"Comity" versus the rule of law

In 1974, the US Supreme Court issued its decision in United States v. Nixon, finding that the President was not a King, but was subject to the law and was required to turn over the evidence of his wrongdoing to the courts. It was a landmark decision for the rule of law, both in the US and internationally, and helped cement the view in democratic countries that the government, whatever shape it may take, is subject to the law.

Today, in the case of Minister for Children v Waitangi Tribunal, the New Zealand High Court said "nah, fuck that":

The High Court has overturned a summons by the Waitangi Tribunal to Minister for Children Karen Chhour.

The minister was due to give evidence at the tribunal on Friday regarding the government's plans to repeal section 7AA of the Oranga Tamariki Act - but that will no longer go ahead.

So unlike the US, in New Zealand ministers are literally above the law. They don't have to front up to explain government policy to a standing constitutional commission of inquiry. We're a monarchy in practice as well as in name.

Reading the judgement, its a very odd decision. The court finds that the minister could provide relevant evidence which would assist the Tribunal's inquiries. It found that she should have provided it voluntarily, and that she was a dick not to. It found that the Tribunal has a statutory power to summons witnesses, which applies to ministers, so they could make her provide it. But not in this case, because of "comity" - that is, deference between the three branches of government.

Which probably sounds great in theory. The different bits of our government should be respectful of and not interfere in each other's roles? Sure. But its a bit of a problem when the literal job of the body the executive is demanding deference from is to perpetually inquire into them. And its clear how, both in general and in this case, demands for "comity" serve to frustrate that job, undermining the purpose of comity in the first place.

Its also weird because in Aotearoa's political system, the executive is the most powerful branch, and so the least deserving of any deference. And fundamentally, I just don't see comity towards to ministers as having any value at all. Comity from ministers is important - they shouldn't be telling the courts what to do, or frustrating their work by refusing to provide evidence (for example), and they should be accountable in Parliament for their and the government's actions. Similarly, I see the value in comity between Parliament and the courts, because of privilege and independence. But deference of either towards ministers? Fuck that shit. Because demands for "deference" from the executive basically boil down to inherited claims that the king is above the law, and the other two branches resolved that pretty decisively in 1649.

As for the specific case: apparently there's good grounds for an appeal (here's hoping). Or maybe the minister will just stop being a dick, and provide the evidence she was asked to. Alternatively, if she wants to keep being a racist dick (this whole thing being apparently due to hostility to the idea of having to comply with te Tiriti), and keep arguing that the decision to repeal section 7AA was determined by the coalition agreement, maybe the Waitangi Tribunal could take that argument seriously, and summons the people the government claims are actually responsible for that decision: the coalition negotiators. Not being ministers (in their coalition role, at least), there's no duty of "comity", and I'm sure they could explain their reasoning to the Tribunal. They're a commission of inquiry, after all. So maybe they should... inquire?

More criminal miners

What is it with the mining industry? Its not enough for them to pillage the earth - they apparently can't even be bothered getting resource consent to do so:

The proponent behind a major mine near the Clutha River had already been undertaking activity in the area without a consent.

Hawkeswood Mining Ltd has applied to establish and operate an alluvial gold-mining operation in a rural resource area at 1346-1536 Teviot Rd, Millers Flat, Roxburgh.

The proposal will go to a hearing, but a Central Otago District Council spokeswoman confirmed activity was already happening near the planned mine without a consent.

Council planners have apparently recommended they be denied resource consent because of the impact on the local environment, and have issued them abatement notices. So instead the company plans to apply to Shane Jones for a fast-track "consent" instead. Which I think shows us again that the fast-track process is designed for criminals and vandals who would not be able to get consent by lawful means.

"Unprecedented"

Today, former Port of Auckland CEO Tony Gibson went on trial on health and safety charges for the death of one of his workers. The Herald calls the trial "unprecedented". Firstly, it's only "unprecedented" because WorkSafe struck a corrupt and unlawful deal to drop charges against Peter Whittall over Pike River. And secondly, it's only "unprecedented" because previous iterations of the law didn't incentivise corporate officers towards protecting worker safety by imposing personal liability.

That all changed with the Health and Safety at Work Act 2015. One of its key provisions is that it holds officers as well as corporations responsible, with strict liability, regardless of whether the corporation has plead guilty or not. So the actual people who set safety regimes, or undermine them, can be held responsible.

At least, that's the idea. Gibson's trial I guess will tell us whether the law means anything or not. And if it does mean something, I guess we'll learn whether National is actually still committed to that, or whether they want to return to the bad old days when employers could kill with abandon and walk free.

A who's who of New Zealand's dodgiest companies

Submissions on National's corrupt Muldoonist fast-track law are due today (have you submitted?), and just hours before they close, Infrastructure Minister Chris Bishop has been forced to release the list of companies he invited to apply. I've spent the last hour going through it in an epic thread of bleats, and its basically a who's who of New Zealand's dodgiest companies.

In addition to the seabed miners who have been rejected by the Supreme Court, and the coal miners who have been rejected by the Environment Court, there's also:

• The irrigation company which poisons the local water and doesn't want to pay easement fees to use DoC land;
• the scrapyard company which can't be bothered getting resource consents, and whose scrapyards regularly catch fire;
• A company which wants to build an "equestrian centre" in Canterbury. I guess we know why they're on the list then;
• The Australian mining company whose plan to mine the barrytown flats has been rejected multiple times;
• The Auckland property development company who just happen to have a member of their family in the National caucus.

The last one so obviously fails the political hygiene test that you really have to wonder how it got through. Or maybe National really is as shamelessly corrupt as NZ First?

These are precisely the sorts of projects which should be going through robust processes to assess their merits and consistency with environmental bottom-lines. Instead, all of that is going to be bypassed, replaced with a Muldoonist rubber-stamp, so that the coalition parties can raise funds through corruption. Which just makes it all the more necessary for the next government to review every "consent" granted by this process, and legislatively cancel every one which should not have been granted.

Climate Change: Turning the tide

The annual inventory report of New Zealand's greenhouse gas emissions has been released, showing that gross emissions have dropped for the third year in a row, to 78.4 million tons:

All-told gross emissions have decreased by over 6 million tons since the Zero Carbon Act was passed in 2019. Which shows the difference policy makes. Comparing it to the carbon budget is difficult because of the non-transparent "target accounting" used for forests, and because the only by-gas table He Pou a Rangi Climate Commission included in its 2021 carbon budget advice used AR4 rather than AR5 accounting. Still, we can draw some conclusions: the budget allowed 34 MT per year of CO2, and 8 MT-equivalent (AR4) of nitrous oxide, which turns into 7.11 MT using AR5. The equivalent (AR5) numbers from emissions tracker are 31.61 and 6.88 MT respectively - so we're 2.6 MT ahead of our budget. Unfortunately we're doing far worse on methane - 1.37 vs a budgeted 1.25 million (actual) tons. So as usual, the story is that farmers aren't pulling their weight. It is long past time we fixed that, and made them carry a fair share of the burden.

Ministers are not above the law

Today in our National-led authoritarian nightmare: Shane Jones thinks Ministers should be above the law:

New Zealand First MP Shane Jones is accusing the Waitangi Tribunal of over-stepping its mandate by subpoenaing a minister for its urgent hearing on the Oranga Tamariki claim.

The tribunal is looking into the proposal to scrap Section 7AA of the Oranga Tamariki Act which requires the chief executive to demonstrate a practical commitment to the principles of the Treaty of Waitangi.

In a rare move, the Waitangi Tribunal has summonsed a sitting minister to explain why she wants to repeal section 7AA of the Oranga Tamariki Act.

[...]

Jones says the tribunal should focus on the effects of policy rather than the construction of policy.

“The Waitangi Tribunal has no business running its operations as some sort of star chamber delivering pre-emptory summons for ministers to rock up and be cross-examined or grilled in some kind of wannabe American star chamber pulp fiction gig,” he says.

[The Tribunal has in fact asked for an affidavit, rather than cross-examination, and a formal summons is a last resort in the fact of noncooperation]

The problem here is that the reason for a policy is an important part of determining whether it is justified, and its motivation may be relevant to an assessment of its effects. Orthodox Bill of Rights Act analysis, for example, starts with asking "does this serve an important public purpose", while a policy which has racist effects is so much worse if it is motivated by racism than if those effects are due to an oversight. And where Ministers are proposing, but have not yet implemented, action, the answers on motivation can really only come from them.

In terms of "mandates", the Waitangi Tribunal is legally a Commission of Inquiry, with all the powers of a court. Ministers give evidence to both when it is relevant for them to do so (for example, a pile of Ministers gave evidence to the inquiry onto the Christchurch shootings; their evidence was then suppressed for thirty years to protect "national security"; the Cabinet Manual section on "Litigation involving Ministers" includes a note that courts routinely expect affidavits from Ministers in Judicial Review proceedings). If the Minister is worried about being asked about Cabinet discussions, they can always seek a direction that these not be disclosed (the protection of collective and individual ministerial responsibility is a withholding ground under the Official Information Act, and can thus be protected under section 70 of the Evidence Act).

In fact, the only constitutional problem here is that Jones is criticising a court, in clear violation of both constitutional norms and the Cabinet Manual. Unfortunately the Prime Minster is neither willing nor able to enforce either against his coalition partners.

In this inquiry, the onus is on the government to explain its proposed policy and how it does not breach Te Tiriti. And if Chhour does not wish to provide a reason for the policy, the Tribunal is fully justified in assuming that there is none (or at least, none the government wishes to publicly admit to), and drawing the appropriate conclusion.

Climate Change: Criminal ecocide

We are in the middle of a climate crisis. Last year was (again) the hottest year on record. NOAA has just announced another global coral bleaching event. Floods are threatening UK food security. So naturally, Shane Jones wants to make it easier to mine coal:

Resources Minister Shane Jones has announced changes to coal mine consenting he says reduce barriers to extraction and bring it into line with other types of mining.

The government's first Resource Management Amendment Bill, to be introduced next month, will make changes to the Resource Management Act, freshwater environmental standards, and the National Policy Statements for Freshwater Management and Biodiversity.

It will remove additional controls for coal mining introduced by Labour that were set to end the consenting pathway for existing thermal coal mines from 31 December 2030.

This is the action of a glue-sniffing sociopath. We need to be ending coal, not enabling it. Instead, Jones seems to want to let the coal industry grub a few more dollars by setting fire to the planet.

This criminal act of ecocide cannot be allowed to stand. The next government needs to make it a priority to revoke fossil fuel mining permits and consents, with no compensation, and shut down this murderous industry for good.

Muldoonism, solar farms, and legitimacy

NewsHub had an article yesterday about progress on Aotearoa's largest solar farm, at "The Point" in the Mackenzie Country. 420MW, right next to a grid connection and transmission infrastructure, and next to dams - meaning it can work in tandem with them to maximise water storage. Its exactly the sort of project we need to decarbonise the country and Electrify All The Things, but there's a problem: the entire Mackenzie basin is (for good reason) designated an "outstanding natural landscape". And its easy to see how a giant solar array would interfere with that landscape.

Other companies have obtained resource consent for similar sized solar projects by the simple expedient of not trying to put them in an outstanding natural landscape. But rather than doing that, or attempting to convince the district council or EPA that their project can fit into the landscape, these developers are considering applying for "consent" through National's corrupt Muldoonist "fast-track" legislation, so they can just drive a bulldozer through the whole thing. I'd urge them not to, because by doing so, they would fundamentally delegitimise their project, and invite a future government to not just fully review any corruptly-gained "consent", but potentially legislatively cancel it and impose a make-good order for any work done. Meaning they'd need to tear down whatever they build and restore the landscape. Which is obviously a suboptimal outcome for the developers, and for Aotearoa.

There's an obvious parallel between this project, and Project Hayes, Meridian's plan for a giant wind-farm in Central Otago, or the Turitea Wind Farm, which was built in a designated reserve. In both cases the choice to try develop a valued and protected landscape made the projects highly doubtful from the outset, and made the default response "nice, but maybe somewhere else please" - its not like we're short of great sites for wind or solar farms, after all. And in both cases the RMA process explored the environmental impacts and what could be done to mitigate them, and the appeals process tested that process and ensured it met accepted standards. Hayes was abandoned during the appeals when Meridian accepted that they could just build somewhere else. Turitea meanwhile won its appeals, and gained public acceptance as a result. Which highlights a key value of the slow, participatory RMA and appeals process: it legitimises the outcome. No political party threatened to cancel the consent, and no protestors tried to occupy the site or sabotage the project. While some people (including myself) may have disliked the outcome, it was the result of an obviously fair process, and so basically legitimate.

Muldoonist Ministerial fiat does not impart any of this legitimacy, especially when it comes with an accompanying whiff of corruption (how much has NZ First been given by interested developers through its secret bribe foundation? We don't know.) Which is why it is legitimate to review and if necessary cancel "consents" obtained through such a process.

We need more solar farms. But we need them consented by a legitimate process which fairly assesses environmental impacts and mitigations. Sometimes "not there" is the proper outcome of such a process. Developers should accept that. If they don't, and if they instead resort to corruption, they have only themselves to blame when they face the consequences.

National's war on renters

When the National government came into office, it complained of a "war on landlords". It's response? Start a war on renters instead:

The changes include re-introducing 90-day "no cause" terminations for periodic tenancies, meaning landlords can end a periodic tenancy without giving any reason.

[...]

Landlords will now only need to give 42 days' notice for ending a tenancy, instead of 63 days, if they want to move themselves or a family member into the property, or if the tenancy agreement notes the property is usually used to house employees, and they want to move an employee into the property.

Landlords will now only need to give 42 days' notice for ending a tenancy, instead of 90 days, if the property is subject to an unconditional agreement for sale requiring vacant possession, according to the Government.

So they're going to make it easier for landlords to throw people out of their homes. And they have the gall to call this "pro-tenant".

So I guess if your landlord throws you out any time over this term, you know who to blame: Chris Bishop. And you should take your revenge on him and his party at the ballot box at the first opportunity.

Drawn

A ballot for two Member's Bills was held today, and the following bills were drawn:

• Repeal of Good Friday and Easter Sunday as Restricted Trading Days (Shop Trading and Sale of Alcohol) Amendment Bill (Cameron Luxton)
• Consumer Guarantees (Right to Repair) Amendment Bill (Marama Davidson)

The first bill seems almost certain to pass under the current Parliament. And honestly, the idea of religious no-trading days is bullshit, and we're well rid of it (now do ANZAC day!) Unfortunately, as introduced it does not included the required fix to protect worker's rights of making easter Sunday a public holiday. If it is not amended to included that provision, then the onus will be on the next government to fix that as quickly as possible.

Climate change violates human rights

That's the ruling of the European Court of Human Rights today:

Weak government climate policies violate fundamental human rights, the European court of human rights has ruled.

In a landmark decision on one of three major climate cases, the first such rulings by an international court, the ECHR raised judicial pressure on governments to stop filling the atmosphere with gases that make extreme weather more violent.

The court’s top bench ruled that Switzerland had violated the rights of a group of older Swiss women to family life, but threw out a French mayor’s case against France and that of a group of young Portuguese people against 32 European countries.

[...]

The court, which calls itself “the conscience of Europe”, found that Switzerland had failed to comply with its duties to stop climate change. It also set out a path for organisations to bring further cases on behalf of applicants.

The other cases were thrown out for technical reasons, not on the merits, so that's not actually a problem. What is weird is that this ruling was made under Article 8 - the right to respect for private and family life, home and correspondence - rather than the Article 2 right to life. Reading the actual judgement, the reason for this seems to be that it was a bit easier, but it also notes that there's a very similar argument under the right to life. But the ruling itself flows from accepted principles of effective protection for human rights:

The Court found that Article 8 of the Convention encompasses a right for individuals to effective protection by the State authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life.

In this context, a contracting State’s main duty is to adopt, and to apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change.

Whether this argument works in Aotearoa (which also recognises the right to life) will depend on whether the courts recognise a duty of effective protection.

As for Europe, the consequences of this ruling should be significant, and should force ECHR parties (including the UK) to revise their climate policies, or face legal action. And hopefully that will see deeper emissions cuts

Member's Day

Today is a Member's day. First up is James Shaw's New Zealand Bill of Rights (Right to Sustainable Environment) Amendment Bill, which does exactly what it says on the label. Despite solid backing in international law and from lawyers and NGOs, National will likely vote it down out of pure orcish hatred. Second is Teanau Tuiono's Restoring Citizenship Removed By Citizenship (Western Samoa) Act 1982 Bill, which would correct one of the great historical crimes of the Muldoon era. National will likely vote that down too, out of racism. After the dinner break it will be time for the second reading of Greg O'Connor's Child Protection (Child Sex Offender Government Agency Registration) (Overseas Travel Reporting) Amendment Bill, which is nasty law and order bullshit which now includes an explicit BORA override. So National will vote for that one. The House should then make a start on the second reading of Stuart Smith's Sale and Supply of Alcohol (Cellar Door Tasting) Amendment Bill. If the House moves very quickly they may make a start on Tracey McLellan's Evidence (Giving Evidence of Family Violence) Amendment Bill, but given the length of second-reading debates, I think that's unlikely.

There should be a ballot for two new bills tomorrow.

Climate Change: Unwelcome advice

Yesterday He Pou a Rangi Climate Change Commission released two key pieces of advice, on the 2036-40 emissions budget and the 2050 target. Both are statutorily required as part of the Zero Carbon Act budgeting / planning process, and both have a round of public consultation before being finalised and sent to the Minister. And the current government, stacked with foot-draggers and outright deniers, is going to hate both of them.

The first piece of advice is the Draft advice on the fourth emissions budget period (2036–2040), and whether emissions budgets one, two, and three should be revised. It recommends a sharp reduction in allowable net emissions over that budget period, to just 26.8 MTCO2-e a year (by comparison, net emissions in 2021 were 73.3 MT, and the 2030-35 budget currently allows an average 48 MT a year). Its a huge reduction, and seems very ambitious, but He Pou a Rangi thinks we can do it. They've updated their "demonstration path" to take into account changes in technology and progress so far, and things are looking much better on the emissions cutting from than they were five years ago. In particular, electrifying transport and industry is looking much easier than expected, and they think that vapourware agricultural methane reduction technology might actually exist by 2035 (the policy problem of course is getting farmers to use it). Throw in the massive amount of trees planted over the last few years, and they come to an amazing conclusion: we will hit our net-zero (except methane) and the bottom end of our 24% - 47% methane reduction goals more than a decade early. To quote Jacinda, "we can do it!"

This is an amazing conclusion, and one that should give us all hope. But its going to be deeply uncomfortable for the government, and moreso for what it implies for the 2024 Review of Aotearoa New Zealand's 2050 emissions reduction target. Because while that draws no conclusions yet about whether to amend the targets, it does find that no matter which way you look at them, they are not enough. Whether you use equal per capita emissions, ability to pay, responsibility for warming, or the right to sustainable development,

the current 2050 target is not compatible with any of these international burden sharing perspectives.

Which, combined with the news that we can hit it a decade early, naturally invites the question: why not strengthen it? Especially when other countries have already adopted much tougher targets than ours?

National is going to hate this, because their entire approach to climate change is that it will cost too much, and its not their problem anyway, and (in the case of Luxon and the rest of his fundie friends) they want the end of the world. And here's a bunch of independent experts telling them that we can stop it, and save enormous amounts of money by doing so (check out figure 5.1 on that front), and do it faster than we thought. Their entire status-quo-protecting pretence of helplessness just falls apart.

(Its also a direct challenge to their efforts to weaken the methane target and replace it with farmer/denier "no net warming" bullshit. Despite polluting farmers crying "too hard", the Commission has found we can meet that target a decade early on current trends. Which invites the conclusion that we need to be aiming for the top end of the range, if not strengthening it, especially given that rapid cuts to methane are the best and quickest way to limit warming and damage).

And National is going to especially hate it because while the law formally leaves the final decision on both questions to the Minister, it basically requires them to accept the Commission's advice - and explain why if they don't. Any departure will result in a judicial review, and a likely do-over if those reasons are insufficient (and here its worth noting that in the ETS settings case, the courts found that "don't wanna" is not a good enough reason for ignoring the Commission). So, the government is going to be forced to adopt this.

The Key National government would have just shrugged and accepted that. Targets and budgets 15 years away? Someone else's problem. But this bunch of climate-denying, glue-sniffing radicals? They're going to throw a tanty, which will further alienate them from the public. But whatever they do, the next government can adopt these recommendations. The big problem is how much time we might lose waiting for that government to arrive.

Climate Change: Bad faith from National

One of the weird features of the Zero Carbon Act was its split-gas targets, which separated methane, produced overwhelmingly by farmers, from carbon dioxide produced by the rest of us. This lower target for methane was another effective subsidy to the dairy industry, and was the result of a compromise to get bipartisan support for the law. Part of that compromise was a statutory review of the methane target, to be conducted this year. The first findings of that review will be released later today, but they will have been shared with the government under the "no surprises" policy. And it is clear that the government does not like them, because they have just announced their own "independent" review, premised on farmer/denier "no net warming" bullshit. Which means it will be a strapped chicken review by National / farmer / denier stooges, aimed at weakening the already weak methane target and giving farmers even more of a free ride (while the rest of us continue to pay for everything).

Just to make this even clearer, the Parliamentary Commissioner for the Environment has already looked at this bullshit. Their finding was that holding New Zealand’s methane emissions steady at current levels - i.e. letting farmers do nothing - "would not be enough to avoid additional global warming". There's also a big question of "additional from when"? Farmers clearly want it to be from now (or maybe even later). But if you think the level of warming now - and by implication, the level of flooding, droughts, and cyclones - is tolerable, I have some more glue for you to sniff.

So, this is a terrible idea, National dropping the mask to show that they were climate deniers all along. What can we do about it? Well, as pointed out earlier, the weak methane target was the result of a compromise. By breaking that compromise, and revealing their bad faith, National opens up space for future governments not just to reverse what they do, but to strengthen efforts on methane. What that looks like in practice is bringing methane fully within the 2050 net-zero target, measuring its impact using GWP20 rather than GWP100 (making it "cost" more), and bring its primary emitters - farmers - fully within the ETS, with no subsidies, so they are forced to pay their own way for once rather than being supported financially and environmentally by the rest of us. It also means ruling out any future "compromises" with National, on this issue, or any other. They've shown they can't be trusted, on this or anything. It's time we stopped pretending they're anything other than treacherous, murderous arseholes.

Climate Change: Spite destroys success

The clean car discount was a real policy success in pushing electrification of transport. It worked so well that EV adoption was running five years ahead of the Climate Commission's targets, giving us a real shot at decarbonising light transport. National killed it out of pure spite. And as expected, EV sales have now collapsed:

Last month’s sales of electric vehicles plummeted to a three year low for the month of March, new data from the NZ Transport Agency shows.

In the wake of the Government’s scrapping of the Clean Car Discount policy, which subsidised low-emissions vehicles, sales have fallen. While EV sales did rise in March as compared to January and February, they remained well below previous levels.

Just 4.5 percent of new vehicles registered last month were fully electric, with another 1.8 percent being plug-in hybrids. That’s less than a third of the market share clean vehicles had in March 2023. On average across the past year, one in five new vehicles sold was electric.

When the numbers for January were released, showing the worst sales month for EVs since 2020, the chair of the advocacy group Drive Electric warned it was “exceptionally unlikely” that figures would return to 2023 levels by the end of the year.

So that's that fucked then. And "an expansion of the charging network" is not going to fix it. But National still has international and domestic emissions-reduction targets, and failing to meet them is going to cost us billions, plus billions more from floods, drought, and sea-level rise. You've got to be a special kind of arsehole to destroy a highly effective policy out of spite. And you've got to be a particularly stupid one to do it at that cost. But apparently that's National's new standard of governance: stupid, spiteful arseholery.

A malevolent authoritarian

One of the fundamentals of the New Zealand government system is consultation. On a broad scale, policy proposals generally need to go through a consultation process with the public, or at least with key stakeholders. And within government, agencies are required to consult each other, with Cabinet requiring formal checks to ensure this is done on certain issues. There are good reasons for this: it stops the government from working at cross-purposes and undermining its own policy agenda, it mitigates against groupthink and silos within agencies, it allows the impacts of policies to be accurately identified, and (most importantly) it stops the government making huge mistakes. But Rimmer thinks it takes too long, so he wants to end it. But only for certain voices, of course:

Minister for Regulation David Seymour is frustrated at the way population ministries can slow down the business of government.

Most proposals have to be farmed out to population ministries like the Ministries for Women, Māori, and Pacific Peoples asking whether they think any policy changes will impact the people they are responsible for.

If the ministries have anything to say, and often they do not, their comments are put in a box on the final Cabinet Paper.

Some papers also receive a climate impact assessment, which triggers if the proposal is likely to have an impact on New Zealand’s emissions reduction goals.

Speaking to On the Tiles, the Herald’s politics podcast, Seymour said this slowed things down and that he was keen to change it, although a final proposal had not gone to other ministers.

Seymour said he believed too many of these ministries were consulted when drafting Cabinet papers.

This is a crystal clear statement of which voices Rimmer think matter and which don't - and in the latter category is everyone who isn't a polluting white male. But its also a clear statement of how he wants to govern: by silencing anyone who might speak out against his far-right agenda, and censoring advice which might accurately identify the impacts of his policies. Which is also something you can see in his command that schools punish climate strikers. The man is a nasty malevolent authoritarian. The question is how much we are going to let him undermine our democracy.

Support the climate strike

Today is school strike 4 climate day. There will be protests around the country in support of climate action and a lower voting age, which are expected to attract over a hundred thousand people.

There's still a pandemic on, so I can't go (curse the pandemic!). But if you feel safe, I urge you to attend and show your support. Numbers matter, and every person counts. The 2019 climate strike forced the then-government into faster action. While this pack of malevolent wankers seem less inclined to listen, at least some among them want to get re-elected, and a large protest is a direct threat to that. We may not be able to stop their ecocidal agenda, but we can make it cost them, and make it easier for it to be reversed on day one of the next government.

Climate Change: Making polluters pay

Climate change threatens human civilization. It threatens to kill a billion people. The costs of stopping it, and of adapting to the damage already done - of moving people and infrastructure to protect them from sea-level rise, and of dealing with the resulting floods, droughts, cyclones, heat-waves, and other extreme weather events - are enormous. So how do we pay for it?

The moral principle here is simple: polluters must pay. And in the US, states are finally moving towards that, with "climate superfund" legislation aimed at billing them retroactively for the damage they have caused:

It’s called a climate superfund bill, and versions of it are floating through legislative chambers in New York, Massachusetts, and Maryland, in addition to Vermont. Though each bill is slightly different, the general premise is the same: Similar to the way the federal Superfund law allows the Environmental Protection Agency to seek funds retroactively from polluters to clean up contaminated sites, states will seek to bill fossil fuel companies retroactively for the costs of addressing, avoiding, and adapting to the damages that the emissions from their products have caused.

[...]

If [Vermont's bill] gets past the governor’s desk, the bill will kick off a multiyear process that, in the most optimistic case, could bring money into the state by 2028. The first step is for the state Treasurer to assess the cost to Vermont, specifically, of emissions from the extraction and combustion of fossil fuels from 1995 to 2024, globally. Regulators will then request compensation from responsible parties in proportion to the emissions each company contributed. The state will identify responsible parties by focusing only on the biggest emitters, companies whose products generated at least a billion tons of emissions during that time. The money will go toward implementing a state “resilience and implementation strategy” to be mapped out in the next two years.

Obviously, we can and should do this here. We already have a model: the retroactive liability for decommissioning costs imposed on the fossil fuel industry. But we need to go further than its targeting of previous permit-holders, and impose costs on owners and directors where they have used limited liability and bankruptcy to avoid paying. These people have ruined the world, and profited by doing so. It is only fair that they pay to fix it.

"Efficiency" is no reason to violate human rights

The right to trial by jury is affirmed in the Bill of Rights Act. The National Party wants to take it off you:

Justice Minister Paul Goldsmith is considering ways to reduce the number of jury trials, saying an increase in defendants choosing them is contributing to delays.

Data released under the Official Information Act shows a rise in defendants electing jury trials over judge-only trials. The choice is available only in category 3 cases, which carry a maximum penalty of two or more years in prison.

The data shows that, of category 3 cases disposed last year in which a judge-alone trial or jury trial was involved, nearly a third were jury trials, compared with less than a quarter in 2018.

Goldsmith says defendants’ increased choice of jury trials is a factor in court delays, and speeding up the system is one of his priorities.

This is not the first time they've done this. We used to have the right to trial by jury in any case with a penalty of three months imprisonment. National took it off us in 2011, raising the threshold to two years (with the help of an unprincipled sell-out by Labour). Their argument back then was exactly the same: speed and "efficiency". But those things ultimately depend on the resources the government commits to the justice system. And it speaks volumes that, with the system collapsing after decades of austerity, cost-cutting, and "tough on crime" bullshit, National would rather limit all our human rights than resource it properly. They'd rather give money to landlords than respect our fundamental rights.

Criminal enterprises

It was easter over the weekend, which meant the annual "debate" over relic easter trading laws, and various businesses deliberately flouting them for profit. I'd prefer those out-dated laws to be reformed - my preference is to make easter Sunday a public holiday, which solves all the problems other than business greed - but until they are, breaking them remains a crime. And where businesses deliberately commit crimes for profit, they need to be punished. Unfortunately, the fine for breaching the law - $1000 - is derisory, and clearly an insufficient deterrent (some criminal businesses clearly regard it as a cost of doing business).

Fortunately there's a solution for that. When a business makes more than $30,000 from breaking the law, that is "significant criminal activity". When they have knowingly, directly or indirectly, derived a benefit from significant criminal activity - which is clearly the case here - that means they have "unlawfully benefited from significant criminal activity". And where a business has unlawfully benefited from significant criminal activity, the resulting revenue can be taken under a profit forfeiture order under the Criminal Proceeds (Recovery) Act 2009. Note that when a business is convicted of a crime, that automatically meets the test for granting such an order, so the only legal question is the amount - a question which can easily be resolved with a search warrant or production order for their accounting records.

The question then is: will the police enforce the law, or will they allow these criminal enterprises to profit from their crimes? Or is it not a crime when done by the rich?

Climate Change: The wrong direction

Today the government released its "action plan" for the next three months - basically, the list of what it wants to get done. Yes, its government by KPI, with all the bullshit that that entails. But contempt for management culture aside, what about the substance? And in particular, the substance around Aotearoa's largest policy challenge, climate change?

Well, its bad. Here are Luxon's "action points" which are related to climate change:

• Finalise the Government Policy Statement on Land Transport, freezing fuel tax until the end of 2026 and delivering significant investment for transport.
• Take decisions on measures to increase investment in renewable electricity generation.
• Finalise policy to keep agriculture out of the ETS.
• Commence an independent review of the methane science and targets for consistency with no additional warming from agricultural methane emissions.
• Take decisions on the removal of the ban on offshore oil and gas exploration.
• Commission a study into New Zealand's fuel security, including investigating the feasibility of reopening the Marsden Point Oil Refinery.

Of these, only one - the one on renewable energy - could be remotely said to be positive, and its focusing on the area of least concern. In 2022 electricity generation produced 4.4 million tons of CO2 - just 5.7% of the total. While everything helps, the sector is generally headed towards the elimination of fossil fuels by 2030, and there are much bigger policy fish to fry.

What are those policy fish? Transport and agriculture. And on both of those, the KPIs are unequivocally bad, promising more roads and less public transport (so, higher emissions), a continued free ride for our biggest climate polluters in the dairy industry, and the adoption of explicitly climate denier targets for methane, the greenhouse gas we should be cutting as a priority to reduce heating. And as for the rest, there's nostalgia for the dirty fossil industries for the past.

These are the KPIs of a government which is still in deep denial about the climate crisis and its impacts, a government which seems to want to make it worse. And when we're talking about a crisis which threatens to kill a billion people, that makes them murderous ecocidaires, who should be sent for trial in The Hague.

So what should the government's climate KPIs be? Just off the top of my head:

• Immediately bringing agriculture into the ETS, with no subsidies, so farmers pay the full cost of the destruction they are causing;
• Cutting the size of the dairy herd by 50% using regulation and the NAIT database, to immediately reduce methane emissions;
• Massive investments in public transport to get people out of cars, and transport electrification to reduce the emissions of those who still drive;
• Cutting all industrial free allocation from the ETS, so polluters pay their way;
• Funnelling ETS revenue (such as it is) into the GIDI scheme to decarbonise and electrify industrial emitters;
• Shutting down or cleaning up Methanex's polluting methanol plants;
• Sunsetting all fossil fuel mining and exploration permits, and regulating the fossil gas industry out of existence.

This is what we need to do if we are to survive the next century. National's refusal to even think about shows that they'd rather kill us all than allow change.

National's total reversal on marine protection

In 2015, then-Prime Minister John Key announced plans for a huge ocean sanctuary around the Kermadec Islands, banning fishing and mining from 15% of Aotearoa's EEZ. It was bold, it was ambitious, and it suggested that National might actually care about the environment. Except they fucked it up: Key failed to consult iwi, in violation of the 1992 Treaty settlement on fisheries, resulting in a threatened court case and ACT - ACT! - pulling its support. The bill then sat on the order paper for the next nine years while first National, then Labour, tried to do what should have been done in the first place, and negotiated with iwi. For six of those years, when Labour was in power, National would ask about the bill regularly, suggesting strongly that they still supported it.

...and now, they've killed it:

The Government has given up trying to establish the Kermadec Ocean Sanctuary, with Cabinet scrapping the bill proposing the marine reserve.

It’s almost a decade since former Prime Minister John Key first announced plans for a 620,000sq km sanctuary at the United Nations in New York in 2015.

Ocean and Fisheries Minister Shane Jones said in a statement Cabinet had decided to pull the Kermadec Ocean Sanctuary Bill from Parliament’s order paper, stopping further progress on establishing the sanctuary.

He argued the current marine reserve around the Kermadec Islands, which extended 12 nautical miles, was “ample” to preserve the environment and marine life.

Worse, yesterday Jones mentioned "manganese nodules in the Kermadecs" in response to a question on seabed mining - so it seems that National has gone from wanting the EEZ around the Kermadecs to be effectively the marine equivalent of a national park, to wanting to mine it - a total reversal.

The lesson here: we can't rely on National to respect Te Tiriti, and we can't rely on them to protect the environment either. If we want people to work in good faith towards those outcomes, we need to vote for someone else.

The SIS turns Parliament into liars again

When Parliament passed the Intelligence and security Act in 2017, they assured us all that it was full of safeguards. Any intrusive surveillance of New Zealanders would be subject to a "triple lock", requiring the approval of the Minister and (supposedly independent) Commissioner of Intelligence Warrants, as well as post-facto review by the Inspector-General of Security and Intelligence. But according to the latest report from the Inspector-General, the SIS has turned them all into liars.

The problem is that the SIS has switched from using individual warrants to "class-based" ones when collecting intelligence on potential terrorism and violent extremism. So rather than having to convince the Minister and Commissioner of the need to spy on a particular person, as they were required to do in the past, they have instead switched to convincing the Minister and the Commissioner that they need to spy on classes of people, broadly and apparently subjectively defined - meaning that the actual decisions about who gets spied on and how are left entirely to them. This is clearly envisioned by the Act, but at the same time also clearly evades all those safeguards we were told about. And in the specific case, the Inspector-General argues persuasively that it is a "general warrant" (one which does not specify exactly what can be done under it) - a thing which has been unlawful since forever. And interestingly, once you strip away the tortured language designed to hide the admission, it seems that Crown Law agreed:

The Service disagreed with me that the warrants were general warrants at common law, provided the class definitions were tightened, and this was a view supported by Crown Law.

[Emphasis added]

The SIS subsequently did that. But the "improved" warrant still lets them decide "what ideologies are considered terrorism or violent extremism, who is a valid target, and what intrusive activities would be carried out, up to the maximum level of intrusiveness that the law allows." It may no longer be illegal, but it is absolutely improper.

That question of propriety is the real and underlying issue here. The IGIS is clear that while class-based warrants may legally be available, using them for intrusive surveillance "undermines the spirit of the warranting regime" and betrays the promises made to us about safeguards:

The authorising framework in the ISA provides for a process to give the public confidence in the justification for the agencies’ actions, by requiring external authorisation for the use of highly intrusive powers. Prior authorisation is a safeguard against agency overreach. It helps to ensure that breaches of protected rights in the interests of national security are justified and according to law. In the development of the ISA, this was described as a “triple-lock” of protection for individuals, with the three locks being control from the Minister, the Commissioner of Intelligence Warrants, and post-facto review by the IGIS. The effective delegation to NZSIS, under these warrants, of decisions on who to target for counter-terrorism or violent extremism purposes, by what means and for how long, and to undertake the most intrusive activities available, effectively leaves the scrutiny of individual cases to my office alone, after the fact. That is not what the public was led to expect.

Bluntly, the ISA was meant to stop the spies from doing whatever the fuck they want. This is a deliberate circumvention of all those safeguards. It is absolutely unacceptable. Further, it betrays that the culture of lawlessness and unaccountability the ISA was meant to stamp out continues to exist, in the SIS at least. And if that's the case, you really have to ask why we tolerate their continued existence.

IGIS will now be putting the SIS's improperly-delegated targeting decisions under the microscope, giving them the scrutiny the Minister and Commissioner should have. But while that's better than nothing, its not enough. And you really have to ask whether the Minister and Commissioner of Intelligence Warrants were doing their jobs properly when they signed off on this. The then-Minister, Andrew Little, is gone, so there's nothing we can do about him other than make sure he's not let within a mile of the position in future. As for the Commissioner, this seems to be a strong case for removal for neglect of duty.

No credibility

At the 2017 election, the Labour Party under Jacinda Ardern ran on a policy of investigating the fairness of Aotearoa's tax system, with any changes delayed until after the 2020 election. When their Tax Working Group reported back in 2019 recommending a capital-gains tax, Ardern immediately ruled it out for as long as she was Prime Minister. And when she quit, and IRD's High Wealth Individuals Research Project produced a cast-iron case for taxing wealth, her chickenshit successor Chris Hipkins ruled that out too. But now, he's supposedly promising to look at it again:

The Opposition leader, who ruled out campaigning on capital gains and wealth taxes ahead of the 2023 election, in a speech at the weekend said both were back on the table, as was a land tax. The idea is to ease the tax burden on salary and wage earners, who are "shouldering a disproportionate share" compared to those whose money comes from their wealth.

"Under this government, those with multiple investment properties are getting huge tax breaks while those on salary and wages pay tax on every dollar they earn," Hipkins told supporters on Sunday.

But while it's good to see Hipkins has apparently changed his mind on this, given his and his party's past actions, there's a complete lack of credibility here. To put it bluntly: they have offered this before. And then, when handed an opportunity to do it on a plate - with an unthinkable majority government even - they have failed to deliver. So why should we believe them this time? Likewise, if they won't even admit a mistake, but just say "that was then and this is now", why should we think that their position won't suddenly reverse again the moment they're back in government and getting those higher salaries and big, wealth-building perks again? Especially when the spineless chickenshit who did that is still in charge?

If Labour wants us to believe them, they need to offer us a leader who clearly believes in their policies, rather than in nothing. Meanwhile, there are other parties offering fairer taxation policies, who have been consistent for decades on this issue, and who can be trusted. So if you actually want to tax wealth and capital gains, I'd suggest voting Green.

For once, the answer was "yes"

Back in January, Te Kāhui / Criminal Cases Review Commission referred a historic indecent assault case back to the Court of Appeal after finding that the police had coached a witness into identifying their chosen suspect, deliberately hidden what had happened from the court, and lied to investigators about it. At the time, I asked the usual question: would they be prosecuted? And for once, the answer was "yes":

Two police officers have been charged with perverting the course of justice after the Criminal Cases Review Commission raised issues about a police officer’s actions in allegedly influencing a victim in a sex case.

That man has since had his convictions quashed, acquittal’s entered and granted permanent name suppression by the High Court.

Court documents seen by Stuff show two men, one whose occupation is listed as as police officer, have been jointly charged with attempting to pervert the course of justice in 2013.

They entered not guilty pleas on Friday and were granted interim name suppression.

Good. And hopefully this will deter future incidents of such corruption as well. Meanwhile, the police are going to need to review every case these officers have been involved in, for similar abuses. And if they don't, anyone convicted by their evidence may force the issue.

This is a natural consequence of having a body to investigate past miscarriages of justice. Some of those miscarriages will be the result of police corruption, and it is vital that where that is identified, the officers involved are prosecuted to the full extent of the law. Not only is that essential to do right by their victims - which includes the victims of the crime they have now fucked up irreversibly - but also it is the only way we can have faith and confidence in the police as an institution, and in the justice system as a whole. If the police conspire to protect their own, then we have no reason to trust them.

Drawn

A ballot for 4 Member's Bills was held today, and the following bills were drawn:

• Insurance Contracts Bill (Duncan Webb)
• Income Tax (Clean Transport FBT Exclusion) Amendment Bill (Julie Anne Genter)
• Crimes (Increased Penalties for Slavery Offences) Amendment Bill (Greg Fleming)
• Pae Ora (Healthy Futures) (3 Day Postnatal Stay) Amendment Bill (Catherine Wedd)

So we now seem to be having two ballots a week, which is weird.

Institutional traitors

One of the strongest narratives about "our" spy agencies is that they are basically institutional traitors, working for foreign powers (or just themselves), without any control or oversight by the elected government. And today, we have yet another report from the Inspector-General of Intelligence and Security which explicitly confirms this.

The short version: the GCSB hosted a signals intelligence system controlled by a foreign spy agency for years. But despite this system being able to be used to support military operations - which reading between the lines, means "drone murders" - they never told the Minister or sought Ministerial approval, despite the obvious human rights and foreign policy implications. On top of that, having agreed to host it, they then apparently forgot they were doing so, thanks to the usual recipe of secrecy, deliberately poor record-keeping, and incompetence. They only noticed again when it broke - at which time they did the right thing, turned it off, and contacted the Inspector-General.

The IGIS finds that while the hosting, data-sharing, and required collection were (mostly) authorised and lawful under the "manifestly inadequate" authorisations of the day, the failure to tell the Minister was utterly improper, violating the (then) statutory requirement of Ministerial control as well as the "no-surprises" policy.

It gets worse. Because despite the agreement with their foreign "partners" saying that the GCSB would have full visibility and would exercise due diligence over the system, they just didn't. They kept no records, weren't told what it was being used for, didn't bother asking, and of course never did any audits or reviews. They were so shit that after the agreement was signed and the system was installed, the knowledge was not passed on to new directors or senior leaders - meaning they had no idea of what they were doing (I am wondering how much of this was due to the switch from the old Defence-MFAT mafia to civilian leadership). Which means that if it was used for drone-murders, in likely violation of both New Zealand law and our foreign policy, they had no fucking idea. Which leads to this bit from the IGIS:

I have one further observation to make. There is one scenario contemplated by the MOU that I have no doubt would have been outside the scope of the various collection authorisations and, therefore unlawful and improper. Action from GCSB on a request from the partner operating the capability to collect signals not already tasked by GCSB, for the purpose of supporting a military operation, would have been outside the scope of the stated purposes of the authorisations. I would hope this never happened but, given the inadequacies in the GCSB’s monitoring and record keeping of the capability in action, I have no comfort that it did not.

We deserve something more than"hope" that "our" spies didn't break the law. Unfortunately, apparently that is all they and their oversight mechanisms can give us.

The good news is that the Inspector-General thinks that this is unlikely to happen again. I'd like to believe that, and it certainly looks like the culture and acceptance of oversight at GCSB has changed. Unfortunately, given their level of secrecy and the prohibition on the Parliamentary Intelligence and security Committee from inquiring into "operational matters", we will never know. Unless we see another report like this in a decade's time.

We know how to make rent affordable: crush landlords

In question time today, Housing Minister Chris Bishop, in response to questions about the Kāinga Ora waitlist, said that the government's policy goal was to “get rent affordability better under control”. He seemed to think this was a matter of everyone but Kāinga ora building houses, plus of course the (bullshit) trickle-down effect from giving huge tax cuts to landlords. But an article in the Guardian last night on the UK's housing crisis shows that the policy solutions to high rents are known and tested:

In the 1970s, when [Tory MP Edward] Leigh’s contemporaries were buying their first homes, they were the direct beneficiaries of an imploding private rental market. Rent controls, secure tenancies and high interest rates had conspired to decimate the sector: it shrank from nearly 60% of dwellings in England and Wales in 1939 to just 9% in 1988, towards the end of Margaret Thatcher’s premiership. This was welcomed by Conservative governments and Labour councils alike: the former rejoiced that rack-renting landlords were having to sell up to new owner-occupiers, while the latter enthusiastically repurposed existing private lets into new social housing stock.

Of course, it was Margaret Thatcher who fucked this up, with policies designed to ensure that "the letting of private property will again become an economic proposition". That went against the past 50 years of political consensus, that it should not be an economic proposition, founded on solid evidence that it led to nasty, squalid, and over-priced housing as landlords sought to maximise their profits.

We need such a consensus here. Or at least, a left-wing coalition committed to the eradication of landlords. And we know how to do it: tax and regulate the shit out of them. Tax land and vacant property. Control rents, make tenancies secure, and require them to be decent. When landlords sell up, tax their capital gains, and use the money to fund an expansion of Kāinga Ora and council housing to outcompete the private sector. We shouldn't pursue the traditional solution of hanging landlords from lampposts, but we should absolutely do the economic equivalent to drive them out of business.

The Guardian article notes that one of the few things that Adam Smith and Karl Marx agreed on was that landlords are bad, a complete economic dead-weight. It goes on:

Even if we leave aside the appalling conditions and precarity that private renters face, anyone with an interest in lower taxes, lower wage bills and increasing the number of first-time buyers must equally be interested in smashing the private rented sector to bits. Homebuyers are now forced to compete with landlords, who chase sensational yields in our unregulated rental market, and £85.6bn a year (which comes, of course, from wages and taxes) is wasted on rent. A renewed collapse of landlordism would represent not just the tenants’ revenge for the housing crisis, but a much broader and more valuable moment of social progress.

Obviously, I disagree with the "reduce rent so we can pay people less" line; instead I'd argue that reducing rent would be a huge way to improve living standards, moderate the cost-of-living crisis, and lift people out of poverty. That is something the National Party claims to be interested in; it is certainly something the Labour Party should be (the Greens and Te Pāti Māori, representing groups who overwhelmingly pay rent, already are). The question is, why do the major parties continue to ignore the known solutions, in favour of handouts to landlords and tinkering around the edges? Is it because their MPs own too many houses themselves...?

Climate Change: A failing market

The first ETS auction of the year was held today, and resulted in the market failing to clear. Only 2.97 million of 3.52 million units were sold - and those at the minimum price of $64/ton. Meaning that supply is still exceeding demand - exactly as the Climate Commission warned us a week ago. Which you'd hope would result in the government listening and slashing future supply, since obviously polluters don't need it.

The other consequence is that the government didn't get much money: only $190.4 million. Meaning less money to fund their (vile and unnecessary) landlord tax cuts. So maybe that will sharpen the government's mind as well, given its foolish reliance on ETS revenue to fund its vile and unnecessary landlord tax cuts. But somehow, I suspect it won't. National is full of climate change deniers who see climate change policy - including the ETS - as "red tape". They'll be happy to see it fail, and keep failing, even if it means missing our targets (which of course they claim to still be committed to). Better the planet burn, than any of them or their donors have to change a single thing about their lives or business practices...

Drawn

A ballot for a single Member's Bill was held today, and the following bill was drawn:

• Employment Relations (Employee Remuneration Disclosure) Amendment Bill (Camilla Belich)

The bill would allow employees to discuss their pay, enabling discriminatory practices to be identified and challenged. This is normal practice overseas, and it is surprising that Labour didn't enact it when they had an outright majority last term.

It looks like ballots are now being held on a Wednesday; I'll need to update my monitoring accordingly.

Member's Day

Today is (finally) a Member's Day, and once again its dedicated to first readings. First up is Rima Nakhle's Corrections (Victim Protection) Amendment Bill, to be followed by Rawiri Waititi's Goods and Services Tax (Removing GST from Food) Amendment Bill. Labour went into the last election with that as a policy, so it'll be interesting to see if they vote for it. This will be followed by Deborah Russell's Companies (Address Information) Amendment Bill and Greg O'Connor's Local Electoral (Abolition of the Ratepayer Roll) Amendment Bill. If the House moves quickly it might make a start on Tracey McLellan's Evidence (Giving Evidence of Family Violence) Amendment Bill, but I think that's unlikely.

A bunch of bills have been postponed, but two of them will be back next Member's Day, so the ballot should only be for five or maybe six bills, rather than having to refresh the whole Order Paper.

Don't run your business like a criminal enterprise

The Detail this morning highlights the police's asset forfeiture case against convicted business criminal Ron Salter, who stands to have his business confiscated for systemic violations of health and safety law. Business are crying foul - but not for the reason you'd think. Instead of opposing the post-conviction punishment and double-jeopardy aspects of this case, instead they're whining that the law just shouldn't apply to them:

Today on The Detail David Fisher talks through the potential consequences of this action.

"Were the case against the Salters to be proved, then it would leave, I would think, many different businesses feeling extremely vulnerable. Because they could very much be the next one under the gun," he says.

[...]

"So this is really fascinating because it would be really easy to find, if you were inclined to, $30,000 or more worth of offending to do with the Fair Trading Act, or the Resource Management Act. Dairy farms exceed $30,000 of business on any given day, really, and they deal with the Resource Management Act all the time. So were the case against the Salters to be proved then it would leave, I would think, many different businesses feeling extremely vulnerable, because they could very much be the next one under the gun."

And so they should. Because these things are actually crimes, and knowingly profiting from them clearly meets the definition of "unlawfully benefited from significant criminal activity" in the Act. Businesses worried about the law applying to them have a simple solution: don't run your business as a criminal enterprise. Don't systematically violate employment, environmental, health and safety, consumer rights, or immigration law, and don't rely on those violations for your "profit".

And that said: the proper place for asset forfeiture is at conviction. While Salter was convicted of negligently killing an employee, that was in 2017. Any asset forfeiture should have been done then. It is not right for someone to be convicted and serve their sentence, and then for the state to come back and try to punish them again. And that is what is happening in this case. Unfortunately, that is exactly how this law is intended to operate. Its a clear violation of the right not to be punished for the same offence. But it will likely continue until there is a declaration of inconsistency and the law is changed.

National's clean car tax advances

The Transport and Infrastructure Committee has reported back on the Road User Charges (Light Electric RUC Vehicles) Amendment Bill, basicly rubberstamping it. While there was widespread support among submitters for the principle that EV and PHEV drivers should pay their fair share for the roads, they also overwhelmingly disagreed with the government over what that rate should be, preferring something equivalent to a modern petrol vehicle and proportional tot he damage that light vehicles actually cause. The National majority dismissed this, because, and I quote "very efficient petrol vehicles pay less than their fair share." Very efficient petrol vehicles are usually very efficient because they are light, and therefore cause less damage to the roads than a hulking Ford Ranger. But I don't think we can expect the ute-brained MPs of the National party to understand that.

So, EV and PHEV drivers are going to be taxed at a far higher rate than they would pay in an equivalent modern petrol vehicle, in what is transparently both an attempt to punish those doing the right thing and decarbonising, and a desperate revenue grab to help pay for National's landlord tax cuts. That stinks, but its going to get worse, because National have announced that they want to move all cars onto the RUC system. We currently have a simple and efficient system of petrol taxes which is completely invisible to drivers and which is pay-as-you-go, and National wants to replace that with a complex system which requires people to pay large sums in advance, and at a higher rate than they do now, requiring actual enforcement by police rather than the money being invisibly extracted at the pump. Which sounds like both an enforcement nightmare, and an election-losing policy. So good luck with that.

The return of Muldoon

For forty years, Robert Muldoon has been a dirty word in our politics. His style of government was so repulsive and authoritarian that the backlash to it helped set and entrench our constitutional norms. His pig-headedness over forcing through Think Big eventually gave us the RMA, with its participation and consultation rights. The backlash to his secrecy forced him to pass the OIA. His top-down control of Cabinet by holding the finance portfolio gave us a since-unbroken norm that the Prime Minister cannot also be Finance Minister, because it is too great a concentration of power. His abuses of the "elected dictatorship" and election "victories" where he won fewer votes than the Labour opposition laid the basis for our modern constitution and MMP.

All of which now seems awfully familiar. People are noting the similarities in abuse of the parliamentary process, and in the steamrolling through of pet projects. And now there's another one: "legislating" by press-release, with Associate Environment Minister Andrew Hoggard purporting today to "suspend" the Significant Natural Area provisions of the National Policy Statement for Indigenous Biodiversity:

Associate Environment Minister Andrew Hoggard has today announced that the Government has agreed to suspend the requirement for councils to comply with the Significant Natural Areas (SNA) provisions of the National Policy Statement for Indigenous Biodiversity for three years, while it replaces the Resource Management Act (RMA).

The problem is that there is an actual legal process required to change a National Policy Statement, requiring public notification and submissions, and a board of inquiry or independent report. The government hasn't done any of it. And until it happens (or the government rams through an amendment under urgency), the law is still the law. Muldoon learned that the hard way in Fitzgerald v Muldoon; you'd think both Ministers and public servants would be aware enough of that case to stop Hoggard from making a similar mistake.

There's a name for this

Every year, in the Budget, Parliament forks out money to government agencies to do certain things. And every year, as part of the annual review cycle, those agencies are meant to report on whether they have done the things Parliament gave them that money for. Agencies which consistently fail to deliver on their promises can expect pressure from Parliament, and ultimately Ministers, to sort their shit out.

But NZDF has a solution to that whole problem: they just mislead Parliament about their performance:

“Entirely unreliable.” That’s the Auditor-General’s assessment of the Defence Force’s performance reports – and might well be the assessment of the Defence Force, full stop.

Auditor-General John Ryan (whose office’s work impresses more and more with every reading) has quietly pointed out to a Parliamentary committee that the Defence Force’s claim to have achieved 83 percent of its performance measures has to be treated with more than just the proverbial pinch of salt. It needs an emergency airlift aid delivery sack of the stuff.

A pattern has emerged where readiness targets are set to 100 percent each year – only to be reduced part-way through the year. “One capability target was reduced to zero percent in each of the last three years,” he notes. “The lowest target is then reported against as being met, so the results are entirely unreliable.”

The changes were made through supplementary estimates, so presumably approved by the then-Minister. At the same time, it seems outright fraudulent. And it is certainly misleading, and arguably a contempt of Parliament. The question is whether Parliament will actually do anything about this, or whether they'll just surrender their duty to scrutinise the use of public funds, and allow themselves to be bullshat by a chronically delinquent agency.

Climate Change: A test for National

He Pou a Rangi Climate Change Commission has released its latest advice on NZ ETS unit limits and price control settings for 2025–2029. This is, in theory, technical advice on how many units the government should allow to be auctioned. But because the ETS system is under pressure due to an accumulation of past poor decisions, its going to be a real test for National.

What are those past poor decisions? Putting trees in the system, which seemed like a good idea when the system was first designed in the early 1990's, but is now looking increasingly questionable. Handing out millions of tons of free credits every year to large polluters, which looked like a great idea to National in 2009 when it wanted to bribe its cronies, but has also come back to bite us. Having a fixed-price option until 2022, which again seemed like an acceptable transition measure in the 2010s, but was wildly rorted for the profit of polluters when the supply of fraudulent overseas "credits" was cut off, and the system transitioned to full auctions just a few years ago. Together, these poor decisions have led to the buildup of a huge pile of surplus credits in the system. And somehow, it managed to grow by another 15 million tons last year, despite nothing being auctioned.

The Commission's job is to ensure that the ETS settings are in accordance with our emissions budgets, so their solution to this problem is to radically slash auction volumes. There's no side-by-side comparison of the recommendations with the current settings, but you can get a sense of the scale from this graph, which includes 2024's volume:

For comparison, the current auction volumes for 2025 - 2028 (New Zealand units available by auction less the reserve amounts; the bit in dark blue on the graph above) are 12.6, 10.7, 9.1, and 7 million tons, so they are basicly halving them. And its clear that unless something is done about industrial allocation volumes, there's going to be very little auction supply from 2030 onwards.

This is, in theory, going to have an impact on prices, though it will be moderated if the surplus is used up. When the previous government faced a challenge like this, they fucked it up, trashing the market and causing a loss of certainty in the entire policy (though in retrospect this ultimately caused the removal of 23 million tons from the system, so: could have been worse). The question is whether National will do the same, trash the budgets and cause another year of chaos before being told to go back and do it properly by the courts. Or whether they'll take the lesson from last time, and accept the advice of the experts Parliament appointed to help them. Sadly, I don't have much confidence that a cabinet stacked with business cronies and climate deniers will do the right thing here.

(There's a number of other interesting things in this advice. Firstly, a warning that governments should not rely on the ETS as a source of revenue, because auction prices are uncertain and volumes will decline to meet budgets. Secondly, a recommendation that the reductions from non-ETS policies like the clean car discount and NZ Steel deal be locked in by ripping them right out of the ETS. Again, it remains to be seen whether National will listen on that, or whether they'll sabotage emissions reductions to make reality conform to their weird economic purism).

A giant Henry VIII clause

National introduced its corrupt Muldoonist resource-consent fast-track legislation to the House on Thursday, and rammed it through its first reading. Having read the bill, it is every bid as bad as signalled, taking selected resource consent decisions away from independent panels and putting them directly in the hands of Ministers. Its the sort of thing we haven't seen since Muldoon, and with good reason: it throws any pretence of merits-based assessment out the window, replacing it with a contest to see who can bribe or lobby the Minister the most to get their pet project through. Which is not how decisions in this country are meant to work.

So who benefits from this corrupt steamroller process? Who needs it? Who is it for? We can start with who doesn't need it: renewable energy projects. Because with very few exceptions, they find it very easy to get resource consent, give or take a few conditions about noise setbacks and monitoring (and solar projects don't even need that). Ditto roads: they get resource consent very easily as well. And normal housing projects. Or indeed, any normal project whatsoever. The RMA is really about mitigating adverse effects, which means restricting or imposing conditions on projects which do that. A project has to be truly terrible or just outright illegal to have an application actually declined.

And that's who this process is for: projects which cannot get resource consent under the current system. Coal mines in reserves. Polluting fish farms in pristine natural environments. Water schemes which would flood conservation land. Waste dumps which make people sick. Offshore mining schemes found to be illegal by the Supreme Court.

A common theme linking these projects is that they blatantly violate the law. They are terrible projects, with significant, unmitigable effects on key environmental values. But rather than fix them so they comply with our environmental standards, the companies pushing them have decided to lobby Ministers instead. And rather than respecting the law, or using a democratic process to change it, National's solution is to give Ministers the power to overturn it on a case-by-case basis for their donors and cronies. And that's the real horror here: once you unpack it, the entire law is just one giant Henry VIII clause, allowing Shane Jones to effectively rewrite and overturn statute on a whim, for the benefit of whoever gave him the most money.

That is not democratic. It is not consistent with the rule of law, or with our values as a country. Instead, it is corrupt, authoritarian, and arbitrary. But I guess that's what the National Party stands for now.

National's firearms law is authoritarian, intrusive, and unreasonable

On Wednesday night the National government rammed its new Firearms Prohibition Orders Legislation Amendment Bill through its first reading under urgency. The bill expands the existing FPO regime to apply it to gang-members convicted of non-firearms offences, and introduce a novel search power, allowing police to search any person (and their home, car, or anywhere they happen to be and anyone who is with them in a vehicle) if they have reasonable grounds to suspect that they are subject to an FPO. Just in case that wasn't clear enough about being warrantless and suspicionless, it explicitly says that there is no need to suspect that any offence has been or will be committed.

To call this "intrusive" is an understatement. The explicit lack of reasons required makes it the very definition of "unreasonable". And given that the NZBORA affirms the right to be free from unreasonable search and seizure, you'd expect the Attorney-General to have had something to say about it. But she didn't. No section 7 report of inconsistency was issued, and at the time of writing the usual analysis published where a bill has been found to be consistent with the BORA has been withheld (other bills passed at the same time or later have had theirs published, so its very definitely being deliberately hidden). So I think that tells us how seriously Judith Collins takes her statutory role under the BORA, and is another argument that politicians cannot be trusted to oversee or even report fairly on our human rights, and that the job should be taken off them.

But the police did publish a Supplementary Analysis Report, a sort of mini-RIS, in which they identify a significant risk that the bill could result in the entire FPO regime being considered to be inconsistent with the BORA by the courts. And that's not just about the risk of a formal Declaration of Inconsistency - it could also mean evidence obtained by the new search power being thrown out, and the crown being liable for damages where police exercise their powers unreasonably. And its easy to see why: we know how police abuse their existing search powers, and its easy to see how such a weak grounds for a search is going to combine with police institutional racism to increase such abuse. In the face of that, the police's claim that they will mitigate the risk by "develop[ing] internal guidelines to apply reasonableness limits on when and how searches are conducted" is just fucking laughable.

The police already have quite intrusive warrantless search powers where they suspect there are illegal guns, but the problem here is that the police explicitly regard the standard requirement of reasonable grounds to suspect that there are guns and a violation of the Arms Act to be an insurmountable barrier (which tells us something unpleasant about both their attitude to fundamental human rights, and their competence at their job). I expect a lot of effort is going to be spent at select committee to restrict that power, for example by limiting it only to where someone is actually subject to an FPO (which is currently only 30 people, and might, might, just manage to be BORA-consistent, but I'd need to look hard at what the courts and past Attorney-Generals had said about other regimes allowing automatic search after a court order). But even if that is done, there is a bigger problem: if any automatic search power is retained, the courts may issue fewer FPOs:

There is a risk that the imposition of new search powers may have a perverse effect if it results in a reduced willingness of Courts to issue FPOs. Courts may only issue FPOs where satisfied an FPO is necessary, reasonable and appropriate to assist in managing the risk the offender poses to public safety. If Courts consider that expanded search powers reduce the circumstances when an FPO is reasonable, this may result in fewer FPOs being issued and therefore reduced public safety benefits from the regime.

Basically, if an FPO means the police can kick in your door and terrorise your family and community constantly, whenever they want, then that significantly changes the equation on whether that is reasonable and appropriate. In fact, I'd think that the courts are unlikely to think that that is appropriate for any but the most severe firearms offenders, if even them (because, again, there are existing search powers). They are certainly not going to want to apply them to lower-level, non-violent offending by "gang members", as the police want (especially when one suspects they want that precisely so they can terrorise those families and communities; the Minister certainly seems to speak as if that is the goal). So, by demanding warrantless search powers to save them from having to do the basics of their fucking job, the police may end up shooting themselves in the foot on any benefits that might be gained from an FPO regime. Dicks.

But I guess if that happens, they'll just whine to National to overturn the courts and the BORA. And National would probably do it for them.

Anyway, the bill is currently open for submissions. If you'd like to express your revulsion at National's authoritarianism, you can do so here.