"Boy racers": legal gymnastics

Last month I wondered in passing whether the government would be able to do the legal gymnastics required to avoid finding that its anti-"boy racer" laws violate the New Zealand Bill of Rights Act. The BORA-vets have now finally turned up on the Ministry of Justice site, and they show considerable acrobatic ability in finding that there are no inconsistencies.

On the Land Transport (Enforcement Powers) Amendment Bill (which allows "anti-cruising" bylaws with mandatory impoundment as a penalty), Ministry of Justice advice identified numerous conflicts with the BORA, including

freedom of peaceful assembly, freedom of association, freedom of movement, freedom from unreasonable search and seizure, liberty of the person and the right to justice

In addition, there were also problems with disproportionate punishment and punishing the innocent. The BORA vet ignores these substantive issues to focus on two: whether the "without reasonable excuse" language in the definition of "cruising" violates the presumption of innocence, and whether impoundment constitutes an unjustified seizure. Naturally, it finds that neither is a problem - and their arguments here are not unreasonable (they are right in that "without reasonable excuse" language is a common part of driving regulation, and that bans on search an seizure are primarily related to privacy, not property rights). But in the process, it also considers whether mandatory impoundment constitutes a criminal penalty imposed without charge or trial. And here, they simply leave the planet. While carried out by law enforcement officers, triggered by a belief that an offence has been committed, and explicitly recognised by Crown Law as having "substantial adverse consequences" intended to have a deterrent effect, the fact that it is "broadly separate from the criminal process" means that it is not a penalty. In other words, because it is imposed without trial, it is not punishment without trial. Only a lawyer could be this perverse. But those whose vehicles are impounded by agents of the state on an allegation of criminal offending will be under no illusions about what is going on: this is a penalty for their alleged offending, done on the word of a police officer alone, with no hearing or evidence involved. If that's not punishment without trial, then its difficult to see what would be.

(Oh, and while I'm at it, those "substantial adverse consequences" morph into "a limited character" within about six lines. I suggest we take the Attorney-General's car off him for 28 days and see how "limited" he thinks it is...)

Concluding that impoundment is not a punishment allows them to ignore whether it is disproportionate, and whether people should suffer the same penalty for driving round and round the Square on a Friday night as they would if they were a severe repeat drunk driver.

On the Vehicle Confiscation and Seizure Bill (which allows car-crushing, and introduces the Orwellian term "substitute for the offender" to allow the seizure and destruction of the vehicles of innocent third parties), Crown Law recognises that this raises the question of

whether the third party is being punished for the offending of another without charge or trial.

Unfortunately they then perform a similar legal trick. While the seizure of an offender's vehicle, whether for unpaid fines or as part of a criminal sentence is a punishment, seizure of a scapegoat's isn't because they haven't been charged with anything. The fact that there is no criminal record and no finding of guilt means that the taking and crushing of your vehicle (and a prohibition on owning another one for a year) is not any sort of penalty or punishment. And since its not a punishment, it can't be punishment for the offending of another or punishment without trial. As I said, only lawyers could be this perverse. Those whose vehicles are seized for the actions of another will be under no illusions about what is going on or what is intended: they are being punished, for something they are not even accused of doing. It's not just absurd, but fundamentally immoral.

With these reports, Crown law has shown the worthlessness of the section 7 reporting procedure - the government's legal whores (sorry, that's needlessly insulting to members of the oldest profession) will say what they are paid to say, and twist things as much as they need to to earn their thirty pieces of silver. The only way we are going to get proper compliance with the BORA by the government is if we allow the courts to overturn laws for inconsistency.

A referendum on the minimum wage

Back in February, Unite responded to the government's decision to raise the minimum wage by a miserly 50 cents an hour by requesting a citizens initiated referendum on the issue. They've now had their question approved and will be launching their campaign tomorrow [PDF].

The question for the referendum is pretty simple:

Should the adult minimum wage be raised in steps over the next three years, starting with an immediate rise to $15 per hour, until it reaches 66% of the average total hourly earnings as defined in the Quarterly Employment Survey?

The task now is to collect 300,000 signatures within 12 months. It will be difficult. But you can start by downloading the signature form and background information here, passing it round to your friends, and posting it back. You can also subscribe to the campaign newsletter here.

Sustainable biofuels

One of National's first acts on gaining the government benches was to reward their friends in the oil industry by abolishing the previous government's Biofuels Sales Obligation, which would have seen oil companies required to sell an increasing percentage of biofuels. Instead, they replaced it with a grants scheme, which would give token subsidies to New Zealand biodiesel producers, but not actually do anything to create a market or require oil companies to sell them. But the Greens have noticed a problem: most biofuels produced in New Zealand are sustainable, in that they have genuinely lower emissions, don't compete with food crops, and aren't gouged out of tropical rainforests. This is even more true of biodiesel, which tends to be made from waste or from meat byproducts like tallow. But under the government's scheme, these sustainably produced fuels could face competition from unsustainable imported fuels such as those based on palm oil.

Fortunately, the Greens also have a solution: a member's bill [PDF] setting a sustainability standard for all biofuel sold in New Zealand, whether locally produced or imported. It's a good idea, which protects the environment while encouraging local production, and it would be good to see it drawn from the ballot.

The return of the smacking debate

It's just over a month to go until people start receiving ballot papers for the upcoming referendum on smacking, and so the debate is restarting. First out of the blocks is Children's Commissioner John Angus, who is unequivocal in his support for the law:

Dr Angus said he supported the new law because vulnerable children should get the same legal protection against assault as adults, and because smacking was not usually a consistent or effective form of discipline.

"It's linked to how tired and frustrated parents are rather than the nature of the behaviour that is trying to be changed," he said. "There is some evidence that what children remember is that someone who is supposed to love them inflicts pain on them, rather than making a link with a particular behaviour."

Evidence-based policy versus religious fanaticism and talkback redneckery: you'll get to decide at the end of next month.

Meanwhile, you may have noticed the shiny new Yes Vote banner at the top of the page. I don't normally carry advertising (hell, thanks to Adblock I don't normally even see advertising), but this is a worthy cause, and I'm happy to donate some space to it. If you'd like one yourself (or the skyscraper it replaced), you can get one here.

Your racism is showing

Tim Selwyn has always had a nasty racist streak, and unfortunately its on display again in his comments over Immigration's vile and discriminatory treatment of pregnant women, complete with screaming about "a short-circuit of the immigration system", "birthing holidays", and of course "effect[ing] a colonial outcome of lessening the proportion of indigenous people even faster than what we have now". Which sounds a lot like a local version of the BNP's fears of the English being "swamped in their own country"...

But in addition to the screaming racism, Selwyn is simply factually incorrect. This is not about "birthing holidays" or children gaining citizenship, because (as even he notes) the law now prevents that (yes, I opposed that change, but that's neither here nor there on this occasion). Neither is it about "short-circuiting the immigration system" - Immigration have shown their willingness to evict the parents of New Zealand citizens, and they're hardly going to show any greater concern when the child is not a citizen (again, I think Immigration are arseholes in those cases as well, but that's not particularly relevant here either). Finally, its not about medical costs; both examples highlighted in the last week have had both the ability and willingness to pay.

What this is about is discrimination against women. The elephant in the room which Selwyn steadfastly ignores is that only women get pregnant, and that its a pretty ordinary part of life. Classifying pregnancy as "unhealthy" (like tuberculosis, or ebola, or H1N1) is prima facie discriminatory against women - something we recognise very specifically in the Human Rights Act (the ban on gender-discrimination there is "sex, which includes pregnancy and childbirth"). Immigration has an exemption to the law, but that doesn't solve the moral problem. It is absolutely unacceptable (both legally and morally) in this country to fire a woman for being pregnant. How then can it be considered acceptable to cancel her visa deport her?

Visitors to this country are entitled to go about their ordinary lives for the duration of their stay. That means that no matter what their intentions some of them will be or will become pregnant while here. The current discriminatory policy is akin to sticking a "no girls allowed" sign up at the airport. Quite apart from the effects that would have on our tourism industry, it is simply morally untenable.

An 18th century model of democracy

Three years ago Tongan's rioted for democracy, burning the centre of Nuku'alofa after their monarch and largely appointed Parliament refused to move on democratic reform. Since then the Tongan government has been on a slow march to democratisation, with several committees and commissions established to investigate a way forward. The most important of these has been the Constitutional and Electoral Commission, appointed last year by Parliament with a mandate to produce a blueprint for reform. This week it presented an interim report [Note: SSL issues; ignore them and read it], and while its not a blueprint (there are no specific recommendations), it provides some idea of where Tonga is going.

Currently Tonga is stuck somewhere around the seventeenth century of Westminster constitutional development. The monarch is in theory absolute, the legislature is dominated by crown appointees and nobles "elected" by a tiny constituency, and the people have no practical say. In order to avoid the seventeenth century solution to that problem, the Commission is proposing to move Tonga's democracy boldly into the eighteenth century, with the Prime Minister and Cabinet appointed by Parliament rather than the monarch, more elected MPs, but also retaining the nine noble's representatives (out of 29 nobles in total), a monarchical veto, and the possibility of unelected Ministers (who it seems would take a seat in Parliament; necessary for accountability, but open to gross abuse if a government needs to strengthen its majority). As reform goes, its a massive improvement on the present system, but at the same time it also highlights just how far behind modern democratic practice Tonga is, if this is as fast as they think they can move.

Unfortunately, the timeline is getting tight. The king has promised and the people expect elections under the new system next year. The Commission must report back by November, but this leaves the Parliament very little time to enact the necessary laws. OTOH, if the king breaks his promise of elections, then there's a high chance of another riot. Hopefully that will focus people's minds.

Hanging on by his chewed fingernails

Another day, another Ministerial resignation for Gordon Brown. This time its Environment Minister Jane Kennedy, who quit in protest against Brown's style of "government by smear" (against his own party). While Brown will find a warm body to fill the portfolio, an increasing number of rats just don't want to work on his sinking ship anymore, and I'm really wondering how long it can continue for.

Not that ditching Brown will really do any good - the death spiral is too deep to salvage the next election, and it stems from deeper problems than just the identity of the man in charge. Fundamentally, Labour has abandoned its base, preferring instead to toady to slick traders from The City - just like our Labour Party in the 80's. And just like New Zealand, they're frantically rearranging the leadership and Cabinet deckchairs rather than admitting their betrayal.

There comes a time when disgust at the incumbents wins out over fear of the alternative. UK Labour passed that point long ago. The only question now is how long they deserve to spend in opposition.

More vile discrimination

Immigration has done it again, kicking out a Lithuanian tourist because she was pregnant, despite health complications which now make it dangerous to travel. So, not only should women not come here as students - they should not come here as tourists either, just in case, y'know, they get pregnant or something. You can just imagine how that will play in our tourist markets.

This is a vile, discriminatory, misogynistic and fundamentally immoral policy, which is not in keeping with our liberal and humane values (or even simple decency). It's also getting us into some pretty nasty territory. Immigration is basically offering pregnant women a choice between abortion or deportation, and you don't need to be a "pro-lifer" to regard that as a monstrous intrusion into an area the state has no business coercing people in.

Update: And just after I do my nut, I read that they've allowed her to stay. Which is a great outcome in this case, but its the general policy we need to change.

No education for pregnant women

That's the upshot of Immigration Minister Jonathan Coleman's response to the vile and discriminatory treatment of pregnant Korean woman Sung Won Kim:

“Under New Zealand immigration policy, student permits are not granted to pregnant women as it places extra strain on the health system, both in terms of money and resources available to New Zealanders. Also, the express purpose of a student permit is to enable study.

...because obviously, people can't do that while they're pregnant, the evidence of countless women over numerous years notwithstanding.

This is a simply medieval attitude, more reminiscent of the Taleban than our supposedly modern, liberal democracy. And the Minister should be ashamed for making it. We would not tolerate this discriminatory policy in our workplace, and we should not tolerate it in our immigration system.

How to break proportional representation

I've been crunching some numbers on the UK's European Parliament election results. And despite the system they use supposedly being "proportional", they show significant disproportionalities. Here's the results sans Scotland, which won't be out till tomorrow:

The reason for this unfairness is because for these elections the UK chops itself into 12 districts (9 regions plus Scotland, Wales and Northern Ireland) of between 3 and 10 seats, and applies the D'Hondt method within each one. This effectively introduces a large threshold (upwards of 10%) within each region, and allocates the "rounding error" to the larger parties 9as D'Hondt favours them). Which adds up on a national scale to the sorts of disproportionality seen above.

The EU's rules for how member states run elections are pretty simple, and require only three things:

• The system must be a form of proportional representation, under either the party list or Single Transferable Vote system.
• The electoral area may be subdivided if this will not generally affect the proportional nature of the voting system.
• Any election threshold on the national level must not exceed five percent.

The level of disproportionality caused by subdivision in the above results means that the UK fails to meet these basic criteria. It should reform the electoral system it uses immediately, either to do away with districting, or to introduce a Swedish-style national topup.

More UK-EP elections results

More UK-EP elections results: the BNP has won a second seat, sending their führer Nick Griffin to Brussels. I'm sure he'll get along just great with his Dutch equivalent. This is how crap UK Labour is: that they allow these monsters to grow in their own backyard.

Speaking of crap, Labour came fifth in SouthEast England, behind the Greens. Fifth. And they're in government at the moment. That's some backlash.

New Fisk

Lebanese voters prevent Hizbollah takeover
A glimpse of Obama in a Cairo emptied of its people and its poor

Reducing congestion with free buses

The Greens have announced a plan to reduce traffic congestion in Auckland: free public transport for school students. Its not as crazy an idea as it sounds. Here in Palmerston North, they have free bus travel for tertiary students - and with a quarter of the city travelling over the bridge to Massey or the CRIs every morning, it has made a tremendous difference. There is still congestion, but noticeably less of it. And as a bonus, it has improved bus services generally, at least in terms of the size and quality of the vehicles.

Would the same happen in Auckland? I think it is at least worth investigating. And the cost - $25 to $50 million depending on demand - is relatively low. It's certainly far lower than the couple of billion cost of the Waterview extension, and than the estimated $900 million a year cost of bad traffic flow to the Auckland economy it is supposed to solve (I take that figures with a grain of salt, given that it seems to assume that the extra trip time would be spent working, rather than sleeping in in the morning, but the important thing is that transport planners believe it). A couple of year pilot programme would be a significant funding decision, but small compared to the billions they have already wasted on concrete. It should be a priority for the government in the next budget.

(Meanwhile, I'd like to see other cities experimenting with this sort of policy as well. unfortunately, thanks to the government's canning of regional fuel taxes, they no longer have the dedicated money to fund it).

Euro elections

Last week, voters in 27 countries across the European Union went to the polls to elect a new European Parliament. The elections are some of the biggest in the world - or would be, if anyone bothered to vote on them - and elect the EU's sole democratically legitimate body. Today, the results are coming back. The headline result is that the Party of European Socialists - traditionally the second biggest group - got hammered, losing a quarter of its seats in the midst of the biggest recession (and biggest capitalist mistake) the world has seen in a lifetime. Meanwhile, the European People's Party–European Democrats, traditionally the largest group, have held steady despite the defection of the UK Conservatives and the shrinking of the Parliament.

But there is good news from this election: The Swedish Pirate Party - an anti-copyright party founded by file traders - gained 7.1% of the vote there, and won one seat. Take that, copyright mafia! And in the UK, Labour might do badly enough to precipitate the final ouster of Gordon Brown. Not that his replacement will be any better, and not that it will save the party and prevent them from being decimated at the next election, but it will be some deserved revenge against the man who consistently done the wrong thing and betrayed the promise of Not Being Tony Blair.

The really bad news is that the white supremacist BNP have won their first seat. Which means they'll now have access to Parliamentary funding to build their organisation and spew their hate. Something else we can thank Tony and Gordon for.

UKK results aren't final yet, so its not clear whether UK Labour has been pushed into 4th place behind the anti-Europe UKIP and the LibDems. If they are, hopefully it will mean Brown is gone by next week.

(More coverage, as always, on European Tribune)

New Fisk

Words that could heal wounds of centuries

Not guilty

The jury in the David Bain retrial has reached its verdict, and found him not guilty on all counts.

Bain was imprisoned for twelve years. This verdict means he was imprisoned wrongfully. He is therefore morally entitled to compensation. Unfortunately, the government does not recognise this; it requires those freed after a miscarriage of justice to prove their innocence, rather than accepting their strict liability for unlawful imprisonment contrary to the accepted standard of "beyond a reasonable doubt".

That position is morally wrong, and the government should change it.

Politics matters

Over on PA System, a comment caught my eye. After talking about how they are "not really passionate about politics", Rik goes on to say:

I'm happier with John Key steering the ship than I was with Helen Clark.

You, obviously, are not.

But that's cool - I patiently waited for Labour to get the boot and now you can do the same with National.

But nothing really changes at the end of the day.

Yes it does. Labour changed the lives of hundreds of thousands of New Zealanders in its time in government by repeatedly raising the minimum wage, re-universalising the public health system (well, almost), introducing paid parental leave and working for families, and ensuring that the Reserve Bank encouraged employment rather than its opposite. National will change the lives of hundreds of thousands more with its tax cuts for the rich and failure to protect jobs (this list is shorter because they have only been in power for six months; I'm sure it will expand in the fullness of time)

What goes on in Wellington is not some amusing sideshow for the entertainment of the "beltway" elite, or some tiresome distraction from the "real" business of farming mate - it matters. It directly affects people's lives for good or ill, on everything from whether they have enough to eat to whether they can beat their children.

People who don't care about it are simply fools.

(Yes, I'm repeating my response on PA System, but it deserved a wider audience)

Why we needed to repeal s59

The Southland Times reports on the case of a Ranfurly woman who severely beat her seven-year-old son with a soup ladle. She has now pled guilty to assault and has been remanded in custody.

A few years ago she would have been able to claim a defence of "reasonable force" for the purposes of correction - just like the infamous horse-whip lady. That defence might have worked, or it might not - but I for one am glad it is not available. it is never reasonable to hit a child, and those who think it is are just abusive monsters.

Submit!

The Transport and Industrial Relations has called for submissions on the Vehicle Confiscation and Seizure Bill and the Land Transport (Enforcement Powers) Amendment Bill. Two copies for each bill, by Friday, 3 July 2009, to:

Transport and Industrial Relations Secretariat
Parliament Buildings
Wellington

These bills are absolutely draconian. They punish the innocent, impose punishment without trial, undermine the rights of the accused, and generally trample all over the BORA so the Minister can grandstand about how "tough" she is. Even if you are not a boy racer and hate the obnoxious little creeps, you should care about this. So speak up, and protect your human rights from a draconian and authoritarian government!

Making a submission is as easy as writing a letter saying that you support or oppose the bill and stating the reasons why. If you need help, the Office of the Clerk has a handy guide here [PDF].

Transparency coming to Parliament?

Following the Greens' decision to release their Parliamentary expenses, Speaker Lockwood Smith has convened a committee, and decided in principle to follow suit:

“The committee was conscious of the public interest in this issue and agreed to develop a disclosure regime to release information about the expenses of members of Parliament paid through the Parliamentary Service,” Dr Smith said.

“Members of the cross-party committee will take the ideas discussed at today’s meeting back to their respective parties.”

This is good news, but at the same time I am suspicious that parliament will come up with some sort of "grace and favour" scheme, in which MPs "voluntarily" release their expenses but are under no obligation to do so. And that is simply not good enough. "Grace and favour" has no place in a democracy; what democratic citizens need is a legal right to obtain this information, enforceable by either the courts or the Ombudsmen. We have exactly such a system already, in the form of the Official Information Act. All we need to do is bring the Parliamentary Service under it.