National says "fuck you"

The Justice Committee has reported back on the government's racist bill to eliminate Māori representation in local government. The report duly notes the Waitangi Tribunal's finding that the bill breaches te Tiriti, and the bill's inconsistency with our international human rights obligations - and then proceeds to ignore both. Instead, it seems they'll be ramming this through by the end of July, likely under urgency. As for the 10,614 submitters, fully two thirds of whom were opposed, the government has just two words for us: "fuck you". As the ludicrously short period they allowed for public submissions shows, they don't care what we think. In the government's eyes, their private coalition agreement trumps te Tiriti o Waitangi, our human rights obligations, and our democratic norms. And if we don't like it, well, we can throw them out at the next election (assuming they don't ram through another similarly undemocratic bill to stop us from doing so).

But if you submitted on this, don't think you wasted your time. The purpose of submissions wasn't to get the government to change its mind - they're a lost cause, something we just have to wait out. The purpose of submissions is to legitimise the next government honouring te Tiriti, repealing this racist, undemocratic bill and restoring Māori representation. The question is whether Labour will get that message.

Climate Change: More ETS failure

A few weeks ago, I blogged about the (then) upcoming ETS auction, raising the prospect of it failing, leaving the government with a messy budget hole. The auction was today, and indeed, it failed. In fact, it was such a failure that no-one even bothered to bid.

Its easy to see why this happened: the price path has set a minimum auction price of $64/ton. Meanwhile, National's mass-repeal of climate policies has undermined and public dabbling in climate denial around agricultural emissions means that no-one really believes they're committed to emissions reduction. Carbon prices in the public market have dropped to $49/ton - $15 less than the minimum auction price - and the government deciding to consult on lowering the auction floor, essentially on reducing the price of carbon in the future, means that only a fool would buy it from them. So, no auction. People are just going to wait and see what happens, and buy from the (much cheaper) spot market to meet their obligations.

This isn't a problem from an emissions point of view, in that any unsold credits get cancelled at the end of the year, removing them from the pool entirely. Emitters will instead be reducing the stockpile and/or encouraging tree planting, both of which are things we want. It is a problem for the government, who were depending on ETS revenue to fund their landlord tax cuts and farmer subsidies. And its especially a problem given that they have said that the ETS is their primary (effectively only) emissions reduction policy.

How can the government restore its credibility? Essentially, by shutting the fuck up, and doing what He Pou a Rangi tells them around policies and price settings. But I don't think National is capable of doing that - both because they're climate deniers, and doing what other people tell them goes against their fundamental ideas of how government should work. Instead, I think they'll wreck the ETS - by price drops or flooding it with credits - just to prove they're "in charge" (and because they're climate deniers and don't care if it works anyway). The next government is going to have a hell of a mess to clean up.

Some "scrutiny" II

Last month I blogged about the Ministry of Justice's Open Government Partnership commitment to strengthen scrutiny of Official Information Act exemption clauses in legislation", and how their existing efforts did not give much reason for confidence. As part of that, I mentioned that I had asked the Ministry for its "scrutiny" of a bunch of recent bills containing secrecy clauses. They didn't want to do the work, but they agreed to look at what they'd said about six bills. They gave me the information (such as it was) today, and it turns out that they had not been consulted on any of them. Worse, they only recognised interactions with the OIA in three of the six bills, and in those three, they missed the actual issues (the annotations on the reply show exactly what they missed).

From this, I think its clear that the Ministry of Justice wouldn't recognise a secrecy clause if it bit them in a very uncomfortable place. And as they're the agency responsible both for the OIA, and for scrutinising legislation to ensure that secrecy clauses are justified, that seems to be a problem. (Its also clear that other agencies don't recognise them either, and so fail to consult. But the primary responsibility here is on Justice, which should both be educating them, and proactively hunting such clauses).

There's another problem as well: in their response the Ministry said

We note that the Ministry would not likely have been consulted on an OIA exemption provision in a bill if such a provision was already present in the principal Act.

The problem here is that many of these "exemption provisions" - MoJ's toned-down way of referring to secrecy clauses - are old, possibly even ancient or archaic. Meanwhile, both the law and our attitudes to transparency have shifted. There's the OIA itself, of course, but also the Bill of Rights Act, section 14 of which protects the "freedom to seek, receive, and impart information and opinions of any kind in any form" [emphasis added] - language which is recognised internationally as covering freedom of information laws. Plus there's been 30 years of progressive transparency since then, with more and more information routinely released, and assessments of the harm from release of certain types of information - particularly commercial information - changing with experience.

The upshot from this is that simply because an existing law requires secrecy does not make it OK. And if that law is being re-enacted, that is a perfect time to re-examine that secrecy clause from first principles to see if it can still be "demonstrably justified in a free and democratic society". Unfortunately, no-one is doing this, and in its consultation paper, Ministry of Justice made it clear they were opposed to such work. And so secrecy persists by inertia, and expands by ignorance and over-deference, and our right to transparency is eroded.

The looting is the point

Last time National was in power, they looted the state, privatising public assets and signing hugely wasteful public-private partnership (PPP) contracts which saw foreign consortiums provide substandard infrastructure while gouging us for profits. You only have to look at the ongoing fiasco of Transmission Gully to see how it was a complete disaster. So of course National are going to do it all again:

The infrastructure minister wants more private sector financing, such as public-private partnerships (PPPs), to pay for major projects.

In a speech to Local government New Zealand on Thursday night, Chris Bishop said he wanted government grant funding to become a last resort for councils.

"My speech talks about some of the things we've been talking about as a government for six months, and we've actually campaigned on - so making greater use of tolls, public private partnerships, things like value capture as well," he told Morning Report on Friday.

So, basically National's promised new motorways are going to be for the rich and for businesses, not for actual people, in order to guarantee a privatisable revenue-stream. And they'll be paying foreigners inflated prices to build those roads, to keep debt off the government's books and so meet a completely artificial and self-imposed debt-target.

This is inherently less efficient than simply borrowing to build, because the private providers will be paying higher interest rates while demanding a huge, government-guaranteed profit. That's the clear lesson from the UK's disastrous Private Finance Initiative. The fact that National is persisting with this leads to the obvious conclusion that the purpose of the policy is in fact the looting, not the infrastructure. Like everything else they're doing, its about paying off donors and cronies with public money - corruption on a grand scale.

Hipkins is still useless

The big problem with the last Labour government was that they were chickenshits who did nothing with the absolute majority we had given them. They governed as if they were scared of their own shadows, afraid of making decisions lest it upset someone - usually someone who would never have voted for them anyway. As a result, they pleased nobody, delivered nothing, and were abandoned by their voters at the 2023 election.

Sadly, that electoral lesson doesn't seem to have sunk in. Yesterday, the National government rolled over to climate denying farmers, announcing they would end any efforts to price agricultural emissions and make farmers do their share in the fight against climate change. As with so many of the government's other anti-environment policies, the perfect counter-policy is for the opposition to make it clear that National's policies will be immediately reversed. This isn't just a statement of party values - it ensures policy certainty, deters wasteful investment predicated on a free ride forever, and avoids stranded assets. The Greens clearly understand this. Labour, OTOH, clearly does not:

Labour leader Chis Hipkins wouldn't commit to restoring the climate change policies the coalition government is backtracking on.

It's Labour in a nutshell: no values, and no commitments. And they wonder why nobody gives a shit about them anymore.

Climate Change: Farmers get what they wanted - for now

Since entering office, National has unravelled practically every climate policy, leaving us with no effective way of reducing emissions or meeting our emissions budgets beyond magical thinking around the ETS. And today they've announced another step: removing agriculture entirely. At present, following the complete failure of he waka eka noa, agriculture is scheduled to enter the ETS next year at the processor level, with 95% of emissions subsidised. National will reverse this, disband he waka eka noa, and ensure an effective hundred percent subsidy for our worst polluters forever.

...or at least until there's a change of government. Because agriculture is our biggest source of emissions, the next government will have to have a policy to reduce them. And by abandoning the compromise on agricultural emissions pricing, National has effectively given the next government carte blanche to do the same. Meaning they can do what we need to do, immediately price emissions at the processor level, and finally make farmers pay. And in doing so, they won't have to be bound by the policy National just threw in the bin - meaning we can eliminate subsidies and make them pay the full cost of their pollution, just like the rest of us do. Which would be both effective and fair. And if it causes dirty farmers to go out of business, well, that is the purpose of emissions pricing.

So, farmers have got what they wanted for now. But it won't last, and there's good reason to think they'll be worse off in the future as a result. So maybe farmers should have been careful what they wished for?

Putin would be proud of them

A Prime Minister directs his public service to inquire into the actions of the opposition political party which is his harshest critic. Something from Orban's Hungary, or Putin's Russia? No, its happening right here in Aotearoa:

Prime Minister Christopher Luxon has announced the Public Service Commission will launch an independent inquiry into Te Pāti Māori.

Te Pati Māori is facing mounting investigations into whether it has misused Census data and information collected from people who had COVID-19 vaccinations for electioneering.

The Privacy Commissioner, Electoral Commission, Police and Stats NZ are already investigating the allegations.

There is no question that the allegations against Te Pāti Māori are serious. Misuse of census data has been a crime since the early C20th, and covid data was protected by a similar secrecy clause with criminal penalties, reflecting the value of this private information. And Te Pāti Māori have themselves called for a police investigation to resolve the issue. But that's very different from an inquiry by Te Kawa Mataaho - a body which simply has no jurisdiction over political parties, or criminal matters - where the PM gets to pick the inquirer and write the terms of reference to ensure the outcome he wants. Such a process lacks any pretence of fairness, and any credibility. Instead, it just looks like National augmenting its blatant racism with tyranny. Putin would be proud of them.

Policy by panic

Back in March, Ombudsman Peter Boshier resigned when he hit the statutory retirement age of 72, leaving the country in the awkward (and legally questionable) position of having him continue as a temporay appointee. It apparently took the entire political system by surprise - as evinced by Labour's dick move of trying to ram a member's bill to remove the age limit through under all stages urgency to allow Boshier to continue - which naturally raised the question of how the hell it happened. The answer is an illustration of political dysfunction and panic-driven policy.

The New Zealand Council for Civil Liberties used FYI, the public OIA request site, to ask the Ministry of Justice - the agency responsible for administering the Ombudsmen Act 1975 - for advice and communications since 2020 relating to the appointment of an Ombudsman or amendments to the Act. The response shows basically nothing until December last year, at which stage Boshier apparently emailed the Speaker and the Office of the Clerk so that they could work on recruitment of a replacement. Nothing seems to have come of that, so in late January Boshier sent an email [p22] to Secretary for Justice Andrew Kibblewhite pointing out that his statutory retirement date was rapidly approaching and "to raise with you... some issues and some solutions". All of which are redacted as "free and frank", because apparently the Ombudsman, the equivalent of a departmental CEO, would be deterred from sending such emails pointing out such problems in future if we were allowed to see what he said. But its clear from the other emails that the preferred solution had already been stovepiped down the emergency legislation to allow reappointment path, because the Parliamentary Counsel's Office was already working on it. So the Ministry of Justice prepared an aide memoire for the Minister on the subject, with the clear plan of ramming a bill through under all-stages urgency before Boshier's term expired.

During this time, the Officers of Parliament Committee - the body actually responsible for the appointment - had been meeting, and someone (probably a Labour MP, given their subsequent antics) seems to have proposed a Member's Bill to allow reappointment. For whatever reason - and once again, we're Not Allowed To Know, this time due to Parliamentary Privilege - the government chose not to progress it. So when the Ministry of Justice presented their plan for legislation to the Minister of Justice in late February, it sank like a stone: "It is not clear to us what happened after we provided the AM", and further inquiries were redirected to the Minister's Office. In other words, "blame the Minister, not us!" At a guess, I'd say that Labour suggesting a bill killed the idea, because Ministers are petty little shits who reject opposition ideas out-of-hand to deny them a "win", even when its also being pushed by their own Ministry.

This is not how any of us would expect a well-organised system of government to run, especially for an appointment to a significant constitutional role. As the NZCCL points out, Parliament should have begun an appointment process in June last year. But they were asleep at the wheel, and so we got a paniced response proposing an emergency change under all-stages urgency, which (fortunately) was not advanced - and a bit of a constitutional mess. And so, here we are: Parliament finally began an inquiry to appoint a new Ombudsman on 19 March, and on past performance that will take until August, and we have Boshier filling the seat and subject to legal challenge on every decision he makes until then. Heckuva job our political class are doing. And clearly, such attention to detail is why we pay them the big bucks and give them huge pay rises.

Ministerial conflicts of interest

Since the National government came to power, it has been surrounded by allegations of conflicts of interest. Firstly, there's the fast-track law, which concentrates power in the hands of three Ministers, some of whom have received donations from companies whose projects they will be deciding on. Secondly, there's the close ties of certain Ministers to the industries they are regulating. More generally, the National Party received over $10 million in electoral donations during the last election cycle, and ACT over $4 million. No-one who isn't a politician believes that those donors won't want something for their money. Prime Minister Chris Luxon's response to this has been to hide behind Cabinet's conflict-of interest procedures, which he calls "incredibly good". The problem is that those procedures don't reassure the public, producing only an intentionally vague statement of conflicts once a year. And back when these concerns were being raised, the most recent such statement was released in December 2023, and covered only the former Labour government. No information was available about the conflicts of the current government.

So, I asked, filing an OIA request seeking up-to-date information on cabinet conflicts of interest. I was backed in this by the previous Ombudsman's 2012 decision on the issue, which found that there was no good reason to withhold information on actions taken to mitigate such conflicts. DPMC responded on Wedenesday, releasing the information. They've since posted it to the web.

As for what it shows, well, its the usual anodyne list which never states what the conflict actually is. But through all the intentional vagueness, you can see what's not there: the high-profile links between certain ministers and certain industries, and the publicly identified donations to certain Ministers by people seeking decisions from them. Apparently, the Cabinet Office doesn't think these are important enough to require declaration, let alone management. The public, I think, will disagree.

A post I hope is incorrect

In May, we learned that National MP David MacLeod had "forgotten" to declare $178,000 in electoral donations. Filing a donation return which is false in any material particular is a crime, and the Electoral Commission has now referred MacLeod to police, since they're the only people who are allowed to prosecute.

Sadly, from past incidents, we know how this will go: despite the enormous amount of money involved and the clear threat to the integrity of our political system, the police will ignore it, fail to investigate, drag out the clock, and then say "whoops, too late to bring charges". Or just nakedly go "not in the public interest" (which is police for "he's rich and white and powerful"). They've done it before, and they'll do it again. Which is why we need to take this power off them, and give the Electoral Commission the power to prosecute electoral crime in their own right. Because unlike police, they at least take it seriously, and don't see their primary role as being bodyguards and bootlickers to the powerful.

I desperately hope that this is a post which will prove to be incorrect, and for which I will have to issue a correction. But from the police's past performance, I'm not betting on it.

SIS "evidence" isn't, again

Back in 2016, then-Internal Affairs Minister Peter Dunne cancelled a New Zealand woman's passport, claiming she was a terrorist. The basis for his decision was a secret briefing by the SIS, which claimed that if she was allowed to travel, the woman would "engage with individuals who encourage acts of terrorism". The Supreme Court has now ruled that that decision was unlawful and invalid:

In its judgment released today, the court found the minister did not have reasonable grounds to believe the woman intended to facilitate an act of terror, and the briefing paper provided to the minister by the SIS was not fair, accurate, or adequate.

The judgement said Dunne's reliance on the woman potentially travelling to Syria to join a terrorist group fell short of the requirement under the law that the person be an actual danger to a country, not just a potential one.

The judges also found the law required there be evidence that the passport holder intended to travel and facilitate in a terrorist act, and Dunne did not have reasonable grounds to believe this - a higher standard than just suspecting it.

So, once again, SIS "evidence" turns out to be a tissue of lies and assertions when subjected to independent judicial scrutiny - just as it was in the Zaoui case. No wonder they kept the entire trial under a cloak of secrecy.

Obviously, this invites serious questions about why the SIS is so bad at its job, and why Ministers persist in relying on their "evidence" when it so obviously and so publicly gets it wrong whenever tested. And it invites serious questions about the quality of the "security assessments" they apply to visa applicants, and whether those assessments are also similarly unfair, inaccurate, and inadequate. A serious government, and a serious opposition, would be asking those questions. But given the way these things normally go, instead we'll see legislation to prevent judicial scrutiny of such decisions, rammed through under all-stages urgency, with the full support of the Labour Party.

More democratic abuse from National

"Abuse of democracy" seems to be the emerging theme of this government, with bills rammed through under urgency or given pathetically short select committee submission times seemingly designed to limit and undermine public engagement. And today we have another case, with the public given just nine days to submit on National's Local Government (Water Services Preliminary Arrangements) Bill.

The bill makes significant changes to water regulation. It would force councils to amalgamate their water services and prepare them for privatisation while undermining public consultation rights over such decisions (and allowing the Minister to just appoint someone to impose their preferred outcome by diktat). It would steal Watercare from Auckland. And an amendment paper also being considered would gut water quality standards for wastewater - basically, allowing councils to dump shit in rivers. These are big changes, and they deserve proper consideration and input from the public. But National doesn't want that, so its strapped the chicken and given the bill an arbitrarily short report-back date, precisely to prevent it.

This is how National governs. Over us and without us. They think this country belongs to them, not us; that decisions should be made by a narrow elite of bribed former businessmen, without any input from the people who are affected. Basically, a return to the pre-MMP "elected dictatorship". Luxon is used to that style of government, because he's a corporate manager, and corporations are essentially dictatorships. But a country is not a corporation, any more than it is a household. This is not the style of government kiwis are used to, and its not a style we will accept. And we need to throw Luxon and his gang of dictators out of office at the first opportunity.