Policy, Decisions and the Law
by Stuart Birks
Director, Centre for Public Policy
Evaluation,
Paper for the LEANZ session of the
Abstract
Democratic systems are based on more than just the vote. There is a complex
division of powers that has evolved over a considerable period of time,
providing important checks and balances. A healthy democracy requires its
members to be aware of the broader context of their, and others', actions, and
their associated responsibilities.
Systems evolve, and roles can gradually change. As any economist will realise,
changes in one area are likely to result in altered behaviour and changes in
other areas.
This paper looks at the law and its changing function and operation, especially
as a mechanism for decision making and a vehicle for policy. In particular,
there are some significant areas of economic and social activity about which
the law is increasingly being applied. These include aspects of personal and
family life, as well as aspects of health and safety and the environment.
Developments can be observed both in terms of new and modified legislation, and
through the operation of the courts, including what has been termed judicial
activism.
The paper attempts to identify and illustrate some of these changes, drawing examples primarily from the area of family law, but with the aim of focusing on broader findings and implications for economics. It is suggested, in particular, that lawyers are being asked, and are electing, to deliberate on matters about which they have little or no expertise. Checks and balances that may have been effective in the past are currently being put to the test. Significant concerns are identified in terms of meeting new expectations and the operation of legal and related institutions in the context of these changes, with associated reservations about the extent to which governments can apply effective policies.
Mailing address: Centre for Public Policy Evaluation
Private Bag 11 222
Palmerston North
Fax: 06-350-5660
Email: k.s.birks@massey.ac.nz
JEL classification numbers: K0, H1
The book Defying
Hitler: a memoir[1], by Sebastian
Haffner, was a best seller in
I mention it
here because, while Haffner describes an extreme situation, it is in such
situations that weaknesses are most apparent. To me, he highlights the
complexity and vulnerability of democracy, and the responsibilities that we all
share if we are to live in a democratic society. While there is currently talk
about bringing democracy to
I also mention the book here because
this is a session on Law and Economics. Haffner wrote about a period in which
he was in training to become a judge, as happens in
2. Lessons from Haffner
Haffner makes many interesting observations. His description of the hyperinflation of 1923 would be of particular interest to economists. For the purpose of this paper, though, there are eleven key lessons which may be of value when considering current experience. Relevant extracts from the book are included in Appendix 1 below. While the points say nothing about specific implications for society, they do indicate areas of vulnerability whereby undesirable outcomes could arise. To that extent, they are relevant for today, as indicated by examples in brackets:
1) There can be hidden threats to democracy, with individuals fighting battles in isolation. (Talk of the need to open up the Family Court could be a reflection of people fighting such battles today, with social change occurring through actions behind closed doors.)
2) It can be harder to understand the wider significance of things that are more personally immediate. (Implications for individuals in Family Court battles can be very significant in terms of contact with family members, and people directly affected by family law number in the hundreds of thousands).
3) Can people recognise when major changes are occurring? Some significant events occur where “life goes on as normal”, others more dramatic. Major events can be obscured by activities of everyday life. Some “historical” events have little impact on individuals. Some significant events might not be highlighted in history. (The significant rewriting of family law and even of definitions of the family, plus the numbers affected, suggest that we are experiencing major changes. The extent and significance of these changes may not be recognised.)
4) With the 1923 hyperinflation, past experience counted for nothing: “…the failure of all the rules of life and the bankruptcy of age and experience. (p.51) The younger generation may think that such knowledge and experience are no longer relevant or useful. (On the bankruptcy of age and experience, note the changing nature of family, marriage and work[2], increasing demand for qualifications and the changing concepts of “knowledge” considering post-modernism, feminism, etc., even to the point where the use of logic is questioned[3]).
5) There can be subtle influences on the attitudes and illusions of children which only have an impact on society 20 or so years later. (Attitudes of children are uncertain, but their experience of life and the information they are given are very different from those of earlier generations. They have no experience of earlier perspectives, but do experience weakened family life and devaluing of customs and traditions.[4])
6) It may have been significant that a generation grew up without strong family life and fixed customs and traditions. (See comment for point 5.)
7) If a government compromises fundamental democratic principles, then democracy is devalued and can lose support. (Recent governments have compromised their principles, as illustrated by domestic violence legislation, and social engineering through subtle changes.[5])
8) People are commonly prepared to handle the problems of the previous generation, and this may result in their being constrained or blinkered as to what might occur. (There is no clear picture of the future for young people, so they grow up with a mix of new expectations about, for example, education and work, and other unstated expectations carrying over from the past, such as for family life, say.)
9) When a group is attacked, attention may then be focused on that group, rather than on those making the threat. (There have been consistent attacks on men as a group in society, even from the core of government, as with the Ministry of Women’s Affairs. If feminists are so critical of men, should we be scrutinizing men, or questioning the motives and reasoning of feminists?[6])
10) Major changes, even if contrary to fundamental principles, can occur in an orderly manner through the use of law. (Major changes are being introduced by means of the law, as with family and domestic violence legislation.)
11) The media may take a narrow focus, not covering alternative perspectives. (There are examples of this, including uncritical reporting and limited investigative analysis.)
3. How does the law fit in?
3.1 Vulnerability of the law
Stephen Franks recently wrote:
“Lawyers would be shocked by the number of people,
including sophisticated community leaders, who tell MPs of suspicions that our
Judges succumb to deliberate political pressure…”
(Franks 2004, p.12)
Some time ago I
argued that, in the area of family law, "…
the
Points raised
include:
a) Deliberation on
matters requiring specialist knowledge outside the law.
b) Recourse to “menus
of principles”, whereby criteria can be chosen to support a preferred result.[7]
c) Legal proof really
amounting not to proof, but to persuasion. Can a judge or jury be persuaded to
believe one side over the other? Which side presents the most plausible story?
d) Judges having
discretion, and being subject to pressure, or perhaps aspiring to social
activism.
e) The outcome of court
action being the result of a “team” effort, with many participants having some
influence. Do all participants operate in a satisfactory way? Are they all
accountable?[8]
f)
The outcome of court action being process dependent, or dependent on the
way in which a case is handled.
g) Case law setting
precedents while being the result of legal action by people with their own
objectives, limited budgets and limited consideration of the issues.
These
characteristics of legal reasoning can allow distortions to occur. Points (b)
and (c) in particular mean that legal decisions are not transparent.[9]
I will not
elaborate on all these points again here, but there are some aspects that merit
further attention, as discussed below.
3.2 Ethics issues
Barristers and Solicitors
are guided by the Rules of Professional
Conduct for Barristers and Solicitors. A report on legal ethics was written
by W Brent
1. ignorance of
them;
2. a conscious
risk-taking to get around them;
3. perceived
inconsistencies in the Rules;
4. the lack of
rigour in enforcing them;
5. different
application according to district;
6. application with
different degrees of rigour over parts of the profession.
Sections 2.6 and 10 of the
report detailed these matters, giving possible reasons why the current
situation has arisen. Section 10.2 described how some lawyers saw themselves
not as a profession guided by codes of ethics, but as businesses that are not
so constrained. The report’s key proposal was for the coverage of ethics in
legal training. This might not be enough.[11]
Gordon Marino, writing in the Chronicle
of Higher Education, says:
“Ethics missionaries are driven by the assumption that improving our
moral lives is a matter of developing our conceptual understanding and
analytical acumen. The fantasy seems to be that if up-and-coming accountants
just knew a little more about ethics, then they would know better than to
falsify their reports so as to drive up the value of company stock.” (Marino, 2004)
An indication
that some ethical checks may currently exist can be found in a recent
high-publicity case (although, to be precise, the check was imposed, rather
than self-imposed). Venter (2004) reported that Justice Greig had been
disqualified from participating further in the case of Ahmed Zaoui. “Justices
This suggests a
criterion that could exclude people from acting in certain cases. Are there
other people working in the law who have attitudes antagonistic to certain
groups? If so, are questions raised about their independence and right to
participate? The following section considers the first of these questions, and
implicitly answers the second.
3.3 Signs of bias and/or ignorance
Only
days before the Greig resignation, the incoming Principle Family Court Judge
talked of “the unrelenting and unfair
criticism of the court” (Taylor 2004). This is interesting in the context
of an editorial in the March 2004 issue of the New Zealand Law Journal, which said claims of bias, “are simply dismissed out of hand by the
family law lobby with insulting remarks”, and, “In some seminars your editor has attended it has been clear that
family law practitioners and relevant officials in the Justice department are
simply unwilling or unable to engage in rational analysis”.[12]
Judge Boshier’s response (Boshier 2004) included the following comment on the
suggestion that the Court operates behind a “veil of secrecy”, “It is such arrant nonsense that
regrettably, the whole of the editorial must be seen as misinformed and biased
opinion”. While acknowledging the privacy provisions that apply in the
Family Court, he considers the Court to be accountable through the High Court,
although that is a rarely used option.
Relatively new
sources of information on the thinking of those working in the Family Court are
newspaper columns written by Family Court lawyers and the regular monthly
column, “Judgements from the Family Court”, written for the Court by Debra
Sturm.
3.3.1 Example 1
A regular writer
is Vivienne Crawshaw. Over three columns she describes a fictitious custody
case (Crawshaw 2003a, b and c). The title of the last column, “Shared parenting
best for children of failed marriages”, is misleading. A couple with two
children separated, but the father continued to be an active parent, having the
children after school most days, plus alternate weekends. The children stayed
most nights with their mother “because she could not stand to be away from them
for more than two days at a time”. When the father formed a new relationship,
the mother wanted to move away with the children. She even disappeared with the
children for some time. She is shown to be hostile to the children’s ongoing
relationship with their father, and frequently cross-examined them about events
at the father’s home. A psychologist reported that she was volatile and had
difficulty containing her emotions. She was allowed to retain custody, as long
as she did not move away. Implicit in the case are presumptions by the mother
that she has a right to the children, by the father that his ongoing
relationship with the children is tenuous, and by the Court that it is in the
best interest of the children that the mother retains custody despite her
putting her own needs above those of the children.
3.3.2 Example 2
Another lawyer,
Susan Bathgate, wrote recently on matters relating to the Nelson case that
received much publicity due to the involvement of Nick Smith (Bathgate 2004).
She considered that, in some respects, there were similarities with a case she
had been involved in. In that case the children were two and six, and, “At that time, I was reluctant to interview
children as young as them. I believed they were best assessed by a psychologist
who was far better than I at discovering and reporting their needs and
desires.” The six-year-old, “insisted
on an interview…and announced he was representing the interests of his sister
as well as his own...It soon became clear that he, not his mother (as I had
supposed), was driving the case.” This begs the question whether he
understood the issues and the options. Given that parents are advised not to
involve children in adult matters, might one parent have been providing more
information than the other, and was the information accurate? More
significantly, was the lawyer aware of such things as parental alienation, and
could she be certain that it was not occurring in this case? According to
3.3.3 Example 3
In the above
example, the writer noted evidence in the Nelson case on the attitude of the
boy concerned. She contended that the right decision was reached in the
judgements of the High Court and the Family Court at that time. As reported in
the New Zealand Herald (Tunnah
2004), a psychiatrist had said, "I've never heard of a little
boy who has said, 'My wishes in life are for me to live and my family not to
die'. That's very early damage." This was taken as indicative of damage
caused to the seven-year-old in the early months of his life. An alternative
interpretation could be that the child had been alienated, or, as
'Judge Mill said the parents could now offer
the boy a home in a safe,
child-focused and stimulating environment. "They are doing nothing wrong.
This is one of the most remarkable turnarounds in a family I have seen. The
parents are deserving because of what they have achieved."'
An alternative interpretation could be that the problems that the
family had had earlier were not as serious as had been made out. In other
words, had these Judges read the evidence differently, they could have come to
the opposite conclusion in the case, while using the same information.
3.3.4 Example 4
Debra Sturm provides an
example with more of an economics focus in her column (Sturm 2003) for April
2003. She describes a case in which the wife receives $50,000
"compensatory" payment under Section 15 of the Property Relationships
Act 1976. Such payments are made if there is significant disparity in income or
living standards post-separation “because of the effects of the division of
functions within the marriage or de facto relationship while the parties
were living together”.[14]
“Jane”
had given up her career as a secretary to accompany her husband, “Jim”, on a
number of overseas postings. There were no children. While Jim argued that she
had enjoyed an “enviable lifestyle” and had enjoyed herself while on the trips,
the Judge decided “because giving up career progress had some positive side
effects, does not mean it should be discounted." We could wonder about
legislation that provides compensation in such circumstances, but the provision
is there for judges to apply if they see fit. We could also question whether
the Judge in this case was right to determine that compensation should equal
the full amount of any post-separation earnings deficiency caused by the
disrupted work record. Here I will disregard both these issues, looking instead
at the economic decision on the actual sum to be paid.
The
$50,000 figure was calculated to make up for $10,000 lower earnings for 5
years. It was the opinion of a recruitment consultant that earnings might be
lower for 3-5 years, so 5 was taken, rather than 3 or 4. It is also assumed
that the earnings disparity is constant for 5 years, then suddenly
disappears, whereas it is more likely that the disparity would fall steadily
over the period.
Income
is earned over several years, but the compensation is paid now. Future
disparities should be discounted to give a present value. Tax is also paid on
income, whereas the "compensation" is tax free to the recipient.
Calculations should therefore be based on after-tax figures.
To
illustrate the effect of these factors, consider an alternative calculation
where the disparity erodes evenly over 5 years from an initial $10,000, a
marginal tax rate for additional income of 19.5%, and a 3% discount rate for
future payments. The actual sum required would be $22,556. In the case of a 33%
marginal tax rate, the figure would be $18,773, and if also eroding over
only 3 years, the sum would fall to $12,759.
We can see, therefore, that
allowing for these three factors can reduce the amount required as a lump-sum
compensation to little more than a quarter of the amount determined by the
Judge. It does not stop there, however. The Judge could also decide from where
the money was to come. As Sturm reports, “The payment is ‘compensatory’, so the
entire amount was paid from the husband’s already divided share of the
relationship property”. On that interpretation of the term “compensatory”, the
actual difference in allocations due to the "compensation" is doubled
to $100,000. This is despite the Judge stating that the payment is “to
compensate for what happens during co-habitation” – namely Jane’s lower
post-separation income resulting from the “division of functions” during the
marriage. Incidentally, as Jim was the sole income earner on a good salary,
this sum would probably have been obtained from $164,000 of income taxed at the
top marginal tax rate of 39 percent.
3.3.5
Domestic Violence
Domestic
violence is a recurring theme in family law. Not only is it an issue in itself,
but it is a factor influencing debate, policy and decisions in relation to
family stability, custody and access, and even relationship property and child
support. It also has wider significance in terms of objectives in the areas of
education and work.
Law Society
figures for May 1997 show that, of the lawyers spending more than 25 percent of
their time on family law work, 55 percent were women.[15]
The Women’s Consultative Group of the New Zealand Law Society made a submission
to the Law Commission dated
It has taken some time, but some judges have begun
suggesting that there may be other explanations of violence, most recently,
Judge Doogue (Doogue 2004). She says, “In my experience and that of other Judges
this model does not fit the profile of many cases coming before the Family
Court in
Judge Doogue refers to five types of inter-parental
violence identified as early as 1993 (before the passing of the Domestic
Violence Act):
1) ongoing episodes of male battering
characterised by assaults from early in the relationship, accompanied by denial,
or a minimisation of the violence, or blaming the partner for causing it;
2) female-initiated violence involving
physical aggression;
3) inter-active violence…mutual abuse and
physical struggles finally dominated by the male;
4) separation engendered…uncharacteristic
acts of violence…unlikely to continue;
5)
a
few exceptional cases where dementia or psychosis combined with separation
triggered aggressive and dangerous behaviour.
Even the first three of these can be considered to
incorporate gender-asymmetry and gender-political assumptions and terminology.
There would
appear to be evidence of weaknesses within the law, but what of the wider
context?
3. 4 Law in a wider context
3.4.1 Law and Politics
Stephen Franks referred to
Judges being susceptible to political pressure, but this does not necessarily
mean pressure from MPs. They could be reacting to pressure from lobby groups,
for example. Judge Doogue’s paper may even be an illustration of that. She
says, “It is incumbent on the legal community not to dismiss the views of
critics of the [domestic violence] legislation because they appear in some
instances to be so extreme”. We could ask why it took extreme behaviour for her
to suggest that it should be reviewed. Logical argument had been used before,
but, as Bernard Robertson pointed out, it was ignored by the “family law
lobby”. Perhaps it was other lobby groups that led to the current approach to
domestic violence in the first place.
Appendix 2 includes extracts
from a brochure on the Ministry of Justice web site entitled "Dealing with
domestic violence: Information on protection orders and the Domestic Violence
Act" (Ministry of Justice, undated). It is aimed at the general public and
describes how the legislation works. It is worth considering in terms of the
principle that one is innocent until proven guilty.
The document
shows that violence is very broadly defined, and includes psychological
violence such as humiliating someone, or "controlling their money, time,
car, or contact with friends". It states that a Judge will usually make a
decision without seeing the applicant, and without the respondent being aware
of the proceedings. If the Judge is satisfied with this evidence, a Protection
Order will be made immediately.
An
agent of the Court (usually a bailiff, perhaps with the Police) will visit the
respondent and give them a copy of the Protection Order. The respondent
may be required to move out of the home.
The
Protection Order initially lasts for three months. If not defended, it then
becomes permanent. It will include non-contact conditions with the applicant
and any children (including phone, letter, fax, etc.) which the respondent must
always follow. The applicant can agree to contact, but can reinstate the
non-contact conditions at will without going to Court.
Where there is
evidence that a breach of a Protection Order has occurred (which could mean
sending a birthday card to a child, or failing to attend a Stopping Violence
programme), the document states that the person will be arrested and cannot be
bailed by the Police for 24 hours.
In other words, it is possible to have someone evicted from his home and
denied contact with his children on the basis of only a written submission.
In the context of this paper, we should also note that the legislation
is set and interpreted in the context of a highly gendered view of domestic
violence, despite evidence that this is overly restrictive. We could ask how
politicians could pass such a law, and lawyers and judges can apply the law for
a period of years, without questioning whether it goes against fundamental
principles of a democratic society.
3.4.2 The Shadow of the Law
Another area
where lawyers and politicians have taken a similar, but questionable stance is
in relation to family law and the “shadow of the law”. The Family Law Section
of the New Zealand Law Society demonstrates apparent ignorance of the shadow of
the law in a media release of 26 April 2000 on the Shared Parenting Bill (NZLS
2000), stating:
"...the Bill seems to ignore the fact that the vast majority of
parents seem to be able to find sensible and pragmatic solutions to the
problems posed by family separation without resort either to lawyers or the
courts. The Section is concerned that substantive law changes are being promoted
as a response to a relatively small number of difficult cases."
On
"…the current system …
appears to work well for the majority of cases. In fact, it appears that only
5% of custody applications to the Family Court result in contested
hearings."
The implication in both of
these documents is that those who do not take the matter to a hearing are happy
with the result.
More commonly, economists and
lawyers are likely to recognize that people operate in “the shadow of the law”.
In other words, existing laws as they are applied shape their environment and
affect behaviour. For example, people may agree to outcomes on the basis that
they would do no better going through the court, even if they do not consider
it appropriate or fair.
In economics, it is commonly
assumed (not entirely unrealistically) that people are law-abiding, and
regulations with be followed. Judges have been known to be influenced in their
decisions according to whether there is a need to “send a signal” to people as
to what is acceptable behaviour. In fact, if there were no effect from the
shadow of the law, enforcement costs would be prohibitive, and most laws would
be ineffective. We would have to wonder whether lawyers and politicians are
being deliberately blinkered in this case when they deny that such an effect
exists.
3.4.3 Judicial Activism
Traditionally a
central component of democracy is that laws are made by elected
representatives, and implemented by the judiciary, with neither impinging on
the other. Where judges move beyond interpretation of existing law into
effectively making new law, it is termed judicial activism. To quote again from
Family law is
not the only area where judicial activism may be occurring. On
Zonta describes
itself as, "A worldwide service organisation of executives in business and
the professions working together to advance the status of women". On the
web page of the
“…if you have
established a good reputation for your organisation; if you are respected
for the work you do in the community; if what your organisation has said on
previous campaigns and on previous issues has been sensible and
respected; then when you come to speak on an individual or new issue,
people will listen to you.
Building
credibility; building a good reputation based on common sense and well
researched positions; building a reputation for being an organisation
which does good work in the community – result in your being well received and
listened to."
This group had a
speaker,
4 What does this have to do with economics and
democracy?
So far, relatively little has been said about the economics dimension, but it is also highly significant. For example, at the specific level, activism on domestic violence is closely entwined with the arguments for economic policies in relation to work and gender, and family law.
More generally, the policymaking and implementation weaknesses that have been identified in this paper in relation to law may also apply in other areas where the law is used to address matters with significant economic implications. Some areas immediately spring to mind: the Resource Management Act; pay equity; and issues in relation to Maori.
Economic theory recognises that imperfect
and asymmetric information can cause market failure. The examples in this
paper illustrate that imperfect and asymmetric information can also be a cause
of institutional and public sector failure. This is not a minor concern. To
quote Dr Lockwood Smith from Hansard
of
“It troubles me that in my 20 years in this Parliament, we have passed 2,938 bills, and respective Governments have promulgated 7,636 new regulations.”
At a broader level still, democratic systems are complex, and they can display weaknesses. The law is one of the central components of a democratic society. How well the law functions is important because of its widespread implications. From an economics perspective, questions include:
Frequently,
matters are considered in terms of an individual case, or a narrow issue. If
there is to be one single point to take from Haffner’s book, it is that it is
important, at least occasionally, to step back and consider a broader perspective.
Appendix
1
Lessons
from Haffner
1) There can be
hidden threats to democracy, with individuals fighting battles in isolation:
“Thousands,
maybe hundreds of thousands of such duels, in which an individual tries to
defend his integrity and his personal honour against a formidably hostile
state, have been fought in Germany during the last six years. Each is waged in
total isolation and out of public view.” (p.4)
2) It can be harder to understand the wider significance of things that are more personally immediate:
“What is more, as events impinged on us more closely,
they became much more obscure and less intelligible than before, when they had
taken place in distant
3) Can people recognise when major changes are occurring? Some significant events occur where “life goes on as normal”, others more dramatic. Major events can be obscured by activities of everyday life. Some “historical” events have little impact on individuals. Some significant events might not be highlighted in history:
“Life
went on as before. No family was torn apart, no friendship broke up, no one
fled their country.” (p.6)
“All this
was still something one only read about in the press. You did not see or hear
anything that was any different from what had gone on before. There were brown
SA uniforms on the streets, demonstrations, shouts of 'Heil', but otherwise it
was 'business as usual'.” (p.91)
“Daily life
also made it difficult to see the situation clearly. Life went on as before…” (p.113)
“…it is typical of the early years of the Nazi regime that the whole
façade of everyday life remained virtually unchanged.” (p.127)
The point about individuals’ perceptions of events
in made in several places through the book. In particular, the point is made
that ongoing aspects of normal, everyday life can prevent both the recognition
of major changes and the emergence of effective opposition to those changes. As
for events where families are torn apart, friendships broken, and people flee
the country, should the current pattern of widespread separation and divorce,
whereby a third of children are not living with both their parents, be
considered a momentous historical event?
4) With the 1923
hyperinflation, past experience counted for nothing: “…the failure of all the rules
of life and the bankruptcy of age and experience. (p.51) The younger
generation may think that such knowledge and experience are no longer relevant
or useful:
“In that year an entire generation of Germans
had a spiritual organ removed: the organ which gives men steadfastness and
balance, but also a certain inertia and stolidity. It may variously appear as
conscience, reason, experience, respect for the law, morality, or the fear of
God. A whole generation learned then - or thought it learned - to do without
such ballast.”
(p.44)
“It
was a situation in which mental inertia and reliance on past experience was punished
by starvation and death, but rapid appraisal of new situations and speed of
reaction was rewarded with sudden, vast riches. The twenty-one-year-old bank
director appeared on the scene, and also the sixth-former who earned his living
from the stock-market tips of his slightly older friends. He wore Oscar Wilde
ties, organised champagne parties, and supported his embarrassed father.” (p.47)
“…the daily spectacle of the failure of all
the rules of life and the bankruptcy of age and experience.” (p.51)
5) There can be
subtle influences on the attitudes and illusions of children which only have an
impact on society 20 or so years later:
“A childish illusion, fixed in the minds of
all children born in a certain decade and hammered home for four years, can
easily reappear as a deadly serious political ideology twenty years later.” (p.15)
“What
'every child knows' is generally the last irrefutable quintessence of a
political development.” (pp.26-7)
While
on a different scale, there is a greater immediacy with feminism, whereby a boy
aspiring to be a doctor is simply working towards a career, whereas a girl with
a similar goal can consider herself to be trailblazing for women everywhere.
The implications of this difference in perception have not, to my knowledge,
been analysed.
6) It may have been significant that a generation grew up without strong family life and fixed customs and traditions:
On the appreciation of culture, informed
discussion, and, ”last
but not least, an intense, intimate family life. Almost all of this had fallen
into ruin and decay in the decade from 1914 to 1924 and the younger generation
had grown up without fixed customs and traditions.” (p.58)
It is perhaps not clear what future young
men and women in
7) If a government compromises fundamental democratic principles, then democracy is devalued and can lose support:
On the Bruning government that came to power in 1930:
“To my knowledge, the Bruning regime was the first essay and model
of a form of government that has since been copied in many European countries:
the semi-dictatorship in the name, and in defence, of democracy against
fully-fledged dictatorship... the inevitable forerunner of the very thing it is
supposed to prevent: its discouragement of its own supporters; the way it
undermines its own position; its acceptance of a loss of freedom; its lack of
ideological weapons against enemy propaganda; the way it surrenders the
initiative; and its collapse at the final moment when the issue is reduced to a
simple question of power.” (p.72)
In other words,
a democracy can debase itself to the point where it loses popular support and
is no longer valued. This occurs through diluting democratic principles. Is
this currently occurring with domestic violence legislation, and policies
affecting human rights, privacy, state interference in personal lives?
It can be hard
to counter such dilution because people may realize too late what is happening
or being promoted. Consider the acceptance of biased approaches in gender
analysis, and in the distorted assessments and Duluth-type gendered
interpretations of, and policies on, family violence. Similarly, what is the
significance of shifts in family law in relation to “relationship property”
settlements? What of moves from “equal pay for equal work” to “equal pay for
work of equal value”, and on to “equal outcomes” for women? How about the
undermining of concepts of the family through greater emphasis on “sole parent
families” (as if the other parent does not exist), a “diversity of family
types”, and the key role of “economic autonomy for women” in the government’s
Action Plan for Women. Have these changes been based on and supported by
balanced research, or on dubious reasoning and evidence?
8) People are commonly prepared to handle the problems of the previous generation, and this may result in their being constrained or blinkered as to what might occur:
“I
had all the intellectual endowments to play a decent part in the bourgeois
world of the period before 1914…At best I smelled a warning whiff of what was
about to confront me, but I did not have an intellectual system that would help
me deal with it.
True, that was not just my situation but that of my whole generation, and even more the situation of the older generation…Our thinking is usually constrained by a certain civilisation in our outlook, in which the basics are unquestioned - and so implicit that they are almost forgotten.” (p.85)
“At the time, while I experienced them, it was not possible to gauge their significance…In spite of all our historical and cultural education, how completely helpless we were to deal with something that just did not feature in anything we had learned!” (p.113)
Are
our young being educated for an environment that is no more, or the society
that will exist in the future, or according to some quite different agenda
(such as the society that some might want to exist, whether feasible or not, or
generally agreed or not)?
9) When a group is attacked, attention may then be focused on that group, rather than on those making the threat:
“By publicly threatening a person, an ethnic group, a nation, or a region, with death and destruction, they provoke a general discussion not about their own existence, but about the right of their victims to exist. In this way that right is put in question.” (p.117)
This highlights
the significance of the choice of question. Having identified men as violent,
and then defined “sole-parent families”, we debate whether it could be
justified to move towards shared parenting, given that this might enable men to
perpetuate their abuses and continue to exercise power and control over the
mothers of their children. In the debate, it is not necessary to justify
exclusion of fathers, or permitted to question the inclusion of mothers. Nor is
it questioned why certain groups are hostile to the participation of fathers. Rather,
the debate is on whether it is possible to justify the reintroduction of basic
rights for fathers and children that have, without debate, been withdrawn.
10) Major changes, even if contrary to fundamental principles, can occur in an orderly manner through the use of law:
“The Gleichschaltung
— placing Nazis in controlling positions of all ministries, local
agencies, boards of large companies, committees of associations - continued,
but it now took a pedantic, orderly form with laws and regulations...Jewish
civil servants, doctors, lawyers and journalists were still dismissed, but now
it happened legally and in an orderly fashion, by paragraph such-and-such of the
Civil Code.” (p.156)
11) The media may take a narrow focus, not covering alternative perspectives:
As Haffner describes it, the German experience was marked:
“In a way a newspaper is like an old acquaintance: you instinctively know how it will react to certain events, what it will say about them and how it will express its views. If it suddenly says the opposite of what it said yesterday, denies its own past, distorting its features, you cannot avoid feeling that you are in a madhouse. That happened.” (p.163)
Gradual change
is less noticeable, but can be just as significant. At the same time, such a
gradual change may arise simply as a result of newspapers reflecting the views
and concerns of the day. However, the question remains, how well do the media
inform the public on matters that affect them?
Appendix
2
Dealing
with domestic violence
There is a New Zealand Ministry
of Justice publication called Dealing
with domestic violence: Information on protection orders and the Domestic
Violence Act.
[17]
Here are some extracts:
What does the law mean by “domestic violence”?
Domestic violence is not only a fist in the face or a kick in the head.
The law says that violence can be physical, sexual, or psychological.
Physical abuse. Nobody – including
a husband, wife, partner, or an adult who looks after children – has the right
to hit, punch, kick, or in any way assault another person.
Sexual abuse. Nobody is allowed
to have sexual contact with another person without that person’s permission.
Psychological abuse. This
includes intimidation, threats, and mind games.
Some of the things the Family Court recognises as psychological abuse
are:
When someone makes an application for a protection order:
Usually, the Judge will not need to see you in Court before making a decision on your application. However, sometimes the
Judge will ask to see you (with your lawyer or others who are helping).
Most of the Protection Orders made by the Family Court are made immediately and “without notice” – which means the person the
Protection Order is taken out against (the respondent) is not aware of it.
In other circumstances, the Judge will direct that the application
will be heard “on notice” – this means that both parties will have the opportunity
to be heard by the Court. If this happens, the Judge will normally give the
respondent a short period of time
(say 24 hours or a few days at most) to file a written defence. If a defence is filed, the Court will then hear each side and make
a decision.
Will the respondent be present in the Court?
Not usually. All applications
are initially considered without a hearing. Where a Judge is satisfied on
the evidence given in the affidavit that a Protection Order is justified,
it will be made immediately.
Once the order is granted:
Once the Order is granted, things happen quickly. The Orders are usually
typed up at the Court and copies are made... An agent of the Court (usually
a bailiff, perhaps with the Police) will visit the respondent and give them
a copy of the Protection Order.
When a Protection Order is made before the respondent is given notice,
it is temporary and lasts for three months. If the respondent does not defend it, the Order will automatically
become final after the three months is up, and will stay in force permanently
until the Order is discharged.
The Order will include non-contact conditions which the respondent
must always follow. However, you can agree to contact. Standard non-contact
conditions include that the respondent must not:
Non-violence conditions apply in every case. Non-contact conditions
apply when the parties are living apart.
If you are named in a Protection Order, the consequences could be very
serious. It will affect the contact you have with your partner and your children,
if you have any. In some cases, it may mean you have to move out of the house.
In other cases, it may mean that your partner or family member can take furniture
from the house...
If you are the applicant
Contact with respondent
If you want to have contact with the respondent - for example, if you
want to continue living together – you
can suspend the non-contact conditions,
so they don’t apply. You can withdraw
your consent to have contact with the respondent at any time, and the conditions
are reinstated automatically. You do not have to go to Court to do this.
Do I have to move out of home?
No. One of the real fears
people have about standing up to violence is that they will end up with nowhere
to live. Talk to your lawyer about whether you need to get a Property Order
in addition to the Protection Order so you can stay in your home.
Do I lose all my furniture if I decide not to go back to the house?
No. If you move out of your
home because of violence, you can get a Furniture Order. This means that you
can take furniture from your old home to set up a new home. The Police can
be asked to accompany you to collect the furniture.
Who will get custody of the children?
When there is proven violence, the Court will usually not allow the
violent person to have custody unless the Court is satisfied the children
will be safe.
Will the respondent be able to visit the children?
A Custody or Access Order issued by the Court will say when visits
can occur. When there is proven violence, the Court will usually not allow
the violent person to have unsupervised access to children, unless the Court
is satisfied the children will be safe. Any costs of providing supervised
access are to be paid by the person seeking access.
If a parent can only have supervised access to the children, it is very
important to tell the school, day care centre and other caregivers about the
Order and exactly who is allowed to visit or take the children away.
(Note that this restriction on
custody and unsupervised access is likely to be applied "conservatively",
i.e. safety will not be readily assumed.
[18]
Note also that, in an American study, Straus
[19]
found: "Of the 495 couples in [the survey] for
whom one or more assaultive incidents were reported by a woman respondent,
the husband was the only violent partner in 25.9% of the cases, the wife was
the only one to be violent in 25.5% of the cases, and both were violent in
48.6% of the cases.")
If you give it another chance and the violence starts again, you don’t
need to go back to Court - simply tell your partner that the non-contact conditions
are on again (the non-violence ones can never be suspended). All the original
conditions immediately come back into force and the abuser must immediately
leave you alone.
If you have a Protection Order, you have specific protection from any
physical, sexual or psychological abuse (and that includes threats or harassment).
The Police policy is to arrest a person who breaches a Protection Order. The
person will then be dealt with in a criminal Court, not the Family Court.
What are the penalties for breaches of a Protection Order?
Where there is evidence that a breach of a Protection Order has occurred,
the person will be arrested and cannot
be bailed by the Police for 24 hours. The Court will give the highest priority to the victim’s safety when
considering bail applications.
The maximum penalty for breach of a Protection Order is six months in
prison or a $5000 fine. The penalty increases to two years in prison where
a person is convicted of three offences, and two of those are committed within
a three year period. If other serious crimes of violence are involved, the
penalties could be even more severe. A breach includes failing to attend a
Stopping Violence programme.
Appendix
3
Extracts from Hansard,
150th Anniversary Sitting of
Parliament
Perhaps surprisingly, several MPs made
statements about judicial activism as a threat to democracy. One of the
strongest was by Michael Cullen:
Hon Dr MICHAEL CULLEN (Deputy Prime
Minister):
“…it would now seem to be
settled doctrine that New Zealand is a sovereign State in which sovereignty is
exercised by Parliament as the supreme maker of law, the highest expression of
the will of the governed, and the body to which the Government of the day is
accountable.
There is an increasing tendency
to challenge the exercise of this sovereignty. This comes not just from some
radical Māori, who argue that sovereignty has never been legally acquired
in
“Judges are not accountable;
they are, in fact, independent, and that is essential to their role in society.
“Activism does not always
challenge parliamentary sovereignty, but it often does. And in
Hon RICHARD PREBBLE (Leader—ACT):
There are a number of threats, and one of those
threats is the power of unelected judges to make judge-made law…
Hon
BILL ENGLISH (National—Clutha-Southland):
“Parliament has created the opportunity for
judicial activism by not taking the responsibility that only a sovereign
Parliament should take, which is to define the meaning of citizenship and to
define the role of the treaty. The courts have filled that gap.”
“When
reflecting on the level of debate and consideration of our legislation in this
House, I decided, by way of comparison, to look at Lord Cooke’s historic
judgment setting out the principles of the Treaty of Waitangi. I found that,
compared with parliamentary debate, the reasoning was weak and the judgment was
partial. It took some words in a narrow context and generalised them to the
broadest possible context, in a way that this Parliament would certainly debate
vigorously if an MP, a Minister, or a Prime Minister proceeded in the same
way.”
Peter Dunne
voiced a general concern for the balancing of powers:
Hon PETER DUNNE (Leader—United Future):
I think therefore that it is appropriate that in the
wider community at the moment we are starting to embark upon a broad debate
about the future of our constitution, about the role of our Parliament, about
where the Treaty of Waitangi fits, about the relevance of our institutions,
about the relationships between our executive, our legislative, and our judicial
branches, and about our status as a constitutional monarchy.
…and Bill
English and Richard Prebble raised specific concerns:
Hon
BILL ENGLISH (National—Clutha-Southland):
“…we have, even in the term of
this Parliament, seen two examples of the executive attempting to fashion this
institution to its means, and we see attacks on things that we do not realise
are important until they are attacked... The point is simply that the price of
the freedoms we have is eternal vigilance.”
Hon RICHARD PREBBLE (Leader—ACT):
“A
bigger threat to Parliament and democracy [than judicial activism] comes from
the unfettered power of Prime Ministers to turn back-benchers—the guardians of
parliamentary democracy—into Ministers.
We
all know that a country of 4 million people does not need 28 Ministers…Prime
Ministers create Ministers in order to dominate, first, their own party
caucuses, and then this House. It is a power play to dominate this House, and
it has been very successful…To increase their power, Prime Ministers have waved
the prospect of office before MPs. The result is that the executive has slowly
stripped the rights of members and hobbled their ability to represent
rigorously the people we are elected to argue on behalf of.”
But there are some positive features:
Hon
RICHARD PREBBLE (Leader—ACT):
“Now, thanks to MMP and the presence of third parties, no
issue of importance to the electorate is ignored, and if there is a viewpoint
out there in the community, there is now some party in Parliament to represent
it.”
“I believe that our select committee process, which enables
the public to make submissions on legislation, is the best in the
Commonwealth.”
Hon
PETE HODGSON (Minister of Energy):
“The
next feature of our parliamentary system that I think is worthy of some mention
is our select committee process, which is somewhat more open, engaged, and
effective in our democracy than in most. The Prime Minister spoke of the Palmer
reforms, but since MMP the role of a select committee has become more important
still—either in its legislative or its inquiry function…Parliamentarians are in
this regard more empowered; so is the public. In
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[1] Haffner S (2002)
[2] “No more nine-to-five” (2004)
[3] See, for example, Yates (www.mises.org)
[4] Maori experience may be
radically different – in fact, if such things are considered so important for
Maori, why are they so devalued for the population of European origin?
[5] See below and Appendix 2 on
domestic violence. Social engineering can be observed in changing definitions
of the family, legislation on de facto and same sex relationships, public
sector pay equity policies, etc..
[6] See, for example, Birks (2003a). Another
government body with the specific aim of furthering the interests of women is
the National Advisory Council on the Employment
of Women. Its membership is mainly ministerial appointees, and its policy
direction is clearly gender-focused. See: http://www.nacew.govt.nz/
[7] For example, in
[8] For example, Family Court
counselling co-ordinators can have a lot of influence, but may be less subject
to scrutiny than members of professional bodies.
[9] This point is further
indicated in Roberston (2004), “As all
litigators know, judgments bear varying degrees of connection with the matters
argued.”
[10] Cotter and Roper (1997)
[11] A new complaints procedure is proposed under the Lawyers and Conveyancers Bill, currently under consideration,
and for which the select committee
report is due on
[12] Robertson (2004). For further discussion of bias in the Family Court, see Birks (2003b).
[13] This and other behaviours are described on pp.27-8 of
[14] Property (Relationships) Act 1976, Section 15 (1)
[15] Para.374 of NZLS (1999)
[17] http://www.courts.govt.nz/family/brochures/Domestic_Violence.pdf
(accessed
[18] The opinion of the then Principle Family Court Judge, Patrick
Mahony, as described by Judge D R Brown in, "Domestic Violence and Children on the Eve of
the Domestic Violence Act", a paper presented at the New Zealand Law Society Family Law Conference,
Wellington, October 1995
[19] P.74 of Straus MA (1993) "Physical Assaults by Wives: A Major
Social Problem", Chapter 4 of Gelles RJ and Loseke DR (eds) (1993) Current
Controversies on Family Violence,