Still against a four-year term

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

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

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

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

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

A reversal on secrecy?

For the past few years I've been waging war on secrecy clauses, submitting at select committee where clauses in legislation seem to over-ride the Official Information Act. One of the drivers of this was a 2014 decision by the Ombudsman (unpublished, but posted here), where they interpreted an exemption in one of the Climate Change Response Act's confidentiality clauses, which allowed information to be released "as provided under this Act or any other Act" as not actually allowing release under the OIA:

I am not persuaded that the OIA is an Act that provides for the disclosure of information in s 99(2)(a) of the Climate Change Response Act. The OIA confers a right to request official information and requires that such requests be processed in accordance with its provisions, but those provisions do not provide for the disclosure of information under the CCRA (or any other Act that imposes restrictions on the availability of official information). Instead, section 52(3)(b)(i) of the OIA provides that nothing in that Act derogates from any provision which is contained in any other Act which imposes a prohibition or restriction in relation to the availability of official information. Section 99 is such a section.

Accordingly, the OIA does not override the restrictions imposed by section 99 of the CCRA and it would be contrary to that section for the requested information to be made available to you. Consequently, section 18(c)(1) of the OIA provides a reason to refuse your request on that basis.

Since then such clauses have unfortunately become a regular feature of legislation, as business interests have lobbied for statutory secrecy to over-ride our democratic right to transparency.

There is a good argument that the Ombudsman's 2014 decision was incorrect, and that a BORA-consistent interpretation of the clause (as required by s6 BORA) would interpret it as giving effect to the right to freedom of expression, which includes the right to receive information and is internationally recognised as including a right of access to government information. And it seems that the Ombudsman has been persuaded. The new Offshore Renewable Energy Bill includes a similar secrecy clause to that in the Climate Change Response Act, with an exemption allowing release where disclosure is "required" (rather than merely "provided" by) other legislation. And in their submission, the Ombudsman says that this does not oust the OIA:

The Official Information Act 1982 (OIA) appears to be one such piece of ‘other legislation’ that may require commercially sensitive information or personal information to be released, on request under that Act.

They also highlight the constitutional nature of the OIA, and go on to say that:

The Ombudsman therefore generally is of the view that Parliament would only derogate from, or limit the application of, the OIA through clear and direct legislation to that effect.

Which is a similar approach to that taken by the courts on the BORA, or te Tiriti.

Taking the Ombudsman at their word suggests that many existing secrecy clauses - at least those prohibiting disclosure but with "required by" exemptions - may not in fact limit the Act, and certainly won't be interpreted that way by the Ombudsman should the matter come before them in a complaint. But of course there's only one sure way to find out...

National doesn't want you to know what people think of the Regulatory Standards Bill

Back in January the government held a public consultation on its draft Regulatory Standards Bill. The bill is a piece of neoliberal bullshit which seeks to bind all future lawmaking to some highly contentious (and not public accepted) Libertarian ideological principles, in an effort to deter future lawmaking with the threat of endless lawsuits. It also completely ignored te Tiriti o Waitangi - something which has resulted in an urgent claim to the Waitangi Tribunal. Understandably, this resulted in a high degree of public interest, despite the government scheduling the consultation over the holidays when it expected everyone to be asleep.

The normal practice in this day and age is for public submissions on such consultations to be proactively released. However, the bill's consultation document made no commitment to doing so. It did however include the usual boilerplate warning people that their submissions were subject to the Official Information Act, and asking them to clearly identify any material that they did not want released. So, armed with that notice, OI requested the submissions, taking care to note that a proactive release would completely satisfy my request. The Ministry refused, claiming that preparing all 23,000 submissions would require "substantial collation and research". I am not sure that this is legally true, given the Ombudsman's guidance on the topic. It may be a substantial amount of work, but given that the information is clearly identifiable, held, and sitting right there in a (metaphorical) pile, it is not "collation and research" in terms of the Act. There's also a clear issue here of the Ministry's duty under the Public Service Act to "foster a culture of open government", which you would think would require adhering to accepted practices about publicly releasing submissions.

Still, we've learned something: 23,000 people submitted on this draft bill. Which is an unprecedented level of interest in such a consultation.

While the Ministry promises a summary of submissions, this is not actually a substitute for the submissions themselves, for being able to read in people's own words what they think of the bill. And you have to wonder whether Rimmer's hand-picked ideologues at his pet Ministry will fairly represent the public's views in that summary. Public release is a useful check on this.

But one thing is clear: the government doesn't want you to know what the public think of their draft bill. Which invites the question: what are they afraid of?

Fiame stares down her corrupt party

Back in January, Samoan cabinet minister La’auli Leuatea Schmidt was charged with attempting to pervert the course of justice. When he refused to resign, samoan prime minister Fiame Naomi Mata'afa sacked him - triggering a political crisis. Because a majority of her political party felt that she should have not just kept him in office, but protected him from being charged in the first place - and felt so strongly about it that they voted to throw her out of the party and then attempted to have her thrown out parliament and removed as prime minister under anti-party-hopping legislation. Since then Fiame has sacked half her cabinet for disloyalty, and there has been speculation that her government would collapse, forcing early elections.

But it seems that FAST has blinked. Because when a confidence vote was finally held in parliament, they voted for Fiame, rather than rolling her. I guess they were really afraid of elections after all (Samoa's constitution explicitly permits a PM toppled in a confidence vote to call an election, unlike Aotearoa, where calling an early election requires the confidence of the House).

Meanwhile, you have to wonder what went wrong when a party which ran on an explicit platform of ending HRPP abuses and corruption now wants to behave in exactly the same way. You can now see which MPs actually believe that: the ones who have stayed loayl to Fiame. As for the rest, I guess we just have to hope that Samoans will throw those corrupt arseholes in the trash where they belong.

Germany keeps the fascists out

Germans went to the polls today, in what looks to be their most important election since 1945. The good news is that they seem to have kept the fascists out, with the Putin/Trump/Musk-backed Alternative für Deutschland coming second and effectively excluded from power. Instead, it looks like a Christian Democrat / Social Democrat coalition is the only viable government - the Greens don't have the numbers to get the CDU to a majority, and no left coalition is possible. Which will be bad for the Social Democrats again, but there are definitely far worse coalition outcomes.

The presumptive chancellor, Friedrich Merz, has made it clear that he is unhappy with Trump and Musk's attempted election interference, and that he considers the alliance with America to be dead. Which is a hell of a turnaround in a country that used to be a core US ally. But I guess that's what happens when America starts betraying its friends, and if it means a Europe which is no longer a US vassal, but instead stands for its own interests, that doesn't sound like a terrible thing at all.

As for AfD, they've already been classified as an extremist organisation by the Federal Office for the Protection of the Constitution, and there's a real possibility of the party being banned. That of course doesn't solve the problem of its voters, who will no doubt simply switch their allegiance to whatever neo-Nazi vehicle Putin/Trump/Musk fund for them next. So hopefully Germany's new government will put some work into defending German values and stopping the AfD's radicalisation pathway (rather than the present tactic of trying to imitate them).

Something to go to in Wellington

Climate Liberation Aotearoa will be holding a rally outside the Wellington District Court on Monday in support of climate defenders:

If you support the climate, or support the right to protest - currently under attack from the secretive IPCA - then please go along.

Investing in a stranded asset

In 2021, RefiningNZ, the owners of the Marsden Point oil refinery, took a hard look at its future, and decided that it didn't have one. The refinery was shut down and dismantled. But now Chris Luxon wants to build a replacement:

Prime Minister Christopher Luxon says the coalition Government is considering whether to build a new oil refinery amid the country’s energy production challenges.

It comes as the Government’s report investigating New Zealand’s fuel resilience, including the potential re-opening of the Marsden Point oil refinery, is expected to be released in the coming weeks.

[...]

Asked if he would build a new refinery, Luxon said: “Well, we’re going to go look at that, that’s something we’re going to look at”.

This is simply madness. The underlying reason for Marsden Point's demise - collapsing demand for fossil fuels - has not gone away, and if anything, has got worse. When banks are refusing lending to petrol stations because they're a long-term credit risk, you know that petrol and diesel just don't have a future. And while Channel Infrastructure projected continuing demand for jet fuel, that's just one technological shift away from a similar collapse.

Basically, Luxon is proposing that we spend $8 billion to build an asset which will likely be immediately stranded upon its completion. This is what Luxon calls "better economic management". And that's not even considering the emissions impact, which will be significant enough that the next government will have to cancel it to stay within our emissions budgets. But clearly Luxon doesn't care about those, despite meeting them being officially on his government's KPI list.

If the government really wanted to invest in fuel resilience, it would be investing in electrifying our vehicle fleet as quickly as possible. Because we don't need to import electrons from unstable foreign despotisms; they're produced right here in Aotearoa, from the wind and the rain and the sun. Every EV we use saves the country money, and is a boot in the nuts to the petro-tyrannies. It means cleaner air, lower health costs, and higher living standards for kiwis. But how does that help Luxon's rich mates?

Drawn

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

• Sale and Supply of Alcohol (Sales on Anzac Day Morning, Good Friday, Easter Sunday, and Christmas Day) Amendment Bill (Kieran McAnulty)
• Enabling Crown Entities to Adopt Māori Names Bill (Shanan Halbert)
• Financial Markets (Conduct of Institutions) Amendment (Duty to Provide Financial Services) Amendment Bill (Andy Foster)

So, I guess we get to see now whether National will vote to force banks to fund climate destruction. And if they do, then I guess we'll see later whether Labour will vote to permanently ban banks from doing so. Because actions have consequences, and if they push, we're gonna shove back.

IPCA hides behind secrecy

On Tuesday, the "Independent" Police Conduct Authority issued an extraordinary report, proposing a complete rewrite of protest law to enable the police to restrict public protests and ban them at a whim. While packaged with several complaints in an appendix, the focus of the "thematic review" was clearly the provision of policy advice - something arguably outside the IPCA's functions. It is normal for other agencies providing policy advice to provide supporting documentation - submissions, briefings, communications, policy documents, and so on - either proactively or via the Official Information Act, so that the public can see that it is well-founded, that all relevant stakeholders have been consulted, and that the policy process has not been captured by any one group.

The problem of course is that the IPCA is exempt from the OIA. Nevertheless, I asked them to provide this information to give the reassurance we deserve in a free and democratic society that they were doing their job properly. They refused, saying

To support our work, our Act contains secrecy provisions and our proceedings and any evidence given to us are privileged. We do not collect statistics about the affiliations of our complainants or submitters and we are not able to release any of the information you request.

Those secrecy provisions however do enable the authority to disclose "such matters as in the opinion of the Authority ought to be disclosed... in order to establish grounds for the Authority’s conclusions and recommendations". The authority's refusal to do so in this case can only lead to the conclusion that they do not believe we ought (or deserve) to know the full basis for their policy advice. That they should be able to recommend significant law changes, while keeping the evidentiary basis (and supporting submissions, briefings, arguments, and testing of their conclusions) completely secret. And that is simply unacceptable in a free and democratic society.

The IPCA's exemption from the OIA has long been noted as anomalous. Its secrecy provisions exist to ensure that complaints can be heard in confidence - an interest already protected by the OIA, and which is protected in other ways for other complaints bodies otherwise subject to the Act. But as long as it stuck to its functions - hearing complaints - that didn't matter so much. Now it is giving significant policy advice, it is a different story. Complaints bodies have a case for limited secrecy around that function. But the idea that government agencies can develop policy in total secrecy is simply monstrous, and incompatible with a free and democratic society. It is precisely the problem that the OIA was enacted to solve.

Rather than rewriting protest law, I think it is time we rewrote the Independent Police Conduct Authority Act 1988. That rewrite must include a complete reassessment of IPCA secrecy, a narrowing of it to protect only the legitimate complaint functions, and the inclusion of the IPCA under the OIA - enabling us to properly scrutinise its administrative and policy work, as well as abstract statistical data on its complaints and outcomes. This would give us much-needed transparency over the IPCA, enabling us to better hold them - and through them, the police - to account.

The alternative is that the IPCA continues to be above the law and effectively unaccountable. The implications for its legitimacy and social licence - and those of the police they supposedly oversee - are left as an exercise for the reader.

Showing the Americans how to do it II

In 2022, Brazilian voters kicked president Jair Bolsonaro out of office. He responded with an attempted coup. And now, he's being prosecuted for it:

Jair Bolsonaro, Brazil’s former president, was charged Tuesday with overseeing a vast scheme to hold on to power after he lost the 2022 election, including one plot to annul the vote, disband courts and empower the military, and another to assassinate the nation’s president-elect.

The accusations, laid out in a 272-page indictment, suggested that Brazil came strikingly close to plunging back into, in effect, a military dictatorship nearly four decades into its modern democracy.

Brazil’s attorney general, Paulo Gonet Branco, indicted Mr. Bolsonaro and 33 other people, including a former spy chief, defense minister and national security adviser, accusing them of a series of crimes against Brazil’s democracy. The charges essentially adopted recommendations from Brazil’s federal police made in November.

This is how democracies defend themselves: with law and criminal charges. And as with South Korea, the contrast with America couldn't be clearer. And the refusal of America's political elite to defend their democracy and constitution from a violent insurrectionist is now having consequences all around the world.

Member's Day

Today is the first Members Day of the year. First up is a local bill, the Auckland Council (Auckland Future Fund) Bill, which is pretty boring. And then we get some fireworks, with the Committee Stage of Camilla Belich's Crimes (Theft by Employer) Amendment Bill. This made it past its second reading after surprise support from NZ First; today we'll get to see if that will continue. Will employment law be significantly improved because the coalition parties hate each other? If so, we should take the win. There's also an amendment paper from BelichNZ First which would remove the softer penalty for thieving bosses, and use the standard one under the Crimes Act. So, employers who steal more than $1000 by refusing to pay their workers would be looking at seven years, the same as someone who steals more than $1000 by any other means. On the one hand, this doesn't go far enough - being an employer is clearly a position of trust in relation to employee wages, so the higher penalty for theft by person in a special relationship should apply. OTOH, most thieving employers will be stealing more than $1000, so it might not make much difference. It will be interesting to see if NZ First votes for this as well.

Following this is the second reading of Deborah Russell's Companies (Address Information) Amendment Bill, and then the first reading of Marama Davidson's Consumer Guarantees (Right to Repair) Amendment Bill (backed by ConsumerNZ), which would see us allowed and empowered to fix our broken stuff, rather than throwing it in the trash. The House should then make a start on the first reading of Hūhana Lyndon's Public Works (Prohibition of Compulsory Acquisition of Māori Land) Amendment Bill, which the racist government will almost certainly vote down. There should be a ballot for two new Member's Bills tomorrow, or whenever they're holding them these days.

Police want to ban protests

The "Independent" Police Conduct Authority issued a radical report today, a Review of the policing of public protests in New Zealand, in which they propose a complete rewrite of protest law, to restrict public protests and enable the police to ban them at a whim. Protest organisers would be forced to notify police of their intention to hold a protest (and would be liable for police overtime if reality moved faster than the police's sclerotic bureaucracy); police could impose conditions about who could do (or say) what and where; violating those conditions would be a crime; and there would be new criminal offences for protesting against "critical infrastructure" and picketing private residences (the latter something the Supreme Court has found to be legal, and which the police are particularly sore about because the target of the protest in that case was an abusive cop). The proposals are a serious and direct threat to the right to protest in Aotearoa, and are explicitly based on laws from anti-democratic regimes such as the UK and Australia.

Its a huge overstepping of their powers by the IPCA, whose functions include hearing complaints and making recommendations on "apparent misconduct or neglect of duty by a Police employee, or any Police practice, policy, or procedure", but do not include "law reform" or "giving policy advice", and perhaps in recognition of that, the recommendations are framed as recommendations that the police propose these changes (so: the IPCA laundering their views through the police. But see later...) As the New Zealand Council for Civil Liberties' Thomas Beagle puts it, "Has the IPCA got confused into believing that the PC in their name is for Public Conduct rather than Police Conduct?"

Except its worse than that. Because when you dig into how the IPCA came to do this questionably legal "thematic review", they say:

the need to undertake this review was discussed and agreed with Police from an early stage, and some components of the review have been conducted jointly with Police.

...which invites the conclusion that the police are in fact laundering their policy preferences through the IPCA, which is collaborating with them to give these anti-democratic proposals an imprimatur of "independence". So, the police are laundering through the IPCA, who are laundering through the police, but its cops all the way down. And this shoddy deceit by a supposedly "independent" oversight body makes it crystal clear which side they are really on.

So who else did the IPCA consult in this review? The Ministry of Justice and Department of Internal Affairs, and "stakeholders", including "frontline officers" and "academic and policing experts" from New Zealand and "comparable jurisdictions including the United Kingdom, Northern Ireland and some Australian states". Given their anti-democratic record, the latter are the absolute last people I would ask about protest rights, and the fact that they were consulted suggests a predetermination to suppress protest. Meanwhile, note who is absent from that list: protestors and civil society groups. They've done a big report on how protest law isn't working (for who?), while failing to consult the major "users" (for want of a better word) of that law. And its hard to escape the conclusion that this affected the outcome significantly.

How? Well, the report starts with a summary of protest law, starting with the international and domestic human rights framework, including Article 21 (right of peaceful assembly) of the ICCPR and sections 14 (freedom of expression), 16 (freedom of peaceful assembly), and 17 (freedom of association) of the New Zealand Bill of Rights Act. The latter of course are subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". And this is where it gets weird, because the IPCA - which is led by a High Court Judge and whose members are a pair of former senior public servants with experience across the justice and police portfolios - pretends not to understand the law, with repeated statements that what constitutes a "justified limitation" is unclear:

there is no general legislative definition of what reasonable limitations might look like, nor how reasonable limitations might be applied in the protest context

There is of course 35 years of jurisprudence on both of these things, including a detailed framework for the assessment of justified limitations, and a pile of caselaw around protest rights. The IPCA even refers to that caselaw later in the report, but largely to pretend that the law is "uncertain" when it is not. Largely they seem to be whining that when stuff gets to court, police decisions are overturned. Which, again, is a clear sign of bias from the IPCA.

They keep hammering this idea that the law is "imprecise", quoting the UNHRC's General Comment No. 37 on Article 21 (Right of peaceful assembly) that protest laws be

sufficiently precise to allow members of society to decide how to regulate their conduct and may not confer unfettered or sweeping discretion on those charged with their enforcement.

And this is where their failure to consult protest groups really shows. Because if you asked kiwis what we are allowed to do, we would say it is perfectly clear: we are allowed to protest peacefully (and as GC37 notes, "Mere pushing and shoving or disruption of vehicular or pedestrian movement or daily activities do not amount to “violence”"). Protest groups who trespass or block roads are not doing it because they think it is legal - to the contrary, they know it is not, and they expect arrest, and maybe prosecution. And that's one of the many tactics of protest, and All In The Game.

Instead, the people who seem to have an unclear understanding of the law here are those charged with enforcing it. But rather than educating themselves, with better training and a nationally consistent approach, they would rather limit our rights, limit our democracy, gag us, essentially for their own convenience. And it is for their own convenience, as their complaints about the overtime costs of policing protests, or having to manage traffic for a march down Riccarton Road, or their question about whether "the availability of staff and the impact of their deployment on other Police operations... is relevant to an assessment of reasonable limitations on protest activity" show.

The police are basically demanding the very "unfettered or sweeping discretion" to shut down protest the UN HRC rules out, as well as financial penalties against those who do not cooperate in their oppression. We should not let them do it. All political parties should denounce this assault on our right to protest. And those that don't should be vigorously de-elected.

Restore birthright citizenship

In 2005, Labour repealed the long-standing principle of birthright citizenship in Aotearoa. Why? As with everything else Labour does, it all came down to austerity: "foreign mothers" were supposedly "coming to this country to give birth", and this was "put[ting] pressure on hospitals". Then-Immigration Minister George Hawkins explicitly gave this as the reason during the law's first reading debate, saying:

Some people may come to New Zealand on temporary permits solely to give birth, so that their New Zealand - born children are citizens. Under current law those children are entitled to access publicly funded services such as health care and education. Restricting citizenship by birth will ensure that citizenship and its benefits are limited to people who have a genuine and ongoing link to New Zealand.

Twenty years later, and we're seeing the cost of this change: kiwi kids being threatened with deportation to foreign countries. And while public outrage seems to have caused the Minister to rethink, this should never have happened. People who were born here, have grown up here, have never known anywhere else should not be exiled from their country, or victimised due to the legal mistakes of their parents.

We should learn this lesson, and fix the underlying law which threatened to result in this injustice. And that means restoring birthright citizenship, not just to those born here in future, but also to those immorally deprived of it by the Clark government's cruel penny-pinching. And if the current government wants to quibble over this, we should ask them: are they really that small?

(And while we're at it: we should restore relationship rights too, so kiwis can be with the people they love).

PPPs are still a rort

On Thursday, infrastructure minister Chris Bishop was wanking in the House about the benefits of Public-Private-Partnerships (PPPs). So how do they work out in practice? We all know Transmission Gully is a complete shitshow which ultimately had to be completely restructured after the contractor simply refused to complete the work. Meanwhile, in the UK, the first 25-year "build-own-operate" contracts for schools under their Private Finance Initiative are about to end. And of course its a disaster:

Stoke council bosses are locked in dispute over almost 3,000 school building issues just months before England’s biggest education private finance initiative (PFI) contract ends.

Local authority chiefs in Sheffield also fear legal action from trusts if they fail to ensure a PFI company meets contractual obligations to return schools back to state ownership in good condition.

Meanwhile, multi-million-pound court rows have also erupted in Lancashire over alleged defects in a number of schools built through similar deals, which are now coming to an end.

The core problem: maintenance spending costs money, which means lower profits, so PFI contractors didn't want to spend it, instead choosing to run the infrastructure into the ground. And while they have a clear legal requirement to make good at the end of the contract, they are basically taking a "fuck you, make me" approach in an effort to preserve their profits. And national wants to do this to our courthouses and defence bases, not to mention schools and hospitals.

But its not just them. Because it turns out that Labour also loves PPPs - anything to hide debt and make the books look good, while kicking the can down the road. Anything rather than live up to their name and properly tax the rich to pay for the infrastructure and services we need.

We shouldn't let them. PPPs are a rort, which result in the public getting screwed. And any politician who thinks otherwise is either stupid or on the take, and needs to be de-elected.

United States of betrayal

As expected, Donald Trump just threw Ukraine under the bus, demanding that it accept Russia's illegal theft of land, while ruling out any future membership of NATO. Its a colossal betrayal, which effectively legitimises Russia's invasion, while laying the groundwork for the next one. But Trump is apparently fine with that too.

That's bad, but then it got worse, with US Defence Secretary (and chief drunk) Pete Hegseth effectively withdrawing the US from NATO, and telling Europe that it would not defend it:

Donald Trump’s newly appointed defence secretary told allies on his first international trip that the US was no longer “primarily focused” on European security and that Europe would have to take the lead in defending Ukraine.

[...]

The Pentagon chief said he was “here today to directly and unambiguously express that stark strategic realities prevent the United States of America from being primarily focused on the security of Europe”, though the language was notably toned down from a draft briefed in advance to the press.

I'm not exactly a fan of NATO, given its recent use as American expeditionary foederatii. But I'm willing to acknowledge that its original mission of deterring war in Europe was a necessary evil during the cold war, and one that has unfortunately - thanks to Putin - become necessary again. So the US basically abandoning it, and telling Putin "go ahead; invade the Baltics!", is terrible. It makes the world a much less safe place. It also tells the world that America's word can't be trusted on anything, even things which have been considered absolutely crucial for 75 years, and so no-one should make any deals with them - but that really sounds like an "America" problem now.

But its terrible for another reason too. Because NATO served another important purpose: nuclear non-proliferation. As long as NATO members felt that the US would defend them, including by deterring nuclear attack, they did not need to develop their own nuclear deterrent. And now that the US has said "we will not deter for you", that sets a very unpleasant precedent. Putin's invasion of Ukraine - a country which voluntarily gave up nuclear weapons - sent a very clear message that if countries with aggressive neighbours wanted to be safe, they needed nukes. US support for Ukraine (and for NATO) may have kept a lid on that. But now that that support has been withdrawn, and no country can rely on US promises, there is a clear incentive for those countries to get their own bombs. And that means not just Ukraine and Poland, but also Taiwan, South Korea, and Japan.

Nuclear weapons are dangerous. A world with more nuclear-armed states is a more dangerous world, with more trigger points for nuclear war, and a greater chance of nuclear famine. And the incentives set by nuclear weapons, to strike before your enemy can deter, leads to greater instability (just look at the last twenty years duelling between the US/Israel and Iran). So by betraying its allies and abandoning its commitments, the US has made the world a much more dangerous place for everybody. They've committed us to nuclear proliferation, regional arms races, and global instability. And as Eisenhower said, that has a cost: "every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed".

So, fuck Trump, and fuck America. And fuck their boss Putin, for starting this shitfest in the first place. They're wrecking the world. The quicker they're all run out of office, the better.

Drawn

A ballot for a single member's bill was held today, and the following bill was drawn:

• Employment Relations (Collective Agreements in Triangular Relationships) Amendment Bill (Adrian Rurawhe)

The bill would extend union rights to employees in triangular relationships, where they are (nominally) employed by one party, but actually under the control and direction of another (which means many cleaners and contingent workers, but also parliamentary staff). So we can probably expect national and its crony coalition to vote it down.

National's BORA-violating attempt to repeal prisoner voting rights (again) is still in the ballot. Which shows how little they care about our constitutional norms.

Its almost as if there's a pattern here...

In 2016, Aotearoa shockingly plunged to fourth place in the Transparency International Corruption Perceptions Index. Nine years later, and we're back there again:

New Zealand has seen a further slip in its global ranking in the latest Corruption Perceptions Index (CPI).

[...]

In the latest CPI New Zealand's score fell from 85 to 83, dropping its ranking to fourth place.

With Singapore moving into third place, it also bumped New Zealand off the top rank in the Asia Pacific region.

Previously considered a world leader in integrity and transparency, for many years New Zealand scored 'least corrupt' alongside Denmark.

Why? Transparency International Aotearoa blames a failure to keep up with international anti-corruption norms. Successive governments have still refused to reform political donations, ensure transparency around political lobbying, or create a public beneficial ownership register to ensure we can see who is really bribing or buying who. But in addition to that, there's just the way National does business. Last time, I highlighted "[t]he Saudi-sheep bribe. Sky City's crony casino deal. Oravida... wall-to-wall crony appointments and a politicisation of the OIA". This time round I'd point the finger at the fast-track law, undeclared conflicts of interest, and of course that same continuing pattern of wall-to-wall crony appointments and politicisation of the OIA. All of this creates a stench of corruption around the government, and around the state as a whole, leading to declining public confidence and legitimacy. If Parliament wants to do this, it knows how to fix it. If it consistently refuses to do so, we can draw our own conclusions.

Colonialism towards the Cook Islands

Last week, 1 News broke the news of a major diplomatic rift between New Zealand and the Cook Islands, over the latter's plans to sign a "comprehensive strategic partnership agreement". Foreign Minister Winston Peters felt that he should have been consulted. Cook Islands Prime Minister Mark Brown disagreed. So who's right?

Probably not Winston. Because while New Zealand explicitly had responsibility for "the external affairs and defence of the Cook Islands" at independence (and still does in New Zealand law), the situation has evolved. Over the past 60 years the Cook islands has increasingly been conducting its own foreign policy, joining various international bodies, and having bilateral diplomatic relations with over 60 other countries. New Zealand publicly recognises this fact, with MFAT saying "the Cook Islands conducts its own affairs", but that "New Zealand has a constitutional responsibility to respond to requests for assistance with foreign affairs, disasters and defence". In other words: the Cook Islands are their own country, they do their own thing, but as close friends (and former colonisers with ongoing obligations towards our victims) we have to help if asked.

In this case, they pretty obviously don't want our help. So New Zealand should just butt out. Or maybe try talking, rather than threatening. Because as with Kiribati, Winston's crude jerking of the colonial leash seems unlikely to make friends, and will likely be felt and remembered in the Cook Islands for a very long time. Especially when it is accompanied by the New Zealand media openly asking questions like "should New Zealand invade the Cook Islands?" - which seems to be an explicit invitation for the Cooks to seek the protection of a more powerful state like China.

Meanwhile, this has also highlighted another issue: because the New Zealand government is at this very moment in the process of passing a law which would allow them to prosecute any Cook Islands minister or official who made foreign policy decisions New Zealand doesn't like. The Crimes (Countering Foreign Interference) Amendment Bill creates a new criminal offence of improper conduct for or on behalf of foreign power, with extraterritorial jurisdiction, so that it applies to New Zealand citizens anywhere in the world. All Cook Islanders are New Zealand citizens, so it automatically applies to them. As for the criminal offence, China is a "foreign power", signing an agreement "in collaboration with... or agreement of" them is the very definition of "by and on behalf of", not telling MFAT about it meets the test to be "covert" or "deceptive", and thus "improper", and the government very clearly thinks it compromises the "protected new Zealand interests" of the security or defence and international relations of New Zealand. And while New Zealand diplomats and officials have an exemption for "the lawful performance of [their] functions or duties as an employee, contractor, authorised representative, or agent of" the NZ government, there's no such exemption for Cook Islands officials performing their functions in representing their country (likely due to colonial myopia: the metropole just doesn't think about its former colonies).

The Cook Islands Prime Minister should not face criminal charges on New Zealand for doing his job in a way that the New Zealand government does not like. And if the New Zealand government thinks that that is appropriate, then I think that that is a very ugly piece of colonialism, which can only further undermine the relationship between our two countries.

Good riddance

The proposed Waimate garbage incinerator is dead:

The company behind a highly-controversial proposal to build a waste-to-energy plant in the Waimate District no longer has the land.

[...]

However, SIRRL director Paul Taylor said the sales and purchase agreement to purchase land from Murphy Farms, near Glenavy, lapsed at the end of last year.

The company gave no indication of where the plant may be located now it had lost the land.

So, South Island Resource Recovery may have got itself placed on National's corrupt fast-track list, but that list specifies the exact site, so they can no longer use it. And while they could find a new site and re-apply, they'd need to spend years gathering the required environmental data for the new site to support an application. Which means in practical terms that the whole thing is dead. Until of course it pops up in a new small town with a low-capacity local authority to start the whole scam again.

United States of corruption

The US Foreign Corrupt Practices Act has been a vital tool in combatting international corruption. It forbids US companies and citizens from bribing foreign public officials anywhere in the world. And its actually enforced: some of the world's biggest companies - Siemens, Hewlett Packard, and Bristol Myers Squibb - have paid huge fines after being convicted or settled cases brought under the law. But not anymore, because Donald Trump has decided that it's "bad for business":

Donald Trump has ordered the Department of Justice to halt the enforcement of a US anti-corruption law that bars Americans from bribing foreign government officials to win business.

“It’s going to mean a lot more business for America,” the president said in the Oval Office after signing an executive order on Monday directing Pam Bondi, the US attorney-general, to pause enforcement of the 1977 Foreign Corrupt Practices Act.

A White House official said: “American national security depends on America and its companies gaining strategic commercial advantages around the world, and President Trump is stopping excessive, unpredictable FCPA enforcement that makes American companies less competitive.”

This is of course nakedly corrupt, and it puts the US in violation of the OECD anti-bribery convention, to which it is a party (it may also put it in violation of the United Nations Convention Against Corruption). But as withdrawl from the Paris Convention or Trumps ignoring of trade-agreements shows, the US will no longer keep its word on the international stage. Which means there is no point ever negotiating any agreement with them, because they can't be trusted to keep it.

It also seems a bit weird that congress can pass a law, and then a future president can just say "actually, we're not going to enforce that". It seems contrary to both the rule of law and the separation of powers, allowing the president to arbitrarily rewrite the law to suit their whims. But I guess arbitrary executive power is just another way in which America is "exceptional".

34,000 unemployed under National

The December labour market statistics have been released, showing yet another increase in unemployment. There are now 156,000 unemployed - 34,000 more than when National took office.

And having thrown all these people out of work, National is doubling down on cruelty. Because being vicious will somehow magically create the jobs they and the Reserve Bank have destroyed or something. Or maybe its because they're just cruel, vicious arseholes bereft of empathy. But either way, its hard to see how it does any good whatsoever. These people aren't out of work because they're "lazy"; they're out of work because National has destroyed the economy. And being cruel isn't going to fix that.

Te Tiriti needs a guardian

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

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

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

[...]

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

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

[...]

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

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

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

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

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

An appropriate process?

Back in December Energy Minister Simon Watts then-Energy Minister Simeon Brown appointed John Carnegie and Vijay Goel to the board of the Energy Efficiency and Conservation Authority. The appointments looked dubious - Carnagie is chief executive of Energy Resources Aotearoa, previously known as the Petroleum Exploration and Production Association of New Zealand: basically, an oil and gas lobbyist. And Goel is an accountant who runs a pokie trust. So, I sent in the usual OIA, seeking all advice and communications on the appointments. I received the response today, and it shows the appointments are even more questionable than expected.

Watts' response included an explanatory letter and over 500 pages of documents (most of which are redacted). Watts' short explanation is that:

10 candidates interviewed for the two board member roles. Initially seven candidates were shortlisted and interviewed. Subsequently, a further three people were shortlisted at my request and were also interviewed. I [sic] appointed the two new members for terms commencing 6 January 2025.

...which doesn't really give the full picture. MBIE ran an entire appointments process for two roles between January and June 2024. In June 2024 Watts Brown agreed to appoint one person (and rejected a recommended reappointment). MBIE drafted a cabinet paper, with appointment letters and everything, and then something clearly went wrong. No appointment was made, and the whole search began again. MBIE went immediately to the previous candidates, and here we learn that John Carnagie had applied in the previous round and was not recommended for the shortlist. Despite this, Watts Brown instructed MBIE to interview him, then instructed them to interview Goel as well.

The interviews were not successful. A briefing on 19 September reported that "MBIE does not consider the candidates suitable for appointment". For some reason - whether actual or anticipated Ministerial displeasure is unclear - this briefing was "put on hold", and then rewritten. The rewritten version reached the same conclusions: none of the Minister's picks were recommended. Carnagie was "on the lower end of suitability for appointment", while Goel was "not recommended for appointment to the Board". In an effort to appear more "scientific", they quantified these conclusions with an "assessment framework". And while the actual scores are redacted as "free and frank", you can see exactly what the interviewers thought of the candidates from what is bolded in the scoring sheets. Carnagie ranked highly on public accountability, but scored poorly on stakeholder relationship management, and was a terrible board fit, assessed as "likely to relitigate board decisions, or undermine decisions that have been made" and "likely to create tension or conflict with fellow board members". Goel was just a nothing candidate, with no actual interest in the role, no particularly strong areas, and assessed as "likely to make little contribution outside area of expertise". Despite this, both were appointed anyway, with the Minister certifying to Cabinet that "appropriate processes have been followed in selecting the proposed appointees" and that "invitations for nominations were publicised and that nominations received were considered". Yeah, right. In reality, those nominations were ignored in favour of Ministerial cronies, who were appointed regardless of merit, despite being assessed as unsuitable for the job.

Its a perfect example of National's cronyism. And yet another argument for why we need to take government board appointments completely out of the corrupt hands of Ministers, and put them in the hands of a neutral statutory appointments body.

Correction (3 March 2025): I had erroneously attributed the appointment decision to Simon Watts. The entire process was in fact overseen by Simeon Brown, who was then removed from the Energy portfolio a week before my OIA request was due. Watts' sole responsibility in this case was to sign off on the response to the request.

ACT's problem is Luxon's problem

Back in 2023, a "prominent political figure" went on trial for historic sex offences. But we weren't allowed to know who they were or what political party they were "prominent" in, because it might affect the way we voted. At the time, I said that this was untenable; it was unfair to voters, it was unfair to the party (which I assumed would want to dispel the inevitable suspicion that they knew or were careless about this historical offending), and it was unfair to all its candidates (some of whom may have wished to avoid the taint of representing a party which hosted a sex offender). And it was terrible for our democracy:

Because if the party ends up in government and helping to make justice policy after the election, and then suppression is lifted, voters will rightly feel that they have been defrauded at the ballot box and that the government gained power by covering up child abuse. Which is obviously horrific for its legitimacy, and for public confidence in our democratic institutions.

Now that his name suppression has formally lapsed, we are allowed to formally know that the man was Tim Jago, and the party which benefitted from this suppression is ACT. Who are indeed helping to make justice policy, and are currently trying to rewrite te Tiriti o Waitangi and core elements of our constitution. ACT is able to do this because a judge covered up these allegations, preventing reporting of the party's institutional cover-up (not to mention connecting the dots with sexual harrassment and sexual assault within the party, not to mention the dodgy attitudes of its previous leader), and thereby preventing voters judging them accordingly. So, we have an illegitimate rewrite of our constitution by a government whose support is based, in part, on a colossal act of electoral fraud. Yeah, that's totally legitimate, and I'm sure people will have huge confidence in the political system which enables it.

People need to be asking Christopher Luxon how he feels about depending on the support of a party which covered up for a child abuser, and what he's going to do about it. Because he chose his friends. He chose to lie down with that dog. If he doesn't want the fleas, he knows what he can do about it.