Irrelevant fixations

Stuff has a fairly disgusting story today about how a "burglar with more than 100 convictions escaped another prison term". But in an effort to pile on the outrage, they fixate on the fact that she has had a gender reassignment and that it was paid for by the taxpayer.

Lavishing attention on the gender reassignment is simply an effort to paint her as a freak, and is about as relevant (and odious) as fixating on someone's race, sexual orientation, or marital status. But it's the "taxpayer funded" bit which attracted my interest, because it's clear that the journalist hasn't done even basic research on the matter. Gender reassignments in New Zealand are frequently publicly funded through the Special High Cost Treatment Pool. Applications are made by DHB specialists, and are assessed on the grounds of medical necessity, efficacy, and cost-effectiveness.

It took me less than five minutes to find this through google. Either the journalist didn't bother looking, or deliberately decided to play the "taxpayer funded" aspect for outrage without regard for the facts. Neither is good journalistic practice.

"Destroying New Zealand"

Just Left quotes Don Brash's famous line about how the Labour government is "destroying New Zealand", and aks how

record economic growth, record high employment and low unemployment, a flourishing of the arts and popular culture, the beginnings of a debate on the nation's future and so on, all add up to "destroying New Zealand."

It's an interesting question, and one which the right struggles to answer. Their best attempt is to refer to "values" - that Labour's revival of the welfare state and government services, and its restoration of balanced employment law is undermining the market values essential to New Zealand's future. But as Grey Shade has pointed out (in an excellent essay I should have critiqued weeks ago), these values are an abberation, and have never been part of "the New Zealand way". We have always stood for a helping hand and a fair go; the dog-eat-dog, screw the poor "values" Brash and his ilk refer to are in no way part of our national ethos, and nor should they be.

Lowering the bar in Iraq

With the occupation failing, and the prospect of free and fair elections growing more distant every day (and the likelihood that, if truly free and fair, they would be won by anti-western theocrats), an op-ed in the NYT argues for a dramatic lowering of the bar. America must adopt "more realistic" goals in Iraq, they say, and they present a stark choice - between partition or a "secular strongman".

For an invasion and occupation predicated on freeing the Iraqi people from a murderous dictator, this is lowering the bar all the way to the ground. Lest anyone forget, Saddam Hussein was a "secular strongman". To advocate simply installing another, after killing so many in the name of democracy, is simply monstrous.

But the root of this problem is clear. The authors list America's goals in Iraq as

find[ing] a way to withdraw most of its troops over the next several years and leav[ing] behind an Iraq that is not in a civil war, that is not a haven for Al Qaeda and is not an immediate threat to its neighbors

There's an obvious absence from this list, and that is the Iraqi people. Having waged a bloody war for their freedom, their interests are now completely ignored. But as John Quiggin points out, the coalition has never treated the war as a humanitarian intervention.

Instead, they regarded themselves as the victors in a (pre-emptively) defensive war and Iraq as a defeated enemy state, which they could reconstruct (or not) as they wished.

But humanitarian intervention was the only argument for the war which passed the laugh test (and even it failed to stack up). For the Americans to completely ignore these concerns makes the critique of them as imperialist conquorers pretty much dead on.

Before the war, President Bush spoke of his commitment to building a free Iraq and promised that

we will ensure that one brutal dictator is not replaced by another. All Iraqis must have a voice in the new government, and all citizens must have their rights protected.

He must be held to this.

New Fisk

What price innocence in the anarchy of Iraq?

Final words on the foreshore and seabed

The Foreshore and Seabed Bill has passed. While it is better than it was, and certainly far better than any "solution" National would have given us, it is still a deeply flawed piece of legislation (perhaps guaranteed given the number of parties it has had to please). While parts of it are acceptable (for example, the legal framework provided for non-territorial customary rights), at its heart it is intended to limit and extinguish aboriginal title over the foreshore and seabed, while preserving the rights of present, mostly Pakeha owners - and that is very difficult to stomach.

I opposed the bill and submitted against it primarily on the grounds that it denied due process and equality under the law. These are not just guaranteed by the Treaty, but are the very foundation of organised, constitutional government. Unfortunately, the government has seen fit to trample all over these principles in pursuit of the redneck vote, and then trampled all over the democratic process to ram it through by the end of the week. That is not something that can easily be forgiven.

The irony is that none of this was really necessary. The general thrust of the bill - the protection of customary usage rights, and territorial rights recognised through co-managed reserves - is I think pretty much where we would have ended up if the government had reacted calmly and let the cases proceed while negotiating a general settlement. But by panicking and resorting immediately to legislation, the government has alienated Maori and guaranteed us all trouble for a long time to come. I have said all along that any lasting solution to the foreshore and seabed has to be acceptable to the vast majority of Maori. This legislation is not. While many will eventually be able to reconcile themselves to it, enough have been offended by the government's "fuck you" attitude and perceived betrayal to guarantee that the matter will be relitigated. Partly this will be done through various UN human rights bodies, but with the rise of the Maori Party, the main thrust will be through the electoral system. In May a hikoi was organised to oppose this legislation, and thousands came. The next hikoi may very well be to the ballot box.

Priorities

On last night's Face To Face, Kim Hill interviewed the Prime Minister, asking her (among other things) about the Ahmed Zaoui case. Helen Clark repeatedly said that she would not intervene in the middle of the process, preferring that it be concluded before the law was changed. This stands in stark contrast to her actions over the foreshore and seabed, where the government responded to a preliminary court case by immediately promising (and eventually enacting) legislation. The conclusion? As far as Labour is concerned, fundamental human rights are less important than chasing the redneck vote.

A landmark day for New Zealand justice

The Supreme Court has delivered its first decision, and ruled against Donna Awatere-Huata. Scoop has the full judgement.

The decision rests on statutory interpretation. The Electoral Integrity Act specifies that a vacancy occurs when an MP remains in parliament after ceasing to be a member of their original party. Voting behaviour or who is responsible for the departure is irrelevant. Thus, Donna Awatere-Huata's seat is vacant. It's a very narrow and literal decision which opens the door for parties to stifle any dissent from their members with the threat of expulsion, exactly as critics of the Electoral Integrity Act feared. Our one consolation is that the Act will expire at the next election. Given this judgement, we must ensure that it is never renewed.

Amendments

Knowledge basket has posted the Supplementary Order Papers on the Foreshore and Seabed Bill: # 302, # 303, and # 304. This is a lot of material to cover - 120 pages, by some accounts - and the government should have delayed passage of the bill to allow the Opposition sufficient time to examine what was actually being passed.

I've said before that I don't actually mind the government moving into urgency to ensure that this bill is passed before christmas. What I do mind is that they have done it at the expense of the democratic process - and that they mock the opposition for complaining about it.

Shocked

According to a Scottish dietician, 60% of British hospital patients, and half of those in old-age homes, are underfed and suffering from malnutrition.

Just think about that for a moment. The very institutions Britons trust to care for their health when they are ill or elderly are systematically starving them. Which of course means that they stay sick or continue to deteriorate.

All I can say is that I'm glad I don't live in Britain.

"Bravery"

What constitutes "bravery" in the New Zealand Police? Excessive force and fabricating evidence, it seems. Police officers who do the above are not brave - they are simply bullies in uniform, who undermine the reputation of our police as neutral and professional enforcers of the law. For the police to continue to defend them after this sort of judgement beggars belief.

I am also concerned that it took four years and civil proceedings to get justice in this matter. Where was the Police Complaints Authority? And are formal charges now going to be laid against the officer concerned, or are perjury and attempts to pervert the course of justice only crimes when done without colour of law?

A criticism too far

The war between the government and the Supreme Court really has gone to far this time, with Trevor Mallard saying that it wasa pity that they were not appointed on merit. He is undermining the credibility and independence of the judiciary, and for what? So he has an "amusing" line in a talk at a business breakfast? As a senior Cabinet Minister, Mallard should be more responsible than that.

Yes, he has a point, in that the blind promotion of those already enjoying seniority probably overlooked others of greater talent. But lest anyone forget, this process was forced on the government by the right, who prevented a wider net being case by raising the spectre of political appointments - and will no doubt be using Mallard's comments to raise this issue again, despite being happy with the appointments process at the time (because they conflated existing seniority with merit, in the same way that they conflate wealth with virtue). And at the same time, you really have to wonder what the basis for Mallard's complaint really is. The Supreme Court has heard only two cases so far, and has yet to issue a single ruling. Criticising their ability seems more than a little premature...

In anticipation

No doubt my previous post will attract cries of "moral relativism" from those who do not understand the meaning of the term. However, it is based on a very clear moral principle, applied universally and consistently: that killing civilians is wrong. To my mind, there is no difference between someone who murders twenty in the course of killing five with a car bomb, and someone who does the same with a laser-guided missile. Those who wish to condemn this "moral equivalence" - judging acts which are in fact morally equivalent to be morally equivalent - are welcome to point out the distinction.

A distinction which seems to make no difference

Sock Thief, in response to the cold-blooded murder of an unarmed and wounded iraqi by a US Marine, uses it in an attempt to smear - who else? - those who condemn it:

The soldier will be held to account for any misdeed. That's the difference between a liberal democracy and terrorism. A distinction many liberals have forgotten.

Hardly. We all know the soldier will be held to account. The worry is that he will be "held to account" in exactly the same way Lt Calley was - not at all. And there is reason to be concerned (though this case suggests that military justice can sometimes work...)

It should also be pointed out that the distinction Sock Thief accuses critics of the war of having forgotten lies at the very heart of criticisms of the Fallujah massacre (and of the US's behaviour in Iraq in general). Terrorists murder without regard for "the rules of war"; they kill the unarmed and the uninvolved. The organised military forces of liberal democracies don't. However, if we are to judge the US by its actions in Fallujah, it is a distinction which seems to make no difference.

The US has used devastating force in Fallujah - artillery, aerial bombardament, automatic weapons, tanks - in an area primarily inhabited by civilians. The weapons they are using are simply indiscriminate - the kill radius of one of those 2000lb bombs they were dropping is around 100m, and white phosophorus and cluster bombs do not distinguish between those carrying weapons and those without - so indiscriminate in fact that it can called nothing less than a reckless disregard for Iraqi lives.

Those arguing that this is just how modern warfare is waged, and that "you can't make an omelet without breaking eggs", should note that it is only the US that behaves like this. The British face insurgents in their zone, but they respond with a good deal more care. More significantly, they faced a terrorist insurgency in Northern Ireland for decades - during which it was absolutely unthinkable that they would use any of the above weapons. They did not call in airstrikes on IRA safe-houses, or use tanks to shell suspected sniper positions (in fact, they did not use tanks at all). And the reason in both cases is clear: they have some regard for the lives of those they are fighting amongst. The US does not. Instead, as Crooked Timber's Chris Bertram points out, they have a "deliberate and systematic policy" of transferring the risks of combat from soldiers to civilians - because the lives of American soldiers are more valuable even than those of innocent Iraqis. But whose name is this occupation being waged in? Whose "freedom" is being fought for? Iraqis. It seems strange to treat your ultimate goal, the people you are supposedly protecting in this manner. And, as Bertram notes,

[i]t is hard to escape the thought that were co-nationals of the people dropping the bombs the ones in the bystander position, different methods would be used.

The position of those opposing the occupation has always been clear: if the US is to claim moral superiority over terrorists, then it must act like it. If it wishes to claim that the indiscriminate murder of civilians is wrong, then it must refrain from doing so itself. But an examination of US policies and actions in Fallujah, and in Iraq in general, shows a disregard for civilian lives that is indistinguishable from that of the suicide-bombers. The message for people like Sock Thief is clear: if they vigorously condemn terrorists, they must also vigorously condemn the US's indiscriminate tactics. Their refusal to do so, and their defence of US actions, marks them as nothing more than hypocrites providing moral cover for murderers.

Margaret Hassan is dead

First the UN and the Red Cross, and now this. What can I say except to reiterate that the deliberate targetting of civilians, and especially neutral humanitarian workers, is a monstrous crime no matter who does it.

Democratic transparency X

Perusing the Hansard of the final passing of the HART Bill, it seems that the National Party has continued to support secrecy right up until the end, based on a spurious distinction between having the vote recorded in Hansard and merely tabling a list:

PETER BROWN (Senior Whip-NZ First): As far as New Zealand is concerned this is ground-breaking legislation - at least, that is the view of New Zealand First. I therefore seek the leave of this house to request that the parties that split their vote, table the split - in other words, who voted for and who voted against - so that this can be recorded in Hansard and so that the view of the public can be respected, in that a check can be made of the voting if they so wish. I seek leave for that request to be put to the party whips.

LINDSAY TISCH (Junior Whip-National): National is quite comfortable about giving people the names of those who voted for and those who voted against. However, seeking leave for that to be recorded is a dangerous precedent. It is not necessary under Standing Order 144. We are quite happy to give the names out - there is no difficulty with that - but we would oppose leave to have the names recorded.

[...]

LINDSAY TISCH (Junior Whip-National): I understand from the Business Committee that it was agreed that the names could be tabled, which is different to having them recorded. I said, in speaking to the point of order earlier, that National is happy to table the names - I have them here. We are happy to table them, which is different from recording them. So I seek leave for National to be able to table the names of members who voted for and those who opposed.

Document, by leave, laid on the Table of the House.

So they're happy to reveal their votes, but only in manners which make it more difficult for the public to scrutinise them. While National did indeed give up the information when I asked, it took a month of nagging - far too long. And while documents tabled in the House can be viewed by the public, they are far less accessible than the official Parliamentary record, which is available free on the web.

This has to stop. Democracy demands transparency, and that requires that every vote be properly recorded in Hansard and made rapidly available to the public. Anything less - such as the position taken by Mr Tisch - smacks of secrecy, and calls the public's ability to hold our representatives to account into question. Parliament's Standing Orders must be amended, and until they are, those parties which value democratic accountability must use their ability to deny leave to ensure that transparency is maintained.

Human extinction within 100 years?

I think Peter Barrett underestimates our chances. While climate change threatens to make life exceedingly uncomfortable for a large part of humanity, and cause famine, the spread of disease, and even war, it does not pose a threat to the survival of humanity as a species. I don't think it even poses a threat to the survival of humanity as a technological civilization - though it may alter the nature and extent of that civilisation. We and our infrastructure are distributed enough to survive a major asteroid strike; we can endure climate change even at its worst.

This does not mean that climate change should be ignored. The threats it does pose justify taking strong action against it. But we should be clear about what those threats are, and avoid inflating them to ridiculous levels. By doing the latter, peter Barrett has done those fighting for action on climate change no favours whatsoever.

I have a keyword-searchable Hansard, and I know how to use it

I present the following excerpts from Hansard in honour of the government's resurrection of the blitzkrieg:

(Note that the dates are sitting days, and that as far as Hansard is concerned, the 101 hours required to ram through the "reforms" of Ruth Ricahrdson's "mother of all budgets" all occured on the 30th July, 1991).

Jim Anderton, second reading of the Broadcasting Bill, 16th May 1989:

I note also that the Bill is being rushed through under urgency, and I should like to hear from the Minister in due course why that is so. Why is there such a rush to get the Bill through? I cannot see any particular reason that the Bill should be taken under urgency.

[...]

I do not believe that legislation of this kind---particularly Part V---should be put through in such a rush. It leaves the Opposition with the opportunity only to oppose---not to promote constructive options.

Michael Cullen, third reading of the Customs Amendment Bill, 30th July 1991:

I raise a point of order, Mr Speaker. I understand that the Government intends to introduce the Finance Bill (No. 2) and the Health Reform Bill. These are measures of some considerable complexity. I understand that they are to be introduced after the third readings of the Bills being considered now. Usually those Bills would appear so that the Opposition could look through them and give them some intelligent consideration.

Helen Clark, point of order, 30th July 1991:

I raise a point of order, Mr Speaker. I should like to seek your guidance on a matter, and possibly the Leader of the House might like to respond. In the priority of Bills that the Opposition has been given for today, and in the urgency motion, the introduction of a Health Reform Bill has been signalled as being not too far away. A major change has been foreshadowed in the Budget announcements. The Minister of Health is here. Opposition members have not been able to obtain any copies of the Bill. I wonder whether I might have some indication, through you, of when the Bill might be available.

Jonathan Hunt, second reading of the Finance Bill (No 2), 30th July 1991:

I further suggest that if all of the amendments in this Bill needed to be passed in urgency there could be some justification. However, I have examined the Bill and there is not one clause that needs to be passed tonight or next week---not one.

Steve Maharey, second reading of the Finance Bill (No 2), 30th July 1991:

Given the Bill's complexity, the time allowed for consideration of it before it was introduced to the House was ridiculously short. Before it was introduced I had about 1 hour in which to spend some time reading it, and I have tried to do that. It seems that Government back-benchers had even less time to have a look at it. Perhaps we on this side of the House are more privileged.

[...]

Members opposite went around the country saying that a National Government would change the way that legislation was introduced. I believe that people want us to introduce some serious changes. People want legislation in a way that ensures that it is thoughtfully and carefully considered, so that groups affected by it have the opportunity to come and talk to members of Parliament about the changes. The public will have no such chance with this Bill. This is an extraordinary break with the spirit of what members opposite were campaigning for before the election, and it is certainly a breach of faith with the people who are wanting change in the way that legislation is put through, and the opportunity to make a contribution.

Paul Swain, second reading of the Finance Bill (No 2), 30th July 1991:

As has been pointed out by several of my colleagues already, there is no need to pass the Bill under urgency as part of the Budget debate. Having looked through each of the Parts and each of the clauses, I do not see that there was any need for them to be introduced as part of the Budget debate. For example, Part I amends the Accident Compensation Act 1982 and Part II amends the Customs Act 1966. I cannot see any reason why they could not come in within the next week or so.

Helen Clark, on adjournment, 30th July 1991:

It is an incredible motion, that members be asked to come back and carry on this helter-skelter totalitarian rush of legislation. Half of it should not be before the House in Budget legislation and under urgency at all. The other half should be undergoing very lengthy scrutiny before select committees, because this week we have been asked to look at legislation that radically changes the nature of New Zealand society, without having any reference to the public and without consultation.

[...]

The Opposition has a constitutional duty to perform, and that duty is to scrutinise Government legislation. We are not satisfied with what we have seen. We are not satisfied that a number of the matters submitted for our attention are worthy of urgency. There are other matters that are so serious, of such gravity, and that challenge so much of the New Zealand way of life that they should not have been presented to us for instant scrutiny in the House.

George Hawkins, third reading of the Customs Amendment Bill (no 2), 5th August 1991:

Through all the stages of the legislation we have questioned the need for the rush. We are considering the matter under urgency after having sat for almost a whole week, barring Sunday [...] The member for Tongariro should tell the House why the Bill should not be delayed, as I have suggested. He should be positive. He should tell the Chamber and the country the reason for the rush. I think that it is important for him to do so and for the Government not just to rush in. I believe that the member has not made a good contribution at all during this period of urgency, and that is a real problem. I would have thought that during the Committee stage---it is one of the reasons that I have moved the amendment---Government members would justify what they are doing. They have been mute, and they have been contemptuous of the rights of ordinary New Zealanders. The provisions are not major, but they are part of major legislation, and when we see the changes that were brought about on Budget night, and this process, we must really question the way that Parliament is being run.

Jonathan Hunt, point of order, 29th November 1994:

I raise a point of order, Mr Speaker. In that list the Leader of the House read out he indicated the introduction and passing of the Health Amendment Bill (No. 2). That Bill does not even appear on the table in front of the House. We are being asked to pass a Bill through all its stages, but not one member of the House has yet seen it...

(I have been searching for an example from Winston Peters, but have given up in frustration. In the chamber, he seems to have provided nothing but a torrent of insults and irrelevancies. Looking at more recent Hansards, I see nothing has changed...)

I know that the unspoken law of Parliament is that there is one rule while in government and another in opposition, but the public expects better. The reason these denunciations of the use of ugency carry some weight is because its misuse raises important questions of democratic oversight. Helen Clark is right: the opposition does have a constitutional duty to scrutinise government legislation - and her party's tactics over the Foreshore and Seabed Bill seem aimed at frustrating that duty.

The government should allow the opposition to do their job properly. They should release the amendments to the bill, and delay its passage so that their impact can be assessed. This bill has taken eighteen months so far. Would a couple of extra days in the name of democracy really hurt so much?

The return of the blitzkrieg

One of the most unforgivable features of the 80's and 90's reforms was the undemocratic manner in which they were implemented. Bills were rammed through under urgency, precisely to prevent public scrutiny and opposition. The speed was such that, according to Jane Kelsey in The New Zealand Experiment, "often there were not enough, or sometimes even any, up-to-date copies of the measures available for those taking part in the debate".

There's more than a whiff of the blitzkrieg about the government's plans to pass the Foreshore and Seabed Bill under urgency. According to the Greens' Metiria Turei, the government is not going to release its Supplementary Order Paper detailing the amendments until just a few hours before the debate:

"There will only be perhaps as little as a few hours to look at the changes the Government wants to make," she said.

"It's not enough time to give really serious thought to the impact of those changes."

While I appreciate their desire to pass the bill before the end of the year, this is simply going too far. I don't mind them using urgency to get the extra speed, but to keep the amendments secret until the last minute raises serious questions of what exactly they are trying to hide. Parliament should operate openly, and give both the public and MPs sufficient time to digest and formulate a response to the suggested changes. If this means taking a few extra days, then so be it. I see no reason why the Foreshore and Seabed Bill must be passed this week, rather than next.

I should note that the government's behaviour diverges significantly from the blitzkrieg model in that the bill has been subject to extensive public consultation and a full Select Committe process (though both were almost universally negative and the latter could not agree on amendments). But this unseemly haste at the end of the process recalls it at its worst. The government should be ashamed of itself for bringing the Parliamentary process into disrepute in this manner.

New Fisk

Death, delusion and democracy

Better

The government has announced its proposed amendments to the Foreshore and Seabed Bill. Looking through them, they make it a far better bill, and move a long way towards a full recognition of customary title.

The key amendments deal with cases where the High Court finds that a claimant would have gained actual title but for the bill. They lay down more specific criteria on how this is to be assessed, and specify what relief the court can grant:

Where the High Court has found that a group holds territorial customary rights, it can at the group’s request direct the establishment of a Foreshore and Seabed Reserve. The Reserve will be held for the common use and benefit of the people of New Zealand and will acknowledge the guardianship status of the group. The Board of the Reserve will operate within the statutory framework of the RMA. Its tasks will include the preparation of a management plan which the local authority must recognise and provide for.

In other words, iwi with a strong claim can gain co-management and guardianship. This is a significant advance on the earlier "crown must negotiate" language.

One problem that remains is that the criteria for assessing territorial rights includes an element of contiguity; "applicants must also be able to demonstrate that they have had continuous title to a significant part of the dry land contiguous to the foreshore and seabed". This is an attempt to reintroduce the discredited Ninety Mile Beach doctrine by stealth. What matters is not who owns the land above the high water mark now, but who owned it in 1840. The government, at the urging of NZFirst, has also refused to recognise post-1840 transfers according to tikanga maori, which is a Prendergastian denial of tikanga's role in New Zealand common law. While in practice the requirement for continuous and exclusive use would tend to prevent claims to foreshore where the claimants no longer owned the land above the beach, it is still a disappointing move.

So, contrary to Big News' assertions, public input seems to have made a difference to this legislation (though possibly not in the direction he wanted it to).