I was very lucky with my teachers at school (I won’t say “privileged” and I have an article planned about the use of that word).

One in particular stands out. This man taught me Latin from Third Form through until I left school.

He was a great teacher. A true Renaissance Man. A Classical Scholar with an MA (Oxon) who taught Latin and Greek. But an ornithologist of outstanding reputation as well. And associated with that, a naturalist. So when the weather was fine class would adjourn to the great outdoors and the teaching of Latin was merged with the study of the natural world and Linnean Classification and what the Latin names for the various plants and birds meant. I cannot to this day look at an oak tree without thinking quercus.

And every day would start the same. Carpe Diem he would intone in his deep baritone. Carpe Diem. It took a while before we found the origin of those words but we quickly learned that they meant “seize the day”.

The phrase comes from a poem by Quintus Horatius Flaccus – also known as Horace. It is in the form of advice tendered to one Leuconoe.

It reads as follows – and the key phrase is at the end:

“Tu ne quaesieris (scire nefas) quem mihi, quem tibi

finem di dederint, Leuconoe, nec Babylonios

temptaris numeros. Ut melius quicquid erit pati!

Seu pluris hiemes seu tribuit Iuppiter ultimam,

quae nunc oppositis debilitat pumicibus mare

Tyrrhenum, sapias, vina liques et spatio brevi

spem longam reseces. Dum loquimur, fugerit invida

aetas: carpe diem, quam minimum credula postero.”

The poem translates (more idiomatically than literally) as follows:

Don't ask (it's forbidden to know) what end the gods have given me or you, Leuconoe.

Don't play with Babylonian numerology either.

How much better it is to endure whatever will be!

Whether Jupiter has allotted you many more winters or this one,

which even now wears out the Tyrrhenian sea on the opposing rocks, is the final one be wise,

Be truthful, strain the wine, and scale back your long hopes to a short period.

While we speak, envious time will have already fled:

Seize the day, trusting as little as possible in the next day.

This all came back to me in a rush when I read an opinion piece in the Herald for 10 January 2025. The article bemoaned the extended use of the greeting “Happy New Year” but apart from the curmudgeonly approach of a “best wishes” greeting the following paragraph stood out:

“Working in a corporate industry, salutations of “Happy New Year” have proliferated my inbox (and in-person interactions) all week. It’s not that I don’t appreciate the reminder that I am now entering my 28th year of life and growing increasingly closer to an inevitable midlife crisis.”

Clearly this author seems to trust more in the next day than in the present. She should, at the age of 28, be grasping every opportunity rather than worrying about an “inevitable midlife crisis”.

Such a bleak outlook. Clearly this writer at the tender age of 28 would have to qualify for the Eeyore award for 2025 – and only 10 days have passed.

Rather she should take the advice of a BCE poet and the daily exhortation of my Latin teacher.

Carpe diem quam minimum credula postero

In H.G. Wells’ The Time Machine the Time Traveller (he has no name) discovers an old, forgotten, crumbling edifice – the Palace of Green Porcelain - that obviously was once a museum, full of artifacts from earlier times and technologically superior to the cultures of the Eloi and the Morlocks. The Time Traveller takes simple tools – a box of matches - for use later in the story.

Wells wrote The Time Machine in 1895 at a time when museums were well known but one is drawn to a particular museum in the story, even although to do so is to delve into anachronism.

Was the Time Traveller’s museum a form of Imperial War Museum? Who knows. Yet it is interesting that Wells imagined a museum that focussed upon the tools and weapons of war.

The Imperial War Museum was founded in 1917 and was intended to record the civil and military war effort and sacrifice of the United Kingdom and its Empire during the First World War.

The museum's remit has since expanded to include all conflicts in which British or Commonwealth forces have been involved since 1914. As of 2012, the museum aims

"to provide for, and to encourage, the study and understanding of the history of modern war and 'wartime experience.'“

Originally housed in the Crystal Palace at Sydenham Hill, the museum opened to the public in 1920. In 1924, it moved to space in the Imperial Institute in South Kensington and in 1936 it acquired a permanent home at the former Bethlem Royal Hospital in Southwark, which serves as its headquarters. The outbreak of the Second World War saw the museum expand both its collections and its terms of reference, but in the post-war period it entered a period of decline. It has, however, recovered.

There are now five Imperial War Museums, each with a different focus. There is the London Museum which is situated on Lambeth Road, the Churchill War Rooms at Clive Steps, King Charles Street, London, the IWM at Duxford, Cambridgeshire which focusses on aircraft and other large scale technologies , the IWM North in Manchester which focusses upon the way that war affects peoples’ lives and HMS Belfast moored in London on the Thames.

The museum is funded by government grants, charitable donations, and revenue generation through commercial activity such as retailing, licensing, and publishing. General admission is free to IWM London (although specific exhibitions require the purchase of a ticket) and IWM North, but an admission fee is levied at the other branches.

This is by no means a museum that glorifies war as we found out when we went to visit.

I don’t intend to detail everything that we saw. Rather I should like to focus on one exhibition which conveyed a number of messages.

The Holocaust Galleries are a permanent exhibition at the IWM. Individual stories from some of the six million Jewish people murdered in the Holocaust are told through over 2,000 photos, books, artworks, letters and personal objects ranging from jewellery and clothing to toys and musical instruments.

Dedicated to conserving, displaying and interpreting stories of the most devastating conflict in human history, IWM London is the first museum in the world to house Second World War Galleries and The Holocaust Galleries under the same roof. These new, award-winning galleries will change the way we understand the past for generations to come.

Spanning two floors, these vast new galleries bring together the stories of real people from diverse communities to examine the complex relationship between the Holocaust and the course and consequences of the Second World War.

The effect is stunning because it traces the history of the Holocaust from its anti-semitic roots which had been present in Europe for centuries but which were adopted by the Nazis and magnified in Germany in the post-Word War One environment. One realises how the evil of Nazi anti-Semitism was developed and normalised. This was not something that happened overnight. It was a gradual process that infect almost every part of life in 1920’s and 1930’s Germany as Hitler and the Nazis rose to power.

Our view of the Holocaust is characterised by the horrors of the death camps and the Final Solution without really understanding the depth and insidiousness of Nazi anti-semitism and the way that it percolated through all aspects of society.

One area that should have been obvious and about which I had given little thought was that of the legal system. Yet there in the displays was a judicial robe and pinned to it was the Nazi eagle-swastika badge. The Judges wore their loyalties openly. They were tools of the State. The Nazis did not believe in an impartial judiciary nor an impartial judicial system.

The judicial robe is symbolic of impartiality or it should be. It hasn’t always been black. In the United States it has long been that neutral colour. Colourful robes have characterised the British judicial garb although workaday judicial garb has been black.

Judges must be careful to present an impartial approach to the decision of cases. No room for personal feelings. Judges directing juries tell the jurors to put aside feelings of sympathy or prejudice and be entirely impartial, focussing upon the evidence. There is no place for personal preference in the exercise of the judicial office. Judges have to do justice and impartiality is part of that. And by the same token Judges must be seen to be impartial.

There are accounts of some Judges giving up their right to vote so that there could be no appearance of political partiality. During my time on the Bench Judges would be nominated to preside over judicial recounts at election time, should any be required. My view was that should I have been rostered I would have to forgo exercising my rights to franchise.

Outward displays are critical. The Nazi Judges displayed their loyalty to the State and to the regime with the eagle-swastika badge. No badges – in my view not even war medals – should adorn the judicial robe. It should be free of any device that may hint of partiality. Symbols of sympathy for or support of a cause should not appear against the black of impartiality. Such symbols compromise that impartiality and demonstrate the support of the Judge for a particular cause.

Indeed, one must wonder whether any decoration over the black is appropriate. Of late a gold and red motif adorns the robes of senior court Judges on formal or ceremonial occasions and a blue, purple and silver motif is worn by some Judges in the District Court who preside in the Courts where the Te Ao Marama processes hold sway.

What messages do these adornments convey or are they simply a form of symbolic decoration? But for what is meant to be an impartial body and arm of Government there must, in my view, for such a public-facing body, be more.

Perception is everything and that perception must be of complete impartiality. The only beacon for a Judge must be the law.

And what must be remembered is that there is always a “public facing” role for the Judge. A judge can have a private life but in any situation where there may be a public facing the Judge must be careful.

Even an animated discussion about an over-priced item at the supermarket can attract attention as the phones come out and the incident is over social media within minutes of its being over. Heaven help the Judge who arrogantly asks “don’t you know who I am”.

Any behaviour that goes beyond the bounds of reasonable behaviour rapidly becomes public knowledge and the detrimental impact upon public trust and confidence in the judiciary as an arm of Government is obvious. In many cases to continue as a Judge in such circumstances may be untenable, not only for the individual Judge but for the good of the Judiciary.

But these thoughts went to one side as we progressed through the galleries and past the displays where the discriminatory acts became murder and the murders became mechanised and wholesale – from the mass graves of Babi Yar to the ovens of Auschwitz as the full horror of genocide became apparent.

And that caused me to reflect upon the way we throw words around, often to get a response or to challenge but in throwing words – powerful words – around without seriously reflecting on their meaning cheapens the language and debases the currency of the word.

And one word that has been debased of late is genocide. Perhaps those who fling the word about with such gay abandon need to reflect upon it and it use and meaning. Perhaps if they are in the vicinity of the IWM in London they should pay a visit to the Holocaust Galleries and reflect on the fact that genocide in the last hundred has been applied to the Jewish and Armenian people.

Why do I say that?

First, let us look at the concept of genocide.

“Genocide” refers to specific acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. The most distinctive feature of genocide is its intent—to destroy a group—in whole or in part. And it is not just any group. That group must be a national, ethnic, racial, or religious group. It can't be a political group. If individuals or entities seek to destroy members of a political party or a group holding a particular political position, it would not be genocide.

Acts of mass murder may be crimes against humanity but unless all the elements of genocide are present, especially that of intent, such mass murder may not amount to genocide.

For this reason the Israeli efforts to eliminate Hamas have a political context. There is not intention to destroy the group to which they belong – the Palestinians. Genocide may be a convenient or emotive word to describe what has happened in Gaza but it is incorrect and inaccurate.

Secondly, how is that termemployed. A more egregious use of the term has been deployed by commentators such as Sanjana Hattutawa and Shaneel Lal in describing the attitudes of those who suggest that trans people are other than whom they assert to be, and that they are governed by biology. Such assertions maybe offensive or hurtful but are not evidence of any genocidal intent nor of any genocidal action. Clearly the use of the word is emotive, designed to evoke horror or outrage on the part of listeners who may not be attuned to the nature of the debate.

But hysterical hyperbole is often deployed when sweet reason does not afford an answer.

The term genocide has been used by a sector of New Zealand society – led especially by people like Chloe Swarbrick and John Minto – in expressing support for Palestine and condemning the actions of Israel of Gaza. However, the chant “from the river to the sea, Palestine shall be free” is an expression of genocidal intent because it advocates the elimination of Israel and its Jewish inhabitants.

Lest the Swarbricks and Mintos of this world have forgotten their history (and they seem to be selective in that regard, remembering only that which is convenient to their argument) perhaps they would do well to reflect on the Arab atrocities against the people of the newly formed State of Israel in 1948 – atrocities which have continued and have been characterised only by a change in focus as nation-states have become involved, although the atrocities of 7 October 2023 are reminiscent of those of 1948.

Those atrocities are conveniently forgotten as members of the Green Party ritualistically don their black and white keffiyehs in support of a terrorist regime. And again, lest we forget, Hamas came to power in Gaza with the will of the Gazans. And Hamas (and Hezbollah) have been clear in their objectives – the elimination of the Israeli state (a political objective) and its Jewish inhabitants (a genocidal objective). And that latter objective is based purely and simply upon anti-Semitism.

Memories are short if indeed there are those who want to remember. My view is that we should never be allowed to forget the Holocaust and the unspeakable horrors that accompanied it and despite my support for freedom of expression, those who speak the language of anti-Semitism either directly or inferentially (and I place those who chant “From the River to the Sea” in that latter category) at least have revealed their prejudices and having done so are not worthy of any interaction on my part. They stand condemned and despised from their own mouths. By their words ye shall know them.

Perhaps they need to understand exactly what it is that they are supporting. Perhaps they need to understand how it is that anti-Semitism insidiously inserts itself into so many different levels of society. Perhaps they should benefit from a close study of the exhibits and materials on display in the Holocaust galleries of the Imperial War Museum.

The French have given civilization many gifts but one that I particularly value is their national anthem – La Marseillaise. It is a ferocious anthem written in 1792 by Claude Rouget de Lisle following the declaration of war by France against Austria.

The song acquired its nickname after being sung in Paris by Fédéré (volunteers) from Marseille marching to the capital. The song is the first example of the "European march" style. The anthem's evocative melody and lyrics have led to its widespread use as a song of revolution and its incorporation into many pieces of classical and popular music.

The words are stirring – perhaps most evocative in French

Allons enfants de la Patrie,

Le jour de gloire est arrivé !

Contre nous de la tyrannie

L'étendard sanglant est levé,

Entendez-vous dans les campagnes

Mugir ces féroces soldats ?

Ils viennent jusque dans vos bras

Égorger vos fils, vos compagnes

But it is the refrain that really grabs.

Aux armes, citoyens,

Formez vos bataillons,

Marchons, marchons !

Qu'un sang impur

Abreuve nos sillons

To arms citizens!

Form up your battalions!

March on, march on

And let impure blood

Drench our furrows.

Now some readers may say that this reflects the bloody time of the Terror and it was of that time. Rather like Wordsworth and Thomas Jefferson I prefer the time of the French Revolution of 1789 and the Declaration des Droits de l’Homme et du Citoyen (The Declaration of the Rights of Man and the Citizen).

So what does all this have to do with anything. As Lady Whistledown of the grossly overacted TV show “Bridgerton” would say, “Patience, dear reader”.

And I say that because I am going to change tack. But bear with me. I shall return to La Marseillaise.

Auckland University Law School was founded in 1883 as part of the then Auckland University College of the University of New Zealand. It is recognized today as the top law school in the country and fosters an excellent legal education.

When I started at Law School in 1965 one of the first things that we were told was that legal education was going to teach us to think like lawyers.

That wasn’t a threat of brainwashing. The law is complex and often challenging to understand.

What we learned was a comprehensive understanding of legal principles, systems and processes as well as learning how to navigate complex legal frameworks and how to apply the law effectively.

Almost by osmosis we gradually developed the analytical skills to evaluate cases, statutes and legal arguments as well as developing logical reasoning and creative problem-solving approaches.

And that was just the beginning. We learned about issues of justice and accountability through the Rule of Law and also had emphasized throughout the high ethical obligations of lawyers to society, clients and to the legal system. We received practical training through moot courts, internships, and case studies and also were prepared for legal advocacy, negotiation, and client counseling.

Indirectly we were also prepared for more esoteric activities such as influencing policy, advocating for change and upholding justice. There was an expectation of active participation in societal development and reform.

A specialized and focused legal education opens doors to diverse careers: lawyer, judge, corporate counsel, policy advisor, or academician. The skills gained can be applied in business, politics, journalism, and public service.

A legal education enhances communication skills, emphasizes the importance of precision in the use of language – both written and oral – and thereby improves clarity and precision in conveying ideas.

One of the critical features of legal education is that it encourages and demands independence of thought and expression and that independence is crucial for the Faculty of Law and those who teach.

Faculties of Law play an important constitutional role in upholding and protecting the rule of law - the idea that law constrains power and holds power to account. To do this, the Law School needs to be independent and be seen to be independent from all other interests. Its existing independence as a faculty enables it and its students to openly scrutinise illegalities and abuses of power by both public and private actors, and to highlight injustice wherever it occurs in the community.

Thus legal education is not just a gateway to a career in law but also a tool for personal development, societal contribution, and professional growth. It equips individuals with the skills, knowledge, and mindset to succeed in diverse fields while fostering a deeper understanding of justice and governance.

All of this is at risk at the University of Auckland.

The Vice-Chancellor of the University of Auckland released a proposal document dated 12 November 2024 entitled “Consideration of the future organization of the Faculties of Law and Business and Economics.”

The proposal suggests merging the Faculty of Law with the Faculty of Business & Economics to form a new, comprehensive faculty that leverages the strengths of both disciplines.

It is proposed that the combined faculty would aim to foster greater interdisciplinary collaboration, provide economies of scale, and enhance resources and support for research, benefiting both academic staff and students.

The “brand names” - that must give a clue where this is coming from - "University of Auckland Business School" and "Auckland Law School" will be retained alongside the name of the combined faculty to maintain their established identities.

A new departmental structure is proposed. Two new law departments would be created within the Auckland Law School, focusing on private law (including commercial, corporate, intellectual property, and technology law) and public law (including criminal, environmental, indigenous, and international law).

This is a bizarre proposal and I oppose it for a number of reasons.

Significantly the proposal document does not identify any need or necessity for such a merger. It is a brief document of some 10 pages including a lavishly illustrated title page.

It is characterized by the use of “management speak” or “business speak” and a number of vague and ill-explained concepts. It talks about “greater collaboration across a wide range of legal and business disciplines.” Without explaining how this will take place and failing to recognize that collaboration takes place already.

In another context when I did my oral examination for my PhD (it is called a “viva” by some – short for viva voce because it is a conversation) my examiners were drawn from the Law Faculty at Auckland, the History Department of the Arts Faculty at Auckland, a legal historian from the University of Canterbury aw School and an examiner who was based in London at the University of London as I recall.

This sort of collaborative activity takes place all the time, especially between the Business School and the Law School. To suggest that the collaboration will be greater begs the question how much greater than it is already.

Here is another example of management speak that does not provide answers.

” Currently, the Faculty of Law’s smaller scale limits its ability to fully leverage its strengths. The proposed alignment with Business & Economics allows both faculties to address this and to create a new faculty that positions the University as the national leader in business and law.”

What does this mean. Where is the data. How come the Law School doesn’t “leverage its strengths”? What “strengths”. How will the merger address this undefined and unexplained advantage rather than describe the creation of a new Faculty? And how will this position the University as a national leader in business and law? This is not explained. And it is a curious statement given that the Law School is ranked as the best in the country and 55^th best in the world in the QS rankings.

I could go through the proposal line by line and demonstrate fallacies and vagueness of expression, of open-ended examples of validation by mere assertion but I won’t. On a first reading the proposal is attractive. It is when it is considered carefully and analytically the whole issue becomes problematical.

I shall turn to two examples of problems.

The first is the suggestion that there be two new law departments would be created within the Auckland Law School, focusing on private law (including commercial, corporate, intellectual property, and technology law) and public law (including criminal, environmental, indigenous, and international law).

This is a foolish proposition for a number of reasons. The first is that when I did my undergrad degree we had to study 16 law papers. They were all compulsory. Not like today where only the core papers are compulsory and a student may construct the balance of his or her degree with elective subjects. That means that both in my day and at present a student will receive an education in both private and public law matters.

And there are cross-overs between the arbitrary divisions of private and public law. William Akel who is a barrister, media law expert and a member of Sangro Chambers observes that private and public law disciplines interact. He says:

“A good corporate lawyer should know something about treaty principles, about environmental law, resource management and you can’t easily divide these things up. The fundamental philosophies of law and business are different…. Law school is different because it teaches students to think critically and to fulfil their duties and obligations as lawyers, not only to their clients and the courts but to society generally.”

Former High Court Judge John Priestley KC considers the proposal to be misconceived. He notes that there’s much more to the discipline of law than as an adjunct to business interests and the business community. Mr. Priestley observes:

“The teaching of law has a constitutional dimension. It’s got a dispute resolution dimension, it’s got a huge historical dimension. And finally, I think it’s got a social dimension where the corpus of law, the body of law teaching, has to reflect to some extent the society in which it is operating.

And putting that argument around the other way, the business school may be very good at teaching taxation and aspects of mergers and acquisitions, but discussion of law or the teaching of law rather involves much more than that….In the common law world, or certainly in the English-speaking world, there’s not one law faculty of any reputable university that I can think of which doesn’t have independence.”

The arbitrary classification of public and private law ignores, as Mr Akel observed, that criminal law, for example, has public law implications in terms of procedure, evidence, admissibility and practice but it also has much wider private law implications. Same with contracts, same with tort. The law doesn’t fit neatly into that sort of classification or categorisation.

Law teaching involves more fundamental disciplines right from the start. It is an independent discipline. As former High Court and Court of Appeal Judge Raynor Asher KC said

“It’s not about business law. It’s not about evidence. It is about ethics, which underlines everything. And ultimately, all these laws combined create the rule of law. Law students have this drummed into them from their very first year.

“They learn some legal history. They learn about problem solving within the boundaries of the law and how the law works to resolve problems. And the degree is far more than just a meal ticket. It confronts and tries to teach students about what the law is about, why we have laws, how they developed and their function in our society,

To treat it as in some way having a synergy with a business college is to misunderstand the nature of legal teaching, which is all about teaching the fundamentals of the law and a broad range of disciplines that will produce a lawyer.

“That’s still the undiluted approach. It is to produce people who can be good lawyers. And of course, it does give them all sorts of disciplines and knowledge that will help them in other careers.”

The second problem is that of the independence of the Law Faculty. Under this proposal it will become a Department under the umbrella faculty of Business and Economics. The Dean will lose his or her seat at the Council table. Any advocacy for the Law School will be done by the Dean of Business. The independence and identity enjoyed by the Law School will come to an end with the merger.

A loss of independence through combining the Faculties will also alter the academic frame within which our staff and students operate. Every faculty has its own values, culture, priorities and interests, and changing where the Faculty of Law sits in the University will have a significant impact on these core parts of the Faculty's identity as well as the Faculty's teaching and research pursuits.

This point was made by the High Court when it upheld a challenge to the proposed merger between the Faculty of Law and Faculty of Business at the University of Waikato in 2002. Justice Hammond (a former Dean of the Auckland Law School)explained:

“the question of where something is taught is no "mere" or "incidental" matter. It is a matter of the greatest academic significance. The structure of courses, how they are taught, what the purpose of the courses is perceived to be, how well they will be supported, and so on, turns on a fundamental appreciation of the general philosophy and direction of an academic entity.”

Combining Law into the Faculty of Business and Economics generates a significant risk that the commercial and business interests in that Faculty will have an outsized role in influencing the direction of legal programmes and degrees, hiring practices, student initiatives and research priorities of the Law Faculty.

This, of course will have a detrimental flow on effect to the standing and ranking of the Law School, its ability to attract high quality academic staff and scholars.

The Law Faculty's academics are among the University's most publicly engaged intellectuals who frequently work with judges, lawyers, mana whenua, hapii, iwi,

Maori organisations, community law centres, businesses, non-government and international organisations, and Indigenous Peoples and governments around the world. Some of the Law School’s partners may see an alignment with Business and Economics as at odds with their own interests.

As you may have gathered, dear Reader, I am not a supporter of this proposal at all. I went to a meeting on Wednesday 18 December where the audience comprise lawyers and academics from the Law School. At the end of the discussion the vote was unanimous to oppose. The motion read

“This meeting is firmly opposed to the proposal to merge the Law School and the Business faculty. We are of the clear opinion that it would substantially diminish the standing and authority of the Law School, and negatively impact its global standing as well as its ability to attract and hold first class academic staff.”

The problem is that the timing is appalling. Submissions on the proposal close on 20 January 2025. The timetable for what is next is in place and set out in the document. This all smells of a predetermined plan put together by the Vice Chancellor and the Dean of Business who are responsible for the proposal. And of course – what a coincidence. The consultation period is reduced by 3 weeks with the intervention of the holiday period.

If that were not enough the are a couple of other things. The first is that during the time that I was teaching part-time at the Law School there was a similar proposal mooted. It was discussed but went no further. The opposition was great.

The second point is that this sort of merger has been tried before. Tried and failed dismally. After the earthquake the Business School and the Law School merged. Just like the current proposal for Auckland. The merger was a disaster. After two years the merger was completely unwound.

So here we go again. I will be making submissions on the proposal. Everyone who is opposed should do likewise. A proper legal education from New Zealand’s leading law school is at stake.

And this leads me to La Marseillaise. Here I am, with Christmas around the corner, having to cry aux armes, citoyens. Not muskets but with my weapon of choice – the pen. Although this article comes to you digitally via the Internet it started life on a piece of paper and the preparation of an outline using a Pelikan fountain pen. Every article I write starts its life the same way. It was the same with written judgements and articles in another “life”.

But wait – as they say – there’s more. InternetNZ – the organization whose primary function is to manage the domain name space for the .nz category – is having a constitutional review. The problem is that the proposed constitution dramatically changes the operations and structure of an organization of which I have been a member for over 20 years.

Many of the members are going to be effectively disenfranchised. The number of positions on the Council that will be elected will be reduced. The structure is designed to perpetuate the current power structure so that any change in the makeup of the guiding hands of the organization will be small. No chance of any dramatic change.

And that is going to require a submission as well.

I had hoped that my last article “The Campaign Continues” would be my sign-off for 2024. It is not going to happen. Too much going on. Too many issues to be addressed.

I turn 78 at the end of December. I am a bit old to be thinking this way but as I see wrongs being committed and injustices rife, as I see abuses of power and outrageous errors on the part of the powerful, like a distant trumpet La Marseillaise echoes through the recesses of my mind, and the call goes up as it did in 1832 when the Society of Friends built an obstruction on Rue de la Chanverie as described by Victor Hugo in Les Miserables – aux barricades – and so I take up my weapon of choice.

“Pilate therefore said unto him, Art thou a king then? Jesus answered, Thou sayest that I am a king. To this end was I born, and for this cause came I into the world, that I should bear witness unto the truth. Every one that is of the truth heareth my voice.

Pilate saith unto him, What is truth? And when he had said this, he went out again unto the Jews, and saith unto them, I find in him no fault at all.”
John 18: 37 – 38 (King James Authorised Version)

“And what is "truth"? Is truth unchanging law? We both have truths. Are mine the same as yours?”

Jesus Christ Superstar

If you thought that the fascination with misinformation and disinformation would fade into the background with the demise of the Disinformation Project you were mistaken.

Clearly the forces of a single universal truth have regrouped and a measured and thoughtful article by Helen Petousis-Harris – an Associate Professor in Vaccinology at the University of Auckland has been published in The Conversation under the headline “Deliberate disinformation campaigns are a public health risk – but NZ has no effective strategy to deal with it”. The article was reprinted in the Herald for 16 December under the headline “Covid response: Deliberate disinformation campaigns are a public health risk – but NZ has no effective strategy to deal with it” – a slight difference from the Conversation heading.

The starting point for the article is the recently released Royal Commission of Inquiry report about New Zealand’s Covid response which highlighted the harmful impact of misinformation and disinformation on public health. Professor Petousis-Harris observed that the report offered no solutions and that mis/disinformation campaigns fuelling distrust in Government are an age old problem that is difficult to counter.

Why it should be seen as a problem is not made clear unless the assumption is that distrust of government is a problem exacerbated by disinformation. But the Good Professor proceeds from her assumption by referring to a research study that she and others engaged in in 2010, analysing vaccine narratives for the use of logical fallacies defined by Aristotle. This analytical approach is developed.

The first thing that is stated is suggested as a proven fact.

“Research has meticulously mapped the contours of misinformation and disinformation surrounding vaccines. Experts highlighted that the conditions for the spread of misinformation were ripe before the pandemic.”

If one follows the link one arrives at a single article from the Herald for 1 December 2023 about an employment investigation after following a health agency worker spreading misinformation using government data about Covid-19 vaccines.

I would have thought some more significant data could have been advanced to support the assertion. But at least the argument is developed without the hysteria and hyperbole that accompanied Disinformation Project pronouncements.

The Good Professor then states

“Identifying misinformation and disinformation involves a critical evaluation of content and its source. A first question is the source credibility. Is the information from a recognised authority or reputable news source?

The next bit, logical consistency, is harder to detect. Does the information contain contradictions or logically impossible claims? Many false narratives are internally inconsistent or implausible.

Often there will also be at least some level of emotional manipulation. Disinformation frequently exploits emotions such as fear or anger to enhance engagement and sharing.”

I agree entirely with the approach. Critical evaluation of content and source is essential in any assessment of the reliability of information. That said merely relying on a recognized authority or a reputable news source may not be enough. There can be little doubt that often “recognized authorities” may have their own agenda and it would seem doubtful that a reputable news source exists in these days of declining public trust in mainstream media (MSM). Recent news stories about surveys demonstrate a “skewing” of the data and an absence of survey questions. Thus in addition to “recognized authorities” one should consider the primary sources and the evidential data.

The Good Professor then proceeds to demonstrate logical fallacies such as ad hominem attacks and cherry-picking which is the practice of selecting data that support a particular argument while ignoring data that contradict it. This latter practice is something at which many MSM writers are adept. She then moves on to discuss conspiracy theories which she claims during the pandemic

“misrepresented scientific evidence and the intentions of health authorities and experts. The claim of cover-ups is often the final go-to when there is no other convincing argument.”

She concludes this section of the article with the statement

“Surveys have repeatedly highlighted a worrying trend: a segment of the public, including some health professionals, harbours scepticism about vaccines, fuelled by unmitigated misinformation.”

The countering of disinformation is the next topic in the article suggesting a co-ordinated approach and tailored messaging which has

“shown promise in increasing trust and positive health behaviours. “Pre-bunking”, which involves educating people on how to spot misinformation before they encounter it, is gaining traction.”

Education and an increase in media literacy is also recommended – something with which I agree whole-heartedly. But this is not directed to evaluating the reliability of the information stated in media (both MSM and social media) which in my view is critical, but is rather designed to the ability to detect disinformation campaigns and be less susceptible to their influences.

The Good Professor sees disinformation as a factor eroding social cohesion. If by social cohesion she means a commonly held belief in a set of circumstances then what is being advocated is a communitarian, collectivist approach to society that overrides the interests of the individual. Social cohesion developed as a watchword over the pandemic as a fancy term for conformity. I cannot support that. I favour a society that celebrates a diversity of views and an environment that favours the expression of those views.

The Good Professor concludes her section on countering mis/disinformation by suggesting

“Collaboration between governments, international organisations and tech companies is essential. These stakeholders must work together to detect and limit the spread of harmful content and promote accurate information appropriate to the audience (right message, right messenger, right platform).”

It has taken a while but at last we can see that the Government is becoming a player in dealing with mis/disinformation. It must be a concern if the Government is controlling the messaging.

But Professor Petousis-Harris is concerned that Governments and health organisations are reactive to misinformation rather than being proactive or worse still leave a vacuum. Her suggestion is that

“We need a strategic, well- resourced commitment from the highest levels of government and health leadership.

It takes courage and the ability to walk a tightrope between freedom of speech and protecting public health. Both are human rights.”

Her suggestion is to

“prioritise the integrity of our public health communications and bring all the facets we need to do this together. This includes media, tech companies, academics and community leaders.”

It was a relief that she did not include the Government in that list of organisations and that she recognized the tension that exists with combatting mis/disinformation and the freedom of expression.

Professor Petousis-Harris’ article is more measured and rational than the outpourings of the Disinformation Project and I have no difficulty with the underlying message. Reliable information is necessary so that people can make informed choices about their health options.

I emphasise the importance of an informed choice. Section 11 of the New Zealand Bill of Rights Act states the right to refuse to undergo any medical treatment. A properly informed choice is crucial to the exercise of that right.

But the problem that Professor Petousis-Harris does not address arises from the way that the messaging around mis/disinformation uses those terms as dismissive veto statements rather than as introductions to a discussion about why the particular information is incorrect or the conclusions drawn from it are wrong.

And following that is the question of nuance and a failure to recognize the differing views that may surround public health issues. In a sense mis/disinformation are not only veto terms but have the tendency to support stereotyping or generalization. And in many respects this is the basis of Professor Petousis-Harris article.

Let me give an example which I take from a comment to an earlier post.

There is evidence that fluoride has many benefits for oral and dental health. It may be obtained from fluoridated toothpaste or mouth rinses which can be purchased from pharmacies or from prescription based fluoride supplements thus enabling a choice for the consumer. In addition some public water systems include fluoride. Thus if the consumer drinks tap water, fluoride is consumed. There is no choice involved.

The public health people would argue that the benefits of fluoride speak to the advisability of having it in the water. It is argued that community water fluoridation is effective and safe.

On the other hand there is a perspective that there should be no additives to water. At its simplest, rain water is about as pure as it gets. Anything that is added is in the form of a contaminant. Thus, notwithstanding the health benefits that may flow from fluoridated water it is water that has been contaminated by an additive.

To make this statement is not misinformation nor is it disinformation. Yet it runs counter to the accepted view of public health experts. To advocate against water fluoridation as a contaminant, as many do, may well be countrarian as far as public health experts are concerned but it is not mis/disinformation nor is it a conspiracy theory. It is a validly held point of view that underpins a choice. And in the minds of those who favour that choice, the addition of fluoride to water means that the authorities have deprived them of the choice. If you want fluoride, say the contrarians, use the toothpaste or mouth rinses or supplements. Then you are not forcing them – the contrarians – to do something they don’t want to do.

Now I acknowledge that this is a simplistic example. But it highlights the problems that public health experts face when it comes to decisions involving the course that should be adopted for public health. Inevitably, like any Government decision (or decision made by a monolithic agency) a “one size fits all” approach is adopted and the interests of the majority take precedence over those of the minority.

But that does not mean that there cannot be debate and freedom of expression – to express or receive information – demands that there be open and properly informed debate that does not generalize, does not stereotype but does recognize the importance of nuance and respect, rather than dismiss out of hand using cancel or veto words, the views and opinions of others.

By all means let us, as the Good Professor says

“restore and maintain the public trust essential for overcoming this crisis and future public health challenges.”

But at the same time in building that public trust let us do so in a way that respects the variety of opinions, beliefs and points of view on these very personal and individual matters of personal health and bodily integrity.

In closing, this article was first published in “The Conversation”. This publication serves as a source for a number of articles. I have often wondered about the Conversation and how one becomes a part of it. It is a rather exclusive community.

The Conversation website states that

“To be published by The Conversation you must be currently employed as a researcher or academic with a university or research institution. PhD candidates under supervision by an academic can write for us, but we don’t currently publish articles from Masters students.”

That limits those who can publish quite considerably. I cannot publish a rebuttal to or comment about Professor Petousis-Harris’ article because I do not qualify for membership of the Conversation. If I were still teaching Law and IT at the Auckland University Law School – as I once did – I would qualify as employed as an academic with a University. But those days are over.

So remember when you read something sourced from the Coversation that there is a certain level of expertise that sits behind its articles but that its membership is limited. It is governed by a Charter and details about the organization can be found here. But as is the case with anything that you may see on the Internet, evaluate critically, check the footnotes, evaluate the data and never forget science fiction writer Theodore Sturgeon’s Law – more a general observation - “90% of Everything is Crap”

It is of concern that weight is given to this fiction by organisations such as the Human Rights Commission in Maranga Mai as well as other governmental and international agencies. Arguments based on the Doctrine of Discovery should be rejected as being ephemeral “smoke and mirrors” suggestions without objective form and substance. Disputes between colonizing and indigenous peoples should be addressed and dealt with on the basis of observable facts and the historical record rather than theoretical and baseless imaginings.

Other Views

Dr. Samuel Carpenter has commented on the Doctrine of Discovery and calls that have been made from some quarters for it to be rejected as a legal concept. Such a call presupposes that there ever was a legal concept known as the Doctrine of Discovery.

Dr Carpenter is doubtful that it is an issue that needs to be addressed, suggesting that

“A sound understanding of history means rejecting simplistic, one-dimensional explanations for complex phenomena”.

His view which I share is that if there was a theory of discovery in the 15^th century its aim was to prevent conflict between European states in the early modern era.

“Basically, if a state discovered a new land ahead of its European rivals, that gave it a prior or monopoly right in those territories – but only against other European states.”

This principle did not mean that discovering states could seize indigenous lands. Dr Carpenter suggests that

“the recent arguments made about a Doctrine of Discovery make little sense of the whole history of European powers making treaties for trade, acquisition of land, cession of sovereignty, or control of tax revenues, including with non-Western peoples.”

By the nineteenth century British colonial expansion was tempered by anti-slavery and indigenous protection movements.

By citing a “Doctrine of Discovery” what its proponents suggest is that at least morally the idea of discovery is illegitimate. That is all very well but overlooks any consequential impact that the assertion of such a so-called Doctrine may carry with it. Arguing ad absurdam it means that the assertion of power or sovereignty – irrespective of how that was obtained – either by Treaty or the barrel of a gun – is illegitimate and that the successor to a colonial power suffers from that illegitimacy.

Certainly from New Zealand’s point of view there were serious wrongs done to Maori which are being addressed by the process of reconciliation by means of Treaty Settlements. Interestingly in that process the existence of a “Doctrine of Discovery” merits not a mention as a justification for further redress. At worst, as Dr Carpenter suggests discussion about the “Doctrine” was almost non-existent in New Zealand although he concedes that there may have been Western notions of superiority accompanying early colonial attitudes but this did not justify nor was it used to justify the taking possession of lands by force that were already occupied.

A strong proponent of the Doctrine of Discovery and its legacy in New Zealand is Tina Ngata. Tina Ngata is a Ngati Porou author, advocating for environmental, Indigenous, and human rights. Her background is described as being in holistic approaches to public health, including oranga taiao (environmental wellbeing) and oranga whanau (collective wellbeing).

Since 2019, she has been developing models of wellbeing and protection, founding the award-winning Manaaki Matakaoa program that uses community-centered, flaxroots oranga services to build a community-based health infrastructure.

Ms Ngata did her Masters thesis focusing on the application of the Doctrine of Discovery in Aotearoa.

She has given evidence before the Waitangi Tribunal and has also participated in a Podcast entitled “Mapping the Doctrine of Discovery”. Episodes in that podcast perpetuate much of the imagined theory that has been earlier discussed. It is no surprise to see Professor Robert Miller is a contributor. She also runs a blog entitled Kia Mau (Resisting Colonial Fictions) focusing on “dismantling frameworks of domination, rematriating ways of being.”

Tina Ngata’s evidence before the Waitangi Tribunal is instructive and exemplifies the way in which a particular ideological theory may take root and spread through governmental and social channels. She says:

“I am further involved in the national action plan against racism on behalf of the Iwi Chairs Forum, which includes education and training for Crown officials on the Doctrine of Discovery and its application in Aotearoa in both historical and contemporary settings.”[1]

Ms Ngata’s opinion (I would hardly characterize it as evidence) on the Doctrine of Discovery commences at paragraph 50 of her brief. She tells a story of female dispossession during the colonial period claiming

“This judgement of women can be seen to stem from the legacy of religious sexism, and the core role of Christian supremacy within the Doctrine of Discovery process.”[2]

Her assertions about the Doctrine and her discussion of it start at paragraph 71 and continue to the concluding paragraph of her brief – paragraph 72. They read as follows:

“All proclamations of discovery upon Indigenous lands were based upon the principles of the Doctrine of Discovery which, as stated by Dr Moana Jackson, claimed rights not only over other lands, but over the bodies of the people who belonged to that land. New Zealand/Aotearoa has not been an exception to these phenomena.

The assumptions based within the Doctrine of Discovery, based upon ideas of European male supremacy, was in direct conflict with the Ngāti Porou worldview and universal order, which placed wahine Māori as central to social wellbeing, with inherent spiritual, economic and political authority and sexual and relational agency of their own. This set in train a series of colonial philosophical and political responses which set the scene for the ongoing abuse of wahine Māori post 1840.”[3]

The following points emerge from these paragraphs.

Read more

When he appeared before Parliament’s Social Services and Community Select Committee earlier this year Minister Paul Goldsmith dealt with a criticism of the Government’s media policy.

Green MP Ricardo Menendez March suggested that the Government was taking a “hands off” approach to media woes. Mr. Goldsmith rejected that suggestion and pointed to initiatives and expenditure that had been undertaken to support the media sector. He argued that this was not “hands off”.

That said, media regulation in New Zealand has adopted a light-handed approach. Most of the elements of regulation centre upon content although there are other elements of regulation dealing with broadcasting spectrum and telecommunications.

Objectionable content is dealt with by the Censor under the Films Videos and Publications Classification Act 1993. Although there are calls to review the way in which objectionable content is classified and widen the scope of the Act that, thankfully, has not happened. Censorship should apply only to the most extreme and potentially damaging content.

Broadcasting standards are the subject of a Code developed by the Broadcasting Standards Authority (BSA) which was set up by the Broadcasting Act 1989. This is a complaint based system and the process by which complaints can be made are regularly published.

Because of an anomaly in the legislation – some might say it is out of date – online radio outlets like the Platform and Reality Check Radio are not subject to BSA jurisdiction. This is because they do not fulfil the definition of a broadcaster. And as I understand it, the Platform and RCR prefer it that way.

On the other hand other media regulatory models are voluntary. The Press Council has been replaced by the New Zealand Media Council (NZMC) membership of which is voluntary. The Council entertains complaints about content.

Similarly the Advertising Standards Authority (ASA) is a voluntary complaints based system that deals with advertising issues.

A common feature of all these regulatory organisations is that codes have been developed against which the complaints about content are measured.

Finally there is the Harmful Digital Communications Act 2015 which makes remedies available for those who have suffered serious emotional distress from electronic publications. There are civil and criminal remedies depending upon the seriousness of the harm and the intention of the poster.

A regulatory model was developed by the Department of Internal Affairs. It went under the name the Safer Online Services and Web Platforms and proposed (for consultation) a single regulatory body to deal with online content. The proposal involved the development of codes and circumstances where compliance may be required along with penalty and take down provisions. It would have been a significant step in media regulation if it had proceeded but was ill-conceived and is no longer being pursued by the Luxon/Peters/Seymour Coalition. That said, because it was devised by the Department under a Labour administration and was supported by members of that administration, should the Left be in power it is likely that the proposals will be revived.

The next “big thing” on the media regulatory horizon is the Fair Digital News Bargaining Bill (FDNBB). I have already written about that unfortunate piece of proposed legislation. I have offered an alternative solution. I agree with media expert Dr Gavin Ellis that it should be abandoned.

In this article I shall outline the background to the Bill.

I shall then address certain developments that are taking place across the Tasman.

I shall conclude with the reaction to my suggested alternative to that proposed by the FDNBB and consider whether or not it should proceed.

The Background

As a refresher, as reported by Tom Pullar-Strecker, the Bill is designed compel internet giants including Google and Meta to help fund journalism to the tune of tens of millions of dollars a year by requiring that they strike “licensing” deals with media outlets on terms that could ultimately be set by a government-appointed arbitrator.

When the Bill was introduced by the previous Labour Government, an unsurprising initiative from a socialist oriented administration, National opposed it.

However the coalition vacillated on what was to happen. The absence of a clear policy approach meant the end of the previous Media Minister, Ms. Melissa Lee. The Select Committee hearing submissions on the Bill suggested it should not continue. This was not accepted by Mr. Goldsmith who, after some delay, indicated that the Government would proceed with the Bill.

However when it came to the Second Reading of the Bill it was removed from the Order Paper. Further work needed to be done.

It was recognised by the Minister is that direct financial support from the Government could further undermine public trust and confidence in the Media. He went on to observe that this was part of a growing distrust of institutions generally.

Admittedly there are degrees of separation between the Government and the provision of financial support for the media in the Fair Digital News Bargaining Bill. But the fact remains that the regime proposed involves a state created and supported system that would compel bargaining with a penalty regime for infractions and non-compliance.

That is neither bargaining nor is it fair. And in the final analysis it is a state created means of subsidization of the media. Public money – other than that necessary to run the regime – would not be used.

The problem is that no matter how one tries to approach it, any sort of Government involvement in media funding is fraught with problems, not the least of which is that of perception.

The Public Interest Journalism Fund (PIJF) – another Labour initiative - was a means by which the Government exerted a level of control over media with the criteria that it imposed for grants. But the PIJF – apart from perception difficulties – was unsustainable. Hence the Fair Digital News Bargaining Bill.

If that Bill goes further and is enacted there will be pushback from the Platforms. A simple expedient will be to disconnect from news activities as Meta has done overseas. That will be disadvantageous to mainstream media whose news stories are accessed from the Platforms rather than from their own “home” sites.

Similar legislation has been enacted in Australia and Canada. I shall outline the Australian position in the next section, but some rather dramatic changes are proposed for their regulatory model and Mr. Goldsmith is adopting a “wait and see” attitude to see what develops and how it will work.

Shayne Currie in the NZ Herald for 14 December 2024 reports

“The further delay to new legislation in New Zealand has been met with disappointment from the news publishing industry, which says there “isn’t any time to waste” following a year in which hundreds of New Zealand journalism jobs have been lost.”

So what is the Australian model? How does it work? And what is proposed by way of change?

Australian Developments

The Australian equivalent - the Treasury Laws (News Media and Digital Platforms Mandatory Bargaining Code) Act 2021 was enacted by the Morison Government.

It prescribes mandatory code of conduct which governs commercial relationships between Australian news businesses and ‘designated’ digital platforms who benefit from a significant bargaining power imbalance.

The code, which focuses on online content, came into effect on 2 March 2021. Under the legislation, the Treasurer is able to designate certain digital platforms as subject to the obligations under the code.

Up until the second week in December 2024 no digital platforms had been designated.

This is because the platforms and news media organisations had come to their own arrangements and it was not necessary for designation. It was considered that these arrangements were prompted by the mere existence of the Code and that the threat of possible designation acted as an incentive to an alternative solution.

The current version of the Code can be found here.

In deciding whether to designate a digital platform, the Treasurer is required consider whether there is a significant bargaining power imbalance between the platform and Australian news businesses, and also whether the platform has made a significant contribution to the sustainability of the Australian news industry, including through agreements to remunerate those businesses for their news content.

However, these agreements are set to expire and Meta (Facebook) has indicated that it will not engage in another round of negotiation.

Administering the Code

This is where differences between the Australian regulatory environment and that of New Zealand become clear and requires a further overview of regulatory structures.

By way of initial observation the Australian model is seen as a commercial and consumer law measure rather than a media protection measure although it has the latter effect. I say that because despite its title it was introduced as an amendment to the Competition and Consumer Act 2010 (Cth).

Many of the requirements of the Australian model are administered by an organization known as the ACMA or the Australian Communications and Media Authority. The ACMA is central to Australia’s media regulatory framework.

Other aspects are administered by the ACCC – the Australian Competition and Consumer Commission.

The ACMA - Background

ACMA was officially formed on 1 July 2005 through the merger of two pre-existing regulatory bodies: the Australian Broadcasting Authority (ABA) and the Australian Communications Authority (ACA). The merger aimed to streamline regulatory functions and create a unified authority to oversee both telecommunications and broadcasting, reflecting the convergence of these sectors in the digital age.

The ABA, established under the Broadcasting Services Act 1992, was primarily responsible for regulating television and radio broadcasting services, ensuring that content standards were met and that licenses were appropriately managed. The ACA, on the other hand, was formed under the Telecommunications Act 1997 and had a broader mandate encompassing telecommunications, including radio communications and postal services.

The merger was driven by the recognition that the lines between broadcasting and telecommunications were increasingly blurred, necessitating a holistic regulatory approach. By combining the expertise and functions of the ABA and ACA, ACMA was positioned to address the contemporary challenges of a converging media landscape.

The ACMA has a number of functions and these are as follows:

Regulation of Broadcasting Services

ACMA oversees the regulation of television and radio broadcasting in Australia. This includes issuing licenses, managing spectrum allocations, and ensuring compliance with content standards. The authority monitors broadcasting services to ensure they adhere to codes of practice, which cover a range of issues, from decency and accuracy in news reporting to the classification of programs.

Telecommunications Regulation

In the telecommunications sector, ACMA's responsibilities include managing the radiofrequency spectrum, regulating telecommunications services, and ensuring that service providers comply with industry standards. ACMA plays a crucial role in facilitating competition in the telecommunications market, promoting consumer protection, and overseeing the rollout of new technologies and services.

Internet and Online Content Regulation

With the rise of the internet and digital platforms, ACMA's role has expanded to include the regulation of online content. The authority works to ensure that online content adheres to Australian standards, particularly in regard to issues such as cyberbullying, online safety, and the protection of minors. ACMA also collaborates with other international regulators to address the global nature of internet content and services.

Spectrum Management

Effective management of the radiofrequency spectrum is one of ACMA's key responsibilities. The authority allocates spectrum for various uses, including broadcasting, mobile communications, and emergency services. By ensuring efficient use of this finite resource, ACMA supports the development of new technologies and services, while minimizing interference and optimizing the spectrum's economic and social benefits.

Consumer Protection

ACMA is dedicated to protecting the rights and interests of Australian consumers in the communications and media sectors. This includes enforcing rules related to telemarketing, spam, and customer service standards. The authority also provides information and resources to help consumers make informed decisions and resolve disputes with service providers.

Research and Analysis

ACMA conducts extensive research and analysis to inform its regulatory decisions and policy recommendations. By staying abreast of technological advancements and market trends, the authority ensures that its regulatory framework remains relevant and effective. ACMA regularly publishes reports and findings, contributing to the broader understanding of Australia's communications and media landscape.

The role of the ACMA in the Bargaining Code structure will be discussed below.

I shall now turn to consider the provisions of the Bargaining Code Act.

The News Media and Digital Platforms Mandatory Bargaining Code Act 2021

The Australian Treasury Laws (News Media and Digital Platforms Mandatory Bargaining Code) Act 2021, is commonly known as the Bargaining Code.

The primary objectives of the Bargaining Code are:

• To ensure that news media businesses receive fair compensation for their content.

• To promote competition, diversity, and sustainability in the Australian news media sector.

• To address the bargaining power imbalance between digital platforms and news media businesses.

Key Provisions

The Bargaining Code includes several key provisions designed to facilitate fair negotiations and ensure compliance:

Designation of Digital Platforms

The Australian Treasurer has the authority to designate which digital platforms are subject to the code, based on certain criteria such as the platform's market power and impact on the Australian news landscape.

Negotiation and Arbitration

Once designated, digital platforms are required to negotiate in good faith with news media businesses for compensation. If parties cannot reach an agreement within a specified period, the matter is referred to compulsory arbitration. An independent arbitrator then determines the final remuneration based on criteria such as:

• The benefits derived by both parties from the use of the news content.

• The cost of producing news content.

• Whether a particular remuneration amount would place an undue financial burden on the digital platform.

Non-Discrimination Clause

The code includes non-discrimination provisions to ensure that designated platforms do not disadvantage news media businesses that engage in bargaining under the code compared to those that do not. This prevents platforms from penalizing news outlets that seek fair compensation.

Minimum Standards

Designated digital platforms must meet specific minimum standards, including:

• Providing news media businesses with advance notification of changes to algorithmic ranking and display of news content.

• Supplying data on user interactions with news content.

• Ensuring transparency regarding the use of news content.

Compliance and Enforcement

ACCC Oversight

The Australian Competition and Consumer Commission (ACCC) to which reference has earlier been made, is responsible for overseeing the implementation of the Bargaining Code. The ACCC monitors compliance and has the authority to investigate complaints and take enforcement action if necessary.

Penalties for Non-Compliance

Digital platforms that fail to comply with the code's provisions may face significant penalties, including fines. These measures ensure that the mandatory bargaining process is taken seriously and adhered to by all parties involved.

Matters of registration of news businesses and compliance with those procedures is in the hands of the ACMA.

The key requirements of the process are as follows:

Registration of News Media Businesses:

News businesses must register with the Australian Communications and Media Authority (ACMA) to participate under the Code.

Eligibility criteria include adherence to professional standards and producing a significant portion of public interest journalism.

The obligations on Digital Platforms may be summarised as follows:

Good Faith Bargaining: Platforms must engage in good-faith negotiations with eligible news businesses.

Notice Requirements: Platforms are required to notify news businesses of algorithm changes that could significantly impact traffic or ranking of news content.

Revenue Sharing: Platforms are required to provide fair remuneration to news businesses for their content.

Exemptions:

Digital platforms can avoid designation if they demonstrate that they have entered into sufficient commercial agreements with news businesses outside the Code.

The operation and enforcement of the Act is in the hands of the ACCC. The various elements of the involvement of the ACCC and others are as follows:

The ACCC

· Oversees the implementation and operation of the Code.

· Advises the Treasurer on whether a digital platform should be designated under the Code.

· Investigates non-compliance and provides enforcement recommendations.

The Treasurer

· Holds the authority to designate digital platforms under the Code, based on ACCC advice.

· Determines exemptions for platforms that have already entered into acceptable agreements with news media businesses.

Arbitrators:

· Independent arbitrators appointed to resolve disputes when negotiations fail.

· Their role is to select the most reasonable final offer presented by the parties.

The ACMA

· Administers the registration of eligible news media businesses.

· Ensures compliance with the criteria for participation in the Code.

Outcomes and Impact

Increased Revenue for Media: The Code has resulted in agreements worth hundreds of millions of dollars between platforms like Google and Facebook and Australian news outlets.

International Precedent: The Code has inspired similar discussions in other jurisdictions seeking to address power imbalances between media companies and tech giants.

Pushback from Platforms: Initially, platforms resisted the Code, with Facebook temporarily blocking news in Australia and Google threatening to pull services from the country.

So What Has Changed?

As noted Meta (Facebook) is not prepared to renew its agreements with news media outlets. Up until now it has avoided designation and the consequences that flow from that.

That clearly has done more than irritate the Australian Government. It should be noted that the Albanese Government clearly sees the large digital platforms as a target. Over the last twelve months there have been three salvos directed towards the platforms.

One is the age-restriction requirements for young people under 16 from accessing social media platforms. The onus is on the platforms to devise effective age verification protocols. The penalties for non-compliance or for failure are significant.

The second salvo, which was unsuccessful though lack of support, involved making platforms responsible for dealing with misinformation and disinformation.

The third salvo was fired 12 December 2024 with the announcement of the News Bargaining Initiative.

The News Bargaining Initiative will be a new addition to the code which will create a further financial incentive for agreement making between digital platforms and news media businesses in Australia.

It seems that the designation power, which up until now has not been used, will be invoked.

Stephen Jones Minister for Financial Services (Reuters) said:

“Today, we announce measures to strengthen that code. The News Bargaining Initiative will be a new addition to that code, which will create a financial incentive for agreement-making between digital platforms and news media businesses in Australia.

The incentive will contain a charge on relevant platforms based on Australian-sourced revenue.

The charge will include a generous offset for the commercial agreements that are voluntarily entered into between the platforms and news media businesses.

The platforms who will be in scope for the charge will be significant social media platforms and search engines with an Australian-based revenue in excess of $250m.”

What this means is that platforms will not only be designated but that they will be levied or charged based on the revenue that is sourced from their Australian operations.

That charge may be reduced if the platform negotiated a voluntary commercial agreement with news media businesses.

Mr. Jones and Communications Minister Michelle Rowland suggested at a media conference that this will leave organisations such as Meta and Google with a bill far larger than if they had simply entered into agreements.

And the charge will be imposed automatically.

This is a significant step.

But that is not all. Even if it is not in the business of providing or linking to news a platform will be liable to pay the charge. Platforms that refuse to come to the bargaining table will still have to pay – regardless of whether they host news content on their sites.

Previously a recalcitrant platform would be designated and would then have to engage in the negotiation procedures under the Act. Thus under the Initiative platforms will be automatically charged but may have that charge reduced if a commercial outcome is negotiated with a news media outlet.

This will not apply to the smaller operators but the platforms with an Australian based revenue of over $A250 million. Although Mr. Jones described the payment as a charge it has been described as a levy and by some as a tax.

In many respects it seems to me to be the imposition of a statutory penalty imposed upon a platform that is legitimately doing business and deriving income by making services available that are similar but not identical to mainstream media outlets. There is no associated offence for such a penalty. Merely by conducting a certain business and reaching a certain revenue threshold the penalty becomes payable.

I have explained elsewhere that services such as Google News do not in fact reproduce articles from MSM outlets but provide snippets of and links to those article. Thus they are acting as an indexing system which is what search engines do.

Under the Australian regime it seems to me that if you fulfil the qualifications under the law you are levied irrespective of the technological aspects of what you are doing. This seems to me to be extraordinarily harsh and commercially destructive.

How Does this Line Up With the FDNBB

The approach of the FDNBB is similar to the original Australian proposal although it is not approach through a competition law lens. Were that to have been the case the legislation would have been driven by MBIE and the Commerce Commission.

What the Bill Provides

The objectives of the Bill are to:

- support news media entities to maximise the benefits they receive from the content they create that is aggregated and displayed on digital platforms

- ensure that implementation of its provisions will impose a minimal financial cost and compliance burden on the affected parties and government

- create equitable treatment and support for New Zealand’s diverse news media industry, including smaller, rural, regional, and ethnic news media entities, and, specifically, Māori news media entities

- support a free and independent news media industry by enabling media companies to be viable in a digital marketplace.

The Bill sets out to ensure fair revenue sharing between digital platforms and news media organisations by:

- promoting voluntary commercial agreements between digital platforms and news media organisations, with minimal government intervention;

- where agreement cannot be reached, establishing an arbitration process to determine commercial arrangements between digital platforms and news media organisations; and

- providing for collective bargaining with digital platforms by news media organisations.

In detail the proposal is to achieve the “fair revenue sharing” between platform operators and news media organisations by

- creating a fair bargaining environment through a bargaining code that will be established by the independent regulator and operate as secondary legislation

- requiring bargaining parties to comply with the bargaining code and to bargain in good faith, as well as requiring parties registered under the legislation to participate in the bargaining process

- promoting voluntary commercial agreements between operators of digital platforms and news media entities, with minimal government intervention

- where agreement cannot be reached, creating a stepped bargaining process to facilitate fair and equitable outcomes

- providing for collective bargaining by news media entities

- establishing civil penalties for non-compliance with the legislation.

An independent regulator will be appointed – an Authority. The Bill proposes that this be the Broadcasting Standards Authority. It is interesting to note that the appointment of an independent regulator was an integral part of the DIA proposals for Safer Online Platforms, although that Discussion Paper envisages a reduced role for the BSA, given that MSM disseminates news via online platforms.

The Purpose of the Bill

The purpose of the Bill can be seen from the background information provided. It is to provide support for MSM now that the various State based support mechanisms are coming to an end. The purpose as stated is to support sustainable production of New Zealand news content by ensuring that operators of digital platforms make a fair contribution to the cost of producing news content that is made available by their digital platforms.

That purpose is achieved by the following means:

- “incentivizing” operators to enter into news content agreements and other arrangements that contribute to sustainable production of New Zealand news content

- facilitating fair bargaining between news media entities and operators about the terms on which news content produced by the entities may be made available by the operators digital platforms; and

- where necessary, imposing news content agreements that require operators to fairly compensate news media entities for that news content through binding arbitration.

Thus there is a range of “stick and carrot” approaches. Operators will be “incentivized” by the threat of compelled coercive action if there is non-compliance or hesitancy in complying. This is not incentivization. It is “velvet glove” compulsion. The iron fist comes later. If “fair bargaining” does not produce a satisfactory result the State steps in and imposes agreements on platforms.

To be fair it should be observed that in overseas jurisdictions, the threat of a compulsory bargaining regime has been sufficient to bring companies to the negotiating table. For example, in Australia the bargaining, mediation and arbitration provisions have not been used, with agreements reached outside of the framework.

It is suggested that the legislation serves as a backstop encouraging companies to enter voluntary negotiations. The word “backstop” is a polite way or describing a threat.

How the Process Works – A Quick Summary

The Bill has a total of 125 clauses and I do not intend a clause by clause discussion. I shall very briefly summarise how the process is going to work.

The first step is to provide a means by which news media entities and operators may be registered so that they may participate in the bargaining process. Both news media entities and operators must comply with a bargaining Code that would be issued by the Regulator and bargain in good faith when engaging in news content bargaining.

There are various criteria for the registration of news media entities and for platform operators.

The Bill sets out provisions for the bargaining process. There are three stages – negotiation, mediation and final offer arbitration.

It is clear that if there are existing satisfactory arrangements in place the bargaining process does not override existing news content agreements or other contractual arrangements.

If the parties cannot reach agreement by negotiation the process moves to mediation. There is a period within which mediation takes place. If an outcome cannot be reached by mediation or withing the mediation period the matter goes to final arbitration conducted by a panel of 3 approved arbitrators.

Parties submit their final offers and the panel selects the final offer that fairly compensates the news media entity party for its news content being made available by the operator’s digital platform on the terms provided for in the offer. If both offers fairly compensate the news media entity party, the panel must select the offer that, in its opinion, better supports sustainable production of New Zealand news content.

The Bill provides that the “Authority” – the BSA at the moment - should have information gathering powers and may share information gathered with overseas agencies.

The Authority has certain enforcement powers.

These powers are similar (but not identical) to those contained in the Unsolicited Electronic Messages Act 2007 which dealt with spam. Undertakings may be given relating to enforcement. Corrective notices may issue where a person has contravened or is likely to contravene various provisions of the legislation. Warnings may be issued.

Enforcement of the bargaining provisions does not involve the creation of an offence but the creation of civil liability which may result in a pecuniary penalty order or the issue of an injunction. Pecuniary penalty orders are a feature of the Unsolicited Electronic Messages Act.

The remedies are available for contravention of the civil liability provisions. Those provisions impose substantive duties including:

· compliance with the bargaining code:

· bargaining in good faith:

· participation in the bargaining process:

· compliance with the terms and conditions of an exemption from the bargaining process:

· compliance with corrective notices and disclosure notices.

Pecuniary penalty orders would be imposed by the High Court. Three tiers of penalties are proposed.

Tier 1 has maximum penalties of $500,000 for an individual or $10 million for a body corporate (or a higher amount based on 3 times the commercial gain from a contravention or 10% of turnover). Tier 1 covers—

· contraventions of the duty to participate in the bargaining process:

· contraventions of the terms and conditions of an exemption from the bargaining process.

Tier 2 has maximum penalties of $200,000 for an individual or $3 million for a body corporate (or a higher amount based on the commercial gain from a contravention or 3% of turnover). Tier 2 covers—

· contraventions of the bargaining code:

· contraventions of the duty to bargain in good faith:

· contraventions of certain terms and conditions imposed on an exemption from specified provisions of the Commerce Act 1986 under subpart 2 of Part 6.

Tier 3 has maximum penalties of $30,000 for an individual or $300,000 for a body corporate. Tier 3 covers—

· contraventions of the requirement to give the Authority a copy of a news content agreement entered into through the bargaining process:

· contraventions of corrective notices and disclosure notices.

In determining an appropriate pecuniary penalty, the court must have regard to all relevant matters, for example, the nature and extent of the relevant conduct and the loss or damage caused by that conduct.

There are specific offences proposed relating to compliance with the Authority’s information-gathering powers and misleading or deceiving the Authority. The penalty for an offence under that clause is a fine not exceeding $500,000 for an individual and $10 million for any other person.

One has to question whether or not these activities are a comfortable fit within the current content regulatory powers of the BSA which does not deal with all media but with broadcast media only. It does not even deal with digital media. It would certainly amount to a significant extension of BSA powers and could well be a precursor to an even wider set of powers should the Safer Online Service proposals be revived.

Problems

The first point that should be made is that the purpose of the Bill is to support the sustainable production of news content.

At present MSM is in a crisis because a significant source of revenue in the form of advertising has vanished. This is attributed to the redirection of advertising revenue to the platforms.

The platforms actually support MSM by indexing their content and providing links to it – a factor which MSM conveniently ignores in its outpourings on this subject.

In addition perhaps MSM should look at itself and work out why advertising revenue is falling. Public trust and confidence is news media is declining. Bias is apparent. Audiences are migrating to other sources of news other than MSM. Why should an advertiser place an announcement where it is going to be seen or heard by a declining audience?

So the Bill really is designed to require the platforms to prop up a failing industry.

It seems that the lessons of history have not been learned. What was it that enabled the production and distribution of news sheets – those precursors to newspapers?

The answer is the printing press – the first information technology.

The age of the printing press was the first information paradigm. Although radio and TV introduced different means of distributing content they, like newspapers, relied on a centralized distribution model.

Paradigmatic change came with the introduction of digital technologies, the Internet and interactive technology protocols which enabled sophisticated search engines (more sophisticated than Gopher or AltaVista) and social media – among many other things. This paradigm shift revolutionized the way in which people consumed content and at the same time had a significant impact upon their expectations of content.

In addition the Digital Paradigm meant that everyone could become a publisher. It enabled the true participatory democratization of information.

Now if we accept for the moment that Government regulatory activity should be designed to create an environment and the circumstances within which businesses may succeed, should they really be spending time and effort in constructing an edifice like that of the FDNBB with enhanced powers for the BSA that will support a failing business model and an industry in which there is declining public trust and confidence.

Although this may sound like economic Darwinism, if MSM cannot support itself in the marketplace, perhaps it should give way to businesses or organisations that can.

The second and perhaps more salient point is this.

There is neither a right nor an entitlement to advertising revenue.

Perhaps MSM has made the same mistake that this country made in using and becoming reliant upon the UK as our primary market in the years prior to the UK joining the EEC. That demonstrated the importance of diversification of markets. Yet this country seems determined to pursue the same course, if Helen Clark and John Key were to have their way, of putting all our eggs in China’s basket. The lessons of history seem to have been ignored. However it is encouraging to note that increased focus is being directed towards India as an emerging market.

But I am straying from my point. MSM has relied on advertising revenue and it has dried up. Clearly it didn’t have a financial plan B. Clearly it had no understanding of the deeper implications of the Digital Paradigm and the way that the Paradigm has influenced audience behaviours.

What the FDNBB ultimately does is to replace lost advertising revenue – to which there is neither right nor entitlement - with a levy – negotiated or imposed - upon the platforms. It is almost as if the underlying premise of the FDNBB is that there is an entitlement to a certain revenue stream and if advertisers cannot provide it then someone else will be compelled to do so.

The third and final point deals with optics. New Zealanders are familiar with the Public Interest Journalism Fund (PIJF).

There is a Government interest at play although it is cunningly presented as a public interest. The State has an interest in maintaining MSM because of its objectives of countering misinformation and supporting democracy and social cohesion.

The State argues that a sustainable, local news media sector provides reliable, balanced information on which the public base choices as participants in political, economic, and social life, and acts as a watchdog on those in power. It also supports broader social wellbeing, through for instance the use of te reo Māori and promoting the culture of New Zealand.

This was one of the premises that lay behind the PIJF. A problem with the PIJF was that it was perceived, rightly or wrongly, as being a payment by a Government to buy a compliant MSM.

The FDNBB is a little more subtle in that it sets up a State-based system to provide a continued source of funding for a struggling and declining industry. Although payments are not – as they were with the PIJF – paid out of Government coffers there can be no doubt that the State will be seen as supporting MSM by devising a regulatory environment that supports a failing industry model. And once again, the optics are not good. There is little hope that public confidence in MSM will increase or be enhanced. The FDNBB will be seen as yet another prop for a business model that is failing.

Closing Observations

I am going to close on a personal note.

Regular readers of A Halfling’s View will be aware of the fact that I do not support the FDNBB.

However, my professional life has been dedicated to using existing rule systems to solve problems and present solutions.

Although I did not support the FDNBB it was my view that the assistance that MSM required could be achieved by means of another path. Because it appeared to me that there was an element of “free-riding” by platforms on MSM content, a few changes to the Copyright Act could well bring the activity of platforms within the scope of licensing arrangements that could produce a similar and more principled approach than the FDNBB.

I made this submission to the Select Committee earlier this year. I did not develop it in detail but the analysis of the submissions rejected the proposal.

I developed the proposal in more detail and made a submission direct to the Minister Mr. Goldsmith. A copy of my proposal and its summary may be found here.

2024 11 28 Fair Digital News Bargaining Bill An Overview

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2024 11 16 Fair Digital News Bargaining Bill An Alternative Approach Full Final

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I received a letter from Mr. Goldsmith dated 12 December 2024 rejecting my suggestions. It is clear that the face of his advisers is turned firmly against the Copyright solution although the legislative changes are minor and any perceived “imbalance in bargaining power” which would be present in any event under the FDNBB would be mitigated to a considerable degree by the Copyright Tribunal which can adjudicate on licensing arrangements.

2024 12 12 Signed Letter Of Response Dr David Harvey 12 12 2024

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So I have reached this conclusion. I will not try and offer any suggestions in future as alternative solutions for the problems faced by MSM. From this point I am firmly opposed to the FDNBB as it stands in its present form.

If Mr. Goldsmith chooses to follow the Australian lead and devise a system that imposes a levy on the Platforms he will struggle to find a principled basis for doing so, and his actions will result in declining trust and confidence in MSM who will be seen as the beneficiaries of a State-enabled handout.

An in addition his actions would be more in line with an interventionist Left-wing government rather than a Centre-Right Government that favours light-handed regulation and market-based solutions.

As it is the FDNBB sets up another regulatory structure and one wonders what Mr Seymour with his Regulatory Standards Bill would think.

Governments are established to serve and protect the interests of their citizens, ensuring their well-being and fostering societal growth.

The problem is that no one seem to have told the politicians and the bureaucrats. Rather it seems to me that citizens are expected to fit in with the decrees of Government (central or local) or the bureaucracy. In this way citizens become the servants of or subservient to government. And this approach is wrong headed.

Another problem is that Governments take on too much – especially in New Zealand where the Government is seen as the first port of call rather than the last resort when all else fails. This creates a culture of dependency that goes far beyond that which flows from multi-generational reliance upon social welfare assistance. Citizens seem to be helpless is devising ways to solve their problems, preferring to leave it to the Government.

The Government happily accepts the responsibility even although by doing so it goes beyond its basic remit. And the way that it solves problems is not to provide solutions but to provide the money that funds solutions (theoretically). We only need to look at Auckland’s Central Rail Link to see how that worked and the hideously expensive solution will not be available until 2026 – if we are lucky.

In my view Government has four fundamental responsibilities in serving and protecting the interests of citizens. These are ensuring the safety and security of citizens, providing for their health, ensuring access to quality education and providing for essential services and the infrastructure supporting them. These responsibilities are foundational to a thriving society, as they promote stability, security and prosperity and the pursuit of happiness.

The first and most fundamental role of government is to provide for the safety and security for its citizens. Without security, individuals cannot enjoy their rights, and societies cannot progress.

This function includes the maintenance of law and order through law enforcement agencies, the military for national defense, and the judicial system to resolve disputes and uphold justice. A secure society allows individuals to focus on their personal and professional development rather than living in fear of harm or injustice.

Without security, the rule of law cannot be maintained, and the freedoms and rights of individuals cannot be guaranteed.

Moreover, the government’s role in security extends beyond physical safety to include limited actions to promote economic stability. By enacting regulations that protect property rights, prevent exploitation, and ensure fair markets, governments foster an environment where businesses can thrive and citizens can pursue economic opportunities.

Safety is the bedrock upon which all other societal functions depend. Without it, the pursuit of health, education, the provision of necessary infrastructure or personal fulfillment becomes unattainable. By prioritizing safety and security, governments create a stable environment where individuals can live without fear and pursue their aspirations.

A government’s ability to provide safety is the foundation upon which all other functions rest.

The provision of healthcare is another vital function of government. Health is a fundamental human right, and access to healthcare services is essential for individuals to lead productive and fulfilling lives. Governments have a responsibility to ensure that healthcare is accessible, affordable, and of high quality. This involves investing in healthcare infrastructure, training medical professionals, and implementing public health policies that prevent and control diseases.

A healthy population is more productive and capable of contributing to the economy. When citizens have access to healthcare, they are better equipped to work, study, and participate in community life. Moreover, public health initiatives, such as vaccination programs, health education campaigns, and sanitation projects, help to prevent the spread of diseases and improve overall public health outcomes. By prioritizing health, governments ensure that their citizens can lead longer, healthier lives, thereby enhancing the nation’s human capital.

Inadequate healthcare leads to systemic inequalities, perpetuating poverty and reducing overall societal productivity. Thus, investing in health is not only a moral obligation but also an economic imperative.

More on this topic later.

Education is the cornerstone of a prosperous and progressive society. It empowers individuals with the knowledge, skills, and critical thinking abilities needed to navigate the complexities of the modern world.

Governments have a duty to provide free access to quality education for all citizens, regardless of their socioeconomic background. This includes investing in educational infrastructure, training teachers, and developing curricula that meet the needs of a diverse student population.

An educated populace is essential for the development of a vibrant economy and a robust democracy. Education fosters innovation, drives economic growth, and reduces poverty by providing individuals with the tools they need to secure better-paying jobs.

Additionally, education promotes common values and civic engagement, enabling citizens to participate more effectively in democratic processes. By prioritizing education, governments lay the foundation for a more informed, equal, and prosperous society.

In addition to these three functions is the provision of infrastructure and essential services, such as power, water, and sanitation. These services are the backbone of a functioning society, facilitating economic development, public health, and overall quality of life.

Infrastructure is the bedrock upon which modern economies are built. Roads, bridges, electrical grids, and water supply systems are essential for the smooth operation of businesses and industries. Without reliable infrastructure, economic activities would come to a standstill, hindering growth and development.

Governments are uniquely positioned to undertake large-scale infrastructure projects that require substantial investment and coordination. By providing these services, governments create an environment conducive to economic prosperity, attracting investment, creating jobs, and boosting productivity.

The provision of infrastructure is linked to the provision of health services. Access to clean water and proper sanitation is a fundamental to survival, may be therefore seen as a human right and a crucial determinant of public health.

Governments have the responsibility to ensure that all citizens have access to these basic necessities. Contaminated water and inadequate sanitation facilities can lead to the spread of diseases, causing significant health crises.

By investing in water treatment plants and sewage systems, governments can prevent outbreaks of waterborne diseases and ensure the well-being of their populations. Moreover, reliable power supply is vital for healthcare facilities to operate efficiently, especially in emergencies.

Infrastructure is essential in considering the obligation of governments to provide for the security of citizens.

Infrastructure and essential services are critical components of national security. A well-maintained and resilient infrastructure system ensures that the country can function effectively even in times of crisis.

Natural disasters, cyber-attacks, and other emergencies can disrupt power, water, and sanitation services, leading to chaos and instability. Governments must invest in robust infrastructure and establish contingency plans to safeguard these services.

This enhances the country's resilience and ability to respond to unforeseen challenges, thereby protecting the nation and its citizens.

These four primary functions of government—safety, health, education and infrastructure —are deeply interconnected. A secure society creates the conditions for individuals to pursue education and enjoy good health. Similarly, educated citizens are better equipped to participate in maintaining societal security and making informed health decisions. A healthy population, in turn, is more capable of contributing to the economy and engaging in lifelong learning.

When governments neglect any of these functions, societies face significant consequences. Insecure communities struggle to build schools and hospitals. Poor health undermines educational achievement and economic productivity. A lack of education fosters ignorance, inequality, and instability. Thus, governments must approach these responsibilities holistically, recognizing their interdependence.

The problem is that this hasn’t been happening. From time to time events occur which in isolation may be considered accidents but when taken together seem to be indicative of a failure by those appointed to serve to properly do so. One only needs to consider the provision of electricity that was compromised when a pylon fell over in Northland in May 2024. Essential electrical services were cut off.

One only needs to consider the dire situation surrounding the provision of water services in Wellington which faces enormous infrastructure costs because the local body preferred to pursue “nice to haves” rather than concentrate on maintaining necessities.

The provision of a transport infrastructure across Cook Strait – the never-ending saga of the Cook Strait ferries provides another example of the failure of the Government to properly provide for and maintain a reliable service essential for the country. The grounding of one of the ferries can hardly be seen as an accident – rather an inevitability – when measured alongside an unreliable “service”.

Auckland’s rail service provides another example of continued unreliability. On one occasion the trains were delayed because the temperatures were so hot that damage could be caused to the rails. One wonders why it is that we have such a fragile system with such limited tolerances.

Our defence forces demonstrate a failure to properly provide for continuing maintenance and what may be considered basic training. The RNZAF aircraft put on for dignitaries’ travel breaks down with undignified consequences. And a proper watch seems to have been absent on the bridge of the Manawanui which was on autopilot and went aground and the Navy obtained a submarine. That isn’t an accident. That is negligence and a failure to follow proper procedures.

The woes of the education system seem to be continuous. Education has become highly politicised. I haven’t checked lately but what I remember as “English” morphed into “communication studies” – a laughable misnomer since some of the fundamental elements of communication – a properly constructed sentence where the meaning is clear; the ability to provide legible hand-writing; the ability to read the cursive writing of another – seem to be lacking. The fundamentals of oral communication starting with physical elements such as breath, articulation and clear idiom-free speech are absent. And as for teaching literature – Shakespeare, Dickens and others – forget it.

These are all isolated examples of a gradual decline in the services that our Government is meat to provide for “we the people”.

Perhaps the gravest concern (excuse the pun) should be reserved for the health system.

Bruce Cotterill wrote a thorough examination and critique of News Zealand’s failed health system in the Herald for 7 December 2024. Cotterill’s argument is that the system needs urgent and radical reform.

From the outset of the article the position is grim.

“Despite different governments, restructuring programmes, name changes, independent reviews and health ministers of varying competence and quality, things don’t seem to get better. The unfortunate part is that, the worse it gets, the lower our expectations become, and the lower the standards we are prepared to accept.”

Cotterill provides anecdotal evidence of his own experiences and that of others. Nothing wrong with that because readers will recognise similar problems they may have had in engaging with the public health system. Delays in attention seem to be the most common problem followed by an absence of frontline staff.

Cotterill points out the problems today and the fact that these were not always with us.

“Like most things, our health system is probably best measured by the outcomes we deliver for our patients. Right now, those outcomes aren’t good enough or fast enough. It’s not for the lack of money. Earlier this year, the Government announced a funding boost of $16.68 billion across three Budgets for frontline services. But like many government enterprises, too much money goes into the back office. Big bureaucracies full of people doing business with themselves, having meetings with each other with no outcomes, going to conferences and courses, the outcomes of which are often vague at best.

It wasn’t always like this. We once had a health system that was the envy of many countries. At its heart was the local GP, who usually operated out of his own practice, and worked long hours at the clinic, often from 7am until 7pm. That same doctor would then do house calls on his or her way home in the evening if required. They knew their patients, their families and their state of health.

Alongside other GPs from around the neighbourhood, they would jointly co-ordinate their efforts to ensure that weekends were covered for those owner-operators who needed medical help after hours. And we didn’t need after-hours clinics because if it was serious enough, we could call the doctor outside of hours.

But time has moved on and work has changed.”

He points to what he describes as the corporatisation of GP clinics which creates difficulties in developing a relationship with a doctor. A patient may see a different physician on each visit. I must say that I have been lucky in that over the last thirty-nine years I have had three doctors and have developed good doctor-patient relationships with each. The reason for the three is that two of them were older than me and retired. But each one passed me on to another doctor. But I know that my experience is not common.

Cotterill discusses possible ways in which the provision of some health services could be made easier. He gives the example of blood tests.

“Think about the process of having an annual check-up. We all know that a blood test is going to be a part of that. Ideally, we’d have the blood test before we see the doctor. But we can’t get a blood test unless the doctor requests it. The doctor won’t request it until they see us. Why can’t a nurse request a blood test in advance of the doctor visit? That way, if there’s a problem the doctor can deal with it rather than wait for a second appointment.”

He goes on to discuss staffing and training of doctors and nurses.

“Otago and Auckland say that, given funding, they could increase capacity by 50%. That would give us another 300 or so doctors a year. We need to try harder to keep them too. What if we bonded them for five years in return for paying a portion of the education and accommodation component of their student loan?

We attract plenty of overseas students to our medical schools, and the good news is that those numbers are gradually growing again. But many of those students, whom we educate, return to their homelands post-graduation. What if we bonded them too, and in addition, offer them citizenship if they graduate and stay?

It’s the same with nurses. We need to encourage young people to pursue a career in nursing and we need to motivate them to stay here. Bonding, work visas and citizenship offers all have a role to play in fixing these problems more quickly.

Recently we learned that just 844 of a total of 1619 nursing graduates were offered jobs. That means 775 missed out. Someone should be asking why that is. Are we recruiting the wrong people or teaching them the wrong things. There is no question that we need nurses. So we train them, but fail to employ them? It doesn’t make any sense.”

And pressures on the health system are going to increase.

We only need to think about New Zealand’s response to the Covid crisis. This is a somewhat contentious issue and its complexities are only just becoming apparent. The Ardern/Hipkins strategy was to prevent the spread of the disease. Now those who support the Ardern/Hipkins approach say that it was wonderful and that it saved thousands of lives (although how the figures bandied about were reached is unclear) but the reality was that the prevention programme involving lockdowns, the infamous MIQ system, the restrictions of civil liberties and the vaccine mandates that weren’t mandates (and that were going to be ineffective when it became clear that vaccination did not prevent the spread of Omicron) were all designed not to protect the health of citizens but to prevent undue stress on the health and particularly the hospital system. Simply put it was clear from the outset that our health system could not cope with Covid.

Back to Cotterill. Not only is Cotterill critical and analytical of a problem. He suggests a solution. And his is a radical one. He says:

“Perhaps we should seek to start again. Our health system is currently operated by not one, but two government departments, the Ministry of Health and Health NZ. What would happen if we set a target to close both down completely 12 months from now?

We could then appoint a highly qualified and small team to spend the next year designing and establishing a new organisation appropriate for today’s needs. They should be excluded from employing bureaucrats who currently serve in the existing system. They should also be targeted with maximising the talent at the front line and minimising the size of the back office. And in 12 months’ time, all necessary assets, equipment and the employment contracts for those critical doctors, nurses and other mission critical personnel at the front line would switch to the new organisation.

It might sound risky. But the status quo isn’t working any more. We have to try a new way. And in 10 years’ time we might get a doctor, a scan and a specialist in one day.”

That sounds to me to be an admirable approach but one can already hear the “tut-tutting” and the bureaucrats shaking their heads at a proposal such as that.

And the other issue is that given our penchant for instant gratification, about which I wrote in my article entitled “Instant Gratification” it would be that politicians would probably lack the patience for such a long term solution.

And by failing to grasp the nettle and provide the basic services that Governments are supposed to provide, those services that we as citizens expect to be provided will decline and deteriorate.

We deserve better.

We want the world and we want it (we want the world and we want it!)

Now

Now?

Now!

The Doors “When the Music’s Over” Written by John Densmore, Robby Krieger, Ray Manzarek & Jim Morrison.

I don’t normally watch Q & A but have done so over the last couple of weeks. And no, I haven’t parked myself in front of the One-Eyed God on a Sunday Morning at 9:00 am. Rather I have watched it on TVNZ+.

Two observations about that.

There was a time when in-depth interviews were part of prime-time viewing. Those were the days of deep and meaningful coverage of politics rather than the superficial once-over-lightly that we get today as mourned by Chris Trotter in an excellent article on interest.co.nz on 2 December 2024. Now the serious stuff gets buried at 9:00 am on a Sunday when the audience would have to be really keen to watch it live although I suspect that most of the viewer figures arise from watching a stream of the show on TVNZ+ - as I did.

The content remains on TVNZ+ for a limited period of time – I think it is about three weeks. Then it vanishes into the digital ether. Now I imagine that TVNZ in these days of cost cutting have concluded that paying for server space to store content indefinitely cannot be justified. But by the same token I would have thought that TVNZ as the audio-visual medium of record should hold an archive of content, if only for the benefit of researchers and particularly of students of media and politics.

Fortunately YouTube has come to the rescue and the content is available on their servers. Perhaps another example of Mainstream Media’s (MSM) failure to properly serve and inform the public. And of course MSM grizzles about the way that the Platforms intrude upon their space.

The episodes that I watched featured an interview with David Seymour followed by an interview with Debbie Ngarewa-Packer on the first occasion and on the second occasion, an interview with Prime Minister Christopher Luxon. Both interviews were conducted by Jack Tame who has become the poster-boy for Q & A.

The Seymour interview was unremarkable. Although Mr. Tame has a habit of controlling the interview rather than eliciting information from the interviewee, Seymour is smart enough to manage his way around this problem. There is no doubt that his Treaty Principles Bill is contentious. That of itself should not be a reason for not introducing it and not making an issue of it. The status and meaning of the Treaty has moved into sharp focus over the years and in a liberal democracy we should not be afraid of discussing it and debating its place in a 21^st Century society

The problem is that we are afraid. We are afraid of that discussion because we are afraid to put our heads above the parapet. We are afraid of being described as racist, of being anti-Maori, of being “white supremacists” and all the other veto words that are employed rather than engaging in a mature and meaningful discussion. And of course when the debate gets really hot there is resort to being haka’ed at, as occurred in Parliament recently.

And so those who would like to discuss alternative views of the Treaty don’t and remain silent. And the loudest voices in the room dominate the debate.

On the other hand Ms. Ngarewa-Packer’s interview was a free pass by Jack Tame. There were a number of issues that he should have challenged the interviewee on and didn’t. One was the fiction that Maori didn’t cede sovereignty. Te Pati Maori insists upon this piece of imagination as an essential part of its raison d’etre and its claim for a separate Maori governance system.

But perhaps the most obvious absence of challenge was Ms. Packer’s repeated references to the association between the ACT Party and the Atlas Network. Clearly in Packer’s fevered imagination there is a conspiracy afoot here involving a shadowy “deep state” type of organisation that, once the Treaty principles have been consigned to the dust-bin, will move in and undertake a corporate takeover of the country.

Not once did Mr. Tame challenge Ms. Packer on who or what the Atlas Network was and why we should be fearful of them. In my mind that was a significant shortcoming.

The Atlas Network has been mentioned from time to time in various media. When I heard the name I wondered if they were named after Ayn Rand’s book “Atlas Shrugged” – her clarion call to freedom from Government interference and the sanctity of individual effort and creativity. But no.

The Atlas Network partners with over 500 think tanks worldwide to drive change in ideas, culture, and policy; remove barriers to opportunities; and empower individuals to live a life of choice and seeks to increase global prosperity by strengthening a network of independent partner organizations that promote individual freedom and are committed to identifying and removing barriers to human flourishing.

The Atlas Network vision is of a free, prosperous, and peaceful world where the principles of individual liberty, property rights, limited government, and free markets are secured by the rule of law.

Clearly it is an organisation that leans towards libertarianism.

Q & A seems to have recognised Jack Tame’s default and on its show for 1 December did a 6 minute “once-overt-lightly” on the Atlas Network.

I say “once-over-lightly” because in terms of content it was that. In addition it was badly researched even although the reporter Whena Owen made reference to the fact that Atlas had an on-line presence

The Atlas representative interview was Debby Gibbs, described as the Global Chair of Atlas. She isn’t. She might have been but she is not now.

Nor is she a member of the Atlas Board; nor a member of the Global Council of CEOs. The CEO of Atlas is Brad Lips and the President is Matt Warner.

Debby Gibbs is a member of the Advisory Council. She is described as the owner of Just Managing, a music agency, and has worked as an executive director in the broadcasting and entertainment industry for many years. In addition to her own business, Debby serves on the board of two national nonprofits and a corporation that produces high-speed amphibious vehicles. She holds a degree in architecture, collects contemporary art, and lives in New York with her son. She is the daughter of New Zealand businessman Alan Gibbs and art connoisseur Jenny Gibbs.

On the other hand as early as 12 February 2024, Chris Trotter wrote an excellent and objective piece on the Atlas Network placing it in its historical, philosophical and political context. It can be found here and is recommended.

What a pity the “investigative “ people at Q & A were unable to come across this piece.

The interview with Prime Minister Luxon was a confrontational one. It is the first time that Mr. Luxon had appeared on Q & A and probably he should have continued to avoid the opportunity.

Sadly, our PM is not the best communicator in the room. He has been criticised for being formulaic, resorting to management jargon and being endlessly repetitive. Media commentators with nothing better to do have found 26 instances of Mr Luxon’s use of the phrase “Let me say this…” or a variation on that theme. Not a phrase I would recommend when one is being interviewed and has ample opportunity to “say this”. But one thing that Mr. Luxon does is to stay on message – but again with repetition after repetition. It can become tedious.

Jack Tame was argumentative during the interview. The interviewer seeks information. He should not try to get the answers he thinks the interviewee should give. It was clear that from time to time Mr. Tame was trying to set Mr. Luxon up for a “gotcha” moment which again should not be the object of an interview unless it is clear that the interviewee is lying.

The overall theme of the interview was to look at the first full year of the coalition government. There is no doubt that there are some aspects of life in New Zealand that have not improved. Mr. Tame was critical of Mr. Luxon’s agreement to letting Mr. Seymour’s Principles Bill be introduced. It was divisive and because Mr. Luxon did that he must be responsible for the current state of New Zealand’s race relations.

Mr. Luxon fudged that badly. As I have stated earlier this is a debate that we need to have from time to time. We should not be afraid of having it. And there will be differences of opinion and they will be deeply, viscerally held. And there will be arguments. And voices will be raised. And we should not be afraid of that. But Mr. Luxon ducked the opportunity to advance the value of free and open discussion about contentious issues in a liberal democracy.

Arising out of the examination of the first full year and the fact that things had not become measurably better, Mr. Luxon was able to point to incidents and examples of improvement. But he did not explain properly (if he had been given the opportunity to do so) what the improvements meant in a wider context.

It seemed to me that Mr. Tame’s expectation was that within the space of a year the coalition government would have fixed everything.

And this caused me to reflect upon the trend that has been developing for some time for immediate results and instant gratification.

In recent decades, the phenomenon of instant gratification has become a defining characteristic of modern life. Rooted in human psychology, the desire for immediate fulfilment has always existed, but technological advancements and cultural shifts have amplified and normalized this tendency. From the way we shop and communicate to how we consume information and entertainment, the expectation of instant results now permeates nearly every aspect of daily life.

Historically, patience and delayed gratification were often seen as virtues. Societies that relied on agricultural cycles or manual craftsmanship required individuals to wait for results, whether it was the harvest of crops, the crafting of tools, or the preparation of meals. The Industrial Revolution began to shift these dynamics by speeding up production and creating the first inklings of on-demand goods and services.

The acceleration of life gained further momentum in the mid-20th century with the rise of consumer culture and mass media. Advertising began to promote convenience and speed as desirable traits, introducing products like fast food and instant coffee. These developments planted the seeds for a society increasingly geared toward immediacy.

Consumer culture, driven by marketing and advertising, has further amplified the desire for instant gratification. Advertisements often emphasize immediate satisfaction, creating a sense of urgency and promoting the idea that happiness and success can be quickly attained through the acquisition of products and experiences. This culture of consumption encourages impulsive behaviors and diminishes the value placed on patience and delayed gratification.

This desire to experience pleasure or fulfill a need without delay has been further magnified by the Digital Paradigm, where the rapid pace of technological innovation has conditioned individuals to expect immediate results. The advent of the internet, smartphones, and social media platforms has played a pivotal role in this transformation. Information, entertainment, and social interaction are now available at the touch of a button, eliminating the need for prolonged effort or waiting.

The evolution of technology has revolutionized every aspect of daily life, from communication to commerce. E-commerce giants like Amazon offer same-day delivery services, while streaming platforms like Netflix provide instant access to a vast array of movies and TV shows. Social media platforms such as Facebook, Instagram, X and Bluesky enable users to receive real-time updates and feedback, fostering an environment where immediate responses are the norm. These conveniences have ingrained a sense of immediacy in modern culture, where waiting has become an increasingly foreign concept.

As the trend towards instant gratification has gained momentum, the quality of patience – which I have referred to above - has correspondingly declined. Patience, defined as the capacity to endure delay, difficulty, or suffering without becoming agitated or upset, is an essential trait for personal growth, interpersonal relationships, and professional success. However, the increasing prevalence of instant gratification has eroded this virtue in several ways.

In personal life, the decline of patience manifests in various forms. Relationships, for instance, are often affected by unrealistic expectations for immediate emotional fulfillment. The ease of online dating and social media interactions has created a paradox where connections are easily formed but quickly abandoned at the first sign of discomfort or dissatisfaction. Additionally, the pursuit of quick fixes for personal issues, such as fad diets or get-rich-quick schemes, highlights a reluctance to invest time and effort in long-term solutions.

Arising from this sense are shortened attention spans. With so much content available at any given moment, attention spans have diminished. Many people now expect immediate engagement and lose interest quickly when faced with delays or complexity. Reduced patience and the availability of instant solutions fosters a culture that struggles with waiting or working through long-term challenges. This mindset can seep into personal and professional relationships, diminishing the value of perseverance and commitment.

The pressure to always be connected and respond instantly can lead to burnout. The demand for immediacy, whether in work or social settings, creates an ever-present sense of urgency, increasing stress and anxiety.

While instant solutions are convenient, they may hinder deep thinking and creativity. True innovation often requires time, reflection, and the willingness to embrace uncertainty and delayed rewards.

And these problems are not going to be solved overnight. To arrive at a solution it is essential to cultivate a balanced approach that recognizes the value of patience and encourages the development of resilience and long-term thinking. By fostering an environment that values delayed gratification and mindful consumption, society can mitigate the negative consequences of this trend and promote a more sustainable and fulfilling way of life.

Perhaps Jack Tame could have given this problem some thought in his quest for instant solutions to the highly complex problems that society and Mr. Luxon’s Government face. The solution is not going to happen overnight. It is not going to happen - to take a word from the Doors’ song at the beginning of this article - NOW.

In November I wrote two articles about the way the Mainstream Media (MSM) misuses or misinterprets data to fit within it narrative (Media Influencers) and how it advocates a certain position by adopting questionable moral principles to justify a rather radical position (Slating a Story)

The lovely thing about MSM – especially from the perspective of a media critic – is that it is a gift that keeps on giving. One wonders whether MSM has some bizarre death wish in continuing to publish analysis that is so obviously faulty or whether those who write and edit fulfil Einstein’s definition of insanity – doing the same thing over and over and expecting a different result.

The latest little gem arises from the treatment of a 1News Verian Poll about public reaction to the Treaty Principles Bill. The issue has been the subject of some sharp analysis by Rob Macculloch in a short piece on his “Down to Earth Kiwi” site posted on 11 December.

The poll was reported by One News with the headline that “More NZ’ers oppose than support the Treaty Principles Bill” as follows:

"Poll: More New Zealanders oppose than support Treaty Principles Bill. The poll, which surveyed 1006 eligible voters .. found 23% supported the bill while 36% were opposed. A slightly larger group - 39% - said they didn't know enough about the bill, and 2% preferred not to say". At the bottom of the article One News stated that the question asked, "Do you support, or oppose, the bill; not know enough to say; or prefer not to say"

Even the most superficial reading of the piece demonstrates that the headline is at best a half-truth (and would probably qualify as “misinformation”) That fact is that only 36% of those polled opposed the Bill. 23% supported the Bill. Now as far as those two figures are concerned more of those polled opposed than supported.

The problem is that those two groups of respondents amount to 59% of those who were polled. A large group (39%) said they did not know enough about the Bill so would fall into a “don’t know” category. This brings the numbers polled up to 98% and the last outliers – 2% - preferred not to say.

Now there are a number of problems that arise from the article apart from it demonstrating a difficulty with numeracy, although with today’s education system that is no real surprise.

The first problem is that we do not know what the question was. That is important. The way the question is framed often influences the answer. Is the question an open or a closed question. Does it suggest an answer. If it was worded differently would it suggest another answer.

Developing statistical information is quite different from the art of examination in chief or cross-examination but it is similar to an early skill developed by trial lawyers to identify leading questions and to frame a cross-examination that leads a witness up the path until the inevitable cliff-face is reached. Often the “push” question need never be asked.

Macculloch makes the important point in interpreting the data by suggesting:

“How on earth can one draw that conclusion when 41% of respondents replied saying they either want to know more about the debate, or prefer not to say? If you add that number to the 23% who are opposed, then who knows how many Kiwis are falling on the side of support - or opposition - to the Bill. Potentially 64% may turn out supporting the Bill (=23 % + 41%) should those who want to learn more about it end up in support.”

He makes a suggestion that I support with perhaps a bit of a gloss. MSM should not assume that its audience is stupid. The errors in the headline and the statistical interpretation of the journalist are plain to see. Rather it would be helpful in future, as Macculloch suggests to

“report the actual goddam survey question & actual goddam answers next time, and leave the interpretation to the readers, rather than assuming we are all dumb.”

But that may be too much to ask of MSM who are continuing to demonstrate their bias, continuing to slant their stories, continuing to press and advocate for whatever position they hold dear and continue thereby to erode the crumbling trust that citizens have in the Fourth Estate.

And MSM wants the Government to pass a Bill requiring Digital Platforms to fund their continuing misconstrued positions? As I have argued elsewhere there is neither right nor entitlement to advertising revenue. Any revenue derived from advertising must be earned. And although MSM – theoretically – plays an important role in the democratic process it continued position in that process must likewise be earned.

Frankly the continued behaviour of MSM makes it difficult to imagine that the Government should directly or indirectly by means of the Fair Digital News Bargaining Bill provide any level of funding until MSM gets its act together.

We live in hope.

A Critique of the Development of the Theory of the Doctrine of Discovery

Let us look at the three criteria of critical theory. The development of the Doctrine of Discovery explains a current social reality – a post-colonial society with a empowered class (the colonists and their heirs) and a disempowered class (the colonized or indigenous people). Thus the explanatory criterion is fulfilled.

The second criterion is the standards for criticism and the achievable goals for transforming the problems through praxis. As far as the Doctrine of Discovery is concerned what has been developed is a Universal Theory to explain colonial expansion, starting with the Catholic Church (a powerful entity), transitioning to a national appellate Court using colonial self-justification for its findings with a resulting repression and disempowerment of indigenous people.

The third element is to shift the viewpoint and some academics have been remarkably successful in this regard because the “Doctrine of Discovery” is itself the changed viewpoint – as a new and persuasive critique of and explanation for colonization and its perceived attendant evils.

It has been developed and refined with Professor Miller’s ten characteristics which may be individually valid but which do not form part of a universal recognized theory at International Law. Miller’s approach, aided by co-writers from colonized countries, has been to repeat and refresh earlier developed arguments, so that by repetition the theory gains traction to the point where it becomes mainstream.

In reality the Doctrine as imagined by Professor Miller is a restatement of power imbalances, casting a burden upon post-colonial societies to attempt to redress the imbalance caused by the operation of his theoretical doctrine.

In this respect the writing of Professor Miller and other adherents of the theoretical doctrine have helped to develop a critical consciousness. This, as I have outlined, involves critical reflection and moral rejection of social and political injustices. Certainly this is a laudable goal but it does not require an imagined “Doctrine” to support it.

To address social and political injustices requires a change to a social and political reality. This change has taken place by the imagining and creation of the Doctrine of Discovery which acts as a lynch-pin for the requirement of activitism to address the issues it identifies.

Finally there must be actual participation in social justice activism to transform any perceived opposition. As I have suggested, in some respect this is being fulfilled in New Zealand by activist elements of the judiciary.

The Critical Theory examination explains the basis for the argument that the Doctrine of Discovery is more a recent construct than an accepted principle of International Law.

Professor Paul Moon’s Analysis

Professor Paul Moon has examined the issue within the context of the settlement of New Zealand[1].

The first point to be made is that Professor Moon does not dismiss the Doctrine of Discovery as an historical artefact. Rather he points out that the basis for claims about the Doctrine of Discovery in New Zealand's colonization is primarily rooted in academic and popular literature. These claims have gained force over the last two decades, with a nexus emerging between historical and legal analyses of the Doctrine's purported role in British intervention in New Zealand from the eighteenth century onwards. The claims can be categorized into three general categories: historical, legal, and popular.

1. Historical Claims:

• Some academics argue that the Doctrine of Discovery determined, to some extent, Britain's intervention in New Zealand based on appeals to history.

• These claims suggest that the Doctrine provided a missing conceptual aspect of the colonial process in the country, offering an ideological basis for Britain's intervention.

• However, these claims are not well-supported by historical evidence, and many historians attribute British intervention in New Zealand to a complex web of individual motives rather than a specific doctrine.

2. Legal Claims:

• Legal scholars have been particularly inclined to advance the case for the Doctrine applying to Britain's intervention in New Zealand.

• These claims are often based on legal precedents and court decisions, such as the 1823 United States Supreme Court case of Johnson & Graham's Lessee v. McIntosh.

• However, the historical evidence does not fully support these claims, and there are significant discrepancies between the legal arguments and the actual history of British intervention in New Zealand.

3. Popular Claims:

• Claims about the Doctrine of Discovery's role in New Zealand's colonization have become more frequent in popular literature and public discourse.

• These claims often derive from the previous two categories of claims (historical and legal), but they may lack a strong evidentiary basis.

• The popularization of these claims has contributed to the perception that the Doctrine played a significant role in New Zealand's colonization, despite the lack of historical evidence supporting this.

In summary, the basis for claims about the Doctrine of Discovery in New Zealand's colonization primarily stems from academic and popular literature. However, the historical evidence does not strongly support these claims, and there are significant discrepancies between the claims and the actual history of British intervention in New Zealand.

Indeed Professor Moon observes that the evidence supporting the application of the Doctrine of Discovery to British colonial intervention in New Zealand is limited and subject to debate. ​ While some scholars and activists argue for its relevance, it is important to note that the historical evidence does not strongly support this claim. ​ However, proponents of this view point to a few key pieces of evidence:

1. Papal Bulls:

• The Doctrine of Discovery originated from a series of papal bulls issued by Pope Alexander VI in the late 15th century, particularly the bulls Inter caetera (1493) and Dudum siquidem (1493). ​

• These bulls granted European powers, particularly Spain and Portugal, the right to claim and colonize lands that were not inhabited by Christians.

• Proponents argue that these papal bulls laid the foundation for European colonization and expansion, including British colonial intervention in New Zealand. ​

2. British Legal Precedents:

• Some proponents of the Doctrine of Discovery argue that British legal precedents, such as the 1823 United States Supreme Court case of Johnson & Graham's Lessee v. McIntosh (actually and American case), provide support for its application to British colonial intervention in New Zealand. ​

• This case involved the recognition of the Doctrine of Discovery as a legal principle in the United States, which influenced subsequent legal decisions related to indigenous land rights. ​

• However, it is important to note that this case specifically pertained to the United States and its relationship with Native American tribes, and its applicability to British colonial intervention in New Zealand is questionable.

3. Interpretation of Historical Events:

• Some proponents interpret historical events in New Zealand's colonization through the lens of the Doctrine of Discovery. ​

• They argue that British actions, such as the signing of the Treaty of Waitangi in 1840, can be seen as a manifestation of the Doctrine's principles, particularly in terms of asserting British sovereignty and disregarding indigenous rights. ​

• However, this interpretation is contested, and alternative explanations for British actions in New Zealand, such as geopolitical and economic motivations, have been put forward. ​

It is important to note that the evidence supporting the application of the Doctrine of Discovery to British colonial intervention in New Zealand is not widely accepted among historians and legal scholars. ​ Many argue that the Doctrine's influence on British colonialism, particularly in New Zealand, is overstated and that other factors played a more significant role in shaping the course of colonization. ​

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In my article Kipling’s Advice I made reference to the fact that his poem Gunga Din was a favourite of mine, but that was another story.

Since then I have thought about the story and it has become a little more than merely Gunga Din but more of vignettes of my childhood and teenage years and a little bit beyond that. It is also something of a “voyage around my father” to purloin the title of John Mortimer’s excellent play which became a television production with Laurence Olivier as Mortimer Senior.

There was a time, O Best Beloved (to use an opening phrase from Just So Stories) when a trip to from Auckland to Rotorua took four hours. It was a long haul and not all the roads were sealed. The trip across the Mamakus was a very dusty unsealed road and I have never forgotten it, graunching gear changes using a column shift, the unique dry smell of dust and crushed stone seeping in through the closed windows, even when I drive the sealed highway over the hills.

Entertainment was limited. There were only four radio stations coming out of Auckland (1YA, 1ZB, IYC and 1YD) and they were AM and the signals weren’t that great. By the time you hit the country – about the Bombay Hills – the signal was lost and radio entertainment was therefore nil until you got close enough to Hamilton to pick up a signal.

So we had to amuse ourselves and Dad, who was a miracle driver in that he could drive a car and light a cigarette at the same time, would be the Chief Entertainment Officer and his entertainment was by way of what he called “a little recitation”.

On every trip as we left Auckland and the radio signal gave out into a static hissss the “little recitation” would start and the first offering was Gunga Din.

The poem is a rhyming narrative from the point of view of a British soldier in India. Gunga Din is an Indian water-carrier (a bhishti) who, after the narrator is wounded in battle, saves his life, only to be shot and killed. In the final three lines, the soldier regrets the abuse that he dealt to Din and admits that Din is the better man. The poem was published as part of a set of martial poems called the Barrack-Room Ballads.

In contrast to Kipling's later poem The White Man's Burden, Gunga Din is named after the Indian and portrays him as a heroic character who is not afraid to face danger on the battlefield as he tends to wounded men. The white soldiers who order Din around and beat him for not bringing water to them fast enough are presented as being callous and shallow and ultimately inferior to him.

Now this was no ordinary poetry reading. Kipling often wrote with an accent – his words would be abbreviated, vowels and consonants dropped here and there to try an approximate the accent of his “Tommy Atkins” soldier, for it was in the collected Barrack Room Ballads that this style was most obvious, although it also appeared in his short stories.

Dad didn’t simply recite. The whole mood changed. He managed to recite in a different voice with the proper Cockney accent but was still able to catch the emphasis and the metre and the rhyme. We were transported for a little while to another world – a barrack room or a bar or an old soldiers’ mess - where old soldiers told their tales and made their judgements on who was the better man.

The text of the poem follows. I have included a few “translations” because Kipling wasn’t afraid to throw a bit of Hindi into his verse.

You may talk o' gin and beer

When you're quartered safe out 'ere,

An' you're sent to penny-fights an' Aldershot it;

But when it comes to slaughter

You will do your work on water,

An' you'll lick the bloomin' boots of 'im that's got it.

Now in Injia's sunny clime,

Where I used to spend my time

A-servin' of 'Er Majesty the Queen,

Of all them blackfaced crew

The finest man I knew

Was our regimental bhisti, Gunga Din.

He was "Din! Din! Din!

You limpin' lump o' brick-dust, Gunga Din!

Hi! Slippy hitherao!

Water, get it! Panee lao! [Bring water swiftly.]

You squidgy-nosed old idol, Gunga Din."

The uniform 'e wore

Was nothin' much before,

An' rather less than 'arf o' that be'ind,

For a piece o' twisty rag

An' a goatskin water-bag

Was all the field-equipment 'e could find.

When the sweatin' troop-train lay

In a sidin' through the day,

Where the 'eat would make your bloomin' eyebrows crawl,

We shouted "Harry By!" [Mr. Atkins's equivalent for "O brother."]

Till our throats were bricky-dry,

Then we wopped 'im 'cause 'e couldn't serve us all.

It was "Din! Din! Din!

You 'eathen, where the mischief 'ave you been?

You put some juldee in it [Be quick.]

Or I'll marrow you this minute [Hit you.]

If you don't fill up my helmet, Gunga Din!"

'E would dot an' carry one

Till the longest day was done;

An' 'e didn't seem to know the use o' fear.

If we charged or broke or cut,

You could bet your bloomin' nut,

'E'd be waitin' fifty paces right flank rear.

With 'is mussick on 'is back, [Water-skin.]

'E would skip with our attack,

An' watch us till the bugles made "Retire",

An' for all 'is dirty 'ide

'E was white, clear white, inside

When 'e went to tend the wounded under fire!

It was "Din! Din! Din!"

With the bullets kickin' dust-spots on the green.

When the cartridges ran out,

You could hear the front-ranks shout,

"Hi! ammunition-mules an' Gunga Din!"

I shan't forgit the night

When I dropped be'ind the fight

With a bullet where my belt-plate should 'a' been.

I was chokin' mad with thirst,

An' the man that spied me first

Was our good old grinnin', gruntin' Gunga Din.

'E lifted up my 'ead,

An' he plugged me where I bled,

An' 'e guv me 'arf-a-pint o' water-green:

It was crawlin' and it stunk,

But of all the drinks I've drunk,

I'm gratefullest to one from Gunga Din.

It was "Din! Din! Din!

'Ere's a beggar with a bullet through 'is spleen;

'E's chawin' up the ground,

An' 'e's kickin' all around:

For Gawd's sake git the water, Gunga Din!"

'E carried me away

To where a dooli lay,

An' a bullet come an' drilled the beggar clean.

'E put me safe inside,

An' just before 'e died,

"I 'ope you liked your drink", sez Gunga Din.

So I'll meet 'im later on

At the place where 'e is gone,

Where it's always double drill and no canteen.

'E'll be squattin' on the coals

Givin' drink to poor damned souls,

An' I'll get a swig in hell from Gunga Din!

Yes, Din! Din! Din!

You Lazarushian-leather Gunga Din!

Though I've belted you and flayed you,

By the livin' Gawd that made you,

You're a better man than I am, Gunga Din!

But that was not the only “recitation” on the long and often dusty drive to Rotorua. Dad seemed to have a memory collection of all sorts of poems and bits from plays. He was particularly fond of Shakespeare’s Henry V and after a few trips to Rotorua it was not impossible to speak along with him the words of the Prologue (O for a Muse of fire) or Henry at Harfleur (Once more unto the breach) or Henry’s speech before Agincourt.

What is known as the Crispin’s day speech is in fact an answer to a comment that Westmoreland made to Harry. Westmoreland says

O that we now had here
But one ten thousand of those men in England
That do no work to-day!

The King responds

What's he that wishes so?
My cousin, Westmoreland? No, my fair cousin;
If we are mark'd to die, we are enough
To do our country loss; and if to live,
The fewer men, the greater share of honour.
God's will! I pray thee, wish not one man more.

The speech that follows is brilliant and rousing. It is a playwright’s call to arms for it is unclear that Harry said such words. But the play was written for the purposes of inspiration, and praises courage in the face of insuperable odds.

The speech ends as it began – with a reference to the men in England who were not in France and who would be humiliated when confronted with one of the heroes of St Crispin’s day

We few, we happy few, we band of brothers;
For he to-day that sheds his blood with me
Shall be my brother; be he ne'er so vile,
This day shall gentle his condition;
And gentlemen in England now a-bed
Shall think themselves accurs'd they were not here,
And hold their manhoods cheap whiles any speaks
That fought with us upon Saint Crispin's day.

Olivier’s interpretation of the speech in the film Henry V was the rendering most familiar to Dad and his recitation would contain some “Olivierisms” for Lord Olivier had a unique way of reading blank verse.

Olivier’s speech can be found here – rousing is not the word.

Kenneth Branagh was often seen as Olivier’s heir and he too made a Henry V. His reading of the Crispin’s day speech has subtle differences to that of Olivier but the climax is the same – a call to battle. Branagh’s reading can be seen here

Richard III was another favourite. At some stage on the drive to Rotorua the winter of our discontent speech would emerge from the dark in Fitzgerald Glade, for our drives extended after the sunset.

I became very familiar with it, so much so that when Olivier’s Richard III came to the screen in 1955 (I was 9) we went to see it. It was great stuff with murders galore – a drowning (George, Duke of Clarence) a beheading (Hastings), ghosts (the night before Bosworth) and an unhorsed King who lost his life not to mention his crown in a bramble bush.

Olivier’s reading of the winter of our discontent can be seen here.

There was another interpretation of Richard III brought into a more modern setting with Ian McKellen in the title role. His reading of the winter of our discontent soliloquy differs markedly from that of Olivier and may be seen here.

I was very grateful much later on for the early introduction to the play. When I got to University Richard III was a play we studied for English I. I was able to cut straight to the chase to study the themes and whether Shakespeare had read Machiavelli and all the other aspects of readings into, out of and around literary works that you used to do in those days. Critical theory had not become a “thing” in 1965. Thank God. A critical theory analysis of Richard III would be too much to bear and would destroy the beauty of the story and the language in which it is told.

Twenty years later on 22 August 1985 I had another encounter with Richard III. It was at the World Science Fiction Convention in Melbourne and one of the events was a wake for Richard III – 22 August was the anniversary of the Battle of Bosworth Field.

But at a SF Convention – really. But given the variety of interests at such events I suppose that anything was on. It was quite a merry event.

And then, of course, Philippa Langley’s book about finding the body of the King in a Leicester car park and the delightful movie The Lost King provide further Richard III experiences which started all those years ago.

So our drives to Rotorua became a literary experience. And Gunga Din was always the first recitation.

I suppose growing up in the 1950’s Just So Stories were inevitable. And an acquaintance with the Elephant’s Child (and his nose like a boot) the great grey green greasy Limpopo river all set about with fever trees, Old Man Kangaroo and the Cat that Walked by Himself followed. Kipling’s understanding of cat psychology was astounding and has been my benchmark for cat behaviour ever since.

Other books followed Puck of Pooks Hill, Rewards and Fairies, Stalky and Co, Kim, The Jungle Books ( 1 and 2). And in addition to the stories with their wonderful and memorable characters (forget about the Disney renderings) were the poems that interspersed the stories and chapters – especially in The Jungle Books and Puck of Pooks Hill.

It was a natural progression that I should move to Kipling’s other poetry and to his short stories. I now have a full collection of them, as well as his verse and all his novels and enjoy dipping into them from time to time. I love the tale of The Kings Ankhus and the white cobra and the magical tales told or facilitated by Puck – even now.

In 1963 the BBC made a series entitled The Indian Tales of Rudyard Kipling. For some reason or another it did not make it to screens in NZ until 1970. At that time I was living in a shared flat in Herne Bay and the show was watched and enjoyed by all four of us who lived in what would now be considered squalid conditions but no one died or caught the plague. The series starred Joss Ackland as the narrator (Kipling) and Barbara Murray as the redoubtable Mrs Hauksbee. There were 25 episodes and many of the plotlines were drawn from Plain Tales from the Hills although some of his other short stories were merged into them.

The only clip I have been able to find is a section from the episode The Tomb of His Ancestors and apparently this was Ian McKellen’s first TV acting role. The brief clip can be found here.

Dad’s little recitations took on a new twist when I was at University. At the time of these events I was living at home with him. He was a chartered accountant and a businessman and had done his qualifications sitting in a tent in the Pacific Islands during World War II. One Robert David Muldoon obtained his qualifications the same way but in the Middle East.

Dad encouraged University but wondered, as we still do, what practical merit a University education might have. Dad’s view was that it taught you how to think and that was about as far as it got. But he loved a challenge and he loved to throw down the gauntlet to one of these “University educated chaps” so one Monday evening he proposed that we should by agreement select a soliloquy from Hamlet and in a week’s time have a competition as to who could do the most complete and error free recitation.

This grew into a seven week event – one week for each speech. I managed to equal him a couple of times but I had an unfair advantage in that I had done a couple of the soliloquies for speech and drama when I was in the US on an AFS scholarship.

But what I didn’t realise and what I found out after he had departed for the Uttermost West was that during his time in the Pacific he was called upon to do a “turn” at the troop entertainment evenings. He would do a “little recitation” and on one occasion was challenged to do the first page of Daphne du Maurier’s Rebecca (I dreamed I went to Manderlay last night). He had one night to prepare. The following evening his little recitation covered not only the first page but the entire first chapter – word perfect. And I thought I had an unfair advantage.

There was always an encouragement for literature. Nothing was prohibited. I think he adopted Dr Johnson’s view that if you read widely enough you would inevitably gravitate towards the good stuff. So my reading ranged afar from science fiction to Rider Haggard’s Quartermain stories and Baroness Orczy’s master of disguise, the Scarlet Pimpernel. Libraries were sacred places for me – they still are.

Dad had a fine collection of poetry and I still have some of his books as well as his collection of Dickens – he was as much of a fan of Dickens as I am of Tolkien and was a member of the Dickens Society in Auckland. One of his copies is a presentation from that organisation. And I cannot forget that it was he who financed me into my first set of The Lord of the Rings and I have told that story in Journeys in Middle-earth.

The relationship continued in a different way as time passed. The recitations and the soliloquy readings gave way to other pursuits and two come especially to mind. Both involved intellectual sharing.

In the mid-1970’s he was living in Henderson and I was working for a Henderson law firm. From time to time he would drop in for a chat. No appointment – just a drop in. The receptionist got used to his visits and the fact that he would not check and see if I was free. There would be a phone call “Your Dad in on his way” and within a few seconds there he was at the door and almost immediately making himself comfortable in a chair.

On one of these unscheduled visits he asked I had a copy of President Nixon’s memoirs. I did and he asked to borrow it. And so it was.

A week or so later the Frost Nixon interviews (which were recorded in 1977) were screening on successive nights on TV. The invitation was extended. Come for dinner. Watch the interviews. Have a chat about the content. What was astounding was the commentary that Dad gave from time to time about Nixon’s answers to questions. He could point out the consistencies as well as the inconsistencies with the record Nixon made in his memoirs.

We both had a curious fascination with Nixon. As the Watergate saga unfolded I followed it through the pages of Rolling Stone who early on called for Nixon’s resignation. When Nixon finally did resign Rolling Stone featured him on the cover with the two words “The Quitter”. They were not going to give up on their campaign, even when he delivered what they wanted.

I think Dad saw him as a brilliant man (which he was) but fatally flawed. A foreign policy master who was not so good on the domestic stuff and who had something of a persecution or inferiority complex.

Some years later on a visit to Los Angeles I took a day to visit the Nixon Presidential Library in Yorba Linda, California. It was a fascinating visit with magnificent and informative displays. When I visited the curators didn’t mince matters and I found the Library presented a fair picture of Nixon’s presidency.

The Library website can be found here.

The other time involved a phone call on a Saturday morning in 1979. Come over for coffee. I’ve got something to show you. And so off I went. He took me to his study and there on the desk was a Radio Shack TRS-80 Model 1. This micro-computer had been released in the US in 1977. It had a green CRT screen, a keyboard and a tape deck for program storage. It had a built in memory of a stunning (for those times) 32 KB RAM.

By 1979, the TRS-80 had the largest selection of software in the microcomputer market and until 1982, the TRS-80 was the bestselling PC line, outselling the Apple II by a factor of five according to one analysis.

Dad had taught himself BASIC (Basic All-Purpose Standard Instruction Code) from a manual supplied with the system and had written a program that tracked his investments and finances. He proudly demonstrated when he had done and how he had done it, concluding with the remark “If you don’t know how to use one of these things, in 25 years you will be illiterate.” He was a little generous with the time frame.

And I guess he knew what was going to happen next because when I asked where I could get one of these machines he handed me the dealer’s business card and suggested I mention his name because I could expect a discount – which happened.

As a result of that I traded up as new TRS-80s were developed, using a TRS-80 Model 3 and later a Model 4 in my law practice. The spreadsheet was especially useful for working out relationship property (matrimonial property in those days) divisions.

By the time I got to the Bench in 1989 I had shifted to the IBM\MS-DOS and later Windows systems and continued to use a computer in my professional and personal life.

And now to write this.

So every time I power up my rig, I do a mental hat-tip to the Old Man for that and, as I look around my library, for so much more.

Introduction

This is an article about a Bill enacted by the Australian Parliament in late November 2024.

The Bill has been misrepresented by the news media. It is suggested that the Bill bans people under 16 years of age from accessing social media platforms. It does not.

The Bill requires some but not all social media platforms to have an age verification protocol in place by November 2025 to ensure that people under the age of 16 cannot access those platforms.

The paper starts with a background overview of the Bill including a summary of the scope of the Bill and its requirements.

For a proper understanding of the Bill some context and background are necessary because the Bill, rather than being a stand-alone piece of legislation, is an amendment to existing legislation.

I then examine the Bill in detail and discuss some of the principle operative sections and how they will work.

I shall make some observations on the Bill and consider the concept of “social licence” under which platforms are said to operate. I discuss the various elements of this concept because the element of social licence underpins the rationale for the Bill.

I shall discuss what the Bill does not do because it is clear that the mainstream media either misunderstands the thrust of the Bill or, in seeking a dramatic headline, his misrepresented the approach adopted by the Bill.

I shall consider the challenges that the Bill provides for the Platforms and conclude the substantive part of this article with a review of the way in which some of the Nedw Zealand media have characterized the Bill and the advocacy of some for similar legislation in New Zealand. I explain why, given legislative structure, this is not possible at this time, even if it were considered desirable. It is my opinion it is not.

I conclude the article with some observations on regulation in the Digital Paradigm and how easy it is to become confused with the targets of such regulation

The Online Safety Amendment (Social Media Minimum Age) Bill 2024.

The Online Safety Amendment (Social Media Minimum Age) Bill (SMMA) was introduced on Thursday November 21 2024.

It proposes amendments to the Online Safety Act 2021 to require social media platform providers to take measures to prevent children who have not reached a minimum age from having accounts on age-restricted platforms.

Thus it is not a stand-alone piece of legislation but fits within the scheme of and is an amendment to the earlier Online Safety Act 2021.

The Bill was passed within a week of its introduction. It had its second and third readings on Wednesday 27 November 2024 in the House of Representatives. On that date it was introduced and read for the first time in the Senate.

On Thursday November 29 2024 the bill passed both Houses of Parliament after the House of Representatives agreed to the Senate's amendments to the bill. The bill passed its third reading in the Senate on November 28, 2024.

An Overview of the Bill

The Bill places the burden on social media platforms to take reasonable steps to prevent Australians under the age of 16 from having social media platform accounts. It is to be emphasized that the burden is on platform providers and not young people or their parents.

The age requirements will apply to those age restricted social media platforms defined int the Bill which includes Snapchat, TikTok, Facebook, Instagram, X and others.

The Australian Government claims that the Bill is responsive to the ever-evolving nature of technology, while enabling continued access to messaging, online gaming, and services and apps that are primarily for the purposes of education and health support – like Headspace, Kids Helpline, Google Classroom and YouTube.

Importantly the Bill makes it clear that no Australian will be compelled to use government identification (including Digital ID) for age assurance on social media. Platforms must devise reasonable alternatives to users.

A period of 12 months has been prescribed before the Bill comes into effect. This will allow time for social media platforms to develop and implement required systems.

A Summary of the Scope of the Bill

The bill applies to age-restricted social media platforms which are defined as electronic services that meet the following conditions:

· the sole purpose, or a significant purpose, of the service, is to enable online social interaction between two or more end-users;

· the service allows end-users to link to, or interact with, some or all of the other end users;

· the service allows end-users to post material on the service; and

· such other conditions (if any) as are set out in the legislative rules.

The bill clarifies that an electronic service is not an age-restricted social media platform if none of the material on the service is accessible to, or delivered to, one or more end-users in Australia or if the service is specified in the legislative rules. Further, the bill defines an age-restricted user as an Australian child who has not reached the age of 16.

A Summary of Requirements Under the Bill

Under the bill, a provider of an age-restricted social media platform must take reasonable steps to prevent age-restricted users from having accounts with the age-restricted social media platform.

Additionally, the bill provides privacy protections for information collected by social media platforms to determine whether or not an individual is an age-restricted user. Specifically, the bill requires social media platforms to destroy such information after using or disclosing it for the purposes for which it was collected.

The Context of the Bill

As noted the Bill is an amendment to the Online Safety Act 2021 (OSA). It adds to and enhances the existing provisions of that Act.

The OSA gave powers to an E-Safety Commissioner to address harmful behaviour and toxic content online.

In addition the Act made online service providers more accountable for the online safety of those who use their services.

It sets out a clear set of expectations for online service providers that makes them accountable for the safety of people who use their services.

The Act also requires industry to develop new codes to regulate illegal and restricted content. This refers to the most seriously harmful material, such as videos showing sexual abuse of children or acts of terrorism, through to content that is inappropriate for children, such as high impact violence and nudity.

In summary the OSA:

· creates anAdult Cyber Abuse Scheme for Australians 18 years and older

· broadens the Cyberbullying Scheme for children to capture harms that occur on services other than social media

· updates the Image-Based Abuse Scheme that allows eSafety to seek the removal of intimate images or videos shared online without the consent of the person shown

· gives eSafety new powers to require internet service providers to block access to material showing abhorrent violent conduct such as terrorist acts

· gives the existing Online Content Scheme new powers to regulate illegal and restricted content no matter where it’s hosted

· brings app distribution services and search engines into the remit of the new Online Content Scheme

· introduces Basic Online Safety Expectations for online service providers

· halves the time that online service providers have to respond to an eSafety removal notice, though eSafety can extend the new 24-hour period.

The office of the E-Safety Commissioner has significantly wider powers than that of the Approved Agency under the Harmful Digital Communications Act 2015.(HDCA) For example the Commissioner may require removal of content by issuing an eSafety Removal Notice. No such power lies with the Approved Agency under the HDCA but rests with the Court who must take into account a number of factors including rights under the New Zealand Bill of Rights Act 1990.

The OSA targets platform providers rather than individual creators of content. This is another difference between OSA and HDCA.

The OSA prescribes what the Government expects from online service providers.

These expectations are designed to help make sure online services are safer for all people to use. They also encourage the tech industry to be more transparent about their safety features, policies and practices.

The Basic Online Safety Expectations are a broad set of requirements that apply to an array of services and all online safety issues. They establish a new benchmark for online service providers to be proactive in how they protect people from abusive conduct and harmful content online.

eSafety expects online service providers to take reasonable steps to be safe for their users - to minimise bullying, abuse and other harmful activity and content and to have clear and easy-to-follow ways for people to lodge complaints about unacceptable use.

The Minister for Communications, Urban Infrastructure, Cities and the Arts can determine the expectations for certain online services. eSafety then has the power to require online service providers to report on how they are meeting any or all of the Basic Online Safety Expectations.

The Basic Online Safety Expectations are backed by civil penalties for online service providers that do not meet their reporting obligations.

eSafety will also have the ability to name online service providers that do not meet the Basic Online Safety Expectations, as well as publish statements of compliance for those that meet or exceed expectations.

The OSA requires industry to develop new codes which care mandatory and apply to various sections of the online industry such as

• social media platforms

• electronic messaging services

• search engines

• app distribution services

• internet service providers

• hosting service providers

• manufacturers and suppliers of equipment used to access online services and people who install and maintain equipment.

The codes, when registered, can require online service providers and platforms to detect and remove illegal content like child sexual abuse or acts of terrorism. They can also put greater onus on industry to shield children from age-inappropriate content like pornography.

The Act allows eSafety to impose industry-wide standards if online service providers cannot reach agreement on the codes, or if they develop codes that do not contain appropriate safeguards.

In many respects these provisions are similar to those the subject of the Department of Internal Affairs Safer Online Service and Media Platforms proposals.

The Act provides a list of examples the industry codes may deal with. These include that:

· all segments of the industry promote awareness of safety issues and the procedures for dealing with harmful online content on their services

· online service providers tell parents and adults who are responsible for children how to supervise and control children’s access to material they provide on the internet

· online service providers tell users about their rights to make complaints

· online service providers follow procedures for dealing with complaints in line with their company policies.

Codes would be enforceable by civil penalties and injunctions to make sure online service providers comply.

The Provisions of the Bill

I have described the structure of the OSA to provide a context for the Amendments proposed by the SMMA Bill.

The focus of the SMMA Bill is upon creating age restrictions for certain social media platforms and to hold platforms responsible for taking reasonable steps to prevent children who have not reached a minimum age from having accounts.

The SMMA Bill provides additions to Part 4 of the OSA by adding Part 4A which introduces provisions relating to social media minimum age.

The focus is upon Age-restricted social media platforms.

Age-restricted social media platforms defined.

An age-restricted social media platform is defined as follows (s. 63C):

63C Age-restricted social media platform 1

(1) For the purposes of this Act, age-restricted social media platform means:

(a) an electronic service that satisfies the following conditions:

(i) the sole purpose, or a significant purpose, of the service is to enable online social interaction between 2 or more end-users;

(ii) the service allows end-users to link to, or interact with, some or all of the other end-users;

(iii) the service allows end-users to post material on the service;

(iv) such other conditions (if any) as are set out in the egislative rules; or

(b) an electronic service specified in the legislative rules;

but does not include a service mentioned in subsection (6).

Note 1: Online social interaction does not include (for example) online business interaction.

Note 2: An age-restricted social media platform may be, but is not necessarily, a social media service under section 13.

Note 3: For specification by class, see subsection 13(3) of the Legislation Act 2003.

(2) For the purposes of subparagraph (1)(a)(i), online social interaction includes online interaction that enables end-users to share material for social purposes.

Note: Social purposes does not include (for example) business purposes.

(3) In determining whether the condition set out in subparagraph (1)(a)(i) is satisfied, disregard any of the following purposes:

(a) the provision of advertising material on the service;

(b) the generation of revenue from the provision of advertising material on the service.

(4) The Minister may only make legislative rules specifying an electronic service for the purposes of paragraph (1)(b) if the Minister is satisfied that it is reasonably necessary to do so in order to minimise harm to age-restricted users.

(5) Before making legislative rules specifying an electronic service for 1 the purposes of paragraph (1)(b):

(a) the Minister must seek advice from the Commissioner, and must have regard to that advice; and

(b) the Minister may seek advice from any other authorities or agencies of the Commonwealth that the Minister considers relevant, and may have regard to any such advice.

Services that are not age-restricted social media platforms

(6) An electronic service is not an age-restricted social media platform if:

(a) none of the material on the service is accessible to, or delivered to, one or more end-users in Australia; or

(b) the service is specified in the legislative rules.

Note: For specification by class, see subsection 13(3) of the Legislation Act 14 2003.

(7) Before making legislative rules specifying an electronic service for the purposes of paragraph (6)(b):

(a) the Minister must seek advice from the Commissioner, and must have regard to that advice; and

(b) the Minister may seek advice from any other authorities or agencies of the Commonwealth that the Minister considers relevant, and may have regard to any such advice.

An age restricted user is defined as an Australian child who has not reached the age of 16 years.

It will be noted that there are a number of special rule making powers that are reserved to the Minister. In essence this provision, which is the real machinery of the amendment sets out broad guidelines which will be distilled and crystallised in the future.

Age-restricted social media platforms is a new term introduced by the SMMA Bill. It draws on the existing meaning of ‘social media service’ in section 13 of the Online Safety Act, with a modification to expand the ‘sole or primary purpose’ test to a ‘significant purpose’ test when examining whether a service enables online social interactions between 2 or more users. This definition will not apply to other parts of the Online Safety Act, with the existing definition in section 13 remaining in effect.

While the definition of age-restricted social media platforms casts a wide net, flexibility to reduce the scope or further target the definition will be available through legislative rules made by the Minister for Communications. In exercising the rule-making power, the Minister will be required to seek and have regard to advice from the eSafety Commissioner, and may also seek advice from other relevant Commonwealth agencies. This will ensure that users under the minimum age retain access to platforms that predominately provide beneficial experiences, such as those that are grounded in connection, education, health and support. A rule-making power is also available to provide additional conditions that must be met in order to fall within the definition of age-restricted social media platform. At the same time, a rule-making power is available to respond to emerging technologies and services that are relevant to be considered or captured by the definition.

Achieving these outcomes through disallowable instruments, rather than primary legislation, allows the Government to be responsive to changes and evolutions in the social media ecosystem. Disallowable instruments are open to scrutiny by the Parliament, and therefore subject to Parliamentary oversight to ensure instruments are fit-for-purpose.

In the first instance, the explanatory note to the Bill states that the Government proposes to make legislative rules to exclude the following services from the definition of age-restricted social media platforms:

• Messaging apps

• Online gaming services

• Services with the primary purpose of supporting the health and education of end-users

Platform Obligations Defined

The obligation upon social media platforms to develop the mechanics for ensuring age-restriction compliance is contained in an addition to section 27(1)(q) of the OSA. These requirements are set out in the following insertions. Platforms are required

(qa) to formulate, in writing, guidelines for the taking of reasonable steps to prevent age-restricted users having accounts with age-restricted social media platforms; and

(qb) to promote guidelines formulated under paragraph (qa);

Age-restricted social media platforms must be able to demonstrate having taken reasonable steps to prevent age-restricted users from ‘having an account’. ‘Reasonable steps’ is a standard that has been imposed for the purpose of demonstrating compliance and features in national security legislation, privacy law, and elsewhere in the Online Safety Act.

Regulating the act of having an account will prevent age-restricted users from accessing the content and features that are available to signed-in account holders on social media platforms. This will help to mitigate the risks arising from harmful features that are largely associated with user accounts, or the ‘logged-in’ state, such as persistent notifications and alerts which have been found to have a negative impact on sleep, stress levels, and attention.

The obligation would not affect user access to ‘logged-out’ versions of a social media platform. As an example, the obligation would not affect the current practice of users viewing content on YouTube without first signing into an account. Similarly, Facebook offers users the ability to view some content, such as the landing page of a business or service that uses social media as their business host platform, without logging in.

Penalties

Section 63D provides for a civil penalty for failing to take reasonable steps to prevent age-restricted users having accounts. It states:

A provider of an age-restricted social media platform must take reasonable steps to prevent age-restricted users having accounts with the age-restricted social media platform.

Civil penalty: 30,000 penalty units.

The obligation is framed as preventing age-restricted users from ‘having an account’. This places an obligation on platforms to stop Australian children under 16 from creating and holding an account in their own right, but not from accessing content on the platform, if the content can be accessed in a ‘logged out’ state (i.e. without logging into an account or profile). In honing in on account holding, the obligation seeks to mitigate the harms that arise from addictive features largely associated with the ‘logged in’ state of social media platforms, such as algorithms tailoring content, infinite scroll, persistent notifications and alerts, and ‘likes’ to activate positive feedback neural activity.

The obligation does not preclude a parent or carer from allowing their child to use an account held by that parent or carer.

Section 63D does not prescribe what ‘reasonable steps’ platforms must take. However, it is expected that at a minimum, the obligation will require platforms to implement some form of age assurance, as a means of identifying whether a prospective or existing account holder is an Australian child under the age of 16 years. ‘Age assurance’ encompasses a range of methods for estimating or verifying the age or age range of users. Whether an age assurance methodology meets the ‘reasonable steps’ test is to be determined objectively, having regard to the suite of methods available, their relative efficacy, costs associated with their implementation, and data and privacy implications on users, amongst other things. The outcomes of the Australian Government’s age assurance trial, funded to take place throughout 2024-25, is likely to be instructive for regulated entities, and will form the basis of regulatory guidance issued by the Commissioner, in the first instance.

In addition Section 63D would not preclude a platform from contracting with a third party to undertake age assurance on its behalf. Similarly, it would be open to a platform to enter into an agreement with app distribution services or device manufacturers, to allow for user information to be shared for age assurance purposes (subject to the consent of users and compliance with Australian privacy laws).

Observations on the Bill

Unlike the Harmful Digital Communications Act 2015 (HDCA) whose principal targets are those who post harmful digital content, the SMMA focusses upon platforms.

This is consistent with the approach of the OSA where requiring platforms to address issues of online safety of users is the thrust of the legislation. This is the approach that has been adopted in the UK in the Online Safety Act 2023 which contains a range of measures intended to improve online safety in the UK, including duties on internet platforms about having systems and processes in place to manage harmful content on their sites, including illegal content.

The rationale for this approach is that the business model of social media platforms is to optimize user engagement and the time spent on the particular platform. The view is that while this has an impact on all users of social media it is particularly detrimental to children and young people who may be seen to be more vulnerable to harms associated with the platforms.

Although they are viewed as “digital natives” who are developing within a digital ecosystem, the platforms are seen as providing insufficient protections for young people.

The Bill places the obligation firmly on social media platforms to take reasonable steps to prevent users under the minimum age from holding an account.

The Social Licence

It is argued by proponents of the legislation that this reinforces the growing expectation that platforms operate under a social licence and have a social responsibility for the safety of their users, particularly children and young people.

The concept of a social licence is one that has been developing and is used to justify the regulation of online platforms. It is no more and no less than a construct that has been developed to justify State interference with new communications models.

The reason that I say that is this. Online platforms are no more and no less than a delivery system for content. The platforms themselves do not create the content. That is done by the users. The platforms therefore are content neutral in that they are transmitters of content in the same way that the Postal Service is a transmitter of mail and parcels. It carries no responsibility for the contents of the letters or the parcels.

This idea of the “common carrier” model of Internet Service Providers (ISP) and the developers of platforms which are “bolted on” to the Internet backbone has been reinforced by the development of safe harbours which protect ISPs and developers from liability for transmitting content over their service. An local example of a safe harbour can be seen in sections 23 – 25 of the Harmful Digital Communications Act 2015. Section 24 provides protection for an online content host in respect of any specific content of a digital communication posted by a person and hosted by the online content host if the host follows the process in that section.

The safe harbour and “common carrier” concepts developed because of the vast amount of data that flowed through the servers primarily of ISPs and the enormous difficulties of monitoring the flow of data. Social media platforms have been able to avail themselves of safe harbour protections (as may be seen by the provisions of section 24 HDCA) and the vast quantities of data flowing through their servers makes monitoring very difficult if not impossible to manage.

Many of the large platforms wish to be seen as “good digital citizens”. For this reason they have developed terms and conditions for the use of their services. Many of the large platforms have content moderation policies to ensure that certain content will be removed and where necessary the subscriber who posted that content will have his or her subscription cancelled.

There are problems with internal content moderation policies. One is that many of the policies will be engaged only upon a complaint being made. The moderation policy is not proactive. Another is that the guidelines for content moderation may be set using local or domestic rules for what sort of content may or may not be allowable. For example in the United States a much wider range of content may be allowable arising from the application of First Amendment freedom of speech provisions than in a country which has a less liberal approach to the freedom of expression. A third problem may be that the content moderation policies are often not uniformly applied and may be dependent upon the moderator rather than a consistent approach to a particular type of content. Finally – and I emphasise that these examples are not exhaustive – some content moderation policies are monitored by algorithms rather than by the human eye and brain. This form of moderation does not require a complaint but is an automatic process that scans the servers of the platform provider. Although the algorithms in these days of AI are capable of machine learning the fact of the matter is that they make mistakes. “Innocent” content may be the subject of moderation whereas “offending” content may be missed.

There are two problems with moderation policies. The first is that unless the terms and conditions of service are carefully drafted, it may be that certain legal duties may arise by virtue of moderation alone. This was exemplified in the cases of Cubby v Compuserve 776 FSupp 135 (1991) where an absence of content moderation meant that Compuserve was an “innocent disseminator” of defamatory content and Stratton Oakmont v Prodigy 23 Med LR 1794 (1995) where Prodigy, a family-oriented computer network held itself out as exercising editorial control over content and could not claim an “Innocent disseminator” defence.

The second problem is that my adopting content moderation policies providers move into the murky waters of legal, moral and social responsibility for what goes on in their space. A provider cannot remove an extremist call to bombing an embassy on the grounds of a threat to physical safety without moving into the area of collateral responsibility for other forms of content that may not be as egregiously harmful but may be harmful nevertheless.

Coupled with these difficulties are the business models that the platforms have developed. Primarily it is advertising revenue that the platforms seek and this revenue depends on the engagement of the eyeball with the add (referred to as “views”) It is primarily for this reason that optimization of engagement is the primary objective of the platform, thus keeping the eyeball on the advertising.

It is the commercial side of the provision of a social media platform that attracts the concept of the social licence and provides the strongest rationale for it. If the platforms were simply providing a communications service the situation may be different. But the provision of the communications service, plus the use by the platform of advertising which requires continuing customer engagement, plus the fact that the platform derives a significant amount of its revenue from advertising lends weight to an integrated social and commercial purpose for the platform. By becoming part not only of the communications ecosystem, but also of the commercial ecosystem the reach and influence of the platform goes beyond a suggestion that it is merely a common carrier or an innocent disseminator. It has a wider social and commercial aspect which must therefore attract certain social responsibilities, summed up in the term “social licence”.

The social licence concept arises from a blend of ethical, legal and societal obligations which can be summarized as follows:

Public Trust and Legitimacy: Internet platforms rely on users for their success. To maintain public trust, they must operate in ways that align with societal values and norms, including prioritizing user safety.

User Retention: A platform perceived as unsafe risks losing users, advertisers, and investors. Ensuring safety is essential for sustaining their business model.

Non-Regulatory Expectations: A social license isn’t granted by law but rather by public approval. If platforms fail to protect users, they risk losing this informal but essential endorsement, leading to reputational harm or user abandonment.

Accountability in a Digital Society: As key players in the digital economy, platforms influence discourse, commerce, and social interactions. Society expects them to act responsibly and foster safe environments, reflecting their critical role.

The social licence carries with it certain ethical responsibilities which can be summarized as follows:

Duty of Care: Platforms create spaces where billions interact. With this power comes an ethical obligation to minimize harm, such as cyberbullying, misinformation, harassment, and exploitation.

Benefiting from Users: Internet platforms monetize user interactions through advertising, subscriptions, or data analysis. As beneficiaries of user engagement, they bear a moral obligation to protect those contributing to their success.

Vulnerable Populations: Internet platforms are often the setting for harmful activities, including child exploitation, online radicalization, and scams. They have unique capabilities to prevent harm due to their access to data and control over their ecosystems.

Amplification of Influence: The algorithms and policies of these platforms can amplify content, including harmful or divisive materials. This influence heightens their responsibility to ensure that their platforms promote positive societal outcomes.

Setting the Age

The explanatory note to the Bill makes the following points:

The Bill sets a minimum age for users to hold a social media account to protect, not isolate, young Australians.

Young people’s use of social media is a complex issue and there is currently no clear and agreed age at which children can safely use social media. No two children’s experiences on social media are the same.

Social media services vary greatly in their primary purpose and design features, and therefore present a different level of risk to end-users. Children also vary substantially in how they use social media, including which platforms they access, the content and communities they engage in, and the digital features they are exposed to.

The current minimum age of access under the Terms of Service of all major social media services is 13 years. This stems from the 1998 decision by the United States (US) Congress in the Children’s Online Privacy Protection Act, which prohibits websites from collecting information on children younger than 13 years without consent.

This legislation predates the existence of social media and is not an indication that these services are safe to use at this age or based on any evidence that 13 years is an appropriate age at which adolescents have the capacity to engage safely on these services.

A United Kingdom (UK) study published in 2022, which examined longitudinal data from more than 17,400 participants, found that adolescent social media use is predictive of a subsequent decrease in life satisfaction for certain developmental stages including for girls aged 11 to 13 years old and boys 14 to 15 years old.

Further, advice from the US Surgeon General states that social media exposure during this period of brain development warrants additional scrutiny. A minimum age of 16 allows access to social media after young people are outside the most vulnerable adolescent stage.

During the development of the Bill, the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (the Department) conducted extensive consultation with young people, parents, mental health professionals, legal professionals, community and civil society groups, state and territory first ministers and industry representatives. Preferences for the minimum age for social media typically ranged from 14 to 16 years old, with some support for 18 years old.

Parents and carers feel unsupported to make evidence-based choices about when their children should be on social media and many are overwhelmed by pressure from their children and other families.

This is supported by a recent survey conducted by the eSafety Commissioner, with 95 per cent of caregivers reporting that children’s online safety is the hardest parenting challenge they face. Setting a minimum age removes ambiguity about when the ‘right’ time is for their children to engage on social media and establishes a new social norm.

This last rationale is perhaps the least satisfactory. It suggests that as far as social media use is concerned parents are disempowered or unable to carry out their basic parental functions. There is a suggestion underlying this that parents are afraid that they cannot be friends with their children. This is hardly a sound parenting approach. It is the duty of a parent to mentor and guide a child. It is the duty of the State to provide the educational tools to equip a child for later life. It is not the duty of the State to assume parenting duties or responsibilities that rest with parents within the family context.

What the Bill does NOT do

The Bill introduces an obligation on providers of an age-restricted social media platform to take reasonable steps to prevent age restricted users from having an account with the platform.

The onus is on platforms to introduce systems and processes that can be demonstrated to ensure that people under the minimum age cannot create and hold a social media account.

As the onus is on platforms, there are no penalties for age-restricted users who may gain access to an age-restricted social media platform, or for their parents or carers.

Thus the Bill does NOT, contrary to much media commentary, ban young Australians from accessing social media.

The Challenge for the Platforms

The definition of an "age-restricted" platform covers services that allow users to post material, to interact with two or more people, and to interact with some or all other end-users. Australia's government expects that TikTok, Facebook, Snapchat, Reddit, Instagram and X will meet that definition and therefore have an obligation to verify users' ages.

How they do it is up to them. The government will soon run an age verification trial that it thinks will be instructional, and has promised that citizens will be able to use social media without having to show ID – but the details of how the obligation will be implemented are not known.

Social media platforms have until late 2025 to implement their "reasonable steps" or face significant fines. Some have already expressed concerns about the bill – arguably reinforcing the government's arguments about its necessity.

However the government has already hinted that the law has another motive - a signal for social media services to offer better protections for users.

Prime minister Anthony Albanese recently stated: "We know some kids will find workarounds, but we're sending a message to social media companies to clean up their act."

And in a fillip for the government, the law passed two days after TikTok announced it is trialling tech to detect users who are under 13, and restricting the use of some appearance effects for under 18s. So perhaps complying with Australia's law won't be so hard.

The New Zealand Response

It should be observed is that New Zealand lacks a piece of framework legislation like the OSA to which age-restrictions for social media may be bolted.

The proposals by the Department of Internal Affairs set out in the Safer Online Services and Media Platforms discussion paper were heading for a similar model with a single regulator, a framework that involved the development of Codes of Practice (agreed or imposed by the Regulator) and a structure similar to (but not identical with) that of the OSA or the UKOSA.

Thus the calls for a similar approach in New Zealand seem to be based on the principle that young people should not (for whatever reason) be able to access social media rather than a detailed understanding of the legislation and its statutory context.

When the proposals were announced there was some reaction.

Netsafe CEO Brent Carey highlighted the fact that more effort should be applied to the management of screentime and the best way to use the amazing information resource provided by the Internet.

Just because a child or young person doesn’t have a phone at school or social media at home assumes they are shielded from online risks. And that looks at the matter from a negative perspective because there are positive online experiences - connecting with causes, getting help, demonstrating skills, learning, or finding communities they identify with online.

The debate should be about helping young people develop the skill set to self-regulate, manage distractions and make informed decisions. Digital literacy is a fundamental part of a young person’s education.

The Chief Censor, Caroline Flora, has also expressed a view observing that critical thinking and open conversations are important in preventing and addressing harm in this context.

Even the Australian e-Safety Commissioner recognized that a ban may drive young people underground or to locate other platforms with which to communicate.

Dr. Eric Crampton of the NZ Initiative sees problems in a universal state based identification verification system although that is not proposed in the Bill. Nevertheless it could be on the horizon.

Celia Robinson, on the other hand, in the Herald for 15 September criticizes Mr Carey’s approach. She lumps him in with what she disparagingly refers to as “a noisy few” (which I gather includes the Chief Censor) and suggests that Netsafe has a conflict of interest because it has funding from some of the social media platforms. Netsafe has always been transparent about its funding and does a fine job in its role as the Approved Agency under the Harmful Digital Communications Act which warrants not a mention in Ms Robinson’s op-ed.

I gather that as well as being critical of Mr Carey’s approach, Ms Robinson favours the Australian proposals or some other form of heavy-handed paternalistic state intervention. Interestingly journalist and broadcaster Heather du Plessis Allen supports the Australian initiative.

Ms Robinson wrote about Gen Z’s mental health crisis in June of 2024 in the Herald. Her concerns were about social media and links to suicide and self-harm among young people.

She referred to research that had been carried out by Dr Samantha Marsh who published a study on children’s screen use in Aotearoa. More on Dr Marsh shortly.

Ms Robinson stated as follows:

“While some argue further education for parents is needed to reduce or prevent smartphone usage among children, the potential for harm makes this situation similar to the regulation of alcohol, tobacco, and driving.

Therefore, I believe smartphones should be banned for individuals under 16 years old. By implementing such a ban, we can protect the mental health and cognitive development of adolescents during these crucial years. Sixteen may sound arbitrary but between the ages of 10 and 16, children experience significant brain development.”

Such a ban is supported by Dr. Marsh.

It is important to note that Ms. Robinson is advocating that individuals under the age of 16 should be banned from having smartphones. Although she does not make such a direct statement in her 15 September 2024 article.

It is as important to note that the SMMA does not go as far as Ms. Robinson would like to imagine. It does not ban smart-phone use by under 16 individuals. It does not ban under 16’s accessing social media. In fact it requires platforms to put age verification methodologies in place to prevent under 16’s setting up accounts.

In addition age-restricted platforms will not include every platform available on-line. Under 16’s will still be able to access messaging apps, gaming platforms and YouTube.

The announcement of the passage of the Bill on 27 November created a flurry of media activity.

But even before the passage of the Bill Dr Samantha Marsh was advocating a “no harm” model of regulation, essentially a strategy that eliminates risk, rather than a harm reduction model.

Dr Marsh is a senior research fellow in the Department of General Practice and Primary Care at Auckland University. Her research focuses on child and youth health and wellbeing.

In an article in the Herald for 10 November 2024 Dr Marsh described the harm reduction model as focusing on

“mitigating harm after it occurs. Parents, teachers and decision-makers should carefully consider these “harm reduction” approaches being proposed.”

Dr Marsh addressed the position broadly advocated by Netsafe that we should have open discussions with children and educate them about social media use. She says:

“Another argument is that we need to have open discussions with our kids and teach them to have healthy relationships with social media. Education is important – kids need to know why and how social media causes harm – but education alone is unlikely to change behaviour and, therefore, unlikely to prevent harm.

Teaching people about healthy eating doesn’t stop them from indulging in junk food. We shouldn’t expect anything different from social media education. Education can’t compete with a platform that exploits the vulnerabilities of the teenage brain.

We shouldn’t be giving kids a product that’s been shown to harm their wellbeing and then expect them to use it responsibly or hold themselves accountable for their usage. Just as we don’t expect kids to have healthy relationships with other addictive products, the same should apply to social media.”

Dr. Marsh’s argument therefore is that parental responsibility in this area should shift from the home to the State. She concludes:

“Our kids deserve more than harm reduction – they deserve no harm caused by social media. At the very least, shouldn’t this be what we strive for?”

Hot on the heels of the Australian legislation on 1 December 2024 the Herald ran a story under this headline

“Kiwis want social media banned for young children, poll finds”.

The article is by Katie Harris, described as a “Social Issue Reporter” who clearly has not read the SMMA or if she has she does not understand it.

The thrust of the article, however, is not the SMMA but a poll conducted by Horizon Research in collaboration with the University of Auckland.

The report states that 74% of 1511 adults polled say there should be an age limit for accessing social media, with age 16 the most popular threshold for respondents.

Survey respondents were also asked who should be responsible for ensuring online safety, and more than three-quarters said parents.

Just under 70% also said social media companies, and 56% said the Government.

Now the reporting of the survey results requires a bit of thought because what we are getting is the reporter’s interpretation of those results. I have been critical of the reporting of surveys in the past. Very rarely are we given the precise language of the question to which responses are made.

Let us look at the issue of responsibility for ensuring online safety. We don’t know the language of the question. We don’t know if respondents were asked to rank their options. So without that information the results state are confusing.

Over three-quarters of the respondents (not a figure stating “more than 75% of respondents) said online safety rested with parents. If that is the case, 25% of respondents (assuming the 75% figure is correct) would favour other avenues like social media companies or the government.

But no. Just under 70% (once again a precise figure is not given) believe online safety should be the business of social media.

This means that more people responded than were polled. The issue becomes even more complicated when we find out that 56% of those polled favoured Government intervention.

These are surprising results but they

“ come as no surprise to University of Auckland senior research fellow Dr Samantha Marsh who said parents report knowing social media is harmful but often feel they have to let their children use it.”

A further set of confusing results appear in the article which states:

“Just under three-quarters of survey respondents shared concerns about children being exposed to inappropriate content, 75% about cyber bullying or harassment, 66% about exposure to sextortion and 69% about mental health impacts.

Five percent had no concerns.”

Once again, the question or questions are not stated, there is no raw data, “inappropriate data” is not defined and once again the figures for the responses do not add up.

I should imagine since the research was done with Dr Marsh’s University as a participant that she knows the wording of the questions and is privy (unlike the rest of us) to the raw data.

The newspaper report states that Internal Affairs Minister Brooke van Velden said that creating a legal age limit for social media is not something she is considering implementing in New Zealand. She is aware of the potential harms that can be caused by social media which is why the Government banned school students from using mobile phones while attending school enabling students to concentrate upon their learning.

The article reports that therapist and online safety advocate Jo Robertson is concerned with grooming of children although there are positive aspects to social media. She said it would be naive to think that having an age restriction would take away the risk of children seeing harmful content online, however, they will be less likely to “stumble” across it and she urged parents to consider delaying giving their children devices.

Dr Marsh suggested on Radio NZ (29 November 2024) that New Zealand was open to a social media ban but would want to see how it played out in Australia.

She referred to the fact that platforms had a year to implement their age verification protocols which suggests that she has some awareness of the legislation.

But once again the focus in the stories is on banning under 16’s from social media which is NOT what SMMA is about. There is no language in the Bill which bans an under-16 from accessing social media. The platforms are required to prevent under-16’s accessing their services. There is a big difference and one which mainstream media has yet to grasp.

The confusion continues in a story from Radio NZ dated 30 November headlined

“Ban on teen social media will remove connections for those in marginalised communities - queer activist”

Once again mainstream media misses the nuance of what is proposed and the article states:

“A ban on social media for under-16s will remove connections for those in marginalised communities and prevent them from learning about the world, a queer activist says.

It follows Australia introducing a ban on platforms such as TikTok, Facebook, Instagram and Snapchat this week.”

There is no ban on platforms. The platforms have to set up age verification systems so under 16’s cannot access certain social media platforms. There is NOTHING in the SMMA that specifically bans under 16’s access social media.

The article cross references to an earlier RNZ article dated 29 November which reads:

“Children and teenagers will be banned from using social media from the end of next year after the Australian government's world-first legislation passed the parliament with bipartisan support.”

This paragraph is incorrect. Children and teenagers will not in fact be banned, as I have already argued.

The article then corrects itself by stating:

“That means anyone under the age of 16 will be blocked from using platforms including TikTok, Instagram, Snapchat and Facebook, a move the government and the Coalition argue is necessary to protect their mental health and wellbeing.”

But this only tells part of the story. Who is blocking kids? Is it the State? If you are still with me you will know the answer – yes, the obligation is on the platforms to set up age-verification systems so that under 16’s will be unable to access their platforms.

Is New Zealand likely to implement a similar proposal? Prime Minister Christopher Luxon told the New Zealand Herald in September he was "up for looking at all of that" (referring to a social media minimum age), while Labour leader Chris Hipkins said he was open to looking at a similar approach in New Zealand, provided there was evidence it would make a difference.

As I have already suggested, the structure that the Australians have put in place is founded on the OSA which has been in place for some years. The SMMA becomes part of the structure of that legislation.

New Zealand does not have a similar legislative structure, nor is it likely to have one given the current Government’s abandonment of the Safer Online Services and Media Platforms work by the Department of Internal Affairs.

So it may be that Ms Celia Robinson, Dr Samantha Marsh and others who would suggest that parents are incapable of parenting their children and that the State should assume part of that role will no doubt continue to write their fearful op-eds pointing to the Decline of the Civilisation and Childhoods End if the “Guvmint” doesn’t “do something”.

Conclusion

Marshall McLuhan coined the aphorism “The Medium is the Message” perhaps his most famous and yet opaque statement – which emphasises the importance of understanding the way in which information is communicated.

According to McLuhan, we focus upon the message or the content that a medium delivers whilst ignoring the delivery system and its impact. In most cases our expectation of content delivery is shaped by earlier media. We tend to look at the new delivery systems through a rear view mirror and often will seek for analogies, metaphors or concepts of functional equivalence to explain the new medium that do not truly reflect how it operates and the underlying impact that it might have.

“We become what we behold. We shape our tools and thereafter our tools shape us” is his second aphorism that summarises the impact that new media may have. Having developed the delivery system, we find that our behaviours and activities change. Over time it may be that certain newly developed behaviours become acceptable and thus underlying values that validate those behaviours change. In the case of information delivery tools, our relationships with, expectations and use of information may change.

McLuhan’s first aphorism is that content alone does not cause these modifications. My suggestion is that it is the medium of delivery that governs new information expectations, uses and relationships. How does this happen? One has to properly understand the tool – or in the case of information communication, the medium – to understand the way in which it impacts upon informational behaviours, use and expectations.

It would be foolish to suggest that content was not front of mind for the Australian Government when it enacted the SMMA. But at the same time it concentrated on the delivery system – the social media platforms – looking to them to devise a solution for what was seen to be an unhealthy pre-occupation with social media on the part of the under-16’s.

In this respect it seems, almost by accident that the Australians with the SMMA and the parent legislation the OSA have perhaps obtained an echo of an understanding of McLuhan’s “medium is the message” aphorism.

That said what perhaps has not been understood and as an example of McLuhan’s “rear view mirror” approach are the views of Prime Minister Albanese, Celia Robinson and Dr Marsh, among others.

Digital technologies have introduced a paradigm shift, especially in the area of communications, our expectations and our use of information. Many of the assumptions the older generation may have about correct behaviour and values are neither valid nor reasonable for a generation of digital natives. No better example may be found than Albanese's statement: "Parents want their kids off their phones and on the footy field So do I. We are taking this action because enough is enough."

This is clear evidence of a total lack of understanding about the impact digital technologies have had on values and behaviour. The fresh-air values of Albanese's generation may no longer have relevance to digital natives. What is seen as addictive use of devices by his cohort is seen as communication by digital natives. This ambition to force a new generation to adopt behaviours of an older one crumbles in the face of a paradigm change.

In my view the matter rests with parents and within families. Tot homines quot sententiae as the Romans used to say – as many as there are people there are points of view – and that is very true with parenting.

Rather than talking about preventing people from maximizing the opportunities for communication – and the Internet and the Digital Paradigm have introduced a revolution in the means available to communicate - the debate should be about helping young people develop the skill set to self-regulate, manage distractions and make informed decisions.

Deny them access to communications platforms and you deny them the opportunity to develop necessary skill sets for the future.

POST SCRIPT

I hesitate to draw attention to one such as Paddy Gower - a shock jock if there ever was one - but an article he wrote for Stuff published 5 December epitomizes the lack of understanding of the SMMA.

In it he says:

In my view, New Zealand needs to make taking action against social media companies a priority. Get our best scientists and tech brains in on this together, create a social media regulator - yes, a government agency that can start enforcing rules - and get on with it.

Get alongside Australia with an Anzac ban on social media for our kids. Fight the social media giants together with our Aussie mates. (My emphasis)

I don’t know how many times I have to say this but kids are not banned from using social media. The problem seems to be that the media has made up its own message about the SMMA - and it is the wrong one. As for Gower - well, need I say more?

The Doctrine of Discovery as a Manifestation of Critical Theory

If, as I suggest, there is no historical evidence for a coherent “Doctrine of Discovery” at international law, how has the term developed and become a part of a number of the narratives about the history of colonialism. In this section I shall develop the theme that in fact the “Doctrine” is in fact a manifestation of critical theory.

In the abstract to their 2023 article[1], Miller and Hobbs state:

“In the 1823 decision of Johnson v. M’Intosh, Chief Justice John Marshall formulated the international law of colonialism. Known as the Doctrine of Discovery, Marshall’s opinion drew on the practices of European nations during the Age of Exploration to legitimize European acquisition of territory owned and occupied by Indigenous peoples. Two centuries later, Johnson—and the international law of colonialism—remains good law throughout the world. In this Article we examine how the Doctrine of Discovery was adapted and applied in Australia and the United States. As Indigenous peoples continue to press for a re-examination of their relationships with governments, we also consider whether and how the international law of colonialism has been mitigated or unraveled in these two countries. While we find that the Doctrine lingers, close examination provides several important lessons for all Indigenous nations and governments burdened by colonization.”

In Part 2 I examined the validity of Johnson v M’Intosh but in the abstract Miller and Hobbs identify the issues of colonialism and the way in which the so-called Doctrine acted as a means of repression of indigenous people.

The approach that has been adopted is a variation or manifestation of Critical Theory involving Critical Race Theory coupled with Critical Theory approaches to colonialism and decolonization.

In this section I shall discuss Critical Theory and its elements and in the next section explain how it is that the Critical Theory outcomes are historical fallacies that sadly seem to have become accept by many mainstream organizations, the Catholic Church and the Human Rights Commission among them.

The Starting Point

Critical theory should be understood and critiqued for what it is. Critical theory is grounded in Marxism and postmodernism that seeks fundamental and radical structural change of society through activism.

The Marxist theory of history is called dialectical or historical materialism. Marx’s central claim is that class struggle is the driving force of history. Under capitalism, this struggle occurs between the oppressors and the oppressed. Thus there is an imbalance which in current terms is represented as empowerment and disempowerment.

Marx looked at capitalism as an example. The capitalist class (the empowered) owns the means of production and rules over the proletariat (the disempowered). Marx believed capitalism's long-term function was to create the conditions necessary for the awakening of the proletariat class consciousness who then organise into a collective and overthrow the bourgeoisie in a revolution which leads to socialism.

This “awakening” or awareness has given rise to the quality of being “awoken” which has become the basis of the term “woke” – being awoken to important societal facts and issues – especially those of social justice. I think the better term is “awakened” but in this respect, sadly, idiom prevails over good grammar

Thus a critical aspect of Marxism is the awakening of a collective class consciousness in the proletariat -making them aware of the true nature of their oppression. It is only at this stage that they can form into a collective class, overthrowing the ruling capitalist class in a social revolution and conquer political power for themselves.

By the 1950s, Marxism was in crisis. Marx’s predictions about history’s progression had failed to materialise and Capitalist and Liberal Democratic societies were seeing rapid improvements in the average quality of life. The world was learning of the horrors of communism and the Soviet Union, Maoist China, Vietnam, Cambodia and South America. The abolition of private property, central economic planning and the forced collectivisation of industry and agriculture had catastrophic consequences.

Postmodernism

In the 1960s, a new political, cultural and intellectual movement called postmodernism emerged in a period of significant social change. It is difficult to provide an overarching definition for postmodernism due to the sheer breadth of its applicability, including in music, art and architecture.

It is characterised by a deep suspicion, scepticism and distrust of broad historical concepts, universal values and of any attempts to ground knowledge and truth on absolute foundations.

It is particularly antithetical to the principles of the Enlightenment. Because there can be no universal truths any claims to truth cannot be valid. Or alternatively, all claims to truth are equally valid. Therefore there is no one truth.

Postmodernism is highly critical of the Enlightenment, which was predominantly a European intellectual movement associated with the principles of justice, rationality, individualism and the Scientific method as a means of determining objective and universal truth. Enlightenment thinkers rejected divine revelation and religious belief as the source of moral knowledge.

Postmodernists shared Marxism’s views on the structural power. But instead of economic analysis, they focused on differences in power between groups along cultural and identity lines. Postmodernism was a reaction to the conditions of modernity such as objectivity, individualism, liberal capitalism, and the principles of the Enlightenment which the postmodernist philosophers believed had led to a death of authenticity in Western societies.

Postmodernism is suspicious of any systems or processes that push for unity, homogeneity and all-encompassing conditions. Instead, they emphasise the fluid and the unstable, the diffuse and the fragmented, and the local and the micro, by studying the marginal, the different and the other.

For postmodernists, everything is about power. It determines how society is structured and how we think and speak. These ideas can be traced to critical theory, which emerged in Western Europe in the early 20th century.

Postmodernism and Critical Theory

Critical theories identify structural forms of oppression. For this reason, critical theories are popular with left wing academics and are common in fields of study like disability and fat studies, feminism and gender studies, post-colonial studies, sexual diversity studies, critical legal theory, and critical race theory.

A critical theory has three criteria.

· It must be explanatory in that it explains problems with the current social reality - practical in that and identifies who should change the social reality and how and normative.

· It outlines the standards for criticism and the achievable goals for transforming the problems through praxis.

· The third feature is the most crucial and embodies Marxist proposition that philosophers have hitherto only interpreted the world in various ways. The point is to change it. In philosophy, praxis means implementing a theory in the world to achieve an aim.

The core function of critical theory is to awaken a critical consciousness in members of an oppressed group. This is comes directly from the Marxist concept of awakening class consciousness as the precursor to a revolution.

Read more

In the NZ Herald for 26 November Simon Wilson penned a piece about poverty. It was a lengthy piece but a couple of paragraphs towards the end caught my eye. It talks about love as a solution.

It reads as follows:

“Sarah-Jane Paine, research director at the Growing Up in New Zealand study, had a question. “How is it possible for so many people to care so deeply about poverty and for nothing to change year after year?”

“It got me thinking about love,” she said. “Aroha, in its full meaning.”

She talked about a lack of empathy that keeps people at a distance. She said colonial systems

“can say they know and care about us, but their basis in white supremacy means they cannot”.

The suggestion that colonial systems are based on white supremacy is a generalization that infects much of the debate about colonialism and colonization. It suggests that “white supremacy” (which in itself is code for a number of varying issues) was what motivated colonialism and colonization. It did not, although there were times when, during the colonial experience, it manifested itself. Like many of the arguments against colonialism it is cast in binary terms – all good or all bad. And the use of the phrase “white supremacy” casts the colonial experience as evil. And the issue is far more subtle and nuanced than that.

Nigel Biggar is a British Anglican priest, theologian, and ethicist. From 2007 to 2022, he was the Regius Professor of Moral and Pastoral Theology at the University of Oxford.

In 2017, Biggar initiated a five-year project at Oxford University, entitled "Ethics and Empire". Its stated aim was to scrutinise critiques against the historical facts of empire.

Historians and academics widely criticised the project, claiming that it was "attempting to balance out the violence committed in the name of empire with its supposed benefits". The project also received criticism for failing to engage with the wider scholarship on empire and not submitting itself to peer scrutiny and rigorous academic debate.

Biggar addressed the ethics of colonialism in an op-ed for The Times, arguing that the history of the British Empire was morally mixed and that guilt around Britain's colonial legacy may have gone too far.

He also defended an article by Bruce Gilley, titled "The Case for Colonialism", asserting that Gilley's appeal for a balanced reappraisal of the colonial past was both courageous and a call for Britain to moderate its post-imperial guilt.

Biggar’s book Colonialism. A Moral Reckoning, examines the morality of colonialism. It was originally accepted by Bloomsbury who later chose not to publish it, with the suggestion that "public feeling on the subject does not currently support the publication of the book". It was eventually published by William Collin, a division of HarperCollins.

The book has received both praise and criticism. Rudrangshu Mukherjee wrote in The Wire that Colonialism is an "immoral book" that ignores "the structural logic of empire" linking "the development of capitalism and prosperity in Britain with the political control, the economic exploitation and the impoverishment of the colonies," and that it fails "the most elementary test of scholarship"

However, Trevor Phillips in The Sunday Times said that it "carries the intellectual force of a Javelin antitank missile", stating that he "find[s] it hard to disagree" with Biggar's thesis.

Jonathan Sumption in the Literary Review described it as "an important book as well as a courageous one", and that "in general, [Biggar's] approach is objective and he fairly addresses the contrary arguments".

In The Daily Telegraph, Tim Stanley considered the book "thoughtful" and "compelling", one that introduced facts, some of which he was unaware of, indicating that "much that is benign about our civilisation has been forgotten", but concluded that Biggar "is spoiling for a fight, and I fear he's going to get one".

Kenan Malik in the Guardian said that while Colonialism "claims to be a 'moral reckoning', moral questions are rarely taken seriously", and "in seeking to challenge what he regards as cartoonish views of imperial history, Biggar has produced something equally cartoonish, a politicised history that ill-serves his aim of defending 'western values'.

Malik observes that from Biggar’s perspective

“Contemporary historians… have made us feel too guilty about Britain’s colonial past. We need to recognise not just the bad but also the good of empire. Colonialism is [Biggar’s] attempt to create such a moral balance sheet.”

Biggar’s approach, however, is wherever possible to find good motives behind every colonial act – he portrays racial segregation, for example, as the product not of racism but of the desire “to protect native peoples from harmful encounters with settlers”.

However, Malik is not one to support Biggar’s thesis and notes that where it proves impossible to locate a nugget of good, he seeks instead to find exonerating circumstances for the bad.

Malik considers that

“Biggar’s real concern is not with the past but with the present. Denigrating colonialism, he claims, is an “important way of corroding faith in the west”. Yet, in seeking to challenge what he regards as cartoonish views of imperial history, Biggar has produced something equally cartoonish, a politicised history that ill-serves his aim of defending “western values”. After all, to rewrite the past to suit the needs of the present, and to defend people’s rights only when politically convenient, is hardly to present those values in a flattering light.”

A more savage review was penned by Peniel Rajkumar, writing for the Church Times. The Revd. Dr Peniel Rajkumar is the USPG’s Global Theologian, and an Hon. Canon of Worcester Cathedral. There are rarely more pointed arguments than those between clerics of the same belief system. The history of the Christian Church is full of them, as is Islam.

Dr Rajkumar considers the book as an apology for colonialism, suggesting that the sub-title should read “An Amoral Reckoning” and that the book is morally and historically vacuous.

Dr Rajkumar uses the language of the critical theorist in suggesting that the book is

“entrapped in an epistemological premise — one that reeks of the same racist and supremacist inclinations as characterised colonialism in both its malignant and “benevolent” expressions.”

He describes Biggar’s “moral lens” approach as preposterous, suggesting that he weaponizes prejudice. He claims that Biggar has not understood post-colonialism, and his book’s main problem is its avoidance of engagement with more robust appraisals of colonialism in contemporary times.

But Biggar concedes in the Introduction to the book that the subject matter and his approach were both contentious.

The book comprises eight chapters, each dealing with a different aspect or theme of colonialism. He considers the motives for colonial activity, the difficult and confronting topic of slavery, the issue of cultural superiority, equality and racism, the question of land appropriation, settlers and “conquest”, assimilation of settled peoples and the emotive and misdescribed issue of genocide, colonialism and trade, the question of Government and the rise of nationalism and finally whether in certain circumstances force was justified or whether colonial activity was characterized by pervasive violence.

Although Biggar provides evidence from the colonial enterprises of a number of nations, his primary focus is upon the British Empire and its associated colonial activity.

Many commentators of colonialism approach the topic from a critical theory perspective, seeking out any evidence to then suggest that all colonial activity was inherently evil. Biggar does not. His is a more nuanced approach and is that of an ethicist.

Biggar founded his Ethics and Empire Project at Oxford to explore the factual and moral basis for this hostility. The project, its author and the university were at once denounced by other scholars in the field on the grounds that the very idea of balance in this area is unacceptable.

To quote one of the most vocal antagonists,

‘any attempt to create a balance sheet of the good and evil of empire can’t be based on rigorous scholarship’

An extraordinary statement from an academic but in these critical theory neo-Marxist binary days one shouldn’t be too surprised.

Biggar’s argument is that the development of Empire and what is called colonialism was an institution that developed over centuries and no one could say that it was wholly good or wholly bad. Biggar cites examples from other imperial activities. The empire of Islam demonstrated examples of racism regarding those from Northern climes (it was too cold to be intelligent) or the tropics (it was too hot to be intelligent). The conclusion is obvious.

He commences with the proposition that empire is not an historical aberration or a departure from historical norms. It is part of the natural order of a world that, until recently, lacked stable frontiers formalised by an overarching scheme of international law. The armed migration of peoples in search of resources might serve to unlock the riches of the world and spread knowledge and technical competence, processes which potentially benefit all mankind.

Certainly colonialism severely disrupted existing patterns of indigenous life. It was often achieved or maintained through violence and injustice. In the final analysis, all states maintain themselves by force or the threat of it.

Governments, imperial or domestic, have always involved light and shade, achievement and failure, good and evil. Biggar’s point is that it falsifies history to collect together everything bad about an institution and serve it up as if it were the whole.

There are three major points that Biggar makes by way of mitigation when it comes to the legacy of Empire.

To begin with many of the worst things that happened were not the result of an ideology or a preconceived and calculated policy. There were abuses. They were recognized and were addressed although not always with the greatest success.

Secondly, along with the disruption that was caused to communities there were also benefits. Practices such as slavery, cannibalism, sati and human sacrifice, which were by any standards barbarous, were eliminated. The ground was laid for an economic and social transformation that lifted much of the world out of extremes of poverty.

Thirdly and finally not only did colonialism bring disruption but it brought order. The British brought the Rule of Law, constitutional government, honest administration, economic development and modern educational and research facilities, all long before they would have been achieved without European intervention.

Biggar honestly puts his cards on the table and makes a number of observations.

First we cannot judge the past by the standards and values of the present. It is a form of anachronism. But from a moral perspective – and we all make moral judgements – we are continuing to learn morally. Some moral truths are obvious to us that were not to our ancestors. We are clear that slavery is wrong because it makes one person the absolutely disposable property of another. But for our ancestors in the eighteenth century slavery was a fact of life which had existed since time immemorial. Biggar suggests we should forgive our ancestors for not perceiving some moral truths as clearly as we do. And we shall need forgiveness from our grandchildren for our own moral shortcomings.

Secondly we should remember that the circumstances of the past differ from those of the present. Good moral judgements will take that into account. Violence that would be excessive today may not have been excessive in the unstable circumstances of weak nineteenth century states. We must make sure that our present ethics are informed by a sensitivity to human limits and frailities.

Thirdly, Biggar makes it clear that his ethics are shaped by Christian principles and tradition and that there are universal moral principles.

Fourthly one must recognize human limitations and that often we lie on a bed that our ancestors made for us.

There can be no doubt that the British Empire contained evils and injustices but so does the history of any long-standing state. But the Empire was not essentially racist, exploitative or wantonly violent as a general proposition. It could correct errors and sins and importantly it prepared colonized peoples for liberal self-government.

What colonialism did bring to the table in the final analysis were liberal, humanitarian principles and endeavours that should be admired and carried into the future. Imaginary guilt should not cripple the self confidence of the British, Canadians, Australians and New Zealanders as pillars of the liberal international order.

The book is not an easy read. Biggar is an academic and his approach is a rigorous one. He develops the evidence and marshals his argument with care. Some of his conclusions are challenging but are well reasoned and well thought-out. He writes not as an historian but as an ethicist so his approach and analytical style differ from that of the historian or anthropologist

As I read Colonialism I was interested how Biggar developed his argument. He accepts the downsides of colonialism as well as the significant upsides. In terms of bringing liberal democratic ideals, the Rule of Law, an honest administration and an objective of self determination colonialism has more to recommend it rather than the universal condemnation based on isolated incidents and errors.

One of the things that colonialism brought to New Zealand was the Rule of Law and laws that were structured on English common law principles and the theory of legislative supremacy. Thus it is amusing to read of one of our Supreme Court Justices stating

“until we complete the process of decolonisation, the rule of law can only be considered a work in progress.  The new place of the Treaty and tikanga in the law is a start.”

Perhaps the Judge might benefit from a read of Professor Biggar’s book. And perhaps she should realise, as I am sure she does, that the common law particularly is organic and dynamic and continues to develop. It is unhelpful to bring a concept such as “decolonization” into the mix when our system is derived from the colonisation of New Zealand. And that is one of the benefits of colonialism.

Legal Developments

Those who argue that there is a coherent Doctrine of Discovery that has underpinned European colonization and treatment of indigenous people place a considerable amount of weight on the 1823 decision of the United States Supreme Court in Johnson & Grahams Lessee v McIntosh. I shall now proceed to examine this case.

Johnson & Grahams Lessee v McIntosh[1]

The background to the case was this.

On October 18, 1775, in Vincennes, Indiana, eleven Piankeshaw chiefs “for good and valuable consideration” deeded an immense tract of land to Lord Dunmore, the royal governor of Virginia, his son, and eighteen other persons from Maryland, Pennsylvania, Great Britain, and the Illinois Country.

However, on December 30, 1805, the Piankeshaw ceded much of the same land to the United States in a treaty negotiated by William Henry Harrison, governor of the Indiana Territory.

Following that a Vincennes resident William McIntosh—according to the jointly submitted statement of the case—purchased a portion of the land in question from the federal government, thus setting up a conflict in title.

The plaintiffs were the heirs of Thomas Johnson who was one of the original purchasers. The argument was that if the Piankeshaw Tribe sold the property in 1775, they had nothing left to cede to the United States in 1805. Thus, the government had nothing that it could sell to William McIntosh.

The lawyers representing McIntosh were compelled to argue that the 1775 purchase was invalid. The tribes, it was argued, lacked the legal capacity to sell the land to private individuals.

According the Chief Justice Marshall the issue to be decided was “the power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country.”[2]

The Court was unanimous. Marshall CJ announced that following ““the discovery of this immense continent,” Indians in America no longer enjoyed the “power to dispose of the soil, at their own will, to whomsoever they pleased” and that, consequently, “the plaintiffs do not exhibit a title which can be sustained in the Courts of the United States.”

Watson observes that “The decision in Johnson v. McIntosh was a crushing defeat for the Illinois and Wabash Land Company, which in 1779 had united the investors in the Piankeshaw (or Wabash) pur-chase with an overlapping group of individuals who had acquired a similarly large tract of land in 1773 from the Illinois Indians.”[3]

It is from this statement that Robert Williams Jr concludes that the Doctrine of Discovery presented itself as a convenient fiction one which masked the Revolutionary era political struggle by which Indian Nations were denied rights and status in their lands.”[4]

Marshall CJ’s authority for his finding of discovery rights in Johnson v. McIntosh was primarily based on historical documents, legal precedents, and his own historical research.

He relied on various sources, including papal bulls, European treaties, historical practice, the Royal Proclamation of 1763, historical accounts, royal charters and grants, colonial laws and policies, the writings of legal scholars and historians, and his own understanding of American history. Marshall sought to establish the rights attendant upon discovery as a recognized legal principle that formed the basis for European claims to land in America.

But was there a Doctrine of Discovery or are subsequent scholars attributing too much weight to Marshall CJ’s dictum? An examination of the decision by Watson describes the doctrine of discovery as a complex and contested concept with varying interpretations among European nations.

It highlights that different European writers had different views on the doctrine, with some believing it only applied to vacant land and others asserting that it applied to territories inhabited by indigenous peoples.

Watson also criticizes the doctrine as a tool of efficient expropriation of Indian lands and argues for its removal from the federal government's political and legal vocabulary. Additionally, he mentions the belief that European discovery of the land diminished the power of Native American nations to dispose of the soil at their own will.

Overall, Watson portrays the doctrine of discovery as a controversial and contentious rationale used to justify European colonization and the displacement of indigenous peoples.

As an example of the approaches to discovery as a means of conferring title some European writers believed that the discovery only applied to vacant or uninhabited land. According to this view, European nations had the right to claim and settle lands that were not already occupied by indigenous peoples.

Other writers argued that discovery applied to territories inhabited by indigenous peoples as well. They believed that European discovery of the land gave them exclusive title and diminished the power of Native American nations to dispose of the soil at their own will.

In fact there was no uniform or universally accepted view of the “doctrine of discovery” among European writers during the age of discovery.

“While the writings of theorists and the practices of colonizing nations lend support for Marshall’s conclusions, the Chief Justice’s claim of “universal recognition” of the principles underlying Johnson v. McIntosh is belied by the historical record. The Illinois and Wabash purchases at issue in Johnson v. McIntosh, whereby native lands were sold in 1773 and 1775 to private individuals, were by no means un-precedented.”[5]

Following upon the starting point of the Papal Bulls, Miller and Ruru rely on Marshall CJ’s statements in Johnson v McIntosh  as support for the assertion of a coherent Doctrine of Discovery. In fact the case has become, according to Miller and Ruru the definitive word on the Doctrine of Discovery in American law, and is the leading case that New Zealand, Canadian, and Australian courts have relied on to apply Discovery in their countries.[6]

What perhaps is significant is the fact that by 1832, Marshell CJ recognized that his history in Johnson v McIntosh was wrong and observed in Worcester v Georgia[7]

“Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the Crown to interfere with the internal affairs of the Indians farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their land when they were willing to sell, at a price they were willing to take, but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.”

“Initially the founding members of the international law community comprised only the Christian and later civilized nations, that is to say the European states and, following its establishment, the United States. However, during European expansion, the European powers and the United States recognized numerous non-European communities as powers capable of maintaining relations under international law. With this recognition, the Indian nations became a part of the international law community. They acquired the ability to act in international law by dint of recognition.

The doctrine of the non-sovereign territories, the "community of civilized nations" and the lack of international law sovereignty of the non European communities as well as the theory of discovery with the concept of civilization justified breaches of treaties and morally legitimized the actions of the Europeans and later the United States. However, from the start, this doctrine was at odds with state practice. The deciding factor in international law sovereignty was to what extent non-European communities were regarded as being willing and able to enter into and observe treaty relations”

This is a significant set back from the suggestion of discovery rights articulated in Johnson v McIntosh. But McMahon suggests that Johnson v Mcintosh  was a reflection of the times.

“The U.S. Supreme Court’s decision in Johnson v. M’Intosh, while it described an elaborate variation of the doctrine of discovery, was very clear: no white court was going to second-guess the conquests of the white invaders. The papal bulls had little to no effect on England or France’s explorations of Canada.”[8]

Dieter Dorr in commenting on Johnson v McIntosh observes that

“In  M'Intosh, Marshall defends his opinion of the history of the colonization of North America. In doing so, he misses the historical practices of Europe, and later the United States, which are a central and decisive factor in international law. The practice of signing treaties with non-European communities represents a remarkable contradiction to the theory of discovery. Today the existence of these treaties is rarely acknowledged, usually found only in individual cases in the European international law literature. The reason for this lack of attention could be that a large number of older treaty collections did not contain colonial treaties”[9]

Miller and Hobbs on the other hand place a great deal of weight upon Marshall CJ’s decision[10]. Professor Miller’s position merely continues to rearticulate the theory that he has developed in earlier publications. They refer to Marshall CJ’s decision as influential and that the Doctrine expressed in that (which has become latterly the Doctrine of Discovery) is one of the earliest examples of international law; that is, the rules that nations agree to abide by in their interactions with other nations.

“As European powers began their voyages of “discovery” and established colonies and empires, they saw the need to agree on rules of conduct that would control their own competition”[11].

From that point Miller and Hobbs rearticulate the ten elements identified by Miller and Ruru in their 2008 article. Perhaps it is hoped that authority will be attracted by mere repetition.

But the passage about rules of conduct is critical to an understanding of the development of the theory of the Doctrine of Discovery. It is clear that it was not – in the fifteenth and sixteenth centuries or after the shift to secular international law – a coherent doctrine expressed as such. It is a concept that has been constructed by the historians of colonialism to explain the conflict between indigenous and colonial people. It has been developed through a critical theory approach of the empowered vs the disempowered and has elements of neo-Marxism to it. European colonial powers did not point to a coherent “doctrine of discovery” to justify their activities. To suggest that this was so is to ignore reality and the fact that the “doctrine” is a modern construct to encompass a critique of colonialism.

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Colonial Developments

Part of the difficulty in anchoring the “Doctrine of Discovery” in Papal Decrees is that these decrees were not applicable to nor recognized by Protestant nations. Early colonization efforts were backed, in the case of the English, by the chartering of Companies by the Crown.

Not only was the chartering of such companies for the purposes of colonization but for the purposes of establishing trade. Thus the Charter for the Virginia Company of 1606 was to grant to the proprietors of the Company “license to make habitation, plantation, and to deduce a colony of sundry of our people into that part of America, commonly called Virginia . . . not now actually possessed by any Christian prince or people.” (my emphasis)

That statement recognized that no other nation had a pre-emptive right to the area of Virginia and recognized the principle of pre-emption as between “discovering” as opposed to occupying nations. The pre-emptive claims were designed to thwart to ambitions of other European powers, especially France and Spain.

The East India Company came into being on 31 December 1600 when Queen Elizabeth I awarded to a consortium of 215 “knights, Aldermen and Burgesses styling themselves ‘Governor and Company of Merchants of London trading in the East Indies’”.

Much of the early exploratory and colonial activity was associated with trade. Indeed, the East India Company Charter was preceded by that of the Levant Company which was formed in 1592 when the Venice Company (1583) and the Turkey Company (1581) merged, because their charters had expired. Elizabeth was eager to maintain trade and political alliances with the Ottoman Empire.

Following the fall of Constantinople in 1453 the Levant trade had declined and this was an effort on the part of a number of intrepid adventurers to reopen trade with the East.

There were no elements of discovery as far as the Levant was concerned nor was any theory or “doctrine of discovery” advanced by the East India Company. Commercial and mercantile activity was the basis for their activity, although the history of the East India Company in India and the Far East involves military and colonial activities.

Colonial powers tried to put in place a pre-emptive right as opposed to other purchasers, to purchase land from indigenous inhabitants. This pre-emptive right is interpreted as against indigenous people and is seen as creating a superior entitlement to indigenous land. That is not the case. What the policy does is pre-empts others from dealing with indigenous land. This is the case with Article 2 of the Treaty of Waitangi which gave the Crown the sole right to purchase land from Maori. However although the word “pre-emption” is used this does not give the Crown pre-emptive rights to title in the first place but pre-emption against any other purchasers. In essence, if Maori were prepared to sell their land, it could only be to the Crown.

As far as the United States are concerned, Miller and Ruru suggest that when Thomas Jefferson initiated the Lewis and Clark expedition of exploration of the North American continent his actions

“exemplified a working day-to-day knowledge of Discovery and used its principles against the Indian Nations within the thirteen states, in the trans-Appalachia area, the Louisiana Territory, and the Pacific Northwest. In fact, Jefferson's dispatch of Lewis and Clark in 1803 was directly targeted at the mouth of the Columbia River in the Oregon Country to strengthen the United States’ Discovery claim to that area.”[1]

This overlooks the fact that at no time was there any suggestion nor reference that any “Doctrine of Discovery” was invoked to support a claim to the lands explored by Lewis and Clark. In fact the upshot of Lewis and Clark’s explorations was that the United States should develop the continental fur trade from the mouth of the Columbia River.

Lewis wrote that the United States “shall shortly derive the benefits of a most lucrative trade from this source, and that in the course of ten or twelve years a tour across the Continent by the rout mentioned will be undertaken by individuals with as little concern as a voyage across the Atlantic is at present.”

Thus, once again trade and commercial activity was a driver for exploration and “discovery”.

There can be no doubt that subsequent American history was dominated by European expansion west. This was to advance American interests across the continent not based on a “Doctrine of Discovery” but rather, as indicative of a young and robust growing nation, was a demonstration of what was termed Manifest Destiny – a term that came to be used after 1845.

In many respects this once again stated pre-emptive rights against other potential colonial claimants to American territory. Miller and Ruru suggest that elements of Manifest Destiny arose from the Doctrine of Discovery but I argue to the contrary that elements of Manifest Destiny are in common with the subsequently developed concept of the Doctrine of Discovery.

Underpinning the colonial aspects of the application of the so-called Doctrine is the restatement by Miller and Hobbs of Miller’s previously articulated 10 aspects or characteristics of the Doctrine and by and large the adoption of the basis stated by Miller and Ruru by Fitzgerald and Young.[2]

The issue is whether or not there was a Doctrine of Discovery that came into play in the early colonization of New Zealand. If there were such a Doctrine I suggest that its existence would have been clear directly or by implication in the development and execution of the Treaty of Waitangi.

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This morning I proof-read a review of Nigel Biggar’s Colonialism: A Moral Reckoning which I shall publish next week. In doing so I had to deal with the suggestion that white supremacy drove colonialism.

In the back of my mind I had an echo of a poem by Rudyard Kipling.

Born in 1865 in Bombay, British India, Kipling’s formative years were spent in the heart of the British Empire. His early exposure to Indian culture, combined with the colonial ethos of his upbringing, deeply influenced his worldview and literary style. Kipling’s experiences in India provided the foundation for much of his work, enabling him to write with authority on the complexities of imperial life.

Some of his works reflect a belief in the inherent superiority of British civilization and its duty to uplift "lesser" cultures bringing the benefits of Western civilization.

One of Kipling’s most famous poems, The White Man’s Burden (1899), epitomizes this theme. Written in the context of the United States’ annexation of the Philippines, the poem extends an imperialist call to action. Kipling exhorts Western powers to take up the "burden" of civilizing non-Western peoples, portraying imperialism as a moral obligation fraught with hardship.

The poem reflects its era. While the poem has been criticized it also reveals Kipling’s awareness of the costs of imperial rule, both for the colonizers and the colonized.

In contrast, poems like Recessional (1897) convey a more introspective and cautionary tone. Written for Queen Victoria’s Diamond Jubilee, the poem warns against the hubris of empire and reminds the British people of their mortality and dependence on divine providence. Lines such as "Lest we forget—lest we forget!" serve as a somber reminder of the fleeting nature of power and the moral responsibilities that accompany it.

Kipling’s poetry also celebrates the resilience and courage of the British soldiers and administrators who sustained the Empire. If—, though not explicitly about imperialism, encapsulates the values of stoicism, duty, and perseverance that Kipling admired in the empire-builders. Similarly, Gunga Din acknowledges the humanity and bravery of an Indian water-carrier serving the British army. That is a favourite of mine but that’s another story.

But the Empire of the Victorian era differed in many respects from the invasion and colonisation of England by the Normans in 1066. His poem Norman and Saxon was published in 1911and is advice from a conqueror about how to deal with the conquered. It perhaps suggests a means by which colonisers may deal with the colonised. And it is good advice irrespective of the time.

Norman and Saxon explores the moment when one member of the conquering race is beginning to understand that while the Saxons may be less civilised, less powerful, and perhaps less sensitive than the Normans, they do, nevertheless, possess distinctive and useful qualities of their own which will not be suppressed. Eventually differences between Norman and Saxon will disappear and be replaced by a distinctive ‘ English’ race. This is barely hinted at in ‘Norman and Saxon,’ though the Saxon qualities which are half-admired by the Norman baron are there to point the way forward.

But one thing is clear. The colonisation in this poem has nothing to do with “white supremacy”. Given that colonisation has been a part of human history since the beginning of time, that suggestion is a fallacy.

The poem reads as follows:

"My son," said the Norman Baron, "I am dying, and you will be heir

To all the broad acres in England that William gave me for share

When he conquered the Saxon at Hastings, and a nice little handful it is.

But before you go over to rule it I want you to understand this:–

"The Saxon is not like us Normans. His manners are not so polite.

But he never means anything serious till he talks about justice and right.

When he stands like an ox in the furrow – with his sullen set eyes on your own,

And grumbles, 'This isn't fair dealing,' my son, leave the Saxon alone.

"You can horsewhip your Gascony archers, or torture your Picardy spears;

But don't try that game on the Saxon; you'll have the whole brood round your ears.

From the richest old Thane in the county to the poorest chained serf in the field,

They'll be at you and on you like hornets, and, if you are wise, you  will  yield.

"But first you must master their language, their dialect, proverbs and songs.

Don't trust any clerk to interpret when they come with the tale of their wrongs.

Let them know that you know what they're saying; let them feel that you know what to say.

Yes, even when you want to go hunting, hear 'em out if it takes you all day.

They'll drink every hour of the daylight and poach every hour of the dark.

It's the sport not the rabbits they're after (we've plenty of game in the park).

Don't hang them or cut off their fingers. That's wasteful as well as unkind,

For a hard-bitten, South-country poacher makes the best man-at-arms you can find.

"Appear with your wife and the children at their weddings and funerals and feasts.                   

Be polite but not friendly to Bishops; be good to all poor parish priests.

Say 'we,' 'us' and 'ours' when you're talking, instead of 'you fellows'  and  'I.'

Don't ride over seeds; keep your temper; and never you tell 'em a lie!"

Kipling also had a deep awareness of the nature of those upon whose shoulders the Empire was built. His poem Tommy was first published in 1890 and was collected under Barrack Room Ballads.

The poem depicts the contemptuous way in which the British soldier of the day was treated. The soldier is praised and feted when he is needed but is shunned when he is not. And Tommy is well aware of the civilian’s two faced attitude.

Here is the poem, written in Kipling’s colloquial voice.

I went into a public 'ouse to get a pint o' beer,

The publican 'e up an' sez, "We serve no red-coats here."

The girls be'ind the bar they laughed an' giggled fit to die,

I outs into the street again an' to myself sez I:

O it's Tommy this, an' Tommy that, an' "Tommy, go away";

But it's "Thank you, Mister Atkins," when the band begins to play

The band begins to play, my boys, the band begins to play,

O it's "Thank you, Mister Atkins," when the band begins to play. 

I went into a theatre as sober as could be,

They gave a drunk civilian room, but 'adn't none for me;

They sent me to the gallery or round the music-'alls,

But when it comes to fightin', Lord! they'll shove me in the stalls!

For it's Tommy this, an' Tommy that, an' "Tommy, wait outside";

But it's "Special train for Atkins" when the trooper's on the tide

The troopship's on the tide, my boys, the troopship's on the tide,

O it's "Special train for Atkins" when the trooper's on the tide. 

Yes, makin' mock o' uniforms that guard you while you sleep

Is cheaper than them uniforms, an' they're starvation cheap.

An' hustlin' drunken soldiers when they're goin' large a bit

Is five times better business than paradin' in full kit.

Then it's Tommy this, an' Tommy that, an' Tommy, 'ow's yer soul?"

But it's "Thin red line of 'eroes" when the drums begin to roll

The drums begin to roll, my boys, the drums begin to roll,

O it's "Thin red line of 'eroes," when the drums begin to roll.

We aren't no thin red 'eroes, nor we aren't no blackguards too,

But single men in barricks, most remarkable like you;

An' if sometimes our conduck isn't all your fancy paints,

Why, single men in barricks don't grow into plaster saints;

While it's Tommy this, an' Tommy that, an' Tommy, fall be'ind,"

But it's "Please to walk in front, sir," when there's trouble in the wind

There's trouble in the wind, my boys, there's trouble in the wind,

O it's "Please to walk in front, sir," when there's trouble in the wind.

You talk o' better food for us, an' schools, an' fires, an' all:

We'll wait for extry rations if you treat us rational.

Don't mess about the cook-room slops, but prove it to our face

The Widow's Uniform is not the soldier-man's disgrace.

For it's Tommy this, an' Tommy that, an' Chuck him out, the brute!"

But it's "Saviour of 'is country" when the guns begin to shoot;

An' it's Tommy this, an' Tommy that, an' anything you please;

An' Tommy ain't a bloomin' fool - you bet that Tommy sees!

In some respects, the sentiments in Tommy come through in the words of Colonel Nathan Jessup in A Few Good Men. This clip says what Tommy  says in a more pungent and dramatic form.

Tommy may have lost some of its initial magic, but it remains a powerful expression of public unease whenever the Army or Armed Forces are neglected by the government of the day.

Unfortunately, this happens with such frequency that “Tommy” remains one of the most quoted, or parodied, of Kipling’s poems in the press. A recent example under the title Tommy in the 21st Century appeared in the Sunday Telegraph on 28 December 2003. One refrain of the verses, which were written by Peter Pindar and subtitled ‘Queen’s speech praises Armed Forces’ (that speech having been written for Her Majesty by the government), was:

Yes, it’s Tommy this, an’ Tommy that, an’ spend less on defence,
But who walks the streets of Basra when the air is getting tense?
When the air is getting tense, boys, from Kabul to Kosovo
Who’ll say goodbye to wife and kids, and shoulder pack and go?

It is sometimes worth thinking about when the buzzwords and the criticisms and the self-righteous tones begin to fill the room.

I have divided the discussion into six articles because the full discussion is very long, covers over 50 pages and 23,450 words and is very detailed. The division into six articles allows for a less intimidating approach and I have tried to divide the full article into thematic sequences.

This “Doctrine” is used by some commentators – mainly academics – to describe the impetus and mindset adopted by Western European colonisers and its use as a justification by those colonisers for the wholesale suppression of indigenous peoples and their culture and the forcible acquisition of their lands. The series goes into some detail in analysing what this supposed Doctrine says and considers some of the authorities advanced for its existence.

The first article (this one) considers an articulation of the “Doctrine” and traces the background to it and the various decrees that were made by the Papacy in the 15^th and 16th centuries.

The second article deals with what I call “Legal developments” and considers the case of Johnson and Grahams Lessee v McIntosh, a decision of the US Supreme Court which is used by advocates of the Doctrine to establish it as a rule of law. The discussion will demonstrate how and why this reliance is misplaced. The second article will then turn to some of the New Zealand developments that are used to support the existence of the Doctrine although no New Zealand case mentions it in that way.

The third article is brief and looks at what I call colonial developments and the basis for colonization. It also considers what principles underpinned the British Government’s approach to colonization utilizing the Treaty process. I am grateful to Ned Fletcher and his excellent book “The English Text of the Treaty of Waitangi” which informs much of the discussion in the third article.

The fourth article, again brief, changes the focus and considers the Doctrine of Discovery as a manifestation of critical theory. It looks at the development of critical theory and post-modernism and the way that it is applied in the areas of racism, critical race theory and colonization and decolonization. The essential argument is that the Doctrine of Discovery has no objectively provable existence but is a critical theory construct.

The fifth article contains a critique of the development of the Doctrine and discusses the writings and views of Professor Paul Moon and his critique of the basis for the Doctrine. Professor Moon observes that the evidence supporting the application of the Doctrine of Discovery to British colonial intervention in New Zealand is limited and subject to debate.  While some scholars and activists argue for its relevance, it is important to note that the historical evidence does not strongly support this claim.  Professor Moon’s critique is examined in some detail.

The sixth and final article considers some other views on the validity of the Doctrine and looks at a supporter of and advocate for the Doctrine which demonstrates the critical theory approach to the Doctrine. The article and series concludes with a summary critique of the essential elements of the Doctrine and concludes that the so-called Doctrine of Discovery as a matter of fact is no more than a fiction. It is of concern that weight is given to this fiction by organisations such as the Human Rights Commission in Maranga Mai as well as other governmental and international agencies. Arguments based on the Doctrine of Discovery should be rejected as being ephemeral “smoke and mirrors” suggestions without objective form and substance. Disputes between colonizing and indigenous peoples should be addressed and dealt with on the basis of observable facts and the historical record rather than theoretical and baseless imaginings.

Introduction

This article is about the Doctrine of Discovery, whether there is indeed a coherent “Doctrine of Discovery”, how the term has been weaponized by academia in the last twenty years or so and how attempts have been made to introduce this questionable theory into the colonial and subsequent history of New Zealand.

The Doctrine of Discovery has been uncritically adopted by some historians and legal academics based primarily upon an assumption of its existence rather than proof thereof.

I start with an articulation of the “Doctrine of Discovery” as it appears in Maranga Mai[1] described as “an historical and phenomenological analysis which shines a light on the impact of colonisation, racism and white supremacy on tangata whenua in Aotearoa New Zealand.”

I then go on to trace the background to and the development of what is articulated in Maranga Mai and attempt to identify some of the anchor points for the theory. The discussion includes a consideration of the case of Johnson & Grahams Lessee v McIntosh[2] and the way that this case has been utilized in the development of the theory.

I shall proceed to consider the way in which the theory has been applied in the colonial context and especially in the New Zealand context. I argue that in fact events have been interpreted to fit within the scope of the theory rather than the theory being a “First Cause” as has been asserted in much of the literature.

I shall also consider the way in which the theory has been deployed to essentially quell any debate or discussion about New Zealand’s colonial history.  A post-truth approach has been adopted with elements of critical theory and neo-Marxism in the development of the theory.

The suggestion is that the theory of the Doctrine is in fact a manifestation of European supremacy, which then translates to white supremacy. The ultimate conclusion deriving from this is that the colonization of New Zealand was anchored in racism. In this way the theory of the Doctrine of Discovery becomes a synonym for racism and a means of vetoing or shutting down any contrarian view.

The article concludes with the suggestion that the Doctrine of Discovery is a theory only. As articulated by the Human Rights Commission it has no historical basis and is an imagined theory by academics who wish to impose their own worldview upon historical and legal theory.

The Human Rights Commission Articulation

There are two passages in Maranga Mai where the “Doctrine of Discovery” is articulated. They read as follows:

“ Indigenous nations at the United Nations have described the Doctrine of Discovery as the driver of all “Indigenous dispossession” (United Nations PFII, 2012).

The Doctrine of Discovery refers to a series of Papal Bulls (Catholic laws) made by the Vatican during the fifteenth century. These decrees provided the rationale for the conquest, colonisation and subjugation of Indigenous peoples and the seizure of their lands.

These racist actions were premised on the basis that non-European, non-white and non-Christian peoples had forfeited their rights of independent sovereignty, ownership of land and natural resources to what was presumed to be a superior European power.

The doctrine became part of international law through a series of landmark cases, such as, Johnson v. McIntosh[3] in the United States, where judges ruled that Western states that had taken possession of Indigenous lands immediately acquired a radical title to the land and could extinguish Indigenous ownership at will.

The Doctrine of Discovery has never been rescinded. In Aotearoa, Lieutenant William Hobson under the doctrine, declared sovereignty over Te Waipounamu (The South Island) in 1840 and claimed it for the Crown. In 1840, The Treaty of Waitangi (English version) was partially signed and mainly by North Island rangatira. Nevertheless, the British Crown proclaimed sovereignty and cession under the doctrine and the treaty.[4]

The doctrine paved the way for colonisation of Aotearoa, underpinned the establishment of the New Zealand government and its legislation, and established the white supremacy and systemic racism which exists today. Through colonisation, premised on the notions of racial superiority outlined in the doctrine, tangata whenua were displaced from their traditional lands, territories and resources.”[5]

The second passage reads as follows:

“The Romanus Pontifex (1455) legalised the taking of lands from Indigenous peoples in new worlds without their knowledge or consent. Alongside other Papal Bulls, this emerged as the Doctrine of Discovery that articulated a violent European Christian entitlement to seize ‘discovered lands’. This led to the destruction of Indigenous economies (Taonui, 2021) and “the genocide and deaths of millions of men, women and children” (Jackson, 2019).

Aotearoa New Zealand was first colonised by the British Crown under an international legal principle known as the Doctrine of Discovery. This fifteenth century Papal Bull asserted that non-Christian, Indigenous peoples inhabiting ‘discovered lands’ were enemies of God, less human than Europeans and therefore their land could be taken from them. This was key to the authority by which the British Crown first gained its sovereign and property rights in Aotearoa.

The doctrine is still recognised under international law insofar as it has never been repudiated. In this way, it continues to underpin the position of the New Zealand government and its legislation.

The authority New Zealand Governments use to exercise legal rights over Māori lands and to control Indigenous people derives from the Doctrine (Ruru J. & Miller R.J, 2008). The United States, Australia and Canada were also claimed and colonised under the Doctrine of Discovery.

In 2012 the United Nations Permanent Forum on Indigenous Issues recommended the doctrine be repudiated, and in 2013 that it be denounced, describing it as the “shameful” root of all the discrimination and marginalisation that indigenous peoples face today (United Nations PFII, 2012-2013).

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) fourth preambular paragraph refers to the doctrine when it states:

Affirming further that all doctrines, policies and

practices based on or advocating superiority of

peoples or individuals on the basis of national

origin or racial, religious, ethnic or cultural

differences are racist, scientifically false, legally

invalid, morally condemnable and socially unjust

(UNDRIP 2007).

The Inter-Caetera (1492) set a goal of dividing Indigenous lands and territories between colonising Western powers. The Inter-Caetera was influential to the recognition of the Doctrine of Discovery in international law (Johnson v McIntosh 1823, 21 US 543). This doctrine provided that “newly-arrived Europeans automatically acquired property rights in the lands of indigenous peoples and gained political and commercial rights over the inhabitants” (Ruru, 2010, p.14).

Whether treaties with colonised peoples were harsh, benevolent, obscure, or absurd, they served as a mechanism between European nations for signalling and dividing areas of interest to each other. This system, which came to be known as the Law of Nations (European), also served as a way of temporarily suspending intentions to obliterate colonised peoples. Hence, treaties secured with the good faith of indigenous peoples were frequently broken by colonisers long before the ink had dried on the parchment (Taonui, 2021).

In Aotearoa, the Doctrine of Discovery “underpinned the European belief in their right to set up government sculpting societal reasoning of European superiority over all who are non-white and non-Christian alongside a supreme European entitlement to all non-white, non-Christian lands and resources” (Ngata, 2019).

The early decision of the New Zealand courts in R v Symonds (1847) (NZPCC 387) found that rights of land ownership “cannot be extinguished (at least in times of peace) other than by the free consent of the Native occupiers” (p.390). However, recognition of Māori customary title was rejected by Judge Prendergast in Wi Parata v Bishop of Wellington (1877) (3 NZ Jur (NS) 72) in favour of the Doctrine of Discovery (p.78).

In his ruling, Judge Prendergast stated that the Treaty of Waitangi was a simple nullity, which remained the default position of the New Zealand courts for over a century.

It was not until the Court of Appeal’s decision in Attorney-General v Ngati Apa (2003) NZLR 643 that the Wi Parata case was overruled, and

recognition of tangata whenua customary title was restored (paragraphs [13], [31] and [183] – [185]).

In response to the Court’s decision in Ngati Apa, Parliament passed the Foreshore and Seabed Act 2004, to affirm Crown sovereignty in foreshore land (section 13). This legislation was repealed in 2011 when Parliament enacted the Marine and Coastal Area (Takutai Moana Act) 2011 which declared that “[n]either the Crown nor any other person owns, or

is capable of owning, the common marine and coastal area” (section 11(2)). This Act, while repealing Crown ownership, also continued the Crown denial of tangata whenua rights of title to land, marine

and coastal areas.[6]

The assertions about the Doctrine of Discovery in Maranga Mai are presented in a sequential manner, covering various aspects of its role in New Zealand's colonization.

The report claims that the Doctrine of Discovery formed the philosophical and legal basis for Britain's colonization of New Zealand and suggests that a series of papal bulls issued in the fifteenth century provided the rationale for the conquest, colonization, and subjugation of indigenous peoples and the seizure of their lands.

It also mentions that the Doctrine of Discovery is embedded in international law and continues to have relevance in New Zealand's legal framework

In summary there’re there are four major points about the Doctrine of Discovery that arise from the Maranga Mai articulation and they are as follows:

1. Origin of the Doctrine: The Doctrine of Discovery refers to a series of papal bulls issued by the Vatican in the fifteenth century.

2. Application of the Doctrine to New Zealand: New Zealand was colonized by the British Crown under the authority of the Doctrine of Discovery.

3. Status of the Doctrine in International Law: The Doctrine of Discovery became part of international law through landmark cases.

4. Current Status of the Doctrine in New Zealand: The Doctrine of Discovery has never been rescinded and is still recognized under international law.

These assertions about the Doctrine raise some interesting questions the first of which must be how it was that the Doctrine of Discovery came to be developed and first propounded.

Anchor Points for the Theory

Robert Miller and Harry Hobbs consider what I call the anchor points for the theory in a lengthy article entitled “Unravelling the International Law of Colonialism: Lessons from Australia and the United States”.[7] Professor Miller has been very influential in developing the theory of the Doctrine of Discovery and his other writings will be referenced in this article.

Miller and Hobbs assert as follows:

“The international law of colonialism dates from at least the early fifteenth century. Today, it is known as the Doctrine of Discovery (“DoD” or “the Doctrine”) because of the very influential two-hundred year-old United States Supreme Court case, Johnson v. M’Intosh. The Doctrine is one of the earliest examples of international law; that is, the rules that nations agree to abide by in their interactions with other nations.

As European powers began their voyages of “discovery” and established colonies and empires, they saw the need to agree on rules of conduct that would control their own competition”.[8]

Two significant points arise from this passage. The first is that main support for the DoD comes from the US Supreme Court case of Johnson v M’Intosh which I shall discuss later.

The second point is that the passage is critical to an understanding of the development of the theory of the Doctrine of Discovery. It is clear that it was not – in the fifteenth and sixteenth centuries or after the shift to secular international law – a coherent doctrine expressed as such.

The DoD is a concept that has been constructed by the historians of colonialism to explain the conflict between indigenous and colonial people. It has been developed through a critical theory approach of the empowered vs the disempowered and has elements of neo-Marxism to it which I shall discuss in detail later in this article. European colonial powers did not point to a coherent “doctrine of discovery” to justify their activities. To suggest that this was so is to ignore reality and the fact that the “doctrine” is a modern construct to encompass a critique of colonialism.

Miller and Hobbs go on to make some other interesting assertions.

“Of all the countries in the world, the United States still appears to be the only one that has recognized in the past, and still recognizes today, Indigenous sovereignty. The U.S. Constitution from 1787 clearly recognizes Indian nations as governments that interact with the United States through Congress and treatymaking and explicitly recognizes Indian individuals as citizens of their own governments who were not federal or state citizens.”[9]

This sweeping statement is clearly grounded on a narrow view of colonial developments especially in the Nineteenth Century and flies in the face of the New Zealand situation where the Treaty of Waitangi[10] in February 1840 clearly acknowledged indigenous (Maori) sovereignty and preserved tino rangatirataga.

The theory becomes an assertion of fact when Miller and Hobbs state:

“The Doctrine of Discovery is one of the earliest precepts of international law. European countries developed the doctrine to control and lessen competition and risk of war amongst themselves as they sought to establish empires and colonies in the non-European, non-Christian world. This international law of colonialism was ultimately adopted and applied nearly uniformly by all Euro-American countries from the fifteenth throughout the twentieth centuries. Distinct elements of this international law continue to be applied in settler colonial societies. The devastating results on Indigenous nations and peoples continue to this very day.”[11]

It is incorrect to say that European nations developed the Doctrine to control and lessen competition between themselves. There is no evidence of a crystallised DoD present at the beginning of or during the Age of Discovery. What is correct is that international law developed as a means of regulating conduct between nations in certain circumstances.

The decrees and various Treaties emerging from and encouraged by the Papacy which will be discussed later in this article were designed to reduce the likelihood of conflict between nations when it came to territorial claims of newly discovered lands. Some of the rules that developed were designed to pre-empt conflict. Thus if explorer nation A discovered, hoisted its flag and claimed an island it had a pre-emptive right to that island as against explorer nation B who might later come upon the island in question.

So the assertion by Miller and Hobbs is only partially correct to suggest that the development of this pre-emptive right was a precept of the DoD. In fact different European nations had different approaches to colonialism with varying affects – most of them adverse – on indigenous people. Belgian colonial policy in the Congo is perhaps the most extreme example of a colonial policy that was anything but benevolent to the indigenous people of the region. Therefore to suggest that the DoD as a precept underpinned the international law of colonialism and to suggest it was applied uniformly by “all Euro-American countries from the fifteenth throughout the twentieth centuries” cannot be supported.

The Origin of the Doctrine

Read more

On October 9 and 10 I posted two articles about proposals in Australia to address misinformation and disinformation. The articles can be found here and here.

The Bill before the Australian Parliament was the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024. What was proposed – in brief – was that social media companies would be forced to police misinformation and disinformation on their platforms.

Did you notice the use of the past tense.

The reason for that is that the Australian Government has scrapped the Bill which was widely criticized by legal experts, media companies and the Opposition.

On the morning of Sunday 24 November 2024 Communications Minister Michelle Rowland confirmed the misinformation bill was dead.

She made the following comments:

"Based on public statements and engagements with senators, it is clear that there is no pathway to legislate this proposal through the Senate,"

The Coalition committed to legislating safeguards when in government, but chose to place partisanship above any attempt to navigate the public interest."

The Labour Government needed support from the Greens who said they would vote against the Bill in the Senate. The Greens spokesperson Senator Sarah Hanson-Young described the Bill as “half-baked”.

"[It] was with all good intent, this policy, but badly and poorly explained and implemented. The practical implementation was just not there.”

The withdrawal of the Bill was hailed by Opposition Leader Dutton who said

“as a win for free speech and democracy. No minister and no bureaucrat has a monopoly on truth. And yet, Labor's legislation sought to make government and unelected bureaucrats the arbiters of truth."

I considered that the major unspoken premises behind the Bill are designed to ensure orthodoxy of messaging. If it were to act as a discouragement to platforms to do business in Australia it is a simple matter for citizens to access the information offshore. VPNs are one example. There are others. As Charles Clarke said, many years ago “The answer to the machine is in the machine”.

This would have had serious implications both in the context of respect for the law as well as the enforceability and practicality of the law.

The withdrawal of the Bill is a major victory for the free exchange of ideas – no matter how wrong-headed they might be. A further positive step would be to withdraw the proposals limiting access to social media by young people under a certain age.

The implications of that proposal are frightening in that if access to social media was dependent upon an age verification system, the database could potentially mean that every citizen would have to be registered. And of course the database would be a State one.

What is it about the Governments of the Left that they are so insistent upon control – not only of the messaging but also of the whole population?

This is an article about an article. It demonstrates how the news media or a journalist may slant a story for a particular purpose by paragraph positioning and structure.

The article in question is headlined “New Zealand’s housing crisis: Older Kiwis in large homes, younger families struggle.”

The moral premise that sits behind the article is that those usually older members of the population who live in large houses are denying that part of the housing stock to those who have a greater need.

This thinking was well articulated by Marx in his 1875 Critique of the Gotha Programme - Jeder nach seinen Fähigkeiten, jedem nach seinen Bedürfnissen – From each according to his ability, to each according to his needs.

The article (which I reproduce in full below) starts with a statement that is designed to shock.

“Many four-bedroom houses nationwide are lived in by only one or two people, new data shows.”

The article then goes on to state the data, refers to the census and also the distribution data.

It then contains a loaded statement

“People living in homes bigger than they need are sometimes blamed for restricting housing supply.”

To provide evidence that this is an example of exclusion of a proportion of the market by selfishness, reference is made to a paper by Richard McLaughlan of Victoria University who says that large dwelling which could cater for growing families are being underutilised by the older generation. He suggests that there could be a programme to provide for homes that would better suit this cohort of the population.

LinkedIn indicates that McLaughlin is a Senior Policy adviser at the Inland Revenue Dept and holds a conjoint Bachelor’s degree in Law and Commerce with a major in Public Policy.

McLaughlan’s paper was published in (2020) 16 Policy quarterly (Victoria University of Wellington. Institute for Governance and Policy Studies). Does this fit the description of “New”.

The paper recommends incentives to the older generations to downsize to smaller homes towards the end of their life cycle as a possible solution to the intergenerational inequality regarding access to affordable housing in New Zealand and examines the housing supply and demand factors facing millennials, particularly in contrast to those that faced baby boomers.

The article goes on to enlarge upon the nature of what is perceived as a problem and why it is that older people are retaining their homes, which co-incidentally are large and were formerly homes for a family unit.

Reference is made to “spare bedrooms”, people “consuming more house than they need” “and underutilised housing”. Note that the language is emotive.

Once again the emphasis is on need. I will get to the other side of the argument shortly.

Observe the use of language – of the loaded language of judgement and implied criticism.

Up until this point there has been the description of a problem. Once the problem is identified the hunt begins for who should be blamed. The approach is to make the problem a moral issue. And the language of Marxism is employed with a particular focus on need.

Casting the argument as a moral problem and making a judgement – you have a bigger house than you need and you should move to somewhere smaller – is the focal point of the article and is all expressed in the first few paragraphs. A confronting statement followed by reference to data and the opinion of a policy analyst.

The problem is that there are rights – property rights – that get in the way of the article’s moral “imperatives”.

The article quite properly records these, but it seems that those rights arise more as an afterthought – a grudging acknowledgement rather than a right. This is all controlled by the author with assistance no doubt from a sub-editor.

 Kelvin Davidson of Corelogic makes a rather late appearance in the article. This demonstrates the power of structure. The major moral arguments have been made. Oh, and by the way there is a legal issue to be considered here.

Mr. Davidson properly remarks that downsizing or moving is a matter of choice for the individuals involved. There is no moral imperative that demands downsizing.

Ed McKnight of Opes Partners – again appearing late in the article – observes

“most people valued having extra space and sometimes a spare bedroom might be doubling as an office.

And, although it might not be lived in all year round, they’re often used for friends or family to stay.”

On the other hand it seems to me implicit in Shamubeel Eaqub’s comment that there should be downsizing but asking people to do so is not easy.

Mr. Eaqub also points to overcrowding  in poorer communities although there may be other imperatives in play than simply not enough homes.

When we look at the structure of the article the moral nature of the problem is emphasised at the beginning. This is where structure is critical. Many readers will have paid attention to the first few paragraphs, but possibly may have flagged by the time the stats and numbers were put forward. Thus the arguments of Mr. Davidson and Mr. McKnight would warrant flagging attention. The only reason they are there is for balance.

The subtext of the article is that selfish old people who own their own homes and have more rooms than they need are keeping young families out of the housing market, ignoring the fact that it may be difficult for a young family to afford one of these larger homes.

What the article is silent upon, and what should have been emphasised at the outset, is that these homes are the lawful property of the occupants. They have been purchased by the owners who have legal title to them.

Ownership is not absolute. You can’t do anything you like with your property. Council by-laws get in the way. The Resource Management Act imposes restraints.

But no one (yet) can force you to move.

It may be that the four bedroom house is now being occupied by two people. The children have moved on. The mortgage has been paid. A room is available for guests or visitors or family visits. A bedroom may have been transformed into a study/library. The garden provides a valuable opportunity to commune with nature, grown plants and vegetables and enjoy the fresh air – especially in summer.

All these aspects of property ownership have arisen in the main from hard work, careful financial management and a desire, now that the children have left and the mortgage is paid off, to enjoy the fruits of the owners’ labour.

Yet here we have some self-righteous Lefties demanding, without any legal rationale, that the property be sold and that the owners downsize. Who are they to determine that need is based on a ration of occupants to rooms? Who are they to dictate moral requirements to property ownership?

In my view John Locke’s labour theory of property rights trumps the whining of the Socialists. Locke proposed his theory of property rights in the Second Treatise of Government in 1690. The theory explains how people can acquire private property through labour. Locke's theory is still influential today and has shaped government policies and individual beliefs and behaviours.

So when it comes to articles of this nature, read them carefully. Focus not only on the words, but how they are used. Look at the structure of the article. Does it make its strongest points first. The Herald actually has developed the habit in some articles (but not this one) of isolating three main points that the article raises (if a form that looks suspiciously like AI has been deployed) What about the use of language? Is it emotive or are the arguments expressed in such a way as to generate an emotional response?

And importantly, check out the provenance of the article and its author. This article came to my attention via the Herald. In fact it originates from Radio NZ – known by some as “Red Radio”. The author of the article is described as Susan Edmunds, Money Correspondent. A brief bio can be found here.

The article as it appeared in the Herald for 19 November 2024 follows.

______________________________________________________________

“New Zealand’s housing crisis: Older Kiwis in large homes, younger families struggle.”

Many four-bedroom houses nationwide are lived in by only one or two people, new data shows.

Census data reveals the proportion of homes with four or more bedrooms being lived in by one or two people is as high as 62% in Thames-Coromandel, 56% in Kaikōura, 54% in Buller, Central Otago and Westland, and 55% in the Mackenzie district.

In Auckland, it is 27%, Wellington 30% and Christchurch 36%.

People living in homes bigger than they need are sometimes blamed for restricting housing supply.

A 2020 paper by Richard McLaughlan of Victoria University suggested there were many large dwellings more suited to young and expanding families being “under-utilised” by the older generation. He said there could be a system of financial incentives and Kiwibuild-style development to produce homes that might better suit these people.

McLaughlan said the tax system also created an incentive to stay in large houses in well-located areas, in return for increases in equity.

The proportion of homes with two or more spare bedrooms has increased substantially since the early 1990s.

It was 40.3% last year, compared with 30.2% in 1991. During this period, the composition of households has changed while homes have increased in size.

There are almost 687,000 houses nationally with two or more bedrooms spare and almost 550,000 with one bedroom spare.

Infometrics chief forecaster Gareth Kiernan said the growth had been largely among people aged 65-69 and 70-plus.

“This result is probably at least partly due to improved health outcomes, which mean people are able to continue living independently and in a bigger home for longer than in the past.”

He said it was a multifaceted issue.

“There has been a trend towards larger houses up until about 2010 that has meant there has been an increasing proportion of people who are consuming more house than they need. We’ve also had an ageing population, and with older people naturally more likely to have under-utilised housing because their children have left home but they are still living in the family home, there’s a larger proportion of people falling into this category.

“I think we’ve also seen a gradual change in behaviour over the last 30 years, where more people are now choosing to retire in the main centres rather than moving to Tauranga — as it was in the 1990s, the Kāpiti Coast or Timaru. Without that catalyst of moving to a retirement location and naturally downsizing as part of the process, it means there will probably be a greater proportion of older people who continue to live in the family home and have under-utilised housing.”

CoreLogic chief property economist Kelvin Davidson said if people with excess space moved to smaller houses it would help ease supply pressures.

“But that’s a choice for the individual to make and ultimately, I’d still just say that building more houses in future — of the right size, type and location — is still the best approach.

“The Government is obviously pushing pretty hard on that right now.”

Opes Partners economist Ed McKnight said most people valued having extra space and sometimes a spare bedroom might be doubling as an office.

“And, although it might not be lived in all year round, they’re often used for friends or family to stay.

“I also wouldn’t look at this thinking that some people are hoarding rooms. For instance, a young couple might decide to buy a three-bedroom house even though it is just them. Their plan might be to have two children, each with their own room. Or they might have one as a child’s room and one as a guest bedroom.

“Similarly, a quarter of households have just one person. But that person might value having the extra space, for instance, if they are a parent who likes to have their children and grandchildren to stay. What this data shows is that many Kiwis are willing to spend the money to have extra space because that is how they want to live. And if that’s how they want to allocate their spending, then that can make sense for their situation.”

Economist Shamubeel Eaqub said asking people to move to smaller homes was not easy.

“There’s an issue of where people go to downsize. As there is often insufficient stock of smaller homes — and slow supply — meaning selling a big old house doesn’t necessarily buy you a smaller-sized home that’s suitable for an older person.”

People often wanted to stay in their communities, too, Eaqub said.

He said the data also showed the heaviest crowding was happening in areas such as Māngere-Ōtāhuhu, Ōtara-Papatoetoe and Manurewa.

Porirua, Gisborne, Ōpōtiki and Kawerau also had relatively higher levels of crowded homes.