Something we need to fix

An OIA request on FYI has alerted me to an unpleasant quirk in Parliament's rules. Someone has asked Jenny Marcroft, who is Parliamentary Under-secretary for media and communications and fisheries, for information she holds about her hateful terf bill. The request will be refused, because Marcroft will play the hat game, and claim that any information she holds on the bill is held in her capacity as an MP, rather than her capacity as a Parliamentary Under-secretary. But it does raise the question: given her role, why was she allowed to advance the bill at all?

The short answer, given by McGee, is that "[a] Parliamentary Under-Secretary may introduce a member’s bill." In other words, it is "within the rules" (as members of the political class love to say).

But again, we can ask why? Because member's bills are meant to be for members, not the executive. And Parliamentary Under-secretaries are absolutely members of the executive. They're defined as such in the Cabinet Manual, and effectively recognised as such in various parts of Parliament's Standing Orders. For example, they are treated as members of the executive when allocating oral questions under Standing Order 391, and they do not count for support to immediately introduce a member's bill under Standing Order 288. If Standing Orders were consistent, they would also be excluded from entering member's bills into the ballot.

The answer is almost certainly historical. While Parliamentary Undersecretaries were always part of the system, they'd fallen into disuse in favour of Associate Ministers. They were revived comparatively recently thanks to MMP and its need to hand out official baubles as bribes to supporters, some of whom might not have the pull or experience to merit even an associate ministerial position. So John Key made Rimmer an undersecretary in 2014, and since then every coalition government has included them as a bribe to its minor partners and as training wheels for those who might one day be Ministers. The present regime includes a PUS from each party (Marcroft from NZ First and Simon Court from ACT), giving each of them a fat salary bump and a bunch of perks to rort - which will help keep everyone sweet and not wanting to rock the boat. And the rules have struggled to keep up - undersecretaries were excluded from the OIA until 2016, despite being members of the executive, simply because no-one had really thought of it.

This is another example of the rules failing to keep up with practice. And its something we should fix. While its far too late for it to go into the review of standing orders, hopefully the next government will bring a sessional order to remove this oddity.

Unlawful appointments

Last year, the regime sabotaged the Human Rights Commission by appointing a pair of terfs and hatemongers as chief human rights commissioner and race relations commissioner. And when people dug into the appointment process, we found it to be the usual crony stitch-up: both candidates had been shoehorned in at the last-minute and were appointed against the recommendation of the independent panel (and in the case of for-the-time being chief commissioner Stephen Rainbow, because he was an ACT-party crony).

Now, the High Court has ruled that both appointments were unlawful, as Minister of Justice Paul Goldsmith applied the incorrect legal test and ignored mandatory considerations in his decision-making. They have not overturned the decisions - Rainbow and Derby get to keep their jobs. But there's a clear statement that the Minister of Justice failed to do what was legally required of him.

What does this mean? Firstly, I've looked at a lot of government appointments over the years, and a lot of them follow this pattern. Some of them are potentially at risk of being overturned (for example, the 2024 appointments to EECA, or maybe this year's appointments to the Waitangi Tribunal). A big problem is that ministers shoehorn candidates in and appoint them and don't say why - because the "why" is unseemly and corrupt: "jobs for the boys" / getting your own people in regardless of merit to sabotage an agency. While Ministers can subsequently explain why in court of challenged, the court was pretty suspicious of Goldsmith's evidence, implying it was an ex post facto invention to fit the case, nad basically disregarded his bland statements that of course he followed the rules, because he provided no actual detail. The upshot: Ministers are going to have to provide a better documentary record of why they make appointment decisions, and exactly how candidates fit the statutory criteria, or risk having them overturned.

Secondly, of course, this obviously affects the mana of both the candidates and the commission itself. And given the centrality of mana to the work of the commission, a decent, professional person would recognise that this made their position untenable, and resign. It remains to be seen if either Rainbow or Derby are such people.

If they're not, well: from the outset I've said that as they did not meet the statutory criteria, and are unable to credibly perform the functions of their office, the next government should exercise their lawful powers under the Crown Entities Act and simply sack them. Now that there is an explicit ruling saying their appointments were illegal, that seems even more urgent. Unlawful appointments cannot be allowed to stand. it is that simple.

Finally: again, this highlights that the key problem in state appointments is corrupt Ministers, and the solution is to remove them from the process entirely. If we want independent, lawful, merits-based appointments according to statutory criteria, then we should give the job to a permanent independent appointments panel. We already use such a process for appointing the Government Statistician (with criminal penalties for any Minister who attempts to interfere in it); we should do the same for other roles, starting with constitutional appointments and independent crown entities and working our way downwards. Ministers cannot be trusted not to behave corruptly; we can fix that problem simply by taking the job off them.

An attack on free and fair elections

That's the only way to describe the regime's new Electoral Amendment Bill. The big change is ending same-day enrolment, which enabled over a hundred thousand people to vote last election. National wants to disenfranchise those people. Their excuse? Administrative convenience - because they refuse to properly resource the Electoral Commission to handle the load. But it is simply a cynical attempt to strap the electoral chicken, and prevent those people - primarily young people and those who have moved shortly before the election - from voting.

But that's not the only change. They're re-instating the prisoner voting ban, which explicitly violates the Bill of Rights Act, in the process giving the finger to the carefully negotiated settlement between courts and Parliament over their responsibilities under our constitution. its pure performative punching down, while also helping to gerrymander electorates with prisons in them.

There are other unpleasant changes too:

• increasing the declaration threshold for donations from $5000 to $6000, reducing transaprency over who is bribing our politicians;
• restricting public access to donation records to the last six years, limiting our ability to see who has been buying our politicians, and making bribes paid in opposition effectively invisible;
• extending the prohibition on registering new political parties, from writ day to the entire regulated period, in an effort to stifle political competition;
• expanding the Electoral Commission from 3 to 7 members, enabling them to pack it with cronies, US-style.

So, reducing voting rights, transparency, and competition, while creating a one-off opportunity to put their thumb on the electoral scale for the next election. All of this runs completely counter to our democratic norms, and to public demand, which overwhelmingly favours more transparency. Combined with the regime's attacks on protest rights, it paints an increasingly dark picture of the character of this regime - and makes it clear that we need to oust it at the first opportunity.

Killing the alternative

During the debate over ACT's hated Regulatory Standards Bill, many professional submitters (such as the law Society) have pointed at the existing Part 4 of the Legislation Act 2019 as an alternative. While it has not been brought into force, this would replace the existing grace-and-favour Departmental Disclosure Statement system with a statutory scheme, requiring all government bills to be accompanied by a report on their unusual features and departures from accepted - as opposed to propertarian weirdo - legislative and constitutional norms.

So naturally, the government is repealing it. The Legislation Amendment Bill, which began its first reading yesterday, includes a section repealing all of part 4, which will come into force the day after it is passed. Why? The bill's explanatory note is for once crystal clear:

The Bill proposes to repeal Part 4 of the Act before it comes into force. Part 4 would impose disclosure requirements for Government-initiated legislation, which would duplicate key elements of the Regulatory Standards Bill being progressed separately by the Government. Existing Cabinet-mandated provisions for disclosure requirements for Bills will continue to apply in the meantime.

So, it's being killed just to ensure there is no alternative to ACT's weirdo Libertarian fetish bill. Which I guess just means additional work when the RSB is repealed by the next government.

The problem is the regime, not MMP

There's an interesting article on The Spinoff, worried that with so many parties ruling out working with each other, MMP is collapsing back into left-right, "winner take all" politics. It points to a shift back to the pre-MMP elected dictatorship model of government by decree, "outsized" influence of small parties, and stronger political alignments between parties as problematic. I'm not so sure.

The first is definitely a problem. But its a problem specifically of this regime, and to a large extent it seems to be a self-correcting one, in that the public has shown little appetite for this government's preferred model of retrospective laws rammed through under urgency without consultation, and seems likely to punish them for it. As for the future, this sort of contempt for democracy seems to be a right-wing problem: in the past, National has always had a greater appetite for abuse than Labour, and the latter has been specifically constrained by coalition partners who denied the use of urgency outside of accepted norms (the budget, end of year wash-up, and the rare cases when things are actually urgent). National has usually not faced such constraints, and this term has had coalition partners who are explicitly anti-democratic and anti-constitutional. The lesson for voters is not to let that happen again, and to punish those parties until they credibly commit to respecting a democratic, consultative style of government.

On the second point, the article notes that

It is neither possible nor desirable to quantify the degree of sway a smaller partner in a coalition should have. That is a political question, not a technical one.

Ultimately, it is we voters who are going to decide how much of this we are going to accept - and what we do about it. And on that, I'd note that no parliament can bind its successor, and so what is done can simply be undone. If we don't like radical fringe parties using coalition bargaining and big-party weakness to impose unpopular, radical policies by undemocratic means, we can simply repeal them. And if we are successful in making this a one-term regime (or better yet, a half-term one), then that is exactly what we should do, with an Omnibus Repeal Bill to restore the status quo ante and make it as if this regime never happened.

(And to those crying foul over the threat of such policy ping-pong, I'd point out that its pretty much what the current regime has done; they just took a year and multiple bills to dismantle everything, rather than having the honesty to do it in one go.)

On the third point, there's the usual lament about the lack of a "center" party to change sides every election and moderate the demands of the wing parties. The traditional answer to this is to point to the long list of such failed projects in the past, and argue that people don't vote for that (or at least, not enough people; the unfair and undemocratic 5% threshold almost certainly has prevented such a party from gaining a foothold and then demonstrating credibility to potential voters). But I think we've also really already got two such parties, in National and Labour, who are naturally chasing the center voter in competition with each other. Normally this gives them an incentive to push back against demands from their respective wing-parties in coalition, and creates a dynamic where those wanting real change vote for the wings rather than the center. Where there are multiple coalition partners there are also usually competing demands, which means that everyone constrains everyone else. And again, what's unusual about the present regime is that this isn't happening: NZFirst and ACT are largely in policy agreement about racism and environmental destruction, while National, bereft of an agenda of its own, simply accepts the one handed to it by its "partners". So again, the problem is that this is not a normal regime, but that doesn't seem like it'll necessarily be a problem in future (especially if voters kick National out of power at the first opportunity as punishment for their abnormality).

And all of that said: none of this means I disagree with the final conclusion of the article: that our lack of constitutional safeguards means we need to "look beyond MMP for other ways to limit the power of its governments." Because that is one thing that this debacle of a government has made crystal clear. We need to shift power away from the over-mighty parliament (and the over-mighty executive which pulls its strings and uses it as a rubber-stamp), and move it back to voters, to local government, to the Waitangi Tribunal, and to the courts. As for those demanding we surrender even more power to this abusive institution via a longer parliamentary term, they can get fucked.

More constitutional vandalism

Since the national government embarked on its racist campaign against Māori, the Waitangi Tribunal has emerged as one of its chief adversaries, putting the impacts of its racist policies formally on the record so they can not be denied. National has responded by sabotaging it, replacing almost the entire membership with unqualified crony appointments. But apparently that's not enough, so they've decided to "review" the Tribunal to undermine it further:

Māori Development Minister Tama Potaka has announced a review will take place into Treaty of Waitangi Act 1975 and the Waitangi Tribunal, in a move the ACT Party says will “rein in [the] activist tribunal”.

The review comes as part of a coalition agreement between National and NZ First, and aims to refocus the scope, purpose and nature of the Tribunal’s inquiries back to its original intent, Potaka said.

As ACT's response shows, this is simply more constitutional vandalism, intended to eliminate one of the few checks and balances on our overpowered executive. And its moving in completely the wrong direction. The lesson of this regime is that the Tribunal needs to be strengthened, not weakened, with stronger protections against government fuckery.

Hopefully Labour, the Greens, and Te Pāti Māori will make it clear that they will reverse whatever the racist dogshit regime does, and restore and strengthen the mana of the Tribunal. As for the government, it needs to think about it this way: it can either resolve claimed Treaty breaches calmly and quietly through a Tribunal, or it can resolve them through protest, occupation, and confrontation, with all the consequent impacts on the legitimacy of the state. Lawyers and historians, or Ihumātao everywhere. Their choice.

National says "fuck the BORA"

That's the only way to describe their plans to reinstate the prisoner voting ban. In case anyone has forgotten, this is a law that was explicitly found to be inconsistent with the BORA by the Supreme Court, in Aotearoa's first ever declaration of inconsistency. The solution that was eventually hashed out to this constitutional impasse was that if the courts made such a declaration, parliament would fix it. National is now rejecting that - along with the very idea that parliament has responsibilities under the BORA.

That being the case, it is clear that the half-measures of the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022 are not enough. Parliament has again demonstrated that it is unwilling to be a responsible branch of government and uphold its explicit, legislated duties under the BORA. That being the case, the solution is clear: take the job off them and give it to someone with a demonstrated track record of acting responsibly. In this case, that means repealing s4 BORA, and allowing the courts to directly overturn legislation themselves.

Still against a four-year term

It must be bad idea week at the Beehive. Yesterday, they were promoting vigilantism - a policy hated by everybody except the very worst people in the world. And today, they've announced that they're going to proceed with ACT's weird four-year-term bill, which would make the length of the parliamentary term indeterminate, and subject to an easily renegable or bypassable promise by politicians.

I've long been an opponent of a four year term. At best, its driven by technocrats who view democracy as a cost to be dispensed with. But underneath that is a never-quite-stated belief that politicians would make better decisions if they didn't have to worry about what voters want. That they shouldn't have to "waste time" persuading us that fucking us over is really for the better. This is both elitist and nakedly anti-democratic. Because the point of democracy isn't to make good decisions, but to make our decisions. And the point of regular elections is to keep politicians constantly thinking about whether they are serving us, rather than their donors - and to throw them out on their arses if we are unhappy with their performance.

And looking at the current government, it is clear that we need more accountability, not less. This government, with its abuse of urgency, naked corruption, and radical anti-Māori revanchism, is a poster-boy for bad government and for why we need to be able to throw politicians out quickly. The thought of another 18 months of them is bad enough; giving them a whole extra year is fucking unthinkable. But that's the sort of thing their bullshit bill will enable: next time we get a government this shit, it will last longer. Next time we get a Rimmer or a Roger Douglas or a Ruth Richardson or a Robert Muldoon, they will have more time to shit on our faces.

Pretty obviously, I don't like this idea. I hope you don't like it either. And I hope you tell the political class that, forcefully, when the bill gets to select committee, and even more forcefully if it ever gets to referendum. Aotearoa has a long history of telling politicians to go fuck themselves by huge margins on this question. Let's uphold that tradition, and make it 70% opposed. And maybe then the fuckers will finally get the fucking message.

But let's go one better. As noted above, this government is a poster-boy for bad government, a perfect argument for more accountability, not less. So lets do that. Instead of giving them more time to fuck up our lives, let's give them less. Let's cut the parliamentary term to two years.

Te Tiriti needs a guardian

This year, we've seen a radical, white supremacist government ignoring its Tiriti obligations, refusing to consult with Māori, and even trying to legislatively abrogate te Tiriti o Waitangi. When it was criticised by the Waitangi Tribunal, the government sabotaged that body, replacing its legal and historical experts with corporate shills, historical illiterates, and swivel-eyed weirdos.

This radicalism is unacceptable to the people of Aotearoa, who overwhelmingly support te Tiriti and want it to be honoured. And it's producing pushback. We've already seen a proposal from Te Pāti Māori to strengthen the Waitangi Tribunal and protect it from government fuckery, and now they've gone better, with a proposal for a formal parliamentary guardian for te Tiriti:

Te Pāti Māori will demand the establishment of a new parliamentary commissioner with the power to overrule Parliament if proposed legislation violates Te Tiriti o Waitangi, should they form part of a government.

[...]

In a statement released alongside the media stand-up, Waititi and Ngarewa-Packer said their party would campaign on creating an independent Parliamentary Commissioner, who they described as an “advocate ensuring that Te Tiriti is honoured across all government policies and decisions made in Parliament”.

“The commissioner would have the role of auditing the government in being honourable of Te Tiriti o Waitangi. It will provide independent advice to Parliament, and ensure Māori voices are central to decision-making processes,” Ngarewa-Packer said.

[...]

The pair explained the commissioner would be able to assess proposed legislation before the House and scrap any bills that did not align with Te Tiriti, describing the role as a “Te Tiriti auditor” and distinct from advice Parliament already received on bills impacting Te Tiriti.

Te Pāti Māori argues that a guardian should be able to do this because te Tiriti, as the foundation of our country, is superior to Parliament. I think most kiwis would agree with them. And if you asked them "should Parliament be able to ignore te Tiriti?" - well, you can see the public's response to that in the hikoi, and the overwhelming rejection of the Treaty Principles Bill.

As with Te Pāti Māori's proposal to make Waitangi Tribunal findings binding on the state, if we take te Tiriti seriously, then a guardian to audit proposed legislation for Tiriti compliance and prevent breaches from advancing is absolutely where we need to be going. Whether we get there all at once, or spend some time in a section 7 BORA-style advisory half-way house is an open question, but the destination should not be in doubt. As for those who point to America and say that judicialised solutions don't work, they work fine in Canada, Germany, and South Africa; so maybe America's problem is just American exceptionalism.

Still, it is worth remembering that there are no permanent solutions in our system. Parliament can over-rule the courts, and even disestablish them if they want to. A future parliament could simply replace a Tiriti-guardian with a racist crony (as National has done to the Waitangi Tribunal), rewrite the rules to prevent them from reporting honestly or over-ruling legislation, even disestablish them entirely. The only durable solution is to build strong norms which make such things unthinkable, and which make allying with norm-violating radicals like ACT political poison.

In a quasi-Westminster system, all "safeguards" are really just constitutional tripwires. But that doesn't make them useless. Tripwires send clear signals to the public that it is time to take action (escalating from protests all the way to a complete and violent rejection of the regime). And they can help strengthen the norms we need. We've seen this process with the BORA, originally casually disregarded, now with an increasing presumption that parliament will not legislate against it, and a formal mechanism making parliament accountable to the judiciary when it does (still, National wants to backslide on both jury trials and prisoner voting). A Tiriti-guardian can do that for te Tiriti. And that's what makes it worth doing.

Drawn

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

• Crimes (Coward Punch Causing Injury or Death) Amendment Bill (Paulo Garcia)
• Juries (Age of Excusal) Amendment Bill (Carl Bates)

So a harmless bill and some "tough on crime" bullshit.

There were 75 bills in the ballot today, including another one to ban prisoner voting. This is a law which has been found to be inconsistent with the BORA by the Supreme Court, and yet some national backbencher - with the approval of the National caucus - is trying to push it through again. Which is another data-point on the anti-constitutional anti-human rights radicalism of the current National Party. Maybe some journalists should be asking pointy questions about this?

We deserve to know who chose this bullshit

Oral submissions on National's racist, ahistorical Principles of the Treaty of Waitangi Bill are being heard today, and in addition to the expected iwi, academics, lawyers, and constitutional experts calling bullshit, there's been a succession of racist, swivel-eyed loons spewing hate. You might think that that's the luck of the draw, but it wasn't. Submitters in the first week were specifically chosen by the political parties:

In a press release yesterday, the committee confirmed it will hear 80 hours of oral submissions across four weeks. A full day of oral hearings will be held on January 27, with a further two hours being heard on January 30.

Submitters in the first week will be nominated by the members of the committee, which features politicians from all six of the parties in Parliament. It’s understood each party will be able to pick 25 submitters each.

So when you see some racist conspiracist fruitbat using the committee hearings as a platform to monger hate, keep in mind: some party chose them. Some party thought their constitutionally and historically illiterate contribution would be "valuable". Someone thought their voice needed to be heard more widely. And we deserve to know who, both so we can ask them what the fuck is wrong with them, and judge them at the ballot box.

Finally

Back in March, Chief Ombudsman Peter Boshier resigned after hitting the age limit for his office. And now, almost a year later, parliament has finally gotten around to appointing a replacement:

John Richard Allen is likely to take over the role of chief ombudsman from Peter Boshier, who still has the job despite a law requiring his resignation at age 72.

Boshier resigned after his 72nd birthday on 16 March last year, but was asked to stay on while a replacement was found.

The Officers of Parliament Committee had recommended Allen as a replacement in the role, which was an independent position tasked with investigating complaints about administrative actions at all levels of government and ensuring proper public access to official information.

The committee is made up of MPs from all parties in Parliament, and Allen's appointment had unanimous support.

Which is good, but the obvious question is "what took them so long"? Because while Boshier's statutory retirement apparently took the whole political system by surprise, resulting in policy by panic, the officers of parliament committee began its inquiry back in March. They should have had a suitable candidate in September. Instead, with, we've gone almost a year with only a "pretty legal" temporary appointment to one of our core constitutional offices. The public deserved better than that.

The good news is that unlike many of National's recent appointees Allen isn't a crony or obviously unsuitable for the position. Hopefully he'll do the job well.

Sabotaging te Tiriti

The Waitangi Tribunal has been one of the most effective critics of the government, pointing out repeatedly that its racist, colonialist policies breach te Tiriti o Waitangi. While it has no powers beyond those of recommendation, its truth-telling has clearly gotten under the government's skin. They had already begun to sabotage it, with a crony appointment of racist former ACT leader Richard Prebble in October. And on Friday they gutted it completely, replacing almost the entire membership:

Māori Development Minister Tama Potaka has confirmed a major refresh of the Waitangi Tribunal, as he replaces half of its members.

The coalition Government started a major overhaul in October, appointing former ACT Party leader Richard Prebble to the Tribunal alongside Ken Williamson, whose background is in insurance and corporate leadership.

On Friday, Potaka confirmed sweeping changes to the Tribunal’s membership. He announced another eight new appointments, and said he was renewing the warrants of just five existing members.

Those new appointments included political pundit Philip Crump and former NZ First minister Ron Mark.

The latter makes it crystal clear what is going on: qualified academics and historians are being replaced with corporate shills, racists, and swivel-eyed weirdos. Its the same tactic they have used to sabotage human rights. And the solution is the same in both cases: the next government should immediately sack National's unqualified cronies, for being unable to properly perform the functions of the office.

Once that is done, there is a clear need to insulate the Tribunal against further fuckery from future right-wing governments. We already do this for judges: their independence is guaranteed by lifetime appointments, protections against removal, and protections against defunding. The Waitangi Tribunal is effectively a constitutional court, embodied to rule on the ongoing partnership which founded our nation. Once constitutional normality is restored, its members deserve the same protection.

We need more judicial power, not less

The Herald is reporting on yet another reporting from the ATLAS-network-linked "New Zealand" Initiative, this one complaining of a creep towards judicial supremacy, and calling for the powers of judges to interpret the law to be reined in. It seems that the billionaires who fund ATLAS and its local collaborators want to be sure they get what they pay for when they buy politicians, and don't want judges souring the deal or interfering with corporate power, even when the law requires that they do so. Hence the short-sighted enthusiasm for arbitrary executive despotism. Meanwhile, for people who aren't billionaires or shilling from them, and who actually live in Aotearoa and pay attention to our democracy, its clear that we need more judicial power, not less.

The most obvious reason for that is the current government, whose naked corruption is exactly the sort of thing judges were invented to prosecute. But beyond that, there are also long-term reasons. Parliament has been a terrible guardian of our human rights. It does not even pretend to do the job properly. Remember Hilary Calvert's absurd third-reading speech on the prisoner disenfranchisement law? That's the standard of "care" our politicians bring to our laws. That abdication of responsibility produced a constitutional backlash: the first ever declaration of inconsistency, and a law requiring Parliament to formally take notice of them. But that law did not fix the problem: the current government is ignoring formal declarations of inconsistency, and Parliament is still routinely passing laws which violate human rights. And now the present lot are taking that attitude and applying it to te Tiriti as well, on the weird belief that their private coalition agreement amongst themselves trumps the foundation of our constitution and state legitimacy. Which is in turn inviting a constitutional backlash in that area as well...

Again and again our parliament has shown that they cannot be trusted to make laws responsibly. Our judges, OTOH, seem to be responsible custodians. They take their duties seriously, provide real reasons for their decisions (which are in turn tested and scrutinised by others), and unlike politicians, have not institutionalised bribery as part of their culture. The balance of power between legislature and judiciary is a slider we can move. And the sheer irresponsibility and corruption of the former is inviting voters to shift it further towards the "judicial" end. And when we do, the present advocates of "parliamentary supremacy" will have no-one to blame for it but themselves.

A government-funded hate campaign

Cabinet discussed National's constitutionally and historically illiterate "Treaty Principles Bill" this week, and decided to push on with it. The bill will apparently receive a full six month select committee process - unlike practically every other policy this government has pushed, and despite the fact that if the government is being honest in its intentions, it will then be immediately voted down. Its clearly intended to be a six month-long anti-Māori hatefest. And it will cost us millions:

A conservative estimate suggests it will cost about $4 million to progress the controversial, and doomed, Treaty Principles Bill to a second reading at Parliament.

The estimate, calculated by Council of Trade Unions (CTU) economist Craig Renney, suggests just 12 people would have been working to create the bill since the government was formed in November last year, and includes the legislation passing through a six-month select committee process.

It does not include costs such as contractors, consultants and lawyers, or any involvement from Crown Law, the Waitangi Tribunal, or the Human Rights Commission.

Rimmer of course calls this the cost of "democracy". What it actually is is a government-funded racial hate campaign. It is disgusting and illegitimate, just like the racists pushing it. And by proceeding with it, National will bring both Parliament, and the New Zealand state, into disrepute.

A missed opportunity

The government introduced a pretty big piece of constitutional legislation today: the Parliament Bill. But rather than the contentious constitutional change (four year terms) pushed by Labour, this merely consolidates the existing legislation covering Parliament - currently scattered across four different Acts - into one piece of legislation. While I haven't gone over it in detail to check for fuckery, it looks like quiet, boring legislation. There seem to be two significant changes:

• Giving parliamentary Security - those nice people who x-ray your bags on the way on to make sure you're not bringing in anything dangerous or planning to go on a stabbing spree on the tiles - formal statutory powers to do what they do. This is modelled on the existing framework for court security - who are in a similar role, but for courtrooms - and seems perfectly reasonable. Codifying their powers will help avoid mistakes and over-reach, which is a good thing in a democracy.
• Shifting funding for Parliamentary agencies to the model currently used for Officers of Parliament, preventing the executive from just cutting off funding to the legislature. Not that that was likely, but the possibility was not acceptable.

There's also some boring stuff about extending public service immunity for good faith actions in the course of their duties to the Parliamentary Service, and shifting functions under the Citizens Initiated Referenda Act from the Clerk to the Electoral Commission.

The worst thing you can say about this bill is that it is a huge missed opportunity for transparency. There have been repeated recommendations from multiple agencies to extend the Official Information Act to cover Parliament's administrative functions, ensuring we have a right to transparency from the legislature, rather than the current grace-and-favour arrangement. It would also help ensure the accountability of the Parliamentary Service for public money, and for its actions as an employer and a custodian of public property. Sadly, that seems to have been ignored. Which makes it an excellent amendment to raise when this bill gets to select committee...

Sabotaging human rights

That is the only way to describe National's shock appointments to the Human Rights Commission on Friday. New Chief Human Rights Commissioner Stephen Rainbow is on-record as a terf and a supporter of Israel's genocide in Gaza; new Race Relations Commissioner Melissa Derby is a terf whose chief "human rights" achievements seem to be supporting white supremacists and arguing that the "trans movement" - that is, people just trying to live their lives without being molested by bigots like her - should not be tolerated in civil society. These are not appointments which give confidence that the Commission will fulfil its purpose of supporting everyone's human rights. Instead, they're the sort of appointments seemingly designed to undermine the Commission's work, destroy public confidence, and bring it into disrepute. Which makes perfect sense when you remember that one of the government parties wants the Commission to be abolished. While National does not publicly share that agenda, these appointments suggest they're on-board with it, and are willing to appoint commissioners who will sabotage the work of the Commission.

Interestingly, Paul Goldsmith, who made the appointments, said that his appointees had been subjected to "appropriate background checks". It will be interesting to see if these checks included their repugnant views, and whether they were seen as a positive or a negative. But I expect National will try and hide that as "free and frank advice" from the inevitable flood of OIAs.

As for what to do about this: the immediate problem of bigots on the Human Rights Commission can be resolved by the next government simply sacking them. People with these views are unable to credibly perform the functions of the office, which is just cause for removal.

As for the long-term, there's a long-standing problem of political appointments to key constitutional offices, and this incident makes it clear that politicians can no longer be trusted with the job. So, we should take it off them, and give it to a permanent independent appointments panel, tasked with ensuring that appointments are based on merit rather than cronyism or political agendas. We know how to do this: we use an independent process for appointment of the Government Statistician (but not other public service CEOs), with criminal penalties for any Minister who attempts to interfere in it. And we know how to set up a permanent, non-partisan body because we do that for the Representation Commission, which ensures our electorates are not gerrymandered. We could, with the political will, establish such a process for the Human Rights Commission and other independent crown entities of an important or constitutional nature (such as the Privacy Commissioner, Children's Commissioner, Electoral Commission, IPCA, Waitangi Tribunal, and Climate Change Commission) to ensure merit-based appointments, insulated from cronyism and political sabotage. But I guess the problem is: why would any politician vote for that?

The government should listen to the Waitangi Tribunal

The Waitangi Tribunal has reported back on the government's proposed Treaty "Principles" Bill, and as expected, declared it to be a steaming pile of racist horsehit:

In her letter to Ministers the chair of the Waitangi Tribunal Caren Fox said both policies were part of an alarming pattern of the Crown using the policy process and parliamentary sovereignty against Māori.

By engaging with this policy the Crown was sanctioning a process that will take away indigenous rights, she said.

"For the Crown to entertain 'principles' that contain inaccurate representations of the text and spirit of the Treaty / te Tiriti and warped interpretations of te reo Māori from te Tiriti o Waitangi is a breach of the duty to act in good faith and to act reasonably."

The letter highlighted multiple problems with the Bill: including that it "is a solution to a problem that does not exist ; there is no policy imperative that justifies it ; it is 'novel' in its Treaty interpretations ; it is fashioned upon a disingenuous historical narrative ;its policy rationales are unsustainable ; and its current text distorts the language of the Treaty / Te Tiriti."

The latter is particularly important, as the Tribunal has exclusive authority "to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between them". So you'd expect them to know what they're talking about better than a bunch of weirdo racist bumpkins from ACT and NZ First. As for solutions, they recommend that the bill be dumped, that the review of Treaty clauses be put on hold and re-done in partnership with Māori, and that the Crown should consider a restorative justice process to mend its relations with Māori.

While these are formally only "recommendations", like those of the Ombudsman, they should be taken extremely seriously by the government. Te Tiriti is one of the foundations of state legitimacy in Aotearoa, and a government messes with that at its peril. The Tribunal has both the expertise and the mana here, and the government should listen. That approach is implied by the structure of the Treaty of Waitangi Act 1975: Parliament established the Waitangi Tribunal to inquire into alleged breaches of te Tiriti. In giving the Tribunal the power to inquire into proposed legislation before it is placed before the House, Parliament clearly envisioned that such inquiries would have an element of preventing such breaches before they occurred. Having done this, it is incumbent upon Parliament and the government to listen when the Tribunal speaks and address its concerns. And if they can't be relied upon to do that informally, then we need to bind them and require them to do so formally.

The full report, "Ngā Mātāpono – The Principles", is here.

Strengthening the Waitangi Tribunal

Te Pāti Māori's Tākuta Ferris put a new bill in the ballot this week, the Treaty of Waitangi (Empowerment of Waitangi Tribunal) Amendment Bill. The bill does three things: it empowers the Waitangi Tribunal to inquire into legislation before Parliament and requires the government to respond to its findings; it makes its recommendations (on any inquiry) binding on the crown; and it entrenches those provisions so that they require a 75% supermajority (but not a referendum) to amend or repeal. This bill has no hope of passing in the present Parliament, but it is worth discussing.

Looking at the changes in turn: given what has happened so far this year, the ability to inquire into legislation currently before Parliament - essentially to advise Parliament whether it is about to breach its obligations under te Tiriti - is useful. While there is Treaty scrutiny of bills before introduction, it is by the government and for the government, and there is no formal reporting mechanism to advise Parliament of any potential breach. And its worth noting that we already do this for another pillar of our constitution - the Bill of Rights Act - so surely te Tiriti deserves the same consideration. Obviously having the quasi-judicial Waitangi Tribunal do it poses separation of powers issues, but the flaws in the BORA reporting regime, where Attorney-Generals have repeatedly massaged their findings to downplay human rights issues with government legislation, show us exactly why we need outside, independent scrutiny. And the Waitangi Tribunal is the obvious choice: there is simply no other body with the expertise, the independence, or the mana capable of doing it.

(I'd like to see independent, outside scrutiny for the BORA as well, rather than using the inherently-conflicted Attorney-General - but that would be another bill...)

Secondly, making Waitangi Tribunal findings binding on the crown: obviously, this is a major constitutional change, the sort that would normally require a referendum (which poses obvious problems because of racism). We don't do it for the BORA, or other constitutional law; we don't have constitutional supremacy in Aotearoa. But there's a strong argument, backed by the behaviour of politicians, that we should (and a strong argument, backed by the behaviour of Americans, that we should be cautious; OTOH, most countries with supreme constitutions seem to cope OK, so maybe Americans are just... exceptional).

In this case, te Tiriti is the bargain that underlies our country. It is one of the foundations of state legitimacy. It imposes ongoing duties and obligations on the state. As the current pack of shameless arseholes shows, remedies cannot be left to just "the conscience of the crown". If we take ti Tiriti seriously, this is where we need to be going. Whether we get there all at once, or whether we use a shame-based report-and-response mechanism as a half-way house (as we now do for the BORA) is an open question, but the destination should not be in doubt.

The third change - entrenchment - protects the other bits. IMHO it doesn't protect enough - it should protect sections 4 and 5, to ensure that a racist government cannot simply disestablish the Tribunal or gut its functions. Whether this is necessary depends I guess on how racist present and future government are presumed to be; given the current pack of racist arseholes, I'd say it is necessary, and the failure of previous governments to protect the future from their ilk is a significant one.

As I noted above, there is no chance that this bill will pass in the present Parliament. And given the need for a supermajority for entrenchment, the chances of that bit passing in future are very low (the other bits, OTOH...). But it effectively lays down a challenge to Parliament and to Aotearoa about the place of te Tiriti in our constitution, and the mechanisms we use to protect and enforce it. And the question for us in considering these proposed changes is: do we take te Tiriti seriously or not?

Unbridled power again

There's a couple of pieces about architect-of-our-constitution Geoffrey palmer's views on the current government doing the rounds today. The first, on Newsroom is an excerpt from a speech he gave to a Young Labour meeting last weekend, in which he says NZ an executive paradise, not democratic paradise. The Spinoff seems to have done some followup, interviewing Palmer about the speech and his other views, crossing over with their Juggernaut series on the Revolution. Both are worth reading. And both make it clear that Palmer thinks we are returning to the dark days of unbridled power again, when the executive stomped all over us and used Parliament as a mere rubberstamp for its decisions.

Palmer lists the problems: too much concentration of power, too little consultation, a lack of checks and balances. He has some very good suggestions about changing the legislative procedure to put consultation at the start, rather than the end of the process, so that it might actually make a difference (and slow the whole thing down). Unfortunately, he somewhat ruins it by presenting four year terms as a solution - which runs counter to his whole "more accountability, more checks and balances" theme. Because the ultimate check and balance is the power to get rid of a bad government swiftly and expeditiously. And that means we need to cut the parliamentary term, not extend it. Politicians will get the time they need if they convince us they are governing well. If not, fuck them.

Palmer also laments the failure of successive governments to reform the OIA, and suggests it is because Ministers - I would say the political class as a whole - hate the Act and the accountability it brings. And he's very clear about what needs to happen:

A new Act should be drafted, and a new independent information authority should be set up to restructure the administration of the Act, with the aim of improving transparency. The Authority should have the power to decide upon disputes about release, and those decisions should be binding, which means dealing with such disputes is not an appropriate role for the Ombudsman. A whole new Act will enable the original aims of the reform to be achieved. Successive governments have resisted efforts to improve the Act. Yet a strengthened Act would increase protection against corruption and questionable decision-making.

As he says, we need to take this seriously, "or trust will be further eroded in a system that purports to be open but in practice contains blemishes and weaknesses". I think the same applies to his broader constitutional suggestions as well. At the moment, a terrible government is trampling on our constitutional and democratic norms, in the process burning the trust our political system is built on. We will hopefully stop them at the next election. But the weakness having been demonstrated, it cannot be allowed to continue. The next government needs to restore trust in our democracy. And it can only do so by reforming our constitution to enable more participation, bring the executive under control, and finally bridle their power.