Tuesday, 6 December 2022

A Matter Of Trust.

Hard To Win, Easy To Lose: Trust cuts both ways. It is equally critical, in political terms, that a government trusts the people to at least the same extent as the people trust the government. Indeed, nothing erodes the voters’ trust faster than evidence their own government considers them untrustworthy.

TRUST. Nothing is more important to a government than the trust of the governed. With trust, there is very little that a government cannot accomplish. Without it, durable political accomplishments are much less likely. Jacinda Ardern’s government is currently teetering on the brink of forfeiting a crucial percentage of the electorate’s trust – more than enough to cost it the next election.

Trust, of course, cuts both ways. It is equally critical, in political terms, that a government trusts the people to at least the same extent as the people trust the government. Indeed, nothing erodes the voters’ trust faster than evidence their own government considers them untrustworthy.

At the heart of the political uncertainties enveloping the concept of co-governance is the Labour Government’s all-too-obvious lack of trust in the Pakeha majority. A lack of trust also displayed by the National Party. What other explanation could John Key possibly offer for sending the Māori Party’s co-leader, Pita Sharples, to New York, in conditions of virtual secrecy, to sign the UN Declaration on the Rights of Indigenous People (UNDRIP).

Given that UNDRIP was largely authored by, and has become the crowning achievement of an indigenous New Zealander, Moana Jackson, a New Zealand government, untroubled by the public’s reaction, might have been expected to make more of the event than a diplomatic fait accompli. Likewise, with respect to the formation of a special working group tasked with identifying the cultural and constitutional changes required to give full effect to UNDRIP.

A government untroubled by the political ramifications of such an investigation would not have kept its existence hidden from its coalition partner. A government willing to trust the New Zealand electorate would not have kept the working group’s report – He Puapua – under wraps. On the contrary, it would have welcomed the lively political debate which the unedited Report’s voluntary release would undoubtedly have generated.

But, as we all know, trust was lacking. Not only was the re-elected Labour Government anxious to keep the document secret, but those Māori with a deep interest in constitutional reform – including Moana Jackson – similarly manifested a strong aversion to debating He Puapua’s recommendations openly in the public square.

Even when the full text of He Puapua was leaked to former Act MP Muriel Newman’s right-wing New Zealand Centre for Political Research, the reaction of the Labour Government was to downplay its significance and emphasise that it was not – repeat NOT – government policy. The Prime Minister went further: flatly ruling-out implementing one of the Report’s most controversial recommendations – the creation of an Upper House of Parliament, composed of an equal number of Māori and non-Māori members, and tasked with testing the legislation passed up to it by the Lower House against the principles of te Tiriti o Waitangi.

Jacinda Ardern’s reflexive rejection of the proposed Upper House was not only precipitate, it was also politically injudicious. There are many recommendations contained within the He Puapua report that are considerably more problematic than the creation of an Upper House. Indeed, if a government was anxious to demonstrate to voters the efficacy of the principle of co-governance, then a second chamber made up of 50 percent Māori and 50 percent Non-Māori, would be precisely the right place to start.

An Upper House constitutionally limited to reviewing, reporting-on, and – if necessary – returning, legislation to the House of Representatives for further consideration and/or revision, could play a powerfully educative role in preparing the population for other cultural and constitutional changes.

Critical to the Upper House fulfilling such an educative function would be the elimination, as far as practicable, of all the debilitating distractions of partisanship.

For the Māori half of the Chamber, this could be achieved by delegating the choice of representatives to an agreed-upon roll of collective Māori entities. The manner of identifying these entities’ representatives would be determined by the iwi and hapu involved. Some might opt for election, others for more traditional methods of identifying and anointing leaders.

For the Pakeha half of the Chamber, partisanship might be avoided by following the example of Seanad Éireann, the Irish Senate, members of which are appointed to represent Public Administrators, the Legal Profession, Employers, Farmers, Trade Unions, the Universities, and people prominent in the world of Arts and Letters.

Anxious to move beyond the murderous allegiances of the Irish Civil War (1922-23) the framers of the Irish Republic’s constitution strove to construct an upper house guided not by fierce party loyalties, but by a determination to meet the challenges of self-government by harnessing the wisdom of the whole nation.

Thus constituted, the proposed Upper House could play a crucial role in identifying, investigating, and debating to what extent each piece of legislation passed by the House of Representatives conformed to – or deviated from – the principles of the Treaty. Have the decisions of the lower house strengthened or weakened the partnership between the Crown and tangata whenua? Are its decisions justified? Or should the legislation be sent back to the House for further deliberation?

It is difficult to conceive of a more gentle or thoughtful way of demonstrating the value of co-governance as a method for devising policies and making laws which both Māori and Non-Māori can accept without reservation and/or resentment. An Upper House with strictly limited powers, but constituted in such a way that the worth of legislation driven by purely partisan considerations can be assessed by those beholden to very different principles, would fast become the respected educator of the nation.

The Prime Minister’s rejection of this key He Puapua recommendation – almost out of hand – is deeply regrettable. As a means of instilling and demonstrating trust in the capacity of Māori and Non-Māori to determine and advance their best mutual interests, an Upper House has a great deal more to recommend it than Labour’s (and the Greens’) increasingly divisive Three Waters project, which, right from the start, has communicated to all affected parties an almost total lack of trust.

That Māori have myriad reasons to withhold their trust from Pakeha is undisputed by those with even a rudimentary understanding of New Zealand history. To refuse trust as a matter of policy, however, cannot hope to bring Māori and Pakeha close enough to jointly determine a mutually rewarding future for Aotearoa-New Zealand. For that to happen, both peoples need to trust each other enough to embrace new and untried solutions.

The Prime Minister should withdraw her objection to the creation of a co-governed Upper House. Let New Zealanders witness in public the Treaty debates that, hitherto, have only taken place in private. If there is wisdom and generosity to be found in the processes of co-governance, then let their virtues be seen by Māori and Non-Māori alike.

Trust them, and New Zealanders will, almost always, make the right choice.

This essay was originally posted on the Interest.co.nz website on Monday, 5 December 2022.

Friday, 2 December 2022

Parliament’s Collective Failure To Defend The Constitution.

Unbitten: It is one of the oddest and most worrying aspects of the events surrounding Green MP Eugenie Sage’s late-night attempt to re-write the constitutional convention on entrenched legislation while a weary House of Representatives was sitting under Urgency. Sherlock Holmes’ famous observation concerning the dog that did not bark, might be applied with equal justification to the Opposition that did not bite.

WHILE WE MAY be reasonably confident that the attack on New Zealand’s constitution will be repelled, it should never have happened. That it was legal scholars who sounded the alarm over the entrenchment of a section of the Three Waters legislation, should cause all 120 of our parliamentarians to hang their heads in shame. Their collective failure to grasp what Green MP Eugenie Sage was doing points to a woeful lack of political and constitutional awareness among those whose first and most important duty is to protect the integrity of our democratic system.

Had a similar effort to screw the constitutional scrum been attempted even ten years ago, the perpetrator would have been red-carded immediately. Not even Rob Muldoon, who was not above the odd instance of constitutional skulduggery, would ever have contemplated a stunt like Ms Sage’s. He would have known that his National Party colleagues would have intervened decisively to prevent him bringing their party into such disrepute.

It is one of the oddest and most worrying aspects of the events surrounding Ms Sage’s late-night introduction of her controversial SOP (Supplementary Order Paper) while a weary House of Representatives was sitting under Urgency. Sherlock Holmes’ famous observation concerning the dog that did not bark, might be applied with equal justification to the Opposition that did not bite.

Tired though National’s and Act’s MPs may have been, and eager to get home to their beds, Ms Sage’s SOP should have had the same effect upon them as a bucket of cold water. Members of the Opposition parties should have risen instantly to their feet, baying like bloodhounds for the Speaker to rule upon the constitutional propriety of the Green MP’s SOP. Expressions of anger and disgust should have been ringing off the Chamber’s walls like the echoes of heavy artillery.

Those Cabinet Ministers present in the House, and their colleagues listening to the proceedings with one ear back in their offices, would have known immediately that something was wrong. Leader of the House, Chris Hipkins, would have hurried to the side of the Minister in charge of the Three Waters legislation, Nanaia Mahuta, seeking urgent clarification as to what the hell Eugenie Sage was playing at.

A fair question – even at this stage of the proceedings. What was Ms Sage playing at? More to the point, was Ms Mahuta aware of her game? Did the Green MP’s SOP come out of nowhere, or was the entrenchment of the section prohibiting the privatisation of any or all of the four water “entities” part of a long-planned attempt to distract the public from the co-governance provisions of the legislation, by making it practically impossible for the Opposition parties to sell off the people’s water to private interests? (That the Opposition parties had categorically ruled out the privatisation of water was deemed an insufficient barrier to its introduction.)

Journalistic inquiries have established that the entrenchment of prohibitions against privatisation was being recommended by supporters of Three Waters months ago. It has also emerged that the Crown’s legal advisers had warned those responsible for the legislation (Ms Mahuta presumably) that such a course of action would be constitutionally abhorrent. It is further suggested that Cabinet received the same advice.

All to no avail. Neither Crown Law, nor the Attorney-General, were able to dissuade the Prime Minister from writing to the Opposition leaders, seeking their support for adding anti-privatisation to the list of core democratic rights and freedoms entrenched in our electoral legislation.

That privatisation is so very clearly “one of these things [that] is not like the others” in no way dissuaded the three women of Three Waters from undermining the integrity of New Zealand’s sixty-six-year-old, unanimously enacted, entrenchment provisions – along with the parliamentary consensus that had rendered them sacrosanct for so long.

The beauty of this country’s unwritten constitution is its simplicity and flexibility. It is not beholden to unelected judges, and vouchsafes to all citizens the right to overturn with their votes what arrogant politicians have set up with their own. The only right our constitution sets in stone, is the right of citizens to participate in the government of their country. Those who seek to remove the power of the people’s representatives to amend and/or repeal the laws, are not their friends – they are their enemies.

This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 2 December 2022.

Wednesday, 30 November 2022

Has Labour Become A Co-Governed Party?

The Power Of Two: It is possible that, formally or informally, the Labour caucus arrived at its own version of co-governance. What the Māori caucus decide upon as its priorities are not to be overridden or gainsaid by the broader Labour caucus’s Pakeha majority. An arrangement of this sort would certainly explain how Three Waters became such immoveable items on Labour’s legislative agenda.

THE MORE THE VOTERS DISCOVER about Labour’s Three Waters, the less they like it. No matter, this Government has clearly decided that, if it is to be destroyed, then Three Waters is the hill upon which it will die. That being the case – and the still-unfolding Entrenchment Crisis leaves little room for doubt – then the only real question to be answered is: Why? What is it about the Three Waters project that renders it impervious to rational reconsideration?

When a group of people refuse to accept they have made a poor choice – even as it threatens to destroy them – then it is a reasonably safe bet that they are in the grip of dangerously delusional thinking. Cult-like thinking, some might even suggest. But is it credible to suggest that a mainstream political party could fall victim to delusional thinking on such a scale? Is Labour really crazy enough to put its long-term survival at risk?

It is certainly possible. And those in need of convincing have only to consider the destructive impact of Brexit upon the British Conservative Party, and Donald Trump’s malign influence over the United States’ Republican Party. If a majority of Tory MPs could be persuaded that leaving the EU was a good idea; and House Republicans that the 2020 Presidential Election was actually won by the incumbent; then the idea that Labour is hellbent on trashing New Zealand’s unwritten constitution suddenly doesn’t sound crazy at all.

The British Tories were tortured by the fear that remaining in the EU was tantamount to conceding that the days of global hegemony and imperial splendour were finally beyond recall. For the Americans, the fear was remarkably similar: that their fate would be the same as the Brits’; being edged off the world stage by larger emerging powers. Brexit offered the opportunity to “Take Back Control”. Trump promised to “Make America Great Again”. Big ideas. Crazy lies.

What idea is big enough to derange the Labour Party into courting electoral suicide? The answer would appear to involve a radical revision of New Zealand history. Something along the lines of the colonisation of Aotearoa being a heinous historical crime. In this narrative, the colonial state is identified as the institution most responsible for the criminal dispossession of Aotearoa’s indigenous Māori population. Labour’s big idea is to facilitate a revolutionary reconstitution of the New Zealand state.

Now, where would Labour get an idea like that? Putting to one side Labour’s Māori caucus, whose interest in such an historical project is entirely understandable, how could Labour’s Pakeha MPs have picked up such a self-destructive notion? Well, the university graduates in Labour’s caucus (which is to say nearly all of them) are highly likely to have come across arguments for “decolonisation” at some point in their studies. The lawyers among them would certainly have encountered and absorbed “the principles of the Treaty”. So, too, would those coming to the Labour Party from the state sector.

It would be interesting to know exactly how many members of Labour’s caucus have, at some point in their past, attended a “Treaty Workshop”. Over the course of the past 40 years these have become virtually compulsory for members of the professional and managerial middle-class. The version of New Zealand history conveyed to those attending these workshops is remarkably consistent: colonisers = baddies; the heroic Māori who resisted the colonisers’ ruthless predations = goodies. Only by giving full effect to te Tiriti o Waitangi can the wrongs of the past be righted: only then will equity and justice prevail.

Many of those attending Treaty workshops will have been invited to “check their privilege” and “confront their racism”. This can be a harrowing experience for many Pakeha, leaving them with a strong inclination to keep silent and step aside whenever those on the receiving end of “white privilege” are encouraged to step forward and speak out. In the most extreme cases, Pakeha are actively discouraged from sharing their opinions, lest their higher education and superior facility with the English language overawe and “silence” those denied such privileges.

When Labour’s Māori caucus (the largest ever after the 2020 general election) sought to take full advantage of the party’s absolute parliamentary majority to advance their Treaty-centric agenda, it is entirely possible they found themselves pushing on an open door.

It is even possible that, formally or informally, the Labour caucus arrived at its own version of co-governance.* What the Māori caucus decided upon as its priorities were not to be overridden or gainsaid by the broader Labour caucus’s Pakeha majority. An arrangement of this sort would certainly explain how the Māori Health Authority and Three Waters became such immoveable items on Labour’s legislative agenda, and why the rising unpopularity of Nanaia Mahuta’s Three Waters project has, so far, proved unable to shift the Prime Minister and her Cabinet from their position of unwavering support.

Labour’s been here before. In the 1980s, the “big idea” that seized the imagination of most of the Labour caucus was what was then called “free-market economics”. By the end of the Fourth Labour Government’s second term it was clear that the consequences of the Rogernomics “revolution” were going to be electorally fatal. Desperate to negotiate an economic policy U-turn, the Labour Party discovered that the Labour Government was, like Margaret Thatcher, “not for turning”. Indeed, many MPs proudly declared that they would rather lose their seats than repudiate the economic reforms they had helped to introduce.

In 1990, Rogernomics was the hill Labour decided to die on. And die it did – at least as a recognisably social-democratic party. The party’s left-wing departed with Jim Anderton to form NewLabour and the Alliance, leaving behind a curious mixture of neo- and social-liberals. It is, perhaps, unsurprising that Labour’s Māori caucus has found the party’s Pakeha majority so easy to cajole into backing what, from its perspective, is an entirely legitimate constitutional agenda. Led by Nanaia Mahuta and Willie Jackson, the Māori caucus has taken full advantage of the fact that their Pakeha colleagues’ lack of constitutional conviction has never been a match for their own passionate intensity.

Three Waters may be the hill Labour dies on, but when the victors survey the field of battle, the only corpses they’ll find will be Pakeha. Each one clutching the “Big Idea” for which their party has paid the ultimate price.

* Acknowledgement is due, here, to NZ Herald journalist Fran O'Sullivan, who first raised the possibility of Labour having become a co-governed party. - C.T.

This essay was originally posted on The Daily Blog of Tuesday, 29 November 2022.

Hope Defeats Hate.

Third Time Winner: Daniel Andrews’ Victorian victory is of a piece with the general failure of the American Right to achieve the gains it was expecting in the recent mid-term elections. Generally speaking, voters not already addicted to the Right’s ideological Kool-Aid find very little to like about candidates who manifest the odd and at times frightening behaviour of ideological zealots and outlandish conspiracy theorists. As Simon Holmes-A’Court’s teal candidates have proved in two elections on the trot, moderation + warmth is a winning combination. 

IF JACINDA ARDERN wasn’t congratulating Victorian Labor’s Dan Andrews on Saturday evening, then she bloody well should’ve been. With a third successive Labor victory under his belt, Andrews is set to become the state’s longest-serving Labor premier. In addition to offering her own, and her party’s, hearty congratulations, the New Zealand prime minister must have been sorely tempted to add: “How the hell did you do it!”

It’s a question the whole of the Australian Right will be asking themselves. They were so confident of winning Victoria that they simply failed to notice just how profoundly the politics of the Lucky Country have changed. It simply did not occur to them that a clear majority of the population saw Andrews as something other than a cruel and capricious Covid tyrant who had locked Victorians down for weeks – and months – on end. They could not conceive a Labor premier, whose actions had unleashed street battles between trade unionists and state police, possibly retaining the loyalty of Labor voters.

As far as the Australian Right was concerned, Andrews and the Victorian Labor Party were dog-tucker. Their man, the Liberal Party leader, Matthew Guy, couldn’t lose. Victoria was about to be prized out of Labor’s cold dead hands. (The party has governed the state for all but 4 of the last 27 years.)

Those who ventured onto Twitter to impart the heretical information that there were signs Labor might win, were greeted with scorn, and tweeted with contempt. “Just you wait ‘til Saturday,” crowed the over-confident Right, “then you’ll see!”

Well, quite. And what they saw was a slight slippage in Labor’s support – understandable after 8 years in office – and a reasonably strong performance by the Liberal’s coalition partner, the National Party. But, there was nothing like the Liberal surge needed to topple Andrews’ government. Quite the contrary, in fact. In the innermost of Melbourne’s inner suburbs it was the Greens who racked up gains – taking at least 1 seat from Labor. At the same time, moderate millionaire Simon Holmes-A’Court, author of the “Teal Revolution” which unseated a clutch of Liberal party grandees in the federal election, was claiming victory in two out of the four seats contested by his Climate 200 movement.

What the Liberal Party, and the Australian Right in general, have yet to register and accept is that Australia’s centre of political gravity has shifted sharply to the left. Crucial to this crippling perceptual failure is the performance of the Australian media, the Murdoch press in particular, where right-wing sentiment has become so deeply entrenched that its editors, journalists and columnists no longer even try to understand the other side of the political divide.

Those not dismissed by right-wing “shock jocks” as “woke”, are branded “cultural Marxists”, or “critical race theorists”. It has become almost impossible to persuade the Right that the number of people who actually merit these ideological labels is nowhere near large enough to swing an election. Even more dangerously, the assumption remains (no matter how meagre the evidence) that the overwhelming majority of “ordinary people” share the Right’s rampant prejudices. It is only after the votes have been counted that their misperceptions stand exposed.

On both sides of the Tasman this sort of “bubble thinking” is apt to steer the principal parties of the Right in the wrong direction. No matter how unanimous social-media appears at times, its ideological homogeneity is much more the product of IT engineers’ algorithms than it is of some broad cultural consensus. Such consensus as still exists in the Anglosphere, is far more likely to be found clustering around the shibboleths of the Left than the Right.

Gender Equality, Climate Change, Indigenous Rights, Cultural Diversity: hard though it may be for many on the Right to accept, these causes attract vastly more followers than Racism, Sexism, Homophobia and Climate Change Denialism. Not that Murdoch’s columnists, nor Australian Sky TV’s pundits, will ever concede an inch to such ideological heresies.

Andrews’ Victorian victory is of a piece with the general failure of the American Right to achieve the gains it was expecting in the recent mid-term elections. Generally speaking, voters not already addicted to the Right’s ideological Kool-Aid find very little to like about candidates who manifest the odd and at times frightening behaviour of ideological zealots and outlandish conspiracy theorists. As Holmes-A’Court’s “teal” candidates have proved in two elections on the trot, moderation + warmth is a winning combination – even in traditionally conservative electorates.

What, then, can New Zealand’s Labour leader, Jacinda Ardern, learn from the experience of her Victorian counterpart?

Almost certainly, the most important lesson to be drawn from Saturday’s Victorian result is that it is very wrong to give too much credence to the Right’s predictions of inevitable – and crushing – victory. The political-economy of the mainstream news media makes it considerably easier to shape right-wing than left-wing political narratives. In spite of numerous studies confirming that a majority of journalists lean to the left, it is rare to encounter mainstream journalists willing to cast the conduct of their employer’s principal advertisers in a consistently unfavourable light.

Equally unwise, is the ingrained habit of far too many political journalists to speak with unwarranted confidence about the attitudes of “ordinary” people. All too frequently, such commentary is based on nothing more than the crudest stereotypes. Among the Professional and Managerial Class, in particular, there is a pernicious view of “ordinary” people as repositories of all manner of “deplorable” prejudices and predilections – as if they weren’t discussing human-beings at all, but orcs.

Jacinda Ardern should draw reassurance from both the American and Australian elections that holding fast to a moderate progressivism is very far from being a losing strategy. Refusing to engage in the mud-wrestling so beloved of populist politicians is also unlikely to cost her votes. Nor being willing to engage in a little public humility. People who make mistakes every day of their lives are surprisingly willing to forgive those politicians who admit to being human, all-too-human.

Perhaps the most important lesson our Prime Minister could learn from the Victorian Premier, however, is the one he delivered to his fellow Victorians on election night. Quoting the former Labor prime-minister of Australia, Paul Keating, Andrews told his cheering followers: “Leadership isn’t about doing what’s popular, it’s about doing what’s right.” Alluding to the trials of the Covid-19 Pandemic, he praised his fellow Victorians for maintaining their “faith in science, and their faith in each other”.

It was that sense of kindness, he said, that sense of all being in this together, that carried Victoria through a one-in-one-hundred-year crisis. “Friends,” he reassured his fellow Victorians, “hope always defeats hate.”

This essay was originally posted on the Interest.co.nz website on Monday, 28 November 2022.

Sunday, 27 November 2022

A Strange Hill To Die On.

Last Stand? Has Labour’s caucus chosen the Government’s deeply unpopular Three Waters policy as the hill upon which it will stand and die? And, if that is the case, then – why?

CURIA RESEARCH recently conducted a poll in the Napier electorate. Bad news for Stuart Nash, the Labour incumbent, whose chances of holding the seat are currently fluctuating between slim and none. Bad news, too, for the Labour Government as a whole, because the issue of most concern to local voters, by a Hawke’s Bay country-mile, is Three Waters. Around a third of the voters polled put the controversial water project at the top of their list of concerns. That’s nearly twice as many as the next most pressing concern for Napier voters – the parlous state of our health system.

One has to go back a long way to find a government so willing to press on with a policy so roundly rejected by the electorate. It is more than thirty years since Richard Prebble, confronted with the evidence that close to 90 percent of New Zealanders opposed the sale of Telecom, responded with the observation that Kiwis should be proud to have a government with the guts to face down such a powerful pressure-group!

Opponents of Rogernomics knew their efforts to turn around Labour’s caucus were doomed when MPs, confronted with evidence of the damage the Government’s policies were doing to their own chances of re-election, proudly declared that they would rather lose their seats than abandon the economic reforms. When fanaticism replaces politics, there’s not a lot anyone can do.

Is that what New Zealanders are faced with in the Three Waters Project – fanaticism? As happened thirty years ago with Rogernomics, has Labour’s caucus chosen this deeply unpopular policy as the hill upon which it will stand and die? And, if that is the case, then – why?

Tasked with a very similar question by the veteran business journalist, Fran O’Sullivan, the Deputy-Prime Minister and Minister of Finance, Grant Robertson, indicated that if the most controversial element of Three Waters, the co-governance provisions, were stripped out of the Water Services Entities Bill (which is now only one reading away from the Royal Assent) then the two key questions Three Waters was formulated to answer: ‘Who owns the water?’ and ‘Who should manage it?’ would “end up in the courts immediately”.

Why should that be seen as an insurmountable problem? The answer, for Labour, can be given in three words: “foreshore and seabed”. The younger generation of Labour activists and politicians were mortified by Helen Clark’s ruthless countermanding of the Court of Appeal’s controversial judgement on who owned the watery margins of New Zealand. They still cringe at her in/famous description of those leading the protests against Labour’s legislation as “haters and wreckers”. Jacinda Ardern’s and Grant Robertson’s generation vowed “never again”.

What they still fail to grasp, however, is that Helen Clark’s government’s political response was both courageous and correct. The Court of Appeal had presumed to intrude upon matters that – as subsequent events proved – were quintessentially political in nature and, therefore, the proper preserve of the nation’s supreme political arbiter, Parliament. By reaffirming, through over-riding legislation, what the overwhelming majority of New Zealanders already believed to be the case – that the coastline belongs to all the people – Prime Minister Clark was telling the judiciary, in no uncertain terms, to get back in its box.

It is a matter of considerable constitutional concern that this present Labour Government does not appear to be willing to invite the courts to do the same.

Mr Robertson’s fear of the Three Waters controversy ending up in the courts strongly suggests that he and his Cabinet colleagues are simply unwilling to avail themselves of the power to determine who does – and who does not – own the water.

Is that because they are frightened that Labour’s Māori caucus will revolt if the co-governance provisions of the Water Services Entities Bill are stripped out of the legislation? Or, is it because they are afraid that the Judiciary will openly declare any such move by the Legislature to be ‘inconsistent’ with the principles of te Tiriti o Waitangi?

If the first explanation is correct, then Mr Robertson and his Cabinet colleagues are guilty of political cowardice. If the second explanation holds true, then the Ardern Ministry is guilty of constitutional dereliction-of-duty.

The day unelected judges are permitted to dictate policy to the people’s elected representatives, in Parliament assembled, is the day that democracy dies in New Zealand.

This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 25 November 2022.

Tuesday, 22 November 2022

The Most Pertinent Question.

Why Now? As Rebecca Wright pointed out to Justice Minister, Kiritapu Allan, on Newshub Nation, a great deal of political travail could have been avoided by the Labour Government if they’d simply accepted the Royal Commission’s recommendation to extend the already existing legal protections against the incitement of racial hatred to include religious communities. In the evil shadow of the Christchurch Mosque Attacks, most New Zealanders would not have objected.

THE LABOUR GOVERNMENT’S wholesale retreat from its dangerously exposed positions on “Hate Speech” should be applauded. Had it remained committed to the hardline definitions it trailed before the public a year or so ago, Jacinda Ardern’s ministry would have been condemning itself to a battle it did not need to fight – and could not win. The truth of the matter is that Labour’s dangerous dalliance with the Woke variant of Hate Speech has served no one but the Act Party, whose staunch defence of Freedom of Expression accounts for much of its impressive increase in electoral support.

One of the most pertinent questions put to Kiritapu Allan, the Cabinet Minister in whose name the watered-down legislation will be introduced, came from Newshub Nation’s Rebecca Wright. What was it, she wanted to know, that prevented the Labour Government from implementing these measures when they were originally recommended by the Royal Commission of Inquiry into the Christchurch Mosque Shootings almost exactly two years ago?

As Wright pointed out, a great deal of political travail could have been avoided by the Labour Government if they’d simply accepted the Royal Commission’s recommendation to extend the already existing legal protections against the incitement of racial hatred to include religious communities. In the evil shadow of the Mosque Attacks, most New Zealanders would not have objected to proscribing the sort of language contained in the writings of the Norwegian mass killer, Anders Breivik, and his Australian disciple, Brenton Tarrant.

Like the legislation outlawing semi-automatic weapons, the protection of religious communities from verbal incitement to inflict serious bodily harm would likely have passed through Parliament swiftly and with a minimum of debate. An issue fraught with all manner of risky political and cultural side-bars could thus have been resolved: the legislated solution being generally perceived by New Zealanders as morally congruent to the problem which called it forth.

The Royal Commission’s recommendations regarding the current hate speech laws were as follows:

1. sharpening the focus of the statutory language;

2. adding religion to the list of protected characteristics;

3. including electronic communications in the types of publication covered;

4. including the offence in the Crimes Act rather than the Human Rights Act;

5. increasing the maximum penalty from three months’ imprisonment to up to three years’ imprisonment; and

6. adding “racial superiority, racial hatred and racial discrimination” to the list of grounds for classifying a publication as objectionable under the Films, Videos, and Publications Classification Act 1993.

With the obvious exceptions of recommendations 5 and 6, the Royal Commission’s suggestions were admirably moderate. After so many false starts, inept attempts at explaining the Labour Government’s thinking, and frightening proposals advanced by some of the more extreme actors in this drama, Minister Allan’s response is no less measured:

Currently, under the Human Rights Act 1993, it is illegal to publish or distribute threatening, abusive, or insulting words likely to ‘excite hostility against’ or ‘bring into contempt’ any group on the grounds of colour, race, ethnic or national origins. Those grounds will now be extended, in both the civil (section 61) and criminal (section 131) provisions, to cover religious belief.

Unfortunately, Ms Allan’s Royal Commission-inspired “solution” is unlikely to be as well-received in 2022/23 as it would have been in 2020. Closer to the tragedy, the manifold problems associated with exciting “hostility or ill-will against”, or, “bringing into contempt or ridicule” any group of persons living in New Zealand on account of their religious beliefs, would undoubtedly have been easier to overlook. Two years on, however, it will not be so easy.

While the average New Zealander might accept the criminalisation of language or behaviour which is intended to – and does – “threaten” faith communities, it is much less likely that they would accept people being criminally sanctioned for “abusing” and/or “insulting” people for their religious beliefs.

It is important to bear in mind as the debate rages over the Government’s proposed changes to the Human Rights Act, that the historical context out of which the demand for individual freedom of expression arose was first and foremost a religious one. It is one of the most problematic aspects of religious belief that it not only lays down strict rules for one’s own conduct, but also, almost invariably, the conduct of others. When the prize at stake is one’s immortal soul, being required to conform to some other person’s religious beliefs quickly assumes the character of an existential threat. People will kill their fellow human-beings for a whole lot less than their billet in eternity.

How would New Zealanders respond to the news that the state legislatures in the USA had passed laws making it illegal to excite hostility against or ridicule of the Christian religion? Would they consider that a necessary legal protection? Or would they condemn such a law as an outrageous curtailment of Americans’ freedom of expression? Unhappy with hypotheticals? Well then, what is the response of most New Zealanders to the sentences of death imposed upon those who insult the Prophet Mohammed in Muslim countries? (Or, in the case of Salman Rushdie, from well outside Muslim countries?)

On the questions of how best to save one’s soul, the liberal-democratic state has learned, usually by the hardest of ways, to take itself out of the conversation. It willingly grants its citizens the right to believe in all manner of deities, with all manner of strict rules and regulations concerning their worship, but it does not attempt to enforce the exemption of those same citizens from all manner of criticism, insult, and ridicule. Although the New Zealand state had not prosecuted anybody for a very long time for the crime of blasphemous libel, it nevertheless thought it appropriate to remove the offence entirely from its statutes. By what curious logic, therefore, does it now propose to reintroduce it under the cover of the Human Rights Act?

Significantly, the National Party has signalled its unwillingness to accept the extension of the Human Rights Act’s protections to include religious belief. Their argument, like Act’s, is that such an extension would constitute an unwarranted curtailment of New Zealanders’ freedom of expression. Labour faces a united Right on this issue, and with it the guarantee that the Free Speech versus Hate Speech debate will feature prominently in the run-up to the 2023 General Election.

As if that wasn’t bad enough, Labour also faces a year of angry protest from its left. Woke New Zealand (among whom we must now include the leading lights of the Human Rights Commission) is outraged that Minister Allan and her colleagues have not extended the protection of the Human Rights Act to women, the LGBTQI community, and the disabled.

Contemplating the coming months of rancour and rebuke, Rebecca Wright’s question about why the Prime Minister and her government didn’t strike this particular wedge of iron when it was still red hot, only grows more pertinent – and the Government’s answer, all the more puzzling.

This essay was originally posted on the Interest.co.nz website on Monday, 21 November 2022.

Sunday, 20 November 2022

If It Ain’t Broke, Why Fix It?

Still Going Strong: Why has the Minister of Justice cobbled together a group of “progressive” academics, most of whom subscribe to the core beliefs of Māori nationalism, “decolonisation”, and te Tiriti revisionism, to “review” our political system? In the absence of any convincing evidence that our electoral machinery is “broke”, why is the Labour Government so determined to “fix” it?

DEBORAH HART is sceptical about democracy’s effectiveness. Or, at the very least, she believes it can be improved. “We should never take for granted that our electoral system, or indeed our democracy, will work effectively”, says the Chair of the Independent Electoral Review Panel.

It’s a rather curious comment for the person charged with giving our electoral system the once-over to toss – almost randomly – into the “conversation” about New Zealand’s democracy. After all, New Zealand boasts one of the oldest, continuously operating, democracies in the world. Countries much larger and more powerful than our own cannot point to an uninterrupted stretch of free and fair elections of nearly 130 years. Neither the French nor the Italians could make such a boast, and certainly not the Germans or the Russians.

Not only were New Zealand women the first to be enfranchised, but its indigenous people, the Māori, have enjoyed permanent parliamentary representation since 1867. Indeed, Māori were exercising their right to vote years before their Pakeha brethren. The citizens of very few nations have had the benefits of universal adult suffrage for as long as Kiwis. Certainly not the British or Americans. (The women of the United States won the federal franchise in 1920, and British women were not fully enfranchised until 1928!)

What’s more, our Mixed Member Proportional (MMP) electoral system, in operation since 1996, has successfully rid our democracy of the unedifying spectacles of yesteryear, when individual political parties receiving considerably less than 50 percent of the votes cast, somehow ended up commanding a majority of the seats won. MMP has also allowed political parties to use their “Party Lists” to more accurately reflect the rich diversity of the New Zealand people. Our House of Representatives, formerly a chamber dominated by old, white, men, is, at last, what it says on the tin.

There are some who lament New Zealand’s lack of a written constitution – on the model of America’s and Australia’s. Others criticise our unicameral parliament, arguing that we would be better served by restoring its second chamber, abolished by National’s first prime minister, Sid Holland, in 1950.

The problem with written constitutions is that the inevitable conflicts over their interpretation are resolved by unelected lawyers in judges’ robes. And, as anyone who’s been paying attention to US politics recently knows, allowing judges to determine what should and shouldn’t be included among the fundamental rights of citizens, can throw up some very disturbing results.

With their single house of Parliament, their unwritten – and hence flexible and adaptable – constitution, and their highly efficient electoral machinery, New Zealanders are the masters of their own destiny to a degree unencountered among many peoples. Our courts cannot strike down legislation passed by the House of Representatives, nor can one Parliament bind another – both prohibitions guaranteeing a radically majoritarian mode of government. If the essence of democracy consists of giving effect to the will of the majority, then New Zealand must rank as one of the most democratic nations on Earth.

Why then did the Minister of Justice see fit to cobble together a group of “progressive” academics, most of whom subscribe to the core beliefs of Māori nationalism, “decolonisation”, and te Tiriti revisionism, to “review” our political system? In the absence of any convincing evidence that it is “broke”, why is the Labour Government so obviously keen to “fix” our electoral machinery?

Some idea of the expectations raised by the formation of the Independent Panel may be gleaned from “advocate and political commentator” Te Matahiapo Safari Hynes, who told Radio New Zealand’s Pokere Paewai:

There’s only a certain level that we can exist as Māori within this system that’s currently here in terms of central and local government. There’s only a certain amount of things that we can achieve […..] We cannot achieve our full potential as a self-determining people within this political system. However this is what we have and we have to be a part of it.

This is, indeed, “what we have”, but one senses that Mr Hynes’s intention to be “a part of it” is the same as the Lion’s intention to be “part of” the herd of wildebeest he is tracking. One also gets the uneasy feeling that the members of the Independent Electoral Review Panel are committed to doing everything within their power to help him.

This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 18 November 2022.