A violation of the rights of children

Last week, in a desperate attempt to get some "tough on crime" and "we hate children" headlines before the election, the government introduced the Ram Raid Offending and Related Measures Amendment Bill. The core provisions increase penalties for ram-raiding, allow children to be prosecuted as adults for it, allow them to be stuck in a police DNA databank for the rest of their lives as a result, and allow them (and other people) to be punished more heavily if they livestream or post a video of a criminal offence. In other words, stop those annoying kids from posting tik-tok videos which undermine the government's "tough on crime" narrative. Now, the Attorney-General has warned that it violates the Bill of Rights Act:

The Government’s plan to crack down on ram raids has been given a stinging rebuke by Attorney-General David Parker, who says it is inconsistent with the Bill of Rights Act (BORA) on multiple grounds.

[...]

Parker, in vetting the bill against the protections in the BORA, said it appeared to be inconsistent on three grounds: the right of a child to be dealt with in an age-appropriate way, the right to be free from unreasonable search or seizure, and the right to freedom of expression.

The bill might be justifiable if the benefits outweighed the harms, but Parker said that “a court is, having considered relevant evidence, likely to conclude that the harms outweigh the benefits”.

“In terms of benefits, it is unlikely that the new pathway into the Youth Court for 12 and 13-year-olds will, as a general proposition, result in a systematic benefit of reducing criminal offending or improving child outcomes,” he said.

...which is obvious: while the Boomers love it, sticking kids in jail never helps, and usually makes things much, much worse, for them and for everybody else. Meanwhile, on the anti-tiktok provision, its clearly punishing people for expression, and its not hard to see cases where such expression has significant value. To point out one obvious example, a political protest which is livestreamed engages exactly the core values section 14 of the BORA exists to protect, and punishing people more harshly for doing so is a gross violation of that right. It is easy to see a future court overturning sentences, convictions, and the law itself if it is used in that manner (as it almost certainly will be by police looking to throttle protest).

So, did Parliament take the Attorney-General's warning seriously, and send the bill back to the drawing board for further work before considering it? Of course not - they sent it straight to select committee. And if it emerges without significant change, it will be another example of how Parliament doesn't take its responsibilities under the BORA seriously, and why we need ultimately to take the job off them and give it to judges, rather than headline-chasing politicians.

David Parker: Climate saboteur

In 2021, NZ Steel, one of Aotearoa's worst climate polluters, applied to renew its resource consent. They'd deliberately applied early in an effort to get in ahead of a law change which would have allowed the Auckland Council to consider their climate impact, and impose conditions to force them to reduce it. But the Ministry for the Environment noticed, and advised Environment Minister David Parker to call the application in so Glenbrook's nationally significant level of climate pollution could be considered. He refused, effectively allowing them to keep spewing out 1.5 million tons of CO2 a year for the next 35 years:

Ministry staff told Parker the mill would have a significant impact on whether New Zealand could meet its climate goals (which mean being carbon-neutral by 2050), recommending he act “as soon as possible.”

[...]

Ministry staff told Parker he should “urgently” intervene and ask the Environmental Protection Authority (EPA) to take over the decision, which the EPA is allowed to do if an application is of national significance.

Their advice said the EPA wasn’t subject to the ban on considering climate change, according to a copy Stuff received under the Official Information Act.

Asked what he decided and why, the Minister’s office confirmed to Stuff that he rejected the advice, and supplied a copy of his response, reminding officials that they had had the option of making a submission to the council if they wanted to argue for a shorter consent period or regular reviews on climate grounds.

The council being statutorily forbidden to consider climate change, due to a law Labour drafted and passed, of course meant that that reminder was a pointless waste of time.

So what was the cost of this decision? It depends on the counterfactual. But if a shorter consent period had forced a cleanup, with emissions dropping to zero after fifteen years due to forced adoption of zero-emissions steel technology, then we're looking at something over 30 million tons of CO2, worth (at the government's internal price of $150/ton) NZ$4.8 billion - and likely more, given projected emissions prices post-2030. And that 30 million tons is going to be a significant proportion of our post-2035 carbon budgets, which will make them that much more difficult to meet. When it was so easily avoided, then "sabotage" seems to be the only word for it.

(Meanwhile, its worth remembering: the total book value of NZ Steel's assets is only two years worth of the pollution subsidies we give it. It is literally cheaper for us to buy it, kill it, and give all the workers a quarter of a million dollars to fuck off then to keep subsidising it. Alternatively, its also cheaper for us to renationalise it and pay to upgrade it to zero-emissions technology. And either is a massively better option than just letting it pollute for another 35 years).

A new standard for BORA consistency?

Golriz Ghahraman's Electoral (Strengthening Democracy) Amendment Bill will probably face its first reading today. And three months after it was introduced - pissing on the "as soon as practicable" requirement of Standing Order 269 - it has received a section 7 report from Attorney-General David Parker stating that its proposed donation cap is (potentially) inconsistent with the Bill of Rights Act.

I say "potentially" above because Parker doesn't actually find that the bill is inconsistent. Instead, he makes the report because while

a donation cap is certainly capable of being a justified limit on the s 14 right [to freedom of expression], but I have insufficient policy information at present to conclude that the proposed cap is such a justified limit.

To which the natural question is "did he ask"?

The fundamental problem here is that, being a member's bill, there isn't a pile of background policy documentation analysing the choices made to demonstrate that the limit is proportionate to the limitation of the right. In the absence of such information, Parker has taken a conservative approach (as used by the Court of Appeal in the voting age case, and by Parker recently over the Rotorua District Council (Representation Arrangements) Bill) that the absence of justification means a provision cannot be considered justified. I welcome that approach - we should be cautious about limiting human rights and demand that limitations be properly justified. And I look forward to it being similarly applied to government bills, Labour member's bills, and existing archaic law.

At the same time, we need to recognise that this imposes a greater burden on member's bills than on government ones. The easiest solution of course is to amend Standing Orders to allow sponsors of member's bills to make submissions to the Attorney-General on justification before a section 7 report is issued. This should prevent the government using this structural unfairness to unfairly target bills.

Underwhelming

Aotearoa has an inequality problem. The top 1% own 20% of the wealth, and nearly half our total wealth is owned by the top 5% (and as that paper notes, it likely understates the problem, as wealthy individuals are poorly captured by the Household Economic Survey on which it is based). This creates all the usual problems of inequality - crime, poor health and education, loss of social trust - and is fast turning us into a society of peasants and landlords.

So what's Labour going to do about it? Introduce more progressive taxes, on high incomes, capital gains, land, or wealth? Of course not! Instead, we're getting another meaningless statement of principles:

Revenue Minister David Parker will introduce a bill which would set out principles of fairness in the tax system.

Speaking at the Victoria University in Wellington, Parker said authorities had “virtually no idea what rate of tax is paid by the very wealthy”.

[...]

The new bill, to be called the Tax Principles Act, was part of Parker’s work over the past few years looking into the wealth levels of the richest New Zealanders and how much tax they pay.

He said the research would inform future tax policy advice and development.

Which is rather underwhelming. And its not as if we don't know what the problem is - obscene wealth - or are short of solutions. Instead, as with climate change, it just looks like Labour is foot-dragging and engaging in predatory delay to avoid having to do anything. The charitable explanation for this is that they're afraid of offending the rich (which seems odd for a "centre-left" party). The less charitable one is to point out that many of them are rich themselves, and so part of the problem and inherently conflicted on any issue which might affect their wealth. Whatever the answer is, it would be nice to have a government which actually tried to do something about the problem, rather than endlessly making excuses.

Taxing water

Two thousand people marched in Christchurch over the weekend to protest against a local water bottling plant threatening their water supply. And the government seems to be getting the message, suggesting that they may move to tax bottled water by the end of the term:

On Monday, Trade and Export Growth Minister David Parker said water bottling companies should be paying something.

Asked on The AM Show if foreign water bottling companies were likely to be charged a royalty or tax this term, Parker said: "Yes it's likely.

"It's not guaranteed, it's likely but the amount of it, well that depends on whether it's an export only charge - which has to be very low - or whether you charge, you know, a cent a litre for everyone," Parker said.

"Maybe a cent or two on every litre of bottled water would be fair too, again it might kick up a bit of extra money for councils and they could reduce their rates, or put it toward cleaning up our rivers for example."

Good. This is a hugely profitable industry built on a natural resource it is given for free. It is only right that the public receive a share of the revenue for use of that resource. But it shouldn't stop at bottled water: dairy farmers are the biggest users around, and they need to pay their fair share. And obviously the government needs to reach a settlement with iwi first, because fundamentally, its their water.

Proactive release of Ministerial briefings

For a while I've been posting about Ministerial weekly briefings, encouraging people to OIA them as a resource for finding out what the government is doing. There's been some pushback from Labour over this, and I have a complaint in with the Ombudsman over this. But Labour's David Parker has decided to do the right thing, and proactively release them all after three months:

I take the position that Weekly Updates which are under three months old remain under active consideration. It is, however, important to me that this material is made publicly available once I have been able to make decisions on the material provided.

Because of this, I have asked officials to release my Weekly Updates once they are over three months old on the Ministry for the Environment website. On 11 May 2018 the Environment Weekly Updates I received between October 2017 and January 2018 will be made available on the Ministry for the Environment website. Ministry for the Environment officials will be in touch with you to provide you with a link to this material.

This is a good step forward. I expect that the released briefings will still have redactions where issues are still under active consideration, but three months should minimise the need for that while still ensuring a timely release. And its also about the timeframe I've been aiming for with my requests for past briefings. Hopefully other Ministers will soon follow suit.

Drawn

A ballot for a Members bill was held today and the following bill was drawn:

• Minimum Wage (Contractor Remuneration) Amendment Bill (David Parker)
  

The bill does what it says on the label: require "independent contractors" - a term which now covers cleaners and couriers as well as lawyers and computer programmers - to be paid the minimum wage. Its a reasonable proposition, which would enhance fairness in the workplace. The question is, will Peter Dunne support it?

There were 74 bills in the ballot today, with NZ First's Ria Bond and Fletcher Tabuteau being the only opposition members who failed to submit one.

David Parker opposes same-sex marriage

Labour's David Parker participated in a public "vote chat" at Otago University. Naturally, I took the opportunity to ask him what he thought of same-sex marriage. His response, according to the moderators:

Gay marriage is a peripheral issue can't prioritise everything at once. Civil Unions deliver legal rights required

Or, in English, "shut up and wait your turn".

Nice to know that the man being touted as Labour's future leader won't even stick his neck out to say "I will support it if it comes up". Epsom voters may wish to adjust their votes accordingly.

Election funding: Put your money where your mouth is II

In Parliament tonight, during the debate over the (hopefully uncontentious) Electoral (Administration) Amendment Bill, Labour's electoral reform spokesperson David Parker took the opportunity to highlight the hole in our transparency regime, pointing out that National could have taken money from the insurance industry in exchange for its ACC policies:

"Before the election, Merrill Lynch said if ACC was privatised...there would be $2 billion of ACC levies up for grabs and $200 million of additional profit could be earned by Australian insurers," he said.

"We all know that the private insurers stand to gain from the privatisation of ACC. There's no doubt about that. But what we don't know is whether those same private insurers were contributing to the National Party.

"I can never prove that they were, but it is wrong for our democracy to be tainted by that accusation.

"It is also wrong if it didn't happen and yet our election process is tainted by the implication that it may have."

Mr Parker said the lack of transparency around donations was "a glaring problem" in the electoral system.

The problem here is the $10,000 donation threshold, which allows parties to rake in hundreds of thousands of dollars a year in "small" (to rich people) donations, without having to declare a thing. Parker thinks it should be reduced to $1,000. I've previously suggested that Labour should put its money where its mouth is, and voluntarily disclose their smaller donations to shame the other parties into action (in the same way that the Greens' voluntary disclosure of their expenses forced greater transparency on Parliament). But that's not the only thing they can do. They could, for example, put up a member's bill on the subject. To save them the effort, I've drafted it for them:

Electoral (Transparency) Amendment Bill

The Parliament of New Zealand enacts as follows:

1. Title
This Act is the Electoral (Transparency) Amendment Act 2009.

2. Commencement
This Act comes into force on 1 January 2010.

3. Purpose
The purpose of this Act is to amend the Electoral Act 1993 to reduce the threshold for the disclosure of party donations from $10,000 to $1,000.

4. Principal Act Amended
This Act amends the Electoral Act 1993.

5. Section 210 Amended
(1) Section 210(1)(a) of the Principal Act is amended by omitting “$10,000” and substituting “$1,000”.
(2) Section 210(1)(b) of the Principal Act is amended by omitting “$10,000” and substituting “$1,000”.

So, the question is: are Labour serious about this issue, or are they just talk? Sadly, their previous hypocrisy doesn't give me much hope.

A very bad report

I've spent some time reading the State Services Commissioner's investigation into the engagement of Clare Curran by the Ministry for the Environment [PDF], and it is a very bad report indeed, in more ways than one. While Erin Leigh's allegations of a political appointment were not substantiated, the report harshly criticises the Ministry for the Environment for failing to use a proper tender process for the appointment, and for failing to properly identify and manage the potential conflicts of interest arising from the manner of Ms Curran's appointment (at the same time, it is also clear that Ms Curran did not bring her politics into her work, as the National Party has tried hard to imply; she behaved professionally. The failing was on the part of MfE in not ensuring that the appointment was seen to be on merit, and in failing to quash rumours that Curran was a political appointee). Given this, it is no surprise that MfE Chief Executive Hugh Logan decided to resign. He had failed to properly manage his Ministry, and failed to ensure that the values of the public service were upheld. For that, his head had to roll.

However, there's another sense in which it is a bad report, and that is that it exonerates Climate Change Minister David Parker for his grossly improper suggestion that Curran be hired, and takes the position that it is perfectly acceptable for Ministers to intervene in employment decisions in this way. It is not. Our public service is founded on two principles: political neutrality and appointment on merit. In order to protect these principles, Departmental Chief Executives are legally required to be independent in their employment decisions. While a Minister has no formal power to hire and fire, the need to maintain a good working relationship means that even a suggestion can compromise this independence, and ultimately the values of the public service itself. And that applies even to apparently innocent and well-intentioned suggestions like Parker's. For everyone's sake - their own, their chief executive's, the poor employee who ends up being tarred as a political appointee's, and the public's, whose faith in the public service is undermined - it is better that they simply not make such suggestions at all.

Utterly unacceptable

Yesterday we learned that, contrary to reports last week, the Ministry for the Environment did not put the contract won by Labour Party activist Clare Curran out to tender, but hired her directly in violation of normal procedures. That's bad enough, but tonight TV3 dropped this bombshell:

Erin Leigh worked at the Environment Ministry in 2006 on climate change issues - but she resigned suddenly over what she calls inappropriate political interference by the minister.

Parker suggested in 2006 that the ministry hire labour party activist, Clare Curran to develop climate change strategies.

"She was there representing David Parker's personal political agenda - it was highly unusual, my advice was to push back on the minister and it could be illegal," Leigh says.

Leigh says her warnings were ignored, and she resigned in protest before Curran started.

[...]

She says her boss, Neal Cave, also resigned over the political meddling.

If these allegations are substantiated by the State Services Commission, David Parker should be sacked from his portfolios immediately. Suggesting someone's name for a position is grossly improper, but interfering directly in an employment decision is utterly unacceptable and can not be tolerated. Parker may be clever and competant, but if he can't understand the difference between a public servant and a political operative, and insists on treating his department like a private fiefdom, then he is simply unsuitable for any Ministerial position.

Grossly improper

For well over a century now, New Zealand has been blessed with a professional, politically neutral public service, which faithfully serves the government of the day regardless of their ideological bent. A key underpinning of this has been the independence of the public service in employment decisions. Public servants are hired and fired not by Ministers, but by Departmental Chief Executives, a move designed to ensure appointment on merit and prevent cronyism, patronage, and political retaliation. But recently, this has come under threat. First, there was the sacking of Madeleine Setchell on the basis of her partner's political views - an act found to have been simply wrong by a subsequent investigation by the State Services Commission. And now it seems it has a sequel, in the hiring of Clare Curran. Unlike some, I am not interested in Curran's political views - such conflicts of interest are routinely managed within the public service, and pose no real problem. Instead, the problem is how she was hired: her name was originally floated by the acting Minister:

Mr Parker told reporters he had suggested Ms Curran's name to the ministry during a discussion on what communications help it needed.

He had suggested her because "I knew her to be very able in these areas".

Mr Parker said he had known Ms Curran long before she joined the Labour Party through her work with her company Insight Communications.

"I didn't recommend who they should hire and I wouldn't do that," he said.

But regardless of how it was phrased, this is still grossly improper behaviour from a Minister. Chief Executives have a statutory duty to act independently in employment matters, and Ministers should respect this. While the contract was put out to tender, and Curran was appointed on merit, suggesting a specific individual for a position could be seen as an attempt to influence the employment process, and this should be avoided. It is, bluntly, simply not a Minister's business who works for "their" department, and they should keep the hell out of it.

A non-denial denial II

When the Greens confronted the government about their shameful position at the Vienna climate change talks, Climate Change Minister David Parker began his non-denial denial by quoting the opening lines of the New Zealand delegation's plenary statement at the conferance:

First, I would like to reiterate New Zealand’s readiness to take on new quantatative commitments to reduce greenhouse gas emissions...

The statement was subsequently tabled in the House, which was a mistake, because it shows just how deceitful the government has been on this issue. The lie behind Parker's claims is laid bare in the final paragraph where our representatives stated:

there would be little sense in trying to finalise mitigation ranges at this meeting.

So, the Greens and NGOs were right - we opposed the indicitive 25% - 40% target range, hardly what you'd expect from a "100% pure", "clean and green" country pursuing carbon neutrality. As for Parker, while he hasn't technically mislead Parliament (in the same way that Bill Clinton didn't technically lie when he said "I did not have sex with that woman"), he certainly did his utmost to give Parliament and the public an utterly misleading interpretation of New Zealand's position. Which simply confirms it: Labour is two-faced on climate change.

A non-denial denial

The Greens confronted the government about their shameful position at the Vienna climate change talks in Parliament yesterday, asking whether they could

confirm that New Zealand’s delegation to the United Nations climate change talks in Vienna tried to block non-binding emission reduction targets of 25 to 40 percent for industrialised countries; if so, was this delegation acting on his instructions or instructions from a member of the Cabinet?

(Corrected gender to match what was actually read out)

In response, the Minister denied the claims, accused NGOs of getting it wrong, and then said this:

I can confirm that the representatives of the New Zealand Government explicitly noted that we are willing to take on binding targets.

But note what's missing here: any mention of the level of those targets. While supposedly denying that the government had opposed the 25% - 40% reduction target, Parker was in fact issuing a "non-denial denial", which carefully circumvented the facts at issue and denied only by implication. Which as Green co-leader Russel Norman points out, is as much as an admission of guilt. If they'd actually supported the target, Parker would have simply said so, and that would have been the end of the matter.

So, to reiterate: the government are two-faced, lying, ratfink bastards. And if we want real progress on climate change, the only way to get it is to ensure that the next government is utterly beholden to the Greens.

Climate change: all down to agriculture

What are the variables in New Zealand's climate change policy? There's a candid assessment from the Minister in the Local Government and Environment Committee's annual review of the Estimates for Vote: Climate Change [PDF]:

The volume of rainfall in catchment areas from now until 2012 will be an important factor in determining our future liability. The Minister was reluctant to indicate when our emissions are likely to plateau, as this will largely depend on future agricultural outputs.

(Emphasis added).

This is a point I've been making for some time. While we could conceivably meet our rather lax short-term goals (or we could have, if we'd acted earlier rather than sitting on our hands for a decade), we are simply not going to be able to make larger cuts in the long term as long as agricultural emissions are allowed to grow. And while there's some good news on that front around nitrification inhibitors, the core problem of enteric methane emissions still has not been dealt with. Unless it is, there's no hope of reaching a goal of a 50% reduction in emissions by 2050, let alone carbon neutrality.

What can we do about this? In the short-term, we need to throw more money at research. The amount involved is relatively small - an extra $3 million a year would give those working on methane everything on their wish-list. Unfortunately, those responsible for the problem - farmers - are unwilling to pay to clean up their mess, and last time the government suggested it, they drove a tractor up Parliament steps. So much for rural "self-reliance".

In the long-term, I think it is vital to internalise the externality and ensure that farmers pay for the costs they impose on society. A simple per-head tax on agricultural animals based on their average emissions is the easiest solution. That will at least ensure that the cost of emissions is factored into their decision making, and it will ensure that the cost will lie where it belongs: with the polluters, rather than those they free-ride off.

Parker exonerated

The Companies Office has completed their investigation of the allegations against David Parker, and the Crown Solicitor has concluded that there is no basis for prosecution. In the case of the key allegation - that Parker falsely stated in several annual returns for a company that he had gained the consent of all shareholders for the company not to be audited - the Crown Solicitor concludes that it cannot be proved even to a prima facie level, and that everything was above board. The three shareholders had or almost certainly had consented to the first three returns, and following the bankruptcy of Parker's business partner Russell Hyslop, the Official Assignee had consented and then eventually waived their future rights. It is unclear whether this waiver was actually legally effective, but it is sufficient to let Parker off the hook; in order to be a crime, a false or misleading statement must be known to be false or misleading.

A subsidiary invesigation of two other companies found a number of minor paperwork offences for which no-one is ever prosecuted and which are normally settled by paying a late fee. These were not considered sufficiently serious to justify prosecution.

Down in the sewer they are already muttering darkly and suggesting that this is another example of a Labour Minister being let off - a line surprisingly echoed by DPF - but having actually read the report, this isn't a refusal to prosecute, it's exoneration. I expect Parker to be back in Cabinet ASAP, and given these findings, I don't think there's any impediment to him resuming his former duties as Attorney-General.

On the minus side, this means I just posted off an OIA request to the wrong Minister. Bugger.

Update: I see ACT is also wallowing in the sewer, claiming that there are now "two laws" and that "business laws now mean nothing in New Zealand if you're a Minister in Helen Clark's Government". To the contrary - two laws would be persuing a groundless prosecution or prosecuting for offences that no-one else is ever prosecuted for, simply because they are a government Minister.

What does it mean for the portfolio?

One of the things that has been overlooked in the departure of David parker is what it means for his portfolios - and particularly (because I'm interested in it) the climate change portfolio.

For those who haven't been following it, climate change policy is currently undergoing a major review, sparked by a reassessment which saw our projected balance of units during CP1 plummet from a healthy surplus (allowing us to sell carbon credits on the international market) to an estimated 36 MtCO₂e deficit. Since then, further worries about deforestation have seen that deficit grow to around 60 MtCO₂e. This caused the government to throw out its entire climate change policy (and notably the carbon tax) and effectively start again with a blank sheet of paper.

Officials were supposed to report back to their Ministers on March 3rd with new policy options, and these were supposed to be hashed out into a coherent whole by a Ministerial Reference Group consisting of the Ministers of Finance, Agriculture, Forestry, Energy, Transport, Environment, Economic Development and Climate Change. The core of the resulting policy was supposed to be presented to Cabinet on April 3rd - less than two weeks away. Parker's sudden departure is likely to have thrown this whole process up in the air. And while the portfolio has been reassigned to Pete Hodgson, who has handled it before, his responsibilities as Minister of Health (a very heavy workload portfolio) may prevent him from paying it the attention it deserves. The change in Ministers may also result in a change in policy; previously, Parker had indicated a willingness to explore some new options (notably, using the RMA in the place of a national-level economic instrument, and actually doing something to promote efficiency gains in transport for once). The first of these was rejected during Hodgson's tenure, and the latter never really considered - and they may now fall by the wayside again, leaving us with no effective policy whatsoever to reduce or limit emissions just two years out from the start of CP1.