Absolutely damning

Last month, I highlighted the new Internal Administration Circular 11-10 [PDF], which requires immigration officials not to record reasons for their decisions, in violation of both the right to justice and the Public Records Act. I was curious about how the Department of Labour had come up with a policy which apparently violates New Zealand law, so I asked them, requesting all advice and communications on its drafting, including any legal advice on its consistency with the Public Records Act or on Immigration New Zealand's ability to defend a challenge to its decisions. Today I received a fat packet of emails and drafts - and they are absolutely damning.

The first point to note is that the offending clause was a rather late addition. The first draft of the revised circular took exactly the opposite approach, requiring a full rationale which

should show that the Immigration Officer has taken into consideration all the relevant facts of the case and has come to a logical, reasonable decision based on those facts.

This was then meant to be checked by a second officer to ensure quality decision-making. The first thing to go was the second-party check, after concerns were raised about it not matching existing practice ("officers make their own decisions"). The discussion email [PDF] calls this a "classic quality vs timeliness issue" - and the Department seems to have decided on timeliness.

As for the recording of reasons for decisions, according to the timeline provided [DOC], this decision was made in early July after concerns were raised by "Resolutions" [PDF]. The immigration officers concerned were remarkably frank about their reasons [PDF]:

[Resolutions] strongly feel that including rationale just opens us up to the risk of judicial review and ombudsman complaints.

And the ultimate reason for excluding them?

I wouldn't want to make it mandatory to put something (rationale) in AMS [DoL's database] which is likely to generate more work and complaints for branches.

Yes, that's right: they did it explicitly in an effort to thwart complaints.

There were no drafting instructions or Ministerial signoff for this decision. The new circular was developed by a business analyst, who according to the cover email [PDF] decided to "just forge ahead and redraft [it] and see if people scream". There was no legal advice on its consistency with the Public Records Act, and the matter is never raised in any of the email discussion - though in their cover letter the Department asserts consistency, maintaining that the note that a decision has been made is enough for compliance:

In the Department’s view, the recent guidance around section 61 clearly articulates the most prudent business practice in terms of recording decision making under section 61 given that section 61 decisions are made in an officer’s absolute discretion.

In my view, this conflates prudent business practice around avoiding complaints with prudent business practice around records management. But that, I guess, is ultimately a decision for the Chief Archivist to decide.

All-up, we have a government department which has acted deliberately to thwart judicial and Ombudsman oversight, for reasons of its own convenience, apparently in violation of New Zealand law. The question is whether the Minister will act - or whether he will effectively endorse this situation with his silence.

New Fisk

Turkey's long road to reconciliation

Live by the market, be buried by the market

Margaret Thatcher is one of Britain's greatest criminals, whose disbelief in society caused her to destroy it. As a former Prime Minister, she is in line for a state funeral when she dies (which will provide a focus for protest over her toxic legacy). Which is rather ironic, given her beliefs about the role of the state. And so someone has started an e-petition (a formal UK government consultation exercise which can trigger Parliamentary debates) demanding that her funeral be privatised:

In keeping with the great lady's legacy, Margaret Thatcher's state funeral should be funded and managed by the private sector to offer the best value and choice for end users and other stakeholders. The undersigned believe that the legacy of the former PM deserves nothing less and that offering this unique opportunity is an ideal way to cut government expense and further prove the merits of liberalised economics Baroness Thatcher spearheaded.

And they're right. Thatcher was an anti-statist. Surely she should live - and be buried - by those ideals, rather than leeching a final fling at the expense of hard-working taxpayers. Anything less would be hypocritical.

Meanwhile, on the Guardian, Sunny Hundal has some ideas on what Thatcher's privatised funeral could look like:

Consider the endless possibilities, for die-hard Thatcherites, of privatising the event. I think we can agree it should be ticketed so it can turn a profit. Perhaps an IT company (let's call them Crapita for example), could sell tickets via the internet. You may have to wait a couple of months to get the system off the ground but at least it'll work … eventually. If it's anything like the privatisation of the railways, none of the funeral services would run on time and you'd end up with 500 people in a church meant for 200.

But there could be optional extras otherwise denied by the state. You could pay to have an opportunity to wail, as North Koreans seem to have perfected. Wailing while stabbing a picture of Arthur Scargill should obviously cost much more. Opportunities to sell Thatcher memorabilia (a picture of her with Pinochet, sir?) would be endless. It could even boost our sagging economy.

The television rights to the event should be auctioned off, perhaps for a private library dedicated to Thatcher (with John Maynard Keynes banned from the economics section of course).

Unmentioned: selling the right to spit on the corpse or piss on her grave (because its going to happen, so they might as well get money for it). Hell, they could even provide the service, so that those unable to attend in person could have someone do it for them.

Morality? Taste? The market does not know of such things. And if you're happy with the mass unemployment, poverty and degradation which were the inevitable result of Thatcher's policies, you can hardly get prissy about a little matter of degrading a corpse. But if you want to be hypocritical about that too, you can always pay for it not to happen. That's what the free market would want.

The shock doctrine in Christchurch

So, after two earthquakes and a year of struggle, Christchurch residents get to have more misery inflicted upon them, in the form of the privatisation of their hospitals:

Doctors are accusing the Government of starting the privatisation of health services, with a suggestion the private sector could help pay the $600 million cost of rebuilding Christchurch's public hospitals.

The Government is looking at the proposal, which includes allowing private investors to build and manage hospital buildings.

Tony Ryall says that this has "worked well overseas". In fact its been a complete disaster, with health authorities forced to cut services, close wards, sack staff and impose charges in order to pay the inflated fees of the (government-mandated) private providers. And its a bad deal financially: a UK National Audit Office study has found that PPPs there have not been value for money, and have resulted in the government paying £262bn so far for assets worth only £55bn (and that's so far; there are still 37 years to go on the contracts). But it funnels government money into the pockets of donors and cronies, which Ryall would probably consider success.

As for doing it in Christchurch, this is pure shock doctrine: take a disaster, and use it to ram through unpopular "reforms" which no-one would ever vote for if given the choice. If the people of Christchurch don't want their health system turned into a price-gouging "profit centre" for foreign parasites, they need to stand up against this. And if we don't want similar treatment to be inflicted on us eventually, we need to support them. This is just a foot in the door to the mass privatisation of public services, and the government abandoning its key role in the health sector to private enterprise. If you value your health, you need to help stop it.

This will be interesting

Yunus Rahmatullah is a Pakistani citizen. In 2004 he was captured in Iraq by British special forces, handed over to the US, and rendered to the Americans' prison in Afghanistan. Now, a UK court has found that he is being unlawfully detained, and ordered the UK government to demand his return so he can be released.

This will be interesting. Rahmatullah was handed over under a Memorandum of Understanding which allows the UK to also demand his return. But the Americans are alreay dragging their feet, and may be unwilling to effectively release someone they regard as an "enemy combatant". But if they don't, then they'll be breaking their word to their closest ally. This won't just place any future prisoner transfers in doubt - it would also expose British officials to war crimes charges for breaching the Geneva Conventions.

But its also potentially relevant here. New Zealand troops in Afghanistan have similarly taken prisoners and handed them over to the US. As with the UK, those prisoners are our continuing legal responsibility. Meanwhile, New Zealand courts pay attention to UK precedent because of the close parallels in our legal system. Which means that our prisoners (who remain our legal responsibility, even while in US custody) could similarly challenge their detention, and possibly succeed.

The meatworkers win

Two months ago, Canterbury Meat Packers locked out its staff at CMP Rangitikei in an effort to extort a 20% wage cut and force its staff to work harder for less money. Today, the parties reached a settlement - and CMP has been forced to back down:

Following negotiations yesterday a settlement was reached that has now been accepted by the workers and while some pay cuts have been agreed, these have been reduced to a level that the workers were prepared to accept. Importantly all the non cost conditions that the company sought to also remove have been put back in the new agreement and the workers will be paid a $500 payment on return to work. There are a number of other improved provisions in the agreement.

So, not total victory, but still a win, and made possible because the community stood behind them. OTOH, in the bigger picture, its the workers who made the sacrifice, while their bosses keep getting bonuses. And that is fundamentally unjust.

Climate change: Europe acts on air travel

The European Union has defeated a legal challenge to its plans to include airlines in the European ETS - meaning that from January 1, any plane travelling to or from Europe will have to start paying the cost of their pollution. Good. Air travel is estimated by the IPCC to be responsible for 3.5% of overall climate change, and is one of the fastest-growing sources of greenhouse gas emissions. Its exclusion from the EU-ETS was an anomaly which should have been corrected long ago. And now that they're in, they'll have a direct economic incentive to clean up their act, use more fuel efficient aircraft and flight plans to minimise their environmental impact.

Meanwhile, the US, whose airlines challenged the law, is refusing to accept it, and has passed a law making it illegal to pay European carbon charges. Which means their airlines will either have their planes seized on the tarmac for non-payment, or will no longer be able to fly to Europe.

(Meanwhile, I'm waiting for John Key to again whine that it is "unfair" for air passengers to pay for their pollution. No, its not. What's "unfair" is them not paying for it. Why should the rest of us environmentally subsidise rich jet-setters?)

MMP review: Overhangs

MMP is currently being reviewed, with an issues paper due out in February. In anticipation of that, I'm doing a series of posts on the review questions. This one will focus on the fifth question:

What should happen when a party wins more electorate seats than it would be entitled to under its share of the party vote

Or, what should we do about overhangs?

Overhangs are a Bad Thing. They distort the proportionality of the House, which is the reason we shifted to MMP in the first place. But they're also a necessary consequence of the system, the price we pay for having electorates. Given that we're committed to a mixed member proportional system, and list-only PR is not on the table in this review (it would require a referendum, both legally and morally), the question is how to deal with them.

Currently, the law has two ways of doing this. If the party is registered, we expand the size of the House. If its not, or an independent wins a seat, we don't. This is obviously inconsistent, and there seems to be no reason for the distinction (though, as an independent or an unregistered party has never won a seat, it doesn't particularly matter). One popular suggestion is that we should fix the size of the House and follow the second method for all extra MPs. I disagree, because this seems to distort proportionality even more. Its bad enough if a party wins more electorates than its entitled to. Its adding insult to injury if you then expect the other parties (and, indirectly, their voters) to pay for it.

Inconsistent

Just before the election, in a fairly transparent display of kicking criminals for votes, the government introduced the Prisoners' and Victims' Claims (Redirecting Prisoner Compensation) Amendment Bill to the House. As the title suggests, the bill amends the Prisoners' and Victims' Claims Act to remove any possibility of abused prisoners receiving financial compensation, regardless of the severity of the abuse. As convicted criminals, they will have no rights.

Today, the Attorney-General found that to be inconsistent with the Bill of Rights Act [PDF] and with our obligations under international law. Their reasoning is worth repeating:

Enjoyment of the basic human rights is the entitlement of every citizen. Denial of an effective remedy to a particular group of society excludes that group from the protection of the Bill of Rights Act.

The exclusion of prisoners from the protections of the rights affirmed in the Bill of Rights Act is objectionable. Prisoners are subject to the day to day control and exercise of coercive power by the state, and as such are especially vulnerable to misuse of state power.

This group's position is recognised by rights relating to those in custody in s23(5), which provides that everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person. Denying prisoners the effective protection of the rights affirmed in s 23, specially enacted for their protection, is unjustifiable.

Sadly, I expect the National Party, driven by a desire to grub votes by pandering to the "hang 'em high" brigade, will ignore this. Which neatly highlights the problem with the Bill of Rights Act: it is predicated on MPs doing their jobs, and taking s7 reports seriously as a warning to stop and think before passing a law. They don't. Very few debates on bills subject to a s7 report engage with the human rights concerns raised, and Ministers seem to regard such reports as a sign they're "tough", a badge of honour rather than an indictment.

If Parliament won't do its job as the guardian of our rights, its time we took it off them and gave it to the courts by entrenching the BORA as supreme law. Politicians have shown that they cannot be trusted. Judges can be. At the least, they have to give reasons - which is more than our politicians ever do.

Threatening democracy

This is unbelievable. Just days after being confirmed as Minister for Earthquake Recovery, Gerry Brownlee is interfering in the Christchurch City Council and threatening to use his powers to sack councillors who oppose Mayor Bob Parker:

Days after being reappointed, Brownlee waded into Christchurch politics, accusing some councillors of being ill-informed and not supporting Mayor Bob Parker.

"There is a case for some elected members of the council to step up and learn a little more about what is going on than they know at the moment.

"We need to get past the idea that we are waiting for someone else to do it," he said. "I have great sympathy for the mayor. I don't know that he is all that well supported by the council."

[...]

Brownlee said several people had asked him to "sack the bloody council and you guys [Cera] can get on with it", but Cera was not big enough to take over all of the council's role.

"We are a small organisation and you need people who know where things are at."

However, he did not rule out using his special powers to sack councillors or assume some of the council's responsibilities.

Sacking an entire council and turning Canterbury into a dictatorship was bad enough; threatening politically motivated sackings of elected representatives in order to make life easier for your political allies is even worse. But apparently its now par for the course for our dictatorial National government.

No abstention

As expected, the Greens have responded to John Key's demand for vassalage with a polite "fuck off and die". And given the contents of today's speech from the throne, its not surprising. Through its mouthpiece, it promised the weakening of environmental protections, the gutting of the ETS, more mining and drilling, as well as privatisation, more inequality, and more cruelty towards both the poor and those in the power of the state. This is the exact opposite of what the Greens stand for, and therefore they couldn't support a government promising such savagery to remain in power. They'll still explore ways they can work together, on the few positive things National plans to do, but the general approach will be one of opposition.

Swearing in

Last year, Speaker Lockwood Smith banned the longstanding practice of making an alternative affirmation (to the Treaty, to the people of New Zealand, whatever) in an effort to enforce a monolithic (and outdated) view of our constitution and culture. Anyone making an alternative affirmation would be ejected from the chamber, rather than simply asked to do it again properly. By banning this low-key form of protest, he invited more disruptive forms - and that was demonstrated today, with Hone Harawira making a loud speech about the Treaty as he was approaching the Clerk to be sworn in. Entirely within Standing Orders (or at least those enforced by the Clerk today) - but rather more disruptive to the chamber than the previous low-key protests.

And that's what happens when you ban quiet protest: it doesn't make people shut up, it doesn't make the issue go away, it simply makes them angry and invites more disruptive methods to get the message across.

The Greens, BTW, seem to have decided as a caucus not to protest individually, but to make the affirmation and call on the government to modernize it afterwards. Key's comments in that article about there being no need for change shows the futility of that approach. If the Greens want change, they need to highlight the issue. There are ways of doing that politely, while complying with Standing Orders (e.g. holding their own public swearing-in ceremony before or after the formal one, with modern oaths, and inviting everyone of like mind to come along). But they've sadly missed the opportunity for doing that this year.

Good luck with that

National has begun talks with the Greens on a policy agreement, but are playing hardball, with John Key demanding abstention on confidence and supply in exchange for any policy crumbs.

Good luck with that. The Greens have repeatedly stressed that it is highly unlikely that they will support National in this way. I think that's putting it in too positive a light. The chances of the parliamentary Green party, let alone the Green membership (who get to vote on any substantive agreement) giving any sort of support on confidence and supply to a government committed to polluting our rivers and oceans, destroying the global climate, digging up our conservation land and selling our state assets is zero. The cost of such support would be for National to abandon those policies, the chances of which are also zero. So, if the parties want to work together in any way, then they need to accept that any deal will not include anything in the nature of confidence and supply, and instead find areas where they do have common ground.

Neither party needs to make a deal here. National already has its majority, and the Greens understand that they are unlikely to get anything significant (and certainly not anything National didn't want to do anyway). Which makes Key's demand for vassalage as the price of anything all the more puzzling. But maybe that second-term arrogance is kicking in already.

Rejuventation

David Shearer has announced Labour's new lineup, and it looks like a total rejuvenation for the party. The tired old faces of the Clark era (and their baggage) are gone, relegated to the backbenches. Instead, prominence is given to Labour's class of 2008, people like Grant Robertson, Jacinda Ardern, Su'a William Sio and Phil Twyford. Yes, the front bench has some former junior Clark Ministers on it - Parker, Cunliffe, Cosgrove, Mahuta - but the overall tone is of generation shift.

Despite their drop in rankings, the old guard get to keep significant responsibilities - for the moment. Parekura Horomia still gets to run Maori Affairs from the backbenches, and Phil Goff takes up Foreign Affairs again (which is what he's good at). But with these people expected to retire in the next term, they'll need to relinquish their responsibilities sometime before the next election to allow time for their replacements to settle in and get up to speed.

Overall, it looks like a good lineup. It sends the message Labour needs to send: change! Now we've just got to hope that they're up to it.

MMP review: Open lists

MMP is currently being reviewed, with an issues paper due out in February. In anticipation of that, I'm doing a series of posts on the review questions. This one will focus on the fourth question:

Whether voters or political parties should decide the order of candidates on a party list

As someone who favours giving power to voters rather than parties, my answer is "yes". But how can it be done?

Wikipedia has information on the various open list systems used overseas. The basic system is that voters can tick a party, and (or by) tick one or more candidates on that party's list. Which means that you need a bigger ballot paper, or multiple ballot papers (one per party), or numbered candidates and a box to write in. Any candidate who gets more than a set threshold (usually some fraction of the list's quota, the effective number of votes required to elect a single MP on it, and varying with the weight assigned to the party's choice) goes straight to the top of the list, in order of votes received.

The effectiveness of such a system depends on how many voters use it. In the Netherlands, most simply vote for their chosen party's top candidate in order to ensure they enter Parliament. In Sweden, over 25% of voters pick a candidate, and low-ranking candidates are regularly elected against their original list-ranking. Given the significant extra expense and hassle involved, I think we'd want to see some research about how many people would actually use this option, and review it after a couple of elections to see whether the use justified that hassle. But I think its worth a serious look. One of the biggest complaints about MP is that it took power from voters and gave it to the party's list makers (as opposed to its local selection committee); open lists would give us that power back.

New Fisk

The adventures of Tintin in Beirut

MMP review: By-elections

MMP is currently being reviewed, with an issues paper due out in February. In anticipation of that, I'm doing a series of posts on the review questions. This one will focus on the third question:

Whether list MPs should be able to stand as candidates in a by-election

The reason for this is because of the 2009 Mt Albert by-election, in which three of the top four candidates were sitting list MPs. The result was that voters were in a sense not really voting for these candidates to enter Parliament, but for the next person on their respective party lists. This seems a little odd, and led to calls to ban sitting list MPs from standing (or rather, force them to resign in order to stand, which would effectively be the same thing). But I think this oddity disappears when you stop to think about what an electorate vote means under MMP.

Under MMP, as we keep being told, we have two votes. The party vote you give to the party you want to represent you in Parliament. The electorate vote you give to the person you want to be your local representative. And that latter bit is the key here. In MMP by-elections, we're no longer voting for who we want to see in Parliament, any more than we are in electorate contests in general elections. We're voting for who we want to represent us, locally. Whether that person is currently a list MP, and whether their victory will see them joined by the next person on the list is strictly irrelevant to that question.

Backing this up is the culture which has emerged under MMP of list MPs adopting local electorates. These list MPs are the natural candidates in any by-election. They already have an established relationship with their local constituents, and may be regarded by some of them as a preferred choice. Prohibiting them from contesting by-elections denies voters that choice. It does mean that it doesn't really matter which of them wins - they're fighting over the right to call themselves MP for X rather than MP from X - but that's largely true of general elections as well. MMP was meant to make electorates meaningless, and turn them into pure competitions about local representation. And dual candidacy in by-elections lets that happen.

OTOH, its not the most important issue in the world. If the review comes back with a recommendation to prohibit list MPs from contesting by-elections, its not going to distort our democracy or cause anyone to lose any sleep. But to some extent, I think its a non-issue anyway; the initial grumpiness seems to have been driven by the spectre of Judith Tizard, and was entirely absent during the subsequent Mana and Te Tai Tokerau by-elections, despite both being contested by list MPs.

Irrelevant and out-of-touch

Oh dear. It looks like "our" foreign monarch doesn't actually know who "her" representative in New Zealand is:

The Governor-General is The Queen's representative in New Zealand. As such, he or she performs the same constitutional role in New Zealand as The Queen does in the United Kingdom.

The current incumbent is the Honourable Sir Anand Satyanand, GNZM, QSO.

Satch left office at the end of August. Jerry Mateparae has been Governor-General for the last three months. I guess no-one bothered to tell his "boss". Which just shows how irrelevant and out of touch the foreign monarchy is.

Feudal relics

The Republican Movement of Aotearoa New Zealand highlights the feudalism which still lies at the heart of our constitution:

The Governor-General appointed a new government today. By doing so he used one of his "reserve powers" - the ability to appoint the Prime Minister and Cabinet (technically the Executive Council) without anyone "advising" him to do so. All on his own, he re-appointed Prime Minister John Key. In the smoke and mirrors world of "our" constitutional monarchy, the fact that we had an election - where we all had a say last month - doesn't feature.

[...]

The Governor-General's re-appointment of the Prime Minister is a nicety. It has no practical value other than to remind us that under the constitutional monarchy, power comes from a monarch. It's as if that election we had was just to arrange the seats in the Governor-General's debating club.

This is a relic of feudalism, when the monarch was supreme, Parliament was just their debating club, and the Prime Minister was the monarch's Prime Minister. But that hasn't been the case in our constitutional structure for over three hundred years, and while there has been further evolution since then (notably the introduction of democracy), its been the case ever since that it is Parliament which makes governments, not the monarch. And yet we continue the old feudal fiction in our public ceremonies. Other examples are the Speaker of the House being granted the House's privileges by the Governor-General (rather than asserting them at axe-point), and the House being summoned "to tell the members of Parliament the Government’s reasons for bringing Parliament together to meet" (rather than it meeting by itself as the independent and legitimate source of political power).

Like the oath, these feudal relics do not reflect the values of modern, democratic New Zealand. And its time we expunged them. Parliament should formally elect the Prime Minister, rather than them being appointed by an unelected head of state. Its privileges should be set in statute, rather than being dependent on the grace and favour of the representative of a foreign monarch. And it should set its own agenda, rather than being ceremonially told by that foreign monarch's representative what it should discuss. Symbols matter, and ours should reflect our values, not those of a long-ago and far away foreign country.

MPs and oaths

On Tuesday, the new Parliament will meet for the first time and MPs will be sworn in. The oath they use is a matter of some contention, requiring allegiance to a foreign monarch rather than the people of New Zealand, and failing to mention the Treaty of Waitangi, our founding document. It reflects the values of nineteenth century Britain, not those of modern New Zealand.

The Greens at least are aware of this, and a number of them (including Holly Walker and Gareth Hughes) have set up a survey asking for your views. At the least, it will inform them in their work to reform the oaths and turn them into something more appropriate for a modern, democratic society. But it may also be a prelude to a few making a symbolic protest over the oath to highlight the issue.