A Potemkin review

Nitrates are a serious public health threat, posing a risk of death for babies and a long-term risk of bowel cancer for adults. Farmers are currently spewing them into the water table via fertiliser and dirty dairying, poisoning drinking water across Canterbury and threatening the drinking water of our second-largest city. The government was apparently worried enough about this to set up a working group to study the problem. And then they secretly buried it:

An official information act request showed a working group that was supposed to be looking at nitrates in water only met twice in 18 months and was recently disbanded, with little to show for its efforts.

After months of pressure from councils and environmental groups and amidst mounting international evidence of a link between nitrates in drinking water and bowel cancer, then Minister of Health David Clark asked for a working group to be set up.

Chaired by the Ministry of Health's chief science advisor, professor Ian Town, it met for the first time in August 2019 and undertook to review nitrate levels and provide advice to affected communities about the health risk.

Funders would also be told about the urgent need for New Zealand research to match that coming from overseas.

But following a second meeting in December of that year, the work of the working group - which was supposed to meet every three months - stopped altogether.

A question from RNZ this month uncovered the group had recently been disbanded.

The government is using the pandemic as an excuse, but with the government refusing to set a bottom-line limit on nitrate pollution, it looks like the whole thing was a scam, a Potemkin review to distract the public. Because obviously, we couldn't let the fact they were killing people threaten dairy industry profits, could we?

MFAT has no conscience

RNZ reports that hot on the heels of approving weapons exports to saudi Arabia, MFAT was also approving weapons exports to the United Arab Emirates, Saudi Arabia's partner in committing war crimes in Yemen:

New Zealand's Ministry of Foreign Affairs and Trade (MFAT) approved export permits for military equipment that was sent to the United Arab Emirates (UAE), a key partner in Saudi Arabia's military intervention in Yemen, in 2018 and 2019.

Experts say the information heightens concerns that New Zealand may have contributed to war crimes in Yemen following revelations last month that similar exports were approved for Saudi Arabia. It comes as MFAT reviews its export controls regime to ensure it's fit for purpose.

Since 2015, at least 100,000 people have died in Yemen's civil war, which has also displaced millions and pushed the country to the brink of famine. In February, a UN expert group urged states "who continue to supply arms to review their positions in line with the requirements of international law".

Despite its ongoing review, MFAT has staunchly defended the approval of export permits for weapons sent to Saudi Arabia and the UAE.

Which really makes you wonder what the fuck is wrong with them. Saudi Arabia and the UAE are engaged in a war and committing war crimes. Any weapons supply prolongs the war and so contributes to the crimes. Banning weapons exports to them ought to be a no-brainer, regardless of whether the exported weapons will be used in that way or not. We're supposed to be a peaceful nation committed to peace and disarmament, for fucks sake; it would be nice if MFAT actually represented that official policy, rather than a money-grubbing, sociopathic domestic weapons industry.

Challenging climate change in the courts

One of the innovations of the Zero Carbon Act was a clause specifically allowing public bodies (or bodies performing public functions) to consider climate change targets and reduction plans in their decision-making. It was phrased as a "permissive consideration": they didn't have to. But as we've seen from the Thames-Coromandel District Council case, failing to do so may itself be found to be irrational and result in a decision being overturned. The intent of the clause was to allow NGOs to challenge government decision-making, and hold the government to its targets and plans. And its about to get its first test, with a legal challenge to a major Auckland road project:

Auckland councillor Chris Darby says a legal challenge against the $1.4 billion Mill Road project by climate change advocates All Aboard Aotearoa is a sign of what's to come.

The group applied for a judicial review of the Waka Kotahi NZTA-led project in the High Court in Wellington on Thursday.

The 21.5km proposed Mill Rd arterial route, which would provide an alternative road between Manukau and Drury, would run parallel to and east of State Highway 1. Construction was expected to start next year and be completed by 2028.

[...]

Lawyers for Climate Action's Jenny Cooper said with nine years left to halve New Zealand emissions as required under the Paris Agreement and Zero Carbon Act, the government must stop building and financing more roads.

Waka Kotahi NZTA should have at least as much of a duty as a local council to consider climate change, so the challenge is likely to hinge on whether they seriously considered the project's impact on emissions. Whichever way it goes it will be precedent-setting, establishing the ground rules for such challenges in the future. And if its unsuccessful, we can expect a member's bill to shift that permissive consideration to a mandatory one in short order, and intense pressure on he government to back it.

Another climate strike

School Strike 4 Climate has announced another climate strike for April 9th, and invited everyone to join them in standing up against climate change. As before there will be events all over the country, and you can find yours on their strike map.

Personally, I'm nervous about protesting during a pandemic, even in level one. But this is important. If you think its worth the risk, and can psychologically stand a crowd, please turn out. The strength of government action may depend on how big a public showing we make.

Juking the stats

When Te Kawa Mataaho Public Service Commission introduced its OIA statistics in 2017, one of the concerns was that agencies would start managing to what was measured, rather than obeying the law. In particular, the focus on raw timeliness and the lack of statistics on average and median response time and extensions would lead to agencies unlawfully extending requests to avoid them being classed as late. So internal administrative failures would be covered by extensions for "consultations", and delays would become routine.

I've just experienced exactly this behaviour from the Ministry of Education: a request - ironicly, for information about OIA statistics - was extended for five working days for "consultations" yesterday. They then responded today, after one working day, and admitted that the delay was because "further consultations were required to finalise the decision on your request. The consultation required was with senior decision makers". Which is basicly an admission that this extension was due to internal administrative failure, unnecessary and unlawful.

In their response, the Ministry helpfully pointed me at their answers to parliamentary estimates hearings as a source of statistics. The OIA stuff starts on page 96,and makes it crystal clear what is going on:

The Ministry now answers around 40% of requests outside the statutory 20 working day timeframe. They report a 23 working day average response time, but also that over 99% of their requests are "on-time". And the reason for that is because almost all of those late requests - 299 in 2019/20 - were extended.

Were these extensions necessary? My experience suggests not. But beyond that, the extension clause of the OIA was intended to cover unusual or extraordinary circumstances, not routine slackness and administrative failure. When an agency is extending 40% of its requests, it suggests that it is abusing the law, juking the stats to make itself look good. It gets away with it because the published stats are poor enough to let them hide it (and no-one, not even MPs, looks at estimates hearing documents), hardly anyone complains about extensions, and when they do complain the Ombudsman resolves it informally rather than actually investigating (or closes it because the information has been released by the time they get round to it, making an investigation "unnecessary"). And because agencies get away with it, they keep doing it, and so you get a 23-day average response time, which is prima facie evidence of serious illegality.

How can we fix this? Better stats would make it more obvious (and I'll try and do some digging through estimates documents to get a better picture). But also: if your OIA request is extended for "consultations", complain. Because nothing will change unless you do.

Drawn

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

• Crimes (Robbery) Amendment Bill (Erica Stanford)
• Synthetic Urine (Prohibition on Importation, Supply and Acquisition to Pass a Workplace Drug Test) Bill (Matt Doocey)
• Biosecurity (Information for Incoming Passengers) Amendment Bill (Steph Lewis)
• Secondhand Dealers and Pawnbrokers (Electronic Records) Amendment Bill (Andrew Bayly)

There were only 54 bills in the ballot this morning. Labour is slacking.

Today's bad OIA story

Back in 2017 Te Kawa Mataaho Public Service Commission (or SSC as it used to be known) began to publish OIA statistics. The problem is that they're pretty shit, giving information only on timeliness and complaint numbers, when other countries give a full range of information on response times, extensions, transfers, and outcomes. In recognition of this, TKM-PSC has produced guidance on what statistics should be collected, in the hope of expanding the available data-set. I'm eager for better statistics (you can't manage what you don't measure, and there are suggestions that the current system encourages managing to timeliness - that is, unnecessary extensions or unjustified refusals to avoid lateness), so last month I asked 34 core government agencies how they were doing against TKM-PSC's criteria.

Responses to these requests were due yesterday. 27 agencies responded on time. Four issued purported extensions for "consultations" (I say "purported" because there's no evidence that these consultations were "necessary" - the legal requirement - and in at least one case the agency admitted it was purely because of their failure to manage their workload properly). And three didn't even bother to respond at all. I have a zero-tolerance policy for OIA bullshit, and a somewhat naive belief that findings of illegality might change agency behaviour, so each of these has resulted in a complaint to the Ombudsman.

That's a damning statistic right there: fully 20% of requests for easily accessible, uncontroversial information about what statistics were collected required Ombudsman's complaints. This isn't how the Act is meant to work, but its where we are now. Poor leadership from successive governments and public service commissioners has allowed a culture of non-compliance to fester, grow, and become routine. And the government has no intention of fixing it any time soon.

(As for the results themselves, that'll have to wait until I have the full data-set).

No freedom of speech in Poland

In a functioning democracy, calling a politician a moron is practically a human right. Debate is expected to be robust, and this includes assessing the personal characteristics of public figures. But not in Poland:

A Polish writer faces a possible prison sentence for insulting President Andrzej Duda by calling him a “moron” over comments the latter made about Joe Biden’s US election victory.

Jakub Żulczyk, the screenwriter behind the popular TV series Blinded by the Lights and Belfer, said prosecutors had charged him under an article in the criminal code for insulting the head of state in a Facebook post.

“I am, I suspect, the first writer in this country in a very long time to be tried for what he wrote,” he said on Facebook.

Poland has become increasingly authoritarian over the past few years, as the Law and Justice party has dug its claws in, but this is a new low, and suggests they may be heading in the same direction as Hungary and Spain.

Climate Change: What the world will see

At the moment the Climate Change Commission is collecting submissions on its advice to the government on our first long-term emissions budgets. These are supposed to result in emissions reducing, but as Lawyers for Climate Action has explained, the Commission is using scam accounting, cooking the books to produce reductions when really there are none. But every year we are required to produce an Inventory Report for the UNFCCC, using proper, internationally-accepted accounting methods. And this is what the world is going to see:

Pretty obviously, that's not a reduction. And in a world where major markets are starting to impose border carbon adjustments and punish climate criminals, it is likely to have unpleasant consequences.

Climate Change: A warning shot

Lawyers for Climate Action has fired a warning shot at the Climate Change Commission, alleging that its carbon budget advice is unlawful:

In its submission to the commission’s draft advice on meeting the country’s role in curbing global warming, the lawyers said its methods make future carbon “budgets” look more ambitious than they are.

“Aotearoa’s international reputation and brand will be at risk if we fail to adopt budgets and policies consistent with doing our fair share to keep global warming to less than 1.5 degrees Celsius,” said Jenny Cooper QC, LCANZI’s president.

The lawyers group said it believed the country's emissions over the decade should be set at 400 million tonnes, far lower than the 628 million tonne level recommended by the commission in its draft advice released in late January.

“This is a fundamental error that must be fixed before the advice is finalised – failing this, the advice will be unlawful, in our opinion,” said Cooper.

There are two core problems: firstly, the Commission is using ETS accounting (which uses "averaging" to hide commercial forestry emissions) rather than the GHGI accounting used in our ETS inventory and by which our performance will be judged internationally. The problem here is that the law requires they use "net accounting emissions" which are defined as those reported in the inventory. That's not just illegal - it also hides that their (cooked books) budgets will in fact see our emissions continue to increase in 2030, rather than decreasing as required.

Secondly, when calculating what our new Paris target should be, the Commission makes a straight-out mathematical error, using a gross emissions figure as its baseline, when the IPCC expresses the required reductions as a proportion of net emissions. The Commission attempts to justify this because of the Kyoto gross-net accounting scam, but the IPCC was very clear that that's not what they were talking about (and they would have demanded higher reductions from a gross baseline).

Overall, it looks like the Commission, whether deliberately or because it is taking its numbers from MfE, is simply perpetuating Aotearoa's long-term uber-policy of trying to "solve" climate change by accounting scams, rather than actually reducing emissions. But that's not what the public was promised, and (more importantly) its not what the law requires. Sadly, this view that its all just a matter of finding a "better" way of measuring, which hides our true emissions, is well-entrenched in the government. So, we can expect the budgets that eventually emerge from this process to go to court, and given the stakes, all the way to the Supreme Court - just as it did in the UK.

Member's Day

Today is a Member's Day, though a fairly boring one. First up is the third reading of Ginny Andersen's Holidays (Bereavement Leave for Miscarriage) Amendment Bill (No 2). This will be followed by the first readings of Chris Bishop's Lawyers and Conveyancers (Employed Lawyers Providing Free Legal Services) Amendment Bill and Chris Penk's Companies (Limited Partnerships Identical Names Prohibition) Amendment Bill. If the House moves fast, it may make a start on Matt Doocey's Corrections (School Notification of Sex Offenders) Amendment Bill. There should be a ballot for two or three bills tomorrow.

The SIS's training problem

Yesterday the SIS released its review of its decision-making prior to the Christchurch terrorist attack. The review was intended to exonerate the SIS from claims that it was looking the other way on violent white supremacists and to argue for greater powers and a higher budget, and of course the SIS got exactly what it paid for. But along the way they admitted some disturbing things. For example: The internal SIS view of the Inspector-General of Intelligence and Security (IGIS) is a threat to national security:

(Section 6(a) of the OIA allows information to be withheld when release would "prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand", though strictly speaking it does not apply to proactive releases like this).

But on the very next page, the Inspector-General tells us what those views are:

I'd thought that this might be a problem with older staff used to doing whatever they wanted pre-Intelligence and security Act, and having trouble making the adjustment to a tighter legal regime. But it turns out that its the opposite problem: on p128 the report says it is "particularly among newer or more junior staff". But further back, it says that SIS's staff has grown by 50% since 2017, on p49 it says a large number of new investigative staff were hire in 2018, and on p59 that at the time of the attacks, half of SIS's investigators had less than ones year's experience. In other words, the staff who distrust IGIS and feel that oversight "create[s] uncertainty, or impose[s] ambiguous or unworkable demands" were specifically trained within the new legal environment. And given their views of that environment, you really have to wonder about the quality of that training, and the attitudes their superiors are inculcating through it. Maybe that's something the Inspector-General should look into?

A self-undermining policy

New Zealand has a housing crisis. It can only be fixed by causing house prices to drop. The basic recipe for this is twofold: build houses to increase supply, and repress speculators to drive them from the market. So how does this morning's housing package measure up?

On the supply-side, there's a higher debt-limit for Kāinga Ora and money for council infrastructure. The former should help them build ~4000 extra houses (which go on the government's books as an asset, so the debt doesn't matter), while the latter will reduce barriers to house-building (where local government rightly wants someone to pay for the extra sewers and roads in new subdivision), though it is effectively a subsidy to property-developer profits. On the demand-side, there's some solid landlord-lynching, with an extension of the bright-line test (a capital gains tax by any other name) and the removal of tax deductibility. The latter is important, since the deductability rule encourages risky borrowing and effectively subsidises landlords to outbid actual home-buyers. Removing it should make a huge difference.

All of this sounds good, and landlords are squealing. But then there's the downside: raising income and price caps for first-home buyers to get government assistance. Which means the government will be throwing more money at the housing market bonfire it is supposedly trying to put out.

If this seems self-undermining, its because it is. Because at the end of the day, Jacinda Ardern does not want house prices to drop. And until that changes, we're never going to see a real solution to turning houses back into homes rather than house-shaped gold-bars for hoarders to stash.

(Meanwhile, if we're keen on bright-line tests as a substitute for capital gains taxes, how about sticking one on financial investments? Or is directly targeting wealth something beyond the pale for a "Labour" government?)

Now prosecute them

When Corrections Minister Kelvin Davis was first confronted with Corrections' abuse and torture of Mihi Bassett, he tried to deny the court ruling and undermine the judiciary. Now, he's been forced to admit and personally apologise for it:

Corrections Minister Kelvin Davis has directed the Department of Corrections to conduct an urgent overhaul and review of women's prisons.

The minister has written to written to Corrections chief executive Jeremy Lightfoot demanding an urgent overhaul of the maximum security classification for women and development of management plans for women, and a review of all women's prisons.

Corrections confirmed its officials had met with three women to acknowledge and apologise for the way they were managed at Auckland Women's Prison, following preliminary findings of an investigation by the independent Corrections Inspectorate.

Davis, who also apologised to the women, said he wanted and expected better from Corrections.

If he wants better, here's an obvious solution: prosecute and sack those responsible for Bassett's treatment. Because some of what was done by corrections officers appears to be criminal: offences of ill-treatment or neglect of child or vulnerable adult, assault with a weapon, and arguably torture. The people responsible need to be held to account. And if they're not, its clear that the New Zealand government condones this sort of cruelty and abuse in its prisons.

Open Government: Ending the farce?

The government is currently consulting in a new action plan for the Open Government Partnership. These are meant to be co-created with civil society, but in the past they've been anything but, with the entire process directed by the Public Service Commission to rubber-stamp a pre-decided set of business-as-usual "commitments". And now it seems like the NGOs who are being asked to spend their valuable time on this every two years to provide a prop for the government's pre-determined agenda have had enough: they've written to Public Services Minister Chris Hipkins demanding changes:

Last week, TINZ convened a meeting of ten civil society organisations with an interest in open government to discuss a collective response to the consultation, an approach found to be successful in other countries working on their National Action Plans.

Attendees expressed general disappointment with New Zealand’s progress on open government since it joined the OGP in 2014. The feeling was that the first three action plans were unsuccessful in both ambition and delivery. The group agreed that there was a high risk of NAP4 delivering the same inadequate result, unless there were changes in the approach to the development of the plan.

The letter is quite explicit: "without a change to the process, we have serious concerns about the value of engaging with the consultation." In other words, they're threatening to walk. As someone who gave up wasting my time on this long ago, I'm surprised it has taken them so long.

So what do they want in order to stay involved? Essentially, proper co-creation, where civil society ideas are adopted and implementation resourced by the government, rather than the current bullshit where the government decides everything in advance and does as little as possible because "there is no new money for this". In practice, this means extending the co-creation period so it is aligned with the budget cycle, allowing things to be resourced in Budget 2022.

Hopefully Hipkins will agree. If not, the government can look forward to its cheap international PR win going up in smoke.

The Ministry of Justice advice on an OIA review

On Tuesday we learned that the planned review of the OIA had been delayed because the Ministry of Justice was too busy with other things. Exactly what those other things were was of course secret, but it made it clear that increased transparency simply wasn't part of the government's agenda. The core documents on this have been posted by Andrew Ecclestone, and I've spent some time reviewing them. The core one is a briefing from the Ministry of Justice entitled Official Information Act 1982 - report back on targeted engagement and next steps, in which the Ministry summarizes the public submissions and agrees that a review is necessary. The highlights:

• the Ministry downplays the problems with the Act as a problem of perception, not necessarily of reality. Which is not a good place to start from.
• The list of issues suggested for review includes several core problems, including enforcement, scope, oversight, and proactive release. But it also includes one area which seems explicitly aimed at reducing transparency: withholding grounds, where the focus seems to be on "increas[ing] certainty" around the "free and frank advice" clause. The Secretary of Justice's published views make it clear that he thinks there should be more secrecy in this area, and the mention of addressing the issue through improved proactive disclosure suggests the plan is to keep pre-decision advice secret, and only let us know about things once decisions have already been made and it is a fait accompli. Stopping the cries of dirty peasants from bothering the professionals in the ivory halls of government probably sounds great to some of those professionals, but a key purpose of the OIA is to enable greater public participation "in the making and administration of laws and policies". Locking us out of the process by keeping everything secret until it is already decided runs directly counter to that purpose.
• There's also a push to make it easier to declare requests "vexatious". You have only to read the submission summary (or the submissions themselves) to see that some public servants seem to regard any question (or at least, any awkward or troublesome or time-consuming question) as "vexatious", and that is precisely why the bar has been set so high. It should not be lowered. Answering awkward questions from awkward people is part of the job, get over it.
• The Ministry assumes throughout all this that it is the appropriate body to conduct a review. I don't think that's true. As an agency, they're stunningly uninterested in the OIA. Just look at their website: huge pages on constitutional law and human rights, nothing on OIA policy. The extent of their "interest" seems to be maintaining the Directory of Official Information and the charging guidelines. They don't even bother getting consulted on secrecy clauses in legislation, which you'd expect an agency active in this area to do. Plus of course there's the Kibblewhite factor: an agency led by a chief executive who publicly advocates for greater secrecy is hardly going to be trusted by requesters to rewrite the Act.

On the final point, it is perhaps fortunate that the Ministry of Justice is now "too busy" to do this work. But that provides a perfect excuse to take the job off them and give it to someone else - ideally, an independent, neutral body untainted by the interests of the public service.

Finally, the government's decision to have a review on whether to have a review, then ignore the result and not have a review when it is overwhelmingly supported by submitters seems to violate the commitment in our OGP National Action Plan. Yes, strictly speaking all they committed to was to "test the merits" of a review (which they have done), and to "provide and publish advice to Government" (which they've done half of). But the natural implication is that if the merits supported it, they would proceed to the next step, and to fail to do so smacks of bad faith. It certainly doesn't inspire confidence in the other OGP commitments, or in the process they are asking people to participate in.

More secrecy from Labour

Today, while browsing bills currently seeking select committee submissions, I noticed the Commerce Amendment Bill. Officially about improving competition law, its the latest in a long series of Labour bills with clauses potentially restricting freedom of information.

The problem area is s32, which inserts two new clauses into the Commerce Act to allow the Commerce Commission to share information with other government agencies. But new s99AA(2)(b) says they can only do so when "appropriate protections are or will be in place for the purpose of maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020)", while new section 99AB allows them to impose conditions on the receiving agency requiring confidentiality and restricting access.

On the face of it, this is good: public agencies sharing private or confidential information with each other should of course ensure it is properly protected. The problem is the interface with the Official Information Act. Such confidentiality agreements may allow the government to withhold information under s9(2)(ba)(ii) of the OIA, essentially because of a contract it has made with itself, while in theory the Commerce Commission could impose a "no release" requirement and then argue that (because they are enabled by statute) release would be "contrary to an enactment".

This does not seem to be the policy intent. The departmental disclosure statement and regulatory impact statement talk mainly about privacy and lack of explicit legal power, insofar as they mention this section at all (though the RIS foes highlight "information of a confidential nature" which needs to be protected). The obvious answer is to insert a specific clause saying "this section does not limit the Official Information Act", to ensure that the public's right to access public information is not affected.

How to fix the housing crisis

To those of us outside the moneyed political class, fixing the housing crisis seems pretty obvious: build houses to increase supply, repress speculators to decrease demand. Today the Greens are proposing exactly that, with Julie Anne Genter pushing for a mass house-building programme through Kāinga Ora, combined with extending the "bright-line" test indefinitely to turn it into a de facto capital gains tax, and various measures to stop speculators leveraging their existing investments to get more. They're also pushing to end the supply of cheap money from the Reserve Bank, with a switch to direct economic stimulus from the government rather than disguised stimulus from low interest rates.

All of this sounds good, and looks like a serious response. Unfortunately, the Greens aren't the government. But Labour will apparently be releasing their plans next week, so we'll see whether they're remotely serious or not.

Labour should have fixed this long ago

Back in 2017 the government promised that there would be no new mines on conservation land. They then did nothing for three years, supposedly because of opposition from NZ First, but they still haven't done anything about it despite having won an absolute majority. Meanwhile, a mining company wants to dig up a World Heritage Area:

Kokiri Lime Company Limited have applied for 40-year consents to quarry approximately 30ha of primarily mature native forest within Te Wāhipounamu South West New Zealand World Heritage Area. The planned quarry includes 15ha of conservation land, 1ha of which been quarried before.

World Heritage Sites are meant to be legally protected from desecration. But ours aren't. Back in 2017 Labour put up a member's bill to add them to Schedule 4 of the Crown Minerals Act (basicly forbidding all mining), but the then-National government voted it down. Sadly, Labour didn't take the opportunity to pass such a ban last term, and haven't made any noises about doing it now they have a majority. And so we have greedy corporations still trying to dig them up.

The government should have fixed this long ago. Their failure to do so is now looking like a deliberate refusal, almost as if they don't really care about conservation at all...

We need a parliamentary commissioner for human rights

The structure of our Bill of Rights Act is a little weird. Unlike the US (or Samoa, for that matter), the Act isn't supreme, and legislation can't be struck down for being inconsistent with it. Instead, Parliament is supreme, and so we let it violate our rights at will - but only if it actually knows what its doing first. To ensure this, Section 7 of the BORA requires the Attorney-General to report to the House on any bill which appears to be inconsistent with our rights and freedoms. The problem, which ought to have been obvious to a lawyer as experienced as Geoffrey Palmer, is that the Attorney-General is part of the government, and so inherently conflicted over government legislation, as are the government lawyers who actually do the work. The result is that a lot of BORA advice is substandard, as the government either ignores inconsistencies, or pretends they're "justified limitations" and so don't need to be raised with Parliament. The latest dodge - as seen in Andrew Little's control order legislation - is to say that the law will be interpreted through the lens of the BORA, and so any apparent inconsistency will disappear the moment it hits a courtroom (what happens before then apparently not mattering in the slightest). All of which makes a mockery of the idea that Parliament is a serious guardian of our human rights.

(Of course, you get a completely different attitude where opposition member's bills are concerned. There, the slightest inconsistency is highlighted and brought to the attention of the House. Which they should be, but it makes the partiality of the government's advice on its own bills all the more glaring).

Shadow Attorney-General Chris Penk thinks the solution to this is for the opposition to issue its own section 7 reports. While I expect they'll be every bit as partial as the government's ones, but in the opposite direction - a lawyer being someone who says what you pay them to say - this certainly isn't going to hurt. Competition may force the government to better justify its position, rather than being propped up by the artificial authority of office, and voters will be able to judge for themselves who is credible and who is not.

But if the goal is actual impartial legal advice to the House, so it can fulfil its duty of properly scrutinising legislation and engaging with and fixing any threat to rights and freedoms, then its obvious that parliament should use its own lawyer, rather than rely on one who works for someone else. In other words, we need to take the job of advising the House away from the inherently conflicted and partisan Attorney-General, and give it to a properly-funded Officer of Parliament. We could also task them with reviewing old law for consistency, and reporting to the House when the courts make a declaration of inconsistency with recommendations on how to remedy it.

This would cost a few million - the Parliamentary Commissioner for the Environment costs $4 million a year - but it would be worth it. And hopefully someone will take the idea and put it in a bill.