Submission: Parliament needs a better way to protect our human rights

On the last day, I've finally put together a submission on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill:

1. I support the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill and asked that it be passed with amendments.

2. The bill is a response to the ruling of the Supreme Court in Taylor v. Attorney General, which found that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 was inconsistent with the New Zealand Bill of Rights Act. In doing so, it agreed with the Attorney General when the law was passed, who found that it was "unjustifiably inconsistent with the electoral rights affirmed by s12 of the Bill of Rights Act".

3. The conduct of the House in passing the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill in 2010 was disgraceful, as was its foot-dragging in response to a clear ruling from the Supreme Court that that law was inconsistent with the NZBORA. The conduct is perfectly captured by ACT MP Hilary Calvert's third reading speech, which reads in its entirety:

   "I rise to take a call on the third reading of the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill. I cannot pretend this bill is my favourite thing. Trevor Mallard leaving the House earlier, and not being able to vote while he was away, could count as a favourite thing. Perhaps popping a ping-pong ball in the mouth of the honourable member over there who all day keeps turning his head from side to side with his mouth open could count as my favourite thing. This bill is not my favourite thing. However, Act is supporting National on this bill."

   (Emphasis added)

4. This speech displayed a casual attitude to human rights from Members of Parliament. It bought the House into contempt. More importantly, it showed that Parliament was unwilling to seriously perform its duties of scrutinising legislation and acting as a guardian of our human rights under NZBORA.

5. The New Zealand Bill of Rights Act 1990 currently respects the supremacy of Parliament, and MPs hide behind that phrase whenever their lawmaking decisions are questioned. But an assumption of the NZBORA is that Parliament will do its duty properly, not abuse its power, and pass laws which unjustifiably infringe upon our human rights only in exceptional circumstances, when - for lack of another way to say it - it is justified, and only after due consideration. Parliament's passage of the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill calls that assumption - and the legitimacy of Parliament to be the guardian of our human rights - into question.

6. In the face of that question, the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill represents the bare minimum that Parliament can do, a grudging acceptance of wrongdoing. Declarations of inconsistency by the courts will now need to be reported to the House. But there is no suggestion that Parliament will treat them any more seriously than it treated the removal of prisoner voting rights in the first place. While I understand that there will be Standing Orders requiring such reports to be debated, fundamentally it will be within Parliament's power to ignore them, or to casually reject them as the 49th Parliament did the entire notion of human rights. And that seems to be insufficient both as a constitutional safeguard, and as a means of restoring Parliament's legitimacy.

7. Fundamentally, this Bill needs to be stronger. What I would like to see in its place is a provision automatically revoking any law declared to be inconsistent with the NZBORA by the courts, unless affirmed within a short space of time by a majority or supermajority of Parliament, or clauses echoing s33 of the Canadian Charter of Rights and Freedoms ensuring that any over-ride of the NZBORA is explicit and temporary, as well as the entrenchment of the NZBORA to prevent casual meddling and implied repeal. These would be a better balance between Parliament and the courts in New Zealand's modern democracy, and better respect the public judgement about who is a fair and impartial guardian of our rights.

8. I recognise that such provisions are well beyond the scope of this Bill, and any beyond the first would require public consultation. It would therefore be best to view this Bill as a temporary measure to enable such consultation. I therefore ask that the Bill be amended to include a statutory review clause, requiring the Attorney-General to establish a public and impartial panel within three years to review its operation and advise on what stronger measures should be taken to rebalance Parliament and the courts in this area.

9. I do not wish to appear before the committee.

Submission on the Crown Minerals (Petroleum) Amendment Bill

1. I support the Crown Minerals (Petroleum) Amendment Bill and ask that it be passed with the amendments suggested below.
   
   
2. As this week's IPCC report shows, humanity needs to move rapidly away from fossil fuels if we are to have any hope of avoiding catastrophic climate change. Our global carbon budget does not allow humanity to burn the fossil fuels we have already discovered. Therefore, looking for more is both pointless, and insofar as it encourages the burning of fossil carbon and the pollution of the atmosphere with greenhouse gases, actively dangerous.
   
   
3. Banning offshore oil exploration is a small step towards making that necessary shift, but it is a step in the right direction, and I support it. Banning exploration will gradually strangle the oil industry in New Zealand, and so reduce our contribution to global climate change. Obviously it needs to be followed up with further action: banning onshore exploration, banning fossil fuel extraction, banning fossil fuel vehicles, and ultimately banning fossil fuel use entirely. But those (and measures combating other greenhouse gases) are topics for other legislation.
   
   
4. The bill however does not go far enough. There are two obvious flaws which limit its effectiveness:
   
   
5. Holders of exploration permits have a statutory right to convert their permit to a mining permit if they make a discovery. If the government is serious about calling time on offshore oil, then it needs to remove that right, or put a sunset clause on it. Given the urgency of the global situation, I recommend eliminating it entirely for any petroleum permit outside of onshore Taranaki. Alternatively, a five year sunset clause seems more than generous, keeping in mind that any mining permit means another twenty years of dangerous emissions.
   
   
6. Holders of exploration permits can also have them changed to change the area covered, the minerals to which they relate, extend their duration or change their conditions. Section 7 of the bill partially addresses this by forbidding petroleum permits from being extended to areas outside the onshore Taranaki region. However, this would still allow a holder of an existing permit to have it extended or have its conditions modified to remove "drill or drop" or surrender conditions, which is contrary to the intent of this bill. It also allows the holders of permits for other minerals - for example, ironsands - to have their permits changed to allow them to explore for or mine petroleum. The bill needs to be amended to ensure that no existing offshore petroleum permit can have any change to its conditions, and that no permit of any form can be changed in any way so as to allow the prospecting or exploration for or mining of petroleum outside the onshore Taranaki region. Failing to do this will invite game-playing by the fossil fuel industry, and will directly undermine the purposes of the bill.
   
   
7. I do not wish to appear in person before the committee.

Submission

Below is my submission on the question of privilege regarding use of social media to report on parliamentary proceedings:

1. I am submitting to oppose any proposal to restrict the use of social media to report on parliamentary proceedings.
   
   MPs and Twitter
   
   
2. I watch Question Time every sitting day. Like many others, I also livetweet proceedings over my twitter feed to my 4,500 followers using the #nzqt tag. Tweets about Question Time are regularly retweeted and favourited. The commentary appears to be both informative and popular with the online community.
   
   
3. MPs also contribute to this collective commentary. Their comments provide a vital inside view on the workings of the House and help fill in the gaps where comments are missed by the videofeed. They are vital in bringing poor behaviour which may have been missed by the cameras to public attention.
   
   
4. While Parliament is broadcast, it is poorly watched outside of question time. The comments of MPs are especially valuable in these other debates, and are often the primary source of information on them. MPs tweet vote results, and summaries of speeches. Their tweeting is useful in alerting readers when to watch, or what to review on InTheHouse.
   
   
5. In short, online engagement by members provides a valuable service to the public and is vital to informing us of what is going on in our parliament.
   
   Electronic devices and social media
   
   
6. With regard to the use of hand-held electronic devices by members, Standing Orders exist solely to ensure the good order of the House. From my viewing of Question Time, the use of such devices does not disrupt the House.
   
   
7. Likewise, member's use of social media from the chamber does not lead to disorder in the House. In my years of watching Question Time, I have seen only one occasion where that could even remotely be argued, and that was when a government member disrupted the House to complain about tweeting by the opposition. It has otherwise been a parallel commentary which simply does not impinge into the chamber.
   
   
8. Some MPs have used Twitter to question rulings by the Speaker, or to highlight questionable rulings. While this may upset the Speaker, neither disrupts the order of the House. Silencing them would simply be an abuse of power, and would be seen as such by the public.
   
   
9. To the extent that such tweets are believed to disrupt the order of the house this must be balanced against the right to freedom of expression affirmed in the New Zealand Bill of Rights Act 1990. This right covers not just the freedom of MPs to impart their views, but also of the public to receive them. Gagging MPs from tweeting would be a prima facie violation of this right, and would need to be shown to be necessary, proportionate, and the least restrictive means of ensuring order.
   
   Reflections on members
   
   
10. With regard to the rules on reflections on members or accusations against the speaker, while there is a clear reason for these applying to MPs in the chamber, they do not appear to be justifiable in a free and democratic society with regards to speech outside the chamber, whether by MPs or members of the public. They do not affect the order of the house, and therefore there is no justification for restricting them under Standing Orders. Insofar as they are believed to affect order, they are neither proportionate or the least restrictive option.
    
    
11. If a member or the Speaker feels that a reflection or accusation has unfairly maligned them, they can bring defamation proceedings just like any ordinary member of the public. And that is exactly what they should do. Using parliamentary privilege to punish and silence critics would again appear to be a gross abuse of power.
    
    
12. The mere existence of this purported power to punish public critics undermines the legitimacy of parliament. Its the sort of thing Kings do. We're better than that, and we should do away with it. And we certainly shouldn't be applying it to social media.
    
    Conclusions
    
    
13. There should be no restrictions on the use of social media by MPs, and the rules on reflections on members and accusations against the Speaker should be repealed or restricted to apply only to speech inside the chamber.
    
    
14. I do not wish to make an oral submission to the Select Committee.
    

Submission on the Countering Terrorist Fighters Legislation Bill

Below is my submission on John Key's Countering Terrorist Fighters Legislation Bill. Hopefully some of you made your own as well.

1. I oppose the Countering Terrorist Fighters Legislation Bill and ask that it not be passed.
   
   
2. I also oppose the abuse of the Parliamentary process seen in the passage of this bill - and in particular the short select committee stage. It is a matter of some irony that a bill which will permit the SIS to spy without warrant for 48 hours without any submission to the Minister does not give the public even that length of time in which to make submissions. The short period for submissions is an express denial of our democratic rights, which brings Parliament into further disrepute. And when combined with the similar abuse done in the name of the GCSB Act, suggests that on matters of spying, the government and spy agencies do not want our voices to be heard.
   
   Amendments to Passports Act 1992
   
   
3. I oppose the amendments to Passports Act 1992 contained in the schedule to the bill.
   
   
4. I particularly oppose the power in new sections 1(6) and 2(6) extending the length of passport refusal / revocation from one to three years. At present, the Minister can cancel passports for a year, and can extend this for a further year on application to the High Court. The government has made no case that this period is inadequate and has presented no evidence that the current process of judicial extension is not working. The effect of these clauses (and the similar clauses applying to certificates of identity, refugee travel documents etc) is to remove judicial oversight of such decisions. This is something that should not be accepted in a free and democratic society.
   
   
5. I oppose the avoidance of doubt clause in new section 1(3), 2(3) etc that the government can refuse or cancel a passport to someone outside New Zealand. This seems to interfere with the fundamental right of citizens to re-enter New Zealand, and to turn passport refusal/revocation into a Ministerial-imposed sentence of exile without trial. While emergency one-use travel documents are in theory available under s23(30 Passports Act 1992, "in theory" is not sufficient. In practice, any refusal or cancellation of a passport or travel document of someone who is offshore should result in the immediate issue of documents to enable the victim to return to New Zealand, to ensure that they are not effectively exiled.
   
   
6. I oppose the new clause in s1(5)(b), 2(5)(b) etc that "notice [of a passport cancellation/revocation etc] is to be treated as given if the Minister has taken all practicable steps to provide it." Sections 1(7)(a), 2(7)(a) etc limit direct appeals to the Minister to within 30 days of notice. The combination of these two clauses is to effectively rob those whom the Minister decides it is impractical to notify of any right of appeal. This is inconsistent with the Right to Justice affirmed in section 27 of the Bill of Rights Act.
   
   
7. I oppose the power in new section 7 to temporarily suspend a travel document for 10 days. The power requires no evidence or even suspicion of wrongdoing. Instead it merely requires that a report be being prepared. It is hard to see how such an arbitrary suspension of an individual's freedom of movement accords with the right to justice affirmed in section 27 of the Bill of Rights Act, or how it could be considered to be the least intrusive measure.
   
   
8. I oppose the extension of sections 29AA to 29AC (permitting the government to use secret evidence which is not disclosed to the other party in cases involving "national security") to cases involving passport refusal / revocation etc. The use of secret evidence in court cases is absolutely inconsistent with the right to justice affirmed in s27 of the Bill of Rights Act, and its use has been found to impair similar rights overseas.¹ As Lord Kerr noted in Al Rawi and Others v. The Security Service and Others [2011] UKSC 34, "Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial". Absent such an opportunity, both the justice and the public credibility of a judgement is irreversibly compromised.
   
   
9. I oppose the limitation of crown liability in new section 9. It serves no purpose except to insulate the government from the legal consequences of poor decision-making. As I value good decision-making where human rights are concerned, I would prefer that the government had every incentive to get it right, rather than enjoying impunity.
   
   Amendments to Customs and Excise Act 1996
   
   
10. I oppose new section 280M, which provides for police and SIS to have direct access to Customs' data for counter-terrorism purposes.
    
    
11. As the bill's RIS and BORA-vet makes clear, this section is required because significant doubts have arisen about the legality of Customs' current information exchanges with police and SIS. Current practice is that police are able to directly enter targets into the Customs' database, specifying who they want stopped and what they want to search for.² Customs then provides them with the results of any warrantless search at the border conducted under s151 Customs and Excise Act. Presumably there are similar arrangements with SIS. These powers are specifically used to conduct warrantless searches of digital devices such as laptops and cellphones.^3. But as the Minister of Justice notes in her BORA-vet, "comprehensive examination of data, either from cell phones, laptops or other storage media, for general law enforcement purposes would require at least reasonable suspicion".
    
    
12. The result of section 280M therefore is to effectively bypass the protections of the Search and Surveillance Act 2012 and New Zealand Security Intelligence Service Act 1969 to enable both agencies to conduct warrantless searches of anyone entering the country, potentially gaining access (via their cellphones, stored emails, browser histories and files) to every detail of their lives. These protections exist for good reason: the oversight of the courts (or, in the case of the SIS, of Ministers and the Commissioner of Security Warrants) prevents abuses of power. This clause would throw away any oversight, and grant these agencies arbitrary search powers. This is inconsistent with the right to be free from unreasonable search and seizure affirmed in s21 of the BORA.
    
    
13. As a further note, because it is not a "search power" in terms of the Search and Surveillance Act 2012, border searches conducted by Customs under s151 have no protections for journalistic privilege, or for attorney-client privilege. They therefore raise the prospect of Police and SIS colluding with customs to violate the rights of journalists, and the fair-trial rights of people whose lawyers travel to and from New Zealand.
    
    Amendments to New Zealand Security Intelligence Service Act 1969
    
    
14. I oppose new sections 4IA to 4IC governing the use of visual surveillance warrants. The power to film a person in their own home, with their family, is extremely intrusive. It needs to be subjected to the strictest safeguards. Sadly, those covering SIS surveillance are insufficient. Such warrants should only be authorised by judges, not by Ministers. And they should be subjected to full judicial oversight, not hidden behind a wall of secrecy.
    
    
15. The justification for such warrants is "security". In the past, the SIS has shown extremely poor judgement of what constitutes a threat to "security", and the existing oversight procedures have provided no protection. They have spied on politicians and even children. The abuses which could result from allowing them to do so with video cameras ought to be obvious.
    
    
16. I oppose the emergency surveillance powers of new sections 4ID to 4IF. These allow the SIS to exercise its surveillance powers (including the new visual surveillance powers, but also existing powers to e.g. break into people's homes) for up to 48 hours without a warrant where obtaining one would be "impractical" and a delay "is likely to result in a loss of intelligence".
    
    
17. In terms or practicality, it is difficult to see why in this age of cellphones it would be impractical to gain Ministerial authorization. If the concern is that the Minister may be out of the country, then an arrangement similar to s19A Government Communications Security Bureau Act 2003 (which allows other Ministers to authorise interceptions when the Minister is unavailable) would be a more appropriate solution. If the concern is that oversight by the Commissioner of Security Warrants is a delay, then this is effectively an attack on the entire oversight system which needs to be resisted.
    
    
18. In terms of "loss of intelligence", to spies any delay may result in such a loss. The clause effectively serves to circumvent the entire warrant oversight system.
    
    
19. The "safeguards" around this are non-existent. Quite apart from any doubts about whether the Minister would refuse to confirm such a warrant, if a warrant is not granted, the information collected must be destroyed - except for any "relevant to the detection of activities prejudicial to security [or to] the gathering of foreign intelligence information that is essential to security". Effectively this is saying that the SIS can keep the poison fruit of breaking the law. The fine for failing to destroy information is derisory (and as any offence will be secret, there is no prospect of prosecution). These are not proper checks and balances.
    
    
20. A comparison with existing police powers for emergency warrantless search and surveillance shows that the bar to such powers in a free and democratic society is high. Under the Search and Surveillance Act 2012 the police may conduct emergency searches without warrant to prevent the destruction of evidence of serious crime (sections 8 and 15), or where there is a risk to the life or safety of any individual (s14). They may also conduct emergency surveillance using a surveillance device for up to 48 hours in similar circumstances. Note the threshold: serious crime (punishable by 14 years or more imprisonment, or specified offences involving firearms) or a real threat to life and safety. A vague and unsubstantiated "risk to security" simply does not meet this threshold (and in the cases where it does, the SIS should be turning the case immediately over to police, so that they can exercise their powers and prosecute the offender).
    
    
21. While both the visual surveillance and emergency surveillance powers have been compared to existing police powers, it is important to remember that the SIS are not the police. The SIS's goal is to gather intelligence, while the police's is to gather evidence. The former is secret, while the latter must ultimately be revealed in court and withstand judicial scrutiny. This public and judicial oversight provides a further check and balance on the police and gives them a strong incentive to act within the law. As their intelligence is kept secret and used privately, there is no similar incentive on the SIS, and the results can be seen in the dismal history of the service.
    
    Sunset clause
    
    
22. The provisions of this bill have a "sunset" clause and expire on 1 April 2018. While I welcome the sunset clause, the duration seems far too long. The SIS is supposed to be reviewed next year, and I would expect Parliament to treat the outcome of that review as a matter of some urgency (though not the unconstitutional level of urgency displayed in the passaged of this bill). A 2016 expiry seems more suitable.
    
    
23. I do not wish to make an oral submission to the Select Committee.
    

^1. See for example Secretary of State for the Home Department v. MB (FC) (Appellant) [2007] UKHL 46, which found that the use of a similar "closed material proceeding" with "special advocates" violated the fair-trial rights of suspected terrorists.
^2. See OIA response to TechLiberty and the police-customs MOU annex on data access.
^3. As an example, police asked Customs to stop the wife of a suspected drug-dealer at the border so they could download the contents of her cellphone.

Submission

Below is my draft submission on the Environmental Reporting Bill. I'm primarily interested in the freedom of information issues; I expect other groups to be focused on the reporting itself.

1. I support the aims of the Environmental Reporting Bill of giving us regular, independent reporting on the state of our environment. Such reporting is vital as a mechanism to assess the success of government policy, as well as to identifying potential environmental problems.
   
   
2. I have serious misgivings about some sections of the bill, particularly those relating to the selection of topics and the disclosure of information. I therefore ask that the bill be amended to address those concerns.
   
3. I do not wish to appear before the Committee.
   
   Selection of topics
   
   
4. Section 18 of the Bill provides for the Minister to specify the topics to be covered within synthesis and domain reports by Order in Council. Before prescribing such topics, the Minister must consult the Government Statistician and the Commissioner. This is a useful safeguard; however consultation is not the same as listening, and it still permits a perception that topics may be selected (or not selected) on political grounds. For example, a Minister under pressure from the dairy industry could select topics in such a way as to gloss over problems such as "dirty dairying". This perception undermines the purposes of the bill.
   
   
5. There are two obvious solutions. One is to have the topics specified in law, for example as a schedule to the Bill. A second would be to allow the Government Statistician and the Commissioner to jointly select topics. Either would remove the perception of political interference (or, in the case of a schedule, require that it be exercised so publicly as to dissuade politicians from doing so). On balance, I would prefer specification in law.
   
   Disclosure of information
   
   
6. Section 16 of the Bill allows the Secretary of MfE and the Government Statistician to veto the release of "information or analysis that will be, or has been, used in an environmental report". The veto power "applies despite any other enactment". From the departmental disclosure statement and the policy background to the Bill, the purpose of the veto power is to ensure that reporting is independent of the government of the day. However, the power goes well beyond that, restricting the right of access to information not just of government Ministers, but of the general public, and not just before a report is published, but also after.
   
   
7. The Official Information Act 1982 is "a constitutional statute of major importance".¹ It is a fundamental means of ensuring the public accountability of Ministers and public sector agencies. Overriding it requires extremely strong justification. Such justification does not appear to exist.
   
   
8. In assessing the justification for overriding the OIA, the comparable scheme for overriding the New Zealand Bill of Rights Act 1990 is helpful. In order to be justified, a limitation must serve an important public purpose, be rationally connected to that purpose, be proportionate to that purpose, and the least drastic means of achieving it.²
   
   
9. Ensuring the independence of environmental reporting is an important public purpose. However, restricting public access to information about such reports runs contrary to that purpose. Rather than being a threat to independence, transparency is a means of protecting it. The best way to ensure that Ministers do not interfere in the production of an independent report is for their communications to be subject to the OIA and to be released on request. The best way to ensure that the conclusions of a report are seen to be robust and independent is to pro-actively release all drafts and working material at the same time as the report, so the public can see that that is the case.
   
   
10. The veto power is also disproportionate. Quite apart from questions of scope or the fact it applies both before and after publication, the OIA already contains a legislative scheme allowing information to be withheld where release would cause identifiable harm and would not be outweighed by the public interest. That scheme was developed by a Royal Commission, has been the subject of thirty years of jurisprudence and interpretation by the Ombudsman, is well understood and has been repeatedly reviewed. In the most recent review, the Law Commission did not identify any need for new withholding grounds. To the extent that "information or analysis that will be, or has been, used in an environmental report" can already be withheld under the Act, the new veto power is unnecessary. To the extent that it cannot, it is unjustified.
    
    
11. As noted above, the veto power "applies despite any other enactment". This does not just override the OIA, but also the information-gathering powers of Officers of Parliament contained in the Public Audit Act 2001, Environment Act 1986, and Ombudsmen Act 1975, the commission of inquiry powers of the Waitangi Tribunal exercised under the Treaty of Waitangi Act 1975, the statutory powers of the judiciary, the privileges of Parliament, and indeed the protections of the New Zealand Bill of Rights Act 1990.³ The idea that such a broad-reaching power which trumps all other legislation (including fundamental constitutional Acts) is a least drastic means is simply absurd.
    
    
12. I recommend that section 16 be removed from the Bill. The existing structure of the OIA is perfectly capable of coping with environmental reporting information, and ensuring that it is covered would lend credibility to the independence of reporting.
    
    
13. Concerns about Ministerial interference are already credibly covered by section 14 of the Bill, requiring the Secretary of MfE and the Government Statistician to act independently in preparing reports.
    

¹ Philip Joseph, Constitutional and Administrative Law in New Zealand (2nd ed), Brookers (2001), p. 148.
² Moonen v Film and Literature Board of Review (No 2) [2002] 2 NZLR 754 (CA)
³ The full submission suggests several possible scenarios where such conflicts could emerge.

Standing Orders submission

All the cool kids are posting their submissions to the triennial review of Standing Orders, so here's mine. If it seems a little rushed, its because it was - I wrote it in an hour, and submitted it literally on the dot of midnight. Sadly, this did not leave enough time to do footnotes, but it looks like Graeme Edgeler has more than made up their absence in his submission.

1. I am a private citizen with an interest in Parliamentary procedure.
   
   
2. My submission covers the following areas of the Standing Orders:
   
   a) Election of the Speaker
   b) Urgency and Question Time
   c) Government's Financial Veto and Royal Prerogatives of the Crown
   d) Opening prayer
   
   
3. I do not wish to appear before the Committee.
   
   Election of the Speaker
   
   
4. At present, the Speaker is elected by a personal vote, or a series of roll call votes if there are more than two nominees. These votes are whipped, and always won by the government nominee. This leads to the Speaker being seen as a servant of the government rather than of the House. The Speaker would have more credibility in their role if they were elected in a free vote. The only way to ensure that the votes of MPs are cast freely (as opposed to at the behest of parties) is by secret ballot.
   
   
5. The principle of MPs being accountable to voters would normally mean that all votes must be open, so MPs can be held to account at the ballot box if necessary. However, in this case, transparency undermines both the credibility and independence of the Speaker. A secret ballot would allow them to seek and receive the mandate of the House, and remove any suggestion that the position is handed out by grace and favour of the government.
   
   
6. Recommendation: That the Speaker be elected by secret ballot. In the case of multiple nominees, either preferential voting or a series of ballots can be used.
   
   Urgency and Question Time
   
   
7. The new rules for extended sittings (SO 54) have worked well to limit the abuse of urgency, and I support their retention.
   
   
8. One problem which remains around Urgency is its potential use to limit Question Time. It is usual where Urgency will last into the next sitting day for the government to seek leave for there to be Question Time as normal. However, this is not always done, and more importantly, need not be done.
   
   
9. Question Time is an essential mechanism for holding the government to account on a day to day basis, and a vital indicator of democratic legitimacy. It should not depend in any way on the grace and favour of the government, especially when the government is using a controversial mechanism such as Urgency, perhaps to advance controversial legislation without proper democratic scrutiny.
   
   
10. Recommendation: That Question Time not be suspended by Urgency.
    
    Government's Financial Veto and Royal Prerogatives of the Crown
    
    
11. Standing Orders 321 - 326 permit the government to veto legislation which "would have more than a minor impact on the Government’s fiscal aggregates if it became law". This power is a relic of archaic British constitutional practices, in which Parliament was the financial rubber stamp of the monarch, used to fund his wars. The British and New Zealand Parliaments have both evolved since that era, we removed statutory restrictions on Parliament appropriating money independently of the Government in 2005. However the Standing Order has persisted.
    
    
12. This does not fit well with modern constitutional practice. Since MMP, it is Parliament which rules. And if Parliament appropriates money for something, the executive should execute its will. They should not be able to veto a vote which they have lost, like a King who does not want to spend money on non-frivolities.
    
    
13. Standing order 309, allowing a veto over bills "affecting the rights or prerogatives of the Crown" (which in practice means using Orders in Council as a regulatory mechanism) raises similar constitutional issues. And again, it is Parliament which is sovereign. If it legislates, the Crown should obey. A legitimate, democraticly elected Parliament should not need to seek the permission of the representative of an unelected foreigner in order to legislate on any matter it sees fit.
    
    
14. Recommendation: Both the Government Financial Veto and Standing Order 309 should be removed.
    
    New Zealand Bill of Rights Act
    
    
15. This term we have seen controversial provisions with potentially significant human rights implications introduced during the Committee Stage of a bill. Because of their timing, these provisions have not received the usual scrutiny under the New Zealand Bill of Rights Act, and the Attorney-General would not be required to inform the House, whether by statute or Standing orders, of any inconsistency.
    
    
16. This is inconsistent with the spirit of the BORA, and undermines its protection of human rights. If the practice is permitted to continue, it may also undermine support for Parliamentary Sovereignty over human rights. If Parliament is to be taken seriously as a guardian of our human rights, it must close this loophole.
    
    
17. Recommendation: Standing order 262 should be amended to require the Attorney-General to report on any apparent inconsistency which arises at the latter stages of the bill.
    
    Opening prayer
    
    
18. Standing Order 60 requires the Speaker to open each sitting by reading a prayer to the House. The form of the prayer is explicitly Christian (and arguably explicitly Anglican), calling upon the Christians’ god to guide MPs to ensure “the maintenance of true religion” [sic] and “the glory of thy holy name”.
    
    
19. This has no place in the Parliament of a secular, democratic nation which respects the freedom of religion. As noted in many cases in the United States, public official prayer of this nature gives the stamp of state authority to the particular religion, and may be seen as coercive. It is also exclusionary, sending a message that those who do not belong to the particular religion do not belong to the community. At the last census, only 55.6 percent of New Zealanders identified as Christian (and only 14.8% Anglican). The other 44.4 percent of us did not - and that number is likely to increase when the next census results are released in December. Parliament – “our House” – is basically telling half of us every sitting day that we are not real New Zealanders.
    
    
20. I am not challenging the right of individual MPs to manifest their religious beliefs. That is protected by the Bill of Rights Act. But religious MPs should not be allowed to use Parliament to lend the weight of the state to their chosen religion, or to send an exclusionary message to those who do not share their beliefs. We prohibit formal prayer in primary schools for exactly those reasons.3 We can do no less in our Parliament.
    
    
21. Recommendation: Standing Order 60 should be amended by omitting the words “the Speaker reads a prayer to the House and”.
    

Submission

Below is my draft submission on the Government Communications Security Bureau and Related Legislation Amendment Bill. Submissions are due tomorrow (details here), so if you want to send in one of your own, be quick about it.

1. I oppose the bulk of the Government Communications Security Bureau and Related Legislation Amendment Bill. I specifically oppose the expansion of GCSB powers in part 1 of the bill. I cautious support the amendments to other acts in parts 2 and 3 of the bill. Finally, the bill is an excellent opportunity to improve the transparency of intelligence oversight in New Zealand by bringing the Inspector-General of Intelligence and Security and the Intelligence and Security Committee under the coverage of the Official Information Act 1982.
   
   Amendments to the Government Communications Security Bureau Act 2003
   
   
2. I oppose the amendments to the Government Communications Security Bureau Act 2003 in the bill and ask that they not be passed.
   
   
3. The primary effect of the amendments to the GCSB Act in the bill is to broaden the powers of the GCSB and allow it to spy on New Zealanders. This is unjustified and a threat to democratic freedoms.
   
   
4. The supposed justification for these amendments is that the law is "unclear". This is incorrect. Section 14 of the Act is crystal clear: the GCSB is barred from intercepting the communications of New Zealanders. And as the Hansard of the debates when the Act was passed makes clear, that was the clear intent of the government and of the House. The fact that the GCSB has ignored the law is not a good reason to change it.
   
   
5. The revised interception powers in section 14 of the bill apply not just to foreign intelligence-gathering, but also to information assurance and cyber-security. The justification for the latter is weak. According to the bill's Regulatory Impact Statement, they are required in order to prevent cyber-crime (identified as "cyber-borne frauds and scams") in order to "allow the GCSB to see who (namely New Zealand individuals and companies) is being attacked". This is a disproportionate response, akin to the police sticking hidden cameras inside everyone's house in order to detect burglars.
   
   
6. The new interception powers are broader than the existing ones, applying not just to specific persons or places, but to classes of persons or places. As written, they would allow GCSB to obtain a warrant applying to "all members of Greenpeace", or to all ISP email servers.
   
   
7. Recent revelations from the USA about widespread surveillance by their National Security Agency on domestic telephone metadata and on internet user data in cooperation with major internet companies such as Apple and Google invites suspicion that the GCSB could engage in similar behaviour. Under the bill, this would be completely legal. Given the level of secrecy involved, the best way to prevent such suspicions is not to grant the powers in the first place.
   
   
8. Finally, I am concerned about the new objective of the bureau in section 6 of the bill, which includes "the economic well-being of New Zealand". In an environment where the government denounces critics of its policies as being guilty of "economic sabotage", extending the GCSB's ambit to encompass economic security while giving it domestic spying powers invites suspicion, and can only have a chilling effect on political discourse.
   
   
9. Government surveillance, or the potential for government surveillance, has a chilling effect on political expression and a corrosive effect on social relationships between citizens. It must be kept to an absolute minimum if we are to remain a free and democratic society. No justification has been provided for these powers, and therefore they should not be granted.
   
   Amendments to other Acts
   
   
10. I support the amendments to the Inspector-General of Intelligence and Security Act 1996 and Intelligence and Security Committee Act 1996 and ask that they be passed.
    
    
11. The Inspector-General of Intelligence and Security has a significant credibility problem and is widely viewed as a toothless rubberstamp. While I do not believe the changes in this bill will lead to much improvement, they have the potential to do so, and so I support them.
    
    
12. The changes to the Intelligence and Security Committee are mostly housekeeping but could slightly strengthen the committee. However real change will only come from the committee members taking a robust and proactive view of their role in overseeing New Zealand's intelligence agencies.
    
    Increasing transparency
    
    
13. I also ask that while Parliament is revisiting the Inspector-General of Intelligence and Security Act 1996 and Intelligence and Security Committee Act 1996, it add both the Inspector-General of Intelligence and Security and the Intelligence and Security Committee to Schedule 1 of the Official Information Act 1982.
    
    
14. The Inspector-General of Intelligence and Security performs a watchdog function over the SIS and GCSB. While they report annually to Parliament, these reports have been difficult to obtain, and there is little real information available about their work. Public confidence in their role would be improved by more openness.
    
    
15. The Committee is a government body, but it operates totally in secret. Confidence in its work (and hence in the New Zealand intelligence community as a whole) would be increased if the public were able to learn such basic facts as how often it met and whether it considered any matters beyond the annual reports of intelligence agencies (that is, whether it was providing robust and proactive oversight) without having to depend on the grace and favour of the Prime Minister.
    
    
16. The agencies the Inspector-General and Committee are responsible for - the SIS and GCSB - are both themselves subject to the OIA. The OIA contains a conclusive withholding ground for information likely to the security and defence or foreign relations of New Zealand, and this is sufficient to protect any such information either may handle.
    
    
17. I do not wish to appear before the committee.
    

Ending the plunder

Yesterday I blogged about a report that an un-named fishing company was allegedly plundering the Banks Peninsula Marine Mammal Sanctuary. While this is illegal, the penalties in the Marine Mammals Protection Act 1978 have not been updated for at least 15 years, have been eroded due to inflation, and clearely provide no deterrant.

In response to that post, Mike McGavin pointed out Jacqui Dean's Conservation (Natural Heritage Protection) Bill, which is currently seeking submissions before the Local Government and Environment Committee. The bill updates the penalties for numerous bits of conservation legislation to correct for the effects of inflation and bring them more into line with modern environmental values. However, the Marine Mammals Protection Act 1978 is not one of them. Mike suggested I submit on the bill proposing that it also amend penalties under this Act - and that's exactly what I've done. Here's my submission below:

1. I support the Conservation (Natural Heritage Protection) Bill and ask that it be passed with the amendments below.
   
   
2. The bill updates the penalty clauses of various conservation and wildlife protection legislation to correct for the effects of inflation and bring them more into line with the penalties in more modern legislation. In some cases these penalties have not been updated for more than thirty years, making them nominal and severely reducing their deterrent value.
   
   
3. However, the bill makes a significant oversight in not updating penalties for offences under the Marine Mammals Protection Act 1978. Like the Acts in this bill, the Act is administered by the Department of Conservation. Section 23 of the Act provides for a penalty of a $30,000 fine for purse seining in a marine mammal sanctuary, and a $10,000 fine for any other offence under the Act. The penalties have not been updated since at least 1996, and have been significantly eroded by inflation. Other legislation - for example the Marine Reserves Act 1971 - provides for much stronger penalties for violating similarly important conservation areas, including the forfeiture of fishing vessels upon conviction. The penalties for violating a Marine Mammal sanctuary should be increased to a similar level.
   
   
4. The need for a stronger penalties regime in this Act has been brought to my attention by a media report of fishing companies plundering the Banks Peninsula Marine Mammal Sanctuary. The law is clearly not acting as a deterrent to this behaviour. While s25(g) of the New Zealand Bill of Rights Act 1990 means that increased penalties will not be able to be applied to any prosecution in this case, they will hopefully deter others from doing so in the future.
   
   
5. I do not wish to appear before the Committee.
   

Submissions will be open until the end of February. If you'd like to strengthen our protection of marine mammals, and end the plunder of their sanctuaries, I suggest writing up a similar submission and submitting it here. This is not a bill which is likely to attract a lot of submissions, so speaking up on it will make a difference. And if it doesn't, I'm sure Labour or the Greens would be willing to take a Member's Bill to solve the problem.

Submission

My draft submission on the Marriage (Definition of Marriage) Amendment Bill. Submissions close tomorrow, so if you haven't done yours, get it in fast. you don't need to say much - I was seriously considering leaving this at the first three paragraphs - and if you're in an even bigger hurry you can submit via the Marriage Equality campaign here:

1. I support the Marriage (Definition of Marriage) Amendment Bill and ask that it be passed.
   
   
2. Decisions over who you spend your life with are deeply personal, and lie at the heart of human liberty. They are not decisions the state should interfere in. The present Marriage Act interferes in these decisions, by legally discriminating against same-sex partnerships.
   
   
3. The bill would remove this discrimination, bringing the Marriage Act into consistency with the Bill of Rights Act and Human Rights Act and ensuring that New Zealanders are equal under the law in this important respect.
   
   
4. Some people object to this change on religious grounds. But in New Zealand, marriage has nothing to do with religion. It has nothing to do with churches and nothing to do with priests. Many people choose to celebrate their marriage in that way, and the law accommodates them - but legally, marriage in New Zealand is secular, a matter of a civil official administering a statutory declaration.
   
   
5. Likewise, marriage in New Zealand has nothing to do with families, nothing to do with children, and nothing to do with procreation. Individuals of course care deeply about such things, but our law does not, and nor should it. Arguments against this change on the basis of one of those values are therefore irrelevant.
   
   
6. As a final note, the Bill of Rights Act limits discrimination to that which "can be demonstrably justified in a free and democratic society". This has been consistently interpreted to mean that such discrimination must serve an important public purpose, be rationally connected with that purpose, be proportionate to that purpose and by the least drastic means. The discrimination in the Marriage Act fails at the first hurdle. While religious extremists may feel differently, demonstrating some sort of social disapproval of gays would not be an "important public purpose", even if it was widely felt (which thankfully, it no longer is).
   
   
7. This bill is an important chance for Parliament to demonstrate that it supports the rights of all New Zealanders. I urge that it be passed.
   
   
8. I do not wish to make an oral submission to the committee.
   

Submission

Below is my draft submission on the Lobbying Disclosure Bill. Submissions are due today, so if you have a view on the bill, you need to get in quick:

• I support the Lobbying Disclosure Bill and ask that it be passed with amendments to make it consistent with the New Zealand Bill of Rights act 1990.
  
  
• The purpose of lobbying is to affect policy. It can lead to poor government decision-making, favours for friends, and laws stacked in favour of deep-pocketed special interests. Transparency will allow us to hold Ministers to account for listening to lobbyists and granting them special influence. It will allow the public to decide, through the electoral system, what lobbying is acceptable and what is not.
  
  
• The bill does suffer from some deficiencies. As the Attorney-General's section 7 report makes clear, it is poorly drafted, and as a result infringes excessively on the right to freedom of expression affirmed in the Bill of Rights Act. The problem here is not that the purpose of the bill is fundamentally inconsistent with freedom of expression, but that it is overbroad in its scope by e.g. applying to public servants communicating with Ministers, or media interviewing MPs. I support amendments to fix those problems.
  
  
• The problem of capturing direct lobbying by small business is more problematic. The Attorney-General implicitly supports using the Canadian formulation requiring lobbying be a "significant part of duties" before registration is required. But this formulation has been found to be difficult to apply in practice, and Canada's federal Lobbying Commissioner wants it removed. In this case, it needs to be recognised that small businesses have no greater right to lobby than larger ones, and should not be exempted.
  
  
• I do not support the amendment proposed by the Labour Party to exempt unions and NGOs from the coverage of the bill. Lobbying is lobbying, and it is for the public to judge whether it is acceptable.
  
  
• I do not wish to make an oral submission to the Select Committee.
  

Submission

Below is the draft of my submission on the Video Camera Surveillance (Temporary Measures) Bill. I have no idea if the committee is actually accepting submisisons from the general public (rather than only from invited experts), but hopefully it will be accepted.

1. I oppose the Video Camera Surveillance (Temporary Measures) Bill and ask that it not be passed in its present form.
2. The bill is a response to the ruling in Hamed & Ors v R [2011] NZSC 101, in which the Supreme Court ruled that the police had behaved unlawfully in their use of video surveillance. The ruling obviously requires that Parliament put in place a framework to allow such surveillance to be conducted lawfully and under judicial oversight. But the bill does not do this. Instead it simply declares this surveillance retrospectively lawful, and allows it to continue for a year without any proper checks and balances.
3. The retrospective component is a constitutional outrage. It has the effect of intervening in ongoing criminal trials for the benefit of the prosecution. This is a blatant violation of the rule of law, and if it was proposed in Fiji we would condemn it. We should not commit such outrages here.
4. The prospective component is inadequate. Video surveillance is highly invasive. It requires proper checks and balances. The framework in the bill does not include such balances. It allows the police to break into your home on the basis of a warrant to search for something, then stick a camera in your bedroom while they are there. There is no requirement on the police to prove that video surveillance is necessary for the investigation, or that the invasion of privacy is proportionate to the offence. The absence of any need to prove necessity allows the police to go on fishing expeditions, using warrants to plant cameras in the hope that something will turn up. And the lack of any proportionality requirement allows them to use extremely invasive surveillance for minor crimes.
5. Because of these flaws, I do not wish to see the bill passed in its present form.
6. As for what should be passed, I recognize that Parliament needs to set in place a framework to allow for future searches. This must involve proper judicial oversight, be limited to serious crimes, and intrude on privacy only where necessary. The framework from the existing Search and Surveillance Bill is one option. The framework used in the Crimes Act and Misuse of Drugs Act to cover audio interception devices is another. The latter has the advantage that police and judges are already familiar with the law, meaning it should not lead to unforeseen consequences or implementation problems. I do not believe that it is beyond the ability of the Committee, Parliamentary Counsel's Office, or Ministry of Justice to draft the necessary amendments in the available time.
7. As for past searches, I do not believe that retrospective validation is desirable. The police knowingly and deliberately broke the law, and they need to pay the price for that. Parliament should not let a state agency off the hook for flouting the law in this fashion. To point out the obvious, it will simply encourage them to do it again.
8. I do not wish make an oral submission to the Committee

Submission

Below is the draft of my submission on the Manukau City Council (Regulation of Prostitution in Specified Places) Bill:

1. I oppose the Manukau City Council (Regulation of Prostitution in Specified Places) Bill for the following reasons:
2. The bill seeks to reverse the effects of the Prostitution Reform Act 2003 by effectively recriminalising prostitution within the bounds of Manukau City. While Manukau has a problem with streetwalkers, it is largely a problem of its own making, caused by the effective outlawing of small brothels by local bylaws.¹ While this bill targets street prostitutes and their clients, when considered in combination with existing bylaws the effect would be to outlaw the entire sex industry within Manukau. This is clearly contrary to the intent of the Prostitution Reform Act 2003.
3. Recriminalising prostitution in Manukau would once again place sex workers outside the law, allowing them to be victimized with impunity. The PRA was passed precisely to end that situation. Any response should be based on the paradigm of harm-minimization, not on recriminalisation.
4. In 2005, a similar bill (the Manukau City Council (Control of Street Prostitution) Bill) was rejected by the House. At the time, the Local Government and Environment Committee noted [PDF] that the bill

   would present enforcement and jurisdictional difficulties. While local legislation typically addresses issues unique to a particular locality and does not involve itself with the criminal law, this local bill creates offences that criminalise behaviour that exists throughout New Zealand. If the bill were passed, citizens would be subject to conflicting criminal laws, depending on their current geographical location.

   It rejected this balkanization of New Zealand law, as well as the implicit attempt to overturn the PRA through local legislation.
5. The current bill has exactly the same problem. That alone is enough reason to reject it.
6. A review of the problem by the Ministry of Justice found that outlawing street prostitution in Manukau was unlikely to be effective, and would instead simply move street prostitutes to other areas while impairing their health and safety. It recommended a local community response instead.
7. The penalties for soliciting proposed by the Bill are disproportionate and draconian, and ten times higher than those which existed before decriminalization. If the bill is passed, these penalties should be reduced.
8. I do not wish to appear before the Committee.

¹ Chapter 3 [PDF] of the Manukau City Consolidated Bylaw 2008 restricts brothels to land zoned Business 4, 5, or 6, and not within 250m or sight of the entrance to a school, church, or community facility. This effectively restricts brothels to the outskirts of the city.

Submission

Below is my submisison on the Electoral (Finance Reform and Advance Voting) Amendment Bill. It was a rush job, and it shows, but I'd rather put in something than stay silent on a very important bill which will shape our elections (and potentially their outcomes) for years to come:

1. I support the Electoral (Finance Reform and Advance Voting) Amendment Bill in part, and oppose it in part. I ask that it be passed with amendments.
2. I support the move to allow greater access to advance voting. This will make it easier and more convenient to vote, in the process enhancing our democracy.

   Regulated period

3. I oppose the change to the regulated period. Until the passage of the Electoral Finance Act 2007, the regulated period was usually retrospective. This potentially caused problems, but in practice parties seem to have had no difficulty coping with them.
4. The move to end retrospectivity by having the regulated period start on the day the election is called has an unfortunate side effect: as election campaigns traditionally last between 6 and 8 weeks, it effectively increases the amount of money that can be spent by 50 – 100%, in that the spending cap which used to have to last three months will now apply for a shorter period of time.
5. The shift will also mean that the governing party will be free to program large amounts of electoral spending outside the cap. The opposition cannot do this as it runs the risk of being caught within the cap if an election is suddenly called. This both increases the government’s advantage, and increases the role of money in politics. It will create further pressure for an arms race between parties for donations, and consequent increase in the already disproportionate influence of large donors. This is undemocratic. Democracy is about “one person, one vote”, not “one dollar, one vote”.

   Third parties

6. I oppose the lack of restrictions on third parties and parallel campaigns. While parallel campaigns spending in excess of $12,000 will be required to register, they will not be subject to any spending cap, or even required to disclose how much they have spent.
7. This threatens our democracy. Spending caps are essential to ensure the fairness of electoral outcomes. They are designed to ensure a rough “equality of arms” between contestants. Without them, elections run the risk of being a contest of money, not votes. New Zealand recognizes this, and imposes spending limits and tough disclosure laws on parties contesting the vote at elections. But as the Royal Commission on the Electoral System noted, spending limits on political parties necessitate spending limits on third parties as well. Without them, parties will circumvent their spending cap and attempt to gain an unfair advantage by establishing front groups or colluding with existing groups – as graphically illustrated by National and the Exclusive Brethren during the 2005 election campaign.
8. I therefore ask that the bill be amended to impose a spending cap on third parties. The Citizens Initiated Referenda Act 1993 imposes a spending cap of $50,000, and this seems to be an appropriate level.
9. The lack of disclosure is also disturbing. Parties are required to disclose their campaign spending; third parties should be too. If someone is attempting to buy our democracy, at the very least we should be able to find out how much they are spending to do so.
10. I therefore ask that the bill be amended to require registered third parties as well as political parties to submit a return of their election expenses.

    Disclosure

11. Section 21 of the bill inserts new section 210(6A) into the Act, requiring parties to report their aggregated donations in three bands of (up to $1,000, split by anonymous, overseas, and other; $1,000 - $5,000; and %5,000 - $10,000). This is a welcome improvement in the disclosure regime which will provide greater scrutiny of parties, however it does not go far enough. I ask that the bill be amended to require reporting the number of donations as well as the amounts. I also ask that reporting be done in bands of $1,000, so that the public can see for example whether there is a spike of donations just below the $10,000 disclosure limit. As parties are already required to track donations in order to comply with aggregation rules (and are likely to track them for their own fundraising purposes), this is unlikely to impose any significant compliance costs on them. Assuming they use database software, then it is simply a matter of adding an extra report, a small, one-off cost.
12. I do not wish to make an oral submission to the Select Committee.

Submission

Below is my submission on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill, which I'll be submitting tonight. It has been informed by posts here and here.

1. I oppose the Electoral (Disqualification of Convicted Prisoners) Amendment Bill, and ask that it not be passed.
2. The bill has been found by the Attorney-General to violate the right to vote affirmed in the New Zealand Bill of Rights Act 1990 [PDF]. While some limitations may be acceptable (for example, those against convicted electoral fraudsters), a blanket ban irrespective of the seriousness of the offence or length of sentence is neither rationally connected to the purpose of punishing convicted criminals, nor proportionate to that purpose. This position has been upheld by the New Zealand High Court, and by the Supreme Court of Canada and European Court of Human Rights under their, similar human rights legislation.
3. I expect Parliament to take the views of the Attorney-General seriously. While the BORA is not entrenched, it should be regarded as setting limits on legislative power beyond which parliament should not go without very strong reasons. The simple desire to grub for votes by posturing as “tough on crime” is not such a reason.
4. The bill also violates the right to vote affirmed by Article 25 of the International Covenant on Civil and Political Rights, to which New Zealand is a party. In interpreting Article 25, the UN Human Rights Committee has ruled that any deprivation of the right to vote for criminal offending must be objective, reasonable, and proportionate. Blanket disenfranchisement does not meet these criteria. Passing the bill will likely result in criticism by UN human rights bodies, and potentially cases being taken by disenfranchised prisoners under the ICCPR’s First Optional Protocol, to which New Zealand is also a party. This will undermine New Zealand’s international reputation as a principled defender of human rights, and so undermine our influence on the world stage.
5. On a more philosophical basis, democracy is justified by recognition of the fundamental moral equality of all human beings. Everyone’s interests count equally, and no-one’s count for more than anyone else’s. That extends even to convicted criminals. They have interests, and they are no less important than mine. The selective disenfranchisement of the bill is inconsistent with this equality.
6. While some would argue that convicted criminals have shown by their actions that they are irrational and cannot be trusted to vote sensibly, it is no condition of democracy that votes be used “wisely” (and if it is, we have an argument for the disenfranchisement of ACT voters. Electing Roger Douglas again after everything he did to us? Clearly irrational!). In New Zealand, we let the senile and insane vote, and there is no rule stopping them from being elected to parliament. Rationality is not a factor – all that matters is equality of interests.
7. Similarly, it is incorrect to say that the restriction of voting rights is a punishment for criminal offending. In New Zealand, the punishment for offending is loss of liberty. And this is appropriate. Disenfranchisement has no deterrent value, and as pointed out by the Attorney-General is not rationally connected in any way to criminal offending.
8. Rather than restricting prisoner’s voting rights, the equality of interests on which our democracy is founded suggests that we should be restoring the vote to those already disenfranchised. Prisoners have interests. Those interests are no less important than yours or mine. They should therefore be allowed to vote. Anything less is simply undemocratic.
9. I do not wish to appear before the committee.

Submission

Below is the draft of my submission on the Electoral Referendum Bill, which I'll be sending down the virtual rabbit-hole later today. If you haven't already submitted, the Campaign for MMP has an online submisison form here.

1. I support the Electoral Referendum Bill, but have some concerns about specific provisions. I ask that the bill be passed with amendments.

   Referendum questions and process

2. I support the proposed process and wording of the referendum. In order to be perceived as fair, the referendum process must mirror that used in 1992 – 93 to enact MMP. The two-stage process and the questions asked do this. Any attempt to change them will be perceived as an attempt to stack the deck in favour of one outcome or another, and so undermine the legitimacy of the result. I applaud the government for resisting the urge to do this for its own political advantage.
3. I also support the proposal to review MMP if it wins the first referendum. I believe MMP is the best electoral system out of those on offer, but it is not perfect. In particular, the threshold is too high, resulting in unfair and undemocratic results. A review will allow these concerns to be addressed and the system to be improved, without regressing back to an unfair, undemocratic system.
4. I have grave concerns about the proposed voting process, in particular section 11(2) and all of subpart 3 of the Bill. While intended to save time and money, these undermine fundamental safeguards designed to protect the integrity of the poll. I would rather have a fair vote than a fast one, and I ask that these provisions be removed from the bill.

   Advertising

5. I oppose the current provisions relating to advertising, in particular the lack of any spending limit for referendum advertisers.
6. The referendum in 1993 did not have a spending cap. As a result, Peter Shirtcliffe and the Campaign for Better Government [sic] were able to spend over one million dollars in an effort to buy the outcome. They almost succeeded. The Electoral Reform Coalition have said that if the referendum was held a week earlier, they would have lost as a result of the CBG’s scare campaign.
7. The proposed referendum looks likely to be the subject of a similar big-money campaign from the same people. We may not be so lucky this time.
8. Against this background, the absence of spending caps and proper disclosure for referendum promoters smacks of the government trying to stack the deck, by allowing their friends to buy the outcome. This undermines the legitimacy of any vote for change.
9. Spending caps are essential to ensure the fairness of electoral outcomes. They are designed to ensure a rough “equality of arms” between contestants. Without them, elections run the risk of being a contest of money, not votes. New Zealand recognizes this, and imposes spending limits and tough disclosure laws on parties contesting the vote at elections. We also impose similar restrictions on groups advocating an outcome in a citizens initiated referendum.
10. The referendum should be subject to similar provisions. Advertisers should be subject to the same spending cap as applies under the Citizens Initiated Referenda Act 1993 ($50,000). And they should be required to disclose their spending, so we can see who is trying to buy our votes, and how much they are spending on it.
11. While spending limits and disclosure requirements are a prima facie restriction of freedom of speech, they are a justified limitation designed to protect the right of the people to free and fair elections (itself affirmed in the Bill of Rights Act). This is an important public purpose, and they are proportionate to that purpose. $50,000 is more than enough for a campaign to effectively advocate their position. What spending limits restrict is not freedom of speech, but the “freedom” to drown others out and buy elections.
12. I do not wish to make an oral submission to the Select Committee.

Submission

Some excerpts from my submission on mining on schedule 4 land:

Should these areas be removed from Schedule 4?

Land included in Schedule 4 is, by definition, land of the highest conservation value, protected by national park, reserve, or wildlife sanctuary status. In order to be recognised as a national park, an area must contain “scenery of such distinctive quality, ecological systems, or natural features so beautiful, unique, or scientifically important that their preservation is in the national interest” (National Parks Act 1980, s4). In order to be protected as a nature reserve, an area must be home to “indigenous flora or fauna or natural features that are of such rarity, scientific interest or importance, or so unique that their protection and preservation are in the public interest” (Reserves Act 1977, s20). In both cases, the land must be protected in its natural state, and its environmental and scenic values, its flora and fauna protected in perpetuity. Any form of mining is clearly inconsistent with this purpose.

In regards to the specific areas:

• The Te Ahumata plateau on Great Barrier island is part of the Hauraki Marine Park. The area includes critical habitat for the brown teal, an endangered species. There are estimated to be less than one thousand adult brown teal remaining in the wild, making any removal of habitat a real threat to the species’ continued existence. The area is also home to plants found only on the island such as the Great Barrier Island tree daisy and the Great Barrier Island kanuka.
• The areas in the Coromandel are home to kiwi, the Hochstetters and Archey’s frogs, and have significant ecological or recreational value.
• The Otahu Ecological Area is home to kiwi and the Hochstetter’s frog, as well as helping to preserve an intact natural sequence of aquatic habitat from the mountains to the sea. The Parakawai reserve also contributes to this sequence.
• The areas in Paparoa National Park contain intact podocarp forest and endangered ferns, and provide vital habitat for threatened birds, including Great Spotted kiwi, Kaka and Keruru.

All of these areas have significant ecological and recreational values which would be fatally compromised by mining. They should not be despoiled in this fashion.

Should the government let the Minister of Energy and Resources approve mining in conservation areas?

This is inappropriate. Schedule 4 land is managed by the Department of Conservation for conservation purposes. Joint approval would create a significant risk of those purposes being supplanted by other purposes contrary to those of the Conservation Act (for example, supposed economic benefits). This in turn would create a significant risk of unlawful decision-making, and of access agreements being challenged in court.

In addition, joint approval would muddy Parliamentary accountability for decisions to grant access to high-value conservation land. The two Ministers could point the finger at one another, and accountability could fall through the cracks. That is simply unacceptable, and erodes the principle that Ministers are accountable to Parliament, and through them the people.

Climate change: Submission

Below is the draft of my submission on the Climate Change Response (Moderated Emissions Trading) Amendment Bill, which I'll be submitting tomorrow. If you want to make a submission - and all you have to do is say "I oppose the bill for these reasons..." - you can do it online here. Submissiosn are due by Tuesday, so be quick!

1. I oppose the Climate Change Response (Moderated Emissions Trading) Amendment Bill and ask that it not be passed.
2. The bill would substantially weaken the existing emissions trading scheme, reducing incentives to reduce emissions while providing large ongoing subsidies to climate polluters at enormous cost to the taxpayer. This is both financially and morally unsound. In addition, the new scheme for allocation lacks transparency.

   Transition phase

3. The bill would create a transition phase until 1 January 2013, in which polluters would have a reduced liability to surrender credits, while the price of carbon would be capped at NZ$25/ton.
4. The reduced liability is unsound for two reasons. Firstly, it means that polluters are not exposed to the full marginal cost of their activities. This means a significantly reduced incentive to reduce emissions. Secondly, it will significantly reduce the demand for units in the transitional phase, which will in turn reduce the price and hence the incentive for forest planting. Forests are the key to reducing our emissions in the short-medium term, and are vital if we are to meet even the government’s low 10% - 20% 2020 and 50% by 2050 targets. Planting rates are highly sensitive to price, and so it is important that the incentive for planting is as strong as possible. I note that the Minister for Climate Change, Nick Smith, assumes future planting rates of 50,000 hectares per year [PDF]. This will not happen under the modifications proposed.
5. The NZ$25/ton price cap is very close to the present market price of NZ$22/ton, and lower than the price at this time last year. There is a real chance that changes in carbon prices or in the exchange rate will push international prices above this level. If this happens, then it will create a perverse incentive for deforestation (as forest credit is able to be internationally traded, forest owners could sell their credits at the higher price, then deforest and pay only the cap, pocketing the difference) as well as resulting in a direct taxpayer subsidy for pollution.
6. The effect of these changes is to socialize risk and privatize profit. Polluters – or rather, their mostly foreign shareholders - will benefit from large subsidies. Ordinary taxpayers will carry the cost of those subsidies and bear the risk of fluctuations in the carbon price. This is unfair and inappropriate. Those who engage in polluting activities should bear the risks, not the people of New Zealand.

   Industry allocation

7. The bill revises industry allocations, shifting to a production-based allocation rather than one based on historic emissions, and reducing the rate at which those allocations are phased out. This will see free allocations extended until 2090 or so. I oppose these changes for a number of reasons:
8. The shift to production-based allocation explicitly allows emissions to continue to rise, and again insulates polluters from the full marginal cost of the next ton of carbon. This will mean higher emissions than if they had to pay that cost.
9. The slow phase-out for free allocation commits us to higher emissions for longer, and makes it far more difficult to meet the targets necessary to prevent dangerous levels of anthropogenic climate change.
10. Free allocation to industry is simply a subsidy from the taxpayer for pollution. This is morally inappropriate. It turns the principle of “polluter pays” on its head; instead we will be paying the polluters. Worse, the proposed allocation scheme outlined in new section 161A (separating polluters into moderately and highly emissions-intensive, with a higher rate of subsidy for the latter) explicitly rewards the least cost-effective polluters, those producing the least value per ton of carbon. This is, to put it politely, arse-backwards.
11. I oppose subsidies in the economy. The removal of agricultural subsidies was one of the few good policies of the Rogernomics era. Companies which are not profitable without subsidies are a net loss to society, and we are better off letting them go bankrupt. If the government feels it must protect jobs, then at the rates it is proposing – approximately $25,000 per job in the case of Solid Energy’s proposed lignite-to-urea plant in Southland – then I am sure it can find something to pay them to do which does not involve destroying the environment in the process.
12. The fiscal cost of these proposed subsidies – ballooning to $2 billion per year by 2030 – is fiscally unsustainable. Currently the government is panicking about “a decade of deficits”. This bill looks to make those deficits permanent, and at a time when the government will be struggling to pay for the increased healthcare and retirement costs of an aging population. New Zealanders should not have to suffer cuts to their healthcare and retirement entitlements to subsidize the profits of Rio Tinto, Methanex, and other polluters.

    Transparency

13. As a final note, the new scheme for making allocations is less transparent than the one it replaces. Under the existing law, draft allocation plans must be published and are subject to public feedback. This allows us to see and debate who gets what. The bill would replace this with a simple regulatory power, subject to narrow industry consultation.
14. This level of secrecy is unacceptable. Billions of dollars are on the line in these allocation decisions, meaning that there is a tremendous incentive for corruption. In cases like this, everything must be seen to be above board. Making them in secret will simply invite suspicion and result in a further loss of trust in our political system.
15. I do not wish to make an oral submission to the Select Committee.

"Boy racers": Submission II

Below is the draft of my submission on the Vehicle Confiscation and Seizure Bill, which I'll be emailing away before Friday. It has been informed by posts here and here.

• I oppose the Vehicle Confiscation and Seizure Bill and ask that it not be passed.
• The chief purpose of the bill is to allow the confiscation and destruction of vehicles as punishment for illegal street racing offences. According to the government’s own advice, there is no evidence that this measure will work, and no empirical case has been made for it. According to Treasury comment on the Cabinet paper approving the proposal, there was “no analysis, evident in the paper, that any of the measures proposed are likely to be effective in influencing behaviour and achieving the stated objectives”.
• Policy should be evidence-based. This is not. It seems to be aimed primarily at securing “tough on crime” headlines for the Minister. That is not a proper goal for public policy.
• Recommendation: the entire confiscation and destruction regime should be removed from the bill.
• As part of this goal, the bill allows the confiscation and destruction of vehicles from third parties as “punishment” for the crimes of others. It uses the Orwellian phrase “substitute for the offender” to refer to these third parties. A better term would be “scapegoat”.
• Such collective punishment is as absurd as it is immoral. It violates fundamental standards of justice and ignores completely the link between behaviour and punishment. If it was performed in time of war, it would be considered a war crime. This bill would impose it in time of peace.
• In addition to being collective punishment, this confiscation of third-party vehicles also constitutes punishment without trial. Under the bill, person A is tried, and as a consequence person B’s vehicle may be confiscated and destroyed. Person B has not been charged with any offence, let alone been tried, and has had no chance to defend themselves. While they have access to an appeals process, this is with a reverse onus of proof which stacks the legal deck against them. This would not be an appropriate process for a speeding ticket, let alone the confiscation of a vehicle potentially costing tens of thousands of dollars.
• Crown Law has argued that as this confiscation “[does] not involve any penalty other than the loss of the vehicle”, it is not a punishment, and as there is no trial, it does not constitute punishment without trial. I hope that the committee can see the absurdity of such arguments. As with impoundment under the Land Transport (Enforcement Powers) Amendment Bill, it is performed by agents of the state, using the coercive power of the state, and inflicted explicitly for violation of the law (albeit by another). It is explicitly intended as a deterrent. These are all the hallmarks of a punishment, and it will be understood as such by those it is inflicted upon.
• Recommendation: if the confiscation regime is preserved, those sections allowing confiscation and destruction of vehicles owned by a “substitute for the offender” should be removed.
• I do not wish to make an oral submission to the Select Committee.

"Boy racers": Submission I

Below is the draft of my submission on the Land Transport (Enforcement Powers) Amendment Bill, which I'll be emailing away before Friday. It has been informed by posts here and here.

• I oppose the Land Transport (Enforcement Powers) Amendment Bill, and ask that it not be passed.
• The primary purpose of the bill is to create a bylaw scheme targeting “cruising”, punishable by automatic seizure of the vehicle on a second offence. This scheme has numerous problems, undermines the rule of law, and is contrary to the Bill of Rights Act 1990.

  Definition of “cruising”

• The bill defines “cruising” as:

  driving repeatedly over the same section of a road in a motor vehicle in a manner that—
  (a) draws attention to the power or sound of the engine of the motor vehicle being driven; or
  (b) creates a convoy that—
  (i) is formed otherwise than in trade; and
  (ii) impedes traffic flow
  

• The definition is potentially applicable to protest action, such as the 2008 “big rig” protest against increased road-user charges, which shut down the centre of several cities with organized convoys of large trucks. It thus potentially violates the freedom of expression affirmed in the New Zealand Bill of Rights Act 1990.
• Recommendation: the definition of “cruising” should be amended to explicitly exclude political protests.

  Bylaw regime

• New sections 22AB – 22AE would allow local authorities to enact bylaws banning “cruising’. New section 22AF provides that any vehicle breaching such a bylaw be issued with a warning notice for 90 days. Section 16 amends the Land Transport Act to require that any vehicle with a warning notice contravening such a bylaw must, if practicable, be impounded. This scheme has numerous problems and violates the Bill of Rights Act 1990 in numerous ways.
• The bylaw regime prima facie violates the freedoms of assembly, association, and movement affirmed in the BORA. Simply put, if someone wants to waste petrol by driving round and round a particular piece of road, they should be allowed to. If they are not driving unsafely (as tested by whether they are obeying speed limits and other relevant traffic regulations), then there is no harm to anyone but themselves, and no justification for state intervention. If they are joined by friends, then again provided it is done safely, there is no harm, and no justification for intervention. As John Stuart Mill noted, “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection”. There is no such case here.
• A case can be made for limiting vehicle noise, as this may do harm to others when it is excessive. But that is not the primary purpose of this bill.
• The punishment is grossly disproportionate. The proposed punishment for this “offence” of driving round and round in circles is (on the second offence) mandatory impoundment of the vehicle for 28 days. This is a significant punishment, which imposes significant costs. By way of comparison, a penalty of mandatory impoundment is only applied at present to disqualified drivers and drunk drivers who are grossly over the limit and already have multiple convictions for drunk driving. Here, it is being imposed for driving which is not unsafe, but which can at best be described as “annoying”. Such disproportionately breaks down the proportionality of offences and encourages (no, incites) disrespect for the law.
• It may be argued that impoundment is not a punishment. This is simply ridiculous. It is performed by agents of the state, using the coercive power of the state. It is inflicted explicitly for violation of a bylaw. Unlike the existing reasons for impoundment, it serves no safety purpose – driving round and round in circles within the road rules is not any sort of risk to safety. It is explicitly intended as a deterrent. These are all the hallmarks of a punishment, and it will be understood as such by those it is inflicted upon.
• The punishment is imposed without trial. Impoundment is performed by a police constable at the roadside. There is no hearing, and no need for evidence beyond their “reasonable belief” that a law has been violated. While this may be acceptable for a speeding ticket, it is entirely inappropriate to impose such a significant penalty as vehicle impoundment without proper judicial oversight.
• Recommendation: this section of the law should not be passed.

  Information requirements

• Section 24 would amend existing provisions of the Land Transport Act 1998 requiring drivers to provide identifying details (name, address and date of birth) to include occupation and telephone number. This seems totally unnecessary, and simply an information grab on the part of police. It prima facie violates the freedom of expression (which includes the freedom to say nothing), and so must be justified. No such justification is provided, and no evidence is submitted that there is a problem with identifying drivers which would be solved by requiring them to submit further information. The police do argue that there is a problem with drivers providing false details, but it is difficult to see how requiring further details which can be easily falsified will solve this.
• There are significant concerns in a democratic society around any compulsion to reveal information or prove your identity to police. “Papers, please” is widely taken as the hallmark of totalitarianism. Requirements to prove identity establish a power relationship with police and the state in which citizens are forced to be subservient – the exact opposite to what should prevail in a democracy. Such requirements should therefore be kept to an absolute minimum, and ask only for information that is strictly required to meet an important public purpose. A policeman by the side of the road may need to know my name (and address, and date of birth, as names are not exclusive) in order to verify that I do have a driver’s license and am not currently the subject of an arrest warrant – but they do not need to know what I do for a living, or what my phone number is. And they certainly should not be able to imprison people for refusing to reveal what is fundamentally private information.
• Recommendation: this section should be removed.
• I do not wish to make an oral submission to the Select Committee.