On 2 September the Supreme Court announced their decision in Hamed v R. Appearing before the Court were members of the Tuhoe ‘terrorist’ cells that had been training in the Ureweras. They had been arrested and charged with firearms offences after earlier charges of terrorist activity under the Terrorism Suppression Act had been dropped.
At issue was whether secretly filmed evidence by the police was admissible. It is a fundamental rule of our criminal justice system that the evidence used to convict someone has to be properly obtained. The police cannot obtain evidence contrary to law. For the public to have any confidence in the performance of the police, evidence must be gathered properly.

In Hamed the appellants claimed that the video evidence used against them was obtained by the police illegally as their search warrants did not give them the power to covertly film the group’s actions. The Supreme Court’s decision is lengthy, and true to form every Judge had their own drum to beat. However the result was that at least in relation to the more minor offences, the police had acted unlawfully. As a consequence the evidence could not be admitted at trial.

Up to this point the Rule of Law was clearly being followed. The Police, as agents of the Crown, had acted outside of the legal authority that Parliament had given them, and the Courts had rightly slapped them down. This was the Rule of Law in action, performing as a check on the unfettered power of the State.

However, it was what the Government did next that raised the hackles of many. The result of the case threw doubt on similar video evidence being used in other trials. Embarrassingly, even though the police knew what they were doing was illegal, they had done it anyway. Many cases (most probably serious drugs trials) relied on illegal evidence. The Crown needed a solution, and fast.

On 27 September the Government introduced the Video Camera Surveillance (Temporary Measures) Bill and announced that it would be passed under urgency. It’s often said that “haste is the enemy of good law making “, and this time it was certainly true. The bill was a constitutional travesty. There were many problems—as academics Dean Knight from Victoria and Andrew Geddis from Otago quickly pointed out—but the biggest outrage was the bill’s attempt to retrospectively validate the actions of the police.
It is a fundamental feature of the Rule of Law that the Government should never reach back in time and punish us for things that were not originally illegal. What the bill was attempting to do was a variant of this. By reaching back in time and approving of police conduct that was not originally lawful, the Government was acting contrary to the Rule of Law. They were also handing the police a free pass, trampling on the rights of defendants in the process.

However, the Government was not expecting what was to happen over the next three days. Every political party (except National) panned the bill, demanding that it go to Select Committee. Realising they didn’t have the numbers, National relented. In the space of 24 hours, the Select Committee received over 438 submissions on the bill. All of them, bar one, were opposed. Interestingly, many submissions came from law students, aghast at the Government’s attempt to change the law so arrogantly. As a consequence of these submissions and changes suggested by the Labour Party, the bill was significantly watered down and no longer breaches the Rule of Law as egregiously.

The controversy over the Video Camera Surveillance (Temporary Measures) Bill tells us something interesting. On the one hand it demonstrates the danger of government when it does not abide by our fundamental constitutional principles. But on the other it also demonstrates the strength of our political constitution. New Zealand’s constitution is unwritten; this means it is flexible but it is also more delicate. Checks on the power of government rely on the constant activism of impassioned individuals.

This is my last week at law school after nearly six years of study. In all honesty I leave with a heavy heart. But I go buoyed by the fact that as this Bill demonstrates, law school is a place that creates citizens who care deeply about their constitution, their government and their country. And in a society where the Rule of Law is so fragile, I can’t think of anything more valuable.

My concern is not directed at what political parties say or what they do, instead it’s directed at the political space in which they talk. Something is missing from our generation’s politics. Something important, and it’s been lost.

Former Prime Minister of the United Kingdom, Tony Blair, said the that most important thing in politics was the power of ideas. What he meant by this was not that political parties were going to win hearts and minds by proposing new, populist policies. Instead, he meant that in order for politics to work properly, in order for it to matter, it needs to be based on a vision.

Visions, principles, values—these are amorphous things but they matter. Trying to pin them down and make them real is always a challenge, but its important. But in contemporary politics the power of ideas is conspicuously absent. And it has been since the late 1980s.

Thats not to say that ideas are not acknowledged. They are. But they have transmogrified into something more vulgar. Major political leaders now only pay lip service to values. Evocations of freedom, equality, personal responsibility, environmentalism or reason are bound up in the discourse of brand and image, not ideology or vision.

This represents something that is increasingly disturbing about the role and importance of politics in peoples lives. The Harry Potter generation no longer see politics as something that is empowering, or as something that can make our collective lives better. Our parents did, as did theirs before them. Earlier this year in the Dominion Post, Professor Jon Johansson said that if you truly want to meet a cynical person, talk to someone aged under 25. I think he has a point. The oft quoted reason for this is because our generation is blasé and apathetic. That probably plays a part—but as an explanation it is entirely insufficient. It is simply describing a sociological symptom, not a cause.
The reason for this disconnect is more fundamental. It goes to the heart of how our generation views the sociological role of politics. Since the mid 1980s, the power of political change and of political thought has become increasingly undermined by politicians, perhaps inadvertently. The rise of the individual has inherently shunned the importance of politics (of any ideological persuasion) as a force for good. Apparently, politics is now no longer needed to regulate society, it has been rendered defunct, superfluous to requirements. Instead, individuals acting according to their own interests will eventually lead to order and stability. Because we are rational, obviously.

The result of this was that politicians or political activists are no longer seen as visionaries—but instead as managers. Democratic elections have become an exercise in consensus over who we can trust to “run” the country. They are a competition for who we can trust to ensure that the apparatus of the State, along with the services we need to oil the wheels of individualism, are looked after and protected. Government, and the politicians who manage it are engineers within a system. There to keep us safe from unseen threats—the most obvious being international terrorism.

Ironically, it was Tony Blair and his third way Labour Government that contributed in the most obvious way to the removal of the political from politics. In the early years of his administration the British State was transformed from a vehicle that promoted patrician values to a public choice machine that simply provided people with whatever they wanted.
New Zealand’s own experiences of State reform during the 1990s and 2000s was similar. Even within a leftist-social democratic framework major policies were directed at the individual or the family—not at the nation, as part of a progressive vision.

The current National-led government personifies this insipid “govern by the numbers” approach to political life. This is reflected in the legacy of the last generation of student politicians—of which I would consider myself a part. Inadvertently or not the approach has been to manage the competency, sustainability and viability of our student institutions. It has not been to promote a vision about what it could be or what it should be for. This is nobody’s fault—a fact that frustratingly reflects a political culture which subconsciously shuns the political.

In order to break this cycle there needs to be resurgence in the power of ideas. There needs to be a re-appreciation of the importance of ideology. Not of only one, but of all ideologies—from the Libertarian right to the Communist left. Scarily, it is only the fringes of political society, the tea-partiers or the anarchists, who still cling to Utopian dreams. But they are only heard loudly because they are the only ones talking. We must have a conversation that drowns them out.

The purpose of politics is not just to figure out who gets what, where, why and how. It is to try to imagine how to create someone different. Without re-injecting the political back into politics we, both as individuals and as a collection of individuals, will never figure out how to change the world for the better.

It’s been a long time coming—first bid for by the fifth Labour Government in 2005 and finally implemented by the current National-led Government, it was intended to showcase New Zealand to the world.

To an extent it has done that. While opinions on the opening ceremony have been divided, most New Zealanders have warmly embraced this sporting phenomena.
But some of them have not. Particularly in the urban enclaves of Wellington, much vitriol has been heaped on the Rugby World Cup. Some of it is clearly justified, and some of it is not.

There are two major problems that eventuate when major sporting events such as the Rugby World Cup, or the Olympics take place. The first is the monumental challenge that government faces in order to get things ready in time, and ready to work effectively. The law, and how it is dealt with has an important role to play in this. For example, the restrictive limitations of the Resource Management Act 1991 made things difficult for government when upgrading our stadiums. The Minister for the Rugby World Cup, Murray McCully, even contemplated passing legislation to temporarily over ride the RMA. Thankfully he didn’t need to—but it does demonstrate the pressure that the government was under.

The Local Government Act 2002, and the Local Government (Rating) Act 2002 also have an impact. They provides the authority for City Councils to levy rates. Aucklanders alone have contributed over $100 million to the Rugby World Cup. Here’s hoping there is a decent return on their investment.

The second problem is more visceral. Along with the revelry, tournaments have a darker side. Public drunkenness, assaults and sexual violence are the unwanted underbelly of major sporting events. Here too, the law has a role to play in ensuring people are protected, managed or have somewhere to turn when its time to right a wrong. Regrettably, over the next six weeks judges can expect to see the criminal law getting a good run-around.

I’ve been following how my friends and peers have reacted to the Rugby World Cup, and their differing responses have intrigued me. On the one hand there is a clear appreciation for the opportunities that the RWC can bring. It is after all, an international festival. One where different peoples from around the world come together to celebrate a shared passion. You don’t need to be a rabid fan of rugby to appreciate the commonweal that major events like this bring. The vast majority of cup goers are well-meaning, tee-totaling families who just want to enjoy a fun, collective experience.

But on the other hand there has been an outpouring of pre-emptive vitriol against the Cup. One well read blog, and commenters on the Facebook page of the Wellington Young Feminist’s collective, immediately attacked the World Cup as being a vehicle for sexual violence, gender discrimination and patriarchy. There is undoubtably a serious point here. Sexual violence against women, homosexuals and gender minorities is an abhorrent and unacceptable consequence of many major sporting events. After the opening ceremony in Auckland on 8 September a gay bar owner was assaulted in K Road. This is just the tip of the iceberg. There are likely to have been more incidents, and many will go unreported.
It’s hard to reconcile these two points of view, both have valid arguments. Major events should be safe environments where everyone, irrespective of gender, can participate in peace. My ideal Cup would be one where the coercive power of the law is unnecessary. Squaring the two points of view is difficult. My disquiet comes from way the Rugby World Cup has become instantly polarised. One can be opposed to sexual violence and gender discrimination, and even make the argument that major sporting events contribute to the problem in significant ways. But one can also enjoy a game or two of rugby and still call themselves a feminist. If certain feminist discourses become uniformly entrenched they can become in and of themselves, disempowering.

By instantly framing the Rugby World Cup as a battle between the primeval forces of male babarism and the enlightened Amazons of feminism we don’t really get anywhere. This is a problem, because its absolutely vital that we do. Nuanced discussions of gender, violence and rugby are invaluable to a more complete understanding of privilege and partriachy. How we utilise, apply and reform our law is ultimately predicated on the result of that conservation.

On the one hand, they provide a place where students can learn new things, gain new knowledge and equip themselves not just with skills, but with a career. On the other, they are the locus of an intellectual community, one that contributes to what we think, feel and care about.

Those two objectives are often in competition, but both are a priority. As a consequence Government has always had an odd relationship with its universities.
Universities used to be set up by their own Act of Parliament, but now they are Crown Entities. To an extent governments can control what they can or can not do. But they are also functionally independent. While the government pays (most) of the bills, universities still have the power, and some would say the responsibility, to call any government out on its bullshit.

Tertiary organisations are set up by the Education Act 1989. Its an incredibly powerful and wide-ranging piece of law. It establishes the rules around universities, NZQA, the Tertiary Education Commission, and even the membership of student associations such as VUWSA. That list is just a snapshot. The Education Act covers a lot, it does a lot, and it’s complicated.

The Education Act acts a gatekeeper on when a new university can be created. Section 162(4)(a) outlines the things a university must have in order to be a proper university. The requirements are conceptually powerful. They include: a focus on intellectual independence, the interdependence of research and teaching according to international standards, acting as a repository of knowledge and expertise—and crucially, acting as a critic and conscience of society. Its very difficult to fulfill all these requirements, and as the case of Attorney-General v Unitec Institute of Technology demonstrated, some governments are firmly against the idea of there being any new universities at all.

It the requirement that universities act as a critic and conscience of society that has proven to be the most contentious. By law, universities are expected to question controversial things. That, and the enshrinement of academic freedom in section 161 of Act, puts universities in a powerful position to get all up in other people’s business.

Take for example the recent case of Margaret Mutu, head of the University of Auckland’s Maori Studies Department. Last Monday she came out in support of a Department of Labour report, which asserted that Maori are more likely to be anti-immigration than any other racial group.

Much of the media reaction to her comments has focused on what she said—and for good reason, her comments were pretty inflammatory. But there has been little attention given to why she could say what she said. Unlike the racist rantings of Kyle Chapman, former head of the New Zealand National Front, Mutu was using her position of academic authority to challenge New Zealand’s view of race relations.

Personally I don’t agree with her, but I was intrigued by what her comments achieved. In a way she was doing exactly what the Education Act required of her. She was acting as a critic and conscience, and was using her academic freedom to put forward a fairly challenging point of view. The senior management of the University of Auckland couldn’t do much to quiet her and in fact have publicly backed her up.

What this demonstrates is that the law actually puts academics in a far more powerful position than students realise, and also perhaps more than some academics realise themselves.

Universities have always been the places where radical ideas have been fermented. It was the protests and then massacre of students and academics at the University of Tehran that sparked the Iranian revolution of 1979. The ideas developed at the University of Chicago in the 1980s changed the face of global economics and politics. Closer to home, organisation against the Springbok tours was located in and around our universities. Margaret Mutu’s contribution pales in comparison, but is part of the same concept; universities are here to do more than simply churn out the next generation of lawyers, accountants, and Briscoes Managers.

But the legal framework that universities operate under creates difficult tensions. Although they are functionally independent from government, the vast majority of a university’s bottom line comes from the taxpayer purse (either through direct funding or student fees). This means that Vice Chancellors must always be walking a tightrope. Part of their mission is to push the boundaries, but push it too much and they may find themselves wanting in the next budget round.

However, a university community should never shy away from vocal expression. Margaret Mutu’s statements were brash, but they were also comparatively rare. Self-censorship in any large organisation is perilous, even career-damaging. But academics have a responsibility to air harsh truths. Perhaps they need to take a page from Mutu’s book and remember that according to the law they are expected to speak their minds.

Throughout New Zealand’s history homosexuals have felt the harsh sting of injustice. Here, consenting homosexual acts were illegal until 1986. In the United States, it wasn’t until the Supreme Court decision of Lawrence v Texas in 2003 that homosexual acts were federally legalised. Only a few US states have recognised a homosexual couple’s right to marry—which is something New Zealand has yet to achieve.
But it’s not all been bad news. The Civil Union Act 2004 was welcomed, as was the inclusion of homophobia as an aggravating factor in sentencing. In 2009 Parliament abolished the discriminatory partial defence of provocation, which let homophobic killers get away with murder. And while our adoption laws still discriminate unfairly, the recent decision of Re AMM & KJO, and Labour MP Jacinda Ardern’s private members bill to reform adoption laws, all indicate that change is coming.

Those that protest against the realisation of full equality for human begins are on the wrong side of history. But that still does not stop me from feeling nervous about the backlash that the queer movement inexorably faces.

An example comes from São Paulo in Brazil. Last week, the city’s Council voted to establish a “heterosexual pride day”. The event, supported by evangelical Christians, was to celebrate the rights of heterosexuals. The organisers were quick to claim that it was not a homophobic attack, but instead was a way to “end the excesses and privileges of gay rights”. This is not just a Brazilian view. Arguments against Auckland’s now defunct Hero parade faced the same kind of thinly veiled homophobia.

I was deeply concerned by the developments in São Paulo. Part of me was simply confused—the day didn’t seem necessary, isn’t every day heterosexual pride day? Stuff.co.nz’s “week of weddings” seemed to imply it is. Why is a special day required? And part of me was slightly angry. As a gay man myself I am naturally alarmed by any attempts to downplay and marginalise who I am, and who others are.

But my real concern was more fundamental. The attempt to celebrate the ‘normalcy’ of heterosexuality—in order to end the excesses and privileges of homosexuals—displayed a fundamental misunderstanding of human rights and minority protection.

To characterise pride marches as exhibitions of queer opulence seriously misses the point. That’s not what they are for. Granted, they are often flamboyant affairs. But so what? So is Mardi Gras. So is the Sevens Parade.

But unlike those things, pride events serve a deeper social purpose. They act as a community statement to heterosexuals and to homosexuals. One that says “we are here and we are normal. We are like you. Please accept us. And please accept yourself.”

In a democracy, where the majority vote rules at the expense of the minority the queer community needs to do this. It’s imperative to our survival, and to the recognition of our basic equality. The purpose of public statements of one’s difference is not to marginalise or to create division, it’s precisely the opposite. It’s to remind heterosexuals of the difference that exists, and to celebrate inclusion and tolerance. But it only works in that way because queers are a social minority. It is not a two way street—and it won’t be until every single legal, social and cultural prejudice has been eradicated.

The law has an important role in play in that. Its job is to protect the weak from the strong; to protect the few from the many; to promote equality and fairness. As Justice Albie Sachs said in Fourie v Home Affairs “equality means equal concern and respect across difference. It does not presuppose the elimination of difference. Respect for human rights requires the affirmation of self, not the denial of self. Difference should not be the basis for exclusion or stigma. Equality celebrates the vitality that difference brings to any society.”
And that’s why loud voices, legal activism and street parades are so important.

And that thing is justice.

Throughout our legal educations we tip-toe around the concept, and we blithely accept that it’s important. But I can’t recall a single instance where the term was rigorously assessed. This is an interesting omission, given that the application, interpretation, and enactment of justice are embedded at the heart of the law. But we are still left with the question: what does justice actually mean?

Perhaps it’s not surprising that this question is roundly ignored by legal courses. Such lofty enquiries are beyond the scope of legal education. Law school’s ‘core business’ is the training and education of lawyers-to-be. It doesn’t set out to create philosophical warrior monks (although for public law students sometimes that’s an unintended consequence). But even in light of that it still seems odd that justice receives such scant attention.

One possible reason is that the term defies definition. Any assessment of justice will invariably be a contextual one; it is not something that you can easily put your finger on. What is just will be interpreted differently, by different people, at different times. Take for example the case of Cornelius Arie Smith-Voorkamp—the man with Asperger’s Syndrome who compulsively collects light fixtures and who stole one from an abandoned house after the February earthquake.

For many, Cornelius is nothing but a looter. He broke the law, and as a consequence any criminal sanction put on him will be a just one. In this way justice can be calculated; if you break the rules, then justice demands that you pay for your crimes whoever you are. And why not? Justice is blind.

But many of us would find this too harsh. Cornelius had an unassailable mental compulsion to do what he did; his actions cannot be easily explained away. Because of this, our view of justice can also change. A mathematical calculation no longer seems appropriate. Context demands a difference in justice.
It is this tension that has plagued our attempts at a finite conception of the term. Context matters and our view on what’s required to right a social wrong has fluctuated in response to social pressure—and will continue to do so. An eye for an eye may once have been socially acceptable, but embrace it too much
and the result is only blindness.

But blaming the problems of justice purely on context seems a little too easy. It makes everything a little too abstract. Context is obviously important, but it must not be forgotten that the application and enforcement of justice has been shaped by the advancement (or regression) of the law.

Any serious attempt to unpick the plexus of justice requires us to ask ourselves the question, “whose justice?” This again, is a subject that law students are not often presented with. We often forget how privileged we are—not in some kind of self-aggrandising way—but in a structural way. The values we infuse justice with are influenced by the books, precedents and cases we’ve read and the Lord Justices who wrote them. This is a privileged justice, it is a justice that reflects a legally predominant view, and it is a justice that may differ from what we expect others to accept.

Despite the medieval proclamations of those banging the drums of crime, justice is not a fixed concept. Perhaps in order to give the concept any real meaning, we have to constantly deny it one.

But it wasn’t the traditional domino theory of the cold-war era I was concerned with; instead I was researching a new way of thinking about how systems work—and what happens when systems fail.

There is a new line of thought emerging about why large institutions collapse, and why, when they do, they crash so badly. Just think of the financial disaster caused by Lehman Brothers, or of the environmental destruction wrought in Florida by the Deepwater Horizon oil spill.

This new domino idea is based on the premise that human beings have an innate and frustrating desire to complicate things. We like it when things are complex; it shows that they are sophisticated. In many respects, we can’t help but create complicated rules and structures around what we do. Our world is hard to understand, and any systemisation invariably reflects the environment it’s emulating.

But complexity is problematic. The more interconnected we become the closer our dominoes get stacked—and the more dangerous it is when they fall. The result of this is what safety engineers call ‘tightly coupled systems’. The more dependent the various parts of our system become, the easier it is for things to fall apart and the harder it is for us to shut it all down when things go horribly wrong.

But what does this all have to do with lawyering? At first glance, not a lot. Lawyers are not engineers; they don’t install safety devices in mines; and they aren’t financial wizards creating complex derivative markets. But if we look at the principles behind dealing with complex systems, we can see that it has just as much to teach lawyering as it does engineering.

Because although they don’t often create them, lawyers are interfacing with complex systems all the time. Tax law in financial markets is complicated. Evidence law is complicated. Commercial mergers are complicated. Working with the machinery of government is complicated. All of these things are hard to navigate and are often so interdependent that when one part fails, another will too. Just look at the Government’s inability to regulate financial investors before the 2008 credit crunch. It was a perfect example of a tightly coupled system creating disastrous results.

The benefit of lawyering is that it can act as a circuit breaker within a socio-legal system. Lawyers spread risk, and it’s part of their job to figure out how institutional relationships work. In this way, they can be a helpful and effective tool in the private citizen’s toolbox. By providing advice on key milestones in a system (be it a company restructuring or the drafting of a new regulatory framework) lawyers can act as a check on ‘tight coupling’. And that’s a good thing.
But this structural approach to lawyering will only work if lawyers themselves take a step back and have a look at the big picture. Most people become lawyers to fight for justice—but it’s often an individualised fight, one institutionally emphasised by the lawyer-client relationship.

Accidents will always happen, and in tightly coupled systems, accidents are even more dangerous. But we need to extend this obvious realisation beyond structural engineering. Because by thinking of the profession as one of systems regulator, not solely as one of individual advocate, lawyers may end up positively influencing their world around them in ways they have not yet imagined.

Thankfully, the mental exertion paid off, and I was lucky enough to further discover the mysteries of law school. But the entire experience was a fairly traumatic one.

In fact, it’s one of the most stressful things you can at university. Medical students at Otago grumble and groan about late nights and sleepless study sessions – but at least they get to try morphine (seriously, a friend of mine spaced out during her residency). And Architecture Students have legitimate complaints about their demanding workload.

But Law school stress is more readily known about, and more obvious. In fact, it’s a subject that has attracted a considerable amount of academic comment. For example, a study published in the Willamette Law Review found that within months of entering law school, some students had begun to display symptoms of extreme stress, such as sleep deprivation, self-harm, depression, anxiety, obsessive self-doubt, and feelings about losses of personal and emotional control. It must be noted that the study was primarily concerned with overseas law schools – but the style of legal education practiced there does not markedly differ from our own. And that’s worrying.

Let’s be clear, this column is not a bitch fest about how hard law students have to work, or how environmentally unfriendly the average reading list is. We did, after all, sign up for this. Instead it’s a discussion about why law is so stressful. There is a serious question that law students should be asking: what is about legal education that causes so many aspiring lawyers to work hard and stress harder?

Perhaps an answer can be found in the way law is taught. Rumours abound about the humiliation and suffering wrought by lecturers on students using the Socratic Method. In reality the technique is more awkward than it is agonising. I’m generally a supporter of the Socratic Method, but it’s by a view formed more out of custom than by any serious reflection on how appropriate the approach is for the teaching of complicated ideas. Communication is vital to legal learning, but the best classes I’ve ever taken were the ones where debate and discussion was spontaneous, not forced. While the method is sure to make some students do their readings and offer opinions, it’s also been known to make people not turn up to class, or even hide under their desks. It’s an approach that undoubtedly contributes to student’s stress and is anecdotally one of the largest determinants of anxiety in many of the academic articles that comment on this issue.

That by itself is a good enough reason to inquire as to whether or not the Socratic Method is a good approach to take to the teaching of law school subjects. Graduating law school with an LLB and Post Traumatic Stress Disorder isn’t going to make employment interviews any easier. Furthermore, continued cohorts of legal professionals who have been forced to run the stress inducing gauntlet of law school will not be particularly useful in modernising the industry or pushing it forward in creative, innovative directions.

Maybe it’s time for law faculties around the country to ponder this issue themselves. The Socratic Method is not set in stone. In fact some famous Law Schools shy away from it. Other approaches, such as the Gutenberg Method, offer alternatives that are deserving of consideration. But as well as the question of form, the broader issue of how law school institutionally deals with (or inadvertently promotes) stressful learning experiences is a topic worthy of more investigation by those who provide it to us.

It should not be forgotten that Law is a trade. It’s a professional disciple. Lawyers in practice need to rely as much on the strength of their relationships as they do on the strength of their knowledge. Perhaps it’s time for legal education to be more aware of that fact.

The Act allows copyright owners to enforce their rights more effectively against internet downloaders. Those of you who have lived (or are living) in a University hall of residence, or have looked over the shoulder of someone streaming “Never Say Never” on University computers, will know that students are partial to a little bit of ‘try before you buy’. So this new law is concerning, especially for our new-age techno-citizen generation, who Tweet and Tumblr our first-world problems incessantly around the globe.

But there seems to be a little hysteria in the air, whipped up at least in part by politicians who see the Act as an opportunity to point-score. Perhaps it’s time to clear the air and take students through the new law and its effects, step by step.

The legislation gives new enforcement powers for copyright holders. In particularly, the rules relating to infringement notices have been tidied up, and new processes regarding the Copyright Tribunal have been added.

Section 122B allows copyright holders to force Internet Service Providers to issue three kinds of infringement notices: a detection notice (noting that you’ve been illegally infringing copyright); a warning notice (a notice telling you to stop); and an enforcement notice (a notice telling you that the copyright holder is pretty pissed off and is exercising enforcement of their rights). Once these notices have all been issued, the copyright holder may then apply to the Copyright Tribunal for a damages order for a maximum of $15,000, or to the District Court for the suspension of your Internet account.
It is that second option which is most contentious. Access to the net is a pretty big deal, and termination is a big call for any court to make.

The procedure for suspension is outlined in Section 122O. A copyright holder can apply to have an account holder’s Internet connection cut off for a maximum of six months if the District Court is satisfied that: at least one enforcement notice has been issued to you (and that its issuing complies with the process outlined in the Act); that the account holder has, through file sharing, infringed the copyright of the person seeking the order; and finally, that suspension of the account would be justified, when balanced against the circumstances and the seriousness of the infringing.

This process is pretty rigorous, and clearly outlines significant hurdles that need to be cleared before the Motion Picture Association of America can kick you off the net. And if you’ve just finished downloading American Pie 7 in the Murphy Cybercommons, you can breathe an additional sigh of relief: Section 122PA of the Act stops copyright holders from even using suspension orders until a date is set by an Order in Council. What this means is effectively the power to ask for the termination of Internet accounts has been ‘frozen’ until the Government decides to ‘unlock’ it. However, it is not Parliament that gets to make that decision. An Order in Council is made by Cabinet and the Governor General, and will not get debated or voted on by the House of Representatives.

But even with these restrictions, the legislation has attracted significant criticism. The first concern is that the law is unworkable. The process outlined is complicated, and may not give copyright holders the opportunity to exercise their rights. Applications to tribunals are time consuming and expensive. As a consequence, only large corporates are going to be able to utilise the law’s powers effectively. This is bad news for small start-ups and emergent developers—particularly Kiwi ones—who may not be able to rely on the Act to protect their ideas.

Secondly, the Act is focused on the account holder, rather than the downloader of illegal material. This poses problems for large institutions such as Universities and even for flats where there are a large number of users under one account. The Act also places a strong procedural onus on Internet Service Providers to provide information about their users when copyright holders request this information. This power is something ISP customers are going to be furious about, and ISPs are begrudgingly going to have to put in place systems for managing these requests properly.

Access to the Internet is not considered a human right in New Zealand, but it has been recognised as such in Finland, and to lesser extent in France. However, the bill may breach your right to be presumed innocent until proven guilty, found in section 25(c) of the Bill of Rights. Section 122MA states that infringement notices are conclusive evidence of copyright breaches. This is only a presumption, and users can bring evidence to the contrary, but prima facie it is in breach of the presumption of innocence. Additionally, what standard of proof is required to rebut the presumption is unclear. This is important, as a higher burden will make it more difficult for users seeking to defend themselves before the Tribunal.

Behind these concerns and the Acts new powers is a deeper issue. It’s the question about how New Zealanders want to treat the regulation of intellectual property and the corporatisation of ideas. That debate is complicated and vexing. But it’s one that we as a polity will need to have if we are ever going to see legislation that is both democratic in a new world of megabytes and access, and responsive to the tension between economic realities and creativity.

Although our intense dislike for each other was palpable and ever-present, we were alike on quite a few levels: we were both argumentative, geeky and precocious. If we’d bothered to ask, we’d have probably found that we shared a great deal of things in common. But we never did, because differing views on one deep-seated philosophical issue kept us at each other’s throats for five long years.

You see, my nemesis was a fundamentalist Christian. And not one of those contemporary nice ones—this guy was an acolyte of the fire and brimstone variety, no easy feat for a student at a Catholic boys’ school, but he sure could pull it off. When it came to religion he refused to give any ground, not even to the few mild-mannered priests who taught us. With him being perpetually irate at doctrinal disputes, me hiding deep in my homosexual chrysalis, and neither of us being Catholics, I’m still not quite sure who was having the worse time.

Our shared disquiet stemmed from opposite ends of the theistic spectrum. I’ve never been religious, not even at an early age, as no-one in my family really is: with a scientist for a father, religion was a subject that just didn’t feature. To be fair, though, neither did Newtonian maths (although I was forced by the threat of disinheritance into taking seventh form calculus). My upbringing was as secular as a civil union. God’s existence, or lack of, was outside the ambit of my childish brain. Such a question simply did not need to be asked.

High school changed all that. After spending five years fighting off what I thought was the personification of all that was illogical, I had developed a fundamentalism of my own. To counter my arch-enemy in all things religious, I had grabbed what I thought was the sword and shield of reason, and had safely positioned myself on the battlements of atheism’s angrier sibling: anti-theism.

My conviction that religious belief was not only incorrect but actively harmful was only entrenched by my early University years—those heady times in first- and second- year where the wine is flowing, you’re always right and everyone else is wrong. I read the classics voraciously. I churned through Dawkins like he was going out of fashion. I consumed Hitchens and his ferociously eloquent defenestrations. For light relief I skimmed through Russell, Epicurus and Nietzsche. I was convinced all of them were right, and that without fail they provided surgical arguments for my one-man war on religion. I would literally throw books at the ill-informed, demanding that they too enjoy the rational delights of a life well-reasoned.

But you do a lot of growing up between 18 and 23. As time evolved, my views did too. Over time, I realised that in exercising my own fundamentalism, I was exhibiting the doctrinal arrogance that I so vocally denigrated. Additionally, I had developed a greater appreciation and respect for pluralism and rights, for everyone—not just the ‘enlightened’. So, as the years went on, I relaxed my views. I’m still an atheist—the philosophical arguments for the paucity of God’s existence I still find personally overwhelming (this short piece is not the place to expand on the philosophy of disbelief, but if you’re interested, just Google “the problem of evil”), but I no longer consider myself a crusader for the voice of reason. I am what the British director Jonathan Miller has called a “reluctant atheist”. My reluctance is attributed not to a subscription of non-belief, but a reluctance to call my non-belief “atheism”.

The reason for this is by using the term atheist or anti-theist or heathen, non-believer, heretic or whatever, there is an implicit surrender of the exercise of belief to form and presentation. And that is inherently problematic. Polarised politics clearly tells us that fundamentalist derision of your polar opposite does nothing to advance rational debate—if it did, I would be able to state that the Tea Party has contributed to democracy while keeping a straight face.

It is this problem that creates an aversion to the rabidity of atheists like Dawkins. And it is this problem that drowns out the reasonable theological and philosophical inquires of the questioning centre. Atheists do not need to identify as atheists to be powerful proponents of rational world views. Is it not simpler, and more elegant to hold a laconic indifference? Perhaps an analogy can be drawn with racism: one is not a non-racist, they are simply… not racist.

In fact, the position of indifference may pose a more troubling conundrum for the fundamentalist theist. Atheists (or non-believers) may have more traction by simply denying the premise of the question in its entirety. A debate about the existence of God presupposes that there is an entity like God capable of existing. Subsequently, the questions being asked are bound up within a dialogical paradigm whereby the parties to the debate are asking, as Marx famously said, “only such questions as can be answered”. Indifference avoids this.

But being indifferent instead of opposed is important for two more reasons. The first is that atheism is no longer required as a force for philosophical good in the way it once was. What I mean by this is that there was a time—a time when religious institutions wielded a considered amount of control and force—that radical forms of atheism played an important role in changing societies for the better. Now, I do recognise that religious institutionalism still exists, and can be the site for legitimate criticism. The Pope’s refusal to advocate for condom use in Africa and American churches’ active support of Uganda’s violent oppression of homosexuals are both examples of the abhorrence of institutionalism run amok. But these issues can now be combated using a far wider range of political and social forces, some of which (like human rights) have far superseded what simple atheism could have achieved. This is not to suggest that atheism is no longer relevant—but it is now just one mechanism by which hearts and minds can be mended.

The second reason goes to the core of the theological question that belief addresses. Even atheists and anti-theists must, as the Cambridge theologian Denys Turner argues, address the question “why is there anything at all?”. Atheists must work very hard to deal with the constant re-emergence of this question, while indifference has more room
to accept the unknown more elegantly. Now, again, this is not to suggest that the answer to this question supposes a deity one way or the other. For the record, I think the theist response necessarily results in an infinite regression of deities and therefore is wholly unconvincing, but that’s beside the point. My argument is instead that by advocating a fundamentalist atheism, proponents like Dawkins or Hitchens place themselves into a self imposed, and unnecessarily constrained philosophical box. Indifference neatly side-steps this, not out of philosophical cowardice, but out of honesty. It also gracefully pirouettes around the overbearing limits placed one places on their imagination if they are convinced that everything hangs on the question of whether God exists, or does not.

The flow on benefits of my slightly more relaxed approach to non-belief are numerous. For one, it’s a more consistent way of recognising religious pluralism. If people want to believe in the supreme power of concepts and constructs then, as long as they do no harm, we as a society should be accommodating of their wishes.

It’s hard to conclusively draw a difference between a strong conviction that there is a man in the sky, and a deep seated confidence that humans are innately altruistic. The point is
that until all the available evidence is in (assuming that’s even possible) they are judgement calls. And part of being human is being wrong.

Another is that by subscribing to a position of indifference, individuals who are secure in their own non-belief inherently de-escalate the culture war that harmfully surrounds the issue. This is important firstly because violent clashes of belief have often led to physical and emotional harm, and reducing this is a laudable goal. But secondly, because it gives added strength and power to non-belief protestations against aggressive fundamentalism. By demonstrating that aggressive fundamentalism is an infringement of the norm, rather than an opposition to one, indifferent non-believers instantly come from a more defendable position when they choose to speak out. Simply put, it is far easier for a quiet person to point out that another is shouting, than it is for two people to shout each other silent.

For an issue with as much emotional baggage as the one above, I’d be aghast if you felt like I was telling you what to do. Belief is a personal thing, but the personal is the political. I personally think non-belief is the most ‘correct’ answer to this theological question. But part of non-believing is continually questioning the manner of one’s own position. For me, this very idea encapsulates the fundamental beauty of rational thought.

It took me a while to get here, but now I feel much more secure in my lack of religious belief and in the strange comfort that brings. It’s comforting because it’s cogent, defensible and beneficial. Because now, if my high school nemesis was to ask me if I believed in God, I would not attempt to scream him down. Instead I would tilt my head ever so slightly, softly smile and say with all sincerity: I’m sorry, I don’t understand the question.