Friday, February 21, 2020

A mixed week for freedom of speech

It’s been an interesting few days for anyone with an interest in free speech. There's been one positive development, one negative and one inconclusive.

First came the surprise announcement last Friday that Sir Robert Jones was abandoning his defamation case against film maker Renae Maihi.

To recap: Jones wrote a self-evidently satirical column for National Business Review* in which he suggested that Waitangi Day should be replaced with Maori Gratitude Day.

“I have in mind a public holiday where Maori bring us breakfast in bed or weed our gardens, wash and polish our cars and so on out of gratitude for existing,” he wrote.

It was classic Bob Jones: wilfully provocative but quite funny, not least because it was outrageous in a Private Eye-ish fashion. And while it was clearly not meant to be taken seriously, he was making a valid point – namely, that for all the talk about the harm done to Maori by British colonisation, they benefited in ways that are not often talked about. The fact that colonisation brought an end to slavery, cannibalism and savage inter-tribal warfare must surely count for something.

But Maihi didn’t see the joke. Describing the column as a vile rant, she called Jones a racist and launched an online petition urging that he be stripped of his knighthood. (The petition, which reportedly attracted 85,000 signatures, was twice submitted to Parliament but not accepted for consideration.)

Jones sued, but not for damages. All he wanted was a declaration from the court that he was defamed and an order for Maihi to pay his costs, though he left open the question of whether he would accept her money. He took particular exception to the claim that he was racist.

I found myself in the unusual position of supporting both parties. You can understand why Jones objected to being called a racist – a deeply offensive term that is thrown around far too freely, often with the aim of intimidating people into silence.

But it seems unrealistic to exercise your right to free speech, as Jones did, then call in the lawyers when someone strikes back. Even allowing for the argument that the word racist should be viewed as technically defamatory, the free market of ideas and opinions is a rough-and-tumble place where you can expect to be bruised. Jones knows this, and has inflicted more than a few contusions himself over the decades.

It seems to me that the more provocative a columnist is, the more he or she should be prepared to tolerate blowback. The old saying about heat and kitchens applies. This might not be a view that would stand up in court, where prolix legal arguments often succeed in making simple things seem complex, but I think it’s a fair and reasonable one.

There was also the perception that a man with very deep pockets was using the law to squash a critic whom we can safely assume didn’t have a lot of money to fight an expensive defamation action. Of course Jones was entitled to exercise his legal rights, but rich property investor versus young(ish) Maori film maker was never going to play well.

In my view, then, for what it’s worth (which I admit is probably bugger-all), Jones should have sucked it up. 

As it turned out, he discontinued the action anyway, after five days. In a conciliatory statement, Jones said he remained deeply offended by Maihi’s allegations but accepted that she was expressing a sincerely held opinion. One wonders why he couldn’t have come to that conclusion in the first place.

Jones went on to say that the parties differed on what was acceptable humour, but no malice was intended by either side and it was sensible to put an end to the proceedings.

It was an uncharacteristic backdown from the old warhorse, and one wonders whether his heart was in it. Perhaps he sensed things were going badly in court (the news and comment website The Spinoff carried a savage critique of his performance in the witness box) or simply decided that he didn’t need this sort of carry-on at his stage in life (he’s 80). Who knows?

I was disappointed by the non-outcome because I thought this might be an opportunity for a judge to attempt a definition of that troublesome word “racist”. The term is used so indiscriminately that it would be helpful for the courts to pin down its meaning and rule on whether it can be defamatory (I would have thought yes, in which case I’ve been defamed more than a few times myself). But I guess we’ll have to wait.

As it happens, on the same day as Jones’ defamation case came to its non-conclusion in Wellington, a High Court judge in England was delivering a judgment that applies some overdue common sense to another vexatious and overused term: hate speech.

I’ve already outlined the bare bones of this case in the COLUMN posted on this blog yesterday, but you can read Mr Justice Julian Knowles’ judgment in full HERE. It lays bare the frightening extent to which the British police have been contaminated by the fashionable ideology of identity politics.

The facts of the case were that a man named Harry Miller posted a series of comments on Twitter that upset a “post-operative trans-gender lady” identified as Mrs B. (In passing, it strikes me as fundamentally unfair that the complainants in such cases have the protection of anonymity while those they accuse – often unfairly, as in this instance – must suffer the unpleasant consequences of being publically named.)

Miller, a former police officer whom the judge described as intelligent and highly educated, opposed government moves to enable people to “self-identify” as trans-gender. He objected to the distortion of commonly understood biological concepts such as male and female – a concern shared by many feminists – and thought that self-identification posed a threat to existing sex-based rights. He also objected to the politicisation of the police in their “open campaigning” in support of the law change.

He told the court he had no hatred for the transgender community and believed “such persons have the right to present and perform in any way they choose, provided that such choices do not infringe upon the rights of women”. But he wanted to raise awareness of the issue “by stating that which used to be instinctively obvious – a biological man is a man and a biological woman is a woman. To claim otherwise is extraordinary.”

A friend of Mrs B drew her attention to some of Miller’s tweets and she complained to the Humberside police, describing Miller as transphobic and “a bigot” who “eighty years ago … would have been making the same comments about Jewish people”.

So what was the nature of these heinous tweets that evoked comparisons with Nazism? One tweet dismissed as “bollocks” the notion that “transwomen are women”.  In another, Miller joked about being assigned mammal at birth when his real orientation was fish – thus poking fun at the idea that people could create their own biological reality. On another occasion he retweeted a verse from a song by a feminist songwriter which referred to silicone breasts, synthetic hormones and a vagina that “goes nowhere”. The judge said this was the tweet that most concerned the police, though it’s not clear why.

Justice Knowles said the police recorded the matter as a hate incident without any critical scrutiny of the tweets or assessment of whether what Mrs B was saying was accurate, which he ruled it wasn’t. A hate crime report referred to Mrs B as “the victim” and Miller as “the suspect”.

A later entry in the police file said Miller had been making comments that were “designed to cause deep offence and show his hatred for the transgender community” – a claim for which the judge said there was no evidence.

The complaint was placed in the hands of a Constable Mansoor Gul, who is described as a “community cohesion officer”. His witness statement reveals the startling extent to which rank-and-file British police officers are empowered to form what are essentially political judgments about matters they are investigating – to say nothing of their susceptibility to faddish ideology.

“Where I am assigned a hate incident to investigate,” Constable Gul said in his witness statement, “I review the report and decide whether it has been correctly classified as a hate incident. If, having reviewed the evidence available and spoken to the victim, I consider it to be more serious than a hate incident, then I can recommend that it be re-classified as a hate crime.”

PC Gul viewed screen shots of the tweets supplied to him by Mrs B and formed the view that they were properly treated as a hate incident. Having considered the risk of matters escalating to criminal offences being committed, he decided to speak to Miller.

He went to Miller’s place of work. Miller wasn’t there, so he left his card with a company director with a request that Miller phone him. Gul wasn’t in uniform, but the company director would have known he was a police officer and must have wondered what Miller had done to warrant police attention.

Gul said that in their subsequent phone conversation, he explained to Miller that although the tweets were not criminal, they were upsetting many members of the transgender community [in fact only one, as the judge was at pains to point out]. Gul told Miller that although his behaviour did not amount to criminal behaviour, if it escalated then it might become criminal and the police would need to deal with it appropriately.

Gul said he was acting in line with national guidelines known as the Hate Crime Operational Guidance (HCOG), which are issued by the College of Policing – the first defendant in the action.

Miller testified that he asked for, and received, confirmation that none of his alleged 30 tweets were criminal. He then asked why Gul was wasting his time and was told: “I need to check your thinking”.

“I replied: ‘So, let me get this straight, I’ve committed no crime. You’re a police officer. And you need to check my thinking?’ PC Gul answered: ‘Yes’.

“I said, ‘Have you any idea what that makes you? Nineteen Eighty-Four is a dystopian novel, not a police training manual.’”

At this point in his judgment, Justice Knowles helpfully explains that Nineteen Eighty-Four is the 1949 novel by George Orwell which coined the term ‘thoughtcrime’ to describe a person's politically unorthodox or unacceptable thoughts.

Miller said the clear implication from the conversation with Gul was that he should stop tweeting on transgender issues or risk the matter being escalated from non-crime to crime, thus promoting further police intervention.

As the British columnist Melanie Phillips acidly observed: “Got that? A non-crime can morph into a crime simply by virtue of the non-crime being committed on multiple occasions.”

But it was what came next in the conversation with Gul that “stunned” Miller.

“He [Gul] said, ‘You have to understand, sometimes in the womb, a female brain gets confused and pushes out the wrong body parts, and that is what transgender is.

“I replied, ‘You’ve got to be kidding me. Wrong body parts? You have to know that is absolute bullshit. Is this really the official police line?’ PC Gul said, ‘Yes, I have been on a course’.”

In his witness statement, Gul denied saying this. But given that Justice Knowles found other statements by Gul to be incorrect, I know whose account I’d believe.

The judge said Miller experienced a deep sense of personal humiliation, shame and embarrassment as a result of the police action and hadn’t been back to work since the day he was first contacted by PC Gul. It’s interesting to contrast this with the total absence of any adverse consequences for the mischievous complainant, Mrs B.

Justice Knowles was sharply critical of PC Gul, saying he had “misrepresented and/or exaggerated the effect the Claimant’s tweets had had and the number of complaints the police had received”.

He went on to say that the police left Miller with the clear belief that he was being warned by them to desist from posting further tweets on transgender matters. “In other words, I conclude that the police’s actions led him [Miller], reasonably, to believe that he was being warned not to exercise his right to freedom of expression about transgender issues on pain of potential criminal prosecution.”

I’ll skip the next 30-odd pages of Knowles’ 65-page judgment, which are largely concerned with argument over the legality of the Hate Crime Operational Guidance, which Miller challenged. 

Knowles upheld the legality of the HCOG, which arose from recommendations made by the Macpherson Inquiry that followed the racially motivated killing of black teenager Stephen Lawrence in London in 1993. But to quote Melanie Phillips again: “It was the toxic and ideologically distorted Macpherson report which led to the introduction of the Orwellian concepts of hate crime, the replacement of objective reality by subjective ‘victim’ opinion and the policing of thought itself.”

Let’s fast-forward now to the last section of the judgment, where Knowles considers the specific issue of Miller’s treatment by the police. He doesn’t hold back: “It is clear that there are those on one side of the [transgender] debate who simply will not tolerate different views, even when they are expressed by legitimate scholars whose views are not grounded in hatred, bigotry, prejudice or hostility, but are based on legitimately different value judgments, reasoning and analysis, and form part of mainstream academic research.”

He held that Miller’s tweets were protected by Section 10.1 (Freedom of Expression) of the UK Human Rights Act. They were expressions of opinion on a topic of current controversy and were congruent with the opinions of respected academics.

Gul had no rational basis on which to believe there was any risk of Miller committing a criminal offence, Knowles said. “There was no firm evidence that anyone had read his tweets and been upset, apart from Mrs B. There was no evidence anyone would read any future tweets and be upset by them.” He added that Gul was wrong to say that the tweets had upset many members of the transgender community. “There was no evidence of that and Mrs B does not say that in her witness statement.”

As for Mrs B, Knowles commented: “I consider it fair to say that her reaction to the Claimant’s tweets was, at times, at the outer margins of rationality.”

Knowles went on to say: “The undisputed facts plainly show that the police interfered with the Claimant’s [Miller’s] right to freedom of expression. PC Gul’s actions in going to the Claimant’s place of work and his misstatement of the facts, his warning to the Claimant, coupled with the subsequent warnings by the police to the Claimant that he would be at risk of criminal prosecution if he continued to tweet ... all lead me to conclude that the police did interfere with his Article 10(1) rights even though he was not made subject to any formal sanction.”

Arguments advanced by lawyers for the police did not properly reflect the value of free speech in a democracy, he said. Then this: “There was not a shred of evidence that the Claimant was at risk of committing a criminal offence. The effect of the police turning up at his place of work because of his political opinions must not be underestimated. To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.” He held that the police’s actions, taken as a whole, had a chilling effect on Miller’s right to freedom of expression.

Knowles concluded his judgment by quoting from John Stuart Mill’s 1859 treatise On Liberty: “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”

It was an emphatic defence of free speech in a country that has been waiting a long time for one. In the meantime, as Melanie Phillips has written, Britain has fallen into a “terrifying state of authoritarian imbecility”. Whether one judge’s ruling will be enough to arrest the process remains to be seen.

I’ve taken the trouble to describe this case in some detail because it’s relevant to New Zealand. While our police force hasn’t been politicised in the way Britain’s has, there’s no guarantee it won’t happen.  The same angry, illiberal ideological forces are in play here, and we have a police commissioner who has made sympathetic noises about the need for "hate crime" and "hate speech" to be more actively policed.

We certainly shouldn’t expect government politicians to defend free speech – not when the Minister of Justice has seized the Christchurch mosque massacres as a chance to crack down on opinions that upset aggrieved minority groups, and when the comically misnamed Human Rights Commission promotes restrictions on what New Zealanders should be allowed to say.

That the prevailing climate is one of dangerous censoriousness was again demonstrated this week by the SkyCity convention centre’s decision to cancel a speaking engagement by the controversial Australian philosopher Peter Singer. In a particularly nauseating example of PR-speak, a spokesperson said: “Whilst SkyCity supports the right of free speech, some of the themes promoted by this speaker do not reflect our values of diversity and inclusivity.”

What bullshit. If SkyCity truly believed in free speech, it would honour its contract with the promoter of the event. And if it truly valued diversity, it would recognise that this must extend to diversity of opinion.

In truth, a gutless SkyCity bailed out because it was worried about “reputational damage”, to use another hideous PR term. It appears to have been unnerved by the possibility of disability activists protesting against Singer.

Why should disability activists protest? Because Singer has argued that parents of seriously disabled babies have a moral right to kill them.

It’s a stance I consider utterly repulsive, but it won’t become less repulsive if Singer is denied the chance to talk about it. Barring him from speaking may simply enhance his mystique among those who are drawn to "edgy" thinkers.

Besides, Singer’s abhorrent ideas serve one useful purpose: they highlight the hypocrisy and inconsistency of prevailing attitudes toward abortion. Because if people are appalled by the thought of newborn babies being euthanased, how do they justify babies being killed in the womb – especially those that have passed the point where they can survive on their own? What’s the qualitative difference? Where is the line to be drawn, assuming one can be drawn anywhere?

Singer’s de-platforming follows similar action taken against the Canadian speakers Stefan Molyneux and Lauren Southern in 2018, which prompted the formation of the Free Speech Coalition, and even more reprehensibly against Don Brash by Massey University. 

Not surprisingly, commentators on the left who applauded the banning of Molyneux and Southern are appalled that it’s now happened to Singer – although they don’t explain what the difference is, other than that they hated the right-wing Canadians but regard Singer as “a category of thinker we should pay attention to”, to quote The Spinoff’s Danyl Mclauchlan.

Myself, I believe it’s vital that people support Singer’s right to speak in Auckland, notwithstanding his abhorrent view on the killing of disabled babies. We should also support the right of disability activists to protest, provided they don’t try to deny people access to the venue or seek to disrupt the event (and as far as I know, that wasn’t their intention).

After all, that’s how a liberal democracy is supposed to function: by allowing people to engage freely in the contest of ideas. As the American academic Noam Chomsky, himself a darling of the left, once said: “If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.”

* To its eternal shame, National Business Review later removed Jones’ column from its website, citing “inappropriate content” – a weaselly phrase beloved of people who lack the courage to stand up to the enemies of free speech.

Pardon me, but there's a reason why abortion is in the Crimes Act

(First published in The Dominion Post and on, February 20.)

Ever heard of Ulrich Klopfer? Probably not. Let me fill you in.

Klopfer was a doctor in the state of Indiana who died last year aged 79. Relatives clearing out his garage made a grisly discovery: 71 cardboard boxes filled with 2246 aborted foetuses.

Another 165 foetuses were found in the boot of one of Klopfer’s cars. It sounded like a scene from The Silence of the Lambs.

Klopfer was estimated to have carried out at least 50,000 legal terminations. He took pride in aborting babies with industrial efficiency and no small amount of zeal.

He would compete with a fellow abortionist, Dr Ming Kow Hah, to see who could achieve the higher tally. The two rivals in this grotesque contest would ask clinic staff how many patients the other had operated on that day. A former nurse recalled: “Klopfer would be having a cup of coffee and be on his last sip when he’d jump up and say, ‘I’d better get going or Hah will have the whole recovery room full’.”

Even the most ardent champion of abortion rights might find it difficult to excuse such chillingly casual indifference to human life. It speaks volumes that Klopfer didn’t even have enough respect for the aborted babies to give them the dignity of a proper burial.

Reading about Klopfer’s enthusiasm for his work prompts comparison with the Nazi doctor Josef Mengele, who took pleasure in selecting inmates for the gas chambers of Auschwitz. Klopfer and Mengele represent different points on a continuum, but probably not so far removed from each other that they wouldn’t recognise a kindred spirit.

The macabre find in Klopfer’s garage happened months ago, but it was in the news again last week when the foetal remains were finally given a proper burial. Meanwhile, in Wellington, a parliamentary select committee delivered its report on a bill that will remove virtually all remaining obstacles to abortion in New Zealand. The multi-party committee waved the bill through with only minor changes, but with a dissenting minority report by National MP Agnes Loheni.

The bill, which will be subject to a conscience vote, has been sold politically on the basis that it’s all about women’s health, but the “health” shtick is a fiction. Pregnancy is not an illness and abortion is decidedly unhealthy for the foetus. It’s really all about ideology.

In essence, the bill will make abortion a matter between a woman and her doctor up until 20 weeks’ gestation – in other words, no impediments.

After 20 weeks, the doctor carrying out the abortion would need to be satisfied that termination was “appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing”. It’s a vague, subjective test that will be as open to abuse as the present law.

A curious aspect of the select committee’s report is that committee members were worried at the possibility of abortions being carried out for the purpose of sex selection – that is, by people who want male babies. It seems abortion is okay in all circumstances other than those that offend feminist sensibilities.

Significantly, it seems there will be no upper time limit on the point at which an abortion could be carried out, meaning that theoretically babies could be aborted well past the point where they are capable of survival outside the womb – an issue that concerned Loheni, and which would almost certainly provoke public revulsion if it eventuated.

If passed as expected, the bill will formalise the de facto situation that already exists, under which certifying consultants routinely approve abortion requests. But it will be celebrated as a triumph for women’s rights, because the existing law’s procedural requirements have infuriated abortion activists for decades.

The bill will also satisfy their insistence that abortion be decriminalised – not  that anyone can remember any woman in New Zealand being prosecuted for having one.

On the other side of the debate, liberalisation of the law will be lamented as a victory of doctrinaire feminist ideology over the right to life of the unborn child. In one of the defining ideological battles of our time, the side with the weaker political voice will be the loser.

Overlooked in all the debate is the reason that abortion was placed in the Crimes Act in the first place: because it involves extinguishing a life, which in any other context is regarded as a violation of the most fundamental human right of them all.

Disregard the right to life, and we make possible the monstrous behaviour of men such as Ulrich Klopfer. Because if we accept that a foetus is something inconvenient to be cut out and discarded like a troublesome appendix or a tumour, that's where we risk ultimately ending up. It's only a matter of degree.

Thursday, February 20, 2020

Not before time, an English judge upholds the right to free speech

(First published in the Manawatu Standard and on, February 19.)

Until a few days ago, I hadn’t heard of Mr Justice Julian Knowles. Neither, I daresay, had many other people. But we owe Mr Justice Julian Knowles a debt of gratitude for driving a long-overdue stake into the ground in defence of free speech.

Knowles, a judge of England’s High Court, presided over a case in which a man named Harry Miller challenged the legality of police action taken against him over comments he had made on Twitter relating to trans-gender women.

Miller opposes planned law changes that would make it easier for people to legally change their gender. Along with many British feminists, he’s concerned that this would allow traditionally female spaces – for example, women’s changing rooms, women’s gyms and women’s refuges – to be invaded by people who are biologically male but identify as female.  

In one tweet, Miller questioned whether “trans” women were real women. In another, he commented satirically: “I was assigned mammal at birth, but my orientation is fish” – thereby ridiculing the notion that people can change a biological reality.

Someone going by the name of Mrs B, who was described in court as a “post-operative trans-gender lady”, complained to the police that Miller’s tweets were trans-phobic.  The police duly recorded the complaint as a “non-crime hate incident” and sent a constable to Miller’s workplace to give him a talking to.

Miller wasn’t there, so the officer, showing scant respect for his privacy, left his card with a company director and asked that Miller phone him.

In the subsequent phone conversation, the constable accused Miller of promoting hate. He said a “hate incident record” would be kept on file and any further similar comment on Twitter could be treated as a criminal matter. A file note referred to the anonymous Mrs B as “the victim” and Miller as “the suspect”.

Miller gave evidence – though it was disputed – that the constable then gave him a brief lecture about how, in the womb, a female brain could get “confused” and generate the wrong body parts. He said he knew this from a police course he had been on.

Here, writ large, is an example of what can happen when valid expressions of opinion are criminalised as “hate speech” and ideologically captured police officers are empowered to make subjective judgments about what constitutes “hate crime”.

It’s hardly the first such case. In 2001, a Liverpool pensioner put up a UK Independence Party poster bearing the words “Keep the pound, Leave the EU”, “Don’t Forget the 1945 War” and “Free Speech for England”. He was arrested and charged with racially aggravated criminal damage.

In the same year, police ordered an Essex baker to take down a poster promoting English bread with the slogan “None of that French rubbish” because they believed it would stir up racial hatred.

But Miller struck back, claiming the police were using George Orwell’s novel Nineteen Eighty-Four, set in a totalitarian state where people are arrested for thought crime, as an operating manual.

He went to court – and fortunately for all of us who live in supposedly open, liberal democracies, he struck a judge who largely agreed with him.

In a 65-page judgment, Justice Knowles ruled that the police had acted unlawfully and disproportionately interfered with Miller’s freedom of expression. He went on to say: “In this country we have never had a Cheka, a Gestapo or a Stasi” – a reference to secret police organisations notorious for ruthlessly seeking out and punishing dissenters.

The judge pointed out that the tweets had been recorded as a hate incident “without any critical scrutiny … or any assessment of whether what she [the anonymous Mrs B] was saying was accurate”. He said there was not a shred of evidence that Miller was at risk of committing a crime.

You might well wonder how it could be that in Britain, once a beacon of liberty, over-zealous cops now act as state censors. It seems to have originated as an extreme over-reaction to the 1999 Macpherson Report, in which police were castigated for their shortcomings – including “institutional racism” – in investigating a racially motivated killing in London. Since then, the UK police have gone all-out to demonstrate their solidarity with minority groups.

Whether Knowles’ ruling will serve to curb the abuse of police powers remains to be seen. In the meantime, it’s highly relevant in New Zealand, for two reasons.

The first is that our judges traditionally take note of developments in British law and are often guided by them. But more to the point, there is mounting pressure from government politicians and the Human Rights Commission for the police to be similarly politicised here.

The Christchurch mosque massacres provided the enemies of free speech with an ideal opportunity to criminalise legitimately held opinions on the pretext that "hate speech" must be deterred. But that's a sure path to authoritarianism, and anyone wanting evidence of the threat it would pose to traditional freedoms need only read Justice Knowles' judgment.

Wednesday, February 19, 2020

Why we should be concerned about a TVNZ-RNZ merger

I sometimes get the feeling that the lobby group that calls itself the New Zealand Taxpayers’ Union is seen by journalists as a front for the National Party. This would explain why it doesn’t always get the media attention it deserves.

The perception of political partisanship is understandable, given that one of the NZTU’s co-founders was opinion pollster and Kiwiblog owner David Farrar, who is closely associated with National.

But it’s also unfair, because since its establishment in 2013 (under a National government, as it happens), the NZTU has generally been consistent and even-handed in its attacks on the wasteful use of taxpayers’ money. It was often critical of National when the party was in power and has even supported Labour policies.

If anything, this places it more in ACT’s ideological territory than National’s. National may profess to believe in limited government, but the party has often been happy to spray money around if there was political advantage to be gained.

The NZTU has further demonstrated its worth by monitoring local government spending. Some of the outrageous rorts perpetrated by councils and their misnamed bastard children, the so-called council-controlled organisations, might have escaped public attention if it weren’t for the union’s vigilance.

Whistle-blowers such as the NZTU should be especially valued in an election year, when political parties go all-out in a shameless bidding war for votes. The public needs to be constantly reminded that it’s our money they’re generously volunteering to spend – and in many cases, waste.

The Provincial Growth Fund calls for particularly close scrutiny, although we probably have to accept that we’ll never know the true cost of the prize demanded by Winston Peters in return for his puny 7 per cent share of the vote at the last election.

That’s because the PGF – alternatively known as the New Zealand First Survival Fund – makes nonsense of all normal rules relating to transparency and accountability.  

But it wasn’t irresponsible spending that prompted one of the NZTU’s recent public statements. Demonstrating that it also keeps an eye on wider public-interest issues, the union asked some sharp questions about the government’s proposal to merge the two state-owned broadcasters, RNZ and TVNZ.

People forget that we have been down this road before. State radio and television co-existed under the same organisation, the New Zealand Broadcasting Corporation, until 1975, when they were split into separate entities.

What’s more, both radio and TV earned revenue from advertising without compromising the public service broadcasting ethos – so contrary to broadcasting purists’ fears, it’s possible to manage the conflict between the two.

But the media environment is very different now, and as the NZTU statement pointed out, the prospect of a TVNZ-RNZ merger raises other issues. These relate to such crucial democratic concerns as freedom of expression and diversity of information sources.

At a time when most privately owned media outlets are struggling to survive, a taxpayer-funded super-broadcaster would wield enormous power. Cushioned by state funding while still free to earn commercial revenue, it could push private competitors to the wall. A probable consequence is that New Zealanders would be deprived of alternative sources of information and opinion. 

Almost inevitably, such a monolithic broadcaster would lean politically to the left. That’s the default setting of state-owned broadcast organisations internationally, and there’s no reason to suppose things would be different in a New Zealand super-broadcaster. The evidence is there already.

As NZTU spokesman Louis Houlbrooke said: “In today’s opinion-led, personality-dominated media environment, journalism tends to push one political narrative or another.

“This is tolerable when audiences have a choice of outlets – we can always switch to a different channel. However, problems arise when the government tries to convert commercial operators into ‘public service’ platforms, with taxpayers forced to fund material they find politically distasteful.”

Houlbrooke urged Broadcasting Minister Kris Faafoi to instruct consultants PwC, who are putting together a business case for the merger, to include a requirement for political diversity.

Well, I won’t be holding my breath. As things stand, there’s a real risk that a left-of-centre government will green-light the merger proposal without much, if any, consideration of the need for an informed democracy to have access to a wide range of information and opinion. After all, it suits Labour and the Greens to have a powerful broadcasting organisation that’s broadly sympathetic to their political agenda.

All of this raises another important issue highlighted by NZTU chairman Barrie Saunders, a former journalist with public broadcasting experience. [Disclosure: Barrie Saunders is an old friend of mine and a former colleague.]

As Saunders says, the future of state broadcasting is too important to be left to politicians and broadcasting chiefs with their own agendas. Labelling the proposed restructuring process “disgraceful”, he called for cross-party involvement and public input. Proper practice, he said, would be for the government to issue a White Paper for public discussion.

After all, as Saunders pointed out, there’s no urgency – unless, of course, the process is being driven by political self-interest.  

Monday, February 10, 2020

Guest post: Andy Espersen on the treatment of mental illness

Regular readers of this blog may recognise the name Andy Espersen. Not only is Andy an occasional commenter, but he was mentioned in a Dominion Post column of mine in February 2018, which was reproduced on this site. Now in his 80s, Andy (who emigrated to New Zealand from Denmark) spent 40 years working in psychiatric institutions and has campaigned tirelessly on the issue of care for people with a mental illness - more specifically, schizophrenics. A central thrust of his argument is that many schizophrenic people now living in the community would be much better off in institutional care - an option denied them by the Mental Health Act of 1992.  It's an issue I have some knowledge of, having had a brother-in-law with schizophrenia.

Last year, a parliamentary select committee "took note of" a petition presented by Andy seeking a royal commission into harm suffered by schizophrenia sufferers as a result of the closure of mental hospitals. The committee's essentially sympathetic report on his petition is reproduced HERE. But Andy is dissatisfied with the outcome of the government inquiry into mental health, whose report the committee repeatedly cites, and wants to keep the debate going. I'm very happy to provide him with this platform. 

Been and gone is the million-dollar, much-vaunted Inquiry into Mental Health and Addiction, chaired by Ron Paterson.  The Government has accepted most of its  recommendations, including its main recommendation, namely the repeal and replacement of the 1992 Mental Health Act.

It is odd that this has not engendered any  reaction from interested parties such as district health boards and the Mental Health Foundation. I remember very well the furore and debate when this Act came into being.  It replaced all previous mental health legislation which was based on our first such legislation (of 1846).  In the report's chapter 11 (p.191)  we read, “New Zealand needs a national level discussion to reconsider  beliefs, evidence and attitudes about mental health and risk (sic)”. So let me start the ball rolling   -  noticing that until now we have had only a deafening silence. The Inquiry report brazenly declares the 1992 Act  “out of date”  -  but it most certainly does not back this statement up with adequate reasons. Quite the opposite: the report displays total incomprehension as to why we need mental health legislation in the first place  -  namely, to be legally able to contain  and protect totally vulnerable, demented people.  Let me explain :

If you Google the question, “Why do we need mental health legislation?”, you get answers such as, “The legislation sets out special rights to protect you if you are being assessed or treated for mental illness without your consent, and your rights if you are under compulsory assessment or treatment”. In other words, the Act is there to protect you against excessive intrusion into your personal autonomy by authorities. But the reason for our original 1846 legislation was to protect you as an individual from the terrible effects of the illness  -  and to protect you from being held responsible for criminal actions committed by you while demented. 

There is a world of difference between these two paradigms. One puts the responsibility for applying the legislation in a particular case on a psychiatrist who must assess the degree and quality of the patient's volition to decide whether to apply the law or not.  The other makes it mandatory to apply the law, simply because the person is demented – and traditionally, this was never determined by psychiatrists (these being a very recent invention).  This was decided in a court of law  -  often by a jury.

The 1992 Act had  two consequences which represented a radical change in the philosophy governing the  treatment of mental illness that had prevailed since the European enlightenment.  Firstly, it removed a mentally ill person's  legal right to asylum for life.   Since 1846 a mentally ill person had a legal right to be admitted (or before the voluntary inpatient legislation in 1960, "committed"), to a mental hospital  - simply because of being mentally ill.  Secondly, it removed society's  right and duty to contain an obviously mentally ill person and place him (or her) in a mental hospital. This proviso, of course, was both to protect psychotic persons against their own actions, of which they are no longer in control,  and to protect innocent citizens from being harmed by them. My meaning of  “mentally ill”  extends only to people suffering from  either functional or organic dementias   -  mainly the senile dementias, the schizophrenias and the manic-depressive or other endogenous depressions and psychoses.

Our first legislation on these matters was a direct effect of the European Enlightenment  - that amazing wave of rational,  intellectual and humanistic understanding of our human condition which swept over Europe from the mid-18th century. Immanuel Kant wrote that it consists of humankind's emergence from its self-incurred immaturity, and its submission to the dogmas and formulae of religion or political authority.  And  its cornerstone was freedom of thought and speech.  Lunacy had always  been just a fact of human life, never to be questioned.  But Dorothea Dix, a young  Sunday School teacher in  early 19th century Massachusetts,  was not afraid to question the  way the sufferers  of this terrible mental condition were treated.  She laboured all her life to persuade states in the US and  other governments to establish asylums for these unfortunate people.

And so it happened in New Zealand  :  a benign, charitable government  in 1846 formulated and enacted the Lunatics Ordinance. To begin with, the sufferers  just became special inmates in prisons and hospitals; but the building of our huge asylums soon began,  and from then on schizophrenic sufferers no longer presented any great problem in our society.  

As always, the great majority of patients still lived  with their families. It is not generally known today that  “in a typical New Zealand mental hospital, 86% of those admitted in 1955, not suffering from congenital mental deficiency and under the age of 60, were discharged within 12 months of admission;  one third of these were discharged within one month of admission” (K. R. Stallworthy,1959).  And please note, this was 1955 – before the advent of powerful tranquillising medication which greatly shortened the average length of time spent in the hospitals by patients.

But the asylums were always there for the many who had no family, who were too afflicted by their illness to be able to leave, who had a recurrent, acute  psychotic episode (a common complication in probably half the chronic cases), those who needed respite care and those who were dangerous to themselves or others.

An interesting  debate went on in asylums in the latter part of the 19th century between the adherents of medical and  moral treatment of the insane. One faction, the medical profession, wanted to treat and cure schizophrenic people,  though they could not boast of much treatment other than blood-letting, whipping or forced labour. Then there was the other faction: lay people who from their experiences of living with the insane knew the futility of any treatment.  Very soon our medical doctors were persuaded of the superiority of the moral way of treating the patients  -  and in the 20th century they greatly improved on the moral treatment through such innovations as the villa system and occupational therapy.

Science, reason, humanism, progress  -  all were the bases of the Enlightenment. And the fruits of the Enlightenment were  the institutions of our modern world which we now take for granted: democratic governments, schools, hospitals, the  fourth estate (with its self-imposed code of ethics) and so forth.   But alas, over the past half-century all these institutions have come under increasing attack. People with small minds, incapable of seeing the wood for trees, are disdainful of their governments, critical of sound academic knowledge in any sphere (though quite ignorant themselves) and rejecting  reason and humanism as the only yardstick to measure things by.   Here in New Zealand  we now see people attacking the Treaty of Waitangi, or the understanding of it as it was always accepted.  In its time this was regarded as a crowning example of enlightened European civilisation. The amazing benefits from the enlightened institutions that  the colonisers brought with them to share with indigenous Maori count for nothing in the twisted minds of these backward-looking, self-proclaimed reformers.

Nowhere has this counter-Enlightenment been more evident than in the case of mental asylums.  From the 1960s onwards people slowly again began to “submit to dogmas and formulae” (as Kant astutely put it).  Instead of soberly observing disabled human individuals and intelligently accepting the evidence before their very eyes with realism and charity, it became the norm to follow the indoctrination preached by well-meaning ideologues.  It was felt very deeply by many that it was wrong for so many schizophrenic people to be institutionalised in mental asylums. The fact that mental hospitals were never prisons and that doctors tried their level best to discharge as many patients as possible  back to their families was not understood.  Likewise, after the enactment of the 1992 Act, the fact that the schizophrenic population as a whole became much worse off than when we had residential hospitals was deliberately ignored.

New mental health legislation  will now be written.  It is my fervent hope that this legislation will again oblige our society to grant lifelong protection and hospice care to all sufferers of functional and organic  dementias.  Yes, I agree that we must review the 1992 Act; but the Inquiry report's vague, wholly unrealistic reasons for doing so should not be heeded.

Footnote: Andy invites and welcomes comment.

Friday, February 7, 2020

The new ruling class

(First published in The Dominion Post and on, February 6.)

Politics in the 21st century is often characterised as a contest between the elites and the populists.

The elites – often referred to as the metropolitan or inner-city elites – are Leftist idealists who prefer to describe themselves as “progressive”. Leading global figureheads include the two HCs, Hillary Clinton and Helen Clark.

You could almost call the elites the new ruling class, since they have power and influence far beyond their numbers. They predominate in the universities, the media, the arts, schools, the churches, the public service and the not-for-profit sector – that vast and perpetually busy plethora of organisations, mostly taxpayer-subsidised, that lobby for politically correct causes.

The elites also beaver away behind the scenes in local councils, where the elected representatives of the people, the councillors, often seem powerless to control them.

The elites are big on climate change, racism, women’s rights, multiculturalism, gender and sexuality issues and the rights of aggrieved minorities. These are not issues that keep ordinary people awake at night.

They are often described as liberal – a misnomer, as it implies tolerance of other opinions. There is a streak of totalitarianism in the way the elites attempt to suppress dissenting views.

Their supposed liberalism is also selective. They heartily approve of liberalised drug laws, for example, yet they have a decidedly prudish streak when it comes to alcohol and think the state should be far more active in restricting what we can eat.

There’s also a striking inconsistency in the way they champion the rights of vulnerable minorities while simultaneously insisting that women should be free to terminate the lives of the most helpless minority of all.

A central article of faith with the elites is that ordinary people can’t be trusted to make the right decisions for themselves. The path to Utopia requires a supposedly benign interventionist state which knows what’s best for us.

The influence of the elites is all-pervasive. For the past two decades they have largely controlled the public conversation. Even supposedly centre-right governments, terrified of getting offside with the elite commentariat, have fallen into line with their agenda.

The corporate sector has been captured too, with its timid capitulation to codes of corporate social responsibility created by the Left with the aim of emasculating capitalism.

But there are some things the elites can’t control. They can’t dictate what people think or how they vote.

The magic of democracy is that the vote of a shop assistant or farm labourer carries the same weight as that of a university professor or government mandarin. Hence the rise of so-called populism, which can be seen as a pushback against the ideological agenda of the elites.

It was the populist vote that got Donald Trump elected in the US in 2016 and Scott Morrison in Australia last year. Both results came as a profound shock to the elite media commentariats, isolated in their self-absorbed metropolitan bubbles and unable to see past their noses.

An even more devastating blow to the elite agenda came with Boris Johnson’s triumph in the British elections, which emphatically settled the bitter argument over membership of the European Union.

The concept of a European superstate was a project dear to the hearts of the elites, with their dogged belief in the virtues of big government. But after all the rage and agonising political paralysis, no one was left in any doubt that the majority of the British public wanted out – not because they had a racist aversion to immigration, as the elites insisted, but because they had a perfectly rational desire to govern themselves rather than submit to rule from Brussels.

The only way the elites can make sense of such outcomes is by concluding that voters have been manipulated by the dark, malevolent, nationalistic force they call populism. It confirms their suspicion that ordinary people can’t be trusted to vote sensibly.

In the glossary of the elites, the word populist has become a pejorative synonym for the far Right, which is how they classify anyone mildly right of centre. But a populist politician, by definition, is one who seeks the support of, or holds the same views as, ordinary people. Isn’t that what democracy is supposed to be about?

So what about New Zealand? We tend to think of Winston Peters as our own example of a populist politician, but the Great Tuatara won only 7 percent of the vote in the 2017 election and lost his own seat.

It follows that he doesn't represent ordinary people in the way Johnson or even Trump can claim to. He occupies a position of power only through his ability to manipulate a dodgy electoral system to his own advantage.

On moral panic and the Doomsday Clock

(First published in the Manawatu Standard, Stuff regional papers and, February 5.)

There are two types of panic. There’s ordinary, everyday panic, and then there’s moral panic.

The first is the type that happens when you look out the window of your plane while flying at 30,000 feet and notice the wing has fallen off.

With this type of panic you either quickly recover once the danger has passed, or you face a genuine risk of death. If the wing of your plane has fallen off, it’s likely to be the latter.

The other type of panic, moral panic, is a socio-political phenomenon. It’s defined as a contagious fear that some hazard threatens social wellbeing.

A textbook example was the prohibition movement, which succeeded in having alcohol made illegal in the United States in 1920 and came very close to achieving the same result here. In fact moral panic over alcohol has never completely subsided and is complemented today by rising apprehension – encouraged by finger-wagging academics – over the food we eat.

A more recent moral panic involved fears of satanic sexual abuse in the 1990s, for which Christchurch childcare worker Peter Ellis paid the price with his liberty. Some people may even recall an outbreak of anxiety over the role-playing game Dungeons and Dragons, which was suspected of messing with kids’ heads and promoting witchcraft.

No one ever died as a result of moral panic, to my knowledge, but it tends to stick around a bit longer than the type that occurs when a wing falls off.

One moral panic has been with us since 1947. That’s when a bunch of American scientists, concerned at the development of nuclear weapons, created something called the Doomsday Clock.

The Doomsday Clock is a metaphorical representation of how close humanity is thought to be to annihilation. In 1947 the clock was set at seven minutes to midnight, that being the hypothetical hour when the world would end.

Over the decades, the minute hand has moved back and forth in response to the supposed threat of nuclear war. In 1953, at the height of the Cold War, it was set at two minutes to midnight. A learned professor gloomily pronounced that with a few more swings of the pendulum, atomic explosions would strike midnight for Western Civilisation.

Well, we’re now one-fifth of the way through the 21st century, and although the scientists keep adjusting the clock every January, I’m not sure that people take much notice anymore. This may be due to the fact that we’re all still here.

The truth is that the Doomsday Clock was never an objective scientific measurement, though its creators wanted us – indeed still want us – to think it is.

It was more a political device than a scientific one, intended to serve as a warning of what might happen if the White House or the Kremlin got trigger-happy.  But the people who occupied the White House and the Kremlin, for all their huffing and bluffing, were just as frightened of mutually assured annihilation as the rest of us, and always pulled back from the brink.

The Bureau of Atomic Scientists, which determines the clock’s setting, still insists nuclear war is a global threat, but it has struggled to sound convincing in recent years.

It’s true that the threat is still with us, but these days the most likely aggressor is not one of the great powers but the rogue state controlled by the unpredictable Kim Jong-un, and any nuclear conflict, horrific though the prospect is, is more likely to be containable rather than global in scale. (That's assuming Kim Jong-un is mad enough to use nuclear weapons. It's far more likely that he will use North Korea's nuclear capability to gain diplomatic leverage.) 

That’s okay though, because climate change – arguably the mother of all moral panics – has provided the keepers of the clock with another putative global threat to dramatise.

Accordingly, the minute hand has been moving steadily closer to midnight since 2007, when climate change first entered the scientists’ calculations. We were then said to be five minutes from global catastrophe, and in 2015 the ominously ticking hand advanced to 11.57pm.

We’re now told we’re just 100 seconds from midnight – the closest the world has yet come, if the Doomsday Clock people are to be believed, to the Apocalypse.

This theatrical announcement was given heft by a ceremony in Washington DC attended by several sainted figures of the global political elite, including United Nations human rights luminary Mary Robinson, former UN chief Ban-Ki Moon and former California governor Jerry Brown, an elder statesman of the Democratic Party.

Their involvement confirmed that while the Doomsday Clock purports to be based on science, it’s heavily overlaid with politics – which means that while we shouldn't disregard it altogether, it should be treated with much the same cautious scepticism as any other political exercise.

Does this mean we shouldn’t be concerned about climate change? Not at all. It would be silly and dangerous not to keep an open mind about climate change and its possible causes, and take sensible steps to mitigate it.

But we are entitled to be suspicious of what appear to be arbitrary determinations, often wrapped in statements that are more emotive than scientific, about the imminence of global catastrophe.

One function of moral panics, after all, is to convince people of the urgent need for political, economic or societal change which they might otherwise resist. There’s an old political axiom that you should never waste a good crisis.

Fortunately, age is a helpful antidote. The older you get, the more moral panics you’ve seen come and go.