Tuesday, January 14, 2020

Ending the government's charade over water

For the past decade, the government has been responding to the obvious Treaty issues raised by water allocation with the mantra that "no-one owns water". But last year, the Waitangi Tribunal ruled that actually, Māori owned it, and that those rights had never been extinguished. They recommended that iwi bring a test case to claim their rights. And now, that is finally happening:

Mataatua District Māori Council leader Maanu Paul is preparing a case for the High Court to determine whether native title in freshwater exists under New Zealand common law.

A landmark Waitangi Tribunal report in August found Māori have rights over fresh water in New Zealand, and Paul said the Tribunal had recommended the case be taken to the High Court.

"In order to progress the process which the Tribunal recommended - that the Crown and Māori sit down and work together - we have to get the government to accept that the decision of the tribunal is the one that they will ride with, and we have to get them to accept that the highest court in the land - the Supreme Court ruling - stands."

"When we're successful in the High Court it takes the status of the recommendation from the tribunal - from one of recommendatory only - to one of a mandatory position, and that's the difference we want to see."

The next step is obviously to use a favourable ruling to force a settlement. And I wish them luck with that. Because the case for Māori ownership seems pretty overwhelming. At the same time, they shouldn't have to do this at all. The Waitangi Tribunal has ruled, and a fair-minded government with a commitment to its Treaty obligations would have recognised this and sought a settlement. Instead, they're going to make Māori fight tooth and nail to claim what was theirs all along. Its unjust, and its also a huge waste of public money on lawyers.

But in addition to Māori finally getting justice, a definitive ruling should unblock the policy process over water, and allow us to move to a better regulatory structure. And we will have Māori to thank for it.

Northern Ireland joins the civilised world

Same-sex marriage has finally become legal in Northern Ireland. But not through any decision of the Northern Irish Executive or Assembly, which has only just reformed after a three year walkout by the DUP; instead, Westminster made that decision for them. I've talked before about the constitutional impropriety of this, but now that Northern Ireland has a government again, it also has to face the reality that there was always a majority in the Assembly for this, and the only thing stopping it was the DUP's veto. And if they try and repeal it, they are going to lose.

Meanwhile, gay couples in Northern Ireland will be freer to live their lives, and legal bigotry eroded, and that's something worth celebrating. And in a month, there'll be the usual photos of happy couples. We should all be happy with them.

Friday, January 10, 2020

Climate Change: The action that counts

Over on Newsroom, Professor Jacqueline Beggs writes about the action she is taking on climate change. Its the usual list: reduce meat, don't fly, consume less. I'm doing some of this myself, and none of it hurts - but the way our economic system is constructed means the impact of such actions is limited. Shifting to a plant-based diet is not going to stop the dairy industry, our biggest emitter, from poisoning our atmosphere, soils and rivers, because 95% of what it produces is exported to rich pricks overseas. Using public transport is not going to shut down the trucking industry, our next biggest polluter. Buying less crap is not going to stop Tiwai Point from using 10% of the country's entire electricity supply or help shut down Huntly and other fossil fuel power stations. And driving an electric car is not going to close off those gas wells in Taranaki or stop OMV from drilling for more in the Great South Basin. Sure, all of these tiny individual actions all add up, in the way that raindrops wear mountains down to dust - but its not the most effective method of reducing emissions.

What is the most effective method? Politics. All of those industries depend on regulation. And all of them can be regulated out of existence, or to pollute less and less until they cease to be a problem. And that means electing governments who will do that, and putting the pressure on parties to adopt climate friendly policies. Not bullshit half measures like giving agriculture a 90% pollution subsidy, or banning new fossil fuel exploration but extending existing permits forever and letting them dig up and burn whatever they find - but reducing those industries to a level consistent with human survival, and doing it as quickly as possible.

Currently our political choices are climate arsonists who don't care if we all burn to death (National); do-nothings who pretend concern but fundamentally refuse to upset the destructive status quo (Labour); or well-intentioned sellouts (the Greens, at least under their current leadership). These are not good choices. But putting pressure on parties will force them to change their positions and force stronger policies. And we do that by marching, by occupying, by speaking up and by voting. This is an election year, the year where our voices count, where politicians have to at least pretend to listen (and suffer the electoral consequences if they don't). So if you want real action on climate change, get involved and speak up. It's the only action that counts.

Tuesday, January 07, 2020

Labour opposes leisure

Correction: Finland's government has not in fact proposed a 4-day week, and its not even on their policy radar. OTOH, the point about Labour's response to the idea still stands.

Finland's new Prime Minister has made headlines by pushing for a 4-day week. So what does new Zealand's "centre-left" government think? Nope. They'd rather people kept working themselves into misery and death:

The Government does not plan to follow Finland's lead to encourage businesses to offer staff a four-day week.


Employment Minister Willie Jackson said it was not part of the Government's work programme.

"Instead we are focussed on ensuring we build a strong economy that all New Zealanders can participate in, through lifting the minimum wage to working with employers on projects such as our infrastructure investments and ensuring we are supporting the upskilling of our workforce through initiatives like Mana in Mahi."

You can talk about the productivity benefits, but fundamentally shorter working weeks are about distributing the benefits of growth to all as time: the one thing no-one is getting any more of. That's what the 40-hour week was about, and what subsequent struggles have been about. But instead of that, our government would rather those benefits took the form of greater profits to business owners. Which tells you whose side they're really on.

More Spanish repression

Back in December, the European Court of Justice ruled that jailed Catalan politician Oriol Junqueras was a Member of the European Parliament and therefore had immunity from prosecution. In a democratic state under the rule of law, he would have been immediately released from prison (and compensated for his illegal detention), as his "conviction" occurred after his election. Instead, Spain continued to detain him. And now, Spain's Central Electoral Commission has declared that he is no longer an MEP, on the basis of that purported conviction.

But it doesn't stop there. The Central Electoral Commission has also purported to unseat Catalan President Quim Torra, using anti-terrorist law, and in explicit violation of Catalonia's statute of autonomy (which places that power solely in the hands of the Catalan Parliament). The Catalan Parliament isn't going to accept this, and is going to assert its rights, which will set it up for another direct collision with the Spanish judiciary.

In both cases, the message is clear: elected Catalans will not be allowed to advocate for independence, no matter what the law says. Hopefully, higher levels of the Spanish judiciary will correct these decisions. If not, the European courts will. But its just another example of Spanish repression, and another reminder that if Catalans want to be free of it, they need to be free of Spain.

(And meanwhile, Spain's parliament is debating a new government, on which the abstention of the Catalan Republican Left is vital. They've extracted promises of direct government-to-government negotiations on independence, with a public vote in Catalonia on the outcome, and they've made it clear that they will pull the plug and topple the government if those promises aren't kept. But with repression continuing, and political prisoners still in jail, its an awful risk for the ERC, and they may be punished by their voters for it).

Monday, January 06, 2020

New Fisk

Trump is starting a war with Iran – whether it is by accident or design

Climate Change: Complementary measures

For the past twenty-five years, climate change policy in New Zealand has been all about emissions pricing. Policy makers thought that all you needed to do was make people pay for their pollution via a carbon tax or emissions trading scheme, and the problem would be solved. This mechanism was supposedly so perfect that no other policies were necessary, and in fact would be worse. Other than giving the public a bit of information on energy efficiency to steer them towards better choices, our emissions path would be left in the hands of the market.

We can blame Roger Douglas for this. His revolution was 35 years ago now, but it shaped a generation of policy makers and set the default ideology of the NZ policy community. Markets were efficient. Regulation wasn't. So, no regulation, except that done by the market.

As in other areas (e.g. leaky homes), the result of that policy has been dismal failure. First, from procrastination. Then, when we finally got an ETS, because it just didn't work. Part of that was because politicians strapped the chicken to keep carbon prices low, actively undermining their policy (something they are still doing, BTW). But partly, it turns out that markets are just a bit thick, a bit slow on the uptake, and (contrary to market dogma) perfectly willing to leave money on the table rather than change what they're doing (because change means risk, and nobody ever got fired for following the status quo).

Other governments understand that. And so they're perfectly willing to pursue a variety of policy measures to reduce emissions. And now, it looks like enough Rogernomes have died or retired to allow New Zealand to do the same. Right before the holidays, the government released a discussion paper on Accelerating renewable energy and energy efficiency. And it contains top-down regulatory proposals to sit alongside the ETS, to make sure the market gets the message. The most significant one is to outright ban the use of coal for process heat in factories except for high-temperature applications. Which is a no-brainer; there are cleaner alternatives (the Climate Change Commission has a whole report on this), and the sooner we push polluters towards them, the sooner emissions will drop. To allow time for existing users to change, the ban won't be immediate; it will initially ban any new builds, while existing users will have to upgrade by 2030. Which does not seem unreasonable. My biggest question is why they're not also including a (later) ban on gas, and why they're not also applying it to electricity generation. Because pretty obviously, there's no gain from electrifying dairy factories if the electricity which powers them comes from burning fossil fuels.

The other question of course is if we're doing it for coal in factories, why aren't we doing it for fossil fuel cars? Its the same argument: there are cleaner alternatives, and the certainty of a ban will force the market to adopt them quickly. And as with coal, we can stagger implementation to allow time to change: ban imports from 2030 (as many other countries are doing), and re-registrations from 2040 (to make sure the damn things get off the road and into museums where they belong). Twenty years to turn over the vehicle fleet doesn't seem too onerous, and with road transport our biggest source of emissions after agriculture, its something we need to tackle.

We are no longer welcome in Iraq

Last Friday, the US murdered a high-ranking Iranian general, ostensibly as retaliation for Iraqi militias attacking US troops in Iraq. It was a stupid move, a mistake as well as a crime (to misquote Talleyrand), and it is already having the expected effects: the Iranian nuclear deal is now completely dead (because the clear message of this murder is that Iran needs nukes if it wants the US to respect international norms), and the Iraqi Parliament has just voted to throw out all foreign troops, effectively refusing to be a venue anymore for the US's war on Syria. New Zealand currently has troops in Iraq (the numbers there are out-of-date; there should now be about 45 if cabinet's withdrawal timetable is being kept to), and the upshot is that they are no longer welcome. Instead of being there by invitation to "assist" Iraq, they are now invaders and occupiers.

This isn't what our government told us they are there for. The democraticly expressed wishes of the Iraqi government should be respected, and New Zealand troops should be withdrawn immediately. Bring them home, and keep us out of another stupid American mess.

Friday, December 20, 2019

Climate Change: We need this to happen more often

Farmers are outraged over approval being granted to Dryland Carbon - a dedicated New Zealand offsetting firm - to buy 1065 hectares of farmland on the east coast. It's taking land out of production, they say. People will never farm there again!

Yes, and that's the point. Farming is our biggest polluter, and if we want to cut greenhouse gas emissions, we need to do less of it. Which isn't really a problem, because we export 95% of what we produce, so we can do this without any impact on our food supplies. Add on to that that the mass clearance of native bush for farmland is one of the reasons we are in this mess in the first place.

Also, in this case the land in question is east coast hill country, which really shouldn't be farmed anyway. Turning it into a mix of native forest and pine takes it out of production and draws down some of the carbon we've spewed - in this case, about 750,000 tons. Which is quite a lot. Do it a hundred more times, and we've soaked up a year's worth of emissions.

The good news is that we don't need to do much to make this happen. Hill country sheep and beef farming is a marginal economic activity, and thanks to the ETS, its now less profitable than planting trees (and if carbon prices rise much higher, the value of averted farm emissions will be higher than the flow-on local business). Tough for those sorts of farmers, but good for all of us who don't want to burn down or drown. So, the quicker carbon prices rise to further incentivise this, the better.

Climate Change: Planning for failure again

Last night the government introduced its latest proposals for the Emissions Trading Scheme. While the Zero Carbon Act has established a process for setting long-term carbon budgets, the government still needs to set an interim one. In addition, it needs to set volumes for planned ETS auctions and the prices for the "cost containment reserve". Unfortunately, looking at the details, its just another plan for failure.

We'll start with the process: the government has set its budget by requiring emissions to hold steady at 2020 levels for two years, then decreasing them linearly towards the net-zero-for-everything-but-our-largest-polluters 2050 target. This gives them a provision budget of 354 million tons. They then deduct off everything that isn't covered by the ETS (agriculture), and the expected level of free allocation (big polluters), and an allowance for using up stockpiled Russian fraud (about a third of it). And this leaves them with an auction budget of 80 million tons for 2021 - 2025, as depicted below:

So far, so good. It seems sensible, even if there are uncertainties over free allocation volumes, or how many more credits will be stockpiled next year due to using the fixed-price option, or whether their new one will just make the whole budget a joke again. But there's a bigger problem, and that is that their chosen pathway is absolutely inconsistent with our 2030 Paris target. And they admit this explicitly:

The domestic emissions pathway proposed by the provisional emissions budget will mean that unless there are significant reductions in the second half of the 10-year period, we will need to find additional emissions abatement to meet our Paris Agreement Contribution over the period 2021–30. For example, if the emissions budget continued on the straight-line pathway towards the Zero Carbon Act 2050 target, an additional 63 Mt CO2-e of abatement would be required to meet the Paris Agreement Contribution budget of 601 Mt CO2-e between 2021–30. This difference in volume could potentially be achieved through international cooperation.
[Emphasis added]

So, they're planning to fail, and planning to hide that failure with more Russian fraud, just like they did with Kyoto. And even if you accept that this is legitimate, we're currently locked out of international carbon markets, and negotiations on reopening them fell over messily at the Madrid COP over some countries wanting to double-count and include bullshit and open loopholes for even more fraud, and those problems seem insurmountable. So its a hell of a gamble. Effectively, by committing to inadequate domestic action, they're going for hope as a policy again - and specifically, hope that someone else will do something, so we don't have to. This is neither sensible, nor moral.

Additional: I should note: we are in this situation because National set a target and then did absolutely nothing to achieve it. In fact, they did their best to increase emissions with pollution subsidies and Russian fraud (plus mega-roads, irrigation subsidies, and more oil drilling). But regardless: we have a target, and we have to meet it. And the government's response is basicly "nah, fuck that, too hard". And that is simply not good enough.

A victory for democracy in Catalonia - and in Europe

Back in May, jailed Catalan politician Oriol Junqueras ran in the European parliamentary elections as head of the Ahora Repúblicas. AR won 5.6% of the Spanish vote, enough for three MEPs. But Junqueras was not allowed to take his seat, after Spanish authorities refused to release him temporarily from pre-trial detention to complete the post-election formalities. In effect, like the British government before it, the Spanish government was claiming a right of veto over who the people could elect. And now, the European Court of Justice has said that that is not allowed.

The EU Court of Justice has ruled that jailed Catalan politician Oriol Junqueras had immunity from the moment he was officially elected to the European Parliament on June 13th, after Spain's electoral commission proclaimed the final election results. Thus, the European Court states that he should have been able to leave jail at that time and travel to Brussels to take office.

In a hearing of the Luxembourg court this Thursday morning, it was also ruled that if the Spanish Supreme Court believed that pro-independence leader Junqueras should have been kept in jail, it had to tell the European Parliament and ask for the suspension of his immunity.

The ruling is clear in its assessment of the facts at the time that they occurred and represents a slap in the face for Spanish justice whose correct course of action in the spring was to have either allowed Junqueras to travel to take up his office or to have asked for the removal of his immunity. But the EU court does not clarify in its ruling if the decision can be applied now, that is, if Junqueras should now be able to go free to perform his duties as an MEP in the European Parliament.

The question now is whether Spain will respect the ruling, or whether it will try and impede an elected MEP from going about his business. And if they want to do the latter, then the Socialists can kiss goodbye to any hope of Catalan cooperation in their attempt to form a government.

Meanwhile, Spain also blocked two other Catalan politicians, Carles Puigdemont and Toni Comín, from taking office. The ruling will also apply to them, and should allow them to immediately take their seats. Because it is voters, not governments, who choose MEPs, and if governments don't like the choices voters make, tough shit for them.

Thursday, December 19, 2019


The US House of representatives has just voted to impeach Donald Trump, making him only the third US president to earn that dubiou distinction. But before anyone gets their hopes up, this isn't any return to constitutional normalcy. Once the House votes for impeachment, the Senate is supposed to conduct a trial. And the Republicans who dominate that body have shown no indication that they will do that properly, let alone vote to convict by the required two-thirds majority. So, the constitutional checks and balances fail because they ultimately rely on some measure of honesty and good faith from politicians. And where the US is concerned, that simply cannot be relied upon.

Meanwhile, its worth noting: Nixon - the man who provides the benchmark for a criminal US president - had enough decency and shame to resign before he got to this stage. Trump doesn't. Which is horrifying in a way.

Climate Change: The scale of failure

The government released its Fourth Biennial Report under the UNFCCC today, setting out our emissions reduction targets, policies, and emissions projections. The projections paint a dismal picture of failure: we are not on track to meet our 2030 target, and we will meet our 2020 one only by relying on laundered fraudulent "credits". James Shaw is trying to be upbeat about it, calling it a starting point and a baseline for assessing the impact of his Zero Carbon Act. Which is true, but at the same time a huge chunk of that failure is his fault, for selling out to the dairy industry, delaying their entry into the ETS and then giving them a 95% pollution subsidy - removing any incentive for them to cut emissions.

Helpfully, the report quantifies the scale of that failure for us, with a table estimate the emissions impact of each policy measure:

So, the ETS, which covers the non-agricultural half of our emissions, is expected to reduce emissions by ~9.5 million tons a year in 2030. Meanwhile, agriculture, the other half, is expected to reduce emissions by 95 kT / year - about 0.27% of their total, or about 1% as much as the rest of us. To compare it with other policies, EECA's Efficient Products Programme, which promotes LED lightbulbs and puts energy-star stickers on fridges (so, taking a small amount off the ~8% of emissions which result from electricity use) is expected to save 234 kT/yr in 2030 - or about two and a half times as much as our most polluting industry. So, farmers are expected to do less to help than you buying an LED lightbulb.

And its worse when you consider that that 50% of emissions is produced by, as National keeps saying, 23,000 farming families. Who are expected to do a hundred times less than the rest of us, while being subsidised by us forever.

As I've said before, you cannot compromise with physics. If we are to achieve meaningful emissions reductions, let alone the ones necessary for human survival, farmers must do their part. And that means not just ending dairy growth, but a massive reduction in the herd. Anything less, and we are simply not going to be able to solve this.

Climate Change: Compromised

The Climate Change Commission is going to be a key body in determining future climate change policy. Under the Zero Carbon Act, it will effectively be responsible for setting long-term carbon budgets and emissions reductions plans, setting a long-term downward pathway for emissions, as well as reviewing the agricultural target ("effectively" because while formally they only advise the Minister, the clear intention of the Act is that this advice is always going to be followed).

Obviously, it would make no sense for someone like a fossil fuel executive to be appointed to the Commission. It would be a clear conflict of interest and undermine it from the outset. And yet, when the members were appointed on Tuesday, they included Nicola Shadbolt, a farmer and former Fonterra director. In other words, an advocate for New Zealand's most climate polluting industry, dairy farming.

This compromises the Commission from the beginning. They might as well have put someone from OMV on there. And because of this appointment, we can't have any confidence that the Commission will do what is required to control agricultural emissions, or recommend a strong target when the agricultural target is reviewed. And given that agriculture is our biggest source of greenhouse gases, and that we can't meet any credible target without massively reducing it, that is a problem.

Wednesday, December 18, 2019

The one thing the government is delivering on

Last year the government gave us the biggest ever increase in the minimum wage, from $15.50 to $17.70 an hour. This year, they're doing it again:

New Zealand's minimum wage will rise to $18.90 an hour from April 1, the Government has confirmed.

Workplace Relations and Safety Minister Iain Lees-Galloway said it would mean a quarter of a million workers were better off next year.

"The new $18.90 rate will mean an extra $48 per week before tax for Kiwis who work for 40 hours on the current minimum wage," he said.

Which means they're on track for another increase to $20 an hour in April 2021, as promised in their confidence and supply agreement with the Greens. Which will mean that they will have increased the minimum wage by 20% in their first term - which should deliver a significant benefit to workers, both directly for those on the minimum wage, and indirectly by ratcheting up other wages in response.

This is the one thing the government is delivering on. They've failed on child poverty, on KiwiBuild, and on climate change; on banning mining on conservation land, on public media, and on transparency. But they've succeeded on this. Its something, but its nowhere near enough.

What is Archives New Zealand scared of?

What is Archives New Zealand scared of? We're not allowed to know.

All government agencies should be maintaining risk registers of threats to their operations and what they do. Its simply good planning: by knowing about a threat - like the potential for earthquakes, or fires, or corrupt staff - you can take precautions against it, limit the damage it can do, and keep providing services to the public. Someone was interested in whether Archives New Zealand was properly taking care of our taonga and protecting it against the many risks it faces, so they used FYI, the public OIA request site, to ask for copies of their risk register. This request should have been unproblematic: its a formal document, containing factual information, with only limited scope for withholding. But Archives refused the request in its entirety as "free and frank opinion".

That's bad enough - given the nature of a risk register, the "free and frank" clause simply shouldn't apply here, and obviously fully withholding them rather than releasing with limited redactions contravenes the OIA. But then it got worse: someone purporting to be a whistleblower from Archives posted a comment under the request saying that the stated reason for withholding the information was "not entirely true":

What happened is that there is a situation that exists in one of our other buildings. Some of the staff there were really worried about it and went to outsiders for help. One thing led to another and there were some newsmedia articles about it. The ELT found it really embarrassing.

The same kind of situation exists here at archives and has for as long as any of us remember. Its of enough concern that its in our risk register. The ELT are worried that if the register is released the media will pick up on it and there will be more newsmedia articles. Thats why you got fobbed off.

Which seems to be referring to the report that Archives has a problem with superstitious staff. But this is simply illegal. As the Danks Committee said,
The fact that the release of certain information may give rise to criticism or embarrassment of the government is not an adequate reason for withholding it from the public.

(I'd go further: it seems to be a positive reason for release, since it suggests they need to be held accountable for something, and that they fear that accountability).

Archives New Zealand seems to have violated the OIA here, and hopefully the requester will appeal to the Ombudsman. But also, it seems that a meta-request for their records of how they considered this request could be fruitful. Except no doubt they'll consider that to be "free and frank opinion" as well. Which simply shows that the primary purpose of that clause is to protect unprofessional or illegal behaviour.

Tuesday, December 17, 2019

Judicially review the OMV decision

Today the Environmental Protection Authority granted consent to Austrian oil-giant OMV to drill for oil and gas in the Great South Basin. Its a decision which makes no sense, given our need to reduce emissions: we can't burn the oil and gas we already have and stay within the planet's carbon budget, so there's simply no point looking for more. But the EPA was statutorily forbidden from considering that, so they just rubberstamped it instead.

Which may have been a mistake. Because while the EPA was considering the application, Parliament passed the Zero Carbon Act. Which included a clause allowing any decision making body to take the climate change targets, budgets, and reduction plans into account in any decision. The EPA didn't do that, and they weren't required to in terms of the Act. But given the subject matter of the application, it may have been irrational for them not to do so. Because pretty obviously, if they find oil or gas, its going to pose problems for meeting our 2050 target (sadly, there's no emissions budgets or reduction plan in place yet, but it'd obviously pose a problem for them too).

What about the statutory ban on considering climate change? Well, it only forbids the EPA from considering "the effects on climate change of discharging greenhouse gases into the air". Effects on targets, budgets and reduction plans are different from that, so s5ZN CCRA consideration is not barred by s59(5)(b) of the EEZ Act.

In other words, judicial review is on the table. It would be weak, without budgets and reduction plans, and isn't the ideal test case. There will be later opportunities - for example, if they find oil, then they will need a resource consent for any extraction operation, and there should be a budget and reduction plan in place by then as well. But Parliament deliberately modified this clause to "allow the common law to develop" - that is, to encourage challenges. It might be worth doing it, simply to get a ruling on the interaction of s5ZV and the EEZ Act and RMA bans on climate change consideration, and to see the circumstances where the courts believe decision makers should consider climate change issues.

Daily secrecy

Another day, another secrecy clause from this secretive government. This time its in the seemingly boring looking Financial Market Infrastructures Bill, which is about stock exchange and bank settlement regulation. It uses existing bodies subject to the OIA as regulators, and gives them powers to require information both from each other and from market participants. And it adds the now-standard secrecy clause forbidding disclosure of any information acquired in such a manner. As I noted last week, these clauses oust the jurisdiction of the OIA, and exist primarily because public sector agencies do not trust the Act or each other to protect information. Again, public sector dysfunction is being used to undermine the public's right to know, and we should not tolerate it.

The HRC on hate speech

The Human Rights Commission has published a paper today on Kōrero Whakamauāhara: Hate Speech - An overview of the current legal framework. It examines the principles behind hate speech regulation, as well as current New Zealand and international law. While it draws no formal conclusions, it is clear from that examination that New Zealand law is lagging.

The principles section makes clear that the purpose of hate speech laws is not to prevent offence, but to prevent incitement, discrimination, and the undermining of shared membership in society. They are fundamentally about protecting public order, and people's right to participate in society and be themselves. While there are obvious freedom of expression arguments against restricting hate speech, there is also a right - recognised in New Zealand and international law - to be free from discrimination. Proper regulation requires balancing those rights (just as electoral advertising restrictions involve balancing freedom of speech and the right to free and fair elections).

The international law section reviews those competing rights, both in treaty texts and interpretive rulings. Its worth noting here that in international law, freedom of expression - protected by article 19 ICCPR - is bound by both the general limits of public order, public health, and public morals (whatever those are), and explicit restrictions against war propaganda and "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence". Those provisions were an explicit response to Naziism, and are now interpreted more widely to also protect sex, religion, political opinion, sexual orientation and gender identity, disability and refugee status - basicly anything ordinarily protected under anti-discrimination law. New Zealand has a reservation against that article, but that doesn't mean its not an international standard that we are failing to comply with. And if we're going to move in this area, then removing that reservation seems like a good idea.

Finally, there's a review of laws from other countries, including Australia, Canada and the UK - at least two of which have similar human rights regimes to ours. So we have models to draw on, and caselaw that can be examined to determine their practical effects in deciding what to adopt here.

I've previously been highly suspicious of hate speech laws, misunderstanding them as being about offence rather than protecting participation, and being cautious about potential abuses (both by future governments, and private groups - the religious fanatics who have tried to bring private prosecutions for "blasphemous libel" would probably try and use them to victimise people). I'm still cautious about the abuses, but its clear that we have not balanced the rights to freedom of expression and freedom from discrimination correctly. We need to act on this. The HRC's paper is a good start in deciding what to do.

Monday, December 16, 2019

Gun nuts say they're criminals

The government gun buyback ends this week. One problem with the buyback is that, thanks to our previously lax gun laws, the police have no idea how many soon-to-be-illegal guns are actually out there. And the gun-nuts are keen to paint it as a failure by claiming that most of them haven't been turned over:

Gun rights advocates claim around two-thirds of banned firearms are still circulating and they worry the weapons could end up in the hands of criminals.


The council's national secretary Nicole McKee said the process had been very rushed and believed there could still be at least 170,000 prohibited firearms in circulation.

The police and the government "have left it really late to define a lot of those rules. From October the 25th a new list of prohibited firearms were brought in," she said adding that that was far too late and too little notice for people to respond.

"Once people realise they are going to go to jail for possession of these firearms they won't want to be holding them. So it will be really unfortunate if these firearms make their way to the black market because they're too afraid to hand them in."

They won't need to be sold on the black market, because after Friday they will already be in the hands of criminals, in that possessing a previously legal semi-automatic firearm will be a crime puishable by five years in jail. So when COLFO and other gun nut organisations say "gun nuts aren't turning over their guns", what urban New Zealand hears is "our supporters are criminals". And given what these weapons do, and the more than fair chance that has been provided to dispose of them lawfully, there will be little sympathy when they face the consequences of their pre-meditated criminality.