Digital Content Delivery: “Star Trek: Discovery” and the Digital Paradigm

In the interests of transparency I should disclose that I enjoy reading and watching science fiction. I was lucky enough to be around when the first three seasons of “Star Trek” screened on TV. I enjoyed it then and I have enjoyed all the various developments that have taken place in the Star Trek Universe including the recent series on Prime Video featuring Patrick Stewart as Jean-Luc Picard from “Star Trek: The Next Generation. I don’t think Gene Rodenberry ever imagined ST would be as big as it has become.

I watched the first three series of “Star Trek: Discovery” on Netflix and was impressed with the way that the stories and the characters developed. It was a nice touch to link back to the pilot of the 1960’s series and allow the character of Captain Christopher Pike to develop. I was looking forward to see where Ðiscovery” would “boldly go” (the most famous split infinitive of the twentieth century) on Netflix this week. That was not to be and this post discusses some of the issues surrounding streaming content availability and the outdated delivery strategies that still persist in the minds of many content distributors.

And I am looking forward to seeing Denis Villeneuve’s interpretation of “Dune” – not on a small screen but on as large a screen as possible – one that is big enough to accommodate Shai-halud

Fans of Star Trek – Discovery waited with anticipation for the release of Season 4 scheduled for the second week in November on Netflix which had streamed the three earlier seasons.

In the United States Discovery had streamed exclusively on CBS All Access now known as Paramount +. In a move that surprised Discovery fans worldwide Paramount + removed the rights previously held by Netflix outside of the US. The season – along with the earlier Discovery seasons would show on Paramount + – presently available in the US and some other countries.

This disappointing incident is not the only one as content providers have begun to realise the significance and value of the streaming market. As Netflix propularity increased Disney recovered the streaming rights to its catalogue and launched Disney + in November 2019. Discovery +, HBO Max and Britbox have acted similarly.

This creates a problem for audiences – the consumers to whom content is directed. Rather than having a one stop shop, audiences now have to subscribe to a number of streaming platforms and, of course, pay a separate fee for each one. And in many cases these services are not available worldwide.

This scramble for the streaming content market is another example of the inability of the big content providers to understand that we are no longer in the exclusive market paradigm that was dominated by geographical and staged releases, but in the global digital paradigm.  And this lack of recognition goes back to the early days of the digital paradigm when games and DVD’s contained geoblocking mechanisms, making them unviewable in certain areas of the globe.

There was a way of circumventing the geoblocking code that was in DVDs and the content providers were quick to ensure that the circumvention of technological locks was equated with copyright infringement.

I should point out that what follows is a very simplistic discussion of a very complex and nuanced area of law and should not be taken as a full and authoritative discussion of all the issues and implications.  

Amendments to the New Zealand Copyright Act 1994 adopted a sensible approach to the issue of circumvention of blocking codes which are called technological protection measures (TPM). Unlike the approach in the US which makes any form of circumvention of a TPM unlawful, the New Zealand approach is to look at the purpose of the TPM circumvention. If it is for the purposes of copying the content it is unlawful and is associated with copyright infringement. If, however, it is for the purposes of accessing the content then the TPM can be circumvented.

Although DVDs are somewhat passe the following illustration may assist. DVD distributors would and still do market their products for certain regional zones. Zone 1 is the US, Zone 2 is the UK and Europe and Zone 4 is Australia and New Zealand. DVD players sold in those countries were engineered in such a way as to allow only DVDs for the particular zone to be used on them. That is why, if you purchase a DVD from Amazon you may receive a warning about Zone incompatibility.

Zoning or region coding was devised by the content distributors solely to assist in their market segmentation and distribution arrangements. In some cases DVDs could be released in one zone or region well before release in another. Region or zone coding which limits access and use of a DVD is a TPM.

I purchase a DVD from Amazon that is a Zone 1 DVD – that means it can only be played using a Zone 1 compatible player. I have a Zone 4 DVD player. I have paid for the DVD and should be able to enjoy my purchase. Putting to one side the contractual terms and conditions that may be on the DVD package advising that I can only play the DVD on a Zone 1 player, I am prevented by the TPM from playing the DVD and enjoying the content. No aspect of copyright infringement comes into play in this scenario.

I manage to secure a circumvention device for my player that makes it region free. That means I can play a DVD from any region on my player. The only purpose of the circumvention device is to allow me to do that – it enables me to access the content.

If, however, I obtained a circumvention device that allowed me to unscramble the content scrambling system that prevented copying the content on the DVD and used it to make multiple copies of the DVD then that would be copyright infringement.

The reality of the situation these days is that most DVD players are region free as are some Blu-Ray players. Region coding used to be used by Playstation but Playstation 5 games are not region locked. However, the discussion about region coding serves to illustrate how content distributors engage in market segmentation which is a hangover from the earlier pre-digital movie and TV show distribution models.

The Digital Paradigm has allowed for instantaneous world-wide access to content but the earlier geo-segmented model remains, even with streaming services. The Netflix content that is available in New Zealand is not identical to the content that is available in the US.

Amazon has an interesting streaming model. I subscribe to Prime Video (www.primevideo.com). That allows me to view a wide range of content for a reasonable fee, paid through my Amazon account.

If I access Amazon’s homepage I can get to another flavour of Amazon video content (also labelled as Prime Video). This Prime Video has some content that is not available via my account, even although I may be logged in. In a banner at the top of many of the pages is the message

“Based outside of the U.S.? Some titles might be unavailable in your current location. Go to PrimeVideo.com to see the video catalog available in New Zealand.”

The Prime Video site from the Amazon US webpage also offers a large number of subscription channels including Paramount + and the facility is available to subscribe. The problem is that I cannot do that. But the approach is even more subtle than one that is based on my IP (Internet Protocol) number. It is based on the type of credit card that I use for my Amazon account and that credit card is issued in New Zealand. A message advises me, when I try to subscribe, that

“To subscribe, a U.S. payment method and billing address are required.”

That means that I must have a US issued credit card with a payment address located in the US. And Amazon doesn’t use Paypal.

Now this may suggest that the colour of my money is important and in some respects it is, but if Amazon is happy to accept my New Zealand credit card for purchases and my Prime Video subscription, why aren’t they prepared to accept the same payment method for subscription to one of their channels? Should it matter that I am watching the content from New Zealand?

The ”colour of money” issue is important because it is offered as an answer by content providers to those who tried to circumvent streaming geoblocking by the use of Virtual Private Networks (VPNs) to access content. The VPN effectively disguises the location of the computer or device attempting to access the content and as long as the credit card was valid payment could be made. So the content providers used the payment method to maintain their geoblocking model  adding another layer of difficulty to the access of content.

Of course it is possible to set up a US address and apply for (and obtain) a US credit card but as I have said there are layers of difficulty to that proposition including managing ongoing payments to the credit card provider and the time arrives when it all becomes too complicated and it just isn’t worth the candle.

Maybe it is time to revisit the entire distribution model and recognize something that content providers have been slow to recognize and that is that the Digital Paradigm brings with it paradigmatically different expectations of information and content availability.

In the early days consumers resorted to piracy to obtain content to which they thought they were entitled and which they thought should be free. The file sharing platforms such as Napster, the Pirate Bay, Megaupload and Limewire were shut down over the first decades of the 21^st Century. In New Zealand file sharing was addressed by special provisions of the Copyright Act (Sections 120 – 122U). The last complaint about file sharing was heard in 2015.

One of the reasons why file sharing has fallen off has been that content providers have adopted different business models and users are prepared to pay a reasonable figure for content rather than go through the hassle of Bit Torrent (and other forms of file sharing)  and the security risks to systems posed by unscrupulous copyright infringers. That is not to say that piracy doesn’t occur. It is just a little less obvious and a lot less acceptable than it used to be.

Copyright protection via digital rights management of CDs came to an end when EMI abandoned this form of TPM in 2007. Music in particular became available for very reasonable prices and “song by song” rather than as one song on a CD. Itunes and Spotify have adopted business models that are attractive to consumers including free streaming music from Spotify if one does not object to the occasional intrusive advertising announcement.

Yet video content distributors still do not seem to have adapted to a new model that could continue to maintain and maximise profits. One could complain that there are too many channels, some of them quite specialized.

For example the documentary channel Docplay (www.docplay.com ) had a two part series available entitled “Laurel Canyon: A Place in Time” depicting the Los Angeles music scene in the later 1960’s, an excellent and beautifully made documentary and which I recommend if you enjoy Sixties Californian music. With a little manipulation this series was freely available because Docplay offers 14 days for free. What that means is that a user can access the site for 14 days without paying, but on signing up one has to provide credit card details and the like and if the subscription is not cancelled the payments begin. So the onus is on the user to ensure that the account is cancelled before the 14 days expires. But one of the attractive features about Docplay is that it is not geoblocked – it doesn’t matter where you are or what device you are using to access content.

So the question falls to be answered – if Docplay can do this why not everyone else. And why make some content available to some audiences and not to others. If consumers are prepared to pay the content should be available irrespective of borders. The Digital Paradigm enables this and enhances consumer expectations that this should be so. There seems to be no logic that demands the continuation of the geobased market segmentation model.

Chris Stokel-Walker points out in “Star Trek: Discovery Is Tearing the Streaming World Apart” that

“The average American household accesses eight streaming and video on demand services in a given week, according to data gathered by technology research company Omdia—though that includes free catch-up services and websites like YouTube. In the UK, the average is nearer six to seven, and in mainland Europe, five to six. “For the audience there’s no difference,” says Tony Gunnarsson, principal analyst of TV, video, and advertising at Omdia. “They dip in and out of everything that’s available.” But as major media companies like ViacomCBS, which are racing to catch up to Netflix, attempt to claim space in the streaming industry, it’s only going to get messier for consumers.”

One improvement could be made, and this I draw from the Itunes model. Rather than a subscription payment to a content provider why not introduce a pay per view model. I am not going to watch all of Netflix’ offering. I am going to watch a few programs from Disney+ or Prime Video. Why not fix a reasonable fee to watch a selected program without the necessity for a monthly drain on my credit card.

In the mean time – what has happened to Star Trek Discovery.

Stokel-Walker makes the point

“For Star Trek lovers, keeping up with the universe of content is difficult enough as it is, regardless of where you’re based. While ViacomCBS decided in October 2021 not to renew its streaming licenses for the classic series of the intergalactic show in the United States, international viewers like Leckie are currently still able to watch six separate shows tied to the brand on Netflix. Spin-off shows Picard and Lower Decks, an animated comedy, are available on Amazon Prime Video internationally and Paramount+ in the United States, while kids’ series Prodigy looks likely to land on Paramount+ too. “It’s bonkers,” says Gunnarsson. “A whole range of legacy rights are still active. Right now, this leads to a lot of confusion and frustration for customers, but in the long term these things will be ironed out and you’ll find all the IP for one series within their owner groups’ designated streaming platform.”

And what’s confusing for fans to understand is downright impossible for more casual viewers. Star Trek became such a totemic cultural touchstone because of its enormous viewership, built up at a time when there were far fewer options to choose from on television.”

A partial (and unsatisfactory) solution is available. It depends on the availability of Paramount + or the Pluto SciFi channel

Where Paramount+ is available in Australia, Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Denmark, Dominican Republic, Ecuador, El Salvador, Finland, Guatemala, Honduras, Mexico, Nicaragua, Norway, Panama, Paraguay, Peru, Sweden, Uruguay, and Venezuela, the first two episodes will be available Friday, November 26, with new episodes being released weekly. Star Trek fans in these markets are offered a new membership promotion on Paramount+ for 50% off for the first three months with code STARTREK.*

In Austria, France, Germany, Italy, Spain, Switzerland, and the United Kingdom, Pluto TV, the leading free streaming television service, will drop new episodes at 9pm local time on the Pluto TV Sci-Fi channel each Friday, Saturday and Sunday, with a simulcast running on the Star Trek channel in Austria, Switzerland, and Germany. This will begin with the first two episodes on Friday, November 26.

In the UK, Germany, France, Russia, South Korea and additional select countries, Season 4 is available for purchase on participating digital platforms beginning Friday, November 26.

In the meantime Paramount + is going to launch in Australia. The date set in this report was 11 August but as yet (November 2021) it isn’t available. It could all be so much easier if the content providers would catch up with the Digital Paradigm and its implications. It isn’t just about the simple delivery of content based on an outdated and anachronistic business model from another time. It is about matching consumer expectations and innovating delivery of content. The big entertainment industry has been traditionally slow to recognize that the Digital Paradigm provides fresh opportunities but also requires a willingness to recognize continuing disruptive change.

Liberty, Freedom and the Lessons of History

There is a point of view that suggests that the current rhetoric on “freedom and rights” derives from American conceptions of individualism and individual freedoms. This point of view has been articulated by Nicky Hager who expressed a justifiable concern that many of his associates were being swept up and high-jacked by unsavoury elements whose principles and values were antipathic to theirs.

In his discussion however, he made the following observation about the concept of freedom. In suggesting that there is a Trumpian influence through the rhetoric of many of the protesters he observed that US ideas about freedom meant

“freedom of the individual to do what they like and stuff everyone else. In New Zealand, the dominant values are much more about community and caring for each other. Freedom sounds good, but it’s a slogan for deeply conservative and unattractive ideas that deny or avoid the responsibility we have for others.”

Hayden Thorne makes a similar suggestion within the context of the rhetoric about the rights of the individual to refuse vaccines and keep a jobs.  He argues that this is an import from the United States and goes on to suggest that first it corrupts the importance of American constitutional freedoms and shows a serious misunderstanding of our culture and constitutional structure.

To suggest that the concepts of individual rights and freedoms are an import from the United States is incorrect.

Freedom  – or liberty as I prefer to call it – is not a peculiarly American ideal and historically its concepts extend further back in history than the American Revolution.

Perhaps one of the most articulate and eloquent expressions of the nature of liberty (or freedom) came not from America but from the pen of the English philosopher John Stuart Mill in his classic “On Liberty”.

Mill considered that the tyranny of government needed to be controlled by the liberty of citizens.

 There were two ways in which this came about. Citizens had inherent rights and citizens thereby established constitutional checks on the government which, with the consent of the community, represented its interests. These checks imposed conditions on the governing power, thus preventing its absolute exercise.

In some respects this hearkened back to Enlightenment thinking about the nature of Government expressed by Thomas Jefferson (along with John Adams and Ben Franklin) in the Declaration of Independence

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”

We can see in that statement the emphasis is on individual rights. The duty of Government is to secure or ensure these rights and then powers of the Government to do so derive from the consent of the governed.

However, although these ideas received their best known expression in the Declaration of Independence they were founded upon the writings and thinking of the English philosopher John Locke and in particular his Second Treatise on Government. Locke identified life, liberty and property as the three fundamental rights and that a Government existed, among other things, to promote public good, and to protect the life, liberty, and property of its people.

Thus we can see a thread running through the argument of liberty as an aspect of individual identity which should be protected by and yet from the Government. If a Government fails to ensure the protection of life liberty and the pursuit of happiness, the consent of the governed may be withdrawn and the Government loses its mandate to govern. But Mill was very clear on the extent of government power as it affected the individual

“That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant … Over himself, over his body and mind, the individual is sovereign.”

This did not arise from a concept of natural rights because Mill based his standard on utilitarian principles and arising from that there were three basic liberties. Mill ranked these in the following order:

1. The freedom of thought and emotion. This includes the freedom to act on such thought, such as the freedom of speech
2. The freedom to pursue tastes (provided they do no harm to others), even if they are deemed “immoral”
3. The freedom to unite so long as the involved members are of age, the involved members are not forced, and no harm is done to others

Mill conceded that in certain situations and circumstances  these freedoms can be overridden but in modern and civilized society there was no basis or justification for their removal.

As has been noted, Mill ranked freedom of thought as the most important basic liberty. Opinions ought never to be suppressed. Indeed he recognized that there may be false beliefs, beliefs that are partly true and those what are wholly true. All of these provide some benefit to the common good. He wrote:

First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.

One of the major criticisms of the current “rights” or “freedoms” rhetoric is that it is selfish and self-centred. There are several ripostes to this.

The first is that rights in and of themselves are inherently individualistic. Individuality is by definition the thriving of the human person through higher pleasures as Mill put it. Individuality promotes creativity and diversity and, as a corollary to that, conformity carries with it dangers.

Secondly, the word “selfish” in modern parlance is a term of criticism rather than a term of celebration. The first objective of an individual is to ensure his own survival. Only then can he enjoy the liberties that accompany that survival. “Selfish” is used to describe this but “self-interest” and “self-determination” probably are better encapsulations of these aspects of individual liberty. As opposed to this is altruism.

Altruism is all very well if it is freely assumed as a conscious choice. The problem is that enforced altruism – that it is a moral obligation to live for the sake of others – is a moral obligation that at times is incorporated into law. But there are frequently times when enforced altruism challenges self-interest or requires an individual to accept a lesser enjoyment of life than that they may otherwise achieve by virtue of their own efforts.

In considering, therefore, the nature of liberty, Hager’s comment “freedom of the individual to do what they like and stuff everyone else” – is not only a rather ineloquent albeit incorrect articulation of an aspect of self-interest and self-determination but it is wrong. Hager balances this against what he describes as what he describes as New Zealand values of being more about community and caring for each other. In this way he argues that rights-based rhetoric is inimical to the caring community but it is not. A community is comprised of individuals rather than of a hive-mind.

Each individual enjoys liberty as described by Mill. Within that liberty there is the liberty of choice – the choice to remain aloof from or become involved as John Donne put it “in mankind”. It is my choice to care for my neighbour and to assist my neighbour but not to the detriment of my own existence. Liberty is not for the purpose of selfish indifference which may be the real root of Mr Hager’s complaint.

But liberty ensures that that a person should be left as free to pursue his own interests as long as this does not harm the interests of others. Mill’s system of liberty was intended to bring greater benefit to an individual than physical or emotional coercion. This means that a person may, without fear of sanction, do harm to himself. The only time that a Government should impose a sanction on a person would be for neglecting to fulfill a duty to others (or causing harm to others), not the vice that brought about the neglect.

The difficulty that has arisen lies in the polarization of points of view. For some extraordinary reason those who advocate for liberty are being equated with organisations that have little interest in the true nature of liberty or freedom characterized by Mill or by Enlightenment thought. There is little doubt that some of those organisations are fellow travellers with those who currently advocate for freedom or for liberty but this does not mean that they have high-jacked the theories of liberty nor the practice and reality of liberty.

Rather it seems that certain elements seem to apply a stereotype to those who advocate for freedom that may not be justified and that, like most stereotypes, ignores individual difference and diversity.

This leads me to a few observations on Mr. Thorne’s position. His starting point is that we should learn from history, but he has overlooked the history of the philosophical underpinnings of liberty . That is demonstrated by his assertion that “individual rights dialogue was corrupted by the American right – in particular, the religious right – to protect what it saw as important, at the expense of other groups in society. Debates about abortion and gun control became infected with an emphasis on individual rights.”

I would suggest that the individual rights dialogue referred to by Mr Thorne pre-existed the 1970’s and the rise of the religious right, as I have already demonstrated[1]. That the dialogue started to be used as a justification for elements of various societal debates is neither unusual nor concerning.

Indeed the debate about abortion in the US is between the individual self-determination that a woman has to terminate a pregnancy on the one hand (grounded as Mr Thorne will be aware from his study of Roe v Wade and the cases that preceded it like Griswold v Connecticut not only in individual rights but underpinned by privacy considerations)  and the rights of the unborn child (as an individual) on the other. These tensions are well known and common when the law and differing moral standards collide.

The debate about gun control is grounded upon the various nuanced interpretations of the Second Amendment to the US Constitution and again involves a conflict between rights – one grounded in a constitutional instrument and the other on aspects of individual safety – again a tension between competing interests with which the law is familiar.

I do agree with Mr Thorne that to try and import US Constitutional theory into New Zealand law misunderstands our constitutional arrangements. Unlike the US Constitution and its Amendments, we do not have a “higher law” that can be employed to test the legitimacy of Acts of Parliament. The New Zealand Bill of Rights Act 1990 (BORA)  is more an aspirational piece of legislation than a constitutional one. It argues that in interpreting the law Judges should apply a “Bill of Rights friendly” approach – I know this is a gross oversimplification of the nuances of section 6 BORA and for that I apologise. On the other hand there is a specific provision – section 4 – that prevents a Court from holding that an enactment is invalid because it is inconsistent with the Bill of Rights Act. Thus it is not possible for a New Zealand Court to declare a piece of legislation unconstitutional as the US Supreme Court has been able to do since the early Nineteenth Century.

But that does not mean that the various individual rights of life, liberty and the pursuit of happiness and property have vanished, simply because constitutional arrangements are different. Although BORA may not occupy the supreme position of the US Constitution, it does articulate a number of rights such as freedom of expression (to impart and receive information) in section 14, freedom of movement in section 18, freedom of association in section 17, freedom of peaceable assembly in section 16, freedom of thought, conscience and religion in section 13, the right to refuse to undergo any medical treatment in section 11. These and the other rights contained in BORA (I have cited a brief selection)  are a bottom line. If the Government wishes to enact legislation that is inconsistent with BORA the Attorney-General must advise Parliament – section 7. That advice has rarely prevented inconsistent legislation being enacted but at least the Legislature is put on notice.

Furthermore any existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part – section 28. Thus the rights in BORA are not exclusive.

Another important point about the BORA rights is that they are primarily individual rights and provide a measure against which the acts of the legislature, executive and judiciary may be tested along with the actions of any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law. Thus BORA acts (or should act) as a restraint on Government power which may involve interference with the rights of individuals.

It will be well-known that over the last two years the powers invoked by the Government have infringed upon and have abrogated many of the rights of New Zealand citizens that are contained in the BORA. In fact the exercise of these powers have resulted in a reversal of the principle that everything that is allowed unless it is prohibited to one (during lockdowns) of everything is prohibited unless it is allowed.

It is therefore not unexpected that individuals may feel concerned or upset that their individual rights have been and continue to be infringed, and that they may wish to express themselves and their dissatisfaction. But in doing so they are calling not upon Trumpism or the reinterpretation of rights rhetoric by the American religious right but on a long history of protest against the wielding of arbitrary Government power against individuals that goes back beyond Mill and Locke and indeed as far back as the Glorious Revolution of 1688 and the Petition of Right of 1628.

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[1] I imagine that Mr Thorne is familiar with Rick Perlstein’s tetrology “Before the Storm”, “Nixonland”, “The Invisible Bridge” and “Reaganland”. If he is not I recommend them.

Self Evident Truths

There was an interesting juxtaposition of views expressed in the New Zealand Herald on Saturday 6 November 2021. Bruce Cotterill commented on the ease with which the Government has limited out liberty – and continues to do so in his piece “Freedom – It’s not just another word.”

Renee Liang presents a slightly more relativistic approach in her piece entitled “What freedom in Covid times look like from where I stand”.

Ms. Liang expresses concern at what she considers to be the irresponsible exercise of freedom commenting

“ If you, like me, watched aghast as maskless crowds invaded parks and squares, waving signs and demanding we set a date for “liberation”; if you’ve suddenly felt unsure when a colleague starts talking about “my rights”; then you’re not alone.”

I don’t know if I was aghast and I did not share Ms Liang’s obvious irritation. What did concern me was that a large number of people were exercising a right that they once had, but which had been taken away from them by the naked exercise of power, and in so doing risked a sanction that may be imposed for breaking the law.

I suggested that Ms Liang approached the issue of freedom from a relatavistic perspective. The says

“The word “freedom” has always had different meanings for different groups. For some it means a group of people asserting their right to control their own destiny. The fight against slavery, union actions for better working conditions and the Black Lives Matter movement all fall into this category. Closer to home, the New Zealand Wars, the Bastion Point occupation and the Blackball strike are testament that New Zealanders hold the concept of freedom highly. All these movements emphasise a fair deal – for all, not just for the group protesting. They also push for equitable representation in government as a means to maintain freedom.

In contrast, there are those for whom “freedom” means their individual right to enjoy their personal lives and belongings. For these people, any organisation which curtails this – especially the Government – is to be resisted. Throughout history these individual beliefs, quite reasonable on their own, have been harnessed into movements that actually work to curb rights overall. When people fear loss of individual freedoms, it’s easy to scare them into protecting the positions of businesses or specialised political interests. Spoiler: we’re in the middle of one such period in history.”

In delineating the issue in this way she contrasts collectivist “freedom movements” with freedom as an aspect of individual identity and indeed as her article progresses she characterises freedom as something which we can all enjoy as a collective society. That is an outcome devoutly to be wished but in framing the argument as she does, she overlooks an important aspect of freedom or liberty that Mr Cotterill identifies which is an aspect of individuality.

He characterises freedom as

“Freedom to do what we want. A morning coffee with a colleague. A beer with some mates. A swim at the local pool. A barbecue with friends. A visit to my mum. Perhaps a weekend away. Or even the ability to jump on a plane and have a holiday.”

In expressing his perspective in this way Mr Cotterill is in fact identifying certain rights that are (theoretically) guaranteed and recognised by law. The morning coffee with a colleague or the beer with mates is encapsulated in section 17 of the New Zealand Bill of Rights Act 1990 which states (with admirable and eloquent simplicity) “Everyone has the right to freedom of association.”

“A visit to my Mum” once again captures the freedom of association as well as the right to freedom of movement expressed in section 18 which provides “Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand.”

His comment about the ability to jump on a plane and have a holiday again invokes section 18 which provides “Everyone has the right to leave New Zealand.” (s. 18(3)) and “Every New Zealand citizen has the right to enter New Zealand” (s. 18(2)).

These rights were an issue is the recent case of Bolton v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 2897. Mr Bolton applied for an exemption from the requirement to enter MIQ upon returning to New Zealand from a business trip. It transpired that the bureaucratic decision makers did not interpret the legislation under which they were operating in a way that was most consistent with the New Zealand Bill of Rights Act.

After a reconsideration, MBIE granted Mr Bolton’s application although the rather peevish comment by the Minister in charge of the Covid 19 Response Mr Chris Hipkins about rich people buying their way to the front of the queue seems to epitomise left-wing politics of envy. Mr Bolton sought – and obtained – a decision according to law and proper legal process. In so doing he has highlighted the fact that despite the comment by Mr Cotterill that the Government appears to becoming habituated to depriving citizens of their rights, nevertheless those rights still play a part and are a required element in bureaucratic decision making.

On the other hand, in considering the provisions of the empowering legislation (the Health Act 1956) the Court of Appeal in Borrowdale v Director-General of Health [2021] NZCA 520 concluded that there was a justified limitation of the rights under the Bill of Rights Act and the reality was that Parliament intended to authorise the issuance of orders that would curtail the rights of NZ citizens.

It is important to remember that the New Zealand Bill of Rights Act was enacted to secure the rights that it guarantees from interference by the State rather than by private citizens . But the Act does contain a couple of escape clauses. Section 4 states that a court cannot hold a provision of any enactment to be invalid by reason only that the provision is inconsistent with the Bill of Rights Act. The other section indicates that rights are not absolute. Section 5 provides that they may be subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

I am not going to go into a discussion about the provisions of the Health Act 1956. But this is not the only legislation that has been on the books that has had the potential to significantly curtail the freedoms of New Zealanders.

When I was at law school we spent some time studying the Public Safety Conservation Act 1932. In brief this legislation conferred upon the Government very broad powers in times of ‘emergency’ and was invoked with sweeping effects at the time of the 1951 Waterfront Strike. In essence the Act enabled government by Proclamation and regulation rather than by proper Parliamentary process during the time of a declared emergency. It was repealed in 1987. But it is an example of the way in which Governments can arrogate unto themselves sweeping powers that can, with the stroke of a pen, remove the liberties which we enjoy and to which w are entitled

So the concerns that Mr Cotterill expresses about the willingness of governments to interfere with freedoms is well founded. Indeed, history provides numerous examples. Usually there is some form of perceived emergency which justifies the interference with freedoms and often a willing and sometimes reluctant population will go along with that – at least for a while. And such has been the case with the Covid pandemic. His characterisation of the government as “authoritarian” would seem to be reasonable. It was precisely this type of outcome that an MMP Government – one governing by consensus rather than decree – was designed to prevent. Under Mr Cotterill’s “authoritarian” government we can do only what the State allows – a reversal of the principle of law in a democratic society which is that everything is lawful unless the law says otherwise.

It seems that Ms Liang is content with the authoritarian style, focussing on the various group and collective identities that populate her narrative whilst conveniently overlooking the fact that society is comprised of individuals with their own hopes, fears, dreams and desires. But she sees freedom as a collective attribute rather than an individual right. And it is there that she and I part company and why I favour Mr Cotterill’s approach which more accurately epitomises my understanding of liberty and freedom.

The State generously is prepared at some undetermined time in the future to restore to us our freedoms – those freedoms, guaranteed by the Bill of Rights Act – of which it deprived us. Magnanimous of them. And are we to be grateful? As I have said in an earlier post – it is time for the Government to get out of the way.