There would be few who would disagree with the approach to sentencing taken by Justice Cameron Mander in the tragic Lauren Dickason case.

Justice Mander effectively bypassed the jury’s decision that Dickason was guilty of the murder of her three infant daughters, with his comment that ““I am satisfied that your actions were the product of your mental disorder. I consider your severe depression dominated your mental process. Not just contributed to your actions but drove them.” In sentencing Dickason to three concurrent sentences of 18 years, with no minimum parole period, the Judge was rejecting the argument that she was guilty of cold-blooded murder. In practical terms, that means Dickason will be eligible for parole after six years.

Moreover, by ruling that she be detained in a specialist mental health institution until she is fit to be transferred to a prison, the Judge has ensured that Dickason will at worst serve a minimal time in prison. As it is, when the time she has been in detention since her arrest is considered, Dickason could be released by 2028, assuming her mental health situation has improved sufficiently by then. At that point, she will almost certainly be deported back to South Africa, to the care of family and friends.

Justice Mander is to be applauded for the way in which he has navigated often-inflexible sentencing rules to reach a solution that will be seen as the most reasonable in the circumstances. In that, he has set a standard for other Judges to follow in similarly harrowing cases. His judgement also raises questions about the adequacy of our law in such matters, and whether there needs to be greater capacity for juries to show more flexibility than the stark guilty/not guilty decision this case required of them.

But there is a delicious coincidental irony that on the same day Justice Mander announced his momentous decision, the government introduced renewed “three strikes” legislation to Parliament. That legislation, a United States solution to repeated offending that gained popular support during the 1990s, has long been championed by the ACT Party. Similar legislation was introduced here in 2010 and passed with only National’s and ACT’s support, with Labour, the Greens, the Māori Party and UnitedFuture opposed. It was repealed by Labour in 2022, against the opposition of National, ACT, and New Zealand First.

Introducing the new three strikes legislation this week, Associate Justice Minister, ACT’s Nicole McKee, said “Three Strikes law will help keep New Zealanders safer while sending a strong message to those who keep committing these serious crimes – repeat offending is not acceptable, and they will face increasingly serious consequences.” Under the law, which will have limited discretion for Judges to “avoid manifestly unjust outcomes”, offenders will be warned of the consequences of re-offending at their first strike and will be denied parole at their second strike. For a third strike, offenders will have to serve the maximum penalty without parole.

However, critics point out that, in the United States, three strikes laws have not proven a deterrent to violent crime, because violent crime is often not pre-meditated, but a spur of the moment reaction to a particular situation. In New Zealand violent crime has been sharply increasing since 2010, even during the time when the three strikes law was in place. 

Studies on the impact of three strikes laws in the United States have produced mixed results. At best, they appear to show such laws have had a minimal positive impact on crime levels. But some studies have produced more critical results, that offenders may be pushed to commit more serious crimes to avoid the escalating effect of three strikes sanctions. A Missouri study in 2015 concluded that three-strikes laws were associated with a 33% increase in the risk of fatal assaults on Police officers. Other studies have drawn attention to what they consider to be the uneven emphasis on violent crime, over, for example, white collar crime.

What is clear is, that despite the protections the government promises will be in New Zealand’s new three strikes laws, the overall intention is to provide more certainty in the sentencing process, by limiting the exercise of judicial discretion. The government has separately announced plans for legislation later this year to limit Judges’ discretion to impose lesser sentences. While these moves may satisfy the public lust for a strong sentencing response to aggravated violent crime, which is understandable in the current circumstances, they will come at the cost of the type of wise flexibility Justice Mander exercised in the Dickason case. Not all Judges will possess or be willing to adopt the same flexibility Justice Mander did.

Three strikes laws are designed to overcome what are often regarded as “weak” sentences from “soft” Judges to satisfy the public’s concerns that the law is not being properly applied. The risk is that this will induce a new general sense of judicial conservatism whereby Judges become more reluctant to adopt a compassionate approach to sentencing for fear of running foul of the three strikes regime.

The net effect of this, and the proposed reduction on Judges’ sentencing discretion, will be many more people clogging up our already overcrowded prisons. The Corrections Department’s figures show that it currently costs about $113,000 annually to keep a sentenced prisoner incarcerated, and the cost of the new prison being built at Waikeria has already surpassed $930 million. On that basis, the economic feasibility of building more prisons to house three strikes prisoners looks deeply flawed, especially in a time of severe fiscal restraint.

Mindful of Sir Bill English’s 2011 comment that prisons are “a moral and fiscal failure”, there are so many better priorities the government ought to be focusing on.  Improved mental health facilities to identify and help severely at-risk people like Lauren Dickason, before they commit horrific acts of (family) violence would be a good place to start.

In 2016 New Zealand instituted comprehensive new health and safety laws for workplaces and other areas of activity. The expectation was that the new regime the legislation introduced would dramatically improve the culture and practice around safety in the workplace, reduce the numbers of accidents and save lives.

However, the most obvious manifestation of the new legislation and its associated regulations has been a massive increase in compliance costs imposed on businesses and community groups. Traditional events like Christmas parades and other community activities have been cancelled because of the impost of traffic management requirements, and it seems impossible these days for even the most minor road maintenance tasks to be carried out without the accompanying panoply of ubiquitous orange cones and stop-go signs.

But so far, there has been no significant improvement in health and safety in either the workplace, the community, or on the roads. There were 275,568 claims under consideration by the Accident Compensation Corporation in 2016 when the new legislation took effect – by the end of 2023 that number had swelled to 292,380. It is a similar trend with the road toll. In 2016 there were 326 road fatalities, but by 2023 that figure had risen to 340.

In fact, all the new legislation seems to have done is spawn a new growth industry in traffic management businesses. There are many such companies operating across New Zealand, costing taxpayers and ratepayers millions of dollars annually for their dubious services. Traffic Management NZ is one of the most prominent of these. It employs more than 650 staff, operates hundreds of vehicles and thousands of traffic devices. Traffic Management NZ has proved such a successful business that it was recently fully acquired by the Altus Group, Australia’s largest full-service traffic management business. Altus Group is in turn owned by Pacific Equity Partners, Australia’s leading private equity firm, currently managing assets worth around $11 billion.

The battalions of road cones up and down the country are the most obvious evidence of the traffic management companies at work. It has been reported that the cost of hiring an individual road cone is $4 a day. Given the hundreds of cones involved in a project it is easy to see how the costs of traffic management are so high. In some cases, it has been estimated that traffic management compliance could account for up to 20% of a project’s total cost. Auckland Council estimated last year that traffic management compliance was costing it at least $145 million a year.  

The major manufacturer locally of road cones is RTL. In a description that few people would recognise as reality its website proclaims its mission to “engage with industry partners, regulatory bodies, and communities to share knowledge, collaborate on safety initiatives” and “to build lasting relationships, drive sustainable growth, and make a positive difference in the world.”

Bluntly, both the traffic management companies and the cone manufacturers have treated the 2016 legislation as a “cash cow” to grow their businesses, at the taxpayer’s expense, without, as the road toll figures show, any demonstrable benefit to road safety.

I now feel embarrassed to have supported that legislation when it was going through Parliament. At the time, I supported the proposition that our health and safety laws needed to be overhauled and brought up to date to be more relevant to current circumstances. But I never imagined the bureaucratic shambles and the profiteering at the public expense that would emerge as a result. Nor I suspect, did many of my colleagues across the House,

But it was probably too much to expect the hand-wringing previous Labour Government to have been prepared to deal with this growing monster. At the same time, the ongoing silence of the National Party about the mess its legislation has created has been self-serving and disappointing. Now, finally, it has fallen to ACT’s Workplace Relations Minister, Brooke van Velden, to do something about it.

Announcing a major review of the current approach to workplace health and safety, she recently observed that “Our health and safety culture can be summed up by the sea of orange road cones that have taken over the country. From Santa parades to property development, you can’t get a lot done without having to set up a barricade of cones. While they may improve health and safety in some places, in other situations their prevalence just doesn’t make any sense … Businesses and community organisations spend a huge amount of money trying to keep people safe, but it’s worthwhile asking: are the rules and expectations proportionate to the actual risks, and when should common sense prevail?”

Bravo Minister! But for the widespread consultation and review she has promised to succeed, it cannot get hijacked by the vested interests that have so dominated this issue since 2016. Therefore, for her ambition of a more common-sense approach – which naturally I applaud – to prevail, the pernicious dominance and numbers of traffic management and cone manufacturing businesses need to be broken. Exploiting health and safety rules for commercial gain, often at the taxpayer’s expense, the way they have done since 2016 should no longer be tolerated, especially when there has been no demonstrable improvement in the overall situation since then.

Van Velden’s challenge is to break this nexus and to restore a more sensible balance. There will be many road users, small businesses, voluntary and community groups, and kids of all ages who like Christmas parades and other community fun, wishing her every success.   

 

Last week’s Budget marks the final stage of the political transformation that began with the election and the change of government. Until now, the coalition government had been working on the budget set by the previous government for the 2023/24 Budget. That is why so much of the new government’s activity has focused on the obliteration of the previous government’s record and reputation.

From now on, however, the government will be operating on its own Budget settings, so its attention should likely shift from dismantling what Labour did to putting in place the coalition’s alternatives. The Budget’s income tax changes signal a shift towards greater self-reliance. Recent policy announcements in education and housing, controversial though they may be, reflect a shift in emphasis away from what happened before to what the government intends for the future.

But the government’s appalling handling of the cancer medicines funding question in the Budget, coming on top of the earlier fiasco over smokefree legislation, will raise questions about its capability to effectively manage difficult political situations and to deliver effectively its policy outcomes. Its tin-ear approach to public sector redundancies reinforces those questions.

Therefore, the government will need to get on top of both these situations in the next few months, to restore its currently teetering credibility. Failure to do so soon, will simply spill over into wider doubts about its capabilities in other areas, to the potential detriment of the attainment of its wider goals.

There have, however, been some positives for the government. On the international front, both the Prime Minister and Deputy Prime Minister, along with the Minister of Defence have been busy shoring up traditional relationships, and trying to move on from the ambivalence that has been clouding such relationships in recent years. While the “New Zealand is open for business again” message they have been conveying has ruffled a few feathers at home, it does appear to have been positively received on the international front.

Nevertheless, much work remains to be done in this field, with the still-to-be-resolved question of whether New Zealand joins Pillar Two of the AUKUS agreement, and how the domestic politics surrounding any such move will be managed. And China remains a delicate matter, both in terms of our near-total economic dependence on Chinese markets and the increasing Western unease that led to the formation of AUKUS in the first place.

On the domestic front, the first six months have burnished the reputations of several National Ministers, aside from the Ministers from Zealand First and ACT. In particular, three Ministers – Nicola Willis, Chris Bishop and Erica Stanford – have impressed as potential successors to the Prime Minister at some point in the future. Special mention must be made of former leader Judith Collins. She is working tirelessly across a range of heavy portfolios without rancour or grandstanding and is one the government’s most successful quiet achievers.

Winston Peters has slipped seamlessly back into his third stint as Foreign Minister, and ACT Ministers David Seymour, Brooke van Velden, and Karen Chhour have generally been on top of their game.

For Labour, leader Chris Hipkins has been its best performer so far, often appearing to be the sole Labour MP taking the fight to the government. Hipkins has so far defied speculation that he would be merely hanging on as leader, until a suitable replacement could be found. Given the paucity of talent in Labour’s ranks that is likely to last longer than many first imagined. Indeed, it seems not unlikely at this stage that he will lead Labour into the next election, something few would have imagined after last year’s election defeat.

One impressive find for Labour has been new finance spokesperson, Barbara Edmonds. While still learning the ropes of Opposition, this former highly skilled tax lawyer, who was briefly a Minister last year, is beginning to demonstrate that she might be the long-term answer to Labour’s leadership question.

Elsewhere, since the election, there have been other significant changes. Three former Labour Ministers – Andrew Little, Kelvin Davis and Rino Tirikatene – have already resigned and been replaced by three Labour retreads – one-term list MPs defeated at the last election. Two Greens MPs have resigned and been replaced by new list MPs. There has been the tragic, sudden death of Efeso Collins, the first sitting MP to die in a decade, and his replacement by another new Greens list MP. And there is the still unresolved case of Greens MP Darleen Tana and her lengthy “gardening leave” while her, and her partner’s business practices are investigated.

The government’s first six months have also seen a significant level of public protest against various government policies. While much of this has been organised by traditional opponents of the current government, the level of response has been far greater than in recent years, with the notable exception of the 2022 prolonged occupation of Parliament grounds.  

Various allegations about Te Pāti Māori and potential misuse of Census data and Covid19 vaccination records and the confirmation of subsequent official investigations into these alleged malpractices, round out what has been a often chaotic start to New Zealand’s 54^th Parliament and fifth MMP government.

The next six months will be telling for the government. There will be a greater expectation following the Budget that it will now turn its focus more to implementing its own policy agenda than dismantling what went before it. To do so successfully, and notwithstanding the shortcomings of other parties, it will need to lift its game substantially to retain the political initiative.

The government still has a long way to go.