Poll Dancer by Keith Ng

As per the terms of the settlement between Vic and Salient, I can't comment on the case. I'm pretty sure that what I would have said wouldn't come as a surprise, anyway.

The settlement allows me, however, to talk about everything but the case.

Now that we've settled, we'll no longer be a test case for media law. However, we have done our best to demonstrate what happens when an organisation tries to injunct a media outlet - however small - and we have spared no effort or expense in doing so.

We've done our little bit for press freedom in New Zealand, now I hope that you, dear Public Address readers, will be willing to help us cover the cost of fighting this battle. Anything you can spare would be greatly appreciated.

If you are able to help out, please write out a cheque to the Victoria University of Wellington Students' Association and send it to Salient Defence Fund, C/O VUWSA, PO Box 600, Wellington. Or deposit the money into VUWSA's account, 06 0606 0008285 00.

[UPDATE: Generous contributor Stephen tells me that donations to VUWSA are tax deductible.]

A special thanks to those who have already contributed!

Anyway, now that the scythe has passed over our collective heads, I think it's safe to reveal that I was only a co-writer of the story. The other writer was my able deputy, Nicola Kean, who I hope will take over my job next year. The story was uncredited for her protection while the legal shitstorm approached, though I was pretty happy to revel in the chaos.

A lot of people have asked me why we didn't just go ahead and run the story without checking with the university. We were aware of the consequences of seeking comment from the university, and we were aware of the option of bypassing it altogether. We chose not to.

I'm generally not one for doing things the hard way when there's an easy way. But this wasn't about doing things the hard way, this was about doing things the way we wanted them to be done, and if anyone was to get in our way, well, we'll fight that battle on that ground.

And I have absolutely no regrets. As it is, I can stand by our article as a solid piece of reporting on a good story, right down to our attempts to balance the glaring numbers with the context that the university could've offered (but didn't). Hell, we even presented the university's case reasonably, in their absence.

We did our jobs. The university management and their lawyers did theirs. The issue came to a head. The outcome, which I can't comment on, speaks for itself.

And it's good to finally see the full version of the article bask in the light of day. (Or at least what was left of a very cloudy late afternoon today.) Still, I'm feeling a bit sheepish, since the hype had overtaken the substance of the story a long time ago, and the story has become a bit of an anticlimax as a result.

Seeing the MSM pick up on the question of whether there's a widespread trend of fee-rise around the country, though, made me feel that the article had done its job (even before it was published).

Strange, crazy world.

I'd also like to take the opportunity to thank Salient's in-house counsel, Graeme Edgeler, who has guided us through some pretty treacherous legal waters, and has had the perseverance and tenacity to restrain me from breaking the law on many, many occasions. He got us through those crucial first few days, before we even hired a lawyer, and his tireless work and level-head advice (poised against my sound strategies of total mayhem) since then has been a critical part of Salient's multi-pronged attack/defence.

We couldn't have fought the juggernaut without him.

He's currently looking for a more lucrative post than Salient, so if there's a law firm looking to hire, just drop me a line and I'll pass his details along.

Now, all we have to worry about is putting out next week's magazine...

I got a letter today from Victoria University's lawyer saying that:

We understand that you are the primary contact person for the Aotearoa Student Press Association and further that you provided the confidential material which had been supplied to Salient to the other members of ASPA, notwithstanding the injunction which has been issued.

The supply of that information to other members of ASPA is clearly a breach of the interim injunction and potentially contempt of Court. We seek an immediate undertaking on behalf of ASPA and its member organisations that the information will not be published by any of them so long as the interim injunction remains in place.

Should this undertaking not be forthcoming immediately, we will seek an extension of the interim injunction to cover ASPA and its member organisations. In seeking to extend the interim injunction we will be obliged to advise the Court that you had the opportunity to provide us with an undertaking not to publish the material but declined to do so.

Unless we have a satisfactory response from you by 9.00am tomorrow, Tuesday 4 October 2005, we will proceed to seek further High Court Orders.

The letter is dated 3 October. I called the courier, who informed me that the letter was delivered at 8:51am on today, 4 October.

For the legalese-adverse, that third paragraph was a threat to put a gag order on ASPA and all the student magazines that are members of ASPA. Here's a list of all 13, for the University's convenience (I like how it looks so long in a column):

Caclin (Lincoln)
Canta (Canterbury)
Chaff (Massey, Palmerston North)
Craccum (Auckland)
Crew (UCOL)
Critic (Otago)
Debate (AUT)
gYRo (Otago Polytech)
InUnison (Unitec)
Magneto (Massey, Wellington)
Nexus (Waikato)
Salient (Victoria)
Satellite (Massey, Albany)

So, to rephrase, Victoria University threatened to put a gag order on every single student magazine in New Zealand. (Slight hyperbole. I suspect there might be a few polytech magazines that are not part of ASPA.)

I'll leave the comment to others.

But I do feel like repeating myself.

Victoria University threatened to put a gag order on every single student magazine in New Zealand.

Perhaps Otago should replace "Get Over It!" with "We won't gag you!"?

I'm also a bit peeved that they are trying to say that we've breached the terms of our injunction by putting the story-that-we-can't-mention on the Aotearoa Student Press Association newswire.

We put the story on the ASPA newswire on Thursday, as we always do, because that's when everyone goes to print. Vic filed the injunction, ex parte (i.e. they didn't tell us), on Friday, and it wasn't served to us until we asked for it and went and got it ourselves on Sunday evening. If we hadn't taken the initiative, it would have been served to us on Monday morning, four or five hours before we were due in court.

When the article was placed on the newswire, the injunction was not in effect, the injunction had not been granted, the injunction had not been filed, we weren't notified that Vic even wanted an injunction.

We were not obligated to and we did not keep the article under wraps on the basis of "gee-maybe-Vic-will-file-an-injunction-at-some-point-in-the-future-but-just-won't-tell-us-because-they-want-to-keep-us-in-the-dark".

Over the weekend, we emailed the Vice-Chancellor and the Public Relations Director. Neither responded. We advised them exactly where and when we could be found. No reply.

While we weren't jumping at the opportunity to tell them that a story on our story (that's what the ASPA story was) was published elsewhere, had they simply asked us who else had we told, we would have duly told the truth.

They didn't ask. They didn't respond to our requests. They wanted us in the dark. We were. And now they're complaining that we didn't respond to their complaints quickly enough - i.e. that we didn't act as if the injunction was in place three days before they serve us with it.

The fact that this injunction is holding the fruits of our labour to ransom hurts us immeasurably, but we have respected and observed the law. Speaking of which, we need help. Lawyers are expensive. If you have $10k (or part thereof) sitting around in your bottom drawer and you are happy to throw it at a bunch of dirty student journalists sticking it to The Man (and protecting the ability of the media to cover stories based on leaks), we'd love to hear from you. Email me at keith@salient.org.nz.

This is not just about a large organisation being able to squash the little guys. This is a case that will have an impact on *all* leaks. If this leak is stopped, it won't be the last.

It makes you think.

All 6,000 issues of this week's Salient are being held in an unidentified, secure location at Victoria University at the moment, after our Vice-Chancellor took out an ex parte High Court injunction against us. We got served.

Actually, we had to pick the injunction up ourselves. So it's more like self-service.

So much for all the cheap puns. It's been a grueling few days, after some hard partying at the Aotearoa Student Press Association awards on Saturday (we got served there, too, by Otago student mag Critic). There was much drinking and karaoke-ing.

The fun part was the next day, trying to prepare legal documents on a 4-inch iPAQ screen and talking legalese over a dodgy cell connection on the Desert Road in a crumby van while hung-over and sleep-deprived (damn daylight-saving). Our mobile HQ was wicked. Like the Turtle-mobile, except we were student journalists, rather than ninja-turtles, and we were fighting lawsuits, rather than Shredder.

Then we drove straight back to the office where we've been since last night, working in shifts to keep this media-train running. I used bound copies of Salient as my pillow - it was beautiful.

All this kerfuffle, of course, was over an article we printed saying that censored censored censored were going to injuncted injuncted injuncted because embargoed embargoed embargoed. That's all.

Ahem. Given they put an injunction on my ass, I guess you'll have to get the details elsewhere.

We're due in court at 14:15. It's all fun and games until the lawyer's bill comes...

Ah, the calm after the election: when the nutters have tired themselves out, when the politicians have gone to ground, and when we are without a government. It seems that this is, ironically, the best time to have a political debate.

My last post on the Maori seats have generated more comments than anything else on Poll Dancer thus far, and with the exception of one vitriolic nutter, I've really enjoyed getting the feedback from everyone that took the time to do it. And with Che wading into this, it seems, we have a genuine debate going!

First, Graeme Edgeler points out that Maori make up 18% of the NZ population, not 15%. Nice little tidbit to get out there.

--

I've convinced myself that I've got the upper-hand on Che on the strictly electoral side of things, so I'll start from there. (That, and he did his PhD on indigenous political participation, so I figured I'd better warm up before I approach Citadel Che...)

Part 1: Why some tactical voting is worse than others

I just want to explain how tactical voting in the Maori seats differ from the other tactical voting that has taken place.

(Bear with me while I lay the groundwork...)

a) The core idea behind MMP is that Parliament should be proportionally representative of the political views of the population. If half of the country likes Libertarianz, then half of Parliament should be Libertarianz, etc.

b) The purpose of the 5% threshold is to improve the efficiency of Parliament by weeding out the little parties, and to prevent every two-bit outfit with cult-backing to get in there. However, in doing so, it makes Parliament less proportional (bad).

c) The purpose of the exemption from the 5% rule for parties that win an electorate seat is that, since that single MP is going to be in Parliament slowing things down anyway, they might as well bring the other lot in to ensure as much proportionality as we can achieve.

Thus, while tactical voting in the instance of Epsom was used to scam the 5% rule, it did not distort the proportionality of Parliament - the most important part of our electoral system - though it might have distorted the true preference for the electorate candidate.

With the Maori seats, the tactical voting resulted in those on the Maori roll having had enough votes for four MPs but electing six. Thus, the overall proportionality of Parliament was distorted, and this is what makes the two types of tactical voting fundamentally different.

A few of my astute correspondents have pointed out that my beef is really with overhang - the extra seats that result from a party getting more electorate seats than their party votes provide - and that overhang is not a phenomenon unique to the Maori seats. Andrew says this:

[The] risk of an overhang occurring is inherent in the MMP system, and is completely unrelated to the existence of the Maori electorates. It could just as easily be the case in the future that individual candidates representing (say) "The Farmers' Rights Party" are elected in several rural electorate seats, with the voters in those electorates then casting their party votes for the National Party.

If a fictional Farmers' Rights Party did manage to scam a few seats via overhang, then my Electoral Abnormality Alarm would be wailing, too. And I agree that overhangs are not particular to the Maori seats, and can occur anywhere else. But my claim is that having voluntary opt-in seats - such as the Maori seats - *encourages* overhangs.

The voluntary nature of the Maori roll amounts to DIY-gerrymandering.

Gerrymandering is the practice of redrawing electoral boundaries for political gains. It's an American term which generally doesn't apply in New Zealand, because our electoral boundaries are not controlled by the government of the day (because that would be retarded, really). But hypothetically, if National could redraw the electoral boundaries, they might choose to redraw Otaki to include a few true-blue townships, and thus tip the balance there in their favour and gain an extra seat. But even if it could be done, and it's actually all very useless in an MMP election, since it would just mean they would lost a list seat. This is where tactical voting and gerrymandering collide.

For example, if we had separate "rural" seats that people living outside urban centres can opt into, then obviously those seats are going to be favourable for a party such as the Farmers' Rights Party, who can campaign exclusively for the electorate seats in ultra-friendly electorates while allowing those party votes to go to National. Similarly, voluntary Maori seats are bound to be stacked with Maori who consider race to be a primary issue, and thus an MP who consider race to be a primary issue is almost assured - freeing up the party votes to be tactically spent elsewhere.

By allowing Maori voters to choose their own electorates, they've created a system of institutional seat-stacking. This isn't so bad on its own, but coupled with the two votes of MMP, it results in the electoral distortions that we've seen.

And let me reiterate, my beef is with the system; it's not with Maori voters, with the voters on the Maori roll, or even with Maori voters who consider their primary political identification to be race. They should absolutely be represented, and my EAA would be wailing if they weren't. But they shouldn't be represented 150%.

(More - much more - later. And again, I stress that the electoral aspect is probably the smaller side of it. The political community is definitely the big boogie here. I just want to get the electoral parts out of the way before we go there. Part 2: Are Maori electorates different from general electorates?)

I'm going to go out on a bit of a limb here and say [deep breath] that the Maori seats are distortionary FPP-hangovers that munt proportional representation and encourage a style of politics that is antithetical to the liberal foundations of our political system, and are, therefore, bad.

First, the distortion. Of the people who voted for the four successful Maori Party candidates, only half gave their party votes to the Maori Party - the rest voted Labour. This was enough to give Labour two extra seats, on top of the Maori Party's four. This meant that voters who had enough votes for four MPs ended up electing six.

My Electoral Abnormality Alarm is wailing.

This is not the same as the tactical voting in Epsom, because that involved bringing in real party votes that would otherwise have been disqualified. There really were enough people who gave their party votes to ACT to justify their two seats. (I have issues with tactical voting there, too, but that's for another rant...)

The question is, if the Maori seats didn't exist and those voters had to make a choice between Labour and the Maori Party, what would they have chosen? They might have returned to the tried and true of Labour. They might have given the Maori Party a real mandate by giving them a much larger portion of the party vote. But either way, it would have been a genuine reflection of the political sentiment of the voters.

This was doubly important, given the supposed civil war we were facing over Seabed and Foreshore. Did Maori voters really hate Labour for S&F? Did they vote for the Maori Party candidate only because they knew they could still give Labour their party vote? Or did they vote for Labour only because they knew it wasn't going to make a difference for the Maori Party?

In short, which way did they really want the country to head? We don't know, because the Maori seats encouraged distortionary tactical voting and discouraged people from using their votes to reflect how they want the country to be governed. Thus, bad.

The Maori electorates are not really electorates. Mahara Okeroa's Te Tai Tonga electorate spans the entire South Island, and includes Chatham Island and Stewart Island. The interests that these MPs represent are not geographical, but ethnic. They are list seats by another name, a kind of proto-proportional representation, in that it gave Maori minority representation in Parliament when a FPP system couldn't accommodate it. Now it has become an artificial proportional representation system enforced on an already proportional representational system.

Let's not forget - Maori is 15% of this country. 15% of voters in a proportional representation system is not something to be trifled with, as Brash found out. But the applicable question here, though, is why such a powerful voting bloc required protection as if they faced falling below 5%.

The answer is simple - they're not a voting bloc. There is no bloc of 15% Maori votes out there, waiting to be represented.

As Green MP Metiria Turei said in a Salient interview earlier this year, "the Maori community is not the Borg. We don't all think with the same mind. Some of us will be socially conservative, some of us will be very liberal." It's hardly a radical statement to make.

It belies the idea that Maori MPs [coughmaoripartycough] can speak for all Maori, which is uncontroversial enough, but the more interesting question is whether Maori really want to speak with one voice, to share a voice with other Maori, and the mirror opposite: that Maori do not wish to share in the Pakeha voice (i.e. Participate in the same way as the rest of the electorate).

There is, indisputably, diversity in political opinion within the Maori community. But there is also a Maori community and a sense of solidarity that comes from it. The difference between the two is that a political community implies accepting decisions made by others that you disagree with, having your voice subsumed by a greater collective. Why create an artificial polity beyond what you need to create a functioning country? Why subsume dissenting Maori voices in a separate Maori polity, when they could be much more forceful voices outside? And if the Maori seats are only for the non-dissenting voices, why not just have list seats?

The Maori seats go beyond providing an avenue for Maori political expression - and MMP already does that. The Maori seats promote the formation of a separate Maori political community, and at its very core, it makes an assumption that I find unacceptable: That Maori have more politically in common with other Maori than with any Pakeha. That a rich, conservative, provincial Maori man has more in common with a poor, anarchist, urban Maori woman than he has with a rich, conservative, provincial Pakaha man.

It assumes that, fundamentally, our political interests stem from race.

If race and culture are really at the forefront of concerns for Maori voters, then I have no issues with Maori choosing to exercise their political power to reflect that. But my beef is with our electoral system trying to artificially create a voting bloc (i.e. 'These 7 MPs represent Maori') when, if Maori really did want representation as Maori, they could get more than twice that number.

Proportional representation is a good idea. So let's just let it work.

[That's not to say that abolishing the Maori seats with Pakeha votes is a good idea, though. All I'm saying is that the Maori seats themselves are a bad idea...]