or hostility and rather emphasizes the importance of characterizing the speech as dangerous. The emphasis is upon hostile speech because hostility is more capable of being resolved into action.

The quality of the published material and what it seeks to achieve is related to the concepts of violence and hostility but removes the qualities of threat, abuse or insult.

The use of those terms in any proposed legislation would water down robust speech to virtually nothing and would go far beyond what is generally understood by “hate” speech. As I have said, language may be offensive, hurtful or insulting without necessarily setting out to stir up hostility or hostile action and robust debate must be encouraged as well as a need for audiences to be robust and resilient themselves.

The “Religion” Problem

Clearly if one were to add religion, threatening, abusive or insulting language about adherents of the Islamic faith would fall within the first limb of the section 61(1) test. But is it necessary that religion be added? And should this be simply because a religious group was targeted in the March 2019 terrorist attack? And if religious groups are to be added, extreme care must be taken not to unnecessarily abrogate the NZBORA rights contained in sections 14 and 15.

The difficulty with including threatening, abusive or insulting language against groups based upon religion means that not only would Islamaphobic “dangerous speech” be caught, but so too would the anti-Christian, anti-West, anti “Crusader” rhetoric of radical Islamic jihadi groups be caught.

Would the remarks by Winston Peters condemning the implementation of strict sharia law in Brunei that would allow the stoning of homosexuals and adulterers be considered speech that insults members of a religion?^[1]

A further difficulty with religious-based speech is that often there are doctrinal differences that can lead to strong differences of opinion that are strongly voiced. Often the consequences for doctrinal heresy will be identified as having certain consequences in the afterlife.

Doctrinal disputes, often expressed in strong terms, have been characteristics of religious discourse for centuries. Indeed the history of the development of the freedom of expression and the freedom of the press was often in the context of religious debate and dissent.

It may well be that to add a category of religion or religious groups will have unintended consequences and have the effect of stifling or chilling debate about religious belief.

An example of the difficulty that may arise with restrictions on religious speech may be demonstrated by the statement “God is dead.” This relatively innocuous statement may be insulting or abusive to members of theist groups who would find a fundamental aspect of their belief system challenged.

For some groups such a statement may be an invitation to violence against the speaker.

Yet the same statement could be insulting or abusive to atheists as well simply for the reason that for God to be dead presupposes the existence of God which challenges a fundamental aspect of atheist belief.

A further example may be seen in statements of faith.

The Shema Yisrael provides an example of the potential for faith based disputation.

The Shema is the centrepiece of morning and evening Jewish prayers. It states as follows:

Sh’ma Yisrael Adonai Eloheinu Adonai Eḥad: “Hear, O Israel: the LORD is our God, the LORD is One.”

A further example could be taken from Islam’s Shahada “”Lā ʾIlāha ʾIllā Allah, Muḥammadun Rasūl Allah” –  “There is no God but God and Muhammad is His Prophet”.

Both statements occupy a number of different levels of meaning.

First, to the devout Muslim or Jew it is a statement of belief and faith.

Secondly, to the devout Muslim or Jew it is a statement of fact – although that cannot be empirically proven and that qualification alone would challenge a devout Muslim.

Thirdly, it is a challenge to any other belief systems that if they hold that there is any other God but Allah or the LORD (Adonai), their belief is false. To many true believers in other religions that could amount to a serious and aggressive challenge.

Thus it can be seen that in a statement as seemingly innocent as the Shahada and the Shema Yisrael there are layers of meaning that could be considered abusive or insulting yet represent some of the fundamentals of muscular and vigorous religious debate.

These examples illustrate the danger of placing religious discourse into the unlawful categories of discrimination.

If it were to be determined that religious groups would be added to those covered by section 61, stronger wording relating to the consequences of speech should be applicable to such groups. Instead of merely “exciting hostility against” or “bring into contempt” based upon religious differences perhaps the wording should be “advocating and encouraging physical violence against..” .

This would have the effect of being a much stronger test than exists at present under section 61 and recognizes the importance of religious speech and doctrinal dispute.

At the moment the test in the Human Rights Act is the “harmful tendency” test – an approach that is problematical in that there need be no immediacy of danger. This contrasts with the “immediacy” or “emergency” test which requires that the speech carry with it a threat of imminent danger of physical harm and which I have discussed above. This more stringent emergency test would bring the speech within a justifiable limitation of the s. 14 NZBORA guarantee of freedom of expression.

Those who advocate a “harmful tendency” test claim that although there may be no immediacy of harm, nevertheless repetition of the message may elevate the risk. In my view it would have to be proven that mere repetition removes the speech from the “viewpoint neutral harmful tendency” position to that of immediacy of harm.

For all the reasons above, I do not consider that it is necessary for religious groups to be included in sections 61 and 131 of the Human Rights Act.

In the event that it is decided that religious groups should be included in sections 61 and 131, I emphasise the necessity for precision in the language of the sections.

I am also of the view that to merely provide protection for religious groups is discriminatory in and of itself. I develop this in the next section of this submission.

The United Kingdom Position

The issue of restrictions on religious speech are the subject of a specific exception in the UK. I refer to section 29J of the Public Order Act 1986 (United Kingdom), which provides:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

The Christchurch Royal Commission’s view was that such an exception would make the offence of inciting racial or religious disharmony – especially the latter – unworkable.

It seems that the Royal Commission misunderstands the nuance behind the exception.

The UK exception goes not to the workability of the proposed amendment but rather to the quality of the discourse and recognises that religious debate can become passionate and heated which is a historical fact. Differences over belief systems have long prompted vigorous and highly charged discussion and language.

The exception does not go so far as to allow for the advocacy of violence or hostile action which would fulfil the immediacy or emergency test. It could be argued that because the immediacy test targets consequences rather than content, an exception such as that appearing in section 28J is not required, in that section 29J merely states examples of freedom of expression which are likely to occur and have occurred over the centuries in religious debate.

However, the inclusion of such an exception would provide protection for adherents of all religious faiths who wish to engage in the robust debate that often surrounds matters of belief.

Definitional Difficulties

Excite Hostility

The language of the proposal adopts the “harmful tendency” approach to limiting the freedom of expression. This restricts expression based on an as yet undetermined potential for harm rather than actual or real threat of harm.

In this respect the use of the words “excite hostility” results in imprecision. I suggest the use of the word “incite” for the following reasons:

The verb “to incite” means to urge or spur on; to stir up, animate, instigate or stimulate to do something or towards some action.[2]

“Stirring up” could be said to be an action that precedes incitement, although it is included as part of the definition cited above. Incitement, however, goes further. It suggests that the inciter expects and intends some sort of action or response to the words that are being used.

Incitement goes beyond engendering an emotional response (which is what hatred or hostility is). It seeks the deployment of hatred or hostility towards some end which aligns with my proposal above that hatred or hostility should be considered within the context of threatened violence or hostile action.

If “incitement” or “stirring up” is not associated with an active consequence it would mean that the law is prohibiting the instigation of an emotion without an associated action.

It can be no offence to harbour an emotion or a belief that is so strongly held in a negative sense that it amounts to hatred or hostility. To do so would be to create a “thought crime”. The criminal law addresses behaviour. It does not address feelings. In the case of hatred or hostility it must be manifested in some form of behaviour or threatened behaviour.

It should be noted that the words “stir up” appear in corresponding legislation in the United Kingdom, rather than the word excite. The verb “excite” is used in a slightly unusual sense in section 131 of the Human Rights Act and suggests causation. This means that an “intent to excite” cannot be established without showing an intention to either cause “hostility or ill-will” that did not previously exist, or enhance or increase pre-existing “hostility or ill-will”. It logically follows that preaching hatred to the already converted would not breach section 131.

It will be seen from the above discussion that a greater degree of precision is required in the proposed language of the amendment.

Religious\Ethical Belief?

It should be noted that other prohibited areas of discrimination include ethical belief, which is defined as the lack of a religious belief, whether in respect of a particular religion or religions or all religions.

If the Legislature were to be serious and evenhanded about faith or non-faith based types of discrimination, ethical belief should have been included.

Although ethical belief is clearly defined, religious belief is not. What is religious belief. Does it mean theism in the broadest sense or a belief system surrounding a certain faith based credo such as Buddhism, Islam, Shintoism or Christianity. Religious belief, notwithstanding the definition, can and often does include ethical belief. Christianity has significant ethical underpinnings associated with a faith-based credo.

In my view, to be consistent in approach with definition, the term “religious belief” should be replaced with “faith-based belief”. This term is used in the explanatory statement and more correctly defines the nature of the belief and more clearly distinguishes it from “ethical belief”

Harm

The term “harm” is not defined and this should be clarified.

“Harm” is defined in the Harmful Digital Communications Act 2015 (HDCA) as meaning “serious emotional distress”. It should be noted that the HDCA provides remedies for individuals in the context of electronic communications. It is an example of “internet exceptionalism” for the nature of the wrongs specified in that legislation do not exist in the “real” or “kinetic” world.

Within that context there would be difficulties for faith-based groups to establish that harm had been caused to the group rather than to any individuals within the group. The responses of the various members of a group may vary widely to any perceived antagonistic statement.

This highlights the need for precision in the approach to be taken. The “emergency” test would mean an immediacy of threat of physical harm to a group or to members of a group based upon their faith.

As matters stand there is little if any evidence of an immediate threat. The Regulatory Impact Statement which points to a lack of evidence of the harm identified.

In my submission the term harm should be defined as “a realistic threat or danger of physical harm” which would clearly encompass the “emergency” test.

Conclusion

In conclusion I submit as follows:

1. The references to exciting hostility or causing harm should be redefined to for the abrogation of a NZBORA right
2. There should be a clear exception that would allow for spirited, robust and at time confrontation religious debate similar to the provisions of section 29J of the Public Order Act 1986 (United Kingdom)
3. It should be made clear that the protections proposed and available under sections 131 and 161 of the Human Rights Act should not only extend to religious belief but also to ethical belief as defined in the principal Act.

---

[1] Derek Cheng “Winston Peters criticizes Brunei for imposing strict Sharia law” NZ Herald 31 March 2019 https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12217917

[2] Oxford English Dictionary 2^nd ed.

The Fall of Numenor – A Review

“The Fall of Numenor” is a compilation of J.R.R. Tolkien’s writings about Numenor and the Second Age of Middle-earth. It is edited by Brian Sibley and is the most recent of a
number of compilations of Tolkien’s various writings centred around his created mythology. Examples of earlier works include “Beren and Luthien” and “The Fall of Gondolin” (to mention but two) which were edited and compiled by his son and literary executor, Christopher Tolkien.

The raw material, if I can call it that, of these compilations has seen print in various works edited by Christopher, in the form of “Unfinished Tales” and the multi-volume “History of Middle-earth”. Although these works organise Tolkien’s writings (which in the mind of the author were not for publication) chronologically and to a degree thematically, because of the way in which the source material was created – because Tolkien reworked or “retold” much of the material – it has been something of a challenge to get a consistent narrative of any of the stories. Thus the decision was made to re-organise the material into something resembling a narrative, recognising that total consistency of the storyline or the characterisation was not going to be achieved. In many respects the project has been successful, presenting readers with a compilation of otherwise scattered material and the ability to understand the creative process and at the same time enjoy the product of Tolkien’s creative effort.

The passing of Christopher Tolkien, whose last contribution was “The Fall of Gondolin” has not meant the end of the work. “The Nature of Middle-earth” was an edited compilation by Carl F. Hostetter and was published in 2021. Brian Sibley’s compilation of Tolkien’s writings on the Second Age -“The Fall of Numenor” is the latest offering.

The organisation of the material is based on Tolkien’s “Tale of the Years” which is a chronology of the events that preceded the narrative of “The Lord of the Rings” and the chronological entries are supplemented or expanded from Tolkien’s various sources. In addition to providing a history of Numenor the actions of the Dark Lord Sauron are woven into the story, as is the tale of the forging of the Rings of Power. Although the Rings do not feature with any prominence in the tale of the decline and fall of Numenor, Sauron’s part in the story is essential. Although the Dark Lord is more closely associated with the conflict with the Elves of Lindon led by Gil-Galad the involvement of the Numenoreans with the affairs of Middle-earth resulted in Sauron being taken to Numenor (or was his presence there part of his cunning master-plan). Once there he proceeded with the corruption of the Numenoreans which led to the attempt by Ar-Pharazon to travel to and reach the Undying Lands. This breach of the Ban of the Valar led to the destruction of Numenor. Sauron’s bodily form was destroyed but in spirit form he returned to Middle-earth and took up the One Ring.

The “faithful” Numenoreans, led by Elendil the Tall and his sons Isildur and Anorien sailed from the wreck of Nemenor and established the Realms in Exile in Middle-earth. The final conflict with Sauron which saw the end of the Second Age and the loss of the One Ring brings the narrative to an end.

The chronology set out by Tolkien covers thousands of years so necessarily the tale is somewhat episodic in form and where there are expansions – such as the tale of Aldarion and Erendis – the material is inserted at the appropriate chronological spot. Most of the material about Aldarion and Erendis comes from “Unfinished Tales”.

There is little need for editorial comment, which is kept to a minimum. What is helpful is that much of the narrative is fleshed out from other sources including “The Lord of the Rings” so that the reader has an editorially complete picture of the subject matter at hand.

Much of the style to tale telling is in Tolkien’s “grand manner” which characterises the narrative in “The Silmarillion”. Readers familiar with that work should have little difficulty with “The Fall of Numenor” but those looking for a narrative similar to “The Lord of the Rings” will be disappointed. Tolkien’s “grand manner” is characteristic of most of the writings about the First and Second Ages. Those seeking an expansion of “The Tale of the Years” chronology will be well rewarded. Bringing all the material into the compass of a single book and in such an organised form is extremely helpful. In addition, as I have suggested, the hand of the editor is very light. Sibley has organised the material with care and, as an editor should, has allowed Tolkien to speak for himself.

“The Fall of Numenor” is a welcome addition to the Tolkien library. I describe it as thus because for me the Tolkien Canon are those works published while Tolkien was alive or which was in preparation when he passed – thus “The Silmarillion” is included. However, the timing of publication is interesting if only for the fact that the very same story that is told in “The Fall of Numenor” is the subject of Amazon’s “The Lord of the Rings:The Rings of Power”.

The release of the book must be a huge source of frustration for the show runners of the Amazon project because what they can use (and for television only) is the material within the covers of “The Lord of the Rings”. None of the material dealing with the Second Age which has been published elsewhere – like “The Silmarillion” or “Unfinished Tales” for example – can be used. Thus, the details of the story line in “Rings of Power” must be derived from LOTR or from the imagination of the writers. I am sure that the writers must look greedily at “The Fall of Numenor” but with great frustration, knowing that, like the Undying Lands to the Numenoreans, the content is forbidden them.

Of course, the publishers will benefit. Interest in “The Rings of Power” will drive those who are keen to know the detail to consult – and hopefully buy – “The Fall of Numenor”. And that will spark debate as the inevitable comparisons between text and imagined adaptation are compared and contrasted.

I know there was a body of thought that rejected Peter Jackson’s adaptation of LOTR saying that it was not true to the text, or that pieces had been missed out. One immediate problem with “Rings of Power” is, as I have suggested elsewhere, the compressed time line. Readers of “The Fall” will find a more majestic development of Numenor with clear line towards decline and fall which is all going to occur rather too suddenly in “Rings of Power”. And that is just a beginning. The detail will provoke its own debates and discussions and I imagine that gatherings of Tolkien aficionados either in person or online will have fertile ground for lengthy debate.

But as I have said, the book is a useful addition to the library, presents the material in a coherent and logical form and is a most enjoyable read. It is recommended that readers set aside a few hours to really immerse themselves in the text. This is not a book for reading a paragraph at a time.

1 January 2023.

“The Lord of the Rings: Rings of Power” The First Season Review

I reviewed the first four episodes of “The Lord of the Rings: The Rings of Power” in September 2022.

The first series is completed and is available on Amazon Prime. In this review I shall make a number of observations about the series which could amount to “spoilers”. Readers are warned.

By the end of the first series we have seen the creation (or ruin) of Mordor by a bizarre combination of fire and water, the creation of the three Elven Rings (Vilya, Nenya and Narya) and the appearance of Sauron (who had been present for some time in the guise of a Deceiver). In addition the Stranger who fell from the sky, and who is possessed of enormous power, has decided to head east of the Greenwood in the company of Nori the proto-hobbit. The forces of Numenor lead by Tar-Miriel the Regent Queen and Elendil, prompted by Galadriel, have landed in Middle-earth, encountered and overcome the Southern band of Orcs and have installed Halbrand as the Returned King of the South. However, in the creation (or ruin) of Mordor Tar-Miriel has been blinded and the future of her rule is therefore in question.

I expressed some concern in my earlier review about the truncation of the time line. I was prepared to allow for narrative flow and the nature of adaptation in my earlier review, but the compression of events creates its peculiar difficulties with Tolkien’s chronology which demands a scope of centuries. What has happened is that everything seems to have tumbled in on top of one another without an opportunity for the  audience, or indeed the characters, to react to the impact of the various events.

Part of the problem lies in the fact that Tolkien aficionados will be aware of the content in “The Silmarillion” and “Unfinished Tales” along the “The Children of Huirin”, “Beren and Luthien” and “The Fall of Gondolin”.  Then there are the various retellings and narrative developments in the multi-volume “History of Middle-earth”(The “Fall of Numenor” which is directly relevant to the series and edited by Brian Sibley has only very recently been published).

Because of the arrangements that were made between Amazon and the Tolkien Estate only a very limited amount of material is available for use, and the show-runners have to fill in some rather large gaps – gaps for which information is available but because of licensing arrangements cannot be used.

Thus we get hints of a deeper time, a long past history, an enormous conflict between the Elves and the powers of Evil in the form of Morgoth, but as to the detail of Morgoth’s villainy, the making of the Silmarils (and what they were) by Feanor, their theft by Morgoth and the fearful acts of Feanor seeking the Silmarils driven by deep revenge there is but a hint. But these aspects are vital to an understanding of the events of the Second Age.

We receive hints of the Bliss of Valinor, a land without stain and a place of retreat for the Elves but we are not informed of the fact that while Elves have a duality of nature, the Race of Men have the Gift of Men – death – and cannot pass into Valinor – with one exception.

The glory of Valinor is hinted at when Celebrimbor is attempting to make the Three Elven Rings. He requires metal of a quality unknown in Middle-earth. Galadriel surrenders the knife given her by her brother Finrod (she did in fact have three other brothers and she was a niece of Feanor himself) which is melted down and provides the purity of material required.

At the beginning of the series Galadriel is on a quest for Sauron whom she believes survived the overthrow of Morgoth – but of that overthrow once again we get a hint. Importantly we are not told that in fact the land of Numenor was granted to the faithful Men as a reward for their part in the overthrow of Morgoth. Nor are we told of the prohibition on the Men of Numenor sailing westward to Valinor the peaks of which can be seen over the ocean.

In the First Age one man only set foot on Valinor – Earendil, bearing a Silmaril who sought the aid of the Valar in the war against Morgoth. That aid was forthcoming, but Earendil was not permitted to return to the land of the living and was places as a Star in the heavens by the Valar – The Flammifer of Westernesse.

Earendil is of critical importance in the “back story” to the Rings of Power yet because of the paucity of material in “The Lord of the Rings” that back story cannot be developed as it should be. Earendil was married to the elf-princess Elwing the White. They had two children – Elros and Elrond. After the defeat of Morgoth the children were given a choice of the race to which they wished to belong. Elros chose his “Race of Men” side and became first King of Numenor, taking the name Tar-Minyatur. Elrond chose his Elven side. Once again this is hinted at in comments by the way, but the familial connection between Elrond and the Royal House of Numenor has fallen by the wayside.

From time to time this deeper background is mentioned but only in passing. We are thrown into a sequence of events that obviously has a significant precursor, but the details of that precursor are unknown. Once again the problem lies in the fact that the show runners are limited in the material that they can use. It must be very difficult, I suppose, to have references to Earendil in LOTR and be limited to using those but knowing that there is a huge trove of information available in material elsewhere. But that material is unavailable because the rights have not been purchased.

This then demonstrates the first major difficulty that the first season and indeed the series faces – the material that they can use is very limited indeed. The hints that appear in LOTR and in the Appendices requires a large amount of imagination to fill in the gaps. I suppose a further difficulty lies in the fact that imagination cannot be let to run riot, especially when much of the material which could fill in the gaps is available elsewhere but unusable because of licensing arrangements.

One of the critical questions that the first season answered was “who was Sauron?” The show runners posed a number of tantalizing alternatives. Was he the Stranger, possessed of considerable power, who fell from the sky and was taken in by the proto-hobbits? Was he one of the curious  menacing three white witches? It turned out that in fact they were Seekers for Sauron who mistakenly identified the Stranger as Morgoth’s servant, and the Stranger eliminated them.

Was he, then, the master of the Southern Orcs – the fallen elf Adar. That was fairly easily dismissed. The final revelation that Halbrand was Sauron was a little hard to work out. Part of the problem was that Halbrand didn’t exactly have the charisma (or maybe a better term is menace) for the Dark Lord and Morgoth’s most faithful lieutenant.

But upon reflection finally identifying Halbrand as Sauron was in the nature of finally revealing a deception. That is consistent with the approach that Sauron adopted when he manifested himself as Annatar – the Bringer of Gifts. His entire approach was one of deception, even to the point of claiming to be the lost King of the Southern Lands (which later became Mordor). At one stage, while working as a smith in the forge of Celebrimbor, he makes reference to a gift – a subtle hint to his identity as Annatar.

It is a bit difficult to work out what Sauron is about. What are his objectives. That he was involved at least in the early stages of Celebrimbor’s quest to find a solution for the problems that beset the Elves in Middle-earth is a little concerning, yet he was not in any way involved in the creation of the Three Rings. And indeed the creation of the Three seems to be more a matter of accident than of part of a greater ring-making design.

Tolkien tells us that the Elves of Eregion made the Three in secret, but I always had the impression that this was contemporaneously with Sauron’s master-plan to create Rings for the peoples of Middle-earth that would be linked to the One that was forged in the fires of Mt Doom.

So far there is no sign of the Seven Rings for the Dwarves nor the Nine for Mortal Men. And indeed the last episode of the first season ends with Sauron entering the newly formed land of Mordor which was previously the South land of which he claimed to be King.

Clearly there is a lot more to come and I imagine that subsequent seasons will address the issues of the forging of the Seven, the Nine and the One. It must not be forgotten too that Sauron is humbled and taken to Numenor where he works his evil and his deception that brings about the downfall of the Land of Gift.

Clearly there is more scope for this in subsequent seasons, but one of the problems that the show runners are going to face is one of their making and that is the one to which I have made reference – that of time compression. How they will be able to fit all that is to come within their time scale and yet maintain the integrity of Tolkien’s vision will be a challenge.

The Dwarves and the proto-hobbits caused me some problems in the sense that the way that they were portrayed had elements of a caricature to them. Clearly the visual appearance of the Dwarves owed much to the way in which some of them were portrayed in Peter Jackson’s “The Hobbit” films, particularly to the large proboscis-like noses. I thought that this was a bit overdone.

The proto-hobbits too had elements of caricature to them. We know from the Prologue to “The Lord of the Rings” that the hobbits began as a migratory people who ended up in the Shire. We know that they were based on the archetypal English yeoman based in the country rather than in a larger town or village. But the prot-hobbits were not only bucolic but downright eccentric. They seemed to bumble about in a chaotic manner with very little structure in what they did. Their attitudes were those of extreme rustic primitivism to the extent of having foliage in their hair. This may have been designed to bring a light-hearted element to the show but there is humour on one hand and downright caricature on the other. If the proto-hobbits are going to play a role – and I suspect that they are – it might be better if they “wise-up” a bit and drop the bucolic caricature.

As things stand by the end of the first season the split between the main body of the proto-hobbits and the adventurous Nori has taken place as Nori accompanies the Stranger to the East. The Dwarves maintain their tenuous relationship with the Elves – especially the friendship between Elrond and Prince Durin and the discovery of mithril (and the existence of the Balrog in the dark depths of Khazad-dum) has become the central feature in that relationship.

I wonder if the mithril has been invested with a bit too much significance in “Rings of Power”. In “The Lord of the Rings” it was a thing of wonder, often hinted at when it was discovered that Frodo was wearing a suit of mithril mail.

However, the “Rings of Power” took the significance of mithril to an entirely different level and not one that I am sure is justified. There is a suggestion that somehow mithril has within it the light of a Silmaril or perhaps even of the Two Trees of Valinor.

It is dealt with in the following way:

Elrond recounts an apocryphal tale called The Song of the Roots of Hithaeglir. This song claims the origin of mithril to be when an Elf-warrior and a Balrog fought over a certain tree in the Misty Mountains that contained the light of the last Silmaril. It was then that lightning struck the tree, sending out tendrils of ore into the roots of the mountains beneath. Gil-galad and Celebrimbor believe this tale to be true, and furthermore that the remnants of the Silmaril’s light in mithril could save the Elven race from fading and being forced to return to Valinor.

This is an interesting concept but has no substance in the sources. There is no suggestion anywhere in Tolkien’s writings that there was a tree in the Misty Mountains that contained the light of a Silmaril – nor anywhere else for that matter. The light of the Trees of Valinor was captured by Feanor in the Silmarils and that is as far as it went.

The closest one could get to any suggestion of ethereal light is that the Elves of Eregion made an alloy from mithril called ithildin (“star moon”), used to decorate gateways, portals and pathways. It was visible only by starlight or moonlight. The West Gate of Moria bore inlaid ithildin designs and runes.

The Elven Ring Nenya (The Ring of Adamant) was described as being made of mithril and set with a “white stone”, presumably a diamond (this is never stated explicitly, although the usage of the word “adamant”, an old synonym, is strongly suggestive). The ring was wielded by Galadriel in Lothlórien, and possessed radiance that matches that of the stars. Frodo Baggins was able to see it by virtue of being a Ring-bearer.

So the first season ends with a number of pieces in play. The scene has been set for further developments in following seasons. It would be idle and unprofitable to speculate on what might happen although we do know that Pharazon the Numenorean Chancellor usurps the throne of Numenor, becomes Ar-Pharazon the Golden, humbles Sauron and brings him to Numenor. He falls under Sauron’s sway and leads an expedition to Valinor, the Undying Lands, whereupon his fleet is destroyed and the Valar call upon Iluvatar to destroy Numenor which sinks beneath the waves.

Sauron in spirit form returns to Mordor and resumes residence in the Dark Tower, Barad-Dur. Seven ships, bearing the Faithful, Elendil the Tall, his son Isildur and their followers, sail to Middle-earth to establish the Kingdoms in exile. The Seven Dwarven Rings and the Nine for  Mortal Men doomed to die are yet to be crafted, as is the One.

I have focused in this review upon certain aspects of the first season. As I suggested in my earlier review of the first  four episodes there are beautiful moments in the series that capture my imagining of Tolkien’s creation. This continues throughout the first season. The visual renderings are remarkable and the wreck that leads to the formation Mt Doom of Mordor is quite spectacular. As I observed in my earlier review, much is owed to Jackson’s earlier visualization.

The rendering of Numenor – a civilization of power and magnificence – is excellent and some of the scenes in Lindon capture the Elvish interrelationship with nature. The Dwarf realm of Khazad-dum is likewise magnificently rendered and the series succeeds visually if nothing else. As earlier observed there are some casting issues that I have which grate a little. I didn’t see Celebrimbor as a somewhat effete alchemist – rather a hands-on smith and inheritor of the craft skills of Feanor. Gil-Galad remains a disappointment.

The cast and crew went back to work in early October 2022 filming this time in the UK rather than in New Zealand. Although Covid interrupted the first season filming which took 18 months to film, there can be no doubt that many of the special effects and other production values would have taken time.

The head of Amazon Studios Jennifer Salke has said they are not willing to rush and she told Variety

“We want the shortest time possible between seasons, but we want to keep the bar just as high. So it’ll take what it takes but there’s been some urgency around moving quickly, which is why these guys have been writing all through their hiatus. We’re moving fast.”

Season 2 may be out in late 2023 (one wonders if like the release of the books Amazon holds to a September release date) but early 2024 would probably be more realistic. It will be interesting to see how Season 2 develops the story.