Disappointed

Don Brash has withdrawn his support for the Civil Union Bill. Needless to say, I'm disappointed. While I don't like Brash's economic policies, his talk of being a social liberal almost had me convinced that he cared about freedom in a social as well as an economic sence. But then, he's already shown his willingness to betray fundamental human rights when there are votes on the line, and his willingness to flat-out lie to stir racial hatred for political advantage - so why should we be at all surprised that he's willing to sell out gays?

In a way, this is worse than the mindless bigotry of the Campaign Against Civil Unions, because Brash knows better; he has consciously chosen to pander to bigots to gain votes. But we should not conclude from this that Brash is not a "man of principle" - in fact, he has one very clear principle - tax cuts for the rich - and he is willing to sacrifice anything and everything if it will help him achieve that. Even when it tramples all over other principles that he purports to hold dear.

The gay community should remember this. When push came to shove, National's leader threw them to the Christians in the hope of getting the bigot vote. And the rest of us should remember it too, because it shows how far Brash will go for ambition.

Forgotten

Another MP to email on the Civil Union Bill: Ron Mark. He voted in favour on the first reading, but for some reason I always forget him...

What we're dealing with

The Campaign for Civil Unions has posted a list of quotes from submissions against the Civil Union Bill, which gives some idea of what we are dealing with. Passing the Bill will cause us to "sin as a nation", encourage "corruptions of the divine order", and "bring a curse on our land"; gays are "a blot on society, unhealthy, repugnant", "a burden to the state", and "worthy of death". These people are hateful, feral, and seemingly deeply disturbed (not to mention having a poor grasp of ethics). They're also obsessed with anal sex - as seen in this classic

the rectum is for excretion not for the wasting of sperm. Sperm is what produces children it was not created to flow up stream.

What next? Corruption of our precious bodily fluids?

If we really needed any proof of why religion has no place in public policy, then this is it. These people want everyone to live according to the dictates of their god, an idea whose stupidity was conclusively proven by the religious wars and massacres of the sixteenth and seventeenth centuries. And they see the law as a way of achieving this. But the law does not exist to promote or enforce virtue - it exists to keep people from each other's throats so that they can find virtue for themselves.

Different religious beliefs are a fact. Different sexualities are a fact. Different ideals of the good life are a fact. The only way we can live together as one society without killing one another is to accept these facts, and establish a neutral framework that allows people as much freedom as possible to live their own lives, and denies the right of any tendency or ideology to use the state as a weapon against its enemies.

Reporting back

The Justice and Electoral Committee has issued its report on the Civil Union Bill [PDF], which opens the way for the Bill to be passed later this week. There have been a number of cosmetic changes - mostly changing terminology to more clearly seperate civil unions from marriage (CUs are no longer "solemnised", they are "entered into"; parties to a civil union are not "spouses" but "partners" - as well as one significant one: the recognition of foreign partnerships that are equivalent to a civil union (in much the same way as we recognise foreign marriages). There's also been a freeing up of the vows from the traditional "I AB take you CD..." to a clear statement by each party that names the other and acknowledges that they are freely joining in a civil union together. While Stephen Franks and Murray Smith objected to this as producing a "vacuum of purpose" at the heart of the bill, it simply acknowledges that the relationship is ultimately personal, and reflects this by allowing people far greater freedom to celebrate it in the manner of their choosing. The same trend can be seen in the growth of personalised vows in marriages (I can think of only one wedding I have been to which was not personalised in this manner), and while most personalised marriage vows are reminiscent of bad teenage poetry, it cannot be denied that they reflect the participant's wishes. And that is as it should be; the Civil Union Bill is on the right track here, and the Marriage Act should be amended to follow suit.

I'm quite disturbed by Franks' opposition in this area, especially as he also notes that the similar vacuum in the Marriage Act is fleshed out by custom. These are not the words of a man who thinks the state should leave people free to decide for themselves what their relationships look like; rather, he is advocating that these matters be dictated to people by law and tradition. It's a salutory reminder that despite its rhetoric, ACT is not a liberal party in any meaningful sense of the word. They do not care about freedom of speech. They do not care about human rights. And as seen here, they do not care about individual freedom and choice in the most central and personal aspects of our lives: our relationships.

The Bill is expected to go through its final stages on Thursday, so if you haven't already, email your MP and let them know what you think of it.

The perfect response

DPF has been talking about a pastor who has started a "limited fast" to save society from the Civil Union Bill, and Paul Adams of United Future has jumped on the bandwagon. How should those in favour of freedom, equality and justice respond? Eating for them, of course!

Gay Eaters for Jesus, a national group providing tautoko to the Government’s proposed Civil Union Bill and Relationships (Statutory References) Bill, began it’s campaign of support for the legislation by calling on supporters nationwide to treat themselves to an extra portion of kai when they sit down for the next meal.

[...]

"We want to promote a positive message with our action", said Xavier Goldie, facilitator of GEFJ. "Too often activists like Mr Adams and Mr Trim like to punish themselves when engaging with the political system. We feel that it is our duty to make sure that the extra food left over by these deluded individuals isn’t going to waste".

I for one intend to eat a little extra over the next few days - for Paul's sake.

Making us look like misers

The Alliance's great policy achievement when in coalition between 1999 and 2002 was the introduction of 12 weeks paid parental leave - a policy achievement they had to drag out of a Labour party which was desperately trying not to scare the business lobby. Since then, Labour has announced a moderate expansion of the scheme, cutting the qualifying time from one year to six months and gradually extending the period to 14 weeks (the first increase kicks in on wednesday).

Meanwhile, in Britain, the Blair government is making us look like misers, extending their paid parental leave scheme from six months to one year...

I want to believe

The Alliance is meeting this weekend to discuss their election strategy. It's expected that they will decide to contest the party vote, and elect a new leadership that actually has some interest in the party. Hopefully in the process they'll also appoint somebody to handle their press operation, which is woefully inadequate at the moment. There are a number of issues which I'd expect a left party to be highlighting at the moment - Civil Unions, asset forfeiture, and Ahmed Zaoui among them - on which the Alliance has been silent. While some might blame the media, there are simply no releases about these issues on their website; presumably their spokespeople have declined to voice an opinion. But media attention is the lifeblood of a political party, and in order to get some you have to at least say something.

I want to believe in the Alliance. I think there is a need for a left alternative to Labour for people who can't stomach the Greens, and until 2002 the Alliance provided this. But unless they can get their shit together, and start actually voicing that alternative, then they have noone to blame but themselves.

Ukraine

The disputed election in the Ukraine is now in the hands of the courts, though their Parliament has called for another election. What's frightening is that members of the police are choosing sides - and the army are doing likewise. When those responsible for enforcing the state's authority start doing that, it is a recipe for trouble.

At the same time, the Guardian has a pair of articles to warn us of the biases in international media coverage and that those currently denouncing the election for failing to meet international standards are not uninterested in the outcome and have hardly been consistent:

Countless elections in the post-Soviet space have been manipulated to a degree which probably reversed the result, usually by unfair use of state television, and sometimes by direct ballot rigging. Boris Yeltsin's constitutional referendum in Russia in 1993 and his re-election in 1996 were early cases. Azerbaijan's presidential vote last year was also highly suspicious.

Yet after none of those polls did the Organisation for Security and Cooperation in Europe, the main international observer body, or the US and other western governments, make the furious noise they are producing today. The decision to protest appears to depend mainly on realpolitik and whether the challengers or the incumbent are considered more "pro-western" or "pro-market".

But the lesson to take from this is not that we are wrong to protest electoral fraud in this case, but that we are wrong to remain silent in others. It is a call for us to urge greater consistency on our rulers, so that they actually stand up for our beliefs rather than using them as a front for self-interest and realpolitik. If we truly believe in democracy, we must insist on free and fair elections everywhere - not just where it suits us.

A question

What is it about ACT and dodgy small businessmen?

Liberals and Zaoui II

The Whig, commenting on the Zaoui case, trots out the old lie that liberals are somehow inconsistent in standing up for his human rights:

What really gets my goat, however, is, well... everybody involved in this argument. Firstly you've got the "left wing", who allegedly are supposed to support human rights and liberal politics. Zaoui, however, is a fundamentalist. Can you see them sticking up for any other kind of fundie than an Islamic one? Again, it ain't gonna happen.

To which my only response is that when a fundamentalist Christian is imprisoned without charge or trial on secret evidence, then I will indeed be speaking up in their defence. As I told Sock Thief several months ago, liberals do not oppose the government's treatment of Zaoui because of who he is or what he believes; we oppose it because of who we are and what we believe: that imprisonment without charge or trial can never be justified, regardless of who it is done to. Sadly, The Whig seems unable to look past the man and his religion to these underlying principles.

This is how it begins

Ten Iraqi political parties have requested that the upcoming elections be delayed. Unsurprisingly, most are part of the interim administration. I guess they haven't stacked the electoral system sufficiently to be sure of winning yet...

Tribunals and hate speech

DPF and Big News want Jacqui Grant removed from the Human Rights Review Tribunal for her letter to the Campaign Against Civil Unions. And sadly, I agree. While CACU are bigots of the first order (check out Hard News for the details), members of quasi-judicial bodies such as the Human Rights Review Tribunal must be seen to be neutral and impartial. Grant fails that test, just as Laurie Grieg did, and should resign.

At the same time, it's difficult to see how anyone who cares about human rights could be seen as neutral by people who are as implacably opposed to them as the Campaign Against Civil Unions. But Grant didn't fail by their standards - she failed by ours, and that is why she must go.

I also agree fully on the undesirability of hate speech legislation. While I deplore Christian bigots waging a campaign of hatred against gays, unless they cross the line into threats against specific individuals or incitement to immediate violence, there is absolutely no justification for suppression. The answer to undesirable speech is more speech, not less.

Tainted by secrecy

I was hoping that the investigation into the allegations that the SIS had spied on Maori political groups would help clear the air. Unfortunately, it seems that the Inspector-General of Security Intelligence will be doing everything in secret. This secrecy will ireevocably taint his findings, and do nothing to dispel public suspicion.

While ostensibly about the behaviour of the SIS, the real purpose of the inquiry is to restore faith in our intelligence services. This means that it must be conducted openly and publicly - anything less simply adds to the suspicion and suggests a coverup. In criminal matters, we abide by the principle that "justice must not only be done, but be seen to be done". In a matter which threatens the basis of our democracy, we can apply no less a standard to our spies.

The JimBot speaks again

Once upon a time I thought that the Progressives might be worth voting for as a "wing party" to help pull Labour further to the left. Then Jim Anderton started talking about company tax cuts and recasting the party as the party of "small business with a social conscience". Now, he's suggesting that we should expand police powers to search suspected drug dealers.

The problem here is that this is a fundamental abuse of civil liberties. The Bill of Rights Act affirms the right to be secure from uneasonable search and seizure. "Unreasonable" generally means "without a warrant", but we already have an exception under the Misuse of Drugs Act 1975 allowing police to search on "reasonable belief" (suspicion) of posession. This power is widely abused and needs to be limited - not expanded.

Until now, the Progressives have had an excellent record on civil liberties. Their other MP, Matt Robson, has been a strong and reliable voice on civil liberties issues and sensible (as opposed to vindictive) sentencing. Hopefully he will challenge this policy and ensure that there is proper oversight of these provisions, rather than expanding powers which are already being abused.

Power and Greed

While my CBIP shows that I am currently reading Selwyn manning's I Almost Forgot About The Moon, I've been neglecting it in favour of other books over the past few weeks. One of these has been Philippe Gigantes' Power And Greed.

Gigantes' central theme is the clash between individual freedom and the need for rules to prevent that freedom from descending into a Hobbesean nightmare. But rather than examining this as a question of political theory, Gigantes looks at it through the lens of history - and specifically, the history of our rulers. Gigantes calls our rulers the "Grand Acquisitors", those who "always want more, and hence... disturb the social order" who he compares to the dominant male in a pride of lions:

The rest of the pride does all the work to get a kill; the dominant male gets the best share of the meal, all the sex, and he does the serious roaring. The dominant lion has the power, and he has the greed.

According to Gigantes,

grand acquisitors, in their need for freedom to achieve their desires, wage war on society's need for order - a war that often has a determinant effect on history

(Lest anyone think the portrayal is purely negative, Gigiantes also points out that the acquisitors are "creators as well as destroyers", and that they have given us the industrial revolution, railroads, and much of modern society's infrastructure. Power and greed is a powerful motivating force...)

The first part of the book looks at our most influential rulemakers - those who have generally established the social order the grand acquisitors struggle against. Most are religious - Moses, Jesus, Mohammed - but there are also several secular rulemakers, particularly Solon and Plato. The former is praised for establishing the rule of law and open government, and for giving political power to the masses so they could check the powerful; the latter is reviled for laying the foundations of totalitarian oppression. Brahminism also comes in for heavy criticism for its caste system. The overall message? Sometimes the rules can serve the powerful.

However, by far the longer and more interesting section is a short history of the world from the rise of the Roman Empire to the global vilage, focusing on the grand acquisitors. Agrippina, Justinian and Theodora, Cortez and Pizarro, and Napoleon all feature in a long history of conquest, torture, rape, looting, and pillage. But the picture is not entirely dim; Gigantes gives credit where it is due, praising moderate rulers such as Henri of Navarre and pointing out that while the British Empire fought two wars to enable its businessmen to sell opium to Chinese peasants, it also ended the global slave trade and transplanted democratic values to India. He also praises the United States for its constitution enshrining the principle that the people were sovereign and that their delegated power could be revoked. While it has not always lived up to those values, they are there, "a sort of immune system eating away at political disease", corroding the power of grand acquisitors everywhere.

I'm not fond of the "great man" theory of history - I prefer to think that there are only ordinary men in great situations, which magnify both their virtues and their flaws. But while Gigantes focuses on the grand acquistors, he's not focussing on their uniqueness (an essential part of great man theories). Instead, he is stressing their essential similarity, in being ruthless monsters driven by power and greed.

Impeaching Blair

23 Members of the British Parliament have tabled a motion calling for Tony Blair to be impeached over Iraq. If accepted, it will be the first bill of impeachment brought in the House of Commons since 1806.

It doesn't have a hope in hell of succeeding, of course - but if it gets a debate (and it would be grossly partial of the Speaker to deny one), it will help in some small way to holt Tony Blair to account for his lies.

A new commandment

The latest Foot in Mouth cartoon from Dorking Labs shows the true face of the anti-civil-union lobby.

Calling up grandfathers

The US Army is so desperate for men they are now calling up grandfathers to serve in Iraq:

A 53-year-old Vietnam veteran from western Pennsylvania has been called up for active service with the U.S. military in the Iraq war, The Tribune Review of Greensburg, Pennsylvania reported on Wednesday.

Paul Dunlap, a sergeant in the Army National Guard, will join an armored division next month as a telecommunications specialist in Kuwait, and expects to be there for at least a year, the newspaper reported.

Dunlap, who has not been in combat since serving as a 19-year-old Marine in Vietnam, could not be reached for comment. He will leave behind his wife Mary, four children and three grandchildren.

What next? Sending pressgangs to veterans homes?

Correction

A parliamentary staff member informs me that the Voters' Voice mass email service does not append an ad to your message.

There is their stock standard CIR comments which the user can delete if they wish. There are a number of people who regularly use the VV service to email us about their own issues and the only reason I know it comes from VV is because of the format it arrives in. So I would encourage people to use it, it is an easy service, and saves people with free web based email from having their accounts jammed for being a suspected spammer

So, there you go then. Email your MPs today!

Reactions

Reactions to the Zaoui judgement:

• The Greens call it "a great day for justice";
• The Progressives call it "a victory for procedural fairness, for the rule of law, and for common sense";
• National regurgitates the same press release it issues after every judgement, calling the process "farcical" and saying that it is time for the Inspector-General to rule - which goes to show that Tony Ryall is not at all acquainted with the issue. The Inspector-General cannot rule until the question of the basis of his ruling is resolved; that issue is currently before the Supreme Court, having been appealed by the government.
• New Zealand First, displaying its authoritarian tendencies, calls for the government to legislate to "to close any legal loophole that might free him into our midst". I guess using this "solution" on the Foreshore and Seabed case has gone to their head...

I think the latter illustrates perfectly why we must fight to ensure that Labour does not enter a coalition with New Zealand First after the next election.

A victory for us all

The Supreme Court judgement on Ahmed Zaoui's eligibility for bail again shows how the government is on the wrong side of civil liberties issues. The government's argument was essentially jurisdictional - that the relevant sections of the Immigration Act did not allow for bail, and so therefore Zaoui must rot in prison regardless of justice. The Supreme Court put paid to that in no uncertain terms, and in the process positioned itself as a defender of civil liberties and human rights against the encroachments of the executive.

The Court's decision relied not on the Bill of Rights Act, but on common law. The power to grant bail (or Habeas Corpus) is "an ancient common law jurisdiction" exercised by the New Zealand courts by virtue of the importation of English common law in 1840, and which "inheres in the Court itself". It can therefore be granted in any matter:

Unless excluded by statute, the inherent jurisdiction of the High Court to grant bail may be directly invoked whenever someone is detained under any enactment pending trial, sentence, appeal, determination of legal status, or (in immigration cases) removal or deportation from New Zealand. The jurisdiction can be exercised whether or not the High Court is seized of proceedings challenging the lawfulness of the detention.

(My emphasis).

The rest of the judgement debated the question of whether the appropriate section of the Immigration Act directly excluded the Court from granting bail; the Court concluded that it did not. They also concluded that the Court had the power to alter the conditions of imprisonment, allowing Zaoui to be held in the Mangere Refugee Center rather than a prison.

Whether Ahmed Zaoui is ultimately granted bail will be decided on the facts of his case. What this judgement establishes is that he may be. And that is an important victory not just for Zaoui, but for us all. It reaffirms a vital protection for our civil liberties, and an extremely wide-ranging power to review not just the legality, but the necessity of detention.

Zaoui wins

Just heard over National Radio: Ahmed Zaoui has won the right to apply for bail, and a hearing has been scheduled. Given that he has not been charged and that there has been no evidence presented that he poses any danger to the community, I would expect him to win it. More when I've seen the judgement...

Worth quoting

KiwiPundit on Phil Goff's plans to seize the assets of suspected criminals:

The phrase 'criminals who had been acquitted of criminal charges' is so perfectly Orwellian it really deserves some kind of award.

It's also good to see Rodney Hide and ACT weighing in on the right side of a human rights issue for once. But I guess that can be explained by the fact that it involves property rather than legal protections...

Meanwhile, the Ministry of Justice apparently opposed the proposed regime, pointing out serious problems with double jeopardy and the presumption of innocence, as well as "a perverse incentive to divert police resources away from criminal investigation in favour of pursuing civil forfeiture". And National and United Future think that this is too "soft"...?

Waiting

The Supreme Court will be releasing its decision on whether Ahmed Zaoui is eligable for bail at 2:15 this afternoon. The judgement should be on the Ministry of Justice's Judicial Decisions of Public Interest site soon afterwards, and on Scoop as soon as they can convert it to HTML.

Clearing the air

The PM has announced an inquiry into the allegations that the SIS spied on Maori groups. I guess a united stance from all other parties really can achieve something.

No matter what it turns up, I think this will clear the air. At the same time, we should not allow it to distract attention from the need for reform of the SIS's general oversight provisions. A committee that meets for one and a half hours a year and which is forbidden from investigating operational matters simply is not enough to watch the watchers. We need a broader committee, with real powers of investigation, which will hold the SIS to account for any "mission creep".

Fascination

I've been the growing crisis in the Ukraine with fascination. A disputed election and widespread allegations of electoral fraud have resulted in mass-protests and a general strike, and threats of civil war. So far things have followed the "people power" model - turn out the people and get them to march round and round the government buildings until the authorities give in. This has been successful in Georgia, in Yugoslavia, Argentina and the Philippines, mainly due to the reluctance of the government to use military force (and the reluctance of militaries to act against popular demonstrations). But I'm worried that in the Ukraine, with its history of authoritarian government under the Russians, it may simply turn into a Tiananmen-style massacre.

"Social engineering"

ACT's Deborah Coddington complains about "social engineering" in a recent NCEA economics exam, pointing to two specific questions:

'The New Zealand government provides 'free' education at state secondary schools. Explain why this results in a better resource allocation than the free market.'

'Explain why using 'free market' policies causes income inequality.'

Coddington's objection is obviously that these questions place her party's policies in a poor light - and they do. But the problem lies not with a cabal of evil collectivist examiners waging a revisionist campaign to poison the minds of the young against ACT, but with mainstream economics. And it is not the examiners who are being "revisionist", but Coddington herself.

The first question is about market failure, something that ACT likes to pretend don't exist. Why do we have universal public education? Because the free market failed to provide adequately. In the Nineteenth Century, education was a private affair, handled by private schools and charity. Unsurprisingly, this resulted in many people missing out, as the poor chose to put immediate goods (like food and shelter) above long-term ones, while employers generally chose to freeload rather than educate an increasingly mobile workforce. In economics terms, there was substantial underinvestment, because the multiple beneficiaries of education meant that even those who could pay for it had a lower incentive to do so. Universal provision resolved this, to the benefit of all.

It also raises questions of what constitutes a "better" resource allocation. ACT adheres to the dogma that the best allocation is whatever the market produces, but this ignores the fact that markets exist to serve people (rather than vice versa). Most people would consider an allocation where everyone was educated superior to one where some missed out. If ACT disagrees with this, they have not yet been brave enough to say so.

The second question is obviously highly damaging to ACT given the egalitarian attitudes of most New Zealanders, but is widely accepted by economists. The tradeoff between economic efficiency and equity (or equality) is well-known and included in most basic economics textbooks. But what's most interesting is that it is accepted by ACT. In her 2002 conference speech, ACT President Catherine Judd quotes Jim Peron, giving a textbook answer to the question:

A free society will not be one of equality. Once human beings are free, the choices that they inevitably make will change their levels of wealth. Even if we were able to redistribute all wealth equally, once the heavy hand of centralized control was removed, inequality would immediately result. Imagine a society of complete equality of wealth but one where all people were free to make decisions regarding their own lives. If wealth were equal at 8 a.m. it would be unequal by 8:01. Some individuals would spend their money, while others would invest it. Some would gamble with it or buy pastries. Others would purchase tools for work or pay for education or training. Each choice means that the distribution of wealth will become progressively more unequal.

(This parallels Nozick's famous Wilt Chamberlain argument)

The idea that inequality is both a consequence of the free operation of markets and vitally necessary for their proper functioning is a key component of the social darwinist strand of classical liberalism ACT espouses. For Coddington to deny this and complain about economics students being asked to confirm her own party's core beliefs is simply intellectually dishonest.

Coddington ends with a quote from 1984 calling for people to be free to acknowledge the truth. I agree wholeheartedly. But the truth here is not as Coddington claims. The fact is that stones are hard, water is wet - and free markets cause inequality.

Embarrassing for Auckland?

The promoter of the V8 street race thinks that Auckland's rejection of his event is an embarassment to the city.

Well, only if not being internationally known as suckers is embarassing. Personally, I think it's a good reputation to have.

The V8 street race was a scam. There's no other way to describe an event that would have shut down the city while billing Aucklanders for the privilege. It would have added very little to the local economy; with car races everything comes in on the back of a truck, and it was unlikely to attract the same level of international visitors as the Americas Cup. Aucklanders would simply have got a very expensive traffic jam - something they're quite capable of arranging for themselves for nothing. Viewed this way, they are well rid of it.

If hoons want to race their cars, then they should do so on a race-track; if people want to watch, then it is they who should be paying for it - not ratepayers in general.

Twenty minutes into the future

The US Congress wants to make it illegal to fast-forward through the ads on a video recording. What next? Forbidding people to change the channel or get up during a broadcast ad-break? Making televisions with no off-switch...?

Uncrossing our fingers

With the Civil Union Bill reportedly coming before Parliament again next week, it's time for us all to (as Jordan said) uncross our fingers and start lobbying MPs. The easiest method is email, so I've included email addresses below; however if you can lobby directly through an MP's electorate office, so much the better.

Based on the Campaign For Civil Unions' page on how MPs voted, I've picked out the following targets for extra-hard work:

National, ACT, and NZFirst MPs who voted for the bill and whose support needs to be shored up:

• Brian Donnelly (List) Ron Mark (List)
• Gerrard Eckhoff (List)
• Stephen Franks (List)
• Rodney Hide (List)
• Richard Prebble (List)
• Heather Roy (List)
• Ken Shirley (List)
• Don Brash (List)
• Katherine Rich (List)
• Clem Simich (Tamaki)
• Lockwood Smith (Rodney)
• Pansy Wong (List)

The support of these MPs will be critical to getting the bill over the 61 vote mark - and some may have voted for it solely to get it to committee. Try thanking them for their support, and (for ACT), appealing to the principles supposedly underlying their party.

Absentees:

• Ashraf Choudhary (List)
• Luamanuvao Winnie Laban (Mana)
• Janet Mackey (East Coast)

These MPs have since voted for the Omnibus Bill, so they're probably nominally sympathetic - but they need reminding anyway.

MPs who voted for the Omnibus Bill but not the CUB:

• Gordon Copeland (List)
• Peter Dunne (Ohariu - Belmont)
• Judy Turner (List)
• John Key (Hellensville)
• Wayne Mapp (North Shore)
• Georgina te Heuheu (List)
• Murray McCully (East Coast Bays)
• Roger Sowry (List)
• Maurice Williamson (Pakuranga)

Their votes for the Omnibus Bill likewise make them at least somewhat sympathetic, so they may be able to be "flipped".

Regressive Labour MPs, who need to be reminded of what Labour is supposed to stand for:

• Clayton Cosgrove (Waimakiriri)
• Harry Duynhoven (New Plymouth)
• Taito Phillip Field (Mangere)
• Damien O'Connor (West Coast-Tasman)
• Paul Swain (Rimutaka)
• John Tamihere (Tamaki Makaurau)

Frankly, these people need to be bullied. The best way to do it is by directly threatening to vote for a party with a better record on human rights. This is obviously more powerful if you live in their electorate, but threatening the party vote is not without weight. Make it clear that their vote is costing their party support.

The Unknowns:

• Tariana Turia (Te Tai Hauauru)
• Kenneth Wang (List)

There's no vote recorded for Turia, and Wang is new so no-one knows what he thinks. Time to find out.

Unfortunately, there's one area I don't know about: Labour MPs who may be wavering. If you have any rumours in this area, I'd love to hear them.

(If you'd like to save time, the Voter's Voice website has a script for mass-mailing MPs. Unfortunately, it will tag an ad for them at the bottom of every message (See correction))

Obviously, the more MPs you can lobby, the better, but if you can contact even one, please do so. Every message of support for this bill counts, and weneed to let those who may be wavering know that we want them to stand up for equality, freedom and fairness and pass the Civil Union Bill.

Update: Corrected Stephen Franks' and Pansy Wong's email addresses; it seems Parliamentary Services' information is a little out-of-date...

Update (30/11/04): Fixed Heather Roy as well. Also, added Ron Mark, who I seem to have forgotten for some reason.

Ahmed Zaoui standards of evidence

Phil Goff has introduced his move in his struggle to pander to the "hang 'em high" brigade and be ever more vicious and vindictive towards criminals: a civil forfeiture regime. In English, this means "taking stuff off criminals". But Goff's plan goes well beyond that, to taking stuff off criminal suspects:

"Under the legislation, the Crown will be able to seek a High Court order restraining a person's assets if it can show there are reasonable grounds to believe that person benefited directly or indirectly from serious criminal activity.

"The Court can then order confiscation if it is satisfied the Crown has proven on the balance of probabilities that the person derived some benefit from criminal activity in the previous seven years. No specific criminal offence need be proved."

Reasonable grounds. No specific offence. There's not even any suggestion that the "criminals" targeted even need to be charged. Instead it's proof by suspicion, and guilty until proven innocent. In other words, Ahmed Zaoui standards of evidence.

We have only to look to the United States to see why we should not go down this path. In Reefer Madness, Eric Schlosser touches on US federal asset seizure laws and the role they play in the war on drugs. Goff's suggestion follows the US model, in that

Property may be seized and forfeited even after a defendant is found innocent of the offence, since the strict burden of proof that applies to people - "beyond a reasonable doubt" - does not apply in accusations against inanimate objects. Property can be forfeited without its owner ever being charged with a crime...

In the US, this system has led to gross injustice. Seizures have been made for budgetary reasons, and guilt or innocence sometimes takes a back seat to demands for revenue. That is if they're even a consideration:

In California, thirty-one state and federal agents raided Donald P. Scott's 200-acre ranch on the pretext that marijuana was growing there. Scott was inadvertently killed by a deputy sheriff. No evidence of marijuana cultivation was discovered, and a subsequent investigation by the Ventura County's District Attorney's Office found that the drug agents had been motivated partly by a desire to seize the $5 million ranch. They had obtained an appraisal of the property weeks before the raid.

It has also led to corruption, cronyism, and double standards from police and prosecutors, as well as further injustice from informers motivated by a share of the spoils:

Informers have been caught framing innocent people. Law enforcement agents have been caught using nonexistant informers to justify search warrants. "Criminals are likely to say and do almost anything to get what they want," Stephen S. Tott, a federal judge who was chief of the Justice Department's Criminal Division during the Reagan years, told the National law Journal. "This willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies, and double-crossing anyone with whom they come into contact, including - and especially - prosecutors."

New Zealand so far has an admirably low level of corruption in our police and justice systems. Do we really want to bring all that here?

At its heart, asset seizure is a punishment. It is no different from a fine; instead of taking several years of a criminal's life through a jail sentence, they take their possessions. It should therefore be subject to exactly the same safeguards as any ordinary criminal penalty. I say "safeguards" because the basic standards of justice - innocent until proven guilty, security from unreasonable search and seizure, proof beyond a reasonable doubt - serve a very real purpose: preventing injustice. They provide built-in checks against innocent people being unjustly punished, and some safety against mistakes and malevolence - problems that can exist within any justice system. In his lust for vengeance, Phil Goff wants to eschew these safeguards. The result will be injustice - innocent people losing their houses, cars, livelihoods. That is not something we should tolerate. If the government cannot punish those they believe deserve punishment within the current bounds, then so much the worse for the government. The solution is for them to work harder, rather than abandon the principles of justice itself.

Liberalism and Civil Unions

Jordan has a good post on Civil Unions and our character as a liberal nation over at Just Left. He holds out a vision of New Zealand as the new home of freedom, which is one I wholeheartedly endorse, and one with a solid grounding in the new national identity we have defined for ourselves since the 80's (and which the Labour government is helping to define further).

Unfortunately he also buys into the "moral values" angst currently stalking American liberals, saying that:

The challenge facing liberals (who are both left- and right-wing) is to be much better at explaining the moral reasoning behind our positions. In the absence of strong moral claims about why what we support is right, we leave all the running on "morality" to the conservatives, and that is not ground any of us should be considering giving up.

The irony here is that we do have strong moral arguments for our positions. Civil Unions, like all liberal positions, are essentially about equality, freedom, and fairness:

• the equality of everyone before the law;
• the freedom of everyone to pursue their life without unnecessary interference by the state, or (in a positive sense) the freedom of everyone to enjoy a full human life;
• the recognition that current arrangements, which deny full equality and limit freedom on the grounds of sexual orientation, are unfair. Sexual orientation is not a morally relevant characteristic.

While diehard conservatives reject these values, the New Zealand public in general does not, and so they cannot be easily dismissed.

Embedded blogging

Kevin Sites, the NBC journalist who captured last week's chilling footage of a US Marine executing a wounded prisoner, has a blog. And on it, he has posted his description of the incident, as an Open Letter to Devil Dogs of the 3.1.

Fundamental incomprehension

Judging from SageNZ's latest response on the Privy Council, it seems I was right in thinking that he fundamentally fails to comprehend the nature of our legal system, past or present. To correct his two most obvious errors:

The Privy Council was not a link to European jurisprudence, on human rights or on any other matter. As I said earlier, and as Holden Republic points out, the Privy Council interpreted New Zealand law. While the European Convention on Human Rights is an admirable document, it does not and never has applied in New Zealand. Likewise, the Privy Council did not represent a link to any wider system of law; it was not a Commonwealth equivalent of the US Supreme Court whose decisions had universal applicability in all former British colonies.

We do not need the Privy Council to take cognisance of other jurisdictions' judgements. In fact, we've never needed it for that, because it is a basic part of the common law paradigm. Common law works by precedent; where there is no specific precedent, it works by analogy. And here there are no real limits on what it draws on. If another court in another jurisdiction has dealt with the same sort of problem in a broadly similar framework, then lawyers and judges will pay attention to their reasoning. This takes place at all levels of the court system, and foreign judgements have been recognised in new Zealand courts since the beginning. To use some examples in the area of aboriginal title: early cases such as R v Symonds (1847) and Wi Parata v Bishop of Wellington (1877) both reference US Supreme Court decisions. More recently, a Privy Council judgement Amodu Tijani vs Secretary, Southern Nigeria (1921) has been influential in laying out the nature of customary rights, while the Australian Supreme Court decision in Mabo v Queensland (No 2) has influenced their scope and recognition. And the notion of "fiduciary duty" has been introduced from Canadian decisions. All of these foreign decisions have been recognised not because they are binding precedent (they clearly are not), but because the problems they addressed were analogous to problems faced here, and their reasoning could be easily adapted to local needs. This does not require the Privy Council - all it requires is a good library and access to legal databases. The fact that our original two Supreme (High) Court justices could do it at the arse-end of the world's communications links back in the 1840's shows that we have no need to go to London.

Shorn of these two misconceptions, its quite clear that we have lost nothing by ditching the Privy Council, because it did nothing that we could not do for ourselves. At the same time, we have gained a great deal. Our justice is more accessible, more timely, and (most of all) ours.

Appalling ignorance II

Tristan objects to being called ignorant for "not being fully briefed on the The Kauwaeranga case of 1870". Except that it's not just about the Kauwaeranga case, and his ignorance goes well beyond "not being fully briefed" - I'd call it "total unawareness". And it has consequences - a strong subtext of Tristan's post was that foreshore claims were a scam and that Maori had made the whole thing up. It is only through ignorance of continuous assertions of ownership in numerous cases over a period of 130 years that such beliefs can be maintained.

(This is not to say that claims are justified - it's perfectly possible to regard the case for Maori ownership as weak. Maori have after all lost almost all of those cases. But it is impossible to argue that modern claims are automatically brought in bad faith in light of the historical background).

There's no implication that ignorance disqualifies anyone from having an opinion. However, it may result in that ignorance being corrected, or the opinion not being taken seriously. These are the risks you bear when you venture into the marketplace of ideas...

However, beyond his huffiness over having his ignorance pointed out, Tristan makes a good point as well:

many if not all claims to the foreshore and seabed before our current state were in regards to fishing and collecting shellfish. Now those rights are already safe guarded under the fisheries act. In fact even the case that brought this all to a head was in fact about who could build a mussel farm and where.

Yes - and both the fisheries and aquaculture settlements undoubtably weaken the strength of territorial claims. The most important rights in the bundle have been dealt with, leaving little else to support a claim of exclusive ownership.

SIS roundup

Tariana Turia says her phone was bugged. This was briefly mentioned in the SST story on Sunday, and this is an expansion on that.

The Prime Minister has questioned the credibility of the allegations, and demanded that the sources come forward. This would of course expose them to prosecution under section 12A of the New Zealand Security Intelligence Service Act 1969.

On National Radio a short time ago, Don Brash expressed support for an open and independent inquiry by someone from outside the SIS, saying that the National Party would "put party politics aside". Winston Peters was a little more doubtful, saying that "many allegations are made all the time and most of them are baseless", but that it was difficult to see any reason for the SIS to spy on MPs. (Obviously I'll ignore the enormous irony in both of those statements...)

The Greens likewise want an inquiry, saying that "the present accountability mechanisms are not working" and

"There is no evidence that the Prime Minister or the Inspector-General of Intelligence and Security knows what is going on, and the Intelligence and Security Committee in Parliament has only met for three hours since the last election."

I think the latter point in itself proves the need for more serious oversight. A committee which meets for one and a half hours a year can't even examine the accounts to determine whether there has been a proper expenditure of public funds, let alone act as a proper check and balance on an organisation whose very existence poses a threat to democracy.

Civil Unions ad

If you missed seeing the Campaign for Civil Unions' ad on Sunday, you can see it here (large). Apparently 1050 people signed it.

30th January

Iraq has a date for elections: 30th January. Here's hoping they can meet it.

Victory on torture outsourcing!

The US torture-outsourcing bill is dead! While the conferance committee reached an agreement (reportedly not including some "controversial" provisions), Congress will not be recalled to vote on it - meaning that the bill will die when the new Congress takes office in January.

It may not be the repudiation we hoped for - we need to see exactly what the conferance committee agreed to - but the bill dying is still a victory.

Time to leash the spies

The Sunday Star-Times has broken a major story alleging a widespread spying by the SIS on iwi, activists, and other Maori groups - supposedly without the Minister's knowledge. The allegations are sourced from former SIS operatives, who also express discontent with our spies' handling of the Zaoui affair and their subserviance to foreign intelligence services (government agencies working for a foreign power - isn't that the sort of thing they're supposed to guard against?). The full story is available on Scoop:

• Spies Blow Whistle On SIS Bugging
• Spies Blow Whistle On Operation Leaf
• ‘We could see it was for dirt collection’

Given the past activities of the SIS - spying on unions, the peace movement, and anti-globalisation activists - this is hardly surprising. And it again stresses the need for proper democratic oversight of our intelligence services. The danger of intelligence agencies defining domestic political opposition and dissent as a "security risk" which needs to be investigated has been well-known for quite some time (remember COINTELPRO?), yet our current oversight arrangements - a lapdog Inspector-General and a Minister who clearly can be kept in the dark - are manifestly inadequate. Our spies are a law unto themselves, with no commitment to democratic values and no accountability. This is not good enough in an open and democratic society.

Sunlight is the best disinfectant. Drag the fuckers kicking and screaming into the light of day and hold them to account. Parliament must hold a full and wide-reaching inquiry into the domestic operations of our intelligence services, and it must do so publicly and openly. Those responsible for initiating operations against domestic political activists must be driven out, and the institutional culture of hostility to democracy must be changed. The SIS must know in no uncertain terms that they work for us, and we will not tolerate them running wild.

At the same time, we must institute better oversight arrangements. Rather than being responsible solely to the Prime Minister, the SIS should be overseen by a Select Committee including the PM, Leader of the Opposition, and representatives of other parties. This will reduce the chances of "capture", while increasing the chances that our spies will actually be forced to justify their operations rather than simply being allowed to do whatever they want.

Spies are dangerous, and in a democracy they must be kept on a very tight leash. In New Zealand, it seems that the leash has grown too long; it is time we shortened it again.

An appalling ignorance

Tristan of About Town has some thoughts on the passing of the Foreshore and Seabed Act 2004. However, in pointing out that the Court of Appeal decision in Ngati Apa v Attorney-General did not mean that Maori owned the foreshore, only that there was no law which automatically said that they did not, he says

They came out and said we knew we owned it all along…. That is after being silent for 160 years, and allowing dozens of mariners, ports and boardwalks over land which apparently, they knew they owned.

(My emphasis). He later repeats this claim, saying

Maori never owned it (you would think there would be some kind fuss in the last 160 years if they did)

All I can say is that this shows an appalling ignorance of the history of Maori claims to the foreshore and seabed. No matter what you think of the merits of those claims (which are now almost certainly a dead issue, at least as far as the courts are concerned), it cannot possibly be said that Maori have never raised the issue until last year. The ownership of the foreshore has been contested in the courts by Maori since the 1860's. A 1996 report [PDF] to the Waitangi tribunal by Richard Boast lays out some of the history. According to Boast, the earliest cases date from the 1860's, and at that stage the Native Land Court sometimes granted title to parcels of foreshore. However, following the discovery of gold under mudflats near Thames, the government acted to exclude that area of the foreshore (and that area alone) from the Court's jurisdiction, resulting in an end to cases in the area. This was presented as a deferment, rather than a denial of claims, and the exclusion lapsed in 1873, by which time the Crown had purchased most of the land in contention.

The Kauwaeranga case in 1870 resulted in a different solution. Rather than grant exclusive title to the foreshore, Chief Judge Fenton instead granted an exclusive fishing right, on the basis that that had been the extent of Maori interests. The Native Land Court followed this practice until 1909, when the present "freehold title or nothing" system was instituted.

The early part of the twentieth century saw several cases over the ownership of the Awapuni Lagoon near Gisborne and Te Whanganui-a-Orotu (the inner harbour, later raised in the earthquake) near Napier. The latter case dragged on for thirty years, but was inconclusive. The matter has since been revisited by the Waitangi Tribunal. It also saw the beginning of a protracted series of cases in Northland, which involved direct action as well as appeal to the courts (Whina Cooper was involved in destroying the stop-banks of a farmer trying to reclaim contested mudflats in 1922). The final case in this series was the oft-mentioned In re Ninety Mile Beach (1962), which ended Maori claims for a generation but kept legal academics (including Boast) in papers for forty years arguing over whether it was correctly decided; in Ngati Apa, the Court of Appeal decided that it was not.

An examination of the history shows that Maori have not been silent on the issue of the foreshore; they have, in fact, made "a fuss", asserting their rights by protest, petition, legal and direct action, in the face of continuous denial by the Crown. Why is Tristan unaware of this? I can only speculate that he has never bothered to look. Sadly, that explains the views of far too many on the foreshore and seabed issue...

New kiwi blog

Reinventing TVNZ - an anonymous group blog of people who want positive change in our major public broadcaster.

Irrelevant fixations

Stuff has a fairly disgusting story today about how a "burglar with more than 100 convictions escaped another prison term". But in an effort to pile on the outrage, they fixate on the fact that she has had a gender reassignment and that it was paid for by the taxpayer.

Lavishing attention on the gender reassignment is simply an effort to paint her as a freak, and is about as relevant (and odious) as fixating on someone's race, sexual orientation, or marital status. But it's the "taxpayer funded" bit which attracted my interest, because it's clear that the journalist hasn't done even basic research on the matter. Gender reassignments in New Zealand are frequently publicly funded through the Special High Cost Treatment Pool. Applications are made by DHB specialists, and are assessed on the grounds of medical necessity, efficacy, and cost-effectiveness.

It took me less than five minutes to find this through google. Either the journalist didn't bother looking, or deliberately decided to play the "taxpayer funded" aspect for outrage without regard for the facts. Neither is good journalistic practice.

"Destroying New Zealand"

Just Left quotes Don Brash's famous line about how the Labour government is "destroying New Zealand", and aks how

record economic growth, record high employment and low unemployment, a flourishing of the arts and popular culture, the beginnings of a debate on the nation's future and so on, all add up to "destroying New Zealand."

It's an interesting question, and one which the right struggles to answer. Their best attempt is to refer to "values" - that Labour's revival of the welfare state and government services, and its restoration of balanced employment law is undermining the market values essential to New Zealand's future. But as Grey Shade has pointed out (in an excellent essay I should have critiqued weeks ago), these values are an abberation, and have never been part of "the New Zealand way". We have always stood for a helping hand and a fair go; the dog-eat-dog, screw the poor "values" Brash and his ilk refer to are in no way part of our national ethos, and nor should they be.

Lowering the bar in Iraq

With the occupation failing, and the prospect of free and fair elections growing more distant every day (and the likelihood that, if truly free and fair, they would be won by anti-western theocrats), an op-ed in the NYT argues for a dramatic lowering of the bar. America must adopt "more realistic" goals in Iraq, they say, and they present a stark choice - between partition or a "secular strongman".

For an invasion and occupation predicated on freeing the Iraqi people from a murderous dictator, this is lowering the bar all the way to the ground. Lest anyone forget, Saddam Hussein was a "secular strongman". To advocate simply installing another, after killing so many in the name of democracy, is simply monstrous.

But the root of this problem is clear. The authors list America's goals in Iraq as

find[ing] a way to withdraw most of its troops over the next several years and leav[ing] behind an Iraq that is not in a civil war, that is not a haven for Al Qaeda and is not an immediate threat to its neighbors

There's an obvious absence from this list, and that is the Iraqi people. Having waged a bloody war for their freedom, their interests are now completely ignored. But as John Quiggin points out, the coalition has never treated the war as a humanitarian intervention.

Instead, they regarded themselves as the victors in a (pre-emptively) defensive war and Iraq as a defeated enemy state, which they could reconstruct (or not) as they wished.

But humanitarian intervention was the only argument for the war which passed the laugh test (and even it failed to stack up). For the Americans to completely ignore these concerns makes the critique of them as imperialist conquorers pretty much dead on.

Before the war, President Bush spoke of his commitment to building a free Iraq and promised that

we will ensure that one brutal dictator is not replaced by another. All Iraqis must have a voice in the new government, and all citizens must have their rights protected.

He must be held to this.

New Fisk

What price innocence in the anarchy of Iraq?

Final words on the foreshore and seabed

The Foreshore and Seabed Bill has passed. While it is better than it was, and certainly far better than any "solution" National would have given us, it is still a deeply flawed piece of legislation (perhaps guaranteed given the number of parties it has had to please). While parts of it are acceptable (for example, the legal framework provided for non-territorial customary rights), at its heart it is intended to limit and extinguish aboriginal title over the foreshore and seabed, while preserving the rights of present, mostly Pakeha owners - and that is very difficult to stomach.

I opposed the bill and submitted against it primarily on the grounds that it denied due process and equality under the law. These are not just guaranteed by the Treaty, but are the very foundation of organised, constitutional government. Unfortunately, the government has seen fit to trample all over these principles in pursuit of the redneck vote, and then trampled all over the democratic process to ram it through by the end of the week. That is not something that can easily be forgiven.

The irony is that none of this was really necessary. The general thrust of the bill - the protection of customary usage rights, and territorial rights recognised through co-managed reserves - is I think pretty much where we would have ended up if the government had reacted calmly and let the cases proceed while negotiating a general settlement. But by panicking and resorting immediately to legislation, the government has alienated Maori and guaranteed us all trouble for a long time to come. I have said all along that any lasting solution to the foreshore and seabed has to be acceptable to the vast majority of Maori. This legislation is not. While many will eventually be able to reconcile themselves to it, enough have been offended by the government's "fuck you" attitude and perceived betrayal to guarantee that the matter will be relitigated. Partly this will be done through various UN human rights bodies, but with the rise of the Maori Party, the main thrust will be through the electoral system. In May a hikoi was organised to oppose this legislation, and thousands came. The next hikoi may very well be to the ballot box.

Priorities

On last night's Face To Face, Kim Hill interviewed the Prime Minister, asking her (among other things) about the Ahmed Zaoui case. Helen Clark repeatedly said that she would not intervene in the middle of the process, preferring that it be concluded before the law was changed. This stands in stark contrast to her actions over the foreshore and seabed, where the government responded to a preliminary court case by immediately promising (and eventually enacting) legislation. The conclusion? As far as Labour is concerned, fundamental human rights are less important than chasing the redneck vote.

A landmark day for New Zealand justice

The Supreme Court has delivered its first decision, and ruled against Donna Awatere-Huata. Scoop has the full judgement.

The decision rests on statutory interpretation. The Electoral Integrity Act specifies that a vacancy occurs when an MP remains in parliament after ceasing to be a member of their original party. Voting behaviour or who is responsible for the departure is irrelevant. Thus, Donna Awatere-Huata's seat is vacant. It's a very narrow and literal decision which opens the door for parties to stifle any dissent from their members with the threat of expulsion, exactly as critics of the Electoral Integrity Act feared. Our one consolation is that the Act will expire at the next election. Given this judgement, we must ensure that it is never renewed.

Amendments

Knowledge basket has posted the Supplementary Order Papers on the Foreshore and Seabed Bill: # 302, # 303, and # 304. This is a lot of material to cover - 120 pages, by some accounts - and the government should have delayed passage of the bill to allow the Opposition sufficient time to examine what was actually being passed.

I've said before that I don't actually mind the government moving into urgency to ensure that this bill is passed before christmas. What I do mind is that they have done it at the expense of the democratic process - and that they mock the opposition for complaining about it.

Shocked

According to a Scottish dietician, 60% of British hospital patients, and half of those in old-age homes, are underfed and suffering from malnutrition.

Just think about that for a moment. The very institutions Britons trust to care for their health when they are ill or elderly are systematically starving them. Which of course means that they stay sick or continue to deteriorate.

All I can say is that I'm glad I don't live in Britain.

"Bravery"

What constitutes "bravery" in the New Zealand Police? Excessive force and fabricating evidence, it seems. Police officers who do the above are not brave - they are simply bullies in uniform, who undermine the reputation of our police as neutral and professional enforcers of the law. For the police to continue to defend them after this sort of judgement beggars belief.

I am also concerned that it took four years and civil proceedings to get justice in this matter. Where was the Police Complaints Authority? And are formal charges now going to be laid against the officer concerned, or are perjury and attempts to pervert the course of justice only crimes when done without colour of law?

A criticism too far

The war between the government and the Supreme Court really has gone to far this time, with Trevor Mallard saying that it wasa pity that they were not appointed on merit. He is undermining the credibility and independence of the judiciary, and for what? So he has an "amusing" line in a talk at a business breakfast? As a senior Cabinet Minister, Mallard should be more responsible than that.

Yes, he has a point, in that the blind promotion of those already enjoying seniority probably overlooked others of greater talent. But lest anyone forget, this process was forced on the government by the right, who prevented a wider net being case by raising the spectre of political appointments - and will no doubt be using Mallard's comments to raise this issue again, despite being happy with the appointments process at the time (because they conflated existing seniority with merit, in the same way that they conflate wealth with virtue). And at the same time, you really have to wonder what the basis for Mallard's complaint really is. The Supreme Court has heard only two cases so far, and has yet to issue a single ruling. Criticising their ability seems more than a little premature...

In anticipation

No doubt my previous post will attract cries of "moral relativism" from those who do not understand the meaning of the term. However, it is based on a very clear moral principle, applied universally and consistently: that killing civilians is wrong. To my mind, there is no difference between someone who murders twenty in the course of killing five with a car bomb, and someone who does the same with a laser-guided missile. Those who wish to condemn this "moral equivalence" - judging acts which are in fact morally equivalent to be morally equivalent - are welcome to point out the distinction.

A distinction which seems to make no difference

Sock Thief, in response to the cold-blooded murder of an unarmed and wounded iraqi by a US Marine, uses it in an attempt to smear - who else? - those who condemn it:

The soldier will be held to account for any misdeed. That's the difference between a liberal democracy and terrorism. A distinction many liberals have forgotten.

Hardly. We all know the soldier will be held to account. The worry is that he will be "held to account" in exactly the same way Lt Calley was - not at all. And there is reason to be concerned (though this case suggests that military justice can sometimes work...)

It should also be pointed out that the distinction Sock Thief accuses critics of the war of having forgotten lies at the very heart of criticisms of the Fallujah massacre (and of the US's behaviour in Iraq in general). Terrorists murder without regard for "the rules of war"; they kill the unarmed and the uninvolved. The organised military forces of liberal democracies don't. However, if we are to judge the US by its actions in Fallujah, it is a distinction which seems to make no difference.

The US has used devastating force in Fallujah - artillery, aerial bombardament, automatic weapons, tanks - in an area primarily inhabited by civilians. The weapons they are using are simply indiscriminate - the kill radius of one of those 2000lb bombs they were dropping is around 100m, and white phosophorus and cluster bombs do not distinguish between those carrying weapons and those without - so indiscriminate in fact that it can called nothing less than a reckless disregard for Iraqi lives.

Those arguing that this is just how modern warfare is waged, and that "you can't make an omelet without breaking eggs", should note that it is only the US that behaves like this. The British face insurgents in their zone, but they respond with a good deal more care. More significantly, they faced a terrorist insurgency in Northern Ireland for decades - during which it was absolutely unthinkable that they would use any of the above weapons. They did not call in airstrikes on IRA safe-houses, or use tanks to shell suspected sniper positions (in fact, they did not use tanks at all). And the reason in both cases is clear: they have some regard for the lives of those they are fighting amongst. The US does not. Instead, as Crooked Timber's Chris Bertram points out, they have a "deliberate and systematic policy" of transferring the risks of combat from soldiers to civilians - because the lives of American soldiers are more valuable even than those of innocent Iraqis. But whose name is this occupation being waged in? Whose "freedom" is being fought for? Iraqis. It seems strange to treat your ultimate goal, the people you are supposedly protecting in this manner. And, as Bertram notes,

[i]t is hard to escape the thought that were co-nationals of the people dropping the bombs the ones in the bystander position, different methods would be used.

The position of those opposing the occupation has always been clear: if the US is to claim moral superiority over terrorists, then it must act like it. If it wishes to claim that the indiscriminate murder of civilians is wrong, then it must refrain from doing so itself. But an examination of US policies and actions in Fallujah, and in Iraq in general, shows a disregard for civilian lives that is indistinguishable from that of the suicide-bombers. The message for people like Sock Thief is clear: if they vigorously condemn terrorists, they must also vigorously condemn the US's indiscriminate tactics. Their refusal to do so, and their defence of US actions, marks them as nothing more than hypocrites providing moral cover for murderers.

Margaret Hassan is dead

First the UN and the Red Cross, and now this. What can I say except to reiterate that the deliberate targetting of civilians, and especially neutral humanitarian workers, is a monstrous crime no matter who does it.

Democratic transparency X

Perusing the Hansard of the final passing of the HART Bill, it seems that the National Party has continued to support secrecy right up until the end, based on a spurious distinction between having the vote recorded in Hansard and merely tabling a list:

PETER BROWN (Senior Whip-NZ First): As far as New Zealand is concerned this is ground-breaking legislation - at least, that is the view of New Zealand First. I therefore seek the leave of this house to request that the parties that split their vote, table the split - in other words, who voted for and who voted against - so that this can be recorded in Hansard and so that the view of the public can be respected, in that a check can be made of the voting if they so wish. I seek leave for that request to be put to the party whips.

LINDSAY TISCH (Junior Whip-National): National is quite comfortable about giving people the names of those who voted for and those who voted against. However, seeking leave for that to be recorded is a dangerous precedent. It is not necessary under Standing Order 144. We are quite happy to give the names out - there is no difficulty with that - but we would oppose leave to have the names recorded.

[...]

LINDSAY TISCH (Junior Whip-National): I understand from the Business Committee that it was agreed that the names could be tabled, which is different to having them recorded. I said, in speaking to the point of order earlier, that National is happy to table the names - I have them here. We are happy to table them, which is different from recording them. So I seek leave for National to be able to table the names of members who voted for and those who opposed.

Document, by leave, laid on the Table of the House.

So they're happy to reveal their votes, but only in manners which make it more difficult for the public to scrutinise them. While National did indeed give up the information when I asked, it took a month of nagging - far too long. And while documents tabled in the House can be viewed by the public, they are far less accessible than the official Parliamentary record, which is available free on the web.

This has to stop. Democracy demands transparency, and that requires that every vote be properly recorded in Hansard and made rapidly available to the public. Anything less - such as the position taken by Mr Tisch - smacks of secrecy, and calls the public's ability to hold our representatives to account into question. Parliament's Standing Orders must be amended, and until they are, those parties which value democratic accountability must use their ability to deny leave to ensure that transparency is maintained.

Human extinction within 100 years?

I think Peter Barrett underestimates our chances. While climate change threatens to make life exceedingly uncomfortable for a large part of humanity, and cause famine, the spread of disease, and even war, it does not pose a threat to the survival of humanity as a species. I don't think it even poses a threat to the survival of humanity as a technological civilization - though it may alter the nature and extent of that civilisation. We and our infrastructure are distributed enough to survive a major asteroid strike; we can endure climate change even at its worst.

This does not mean that climate change should be ignored. The threats it does pose justify taking strong action against it. But we should be clear about what those threats are, and avoid inflating them to ridiculous levels. By doing the latter, peter Barrett has done those fighting for action on climate change no favours whatsoever.

I have a keyword-searchable Hansard, and I know how to use it

I present the following excerpts from Hansard in honour of the government's resurrection of the blitzkrieg:

(Note that the dates are sitting days, and that as far as Hansard is concerned, the 101 hours required to ram through the "reforms" of Ruth Ricahrdson's "mother of all budgets" all occured on the 30th July, 1991).

Jim Anderton, second reading of the Broadcasting Bill, 16th May 1989:

I note also that the Bill is being rushed through under urgency, and I should like to hear from the Minister in due course why that is so. Why is there such a rush to get the Bill through? I cannot see any particular reason that the Bill should be taken under urgency.

[...]

I do not believe that legislation of this kind---particularly Part V---should be put through in such a rush. It leaves the Opposition with the opportunity only to oppose---not to promote constructive options.

Michael Cullen, third reading of the Customs Amendment Bill, 30th July 1991:

I raise a point of order, Mr Speaker. I understand that the Government intends to introduce the Finance Bill (No. 2) and the Health Reform Bill. These are measures of some considerable complexity. I understand that they are to be introduced after the third readings of the Bills being considered now. Usually those Bills would appear so that the Opposition could look through them and give them some intelligent consideration.

Helen Clark, point of order, 30th July 1991:

I raise a point of order, Mr Speaker. I should like to seek your guidance on a matter, and possibly the Leader of the House might like to respond. In the priority of Bills that the Opposition has been given for today, and in the urgency motion, the introduction of a Health Reform Bill has been signalled as being not too far away. A major change has been foreshadowed in the Budget announcements. The Minister of Health is here. Opposition members have not been able to obtain any copies of the Bill. I wonder whether I might have some indication, through you, of when the Bill might be available.

Jonathan Hunt, second reading of the Finance Bill (No 2), 30th July 1991:

I further suggest that if all of the amendments in this Bill needed to be passed in urgency there could be some justification. However, I have examined the Bill and there is not one clause that needs to be passed tonight or next week---not one.

Steve Maharey, second reading of the Finance Bill (No 2), 30th July 1991:

Given the Bill's complexity, the time allowed for consideration of it before it was introduced to the House was ridiculously short. Before it was introduced I had about 1 hour in which to spend some time reading it, and I have tried to do that. It seems that Government back-benchers had even less time to have a look at it. Perhaps we on this side of the House are more privileged.

[...]

Members opposite went around the country saying that a National Government would change the way that legislation was introduced. I believe that people want us to introduce some serious changes. People want legislation in a way that ensures that it is thoughtfully and carefully considered, so that groups affected by it have the opportunity to come and talk to members of Parliament about the changes. The public will have no such chance with this Bill. This is an extraordinary break with the spirit of what members opposite were campaigning for before the election, and it is certainly a breach of faith with the people who are wanting change in the way that legislation is put through, and the opportunity to make a contribution.

Paul Swain, second reading of the Finance Bill (No 2), 30th July 1991:

As has been pointed out by several of my colleagues already, there is no need to pass the Bill under urgency as part of the Budget debate. Having looked through each of the Parts and each of the clauses, I do not see that there was any need for them to be introduced as part of the Budget debate. For example, Part I amends the Accident Compensation Act 1982 and Part II amends the Customs Act 1966. I cannot see any reason why they could not come in within the next week or so.

Helen Clark, on adjournment, 30th July 1991:

It is an incredible motion, that members be asked to come back and carry on this helter-skelter totalitarian rush of legislation. Half of it should not be before the House in Budget legislation and under urgency at all. The other half should be undergoing very lengthy scrutiny before select committees, because this week we have been asked to look at legislation that radically changes the nature of New Zealand society, without having any reference to the public and without consultation.

[...]

The Opposition has a constitutional duty to perform, and that duty is to scrutinise Government legislation. We are not satisfied with what we have seen. We are not satisfied that a number of the matters submitted for our attention are worthy of urgency. There are other matters that are so serious, of such gravity, and that challenge so much of the New Zealand way of life that they should not have been presented to us for instant scrutiny in the House.

George Hawkins, third reading of the Customs Amendment Bill (no 2), 5th August 1991:

Through all the stages of the legislation we have questioned the need for the rush. We are considering the matter under urgency after having sat for almost a whole week, barring Sunday [...] The member for Tongariro should tell the House why the Bill should not be delayed, as I have suggested. He should be positive. He should tell the Chamber and the country the reason for the rush. I think that it is important for him to do so and for the Government not just to rush in. I believe that the member has not made a good contribution at all during this period of urgency, and that is a real problem. I would have thought that during the Committee stage---it is one of the reasons that I have moved the amendment---Government members would justify what they are doing. They have been mute, and they have been contemptuous of the rights of ordinary New Zealanders. The provisions are not major, but they are part of major legislation, and when we see the changes that were brought about on Budget night, and this process, we must really question the way that Parliament is being run.

Jonathan Hunt, point of order, 29th November 1994:

I raise a point of order, Mr Speaker. In that list the Leader of the House read out he indicated the introduction and passing of the Health Amendment Bill (No. 2). That Bill does not even appear on the table in front of the House. We are being asked to pass a Bill through all its stages, but not one member of the House has yet seen it...

(I have been searching for an example from Winston Peters, but have given up in frustration. In the chamber, he seems to have provided nothing but a torrent of insults and irrelevancies. Looking at more recent Hansards, I see nothing has changed...)

I know that the unspoken law of Parliament is that there is one rule while in government and another in opposition, but the public expects better. The reason these denunciations of the use of ugency carry some weight is because its misuse raises important questions of democratic oversight. Helen Clark is right: the opposition does have a constitutional duty to scrutinise government legislation - and her party's tactics over the Foreshore and Seabed Bill seem aimed at frustrating that duty.

The government should allow the opposition to do their job properly. They should release the amendments to the bill, and delay its passage so that their impact can be assessed. This bill has taken eighteen months so far. Would a couple of extra days in the name of democracy really hurt so much?

The return of the blitzkrieg

One of the most unforgivable features of the 80's and 90's reforms was the undemocratic manner in which they were implemented. Bills were rammed through under urgency, precisely to prevent public scrutiny and opposition. The speed was such that, according to Jane Kelsey in The New Zealand Experiment, "often there were not enough, or sometimes even any, up-to-date copies of the measures available for those taking part in the debate".

There's more than a whiff of the blitzkrieg about the government's plans to pass the Foreshore and Seabed Bill under urgency. According to the Greens' Metiria Turei, the government is not going to release its Supplementary Order Paper detailing the amendments until just a few hours before the debate:

"There will only be perhaps as little as a few hours to look at the changes the Government wants to make," she said.

"It's not enough time to give really serious thought to the impact of those changes."

While I appreciate their desire to pass the bill before the end of the year, this is simply going too far. I don't mind them using urgency to get the extra speed, but to keep the amendments secret until the last minute raises serious questions of what exactly they are trying to hide. Parliament should operate openly, and give both the public and MPs sufficient time to digest and formulate a response to the suggested changes. If this means taking a few extra days, then so be it. I see no reason why the Foreshore and Seabed Bill must be passed this week, rather than next.

I should note that the government's behaviour diverges significantly from the blitzkrieg model in that the bill has been subject to extensive public consultation and a full Select Committe process (though both were almost universally negative and the latter could not agree on amendments). But this unseemly haste at the end of the process recalls it at its worst. The government should be ashamed of itself for bringing the Parliamentary process into disrepute in this manner.

New Fisk

Death, delusion and democracy

Better

The government has announced its proposed amendments to the Foreshore and Seabed Bill. Looking through them, they make it a far better bill, and move a long way towards a full recognition of customary title.

The key amendments deal with cases where the High Court finds that a claimant would have gained actual title but for the bill. They lay down more specific criteria on how this is to be assessed, and specify what relief the court can grant:

Where the High Court has found that a group holds territorial customary rights, it can at the group’s request direct the establishment of a Foreshore and Seabed Reserve. The Reserve will be held for the common use and benefit of the people of New Zealand and will acknowledge the guardianship status of the group. The Board of the Reserve will operate within the statutory framework of the RMA. Its tasks will include the preparation of a management plan which the local authority must recognise and provide for.

In other words, iwi with a strong claim can gain co-management and guardianship. This is a significant advance on the earlier "crown must negotiate" language.

One problem that remains is that the criteria for assessing territorial rights includes an element of contiguity; "applicants must also be able to demonstrate that they have had continuous title to a significant part of the dry land contiguous to the foreshore and seabed". This is an attempt to reintroduce the discredited Ninety Mile Beach doctrine by stealth. What matters is not who owns the land above the high water mark now, but who owned it in 1840. The government, at the urging of NZFirst, has also refused to recognise post-1840 transfers according to tikanga maori, which is a Prendergastian denial of tikanga's role in New Zealand common law. While in practice the requirement for continuous and exclusive use would tend to prevent claims to foreshore where the claimants no longer owned the land above the beach, it is still a disappointing move.

So, contrary to Big News' assertions, public input seems to have made a difference to this legislation (though possibly not in the direction he wanted it to).