I think the report is an excellent one, and I am enthusiastically supportive of their proposed model of media regulation in the digital age. There are some risks around the model proposed, but these can be mitigated. Balanced against those risks are considerable opportunities for “new media”.

News media have special protections under the law. The Law Commission recommends “news media” be defined as a publisher in any medium who

1. has a significant proportion of their publishing activities being the generation and/or aggregation of news, information and opinion of current value
2. disseminates this information to a public audience
3. regularly publishes
4. is accountable to a code of ethics and a complaints process

Kiwiblog (not that this is my main concern) would clearly qualify under points 1 to 3, so would need the accountability and complaints process to qualify. Whether or not this is worthwhile, will depend on the details.

A key point made by the Law Commission is:

It is important to note this definition is not intended to exclude others from reporting or commenting on the news. It simply proposes a set of statutory criteria to resolve the current uncertainty as to which groups and individuals qualify for the legal privileges and exemptions assigned to the media.

This is quite crucial, and one of the risk areas of a new definition. At present bloggers are allowed to report on court proceedings, attend Treasury lockups etc. This should continue to occur, even if a blogger does not qualify under the proposed definition. The definition is for qualifying for legal privileges, and should not be used to block genuine access for online publishers.

The key aspect of the Law Commission paper is an independent regulator for all news media regardless of format or delivery platform. This would replace the Govt appointed BSA for broadcasters and the Press Council for print media. There are significant anomalies in the current system, with an example being:

• A video broadcast by a broadcaster is subject to the BSA
• A video placed on a broadcaster’s website is not subject to any regulation
• A video placed on a newspaper’s website is subject to the Press Council

The Commission proposes the following features for a new regulator

1. Independent of both government and the news industry
2. Appointments to the regulator would be by an independent panel
3. Regulator would work with industry on different codes, so bloggers might have their own code (for example accuracy required, but possibly not fairness)
4. Recognised by statute and part-funded by industry and subsidised by the state

I think the independence from Government is crucial. Without that it becomes a path through which the Government could censor the media and I would be against. The details in these areas will be vital.

The subsidy is also a necessary evil. Bloggers are generally non-commercial and you can’t charge a blogger $10,000 a year to come under such a regulator. Likewise, I can’t see APN and Fairfax wanting to pay on behalf of bloggers. The Commission says:

It is in the public interest that as many news publishers, including small startups, belong to such a standards body and a lack of financial resources should not be an impediment to joining. The state and wider public have a strong interest in a robust and ethical news media and we see no reason why this body should not receive state support, provided there are no strings attached to the appropriation.

One of the issues in the paper would be whether membership of the regulator would be entirely voluntary for everyone, or whether commercial media should be required to join.

I believe it should be voluntary for everyone. The incentive to gain the legal protections of being news media should be enough. A key issue will also be what are the powers of the regulator. If they have the power to (for example) suspend a newspaper, then newspapers would not want to join. If the power is to require publication of a finding, and low level fines, then perhaps less of an issue. The print media are the ones who potentially lose a wee bit of freedom in this model, while broadcasters would end up with greater freedom. In a converged world, all media should be on the same level, and so long as the regulator is not Govt controlled I think that is a good model.

The Commission notes:

The large majority of New Zealanders publishing on the internet would not come within the ambit of the new regulatory system we propose. In essence they will be able to exercise complete freedom of speech. They can, without fear of any regulator, be inaccurate in their facts, unbalanced in their coverage and extreme in their opinions. The public can rely on them, or not, as they see fit. They would not be recognised as “news media” for the purposes of the statutory privileges.

They also note that such publishers are still liable to the laws of defamation, copyright, contempt of court etc.

There are other interesting issues the Commission looks at in its paper

• consider introducing a new offence of maliciously impersonating another person
• amend the Harassment Act 1997 to explicitly include cyber-bullying

But rather than have these go to court, which would be over-kill, they float a model of a Communications Tribunal “which could administer speedy, efficient and relatively cheap justice to those who have been significantly damaged by unlawful communications”

I think this aspect is more problematic, while well-intentioned. They do say:

The Tribunal would only deal with cases which it judges would have met the threshold of a breach of the law. It should not be a port of call for those with insubstantial complaints.

My suspicion is it would become exactly that. For such a model to work, it will need considerable safeguards against malicious and trivial complaints designed to (ironically) harass the person complained about.

The Tribunal would not have the ability to impose any criminal sanction they say:

Sanctions and remedies available to the Tribunal would include the ability to award monetary compensation up to a prescribed level; to order publication of an apology or correction; to order that a right of reply be granted; to order that the defendant cease the conduct in question (a type of injunction); and to make takedown orders against either the perpetrator or an innocent avenue of communication such as an ISP. It might also make a declaration that statements made about the victim are untrue. Failure to comply with an order would be an offence.

I do like the notion of the Tribunal being able to make a declaration that statements about a victim are untrue. Defamation is rarely viable for those who have false things said about them online. And victims of lies and slander often just want the truth affirmed, not damages. I do see considerable merit in the concept of the Tribunal. My concerns are around the small number of nutters out there would would try to use it as a form of harassment in itself.

Two safeguards against this might simply be requiring complainants to use their real names to complain. Those who post under an alias can not claim they have been harmed by speech against them when no one knows who they are. A further safeguard would be a requirement to pay a filing fee. This is the most effective way to stop serial complainers.

An alternate option they put forward is a Communications Commissioner as part of the Human Rights Commission. I don’t think this would be a good fit for the HRC, and in fact could distract them from their primary focus.

The paper is (as expected) very well researched, and shows great understanding of the online environment. I encourage people to read it, or at least the summary paper, and give your feedback. It is my understanding that there are likely to be some sort of forums organised where people can attend and discuss and debate the issues and proposals. I’ll blog details of these as they are known.

Finally it is worth noting this is an issues paper, not a final paper recommending action to the Government. That means this is the best time to influence it.

Bloggers are nervously waiting for the publication of the Law Commission’s report on “new media” next Monday.

Former Commerce Minister Simon Power raised their blood pressure when he ordered the review in October last year, commenting that there was a “wild west out there in cyberspace”.

InternetNZ chief executive Vikram Kumar said at the time that if that was what Power really believed, “we’ve got reasons to be very, very worried”.

Power was concerned about breaches of suppression orders, libel on the internet, and whether bloggers and online publications should be subject to oversight by the Press Council or Broadcasting Standards Authority.

Blogger David Farrar, of Kiwiblog, expects a high-brow report but believes it is unlikely the Law Commission will advocate an “uber regulator” for new media.

I wouldn’t say I was nervous about it, but I certainly am interested and looking forward to blogging on the report next Monday. As with most areas of law reform there are likely to be opportunities and risks for those who are online publishers (which is anyone with a Facebook or Twitter account).

• A mandatory cautioning scheme for all personal possession and use offences that come to the attention of the police
• Removing minor drug offenders from the criminal justice system and providing greater opportunities for those in need of treatment to access it.
• A full scale review of the current drug classification system which is used to determine restrictiveness of controls and severity of penalties, addressing existing inconsistencies and focusing solely on assessing a drug’s risk of harm, including social harm.
• Making separate funding available for the treatment of offenders through the justice sector to support courts when they impose rehabilitative sentences to address alcohol and drug dependence problems;
• Consideration of a pilot drug court, allowing the government to evaluate the cost-effectiveness of deferring sentencing of  some  offenders until they had undergone court-imposed alcohol and/or drug treatment

I think the Law Commission’s proposals are very sound, and they are not a “soft line on drugs“, as Stuff says.

Giving people a criminal record over a one time possession of small amounts of cannabis is silly, considering arund half the adult population have smoked cannabis. I’m not one of them incidentially.

I hope the Government does not reject this report knee-jerk, and doesn’t rule out any changes which might lead to better outcomes for New Zealand and New Zealanders. The proposed warning system for drug use provides good incentives for people to stop.

• Travel, accommodation, attendance and communications services for members of Parliament and members of the Executive should be determined by an independent body – an enhanced Remuneration Authority which includes a former MP and a person with appropriate skills and
  experience in the administration of Parliament
• The RA should also determine entitlements to funding and services to support parties’ and members’ parliamentary operations
• The Official Information Act 1982 should be extended to cover information held
  by the Speaker in his role with ministerial responsibilities for Parliamentary
  Service and the Office of the Clerk; the Parliamentary Service; the Parliamentary
  Service Commission; and the Office of the Clerk in its departmental holdings
• The OIA should not apply to information held by members in their capacity as members of Parliament, information relating to the development of parliamentary party policies,  and party organisational material, including media advice and polling information.
• Unauthorised absences of greater than nine days should result in 0.2% of annual salary being deducted a day. That is around $250 a day, up from $10.

Overall this looks very good. I’ve long supported the OIA applying to the financial aspects of Parliamentary Service, but have not supported full inclusion, where someone like me (for example) could send in an OIA asking for all e-mails between Phil Goff and his press secretaries. No parliamentary party could operate with its internal e-mails being made available to the media and other parties.

So I think the Law Commission have done a good job on the OIA side, as their proposals hopefully stand a good chance of being adopted.

The handing over of perks, expenses and parliamentary party funding to an independent body is also an idea whose time has come. Having a former MP and someone with parliamentary administration experience on the Remuneration Authority should mean that its decisions will be made on practical experience, not textbook theory.

I hope the Government, and indeed all parties, support the report. There may be some fine-tuning to be done, but the principles look good to me.

UPDATE: Yay the PM has just announced that the Government has accepted in principle the recommendation to have MPs and Ministers expenses set by an independent body. By the end of this term of Parliament, things will be hugely more transparent and accountable compared to 2008 and before.

Justice Minister Simon Power has asked the Law Commission to review the adequacy of regulations around how the Internet interacts with the justice system.

“I’ve ordered this review because it’s imperative the law keeps pace with technology and that we have one set of rules for all news media,” Mr Power said.

I am a supporter of there being a review, and have in fact advocated for it. But I have to say the way the Minister has framed it is regrettable and rather confrontational.

First of all it may make a nice slogan, but the status quo doesn’t have one set of rules – broadcast media have very different rules to print media.

“At the moment we’ve got two tracks – conventional media and the so-called ‘new media’ – intersecting with the justice system, and it’s not sustainable.

“It’s a bit of a Wild West out there in cyberspace at the moment, because bloggers and online publishers are not subject to any form of regulation or professional or ethical standards.

This is another slogan which means little (and remember I do actually favour a review). First of all bloggers are subject to the law – as have been demonstrated of late. The notion of regulating bloggers (beyond the normal requirement to obey the law) or imposing some sort of “professional standards” on them is ridicolous fancy. Bloggers are simply citizens having a say. Simon Power makes it sound like he thinks you should have to apply for permission to have a voice online. Now that may not be Simon’s intent, but the way he has framed this issue is incredibly bad.

“Issues I’m concerned about include how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders, and re-publication of a libel.

Issues which I helped facilitate discussion of at last year’s R v the Internet seminar. They are good issues to discuss.

It will focus on whether either of the two existing industry watchdogs – the Broadcasting Standards Authority and the Press Council – could provide a suitable vehicle for regulating unregulated forms of new media.

Yeah, and lets also give them the power to fine MPs if they say nasty things on their Facebook pages.

Having said that, it is worth noting the Press Council is self-regulation, not external regulation. One could discuss options such as allowing bloggers to voluntarily sign up to the Press Council, if they wish to do so as a way to enhance their reputation. But you then have issues around who covers costs of the Council – considering most blogs are non-commercial.

Mr Power says the public will have the opportunity to have their say when the commission releases an issues paper by December next year.

That is December 2011? Good – this should not be rushed.

As I said I am pleased the Law Commission is doing this review, as there are potentially even benefits for bloggers in it. But the way the Minister’s press statement has framed the issues is not good, and likely to rub a lot of people up the wrong way.

I will be advocating to the Law Commission, and InternetNZ, that they look to convene some workshops next year to discuss and define some of the issues.

The paper strongly supported greater use of proactively releasing information, an idea that is gaining traction in the Open Labour NZ debate on a more transparent Government.

I have been pushing this issue for well over a year, and delighted to see the Law Commission of a similar view. The Internet age makes it practical and desirable for information to be released, even in the absence of a specific request. The problem with the status quo, is people often don’t know that a document exists, so they can’t request it.

Talking of Open Labour, they have now distilled 63 suggested actions for open government from their consultation. You can vote on them here.

I’d urge readers to vote, and vote in good faith, on what they would like to see as policy. You do need to register to vote, so if you get permission denied, go to the top right and register.

Against earlier indications and its better judgment perhaps, the Law Commission has recommended a drastic reversal of 20 years of liberal liquor regulation. …

f Parliament takes the commission’s advice, the minimum purchasing age will be restored to 20 without previous exceptions. A reasonable suggestion that 18 might remain the minimum for licensed premises, with 20 for off-licence purchases, has come to nothing.

Students and other 18 and 19-year-olds will lose the right to drink in bars and clubs unless MPs take a more realistic view. …

Communities ought to be able to decide the character and scale of their liquor supply.

That goes for inner city nightlife districts too. The commission’s proposed prohibition on all-night bars is needless. While a 4am closure would be late enough for anybody most of the time, there is self-evidently a demand for all night services in the central city and they should not be prohibited without good cause and proven benefit.

The past 20 years might not have made us more civilised but previous experience suggests the proposed regime would be a retrograde step, destined for regret.

I like the comment one journalist made to me about the proposed regime. They said they tried to thing of a single thing short on outright prohibition that Sir Geoffrey did not recommend, and they couldn’t think of any.

Next The Press:

There will be support for raising the purchase age to 20 years at all venues selling alcohol, because the experiment of lowering the age a decade ago has been a costly failure.

As critics feared, the age when teenagers begin drinking has percolated down, with many as young as 14 years heavily imbibing, and there is growing evidence of the harm alcohol does to developing brains.

Raising the age should make it harder for under-age drinkers to buy alcohol and less likely for older friends or relatives to purchase it for those as young as 14. The medical evidence also outweighs complaints from older teenagers that it is unfair to raise the liquor purchase age when they can drive or marry at a younger age.

I hate such fuzzy logic. Advocating that the solution to stopping 14 year olds getting alcohol is to make it illegal for 19 year olds to go to a bar or have wine in a restaurant. They also ignore the evidence most under age alcohol supply comes from parents.

While much attention will centre on the purchase age and the proposed increase in the alcohol excise tax, even though the latter is unlikely to be implemented, the commission’s recommendations should be regarded as a coherent package, with the focus on moderation and responsibility.

It’s a coherent package alright. Prohibition was coherent also.

The Dom Post:

The problem the commission faces is that, in seeking to deal with problem drinkers, it has also affected the majority, who believe they drink responsibly.

No-one wants drunks running amok in the capital’s party zone, but nor do they want to be told that they cannot buy a bottle of wine to take home from a supermarket after 10pm.

There are similar reservations over the proposed rise in the drinking age to 20. Whatever the science – and recent research indicates that the effects of alcohol on young brains have been underestimated – convincing the public that people old enough to vote, join the armed forces and marry are not mature enough to buy a cold beer at the end of a hot summer’s day will not be easy.

More particularly, politicians who want the age to rise will have to tell a sizeable chunk of their voters – the 18 to 20-year-olds – that a right they previously had would be taken from them. In the face of a promised organised campaign by young people, including the youth wings of major parties, to keep the age at 18, that is asking for a lot of political courage.

The talk of political courage reminds of of the Yes Minister episode when teh sure fire way to scare a Minister off doing something is to tell them doing so would be brave or courageous

And the ODT:

Our most recent experiment with liberalisation has proved to be a fatally attractive combination for our youth in the sale of wine and beer in supermarkets and the reduction of the minimum age of purchase to 18 years.

No doubt mature and sensible drinkers have welcomed both innovations – supermarket sales statistics would seem to bear out that presumption – and the State has certainly benefited from taxes on alcohol, for excise tax alone produced more than $900 million in 2008. …

To some extent, the additional recommendations of the commission – restrictions on who can supply alcohol to minors and in what circumstances; increasing the ability of local people to influence how and where alcohol is sold in their communities; a civil cost recovery regime for those taken into custody when grossly intoxicated – may have a greater long-term impact than simply increasing the purchase age. …

The way I count it is one editorial pretty hostile to the thrust of the Law Commission’s recommendations, one very supportive and two somewhat cautiously in the middle – pro doing something, but not everything.

The youth wings of the National, Labour, Green and ACT parties have joined forces in the Keep It 18 campaign, to tell their MPs that increasing the purchase age for alcohol to 20 is the wrong thing to do.

“Parliament has twice voted for the purchase age to be 18, and it is disappointing that the Law Commission is trying to turn the clock back again,” said group spokesperson Jenna Raeburn.

In 1999 Parliament voted to change the age of purchase from 20 to 18 by 59 votes to 55. The previous law had numerous exemptions to it, so in fact 18 year olds had been able to legally drink alcohol in licensed premises for many decades.

In 2006 a move to change it back to 18 was defeated 49 votes to 72. The members of Keep It 18 urge MPs to not spend time on trying to reverse history, but instead to focus on measures that target problem drinkers, rather than seek to punish all 140,000 18 and 19 year olds.

“While primarily focused on the purchase age, we also are concerned over the proposed nationwide setting of closing times, and mandating a one way policy for bars after 2 am. In our opinion, these also fail to target problem drinkers, and again will disadvantage the many responsible young people who enjoy a night out dancing and drinking with friends.”

Young Nationals President Daniel Fielding said “Let’s not have a return to nanny state policies, a blanket measure of raising the drinking age will not change the drinking culture. This can only be achieved by introducing measures that places responsibility back onto the individual“

Nicola Wood, Young Labour spokesperson for Keep It 18 said “Young Labour feel a higher drinking age would serve only to exacerbate the harms caused by alcohol. If we want to create a culture of responsible drinking, we need policy which better enables young people to make positive decisions about how they use alcohol, while at the same time acknowledging that this broad problem cannot be pinned on one sector of society. We will oppose any change to the law which discriminates unfairly against young people “

Zachary Dorner, Young Greens spokesperson said “Raising the drinking age has more to do with pointing the finger at young people than solving the real issues. What we need to do is to take a look at ourselves and start treating alcohol as the harmful drug that it is”

ACT on Campus President Peter McCaffrey said “Politicians have no right to tell New Zealanders what they can consume and when they can consume it. The government’s role is to protect you from others not from yourself. The government should focus on targeting people who are causing harm to others rather than act as a nanny-state, telling everyone how much fun they can have “

Jenna Raeburn continued “All our political parties have 18 and 19 year old members who are allowed to vote, allowed to marry, allowed to have sex, and trusted enough to go out and do volunteer work for their parties. Saying that these same members can not be trusted to purchase a bottle of wine from a supermarket or a pint of beer at a bar is hypocritical and insulting, and we urge all MPs in Parliament to reject an age change.”

“We accept the problems caused by alcohol abuse in our society, and are happy to work with MPs in identifying which proposals put forward by the Law Commission are worth supporting. But increasing the purchase age is not one of them. Criminalising 140,000 18 and 19 year olds is the wrong answer,” concluded Miss Raeburn.

• A 50% increase in average excise tax on alcohol
• Purchase age from 18 to 20
• No exemptions for 18 and 19 year olds, even if with parents at a on-license (illegal for someone the day before their 20th birthday to have a glass of wine with their parents at a restaurant – madness)
• 10 pm close time for off licenses
• 4 am close time for on licenses
• no entry policy after 2 am
• ultimate aim should be to arrive at a point where no alcohol advertising is permitted in any media other than that which simply gives straight product information (certain sports codes will hate this one – also bans Tui billboards)
• A $250 “notice of debt” on anyone who is held overnight for intoxication (I like that one)
• drop drive drive limit from 0.08 to 0.05
• consideration of alcohol ignition locking devices on cars for all convicted drink-drivers (that one also worthwhile IMO)
• new offence of supplying alcohol to a minor under 18 (worth considering IMO)

There are some worthwhile recommendations, but the ones around a huge tax increase, the drinking age and a nationwide closing time are far too nanny state for me.

The report comes over as very wowserish in places, such as:

A familiar refrain we heard in our consultations and the submissions is that moderate drinkers should not be punished for the abuses of a minority.

The statistics in New Zealand tend to give lie to the bald assertion that the “vast majority of New Zealanders drink responsibly”. Instead they suggest that the majority of drinkers get drunk occasionally …

Oh my God. Call the Police. The majority of drinkers have occasionally got drunk. So effing what. Do they bash people up? Do they commit crime?

The anti-alcohol industry (and it is an industry – mainly taxpayer funded) will be delighted by the Law Commission’s report when it is released on Tuesday. They have succeeded in convincing the Law Commission that alcohol should be treated in the same way as tobacco – an evil to be heavily discouraged, if not prevented.

I focus on how the role of the Law Commission has changed from quiet diligent updating of laws to:

Sir Geoffrey Palmer has morphed back into his former role of a crusading politician, and has spent months talking about the evils of alcohol. He even went out to Courtenay Place with a Police escort, and said he saw scenes that “no civilized society can relish”.

I end up at Courtenay Place around once a month on average. Often until well past 2 am. Sometimes there to dance and party with friends, but often just to carry on chatting politics and life over a few drinks. I’ve never seen these scenes “no civilised society can relish”.

The crusading was not restricted to New Zealand. Sir Geoffrey even went to Australia, and spoke at an Australian Drug Foundation conference. Not the Minister., ot the Director-General of Health, but the Law Commission President. The 68 year old Sir Geoffrey decried the fact that people put photos from parties up on Facebook. He wants an end to people getting drunk – an endeavour that would be as likely to succeed as prohibition succeeded in the 1930s.

I await the proposal to ban photos from Facebook which show alcohol.

The full article is subscriber content at NBR.

The report was commissioned by the former Labour Government, and the primary author is former Labour Prime Minister Sir Geoffrey Palmer – who is also the Law Commission President.

Details of the report have leaked out, and I can exclusively reveal some of these. They represent a nanny state mindset which I doubt even the last Government would have ever gone along with. It stops short of prohibition and six o’clock closing, but represents a huge step backwards. Fundamentally the report fails to propose measures that target the minority of people who cause problems of crime and violence when under the influence of alcohol, and instead it has gone for a one size fits all approach which punishes millions of responsible drinkers, and especially 130,000 18 and 19 year olds.

I understand the Palmer Report proposes:

1. A massive 50% increase in the excise tax on alcohol. This would result in an extra $500 million of revenue to the Crown at the expense of everyone who drinks.
2. Banning the sale of liquor at off licenses after 10 pm. So if you pop into New World at 10.30 pm to do your shopping (which I often do), you won’t be able to buy a bottle of wine.
3. Forcing bars and nightclubs to refuse to allow people to enter after 2 am.
4. A nationwide closing time for all outlets, probably at 4 am.
5. An increase in the purchase age for alcohol from 18 to 20, criminalising 130,000 18 and 19 year olds if they buy alcohol.

As I said, this is nanny state unleashed. What is most disappointing is the failure to come up with measures that might actually target those causing the problems such as a drinking age (instead of a purchase age), increased penalties for alcohol related crime, and a one size fit all approach.

I would not necessarily be against allowing local communities through local Government able to (for example) set a closing time for their local neighbourhood.  But a nationwide closing time that treats Ponsonby and Courtney Place as the same as (say) Wainuiomata is a bad thing.

I am sure there are some useful recommendations in the Palmer Report, but its main recommendations represent the worst excesses of nanny state and punishes all New Zealanders, rather than targeting problem drinkers and the associated violence and crime they cause.

I hope the Government, and in fact all parties in Parliament, reject any wholesale adoption of the report’s recommendations.

I’ve become a semi-regular user of the Official Information Act, using it to get background papers and reports on policy areas I am interested in. The OIA was one of the best things the Muldoon Government did.

However it doesn’t work as well as it can. A dedicated government agency can delay releasing information for up to a year. You are meant to get it with 20 working days, but agencies can transfer requests (resetting the clock), give themselves a time extension, and also refuse requests forcing you to go to the Ombudsman. They do a good job, but by the time they have investigated, and made a decision, many months can have gone by.

Very rarely an agency will lie – we saw this with the Labour Department under Labour, when the Immigration Service actually lied to the Ombudsman’s Office over the existence of a report. This is incredibly rare.

Anyway a lot of information about what the Government is considering, never comes out under the OIA – because no one asked for it. And you can not ask for information too generally – such as all reports about primary health or all memos from the Ministry of Education. You need to be quite specific.

I propose that for certain high level official information, the onus on release be reversed – that the Government automatically release the information even if not asked for. Now this could not apply to all official information, as there is too much, but it could apply to information that makes Ministerial level.

My proposal would be:

That all papers and reports considered by Cabinet and/or a Cabinet Committee be automatically placed on the Internet within six months.

The specifics would be:

1. By having the cut off at reports that go to a Cabinet or Cabinet Committee, the DPMC could be made responsible for implementing it.
2. By having a set time period, it gives the Government a bit of breathing space to consider reports and make decisions (such as the Budget) before publication. This would not prevent people from applying under the OIA to gain something earlier.
3. Departmental and Ministerial staff would know that their reports are 100% guaranteed to become public, so would take appropriate care with said papers.
4. Parts of reports could still be blacked out under the OIA, but be appeal-able to the Ombudsman.
5. It would provide a unique look at the entire work programme of the Cabinet and its Committees.
6. If a media organisation asks for information under the OIA, they often try and sensationalise any story based on it, as they have to show something for their effort. If the info is automatically made publicly available, then news worthiness will be the main criteria (I hope)
7. It would result in more transparent and open Government

In a world of fast-paced technological change, it is not surprising that the Law Commission has found significant gaps in the laws designed to protect privacy. At the moment, it may be an offence to record a private conversation, but it is not to secretly film someone or use a device to track them. So there can be few quibbles over the commission’s recommendations to plug these gaps with a new law covering installation and use of surveillance, interception and tracking devices. The danger was that, in traversing other issues relating to privacy, it would suggest measures that promoted this but at the expense of other crucial personal and public interests, notably freedom of information. Happily, the commission has, by and large, resisted that.

I also think the Law Commission report is well done.

The Dominion Post welcomes the merger of the Wellington Regional Chamber of Commerce and the Employers and Manufacturers Association central division:

By merging their back office operations the two business organisations will reduce their costs (by up to 40 per cent for businesses that are members of both organisations) and give business a stronger voice in the region. That is to the benefit of the region as well as individual members.

If the fees drop, I may even join!

And The Press talks CRIs:

When Crown Research Institutes (CRIs) were set up in 1992 it was an acknowledgement of the important contribution that science can make to the economy.

But, 18 years later, the CRI Taskforce report makes it clear that significant reforms are required, in the funding, ownership and governance of the eight institutes. It is essential that the Government now acts on the taskforce’s recommendations, which have the potential to help boost economic growth and thereby lift New Zealand from the bottom of the OECD in terms of research.

The report says that the CRIs should be working for the nation’s benefit, not their own. This might sound like a statement of the obvious but it is not always occurring now, as there is too much emphasis on research which produces results that CRIs can capture in their balance sheets.

A lack of a strategic direction is linked by the taskforce to the multiple lines of accountability for CRIs. They must be accountable to their shareholding ministers through the Foundation for Research, Science and Technology, the Crown Ownership Monitoring Unit in Treasury and the Ministry of Research, Science and Technology, each of which has its own perspective and requirements.

The taskforce sensibly recommends that there should be just one agency to handle the Government’s investments in CRIs, as well as ownership and policy responsibilities.

The apparent merger of MORST and FORST on Wednesday may help with that.

“There’s not a single, solitary chance that as long as I’m the Minister of Justice we’ll be relaxing drug laws in New Zealand.

Though he was “interested” in submissions on regulations limiting the supply of new drugs – including party pills – he had “no intention of changing the current rules”.

“I’m happy to hear what the submissions have to say but I have advised the Law Commission that I have other things on my work agenda.”

I’m surprised and somewhat disappointed by such a response – especially that Simon is generally seen as one of the more liberal and considered Ministers.

I’ll turn to the detail of the options put out by the Law Commission, but note at this point that to categorise them all as “liberalization” is in fact incorrect. The Police Association President Greg O’Connor was quite supportive on radio of many of the ideas, as was the Drug Foundation which aims to minimise harm from drugs.

Personally I’m far from convinced our current laws are working for low level drugs like cannabis. I’m hardline and back the Govt’s initiatives when it comes to drugs like P and Heroin, but am very open to the argument that instant offence fines from Police would be better than dragging people through court for minor possession offences.

I’m one of the few people of my age that has never even tried illegal drugs, so my advocacy of a different approach is not motivated by self-interest. Cannabis could be legal and sold at New World with coupon discounts, and I still wouldn’t smoke it. But at least 46% of New Zealanders have used cannabis and I’m not sure we want to drag two million New Zealanders through court if they were all busted.

Some of the options put forward by the Law Commission are:

• Move from a three tier system (Class A, B and C) to a two tier classification system, to more clearly distinguish between the very harmful and less harmful drugs.
• Rather than have arguments over whether drugs were for purpose of use or supply, have two different possession offences with a higher maximum penalty for the higher quantity offence.
• A formal cautioning scheme, with up to three cautions for personal use offences, with requirements to undertake an intervention session and counselling
• Option of infringement notices requiring a fine and/or attend a drug education session for less serious drugs
• Prohibit any new psychoactive substance from being manufactured, produced or imported without prior approval

Now some of the options the Law Commission put up are not things I would support. I’l plead guilty to not being too worried about the Bill of Rights implications that someone found with 10 kgs of Heroin has to prove it was for personal use, reversing the normal onus of proof.

But there are some options there well worth considering. The Police already use their discretion a lot for minor drug offences. I’d rather there was a formal statutory framework around use of cautions. I also like the idea of infringement notices rather than criminal sanctions for first or second time offenders, and greater use of referrals to drug counselling sessions.

The exemption is traditional, based on a belief that you can’t tax the Crown. However even the Queen pays tax in the UK now, so it seems overdue for the Governor-General to do the same. Now this will not mean a pay drop for the next GG, as the Remuneration Authority will take account of the tax status in setting the salary.

A summary of their major recommendations:

1. Pass a separate Governor-General Act defining the office, term and appointment, removing them from the Civil List Act.
2. Have a permanent legislative authority for the funding of the Governor-General and their office and travel.
3. Remove the exemption from income tax on the salary (but the allowance to cover expenses remains tax free).
4. Remove Section 7 of the Civil List Act which allows the Minister of Finance to exempt the Governor-General from paying any public or local tax, duty, rate, levy or fee.
5. Have an annuity determined by the Remuneration Authority for former GGs, and upon their death half that level paid to a surviving spouse or partner.
6. When the Chief Justice (or other Judge) acts as Administrator of the Government they stay on their current salary, rather than the current law where they get paid 50% of their judicial salary and 50% of the GGs salary.

All looks pretty good to me.  A small but useful modernisation of our constitutional structure.

Justice Minister Simon Power wants to stop the emerging “special class” of high-profile people using their status to get name suppression.

Mr Power strongly signalled he would change the law to stop cases such as the one this month in which a “prominent entertainer” who admitted forcing a teenage girl’s face into his genitals was granted permanent suppression because publicity would have a detrimental effect on his career and his record and ticket sales.

Very pleased to see Simon take a strong principled stand on this.

Incidentally I’ve been doing a bit of a case study into that case, and plan to present the findings at the R v The Internet seminar on 3 December. I’ve been looking at the various sites which tell or hint at the name, and also how hard or easy it is to find out via searching.

The Herald editorial:

At a first glance, the Law Commission report Suppressing Names and Evidence appears a document of much promise. Encouragingly, it talks of the need for court proceedings to be more open and for rules governing the suppression of names to be tighter and more transparent.

But on closer inspection, there are grounds for reservation about its prescription for reducing the level of secrecy in our courtrooms. This detracts somewhat from the major pluses of a principled approach and a well-observed appreciation of the justice system’s current failings. …

Some of the Law Commission’s other suggestions are most welcome. It supports the development of a national register of suppression orders as a matter of high priority. This would eradicate the confusion that arises when different courts impose suppression orders at different stages of cases, thereby heightening the potential for breaches.

A register of suppression orders is well overdue.  People may be surprised by how hard it can be for even media to find out what exactly is supressed.

But the report is on less-secure ground when it seeks to control the internet, most notably the increasing trend of suppressed material being circulated. Because this is often hosted on overseas-based websites that are not subject to New Zealand law, there is a strong element of futility in much of what it suggests.

As I said a few days ago, if the intent is simply that an ISP removes supressed material actually hosted on its network, upon request from a Judge or Crown Law, I don’t see that as unreasonable. If however it is intended to require ISPs to block overseas based material, that will be futile and inappropriate.

The Press editorial:

A fundamental principle in the operation of the courts in New Zealand is that they should conduct trials in public and that it should be possible to freely report on those trials. …

It is heartening therefore the Government has indicated it will look favourably on a report this week by the Law Commission aimed at refocusing the courts’ attention on the basic principle of open justice, bringing greater clarity to the rules on suppression and ultimately making it harder to get. The commission has sensibly proposed that the grounds for suppression should be set down in statute. The reports suggests seven grounds, of which the most significant would probably be that suppression should be granted only where it would prevent extreme hardship to the accused and/or those connected to the accused.

The challenge will be to stop “extreme hardship” being watered down.

The Dom Post:

The commission recommends that the grounds on which suppression may be granted be clarified and tightened so they become “transparent, explicit and consistently applied”. It suggests, too, that judges must give reasons for granting or declining a suppression order and that temporary orders granted at an accused’s first appearance have an expiry date.

Sir Geoffrey and crew have also been bold. In recommending that the maximum penalties for breaching suppression orders be bumped up to six months’ jail or a $100,000 fine for a media outlet, they have also accepted the argument that the corollary must be that suppression orders are easier to track down. They say “the case for a reliable and up-to-date register of suppression orders to allow journalists to confirm the terms and duration of the order becomes even more compelling”. Hallelujah.

The mainstream media, who attend courts as the public’s surrogates, will largely applaud these recommendations – they almost never deliberately flout a court order. But it is hard to abide by the rules when it is hard to ascertain just what orders are in place.

I agree absolutely.

However, fairness demands that any penalties facing editors equally face bloggers who sound off about those before the courts in the anarchy of the blogosphere before and during a trial. If the powers-that-be determine that that is just too hard, they need to ask themselves about the value of suppression law in the internet age.

The editorial here is mixing up issues of suppression orders and contempt of court. They also talk about the blogosphere when many of the problems occur on Trade Me forums, Facebook, Twitter, message boards, Usenet etc etc.

Now I’m the last one to say bloggers should not obey the law, and in fact have gone to considerable lengths to try and obey the law. But there will be interesting issues if you take the editorial position of wanting bloggers to face the same penalties as editors (despite not having giant multinationals standing behind you to pay the bills). Presumably the editorial writer would then support bloggers, not just media, being able to access the proposed register of suppression orders – and also to be able to get accredited in courts to report on trials.

• starting point for considering publication of evidence and names should be a presumption of open justice
• suppression should only be used in exceptional cases where there were compelling reasons
• grounds on which suppression may be granted need to be clarified and tightened
• development of a national register of suppression orders should be advanced as a matter of high priority.

These all seem good and sensible moves to me. The use of suppression orders has been growing, and they should be the exception, not the rule. Having tighter criteria is a good step in the right direction.

I am especially pleased to see the recommendation for a register of suppression orders. It is very difficult to sometimes know what has or has not been suppressed. And this is a complaint not just from me, but from many in the media.

With regards to the Internet, they recommend:

Where an Internet service provider or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable.

The wording here is somewhat vague.  Under the best case scenario this is not greatly different from the status quo. ISPs already have an implicit obligation to remove material if it is in breach of a suppression order.

But what has not been defined is is what they mean by carrying information, and what they mean by “become aware”. It is one thing to require an ISP to remove material hosted by that ISP. It is quite another to require them to try and block information from other sources.  That would be highly undesirable, plus it won’t work. ISPs should be responsible (once notified) of material on their own networks, but not be ordered to block overseas sites such as Wikileaks etc.

What constitutes bringing the information to the attention of an ISP will need clarification also. I have no problem with an ISP having to remove material upon official request by the Solicitor-General and Crown Law. But just having a member of the public allege hosted material breaches a suppression order should not be enough. The ISP is not competent to decide what is or is not a breach of a suppression order – hence it should be an official agency that has to make the request.

So overall the main recommendations look to be a move in the right direction. The recommendation relating to the Internet is too vague to be able to say for sure at this stage.

In a fit of good timing, there is a seminar on the 3rd of December where some of these issues can be discussed and debated.  The seminar, titled R v The Internet, is hosted by InternetNZ, the Law Commission and the Ministry of Justice.

The seminar is at Te Papa, and has an impressive line up of speakers, including:

Hon Christopher Finlayson, Attorney-General
David Collins QC, Solicitor- General
Tony Smith, Dean, VUW Law School
Steven Price, Barrister & author of Media Minefield
Robert Lithgow QC
Brent Edwards, Media Committee, EPMU
Warren Young, Deputy President, Law Commission
Judge David Harvey
Sinead Bouchier, Group Online Editor, Fairfax
Ursula Cheer, Associate Professor of Law, University of Canterbury

I’m also taking part in one of the panels. I think it will be a fascinating day. It is intended for legal, media, and Internet professionals, and anyone can register to attend for $100 + GST. You can also apply for a discounted rate.

The second set of criticisms relate to the fact that surveillance powers are extended to a greater range of agencies and types of offences. These extended powers need to be seen in context.

The commission took the view that surveillance is not necessarily more intrusive than a search of private premises; whether it is depends entirely on the circumstances. We regarded surveillance as an alternative form of evidence-gathering which should generally be available to law enforcement agencies that have a search power. That is the approach taken in Part 3 of the bill.

I respectfully disagree with the assertion that covert surveillance is not necessarily more intrusive than a search. I regard having the state break into my house, planting bugs and concealing what they have done as hugely more intrusive than someone turning up at my front door with a search warrant.

Views may differ about whether it is appropriate to provide a surveillance power to agencies that already have the power to search private premises. Certainly agencies should only have the powers that they need. They must also have the appropriate expertise and training to use those powers. No doubt the select committee will wish to consider closely whether more limits or safeguards are needed.

I believe it is best that the powers be limited to existing agencies such as the Police. I don’t think New Zealanders want local Councils, the Pork Board and the Commerce Commission with the ability to bug them – no matter how remote the possibility.

The emphasis in the bill has been on achieving a balance between the needs of law enforcement and human rights. There is good reason for this. Search powers that encroach too far on human rights are unlikely to gain community support. But search powers that are too tightly controlled and prevent law enforcement officers from doing their job effectively jeopardise community protection and bring human rights values into disrepute.

I think the balance has swung too far in the Bill, and it should not proceed if it is not amended. However like the Law Commission I am optimistic that the Select Committee will make some changes that will achieve a better balance.

It was to discuss some of the options canvassed in the Law Commission’s review of alcohol law, and on top of 15 or so youth reps, we also had executives from the Drug Foundation, Hospitality Association, Lion Nathan and the Law Commission (to observe and provide info).

The four youth sections came together three years ago to (successfully) fight against Parliament’s move to raise the purchase age of alcohol to 20. The idea of the meeting was not just to focus on the purchase age, but consider many of the wider issues and see if there was a consensus on what options they agreed with, and what options they did not think would be effective.

I was involved with the original Keep It 18 campaign, so facilitated the meeting and to a certain degree played Devil’s Advocate on some of the issues. Issues discussed included the purchase age, should there be a drinking age, a split purchase age for on and off licenses, supply of alcohol to minors, restricted hours for off and on licenses, other access issues, excise tax levels, price issues, advertising restrictions, loss leading, blood alcohol limits for driving, open alcohol in cars, should cars have mandatory alcohol ignition locking devices, fake IDs, should drinking or being drunk in public be an offence etc.

I thought the meeting was really good, Not that I agreed with them on all issues, and not that they agreed with each other all the time. But it was a very practical discussion from a group of young people with first hand experience of youth drinking. It was around 50/50 guys and gals, but I didn’t pick up any huge difference in perspectives between the genders. There were some issues where there were differences between “left” and “right” but a surprisingly large number of issues where there was widespread agreement. The result is the four youth sections are going to do a joint submission (which may be a first) on the stuff they agree on, and individual submissions (or minority reports to the main submission) on the issues they have different perspectives on.

Not going to get into details of all the discussion, but there were three parts that stood out to me. They were:

1. When the current code of practice for alcohol advertising was summarised as banning ads that imply drinking can lead to sexual, sporting or social sucess, there was fairly widespread laughter as an automatic reaction. That was a very instinctive judgement that the current code is not working, or not being rigorously applied by all players. In fact many in the room cited ads that seem to quite specifically imply sexual, sporting or social sucess from drinking.
2. The discussion on the excise tax and price levels was very economically literate. There was a reasonable consensus that if alcohol use generates external costs (which it does), then there should be an excise tax set to cover the cost of that externality. However they rejected the notion that the tax be increased beyond covering the externality as a way to decrease demand, pointing out that would probably just send people into buying cheaper alcohol per volume (such as spirits). There was of course also reference to the considerable divergence in economists views of what the external costs of alcohol are, and the point was made that any figure used as justification for an increase should be very robust or bulletproof.
3. Very amusing in the discussion on price and excise tax was the points made by AoC that the real problem is people don’t pay for their own health care and a no faults ACC scheme which caused much merriment. Now to be fair to AoC their points are absolutely valid, but I did have to say I think we can assume that the Government is unlikely to privatise the health system and abolish ACC, so if we taken these as a given, then what is the best way to cover the externalities.

As I said, despite differences on a fair number of issues, it was a very mature and constructive discussion. I was really impressed with those who took part.

Also thanks are due to Labour’s Trevor Mallard (and his secretary) and Iain Lees-Galloway for providing a meeting room at Parliament, and attending (with useful contributions). When it became clear Parliament would be the best place to hold the meeting I considered the easiest way to get an MP to sponsor the meeting. I figured if I approached a National MP they might get worried about any perception of doing me a favour so I e-mailed Trevor on the rationale that no one could ever criticise him for helping me secure a room

As I said, was a really good meeting, and who knows there might be other issues in future they come together on.

They are currently consulting on the alcohol review and the privacy review.