Stuff reports:

The members’ bills process has come under scrutiny after the selection of a National backbencher’s bill that would see MPs debate the sale of lost luggage.

Labour and ACT have called for the “trivial” change lodged by Christchurch MP Tutehounuku (Nuk) Korako to be added to a Statutes Amendment bill in a tidy-up of regulations, rather than waste politicians time and taxpayer money going through the parliamentary process.

But this is not the first time a seemingly menial bill has been entered into the ballot and literally plucked from a biscuit tin.

The member’s bills process is “fundamentally flawed”, concludes United Future leader Peter Dunne. 

He says there’s a better way to get the bills dealt with and it would involve setting time-frames for a more proportionate system.

“It would be better to, particularly from a smaller party’s point of view, have almost a quota system so that each party was guaranteed a minimum number of bills per session,” he said.

“Say there is a ballot procedure, but there’s also a backstop that says during the course of the year each party will be guaranteed some measure of proportionality. So if you get to the latter stage of the year, and their bills haven’t come up, [it] ensures every party gets a fair go.”

That’s not a bad idea.

It’s been a tactic for Governments to get their MPs to enter proposed bills to reduce the chance of Opposition bills being drawn. Opposition MPs use the ballot to highlight issues they know Government have no appetite for.

Yep opposition often put up bills they just want to embarrass the Govt on, and Govt sometimes puts up bills that are relatively minor. However important to note that many members’ bills do lead to significant reforms and are very worthwhile.

Seymour, also the regulatory reform under-secretary,  was happy to talk to any MP to help add minor issues to the Statutes Amendments bill. The changes in Korako’s Airport Authorities (Publicising Lost Property Sales) Amendment Bill actually made a lot of sense to Seymour, but wasn’t worth a separate bill.

I tend to agree. A members’ bill doesn’t need to be a major issue, but it should have some significance to it and this particular bill doesn’t seem to make that threshold. In fact it is debatble if the bill is even needed. If all MPs are happy to add it to the Statutes Amendments Bill, then they should do so – possible by seeking leave of the House.

Some good facts in a presentation on US charter schools:

• The number of charter schools has increased from 1,500 to 6,700 from 1999 to 2014.
• The number of students in charter schools has increased from 350,000 to 2.9 million from 1999 to 2014.
• 5.8% of US students are now in a charter school – every one by choice
• Bad charter schools get closed down – around 3% a year close. When was the last time a bad state school closed? Most get closed for failing to meet academic targets – accountability.
• 29% of charter students are black (double the 15% in state schools) and 27% are Latino.
• Just over one million students are on a waiting list for a charter school
• On average charter schools improve student learning but this varies by state. Poor and black students are most likely to have improved learning at charter schools.
• Urban charter schools do especially well
• Charter school performance has improved over time as low performing schools get closed down, new high performing schools get opened and existing schools improve

Stuff reports:

The Christchurch City Council will investigate ways to limit unhealthy food outlets setting up shop close to schools.

More of this madness. A map in Auckland showed that if you banned food outlets within 800 metres of a school, them most of Auckland would be covered.

Linwood College student Harriet Helms, 16, said 90 per cent of her friends went to Burger King after school at least four times a week. They went for the free wi-fi and purchased food while they were there.

She wanted a place that had free wi-fi and healthier food options.

If they are after free wifi they are going to go to a place that has it, regardless of whether it is 100 metres or 1 km from the school.

Linwood Medical Centre’s Dr Richard Griffiths asked the council to show some backbone and regulate against the outlets. 

“Day in, day out we’re confronted by adult obesity and more concerning child obesity.”

Griffiths said he was furious at the ease in which companies could position themselves across from schools. 

Oh such hysteria. You’d think this is a school in the middle of the countryside, and KFC has chosen to open up outside their school just to target them.

The school is located next to a major shopping mall. Shopping malls the world over have fast food outlets. People like to eat while they shop.

Doug Sellman writes:

University of Otago’s Professor Jennie Connor has had two prestigious publications in the past month highlighting the fact that alcohol causes cancer in moderate drinkers in New Zealand.

Not quite correct. To quote a paper from the US National Institute on Alcohol Abuse and Alcoholism:

To date, no experimental evidence indicates that alcohol by itself can cause cancer-that is, that alcohol can act as a complete carcinogen. Over the past few decades, however, several animal studies have indicated that alcohol can have a cocarcinogenic, or cancer-promoting, effect. This means that when alcohol is administered together with other known cancer-inducing agents (i.e., carcinogens), it promotes or accelerates cancer development.

What the research shows is:

Alcohol consumption has been linked to an increased risk for various types of cancer.

I don’t know anyone who disputes this. There are of course scores of things that increase the risk of cancer from sausages to red meat to sunlight.

The really important point that Connor makes is that many of the cases of these alcohol-related cancers occur in moderate drinkers, ie they are not confined to people with severe alcoholism.

Again I don’t know anyone who disputes that overall there is a non-zero increased risk of cancer with even a moderate level of drinking. But there are also increased health benefits (as well as enjoyment).  To quote the Harvard School of Public Health:

It’s safe to say that alcohol is both a tonic and a poison. The difference lies mostly in the dose. Moderate drinking seems to be good for the heart and circulatory system, and probably protects against type 2 diabetes and gallstones. Heavy drinking is a major cause of preventable death in most countries. In the U.S., alcohol is implicated in about half of fatal traffic accidents. (1) Heavy drinking can damage the liver and heart, harm an unborn child, increase the chances of developing breast and some other cancers, contribute to depression and violence, and interfere with relationships.

Alcohol’s two-faced nature shouldn’t come as a surprise. The active ingredient in alcoholic beverages, a simple molecule called ethanol, affects the body in many different ways. It directly influences the stomach, brain, heart, gallbladder, and liver. It affects levels of lipids (cholesterol and triglycerides) and insulin in the blood, as well as inflammation and coagulation. It also alters mood, concentration, and coordination.

They note:

Even moderate drinking carries some risks. Alcohol can disrupt sleep. Its ability to cloud judgment is legendary. Alcohol interacts in potentially dangerous ways with a variety of medications, including acetaminophen, antidepressants, anticonvulsants, painkillers, and sedatives. It is also addictive, especially for people with a family history of alcoholism.

So heavy drinking is bad overall for health. Moderate drinking has some health benefits and some health risks.

The benefits and risks of moderate drinking change over a lifetime. In general, risks exceed benefits until middle age, when cardiovascular disease begins to account for an increasingly large share of the burden of disease and death.

So whenever an activist focused just on the risks without the benefits, they are not wanting you to understand the full picture – just as anyone promoting just the benefits without the risks does the same.

Sellman continues:

It is clearly important for this information to be widely publicised to all who consume alcohol in New Zealand. However, it won’t be the alcohol industry that engages in this work. A responsible industry of any product that is causing 250 cancer deaths each year would quickly warn its customers about the risk.

Actually what is important is both the benefits and risk be publicised. And this is what public health professionals should do – provide a balanced view, rather than be zealous campaigners.

Now what I find interesting is that when Connor and Sellmam provide data like this:

• There were 243 cancer deaths attributable to alcohol in 2007.
•  126 of these cancer deaths were in men, 117 were in women.
•  This represents 4.2% of all cancer deaths, i.e. 1 in 25.
•  60% of all alcohol-related cancer deaths in women were due to breast cancer.
•  This represents 14% of all breast cancer deaths, i.e. 1 in 7.
•  There is no level of drinking that does not increase your risk of cancer to some extent, but heavier drinkers are more affected than light drinkers.

They don’t provide what the public would find the most useful information to make an informed choice. What is the overall increased risk of getting cancer from moderate alcohol consumption. Is it 25%, 15%, 10%, 5%, 2% etc? Knowing this allows us to make an informed choice. If moderate drinking increased my risk of cancer by say 25% I’d be quite likely to stop drinking as that risk is not worth the health benefits it provides and/or the enjoyment from it.

What would also be useful if quantifying the overall increased risk from moderate drinking compared to other risks, such as processed meat. Also is the risk of dying from cancer from moderate drinking say more or less than the risk of dying in a car crash?

An article in the British Medical Journal provides the information that I would want to make an informed choice:

Compared with non-drinkers, light to moderate drinkers had relative risks of total cancer of 1.02 (95% confidence interval 0.98 to 1.06) and 1.04 (1.00 to 1.09; P_trend=0.12) for alcohol intake of 0.1-4.9 and 5-14.9 g/day among women

That is a 2% and 4% increased risk.

Corresponding values for men were 1.03 (0.96 to 1.11), 1.05 (0.97 to 1.12)

A 3% and 5% increased risk.

But these are affected by if you smoke. The combination of tobacco and alcohol is a bad one. They find for non-smokers:

For a priori defined alcohol related cancers in men, risk was not appreciably increased for light and moderate drinkers who never smoked

And women:

However, for women, even an alcohol consumption of 5-14.9 g/day was associated with increased risk of alcohol related cancer (relative risk 1.13 (95% confidence interval 1.06 to 1.20)), driven by breast cancer.

So a 13% increased risk of alcohol related cancers for women, but the important stat is the overall increased risk of any cancer which is 4%. Their conclusion:

Light to moderate drinking is associated with minimally increased risk of overall cancer. For men who have never smoked, risk of alcohol related cancers is not appreciably increased for light and moderate drinking (up to two drinks per day). However, for women who have never smoked, risk of alcohol related cancers (mainly breast cancer) increases even within the range of up to one alcoholic drink a day.

Now if Connor and Sellman were providing this context, I doubt anyone would object. Knowing moderate drinking increases overall risk of cancer by around 2% to 4% amongst non smoking women and minimally amongst non smoking men is useful information to have.

But you balance that up against the fact that non drinkers tend to die before moderate drinkers. Again there are benefits and risks from moderate drinking and I think we should regard with suspicion those that promote the risks only, just as much as those who promote the benefits only.

UPDATE: Eric Crampton has also blogged on this, providing some very useful data about overall health impacts.

“I remained a socialist for several years, even after my rejection of Marxism; and if there could be such a thing as socialism combined with individual liberty, I would be a socialist still. For nothing could be better than living a modest, simple, and free life in an egalitarian society. It took some time before I recognized this as no more than a beautiful dream; that freedom is more important than equality; that the attempt to realize equality endangers freedom; and that, if freedom is lost, there will not even be equality among the unfree.”

– Sir Karl Popper

The quote of the week is brought to you by the New Zealand Taxpayers’ Union. To support the Union’s campaign for lower taxes and less government waste, click here.

The Herald reports:

Little was asked if Labour would decriminalise cannabis during an interview on Victoria University student radio station Salient FM.

“We will look at holding a referendum about it… we want to make sure there is a good information campaign about it, and have a referendum about it and let people decide,” he said.

Sounds like a definite pledge. Talking about an information campaign and letting the people decide.

When asked about the comments by Newshub today, Little said holding a referendum was possible, but down-played the likelihood, saying it was “simply not a priority” for Labour.

And a different tune to a different audience. Not exactly straight talking.

I saw a column at Stuff by the executive director of UNICEF NZ supporting a Andrew Little’s bill on requiring all rental houses to have insulation and heating.

Down the bottom it noted:

This article was supplied as part of Stuff’s partnership with Unicef NZ. UNICEF stands up for every child so they can have a childhood. Find out more at unicef.org.nz

So what is this partnership:

We’ve just launched a partnership with Unicef NZ that we’re pleased to be able to tell Stuff readers about.

Unicef NZ has some compelling stories to tell around improving child welfare. We’ll be able to help shine a light on those issues – and Unicef will be able to help us with access and resources to tell the stories of children, families and communities afflicted by disaster, poverty, and violence, both around the world and here in New Zealand.

This arrangement – which starts as a trial for six months – won’t affect the independence of our journalism. We’ll continue to make our editorial decisions based on news merit, and we remain free to criticise Unicef NZ or its activities if that’s justified. When we use material supplied by Unicef, it will be clearly credited.

This strongly suggests that it is a commercial partnership, and that Unicef NZ pays Fairfax and in returns Fairfax prints columns for them.

If this is the case (and their statement is so opaque it is hard to know), then they should clearly mark columns provided as advertorial, not editorial.

The Reputation Institute 2016 rankings are out.

The top 10:

1. Sweden 78.3
2. Canada 77.8
3. Switzerland 77.0
4. Australia 76.8
5. Norway 76.2
6. Finland 75.2
7. New Zealand 74.7
8. Denmark 74.3
9. Ireland 74.1
10. Netherlands 73.9

Also if interest is the difference between external and internal perceptions of a country. These countries all have much higher internal reputations that external – Russia +41%, China +32%, India +31% and Turkey +29%.

However some countries are tougher on themselves than others. They have lower internal than external scores – South Africa -20%, Italy -15% and Brazil -10%.

Radio NZ reported:

It was probably the most electrifying exchange in Auckland Council’s six years of existence.

After being interrupted, deputy mayor Penny Hulse closed her eyes and composed herself.

The following minute ended the unswerving public loyalty that Ms Hulse had shown Mayor Len Brown through his rollercoaster six-year encumbency.

The wedge that finally drove the two apart was Auckland Council’s three-year-old idea of requiring larger housing developments to make 10 percent of the homes built affordable.

The Independent Hearings Panel tasked with re-writing Auckland’s Unitary Plan dumped the quota – and yesterday councillors voted 13-7 to uphold that decision. …

As the councillors argued over the provision during yesterday’s Unitary Plan debate, Mr Brown signalled it was time for him to speak.

“I’ll probably go down fighting like a shark, I feel strongly on this,” he opened.

“I had to fight the government to get that affordability clause written into the Housing Accord,” he said, referring to the agreement which operated over the previous three years.

Over the next six minutes he advanced arguments contrary to those of his deputy, to whom he had given the role three years earlier of leading the development of new housing ideas.

Other councillors argued for and against, until it was time to vote.

Then Ms Hulse took the unusual step of asking to speak for a second time.

“I feel I haven’t really been able to express myself in probably the most important debate of all. I would like a chance to just speak briefly and if you say yes, I’d appreciate that, ” she asked. Mr Brown agreed. …

The final minute of Ms Hulse’s address began in a voice shaking with emotion.

“I’ve spent the last three years working on this issue. To have to vote on something I fundamentally believe in with every fibre of my being and that can be construed as not supporting affordability in this city is the hardest thing that I will need to do.

“On the other hand I don’t believe in populist politics, I don’t believe in grandstanding and I don’t believe in making promises that we can’t deliver on,” she told councillors, some of whom applauded.

“I believe in things we can genuinely deliver.”

So basically the Deputy Mayor said the Mayor was grandstanding and making promises that could not be delivered on. Wow.

World Vision has released:

As a professional Christian, humanitarian organisation, we take our commitment to truth and transparency very seriously. For more than 65 years, we have stayed true to our mission to work with children, families and communities to overcome poverty and injustice around the world. 

World Vision is seeking to understand the truth behind the allegations laid against Mohammad El Halabi. World Vision condemns any diversion of funds from any humanitarian organisation and strongly condemns any act of terrorism or support for those activities.

We first learned of the accusations last Thursday, August 4, where the charges were officially presented for the first time. Due to the seriousness of the allegations, World Vision has already suspended operations in Gaza. We are conducting a full review, including an externally conducted forensic audit, and will remain fully engaged with the investigation that is underway.

I think it would have more credibility if the entire review was done externally.

We will examine all the evidence behind the charges, and from those who independently examine our accountability standards. If any of these allegations are proven to be true, we will take swift and decisive action. Unfortunately, we still have not seen any of the evidence. We look forward to an ongoing dialogue to be able to clarify discrepancies, and we call for a fair and transparent legal process.

World Vision’s cumulative operating budget in Gaza for the past ten years was approximately US$22.5 million, which makes the alleged amount of up to US$50 million being diverted hard to reconcile. Mohammad El Halabi was the manager of our Gaza operations only since October 2014; before that time he managed only portions of the Gaza budget. World Vision’s accountability processes cap the amount individuals in management positions at his level to a signing authority of US$15,000. 

I think the issue isn’t what was signed off, but where the money actually went.

I blogged in May how Opotiki Mayor John Forbes declared things were going so well in Opotiki that he didn’t want an election as it would distract the Council from its work.

The Herald reports he has gone further and traveled to a challenger’s home to try and persude them not to stand to save the cost of an election:

One of New Zealand’s longest-standing mayors went to a rival candidate’s home in his mayoral car and told him the region could save $50,000 if he continued in office unopposed.

Mayoral candidate Les Keane says incumbent Opotiki mayor John Forbes knocked on his door this week to discuss Keane’s decision to challenge him for the mayoralty – and there would be no need for a costly local body election if no one opposed him for a sixth term.

When approached by the Herald on Sunday yesterday, Forbes admitted he used the mayoral car to pay a visit to Keane’s house on Thursday, and he went there specifically to discuss Keane’s candidacy.

Forbes denies requesting Keane stand down, but admitted his approach made the $50,000 cost to ratepayers clear if Keane were didn’t pull out of the race.

“I said to him, if you withdraw your nomination, we could save a lot of money on the election,” Forbes said.

“It costs about $50,000 – which is about one per cent of our rates – to have an election and if he wasn’t committed to it, we could save money.”

This is a weird look. The motivations may be benign, but it comes over self-serving.

For a start I doubt having no contest for Mayor would save $50,000 as there would still be elections for Council and two of the three wards have more nominees than places.

The Herald reports on polling done for the NZ Drug Foundation (by Curia) to ascertain NZer’s views on cannabis.

So there was strong opposition to people being able to sell in a store or grow to give or sell to friends.

There was majority support for legalising or decriminalising growing or possessing for personal use – around 52% for personal growing and 63% for personal possession. Those in favour of a law change are split around 50/50 between full legalisation and decriminalisation.

When it comes to medical use of cannabis, there is massive support for legalisation or decriminalisation. 79% support for pain relief and 82% for treatment for people with terminal illness.

What I found interesting is that National supporters also favour law changes with a majority wanting a change with regards to personal possession, pain relief and for people with terminal illnesses.

Stuff reports:

The man dubbed “Robel the whale”  has an explanation for his painfully slow swim in the 100m freestyle in Rio.

Ethiopian Robel Habte, who evoked memories of ‘Eric the Eel’ from Sydney in 2000 after it took him 1min 4.95sec to swim 100m on Tuesday (NZ time), was carrying extra weight after recovering from a car crash.

The 24-year-old was mauled on social media after the sluggish swim, which saw him become one of 59 entrants in the heats not to finish the distance in under a minute.

But the Olympic swimmer, who was traumatised by his online critics, told The Daily Mail Australia there was good reason for his slow time, 

He said the injuries suffered in a car accident two months ago in Addis Ababa saw him put on 40kg.

Habte fought to lose the weight in time to compete, but couldn’t shake it all off. 

However, he did manage to lose plenty of the flab he put on while he couldn’t train for two months. 

His weight ballooned to 120kg at one stage, before he got it down to 82kg for his 100m freestyle heat.

I’m calling bullshit on this.

To put on 40 kgs means consuming 360,000 more calories than you burn off. Over two months that is 6,000 excess calories a day. You typically burn off 2,000 calories a day so Habte would have to be eating 8,000 calories a day to put on 40 kgs in two months.

That would mean eating 16 Big Macs a day!

The more likely explanation is he has always been overweight (which is fine) but got selected for the Olympics not due to any particular ability in swimming, but because his father is head of the national swimming federation.

A reader writes:

You should have a look at the personal nastiness of the campaign Labour is running against Nick Leggett.

Little claims that his smearing of Nick as a ‘right wing’ candidate was justified because Little wants a disciplined party, not a debating society.

He could have just stated ‘Legget is running against an endorsed Labour candidate, so of course we can’t be seen to support him’ He went deliberately a lot further and smeared him intentionally.

Yep, so why did he go further?

But look at the successive posts on the Standard: There is not a single substantive policy critique of Leggett (or anyone else), or a positive platform in support of Lester. It is a series of nasty smears of anyone associated with Leggett. So, for example, someone helps Leggett with fundraising – they get smeared.

Guilt by association!

I wonder if those running the campaign against him by Labour can point to any policies of his they actually object to?

Bear in mind that Leggett is not running as an endorsed or supported candidate of a political party so he has to get his funding, volunteers and backers from somewhere. There is no suggestion of any policy link between support for Leggett from the smeared individuals and some intention Leggett has announced to do something bad, or a link to something bad he did at Porirua – where he has quite a long history of doing stuff.

It’s all just nasty, personal smearing.

What it shows is that the Little comments were not some one-off statement about Nash not attending a dinner and an insistence on discipline, but merely the most public part of a sustained campaign of vilification.

They seem desperate for Lester to win – to the point their parliamentary staff are producing videos for him.

This is revealing in another way – it is identical to the campaign of personal vilification that Labour has run against Key. This is not a by-product, it is strategy. Despite the fact that the strategy has not worked,  even slightly, for 10 years. Ten years of doing the same thing with the same result, and now they are doing it to yet another opponent.

A good point. This seems to be what they do best, or do most badly.

It is also revealing that Labour thinks its strongest lines of attack are not substantive but smearing – after 8 years in opposition, it still has no narrative, no policy case to make against the government and no platform of its own it feels confident in.

Ironically, all of this is from the very people who complained loudest about Dirty Politics. It would be very interesting to hear what Hager has to say about the vilification and smearing being practised by Labour, Little and The Standard against Leggett, and the obvious coordination between it all (noting there are clear personnel overlaps between the Little office and Lester campaign as well) 

I would be interested to hear how any of them believe it differs qualitatively from the activities retold in the Hagar book – and whether the gallery intend to ask about coordination as they asked Key.

Personally I’m more than a little dismayed – the left is on its knees, tactically this is more than  misguided, determined to repudiate any idea or personality who represents an alternative to the current drift and failure.

I won’t hold my breath waiting for a new book!

A guest post by David Garrett:

Introduction

The Court of Appeal has released its decision in the cases of two murderers who, if “three strikes” (3S) had been applied by the High Court as the law is written, would both have been sentenced to Life Without Parole (LWOP). The two cases are of great interest for a number of reasons: they are the first two such cases to be considered by the Court of Appeal, and the fact situations in both are very dissimilar. One thing applies to both however – and indeed to every other such case yet to come before the High Court – the offenders have benefited from the “manifestly unjust” provision in section 86E of the Sentencing Act.

Far from being rare and exceptional, as parliament clearly intended, it is little short of miraculous that in the five cases of second strike murder to come before the courts thus far, in all of them the Judges have found that to apply the law as written would be “manifestly unjust” and instead imposed “life” sentences with minimum non parole periods.

The facts

Both cases – R v. Harrison and R v. Turner – involved murder as a second strike offence. Other than that, both the offences and the offenders are rather dissimilar.

In R v. Harrison, a patched Mongrel Mob member of some thirty years standing was a party to a murder committed by a gang “prospect”. The victim was probably another gang member, although that is not certain. Although Harrison did not pull the trigger, the High Court found, and the Court of Appeal agreed, that both were involved in a “common criminal purpose”, and therefore although he didn’t actually shoot the victim himself, Harrison was just as guilty as the shooter.

Harrison had a long criminal history including a manslaughter in 1987, a conviction for wounding with intent to injure in 2005, and a conviction for assault in 2007.

His first strike offence – which put him in line to receive LWOP for murder – was what the Crown conceded was a relatively low level indecent assault. Harrison had brushed his hands over the breasts and buttocks of a female cop, and had been convicted of indecent assault. It is probably fair to say that if he was not a gang member, and the victim had not been a cop, he would probably have got away with common assault, or perhaps not been charged at all.

R v. Turner was a nastier case. Turner was a man of 29 who had lived on the streets since he was 15. He had a history of drug and alcohol abuse, and had amassed 110 previous convictions, 22 of them for violence. Although the usual claims of mental illness were made on his behalf, there was no evidence that he was mentally ill, either in the medical or legal senses.

Turner’s victim was a fellow homeless man who was about twice his age. After his arrest, Turner told police that he had visited the victim twice on the night in question, and returned a second time “sober as” with the express intention of killing him. Turner repeatedly stomped on the victim’s head over a period of about 30 minutes; mercifully it appears the victim was dead after the first couple of stomps.

Turner’s first strike offence was much more serious than Harrison’s – an assault with intent to injure inflicted on a former girlfriend. After a prolonged attack, the victim suffered traumatic brain injuries and had teeth knocked out. She was put on life support, and was hospitalized for 14 days. At the time he committed murder, Turner was on parole for the assault on his girlfriend, and had been out of jail only about two months.

The cases in the High Court – reasons for not imposing LWOP

In the High Court, both Harrison and Turner were convicted of murder. In both cases two different Judges declined to impose LWOP for different reasons, although both cited the disproportionality of LWOP. Harrison was sentenced to “life” with a minimum non parole period (NPP) of thirteen years. In his case, the Judge avoided what she acknowledged was the presumptive sentence of LWOP by reference to Harrison’s first “strike” offence – the low level indecent assault.

In her judgment, the Judge opined that parliament cannot have intended LWOP to be imposed for a second strike murder where the first strike offence was “relatively minor offending of its kind.” With the greatest respect to the Judge, I am aware of nothing said in the parliamentary debates from the government benches which supports such a conclusion. On the contrary, the entire regime was based on a list of “strike” offences, all being violent offences, and all carrying a maximum sentence of seven years in prison or more. The idea – of which more later – was that repeat strike offending would attract exponentially more serious punishment. Nowhere in debates was it said that if the first strike offence was relatively low level, the presumption(s) at strike two would change.

It is unarguable that Harrison’s indecent assault was at the lower end of the scale – the type of “drunken grope” which Graeme Edgeler pointed to as being problematic when the Bill was being debated. But again with respect, in my view that is not the point – Harrison was convicted of a first strike offence, and having committed murder as a second strike, there was no good reason not to apply the law as written.

The High Court in Turner found a different set of reasons for not imposing LWOP on him. The Judge focused on the fact that at 29 years of age, LWOP could lead to Turner spending up to 50 years in prison given his life expectancy of 75-80 years. He also said that because of his relative youth, it could not be said that he was beyond rehabilitation, although even the Judge thought his prospects of same very limited.

In both Harrison and Turner the High Court judges referred to the disproportionate sentences which would be imposed because of 3S unless the “manifestly unjust” provision was applied. With the greatest of respect to both Judges – and indeed the five Judge Court of Appeal bench which heard the appeals – if their Honours had read the parliamentary debates carefully, they would have known that it was exactly this disproportionality which was the entire point of the legislation! Instead of a series of incrementally slightly longer sentences for multiple instances of violent offending, 3S quite deliberately imposes an exponential two or three step regime: first offence just as before; second offence sentence to be served without parole; third strike offence to attract the maximum penalty for the offence in question.

Disproportionality was not only quite acceptable to the Nat-ACT government of the day, but was the intention, and this is made very clear if one reads the parliamentary debates, particularly at Committee stage. I recall making this point every single time a Labour member got up to bleat about disproportionate consequences for second or third strike offenders. While it is just possible to put Labour’s bemoaning this point down to ignorance or lack of understanding, one would not naturally come to either conclusion when talking about High Court and Court of Appeal Judges.

The cases in the Court of Appeal

In the Court of Appeal the Crown argued – quite correctly in my view – that the Judge in Harrison had effectively reversed the presumption in favour of LWOP for a second strike murder, and sought to find reasons to justify that reversal. The Court of Appeal did not agree.

Again, and somewhat perplexingly for me, their Honours focused on the disproportionality of the sentence of LWOP and the “life” with a 13 year minimum NPP which would otherwise be, and in fact was, imposed. Again with the greatest of respect to them, it seems to me that their Honours simply “didn’t get it”, or more concerning, perhaps they didn’t want to. As I have already noted, disproportionate sentencing outcomes at strike two and three was the entire point and intention of the legislation. Harrison’s sentence was left undisturbed: life with a minimum NPP of 13 years.

In Turner’s case the Court of Appeal were somewhat more critical of the sentencing Judge, and while LWOP was rejected, the NPP was increased from 15 to 17 years. In Turner the Judge at first instance had taken the view that because the murder in question was not “the worst of the worst”, and the defendant was not clearly beyond rehabilitation, parliament cannot have intended LWOP to be imposed on him.

The Crown argued – quite correctly in my view – that Turner was exactly the kind of violent offender, whose offending was getting exponentially worse, that 3S and its mandatory provisions was aimed at. Preventing further harm to innocent victims by incapacitation – locking them up – was always the primary purpose of the 3S regime. Rehabilitation or deterrence, if they occurred, would be happy bonuses.

The Court of Appeal held that the trial judge had erred in concluding that the presumption of LWOP at stage two for murder only applied to the worst murders. Their Honours went further, and pointed out that at the same time 3S was put in place, another amendment to the Sentencing Act was made which provided for LWOP for “the worst murders” regardless of an offenders strike history. (See s.103 (2A) of the Sentencing Act). That particular amendment – supported by both ACT and the Nats – went unremarked at the time because all the attention was on 3S.

The Court of Appeal also found that the trial Judge had erred in considering Turner’s prospects of rehabilitation, although they found that that error was not “fundamental” to the Judge’s overall conclusion that LWOP should not be imposed. The Court of Appeal Judges focused once again on the “disproportionality” of the LWOP sentence as compared with what would otherwise have been imposed – in Turner’s case, “life” with a minimum NPP of 15 years.

Again, and with the greatest respect to the Judges, I find it hard to follow their reasoning on this point – and it is certainly not supported by anything said in parliament on the government side, even when Simon Power was in charge of the Bill. In short, the Court of Appeal have decreed that, in deciding the meaning of “manifestly unjust” in the 3S context, it is their job to “balance” what is imposed prima facie by s.86E of the Sentencing Act (the section which imposes LWOP for a second strike murder) with s.9 of the Bill of Rights Act (BORA) which precludes “disproportionately severe” punishment.

In making that finding, the Judges purported to find that the intention of parliament was not inconsistent with their reasoning:

“We assume that Parliament, in introducing the new sentencing regime for repeated serious violent offending, intended that any sentence imposed on an offender should not be grossly disproportionate to the circumstances of the offending and the offender contrary to s.9 of the Bill of Rights Act…”

Again with respect, it seems to me that the Judges are taking it upon themselves to decide whether the sentences which 3S gives rise to are in breach of BORA, rather than acknowledging the correct position – that parliament enacted 3S fully aware not only that disproportionate sentences would result, but with that express intention.

Still, the Judges’ discussions on the BORA are not all bad news for the legislators. Although they pointedly left the full discussion for another day, it seems fairly clear that when the issue is addressed fair and square, the conclusion will not be that the legislation itself breaches the BORA. Their Honours noted with approval dicta in other cases which talk of “…conduct which is so severe as to shock the national conscience” and the Canadian test on their BORA: “conduct which outrages standards of decency”

Given that at the time the legislation was passed 87% of the public were in favour of it, it would be hard to argue that any aspect of 3S would meet that extremely high threshold. Although it is of course entirely unscientific, I have found that when the 3S regime is properly explained to them, even those who are generally on the left fully support it. The usual response is in fact “why not just one strike?”

The Crown may appeal the result of either or both cases to the Supreme Court – I have no idea whether they will. My guess is that they will not, but rather save their powder for another day, and a somewhat clearer case – perhaps a Turner type offender who is 45 and not 29. In the meantime, a further four LWOP cases are awaiting hearing in the Court of Appeal. The Judges’ approach to those cases must be consistent with their findings and conclusions made in these two. Given their conclusion that such cases are “intensely factual”, we may yet see an LWOP sentence imposed. Then of course, it will inevitably be off to the Supreme Court for a final decision.

It is extraordinary that in five out of five cases the judiciary has not given life without parole but found all of them would be manifestly unjust. The manifestly unjust provision was intended to be an exception for exceptional circumstances – not used in every case.

The Guardian reports:

Smith’s campaign received a fillip on Wednesday when he was endorsed by the GMB union after he won a ballot of its members, 60% to 40%. Its general secretary, Tim Roache, said: “GMB members cannot afford for Labour to be talking to itself in a bubble for the next five years while the Tories run riot through our rights at work, our public services and our communities.”

Corbyn’s allies blame the result on “GMB political officers close to Watson” and claimed the ballot question “Who do you think is best placed to lead the Labour party to a general election victory and serve as prime minister?” was a leading one, because it made reference to electability.

Oh yes how awful that the members considered electability.

Labour’s civil war entered a bitter new phase with Jeremy Corbyn and his deputy Tom Watson locked in a public spat about whether the party risks being taken over by hard left activists driven out in the 1980s.

Watson sent the leader’s office a four-page document, based on publicly available information, detailing what he said was evidence that Trotskyists had been attending meetings of grassroots pro-Corbyn Momentum pressure group and seeking to influence the Labour leadership election.

Corbyn is effectively a Trotskyist, so this is no surprise.

The Socialist party published an editorial on Tuesday which argued for a Labour split, even if it meant the party was left with just 20 MPs. “The civil war, now it is out in the open, cannot be simply called off,” the editorial said.

Glorious victory is in sight!

The Herald editorial:

It is a brave regulator who would claim official licensing paperwork is superior to the constant customer assessments that are commonly available for internet-based services. If the service is making available to users the impressions, observations and experiences of previous passengers, these would be a far more searching and reliable measure of safety than the routine checks of departmental registers. Police and medical records will not contain more than a fraction of those who might not be suitable, and will bar some who have outgrown youthful crimes.

The internet is making many activities safer, and Uber is no exception. Its app provides regular checks on where the vehicle is and the route it is taking. Its lower costs and online payment system make it attractive to many, but not to everybody. Some people do not like the idea of riding in a car that feels like what it is: a stranger’s personal or family vehicle. There will continue to be a market for well-presented commercial taxis in which the passenger can preserve the detachment of a paying customer.

Traditional taxi operators insist Uber drivers should be subject to the same licensing requirements they face. The Transport Minister seems to agree with them. But his only concern should be public safety.

He needs to ask whether licensing procedures devised in a pre-digital age are still warranted when passengers carry personal tracking transmitters and mobile movie cameras and, perhaps more important, every driver knows it. It should not be taking three months and thousands of dollars, or even hundred of dollars, for people to become an Uber driver.

If conventional taxi firms feel this is required for public safety, they can continue to require P endorsements – and promote the fact they offer that level of safety, for what it is worth. Uber is equally confident its screening procedure is sufficient for “the safety outcomes the travelling public want and expect”. It wants to help the Government find a more flexible licensing framework, one more in tune with the future.

What would be interesting is to do an experiment. Allow both models of “safety” and see at the end of a year which has had the fewest incidents.

Stuff reports:

A teacher training programme that fast-tracks graduates into low decile schools has been extended to help ease teacher supply issues.

Teach First, a programme developed by the University of Auckland and the Teach First NZ Trust, recruits high-calibre graduates to do an intensive eight week course before starting work in low decile schools where they’re bonded for two years.

Education Minister Hekia Parata has extended the programme for another three years to train 40 new secondary school teachers and an additional ten places focused on science, technology and maths, which are subject shortage areas.

Great. The US programme this is based on has been a huge success at getting motivated young graduates into schools with under-privileged children.

Stacey Kirk writes:

Labour’s gift horse has well and truly bolted.

The party started the week polling in one of the strongest positions it’s been in since leader Andrew Little took the reins. 

With the help of the Greens, Labour began neck and neck with National. And against a Government that should have been besieged on multiple fronts – still struggling with a housing crisis and questions over its handling of potential trade threats from China.  …

What came the day after however, was simply ineptitude. 

Ignoring the fact that Trade Minister Todd McClay was the weak link on the issue over China’s trade retaliation threats, Little took the lead and tried to make the muck stick to Prime Minister John Key instead. 

To do that, it pays to get the facts right first. 

In the house, Little questioned the PM over whether the “Government’s decision not to investigate substandard Chinese steel imports” was connected to trade threats from China. 

Actually, no such decision has been made, and the allegation is around steel dumping, not quality per se. 

He also asked whether exports “blocked” from entry into China was a similar coincidence.

Again, nothing has been blocked, and the decision by Zespri to defer a week’s worth of shipments was its own in response to temporary barriers put up by China. 

Key strolled through, unscathed. It should be said, of no special skill of his own. 

The lesson was apparently learnt, with trade spokesman David Clark taking over in following days – going slow and steady, but most importantly – well researched and focused. 

Little did so badly in the house he had to sack himself and hand the questions over to David Clark!

Labour entered the week with a podium position on a platter, but Little dropped more poles than New Zealand’s equestrian team.

That’s not going unnoticed by the caucus.  

Nope.

Stuff reports:

Drysdale made his move in the third 500m, overtaking early pacesetter Martin as the pair left Ondrej Synek in their wake and battled for gold.

The Kiwi, who won the same event in London four years ago, took an almost boat-length lead at one point before Martin pushed back and looked to have got over Drysdale in the final stretch. However, Drysdale put in a couple of big strokes to the line, winning by the narrowest of margins.

“That was absolutely amazing,” Drysdale said. “It could have gone either way.”

He timed his big push perfectly. Incredible finish.

Education Stats

Good to see most of the indicators heading in the right direction. Also good just to see more standardised data so we can see where the most support is needed.