New Fisk

From Washington this looks like Syria's 'Benghazi moment'. But not from here

"The Constitution simply does not allow for 'laws of this sort'"

Those are the words of Judge Stephen Reinhardt of the US 9th Circuit Court of Appeal, in his ruling overturning California's anti-same-sex marriage Proposition 8. The court found that the sole purpose and effect of Proposition 8 was

to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.

This is not a legitimate purpose for passing a law, even in America, and so Proposition 8 has been declared unconstitutional.

But the fight's not over. The ruling will of course be appealed to the US Supreme Court, which has been stacked with conservatives by Bush. The question is whether they will uphold American values, or contort themselves to find some way of reading "except for gays" into the 14th Amendment in order to uphold bigotry.

The 9th Circuit's full ruling is available here.

An admission

The drawing of David Clark's Holidays (Full Recognition of Waitangi Day and Anzac Day) Amendment Bill from the ballot today has produced this admission from John Key:

Prime Minister John Key said the National Party caucus would have to discuss whether to support a law change.

"When it was an issue last year I said I'd get some advice on it, I haven't actually seen that advice yet,'' he said.

Translation: "when it was an issue last year, I lied by pretending to care, in the hope it would go away".

Lets not let him get away with that this time.

Drawn

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

• Holidays (Full Recognition of Waitangi Day and Anzac Day) Amendment Bill (David Clark)
• Joint Family Homes Repeal Bill (Simon O'Connor)

O'Connor's bill has previously been covered in "In the ballot" here. Clark's bill is about Mondayising public holidays.

There were 40 bills in the ballot today, including several new ones, so I'll hopefully be doing an "In the ballot" post covering them soon. There's also a facility for MPs to promote and publicise their bills through the parliamentary website, which allows them to publicly indicate support; hopefully we'll see it being used a lot this term.

A blank cheque for future privatisation

One of the protections of the State-Owned Enterprises Act is that it is intentionally difficult for the government to sell our assets. While it can add companies by Order-in-Council, the only way a company can be removed from the Act (and hence sold) is by an Act of Parliament. Which is by its nature public, with built-in requirements for public consultation - meaning that they can't do it by stealth without asking us first.

If National gets its way over its "mixed-ownership model", all that is going to change. Their consultation document for Maori [PDF] released last week included details on the legislation, including this bit:

Creation of a power to remove the Mixed Ownership Model Companies from schedules 1 and 2 of the SOE Act by order in council. This is necessary to be able to remove the companies from the ambit of the SOE Act which prohibits the sale of shares. By using an order in council, the Government will have the flexibility to remove each company when it believes market conditions are appropriate.

...and to do it in stealth, without consulting us. Flick of the pen, law of the land, and our assets will be lost forever.

The good news is that normally such an Order will be judicially reviewable. And since it will be an application of a power under the SOE Act, it will be bound by s9. Which means that any use of this power in a manner inconsistent with the principles of the Treaty of Waitangi - say, by trying to transfer an asset without ensuring protection for future Treaty claims over water - will be stomped on by the courts, exactly as it was back in 1987. Unless of course National explicitly prevents it - something which would be entirely consistent with the contempt they have shown for the rule of law.

Privatisation lenses

How has the government managed to get itself into such a hole already over its plans to part-privatise our State-Owned Enterprises? Clearly, they just didn't think that the plan to remove the Treaty clause from those SOEs would be contentious. But why?

I think it comes down to how you see part-privatised SOEs. National clearly sees them as private companies the government just happens to own a majority of - rather like Air New Zealand (if you ignore its past as an SOE). Under this view, they should be treated like any other company, and therefore the Treaty clause, and other protections requiring social responsibility and good employment practices and oversight by the Ombudsman and OIA are redundant. Meanwhile, the rest of us see them as state monopolies the private sector is going to be allowed to take a stake in. Under this view, those protections are essential to their role, and part of the deal; if private shareholders don't like such operating under constraints, then obviously they're welcome to put their money elsewhere, in the hands of our usual business managers (you know, the ones who have produced such successful companies as Hannover Finance, South Canterbury Finance, and Bridgecorp).

New Fisk

An attack on Tehran would be madness. So don't rule it out
History keeps repeating itself – as do clichés

Shearer panders to rednecks

Yesterday was Waitangi Day, which saw the usual scenes of protest at Te Tii Marae. Like most kiwis, I took the day off, and enjoyed my holiday. But one thing I think that is worth commenting about in the aftermath is David Shearer's calls for the day to be "a time for celebration" and free of politics. On the latter point, given the nature of our country's founding, and our government's subsequent failure to adhere to the deal, its hard to see how the day can be about anything else. And against that background, calls for rah-rah patriotism and an end to protest are simply an attempt to deny our history and a demand for Maori to STFU.

But Maori aren't going to shut up, and nor should they. The government signed a deal. They broke it. They're still breaking it. Expecting people to take this meekly and in silence so you don't have to think about what sort of a nation we are and where all that lovely farmland came from is expecting far too much.

If Shearer really wants Waitangi Day to be a day of celebration, he should be working to give us something to actually celebrate, by ensuring that there is full redress for past grievances and strong mechanisms (such as an enforceable Treaty clause in the BORA) to prevent new ones from occurring. Absent that, he's simply pandering to rednecks. I was hoping he'd be better than that, that he wouldn't go through the same Pagani/Trotter "let's try racism (because it worked for Brash)!" strategy. Sadly, it seems I was wrong.

The perils of pollwatching

DPF has a blog up on Stuff today, breathlessly asking whether National is now the underdog, based on the results of the latest Roy Morgan poll (which shows a slight uptick in support for Labour and the Greens). Its a perfect example of the pollster's fallacy, the imbuing of monthly statistical noise with meaning. As the pollsters always tell us, what matters in polls is the long-term trend, not today's results. And yet pollster DPF seems quite happy to ignore this when he has a deadline to meet - even though he presumably knows better.

(This, BTW, is why I don't blog about polls: because I'm not interested in pretending that noise - as opposed to broad levels of support - is meaningful).

What this poll does show us however is how tight things are for National. With no significant coalition partners left, they need to practically win a majority themselves in order to be able to govern easily. They almost did that this time, with 47% of the vote (which wasn't enough to save them from John Banks). But as a second-term government, they've got nowhere to go but down. Which gives them problems not just at the next election, but in the longer term as well. Under MMP, parties need friends - and National has none. No wonder they wanted to get rid of it!

A picture is worth a thousand words

From this month's CTU Economic Bulletin [PDF]:

This is a revised version of the graph, using a more recent series of the top 1% income share, but it tells the same story: unionization is correlated with equality, and deunionization with inequality. And with good reason: if workers are able to organise and bargain collectively, they are more able to gain a fair share of growth, and resist the erosion of their living standards by the greedy rich.

At this stage, its worth remembering that National are planning further attacks on workers' rights in an effort to crush unions even further. Their rich mates will do very well out of that. As for the rest of us, we'll be left with an even more unequal and unjust society.

Headdesk

The UK has a problem: it has too much nuclear waste. Not only is this an environmental risk; it contains plutonium, the essential ingredient for really big nuclear weapons, making it a proliferation risk as well. Fortunately the nuclear industry has a solution: burn the waste in their new fast-breeder reactors!

The reactor is a fixed small size, producing around 311MW of power – equivalent to 100 large wind turbines running non-stop or a quarter of a conventional nuclear plant. The reactor core is submerged in a pool of liquid sodium, which acts as a coolant, transferring the heat to the turbines where electricity is generated. Designers say that passive safety features ensure the reactor won't go into meltdown if its power source is cut off, which is what happened in last year's accident at Fukushima, Japan.

In the proposal currently under discussion, a pair of Prism reactors would be installed at Sellafield and optimised to consume the plutonium stockpile as quickly as possible. If, however, the government decided to prioritise low-carbon power generation rather than rapid waste disposal, a larger number of Prism reactors could theoretically be combined with a fuel recycling system to extract as much electricity as possible from the plutonium and depleted uranium.

According to figures calculated for the Guardian by the American writer and fast reactor advocate Tom Blees, this alternative approach could – given a large enough number of reactors – produce enough low-carbon electricity from Britain's waste stockpile to supply the UK at current rates of demand for more than 500 years.

Unmentioned in the article is how it gets that waste to last so long: because the reactor in question is a fast breeder - meaning that it makes plutonium. In other words, the nuclear industry's "solution" to Too Much Plutonium is to make more of it. In reactors cooled by liquid sodium, meaning they explode at the first drop of water.

In the wake of Fukushima, and with governments hysterical about the risks of dirty bombs and proliferation, I don't think the UK people will buy that deal. The problem is that (thanks to an unfair electoral system) the UK government doesn't think it has to listen to them...

Climate change: Cross-purposes

The government dumped its Briefings to Incoming Ministers today, and I've spent the last few hours skimming a few of them. As someone interested in the sustainability of my future, I was particularly interested in the energy and environment BIMs; unfortunately, what they show is that the government is working at cross-purposes in this area.

First, here's the Ministry for the Environment [PDF], with a clear idea of what we need to do:

The Government, therefore, needs a mix of policies that demonstrate credible action in the short term and position New Zealand well to deliver the substantial emissions reductions needed in the longer term. A smooth transition to a low carbon economy will be needed, with the emphasis being on options that enable New Zealand to produce more with fewer emissions, generate co-benefits and gain competitive advantage.

And then there's the Ministry of Economic Development's briefing for the Energy and Resources portfolio [PDF]. Its chief priority?

Encouraging investment in the Crown’s petroleum and mineral resources

Yes, while MfE is talking about the need to move to a low-carbon equality, MED is pushing for more oil, more gas, more coal, promising self-sufficiency and mega-profits if we subsidise foreign oil explorers more. As for the government's target of 90% renewable electricity generation by 2030, they have this to say:

The Ministry’s view is that commercial enterprises are best placed to identify the lowest cost generation mix, the government’s role is to ensure there are no undue barriers to invest in generation of any type, and environmental effects are priced wherever possible. The relative economics of generation types is dictated by exchange rates (a higher exchange rate favours high capital cost options such as wind), emissions price (a high emission price favours renewables) and input resource availability and price (the availability and price of gas has a major bearing on gas plant economics).

"Leave it to the market", in other words. Unfortunately, according to their own projections [XLS], the market is not going to deliver. The reference scenario in the latest New Zealand's Energy Outlook shows us achieving just 81% renewables by 2030, thanks to new builds of gas, oil, and even coal generation.

A competent Ministry would highlight this discrepancy, and present options for resolving it. A government which cared about the target would demand they did so. Instead, MED's "leave it to the market" approach puts us on the path to failure.

But its worse than that - because while they're ignoring renewables, MED is also talking up new non-renewable generation:

New Zealand also has significant non-renewable resources which could be developed. As well as traditional oil, gas and coal, there are emerging new technologies – such as underground coal gasification, coal seam gas and methane hydrates – which open up new future opportunities. Supporting technologies such as carbon capture and storage will in time make it possible to develop some of our resources that are not currently environmentally or economically viable.

They don't go into any further detail on this, but it displays the mindset at work. MED doesn't care about climate change. They don't care about sustainability. All they care about is digging things up and burning them - and the cheaper, the better.

This sort of disconnect between goal and implementation will doom our climate change policy to failure. It is the government's job to do something about it, to ensure that their departments are working to achieve their goals, rather than to thwart them. The question now is whether they will, or whether they're happy for this subtle sabotage of their own stated policies.

No right to know

What are our government's foreign policy priorities for the next three years? What are the problems on its immediate radar? In the past, you'd have been able to find out, in general terms at least, through the post-election Briefing to the Incoming Minister (BIM). But not under National. This year's BIM [PDF] has been almost entirely censored, the majority of its contents replaced by a single statement that the contents have been "withheld under s6(a)". Under National, we have no right to know what our foreign policy is.

Its a perfect example of the cult of secrecy which infects our entire foreign-policy establishment. And it makes a mockery of the claim that the government is acting on our behalf. The foundation of democratic legitimacy is the consent of the governed. But how can the government claim its actions are legitimate, when it refuses to tell us what it is doing? And how can it claim that consent if we are not given a meaningful chance to refuse it?

If there is no transparency, if there is no right to know, then there is no legitimacy. It is that simple.

The irony here is that much of the information MFAT and its control-freak Minister have censored is in fact in the public domain. Just off the top of my head, I can say that those broad diplomatic priorities will include the negotiation of free-trade deals such as the TPP, the promotion of peace and security through international law and collective security, building a strong rule-governed trade regime, and working to ensure that Fiji's dictator keeps his promise of free and fair elections in 2014. Issues for the Minister's immediate attention will probably include that UNSC campaign, whichever FTA is front of the queue, the appointment of various ambassadors (depending on who is expiring soon), and MFAT's restructuring.

None of this is any secret. The only thing gained by pretending that it is is to reinforce the sense of power of those "in the know". But that ego-boosting secrecy comes at great cost to our democracy. We should not tolerate it. Instead, we should insist that our government makes its foreign policy principles and agenda public, so that we can see what is being done in our name, and hold them to account for any actions we do not like. Anything less is simply dictatorship.

Stupid

Scoop's Lyndon Hood has been forced to resign from Parliament's press gallery after being caught spying in David Shearer's office yesterday:

Hood was among a number of journalists waiting in the office for an interview with Mr Shearer yesterday afternoon, and was spotted taking photos of documents on the leader's desk by a Labour Party press secretary.

On the one hand, I want journalists who vigorously seek out the truth (which will usually be embarrassing to a politician). OTOH, in order to do that, they need access to those politicians, which in turn means being able to be trusted around their offices. Pulling this sort of stunt naturally endangers that access - and not just for the journalist in question, but for everyone (AIUI, Labour has already banned journalists from their offices without an escort; this incident will cement that decision)...

...which means it better be worth it. If Scoop doesn't have a "Shock Shearer baby-eating plans" exclusive tomorrow, then they've just pissed their access away for nothing. Heckuva job, guys; you've just made it that much harder to hold our politicians to account.

New Fisk

Syria is used to the slings and arrows of friends and enemies

"Well-qualified"

The Herald's John Armstrong is someone I think of as a political sycophant - there to excuse and enable the powerful rather than serve the public. But he really takes the cake this morning with his claim that ACT's Catherine Isaac is the best candidate to head the government's charter schools taskforce. His reasons?

Isaac, whose appointment is clearly designed to short-circuit the notoriously slow-moving Ministry of Education, is well-qualified to run the implementation group. A former school trustee and long-time watcher of the successes and failures of charter schools overseas, she wrote the two-page annex to Act's support agreement with National which outlines the process by which two state-funded trial charter schools will be established, one in south Auckland and the other in Christchurch.

Seriously? By that measure - long-term watching and writing at least two pages on a topic - I'm "well-qualified" to run almost any area of government policy. Where's my government sinecure?

But then after making that ridiculous excuse, Armstrong gets down to the real qualification: "she is simply the best candidate to deliver the ideologically-driven results which Banks wants". And that, in and of itself, ought to exclude her from any public service role.

Its Scotland's oil

Why are the English so desperate to keep hold of Scotland? It's the oil, stupid. An estimated 90% of the UK's share of North Sea oil lies in Scottish waters, and would transfer to Scotland on independence (assuming maritime boundaries were assigned according to the normal rules). As a result, an independent Scotland would be rich - and the rump UK a lot poorer (in fact, this would be the case even under "devolution max", in which Scotland would set its own taxes and be independent in everything but foreign policy).

Which is why the English are trying to scare the oil industry into opposing independence, talking up "uncertainty" if the Scots get to run their own country. Its pure colonial rhetoric, used to oppose self-determination everywhere the English Empire stamped its boot. Fortunately, in this case, it doesn't seem to be working - yet.

Compare and contrast

John Key, to 3 News, 31 January 2012 [video]:

I would point out that section 9 is largely symbolic. It's been the law since it was established in 1986, but the Government can't find an example of where it's been used.

New Zealand Treasury, Extension of the Mixed Ownership Model: A proposal to change legislation in relation to: Genesis Power, Meridian Energy, Mighty River Power, Solid Energy New Zealand: Consultation with Māori, 1 February 2012 [PDF]:

The Government recognises the historic significance of section 9 of the SOE Act and the role it has played in the development of the place of the Treaty in modern New Zealand and the relationship between the Crown and Māori. Litigation brought under section 9 in the Lands case, led to the articulation of Treaty principles by the Court of Appeal. The same case led to the section 27A-D memorials regime that protects specific Māori interests in land transferred by the Crown to SOEs. These provisions require the Crown to resume ownership of the land where the Waitangi Tribunal has recommended its return to Māori ownership. They also enable the Governor-General, by order in council, to require the Crown to resume ownership of land that is wāhi tapu.

Conclusion: Key hadn't bothered to read his own discussion document. What a lightweight.

Pure cronyism

That is the only way to describe ACT MP John Banks' decision to select Catherine Isaac to head the charter schools implementation committee. Isaac is a former ACT Party President, and was a list candidate for the party at the last election. She has no relevant skills and no experience in the education sector. Despite that, she'll be overseeing the infliction of charter schools on the children of Christchurch and South Auckland (ACT being unwilling to subject their own precious offspring to such madness), and getting a fat government payment into the bargain.

But apart from the "jobs for the girls" aspect, there's another disturbing element to this case as well. Overseeing and assessing the outcome of an educational experiment should be done by neutral experts, not by ideological cronies. The fact that Isaac has been appointed makes it clear that the government isn't actually interested in the evidence on whether charter schools work (if they were, they would never have imposed them in the first place), but rather in imposing its ideological views regardless of that evidence. Its a strapped chicken, with other people's kids as the victims.

Ignorant

On the face of it, John Key's claim that s9 of the State-Owned Enterprises Act is "largely symbolic" and that the government "could not find a single instance in which it had been used" has to go down as one of the most ignorant political statements in recent memory. Section 9, and the subsequent court challenge to the then-government's plans to privatise away land and assets seized in violation of the Treaty, didn't just force the government to amend the law to ensure that claims could be remedied; it is where modern Treaty of Waitangi jurisprudence began. New Zealand Māori Council v. Attorney-General gave us a formal judicial interpretation of the principles of the Treaty, including the concept of the Treaty as a partnership (with obligations to consult and act on good faith), a duty to remedy past breaches and to actively protect against future ones. And those principles, refined and formalised, have guided the courts and government ever since.

For the Prime Minister to be able to make such a statement tells us two things. Firstly, he is profoundly personally ignorant of our constitution and the role of the Treaty. Secondly, he does not pay attention to his advice (because it is unthinkable that that advice would not have included such information). OK, there's a third option: that he's obeying his spindoctors and trying to downplay the issue and paint the Māori Party as freaking over nothing - but if so, he's not fooling anyone, and just comes across as stupid; see points one or two.

As for the issue, it matters. While land is protected, the SOEs the government is planning to privatise control other assets subject to Treaty claims - namely water and minerals - which are not protected. The sale of those SOEs may prevent those claims from being remedied. The principle of redress and the duty of active protection mean that the government needs to protect the rights of claimants to their remedy. This need not involve a general-purpose Treaty clause in the sale legislation, but it is going to mean caveating assets in the same way that SOE land has been. The problem for the government is that this will lower the sale price, making their already marginal privatisation project into a complete disaster. And while they can just bull on regardless, using John Banks' vote, that would come at the cost of a permanent break with the Māori Party, making them highly vulnerable to ACT boat-rocking or backbench dissatisfaction. But I guess in that case, Key will just blame MMP, rather than accept responsibility for his own inability to manage a coalition.