"Not a priority"

On Friday, the Supreme Court upheld the right of the courts to formally declare laws to be inconsistent with the Bill of Rights Act. This does not overturn or invalidate them, but it sends a clear message to Parliament that it needs to fix the situation. But the government's response to this situation is that it is "not a priority":

Prisoners look unlikely to get the vote any time soon even after a Supreme Court ruling in their favour.

[...]

Justice Minister Andrew Little told reporters he personally disagreed with the ban, but the government as a whole had yet to take a position.

"It's not that much of a priority," he said.

"We haven't even had a discussion about that and it would be wrong for me to express any view on behalf of the government about it."

Ministers were unlikely to consider the issue for at least a year, he said.

This is simply not acceptable. When the Supreme Court makes a ruling like this, it should automatically become a priority for Parliament, and should be formally drawn to its attention for a response. The government has already signalled that that is what it wants to do in future, so why won't it do it in this case? And there's a pressing need: we're having an election in 2020, and it would simply be unacceptable given the ruling for prisoners to be unable to vote in it.

The government needs to make this a priority. And the longer it refuses to do so, the stronger the argument is for simply taking it out of their hands. If politicians will not protect our human rights, lets remove them from the equation: repeal s4 of the Bill of Rights, and the courts fix the law directly when the politicians abuse it.

A hundred years

Today marks the centenary of the end of the first world war. While it wasn't quite the world's stupidest war - that title probably goes to the Football War or the War of Jenkins' Ear - it ranks among them. Greedy, self-important aristocrats piled up the tinder for decades, with their bullshit concerns about empire and prestige and spheres of influence, so that in the end all it took was one spark. One dead Archduke killed 17 million of us.

Not that they did well out of it. Their empires fell, and in the "winners", their class was almost annihilated (I guess noblesse oblige was good for something). But we got the worse end of the deal. Their selfish war fucked up the entire twentieth century: the Russian Revolution, the inevitable rematch with Germany, and the subsequent Cold War can all be traced to the First World War. And we're still living with the aftermath, in the shape of the contradictory promises made by Britain to conquer the Middle East, and the artificial countries it left there.

The First World War is a warning of the danger of giving our political elites the power to wage war. While their stupidity couldn't kill all of us then, it can now. Stupidity, greed and selfishness being inevitable amongst elites, the only way we can defend ourselves from them is to disarm them. Peace is our only protection. And next time they tell us to fight, we should tell them to go fuck themselves.

Ending the pillage

Back in 2015, we learned that miners were destroying Northland's wetlands to dig up swamp kauri and exporting the raw logs to China under the guide of "carved temple poles". The latter was obviously taking the piss, a pretext solely to avoid export restrictions. And now the Supreme Court has agreed:

Swamp kauri must not leave the country unless it has been processed into a product, a court has ruled.

A Supreme Court of New Zealand ruling, released on Friday, found that, to be lawfully exported, a swamp kauri item must be a product in itself and in its final or kitset form and it must be ready either to be used or to be installed into a larger structure.

[...]

The wording and purpose of the Forests Act made it clear that the definition of finished or manufactured indigenous timber product contained is intended to ensure that value is added to indigenous timber before it is exported, the court ruled.

To be lawfully exported, an item must be a product in itself and in its final or kitset form and it must be ready either to be used or to be installed into a larger structure, the court ruled.

A table top, which was not a product in its own right, could not be exported and logs with surface carving were unlikely to meet the definition, the court ruled.

Or, to put it another way, the law means exactly what it says. Which really does invite the question of why MPI thought it meant something different and that these exports were permissible. Their decision has enabled years of pillage and environmental destruction, and there needs to be accountability for it. Heads must roll.

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One way of fixing it

Private spy companies infiltrating environmental groups to disrupt and spy on them for governments and toxic industries seems to be becoming increasingly common. In New Zealand, there's a whole company, Thompson and Clark Investigations, specialising in it. But UK anti-asbestos activists have found a solution: sue the fuckers:

A private security firm has been forced to pay damages to five anti-asbestos campaigners after they discovered it had spied on them.

The firm, K2 Intelligence, paid an infiltrator for four years to masquerade as a sympathetic documentary-maker to obtain confidential information about leading activists in the worldwide campaign to ban asbestos.

K2 Intelligence, which made no admission of wrongdoing, agreed to make the payments after the five campaigners took legal action in the high court against it, Matteo Bigazzi, K2’s executive managing director in London, and the hired infiltrator, Robert Moore.

The size of the damages was not disclosed, but was described as substantial by the campaigners’ lawyers.

The high court in London had heard that K2 passed the information to clients in the asbestos industry. The court was told that the aim of the espionage was to gather information about the campaigners, their methods, funding and future plans.

[...]

The campaigners had taken legal action alleging breach of confidence, misuse of private information and breach of the Data Protection Act.

It would be interesting to see whether such an approach could work here. If so, Thompson and Clark's business model could get substantially riskier, both for their company and for them personally.

Vindicated

Back in 2016, the High Court declared that National's 2010 prisoner voting ban (the one which was so shabby and shoddily passed that it brought Parliament into disrepute) was inconsistent with the Bill of Rights Act. The case has worked its way through the courts, and today it was finally settled by the Supreme Court. Their ruling? That the courts have the power to issue declarations of inconsistency with the BORA. Their reasoning is pretty obvious: declarations are part of the usual arsenal of remedies available to the court, and so are available, just as damages were (the Chief Justice throws in specific statutory authorisation from the Declaratory Judgements Act 1908 as well). While the BORA states that laws are binding despite such a declaration - something else which the court takes as justifying their existence - that does not mean declarations are a worthless remedy. Instead, they are a clear vindication of the right, an explicit statement of the law, and potentially useful in international litigation e.g. before the UN Human Rights Committee. As for the Attorney-General's argument that inconsistent legislation wasn't really inconsistent because it altered the rights in the BORA, that was treated with the contempt it deserves.

What happens next? Nothing much. Because despite its shoddy arguments in this case, the government has already yielded the point and announced plans to give the BORA tiny teeth by explicitly recognising such declarations of inconsistency and requiring Parliament to formally respond to them. Again, that won't allow laws to be overturned - but will force the politicians who pass them (or more likely, their political successors) to rethink the matter and publicly justify themselves. Which is a start. But while they're at it, there's another obvious way they could improve things: by requiring every enactment passed despite a s7 declaration of inconsistency from the Attorney-General to undergo periodic review to determine whether it is still necessary. Which might help Parliament fix its own messes before the judiciary has to put them on formal notice.

Restoring the RMA

During its final term in office, National removed democracy from the RMA by removing notification and appeal rights while allowing Ministers to dictate local plans from their office in Wellington. Now Labour is planning to repeal that as the first step in its program of RMA reform:

Stage One will reverse some objectionable changes made by the previous government in 2017 that were widely criticised.

For example, the Bill would repeal measures that prevent public notification and appeals by applicants and submitters in residential and subdivision consent applications. Proposed residential developments near existing facilities (such as ports, airports, quarries and electricity networks) can have significant impacts on existing operators and their future development options.

[...]

A Bill addressing changes that can be made straight away will be introduced to Parliament early next year.

It will address particular issues with resource consenting, and monitoring and enforcement processes in the RMA.

It will also repeal the broad regulation-making power passed last year, which enabled the Minister for the Environment to override councils. It will retain national direction powers via National Environmental Standards and National Policy Statements.

All of this is good - and amusing, requested by the developers National was trying to help, who found that not being able to submit on or appeal RMA decisions which affected them wasn't such a good idea after all. But it gets better: reading the Cabinet paper, they'll also be reinstating financial contributions (meaning councils will be able to make developers pay the full costs of the required infrastructure, rather than dumping them on ratepayers), and enabling the EPA to take enforcement action to back up councils and enforce the law where they won't.

And then there's stage 2 - the buried lead of which is putting climate change back into the law. Ironicly, it was Labour who removed it, with the Resource Management (Energy and Climate Change) Amendment Act 2004 preventing councils from considering the effects of climate change in RMA decisions. Now, it looks like they want to reverse that mistake. Which should enable councils to refuse consents for fossil fuel extraction and use, unless the impacts on the global climate are somehow mitigated. If actually enforced, that promises to be far more effective than their bullshit ETS.

Police look the other way on crime by their own

Another report from the Independent Police Conduct Authority was released today, finding that police who sped at 200 km/h down a busy Auckland motorway during a pursuit violated pursuit policy in multiple ways and should have been charged with dangerous driving. The full report is here, and the behaviour the officers engaged in was appallingly dangerous and would have resulted in prosecution if any member of the public had done it (here's an example). But the police apparently ignored their own procedures, refusing to even investigate. It's just another example of the police protecting their own, and looking the other way on blatant criminal behaviour simply because the perpetrator wore their uniform. That is not acceptable, and it undermines both the rule of law, and public confidence in law enforcement. Unfortunately, because the IPCA took a whole year to investigate, there's now no possibility of charges: dangerous driving is a category 2 offence, and charges must be filed within six months. The IPCA's slow investigation has precluded that, and allowed these uniformed criminals to escape justice. Which doesn't exactly encourage confidence in them either.

Good riddance

The government's offshore oil exploration ban has already borne fruit, with Canadian oil firm TAG Oil quitting New Zealand:

Taranaki oil and gas producer TAG Oil is selling its New Zealand operations for US$30 million to Tamarind Resources, citing the less friendly environment for the oil and gas sector as one of its reasons for quitting the country.

[...]

"There wasn't a desire to exit, but there's always a desire to maximise value for shareholders," said Beltgens. The company believed its share price had suffered from investor perception in Canada and the US that the New Zealand government's ban on issuing new offshore oil and gas exploration permits would eventually move onshore too.

While New Zealand was "still quite a bit friendlier than most other places" as a place to do business, that had "changed and not for the better in the last year, year and a half," said Beltgens. "We're slightly immune to that, being onshore, but with the way the winds are blowing, cancelling the offshore block offering, smaller blocks being offered on onshore, it just seems that there's a trend there that we can't ignore."

Good riddance. But its not all good news - according to RNZ, the company they've sold to, Tamarind, "specialises in getting the last out of fields nearing the end of their life". Which means they're a pack of frackers. So they're going to damage our environment to get the last dregs of a dangerous, polluting "resource" for the profit of their foreign owners.

Which invites the question: why didn't the Minister refuse consent for the transfer of the mining permits under s41 of the Crown Minerals Act? Because if we want to end the fossil fuel industry, that's another thing we need to add to the list: refuse transfer if it will result in emissions continuing. This will incidentally destroy their commercial value and the asset values of the companies which hold them, and help to drive these companies into bankruptcy where they belong.

Climate Change: The next step

This morning Parliament passed the Crown Minerals (Petroleum) Amendment Act, outlawing future offshore oil and gas exploration. As I've already argued, its fatally compromised by allowing existing permits to be extended and expanded - effectively giving the fossil fuel industry an indefinite licence to drill. But its a good first step. Still, it is only a first step. If the government is serious about avoiding catastrophic climate change, it is going to have to revisit this issue. Here's how:

• we can't afford to burn the oil and gas we already have, so looking for more is pointless. They need to ban onshore exploration as well.
  
• The ban needs to be an actual ban, which means preventing permits from being extended or expanded, and ending the right to convert exploration permits into mining permits. That way the oil stays in the ground, where it belongs.
  
• Finally, we need to sunset all existing petroleum mining permits, so no more is extracted.
  
• We need to do the same for coal as well.
  

And that's only part of the issue. Obviously we need to eliminate fossil fuel use, by replacing it with renewable and zero-emission technology throughout the economy. But that's a wider problem.

Labour was too cowardly to do what was required and send a clear signal to the oil industry that their time is over. Hopefully Jacinda Ardern's successors will have what it takes to actually confront "our generation's nuclear-free moment".

17,000 employed under Labour

The labour market statistics have been released, showing that unemployment has dropped to 3.9% - its lowest level since 2008. The number of unemployed has dropped to 109,000, 17,000 less than when the government took office.

This is a significant achievement, and it shows the lie behind National's whining about "business confidence". The real economy seems to be working, no matter how upset the rich seem to be about the change of government.

Ramshackle and decrepit

Watching the US elections from the bottom of the world in New Zealand, I'm struck by how ramshackle and decrepit the system is. The tales of broken or even missing voting machines and long queues to vote bring to mind people queuing for food in the old USSR: a symbol of fundamental social failure. This is the sort of shit you expect to see in a failed state, not in one of the world's richest countries. After all, if a democracy can't run elections properly, surely its not worthy of the name.

I know, the US is 50 different election administrations, not just one. But still: this is not something other modern democracies fail at. Its not something voters in other countries tolerate.

For an example of what a properly functioning election system looks like, here's how it works in New Zealand:

• You can vote anywhere. None of this "assigned polling place" bullshit and the dirty tricks it enables.
  
• Polling places everywhere, so everyone can get to one. By way of example, my local electorate ("district" in American) had 39 polling places for ~35,000 actual voters (or about 45,000 potential voters). 5 of them had fewer than 6 votes cast.
  
• Enough booths and staff at each polling place so people don't have to queue, unless they arrive in a mob. Its normally a five minute process.
  
• Paper ballots. Because we want our elections to be more reliable than Microsoft Windows.
  

Plus of course no voter ID bullshit (because fraud is staggeringly rare), no gerrymandering (electoral boundaries are set by a neutral commission), and no politicisation of the system. Voters have an expectation that our elections are free and fair and run impartially, and our politicians accept that. We had a major political storm one year because public service reform and consequent siloisation (TL;DR: an agency which previously helped decided it wasn't their job anymore) meant that the count was slow. I shudder to think what voters would do to a government which made them queue to vote, but there would probably be resignations and sackings. Simply, we expect better from our government than that. We expect it to function. Americans should expect no less.

Neither free nor fair

The US midterm elections are tomorrow, and people are quite reasonably painting them as the US's last chance to remain a democracy. But looking at them from New Zealand, that status looks doubtful already. Free and fair elections where the outcome accurately reflects the will of the voters are something we take for granted in New Zealand. Our electoral administration is neutral, our elections free of political manipulation. In the US, its a different story. Gerrymandering, deliberate disenfranchisement, voter suppression, and last-minute changes to make it harder for people to vote - the US has it all. And with widespread use of insecure electronic voting machines, there's also the prospect of outright fraud. Its an election system no-one can have confidence in, stacked to produce unrepresentative outcomes, lacking even the pretence of fairness. And that's simply not how democracies are meant to work.

Tomorrow, we'll see whether the US is still capable of peacefully correcting itself. If not, then Americans who want to live in a democracy should start looking for somewhere else to live.

Limiting democracy is not the answer

An unrepresentative Parliament. Political parties taking millions of dollars in secret cash. Crony appointments and revolving door jobs. There's a lot wrong with our political system at the moment, and an international environment where some countries seem to be consciously trying to disrupt democracy or buy influence makes it worse. But a report from a "pop-up think-tank" at the University of Canterbury has proposed some solutions. many of them are obvious: a lower voting age, greater transparency around electoral donations, tighter regulation of lobbyists, and civics in schools. But there's one idea which stands out as bad:

Chapple said one solution was to “consciously limit” democratic rights to citizens, setting up civic education programmes that would run in parallel with the pathway from residency to citizenship.

“New migrants should be strongly encouraged to become citizens, rather than remaining indefinitely as simply sojourning residents.”

This is presented a a "solution" to "foreign influence". But its no solution at all. Instead, it would ensure that some members of our society are denied democratic representation and participation, their interests ignored because (by legal fiat) they just don't count. And that is simply wrong.

Permanent residents have a strong stake in our society. They live here, work here, pay taxes here. They catch the same trains, their kids go to the same schools, and when they get sick they go to the same hospitals as citizens. Our decision to give them the vote is one of the good points of our democracy: we recognise that everyone matters (its also a pragmatic compromise about the complexities of our own pathway to nationhood, our status as a nation of immigrants, and the refusal of some other countries to recognise dual citizenship). Throwing them overboard would be a very definite backwards step. And doing it essentially because of xenophobia, a fear that they might be working for foreign powers with their votes? That just stinks. That's not the sort of nation we are or should ever want to be.

Speeding, surveillance, and ANPR

NZTA will be trialling point-to-point speed cameras in Auckland, in the Waterview Tunnel and on the Southern Motorway. Speed is a killer, and these are a useful way of policing it. At the same time, there are obvious privacy concerns. The cameras use automatic number-plate recognition to identify vehicles and match entrance and exit times. The problem is that this effectively creates a database of vehicle movements. If the cameras spread, then there is a danger of introducing widespread surveillance by stealth.

There's an easy solution, of course: dump all information on non-speeding vehicles the moment a vehicle exits the zone. But its unclear at this stage whether NZTA will be doing that. So I guess I'll just have to lodge some OIA requests to find out.

Non

Voters in New Caledonia went to the polls yesterday in an independence referendum, and voted 56-44 to remain a colony of France. Which is what happens when you ship in colonists for generations and make the indigenous inhabitants a minority in their own country. At the same time, it is a much narrower result than anyone was expecting, meaning there is hope for a reversal. The Noumea Accord allows for future referenda, and the pro-independence parties are now likely to push for one. But no matter which way the territory votes, the situation where colonists enjoy a first-world lifestyle while the indigneous people are left in poverty can not continue. If France wants New Caledonia to stay, it needs to deliver to all its people.

Sucking us dry

Foreign water bottling plants are a ripoff for New Zealand. Foreigners are essentially given a resource for free, and they then turn around and sell it for at least $1 a litre. That's morally odious and corrupt, but it gets worse: in Christchurch, extracting water to bottle and sell overseas is actually going to threaten drinking water supplies:

A bottling company's bid to take millions of litres of water from a key aquifer could threaten Christchurch's drinking supplies, warns a senior city council manager.

China-owned firm Cloud Ocean Water has this week applied to Environment Canterbury (ECan) for permission to extract water from a 186m-deep bore at its Belfast plant so it can sell it abroad.

But documents published online by a leading councillor reveal serious worries that approving the request could compromise the aquifer and leave parts of the city short of drinking water.

[...]

"[The deep bore] is located within council's North West water supply zone where we are planning for a 50 per cent increase in demand over the next 30 years, 20 per cent of which is expected to be realised within the next 10 years.

"There are several future residential and industrial growth areas in close proximity to this proposal … that may therefore also trigger increased future industrial demand."

This is like Ashburton, only worse. One of our major cities is going to be sucked dry, its residents left to go thirsty while foreigners drink their water. But Ashburton also shows how you handle it: organise, threaten the council at the ballot box, and let political cowardice take its course. Voters need to make it clear that they will not tolerate being sold out, and de-elect every councillor who supports bottling. But that's not enough. Because as long as the law supports this pillage on a national level, people are still going to try it.

We need to change that law. If we can't outlaw extraction for export, we should at least make sure these foreigners pay a fair price for our water. At the usual prices, Cloud Ocean Water stands to make tens of billions of dollars from its consent. And its only right that a fair chunk of that money flows straight back to its owners: Ngai Tahu and the people of New Zealand.

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Climate Change: The opposite conclusion

Another day, and another article full of special pleading from farmers (or their mouthpieces) about how the rest of us should continue to subsidise them on climate change. This one is from National MP Stuart Smith, and takes the usual farmer line that cars, not cows, are the real threat to climate. The "justification" is that methane, produced by cows, is a short-lived greenhouse gas, whereas carbon dioxide, produced by cars, is long-lived, and hangs around forever. Utterly ignored: methane decays into carbon dioxide, so its effectively a long-lived gas anyway, while its warming effect - the thing that does the damage - is significantly higher than that of CO₂. Our normal greenhouse maths averages this out over 100 years, during which a ton of methane has 34 times the warming effect of a ton of CO₂ (the ETS uses the older estimate of 25 times - another hidden subsidy). If we look at a shorter timescale, the warming effect of 20 years is 86 times that of carbon dioxide (or 72 times in subsidy-maths). If we look at a longer one, its still seven times as bad over 500 years.


In other words, no matter how you look at it, methane is worse for warming than carbon dioxide. But worse, the climate crisis is now, so we no longer have a long-term to average over. We need to reduce warming as quickly as possible, to stop it from shifting the climate and driving destructive storms. And the most effective way of doing that is to target high-GWP gases. The bonus with methane is that because it is short-lived, the short-term effects of reducing it will be so-much greater, and the temperature will be that much faster to return to normal. Meanwhile, a rapid reduction of warming due to methane will give us time for longer-term solutions to deal with long-lived gases.

So, we should draw the opposite conclusion from farmers' special pleading on methane: rather than ignoring it, we should target it. We should target cars too, of course, but if we really want to do something effective, we need to target cows.

Climate Change: How to kill coal in NZ

If we are to avoid catastrophic climate change, then we need to end the mining and use of fossil fuels. This means not just ending oil, which the government is taking its first feeble steps towards today, but also coal. There are currently 15 operating coal mines in New Zealand, and every single one of them needs to be shut down. So how do we do it? The first step is to prohibit exploration and mining under the Crown Minerals Act. This would require a number of amendments:

• A new section stating that despite anything to the contrary in the Act, no permit of any type may be issued for coal.
  
• An amendment to section 32 (which allows exploration and prospecting permits to be converted to mining permits) to make it clear that nothing in that section shall apply to any permit for coal.
  
• An amendment to section 36 (which allows permits to be varied) stating that no permit for coal may be changed to extend its duration, the land to which it relates, or change its conditions so as to remove or extend any condition under which the permit or any land to which it applies would otherwise be required to be surrendered.
  

That cuts off the pipeline. But we would also need to kill existing permits. A clause simply cancelling them entirely after a specified date (say, 1 January 2030) would do that.

But effectively forbidding mining under the Crown Minerals Act regime doesn't solve the problem, because the Act applies only to mining crown-owned minerals. Coal is not necessarily government owned, and mining coal on private land is not regulated by the Act. So, we'd also need to change the resource management regime to shut those down. The way to do that within the RMA scheme would be to issue a National Environmental Standard to prohibit mining coal, so one way of doing it would be to add mining to the list of things NES's can be issued for, and statutorily require the Minister to issue one prohibiting the mining of coal. Alternatively, we could follow the scheme used for banning the dumping of radioactive waste, and just have a clear statutory ban. The complicating factor is that there are resource consents in place which will need to be phased out (by prohibiting the granting of new ones and issuing a statutory cutoff on existing ones), so that will require transition clauses.

But won't people just import? That's the easiest problem to solve: the government can simply, at an appropriate time, declare coal to be a prohibited import under the Customs and Excise Act (we can also use this to prohibit exports, to kill the coal industry earlier if we want). Such a prohibition must be "necessary in the public interest", but in the wake of the latest IPCC report and if things keep going the way they are going, that's not going to be difficult to prove.

So, is there any MP who wants to start the process?