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Teina Pora on TV3’s current affairs programme 3D
Teina Pora on TV3’s current affairs programme 3D

SocietyAugust 30, 2017

Why the courts shot down the government on Teina Pora compensation

Teina Pora on TV3’s current affairs programme 3D
Teina Pora on TV3’s current affairs programme 3D

The High Court has agreed that the payout for the miscarriage of justice was insufficient. Law professor Andrew Geddis explains the basis for that decision

When the government announced in June of 2016 that it would be giving Teina Pora some $2.5 million as compensation for wrongfully convicting him and so keeping an innocent man in jail for some 20 years, his supporters’ joy was tempered with some anger.

Joy that, at last, Pora would receive tangible recognition of the injustice done to him. But also anger that the government had chosen to calculate the amount of compensation using a $100,000 dollar-per-year figure set all the way back in 2000 and not amended since. This failure to address just how much inflation had eroded the worth of compensation over that time seemed to many to be a final wrong done to someone who already had suffered substantive harm because of petty procedural shortcomings.

Teina Pora in a shot from TV3’s 3D, whose journalists were integral to his exoneration 

Yesterday, the High Court agreed with that viewpoint. In a judgment that provides an excellent overview of not only the history to Pora’s claim, but also the processes that govern how payments for wrongful conviction have been dealt with, Justice Rebecca Ellis concluded that the government had treated Pora wrongly. Or, to be precise, the failure to inflation-adjust Pora’s payment breached the underlying spirit of the compensation process and resulted in an outcome that treated him significantly worse than others who had received payments under it.

First, Justice Ellis found that she could in fact review the government’s decision on how much compensation Pora should receive. That was not a given; indeed, the government has always been of the opinion that the decision whether to compensate someone at all for a wrongful conviction, much less how much to give them, was for it alone to decide.

Justice Ellis shot that argument down in flames. The compensation process has now become so “rulified” (to use a term I may have just invented) that the government cannot any longer claim that payments are a purely discretionary matter for it to determine as it chooses. Rather, the courts have a role in ensuring that any payment decision is taken in accordance with the processes the government has established

Second, Justice Ellis found that the government’s decision not to follow the advice of Rodney Hansen QC – the person they appointed to consider Pora’s application for compensation – and inflation-adjust Pora’s payout was made in error of law. Exactly why this decision was wrong is a little more difficult to explain.

Here’s how Justice Ellis sums up the arguments of Pora’s lawyer on the point: “The central contention was, instead, that ‘something in public law terms has gone terribly wrong’ and Pora has, thereby, suffered ‘a new and different injustice’.” At which point, one may be reminded of the greatest legal argument in all of human history: “It’s justice. It’s law. It’s the vibe.

Classical allusions aside, the basic issue seems to be that the government really didn’t want to set the precedent of inflation adjusting compensation payments and so convinced itself that it simply couldn’t do so under its current guidelines. In reality, however, it could and should do so if it wants to maintain a compensation scheme that treats wrongfully convicted people in a fair and equitable fashion. And so, absent any express statement that the government is deliberately intending to treat Pora worse than other people it has compensated in the past, its guidelines should be understood as permitting inflation adjustment. Because the government misunderstood its own guidelines, it reached its compensation decision in error of law.

So, where to now? Justice Ellis didn’t actually overturn (or “quash”) the cabinet’s decision on how much to pay Pora, because in the end it is still up to it to decide how much its guidelines require by way of compensation. However, she did give a fairly strong steer as to what she thought the government ought to do next:

[141] The fundamental point is that, in my view, the Guidelines permit the quantum of compensation payable to an applicant … to be adjusted for inflation, where it is in the interests of justice to do so. I make a declaration accordingly.

[142] In light of that declaration, I also invite the Minister to consider whether, in the circumstances of Pora’s case, the interests of justice require the benchmarks in the Guidelines to be inflation adjusted. I am unable to see any impediment to her taking the matter back to Cabinet should that be seen as the proper outcome.

In other words, you were wrong in law to think that you couldn’t adjust Pora’s compensation for inflation consistently with your guidelines … and you really ought to think about updating those guidelines to reflect the effects of that inflation. Now, what are you going to do to bring about a fair and just result?

Which is the question that Amy Adams will have to give us an answer to in due course. Or, given that we are but four weeks out from an election, perhaps not.


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TORONTO, ON – JULY 1: A beer vendor sells beer in the upper deck before the start of the Toronto Blue Jays MLB game against the Boston Red Sox at Rogers Centre on July 1, 2017 in Toronto, Canada. (Photo by Tom Szczerbowski/Getty Images) *** Local Caption ***
TORONTO, ON – JULY 1: A beer vendor sells beer in the upper deck before the start of the Toronto Blue Jays MLB game against the Boston Red Sox at Rogers Centre on July 1, 2017 in Toronto, Canada. (Photo by Tom Szczerbowski/Getty Images) *** Local Caption ***

SocietyAugust 30, 2017

Outside the Asylum: part four of an epic essay in praise of New Zealand

TORONTO, ON – JULY 1: A beer vendor sells beer in the upper deck before the start of the Toronto Blue Jays MLB game against the Boston Red Sox at Rogers Centre on July 1, 2017 in Toronto, Canada. (Photo by Tom Szczerbowski/Getty Images) *** Local Caption ***
TORONTO, ON – JULY 1: A beer vendor sells beer in the upper deck before the start of the Toronto Blue Jays MLB game against the Boston Red Sox at Rogers Centre on July 1, 2017 in Toronto, Canada. (Photo by Tom Szczerbowski/Getty Images) *** Local Caption ***

We continue serialising an epic essay from the New Zealand Initiative’s Eric Crampton, exploring what life is like in and out of New Zealand. Today: chapter six, on drinking.

Read chapters one and two here, chapters three and four here and chapter five here.

Chapter 6: Driving you to drink

Trillian did a little research in the ship’s copy of The Hitchhiker’s Guide to the Galaxy. It had some advice to offer on drunkenness.

“Go to it,” it said, “and good luck.”

It was cross-referenced to the entry concerning the size of the Universe and ways of coping with that.

I grew up on a farm in Manitoba in the 1980s and ’90s. Drinking might not be the best way of coping with Canada’s crazy rules, but it’s understandable.

If you wanted to farm without dealing with government-run marketing boards and quotas, you avoided growing wheat, barley, pork, poultry, eggs or dairy. Classmates expecting to inherit their parents’ dairy quota swore it was the best system in the world, but I had my doubts.

If you wanted to listen to the radio while cutting hay, Canadian content regulations meant listening to the few tolerable Canadian songs that got played over and over again until you wanted to throttle whoever had designed the rules.

Taking to the lake instead of the fields wasn’t any help. Commercial fishers on Lake Winnipeg, which is roughly half as big as Canterbury, had to sell their fish through the government-backed monopoly fish buyer, the Freshwater Fish Marketing Corporation.

The system then worked tolerably well for fishers around Selkirk, at the south end of the lake, but abysmally for the aboriginal fishers at the north end, far from the only place they could legally sell their fish. Political clout drove outcomes, and the Indian reserves at the north end had none.

It was enough to drive you to drink. But where? Manitoba had only two breweries for its million people – and no imports. Under provincial regulations, to sell beer in one province, you had to brew it there. Americans could get beer from other parts of Canada more easily than Manitobans.

Other regulations made it near impossible for craft breweries to emerge. Half Pints led the charge for craft brewing in Manitoba. When they wanted to expand their home-based brewery to a more commercial size, they phoned the provincial regulator, who just laughed and hung up.

Manitoba has been liberalising its rules since 2013, but the rules are still archaic and complicated by New Zealand standards. The rules are such a mess that the Manitoba government has had to consider subsidising small brewers to get the industry going. Ronald Reagan’s quip about government sums up Manitoba rather well: “If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidise it.”

New Zealand’s regime, by comparison, is pretty sane. But keeping it that way requires vigilance.

Here in New Zealand, home brewing is legal and easy – as is distilling your own spirits. You will get into trouble for selling your home brew without paying excise. But making your own whisky to share with your friends is perfectly legal – as it should be.

And while America might never have had Nascar if it had sensibly allowed home distillation, as Appalachian moonshiners’ races with the revenuers was where Nascar got its start, that is no reason to ban alcohol production.

Distilling your own vodka, in most parts of the world, is likely to get you arrested. If you do a good enough job of it in New Zealand, you wind up building 42 Below from the still in your garage, turning it into a multimillion dollar business, and selling it to Bacardi for $138 million.

It is easy to set up shop as a new brewer or distiller – and many home brewers do. So long as you pay your excise, it’s not harder than any other kind of drink production.

One of my favourite New Zealand brewers, Cassels & Sons, started by giving samples, and selling a few bottles, of their home-made beer at the Lyttelton Farmers Market on Saturdays at the local school playground. Their stand was a plank on top of old milk crates.

That small-scale production and sale let them figure out that people were willing to pay for what they were selling, and gave them the confidence to turn their old brick woolshed in Opawa into a brewpub. They opened just a few months after the Christchurch earthquakes.

That kind of story is utterly unremarkable in New Zealand, but would be impossible in too many other places. The rules around alcohol production elsewhere often mean you cannot start small – compliance costs are so high you have to start big. And starting big is risky.

Because New Zealand’s rules for starting craft production are simple, we have a fantastic craft beer scene. The Brewers Guild lists some 95 members, and not all small brewers are members. For a country of 4.7 million people, that’s pretty good: about 20 breweries per million people.

Manitoba has a population of 1.2 million and nine breweries. Which itself is an improvement over a decade ago when you would have been lucky to find three.

New Zealand’s alcohol excise is also simple. The general principle: the excise levy on drinks should be proportionate to the amount of alcohol in them.

We can argue about whether excise is the right way to stop dumb people from doing dumb things while drunk. And I have argued that. To steal a line from my friend Edward Stringham, taxing alcohol to prevent problem drinking is like hiking the petrol tax to reduce speeding.

But let’s leave that one for another day.

Let’s also ignore how odd it is that a bottle of whisky carries about double the excise per unit of alcohol as a bottle of beer.

New Zealand’s excise system just makes more sense than trying to control prices through state monopoly retail outlets, like those in Ontario, Canada. There, the rules help the public sector union that staffs the liquor outlets hold the whole province hostage by threat of strike.

For all of New Zealand’s problems with police extorting licensing conditions from shop owners, we are nowhere near Pennsylvania, where liquor permits are rare and tradeable – and sell for hundreds of thousands of dollars. Pennsylvania is not alone – in one part of New Jersey, a liquor licence traded for $700,000.

But the Asylum’s wall does need defending. Anti-alcohol activists in New Zealand have been pushing to restrict the number of places allowed to sell alcohol. This would inevitably make liquor permits scarce and valuable resources, build a powerful constituency for further regulations that tighten access, and boost the value of the permits. Let’s not build self-perpetuating holes in the Asylum wall.


Read the next instalment of Outside the Asylum here, or the full series here. If you’d prefer – listen to this chapter below.