Mark Hotchin and the New Zealand Police State – No Charges to be Laid.

On news being reported by NBR this morning (paid content) that the Serious Fraud Office might well be reporting Tuesday they cannot make a case against finance company director, Mark Hotchin, and therefore, will not be laying charges despite his assets having been frozen by the state for closing in on three years – yes, three years, and still counting - I am repeating my last two posts on the case of Mr Hotchin, being the proof of the state’s disdain for the rule of law in New Zealand, (no matter what you might think of Mr Hotchin), and evidence of the police-state that our society has become.

Note that, yes, it was the Financial Markets Authority, FMA, (see below) that instituted the freeze, which holds until the FMA civil case against the directors of Hanover is held - whenever that will be - however, that is worse, for the civil action is inappropriate in itself, and particularly the freeze because of that fact, alone, regardless of the amount of time that has now transpired, for in a society under the rule of law, the state has no place in the civil prosecution of Hanover - see points (1) and (2) in the below post.

Given the harm the state has done to Mr Hotchin by the fruitless action so far in the criminal jurisdiction, does anyone know what avenues an individual in this scenario has for restitution?

Update 1 at bottom of post, regarding SFO transcript published Tuesday, 30 April, 2013. 

Previous posts follow:

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Hotchin Reprise: End of the Rule of Law - A Kiwi Fair Go 

This being the first day of June, 2012, I am simply publishing a piece I first penned December, 2011, to mark the then first twelve months of ex-Finance Company director Mark Hotchin's asset freeze, not only without trial, but without a charge having been laid. Nothing has changed from when I wrote this; Hotchin now enters his nineteenth month without any criminal charge by the state, and it's sadly looking like, when his assets and his - and his families - lives were frozen, the state had no criminal case in prospect of prosecution. What a shameful indictment of the (lack of) the rule of law in New Zealand, as I define this in my article following.

I don't know Mark Hotchin, I'm neither defending nor attacking him: we simply owe it to ourselves to dispassionately understand the nature of the society we live in, and most of us would know what sort of a state practices detention without trial; well, an asset freeze with neither trial nor charge, for nineteen months, is a police state. When we smugly watch the nascent protests against Putin in Russia, and draw the obvious conclusions about that state, we are all missing the jackboots standing inside every room in New Zealand.

More and more I ask myself how can this happen? Every NBR and interest.co.nz thread about Hotchin is full of personal vitriol against the man, with no one seemingly able to grasp the desperate principles underneath his frozen life. I suspect it just shows how slavish as a society we have become behind the IRon Drape, in which the unprincipled hate of people laughing at the state-built gallows of their own lives, is part of the course in a country where a vigilante TV show consistently tops the weekly ratings.

Anyway, I paste my previous article below: Hotchin, and the end of the rule of law behind the IRon Drape in New Zealand. (Note this was first published in Lindsay Perigo's SOLO, and in that piece referred to the first version of this [now resurrected] blog).


________________________________________________________________

To some, the concept of the rule of law is hard to pin down. But I don't think so. In 1610, James I of England described it thus - remembering historical context please:

Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government....

As an Objectivist Libertarian, this notion of not being victim to arbitrary government - now channeling in Hotchin's case the venomous tyranny of the majority - together with the classical liberal maxim I quoted on my Lyttelton thread that all individuals have rights and responsibilities, and it is the job of the state (small s ) only to protect those rights, not to assume those responsibilities, and lastly, combined with the further ethic that a free state is grounded on the non-initiation of force or fraud principle, including particularly force of government on the governed, give the height, width and breadth of what is meant by the rule of law.

It has become clear to me, however, that New Zealand falls far short of this, and the single case of Hotchin keeps coming back as the festering sore to show the lie of it. Just under one month ago, I wrote in this blog:

Nothing attracted vitriol to my old blog Life Behind the IRon Drape more than the pieces I wrote on Mark Hotchin and Allan Hubbard (no relation). I may soon put them up again here, over December. For the coming one year anniversary I'm writing of is the freeze that was put on Mark Hotchin's assets over December, 2010. I have no idea whether Hotchin will be found wanting in respect of the laws of New Zealand, but he has now had his life frozen by the State for a year and not only has never been given the chance to defend himself in court, he's still not had a single charge laid against him.

To me, this denotes a State with far more power than I'm comfortable with, and no justice for the individual of Mark Hotchin, no matter what you think of him. The champagne thieving bureaucrats at the SFO need to charge Hotchin, or not, and give him his day in court (and unlike Mr Hubbard, don't make him have to sue to use his own money to defend himself). This isn't Putin's Russia, is it? It's New Zealand. Perhaps the difference is far less than we would all like to think.

Well, we've now reached the one year anniversary, and the only marker to this is New Zealand's new huge bureaucracy, the FMA - Financial Markets Authority - announcing that in the new year they're going to launch a civil case against Hotchin on behalf of Hanover's investors.

Wait a minute: what?

These are the questions I would like answered:

1) I contend the rule of law does not encompass the State taking a civil case, using taxpayer money, against Hanover. Surely this is outside the role of the State in a free country, as the losses borne are between Hanover and its investors: it's a private matter to those two parties, to be worked out through civil claims. The FMA should take no civil case for the same reason not one government should have bailed out one bank, and New Zealand should never have had legislated the Deposit Guarantee Scheme, with the disastrous unintended consequences it entailed. That is, just as the State and the Church were separated historically, to further the cause of freedom, so now must the state be separated from the economy and functioning of a free market, by which I mean, given the market is simply where individual needs and desires find their expression and resolution, separated from the lives of individuals, period.

2) My real concern, Mr Hotchin has had his assets frozen for over one year now, and still no criminal fraud charge has been laid, and prosecution of same would be the only appropriate role of state (which civil cases may well flow from). Nobody seems to have difficulty understanding that detention without trial is a practice that denotes the totalitarian State, not a state of freedom, well, how is Mr Hotchin having his life effectively frozen for over one year without a trial, or even a charge, any different (no matter what you might think of the man)? Does he get access to his funds to fight the State now in this civil case? Surely, even if it were legitimate the State take the civil case - it's not, but bear with me - then any criminal wrongdoing must be proven first?

To this individual, who values his freedom more than anything else, the frozen Mr Hotchin is deeply unsettling. Mixing a quotation from a famous contemporary of James I,'something is rotten in the state of New Zealand'; I wonder if we'll finally smell the truth of it after Mr Hotchin has been thawed out, whenever this arbitrary Nanny State decides on its whim to do so?



Postscript:

A clarification, per my post below. The SFO is still to report (I'm assuming), but that doesn't change the fact the FMA should not be making the civil claim: if the prospectuses held fabrications, then that's a criminal matter of fraud, and it's down to the SFO only. Surely that's the only legitimate role for the State? The FMA is a 'worrying' new branch of State power in New Zealand, especially when, already, less than a few months since its inception, its muddying the waters like this by taking the civil case. 

Update 1: SFO Statement.

The SFO statement is now made, and is posted to interest.co.nz here.

What an appalling statement from a government bureaucracy. It puts the boot in on emotive terms in every paragraph, smearing all the time the reputations of those involved, and then states they can't make a case.  

That is: they can't make a case. End of.

No members of a ministry should be using such emotive terms when there is no case to answer to, and it's not as if they've not put the hours into it. The entire notion of innocent until proven guilty, or in this case, even charged, doesn’t seem to exist in New Zealand anymore, and this from government officials.

And I know and understand the vitriol that will flow to myself, and Hotchin from this release, and this comment, however, think what you will of Hotchin, I don’t know the man, but the state has just shown they can freeze your assets, which is to freeze your life, for almost three years, not only without charge, but obviously when the freeze was first put on, without even a case to be had - that freeze must have been on emotive whim, also, just as I have been saying since the first year of the freeze.

The case only proves the disdain the state operates regarding the rule of law, and how we as a society are far closer to a police state, than a free society. And again, per my piece above, the FMA’s civil case is wholly inappropriate to a free society living under the rule of law.

I hope the MSM are going to pull the SFO apart, and the government that did this.


Cactus Kate sums the result up well:

32 months,107,000 pages, 3,730 gb over 12,700 hours. 54 interviews over 120 hours, more than 30 individual loans = nothing but a witch hunt
— Cactus Kate (@CactusKate2) April 29, 2013

The Westminster Principle in Taxation: It’s What the ANZAC’s Were Fighting For.

It’s worthwhile reading to the end of this one, for it finishes with an ANZAC story about New Zealand’s war-time hero, Charles Upham (V.C. and Bar), and the sad knowledge he gained about the society he came home to after WWII, as it changed about him into something that more resembled what he had been fighting.

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This ANZAC Day it is worth remembering our birth right in the West, paid for by blood, was classical liberalism; that philosophy of limited government and liberty of individuals: freedom of speech, markets, religion, assembly, of thought and intellect, and a free press (free to criticise and oppose, without fear of retribution) - the state as servant of the individual, protecting their person and property, not the state as tyrannical master, plunderer by force of property and liberty.

It was this ideal that the ANZACs were fighting for, and died for: men and women. And incalculable more men and women have died trying to escape the state tyrannies they were born in, be it the Soviet Union, Cuba, China, North Korea, et al, to be perhaps capable of the chance of living free lives.

Within this philosophy the very notion of a compulsory taxation does not sit well, frankly, although if we must have such compulsion forced on us by the state, voted for by a mobocracy looking for the illusory free lunch, then Commonwealth countries have had in legal precedent since the 1930’s a landmark classical liberal principle, referred to as the Westminster Principle, that gave the individual some small degree of liberty from the all-powerful state in its taxing operations, which is the operation of the authoritarian surveillance state:

Every man is entitled if he can to arrange his affairs so that the tax attaching under the appropriate Acts is less than it otherwise would be. If he succeeds in ordering them so as to secure that result, then, however unappreciative the Commissioners of Inland Revenue or his fellow taxpayers may be of his ingenuity, he cannot be compelled to pay an increased tax. (IRC v Duke of Westminster [ 1936 ] AC1 (HL)).

That is, the individual can arrange their affairs vis a vis structuring, estate planning, et al, according to their own rational self-interest - so long as 'artificial' (non-commercial, non-market) steps are not taken to 'avoid' tax - and not pursuant to supplying the maximum revenue, necessarily, for the coffers of the redistributive larceny conducted from the Fortress of Legislation: the individual ascendant, not the state.

It is a disgrace that in New Zealand even this principle has over the last decade been destroyed, and destroyed utterly, in the very courts that were meant to be the individual’s buffer against the tyranny of state. I’ve explained why on this post: the minds of our children have been captured in the classroom, generation after generation, and immured on the treacherous reef of belief in a statist theocracy; 95% of our secondary school teachers belong to that hard Left union, the PPTA, with a similar percentage of primary school teachers signed up the NZEI. These teachers preach the forced sacrifice of the individual’s liberty on the bloodied altar of the common good, and the state as redistributor of private property in a morality turned on its head. Our School Curriculum Document imposes this Soviet ethic into the basis of our very curriculum.

So it is not surprising to find Deborah Russell, Massey University lecturer in taxation, openly declaring her Left politick to the impressionable minds being taught by her, and perversely rejoicing in the op-ed of the Dominion, about the demise of the Westminster Principle:

This principle has been beaten back in recent years, in particular by laws that ask people to consider whether the tax minimisation scheme they have entered into is so artificial that instead of merely avoiding tax, the taxpayer is actively evading tax.

But even if the procedures used are legal, it’s not clear that they are ethically acceptable. This is in fact the closest I can get to understanding exactly what a rort is: it’s something that is technically legal, but nevertheless pushes the law to such an extent that it is immoral.

And it is immoral to make such a big effort to avoid paying taxes. It amounts to saying that you just don’t give a damn about anyone else, and that all you want to do is take. And take. And take some more.

[Snip]

We’ll know that the government is serious about all New Zealanders contributing fairly to the common good of our society when they start asking hard questions of their tax avoiding mates.

The capitulation of freedom and the ethos of individualism is complete in these four paragraphs: we don’t have tanks on the streets, but it gets little worse than this, for we have lost the battle where it matters: in the minds of the citizenry. Because when the Westminster Principle was lost, by the same process in every sphere of life in our social(ist) democracies, every value that made the West the best civilisation to live in, ever, is gone. I only need to parse the news this week to prove the point (and my blog shows I can do this process every week).

Here, a judge in our employment courts has just disallowed a redundancy on the grounds the employer didn’t have the ‘business case’ for it:

It has been confirmed the Employment Court can inquire into the business case behind a redundancy to see if it is genuine.

Confirmation, with major implications for employers, is found in the recent judgment of Employment Court Chief Judge Graeme Colgan, who found the rationale behind a Hawke's Bay farm’s decision to make a farm worker redundant did not stack up.

If you’re not certain what just happened here, then the below two comments made to that thread demonstrate the gravity of it:

So the lawyer judge stands in the shoes of the employer making financial decisions affecting other staff and shareholders but with no responsibility for the company's operations.

And:

On the face of it, the company had made a judgment that the job did not require a person of the existing holder's skill/experience and it would save money by downgrading the position. Offering the position to the present holder at a lower salary is OK in theory but it will only work if the person concerned accepts the situation. As often as not, as a result of the downgrade, the person has a 'chip' on their shoulder. As a general rule, judges with little or no senior management experience are not competent to make these sort of decisions.

There is no philosophical or political difference, from the demise of the Westminster Principle, or to the fact of an employer’s business being everybody else’s business but his own. There's not one without the other: everything connects.

And again this week, to cite another example of the rampant statism that rules, a practitioner of a once proud free press in the United Police States of America, preaching the nationalisation of children:

MSNBC’s Melissa Harris-Perry, responding to a backlash for a promo she recently appeared in, doubled down Monday on her claims that children do not belong solely to their parents.

“This isn’t about me wanting to take your kids, and this isn’t even about whether children are property,” she said. “This is about whether we as a society, expressing our collective will through our public institutions, including our government, have a right to impinge on individual freedoms in order to advance a common good. And that is exactly the fight that we have been having for a couple hundred years.”

The MSNBC host has been thrust into the spotlight lately for a network promotion she appeared in, claiming that kids belong to whole communities.

“We’ve always had kind of a private notion of children. Your kid is yours, and your responsibility,” she says in the ad. “We haven’t had a very collective notion of ‘These are our children.’ So part of it is we have to break through our kind of private idea that ‘kids belong to their parents’ or ‘kids belong to their families,’ and recognize that kids belong to whole communities.”

This entire notion is so horrific, children belong to ‘communities’, just as my wallet and my bank accounts do via the tax department, that if I have to explain it to you, then sorry, you’re one of the fallen, there’s no coming back to humanity for you. What do you think of your children belonging to the community, Deborah?

Returning to these shores, and to where I started this piece, the Dawn Parades to commemorate the heroic fallen on ANZAC Day, an anecdote provides no better place to sign off on.

I have in the past talked to several IRD staffers in Christchurch, who commented on how ‘unpleasant’ it was dealing, before his death, with Sir Charles Upham, VC and Bar, on his farm north of Christchurch, and I don’t mean audit, just routine advisories, for example, when GST first came in: please don’t take offence, my friends in IRD, but after he got through with fascists in Europe, Sir Charles came home and obviously realised with rude shock the enemy was in-country: that enemy was the rampant state that maintained by force and coercion ascendency over the liberty of the individual, and the rubber met the road bearing the police-state to Sir Charles’s farm via the Inland Revenue Department, so he dedicated himself, it seems, whenever the opportunity arose, to make life particularly unpleasant for IRD staffers who dealt with (to) him.

So, and sorry, in what might seem a very low blow, but in fact is simply me having to  get down to the bottom of the grave in which classical liberalism has been buried; to the Deborah Russells, to the politicians that hold the theocracy of themselves over our lives, to the bureaucrats in the departments that daily usurp the rule of law by enforcing police-state powers upon us; if you woke up early this morning and attended a Dawn Parade, then what the hell were you thinking? Sir Charles understood the enemy, and I'm afraid it was you. Daily, as you go about your work, you disgrace and pile dirt on top of what the ANZACs were fighting for: our freedom; Classical liberalism; the Westminster Principle; our right, if we are harming no one, to be goddamned left alone by you and this enormous, lunatic state that’s comprises over 44% of the spend in our entire economy.

Finally, it is further worthy to note, when the Westminster Principle was being attacked, mutilated, by the hive mind of our judiciary, and then buried without ceremony, what was our current Minister of Taking, Peter Dunne - tweeting this morning about the Dawn Parade that he had attended - doing? Did he straighten his back, go to battle in the Fortress of Legislation, using the law to reaffirm the primacy of that principle to New Zealand as a free Western nation? No: everything Mr Dunne has done since holding that office, farcically, though damningly symbolic of the statism under which our system runs, under both a Labour, then a National government, via coalition, has been to merely write the epitaph on its tombstone, and bury it, with our liberty, as deep as he could, thinking he is legislating the fair society. What do you think Sir Charles would have to say to you, Peter? I know what that would have been, from my conversation about him, but I can’t write it here, suffice to say it would be along the lines of what I have said on this very blog before: George Orwell wrote a chilling view of the nightmare society in his novel, 1984, in which he said ‘If you want a picture of the future, imagine a boot stamping on a human face — forever’; well you, Peter, have your head stuck so far up the politick, you have lost sight and feeling for those taxpayers, faces down, necks exposed, you spend your career stamping on, and as your department is commissioned to do, forever … Every year liberties continue to be lost as the state grows itself, and we are taken down the road to our serfdom.

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