Curriculum encouraging climate activism and capitalism

Should the school curriculum be limited to bland academic subjects, or should it also encourage critical thinking, care about important issues and advice on capitalist activities?

Should kids be taught about dealing with outrage expressed on Twitter?

I did reasonably well at school academically, but was often bored and uninspired. I left after getting University Entrance in the 6th form to get a job, wanting to avoid another year of tedium and years of university.

One stand out period at school was when Grahame Sydney (who gave up teaching after a few years and took up painting) plaayed us Arlo Guthrie’s Alice’s Restaurant.  We were too young to be potentially affected by being balloted into the New Zealand Army and being sent to Vietnam, it provoked thought about the a big issue of the time and got some interesting discussion going.

The Taxpayers’ Union put out a media release:

Climate change curriculum skirts close to taxpayer-funded propaganda

The Government’s new climate change educational material for year 7 and 8 students skirts close to taxpayer-funded propaganda, says the New Zealand Taxpayers’ Union.

Taxpayers’ Union spokesman Louis Houlbrooke says, “The new taxpayer-funded curriculum promotes the campaigns of Greta Thunberg, School Strike for Climate, and even Greenpeace. Students are encouraged to reduce their feelings of climate guilt by participating in this kind of political activism.”

“Left-wing campaign groups would be spewing if the national curriculum ever promoted the Taxpayers’ Union vision of a prosperous low-tax New Zealand. The national curriculum should not be used to promote particular political groups or agendas.”

“A sensible climate change policy would focus on the science and policy options. But even on these points, the course is weak: it promotes a tax on carbon while failing to mention that we already have an Emissions Trading Scheme.”

“A major portion of the material is fluffy, condescending rubbish. Students will have to sit through five different sessions focused on their feelings about climate change, with activities including a ‘feelings splash’ and a ‘feelings thermometer’.”

The teacher resources even include a 15-page ‘wellbeing guide’ for teachers and parents, which warns: Children may respond to the climate change scientific material in a number of ways. They may experience a whole host of difficult emotions, including fear, helplessness, frustration, anger, guilt, grief, and confusion. When discussing the material, teachers may encounter students who cope through avoidance, denial, diversionary tactics, wishful thinking and a range of other coping mechanisms.

“This isn’t teaching kids how to think – it’s telling them how to feel.”

It would be terrible if schools dealt with feelings about important issues. (Actually schools do deal with feelings, especially when there are deaths and disasters that could impact on kids).

Should discussing the Australian bushfires and their possible causes be banned in schools?

Should anything that could be construed by someone as political be banned?

@GraemeEdgeler points out

And here is teaching resource encouraging students to become property developers, selling off and subdividing publicly-owned land.

https://t.co/eeSHElhKqB?amp=1

He asks:

Why are schools encouraging capitalism and not socialism?

Should schools stick to reading, riting and rithmetic, and ignore everything else in the world?

 

Bad journalism, bad blogging, bad case in Youth Court

A bad case in the Youth Court of two rapes, bad reporting, bad MP reactions, bad blogging and predictable blog comments rife with inaccuracies and misdirected blame.

Initial misleading report at Stuff: Teenage rapist ‘got off very lightly’ after admitting sex attacks on two girls

A teenager was spared jail for rape after a court heard he had a promising career as a sportsman ahead of him.

The now 18-year-old, who has previously represented New Zealand on the world stage, admitted charges of rape and sexual violation in the Auckland Youth Court.

But he will not be jailed after a judge took into account his “outstanding talent” when sentencing him for sex attacks on two teenage girls.

The teenager has automatic  and, aside from his record noting the Youth Court appearances, faces no punishment.

There was outrage on Twitter, only some of it justified.

David Farrar at Kiwiblog: Name suppression disgrace

He’s raped and assaulted two girls and he gets permanent name and not even a slap on the wrist – all because he is good at sports.

That is sickening.

I’m not saying he should go to prison. But to face no punishment at all is terrible, and no one should get name suppression for serious violent or sexual offending if they have been found guilty.

The victims must feel terrible that after what he did to them, he gets off totally. Not even community service, a fine, home detention etc. He gets zilch all because he is good at sports.

The Crown must appeal this travesty of a sentence.

Some of this is inaccurate because the Stuff report was inaccurate, but DPF has added his own inaccuracies. The offender got off very lightly, but did not get off totally.

Uninformed outrage ensued, including from a lawyer. other lawyers set the record straight…

GPT1

If you are going to rant and rave can you please get the law right. It was in the Youth Court. Suppression is the law. There was a time when you did analysis not talkback by blog.

…but as is common at Kiwiblog they were downticked for adding facts to the discussion.

Graeme Edgeler on Twitter also pointed out facts of the matter.

Stuff corrected their story: Teenage rapist ‘got off very lightly’ after admitting sex attacks on two girls

A teenager who has hopes of being a professional sportsman has failed in his bid to keep any record of his charges for rape and sexual violation from his record.

The teenager, who has previously represented New Zealand on the world stage, admitted the charges in the Auckland Youth Court.

The now 18-year-old has automatic name suppression and, aside from his record noting the Youth Court appearances, he faces no punishment.

An advocate for survivors of sexual abuse says the teenager has “got off very lightly”.

* CORRECTION: An earlier version of this story incorrectly reported that the teenager had been spared jail after a court heard of his promising sport career. In fact, because the case was heard in the Youth Court a jail term was not a sentencing option available to the judge. We regret the error.

That has been pointed out on Kiwiblog but it hasn’t stopped the outrage raging.

Even an ex-Minister of Justice jumped on the bash-wagon (albeit reacting to first the Stuff report).

For anyone who wants to understand the court judgment accurately 2018-NZYC-490_New-Zealand-Police-v-OV.pdf [311 KB]

Louisa Wall: “The Media have a responsibility to do no harm”

Prime Minister Jacinda Ardern announced yesterday that she is is chairing a meeting in Paris next month in a attempt to find a way to prevent terrorists from being able to social media to promote and publicise terrorism.

Labour MP Louisa Wall on Facebook yesterday widened her focus to ‘The Media’:

Kia Ora. The Media and those that transmit their political content and other political content generated for these public mediums, are defined as The Fourth Estate or fourth power that refers to the press and news media both in explicit capacity of advocacy and implicit ability to frame political issues. It is time that it was formally recognized as part of a political system, as it wields significant indirect social influence.

This would impose a Duty of Care on The Media – a formalisation of the social contract, the implicit responsibilities requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others.

The Media have a responsibility to do no harm. Kia Kaha PM Jacinda Ardern for the meeting on May 15 – two months after the Christchurch terror attacks which claimed the lives of 50 people – which aims to see world leaders and tech company bosses agree to the “Christchurch call” – a pledge to eliminate terrorist and violent extremist content online.

Linked to NZ Herald: Prime Minister Jacinda Ardern to lead global attempt to shutdown social media terrorism

This prompted a reaction from some journalists.

Andrea Vance (@avancenz):

Uh, what? Bringing media under control of Parliament … is this govt policy ?

(Facebook post image included)

Liked by SamSachdeva, Hamish McNeilly, Hamish Rutherford, Stacey Kirk, Laura McQuillan, Richard Boock, Paul Harper, Kim Baker Wilson, Tracey Watkins, John Campbell (all media/journalists) plus Chris Bishop (MP).

Two lawyers add their views:

Graeme Edgeler (@GraemeEdgeler):

It sounds bad, but I kind of feel most of these things are already present, certainly for online and broadcast media anyway. Duty of care is not a ridiculous paraphrase of the duties on media in some defamation defences, and under the HDCA.

Stephen Franks (@franks_lawyer):

Without the defences of truth and honest opinion it is completely sinister and as far from the law that protected both freedom and honest public discourse as we could get.

Graeme Edgeler:

I was thinking, for example, of the defamation defence of responsible communication on a matter public interest as provided in Durie v Gardiner [2018] NZCA 278.

Stephen Frank:

I understand that and am very conscious of NZ judges massive indifference to the vital role of liability for lies, as a condition/corollary of free speech, but your comment is still misleading rationalisation of sinister nonsense from Ardern and her fumbling Minister of Justice.

That is widening somewhat from what Wall posted.

Despite the concerns shown by journalists I don’t think Louisa Wall has much sway in Labour let alone in Government. She is ranked 23 (Clare Curran is 22), despite being an MP for 11 years, a term and a bit from 2008 as a list MP, and since 2011 as MP for Manurewa (2017 majority 8,374).

Full ban of ‘manifesto’ went too far according to some lawyers, not others

Some lawyers have said that the chief censors total ban of the Christchurch terrorist’s so-called manifesto went too far, but it isn’t a universal view.

Classification Office: Christchurch attack publication ‘The Great Replacement’ classified objectionable

A publication reportedly written by the terrorist behind the fatal attacks in Christchurch, has been officially classified as objectionable.

“Others have referred to this publication as a ‘manifesto’, but I consider it a crude booklet that promotes murder and terrorism. It is objectionable under New Zealand law,” says Chief Censor David Shanks.

The document, examined under the Films, Videos & Publications Classification Act 1993 (FVPCA), is deemed objectionable for a number of reasons.

“It promotes, encourages and justifies acts of murder and terrorist violence against identified groups of people, ” says Mr Shanks.

“It identifies specific places for potential attack in New Zealand, and refers to the means by which other types of attack may be carried out. It contains justifications for acts of tremendous cruelty, such as the deliberate killing of children.”

“We have dealt with terrorist promotional material before which was deliberately designed to inspire, encourage and instruct other like-minded individuals to carry out further attacks. For example we have found a number of ISIS publications to be objectionable in previous decisions. This publication falls in the same category.”

An objectionable classification for this publication is considered to be a justifiable limit on freedom of expression under the Bill of Rights Act in this case.

“There is an important distinction to be made between ‘hate speech’, which may be rejected by many right-thinking people but which is legal to express, and this type of publication, which is deliberately constructed to inspire further murder and terrorism,” says Mr Shanks.

“It crosses the line.”

It is recognised that the publication has been widely reported on over the past week, with many media outlets publishing commentary on it, and sometimes providing links to it or downloadable copies. Many New Zealanders may have read it, possibly seeking answers for why this dreadful atrocity took place.

Most people reading the publication will not be harmed by it. “Most New Zealanders who have read this will simply find it repellent. But most New Zealanders are not the target audience. It is aimed at a small group who may be receptive to its hateful, racist and violent ideology, and who may be inspired to follow the example set by its apparent author.”

It is an offence to possess or distribute an objectionable publication. People who have downloaded this document, or printed it, should destroy any copies.

Those engaged in further reporting on the Christchurch attack may be tempted to consider the use of quotes from the publication that have already been used in other media reports.

“That use of excerpts in media reports may not in itself amount to a breach of the FVPCA, but ethical considerations will certainly apply,” said Shanks.

“Real care needs to be taken around reporting on this publication, given that widespread media reporting on this material was clearly what the author was banking on, in order to spread their message.”

“We also appreciate that there will be a range of people, including reporters, researchers and academics, who will be in possession of the publication for a range of legitimate purposes, including education, analysis and in-depth reporting. Those individuals can apply for exemptions, so they can legitimately access and hold a copy.”

Information on this process can be found here.

“New Zealanders can all play a part in denying those who exhort hatred, killing and terror. If you have a copy of this publication, delete or destroy it. If you see it, report it. Do not support the murderous objectives of its author by republishing or distributing it.”

Personally I think that it should not be shared, distributed, published or linked to from here and have asked that that not be done here – although selected quotes to make specific points seems reasonable.

RNZ: Legal experts say censorship on gunman’s manifesto went too far

…the Free Speech Coalition said the manifesto could be important for society to understand a dark part of our history.

“Most New Zealanders will have no interest in reading the rants of an evil person,” coalition spokesman and constitutional lawyer Stephen Franks said.

“But there is a major debate going on right now on the causes of extremism.

“Kiwis should not be wrapped in cotton wool with their news and information censored. New Zealanders need to be able to understand the nature of evil and how it expresses itself.”

Journalists, researchers and academics could apply for an exemption to the ban, but that was not practical when working on tight deadlines, Mr Edgeler said.

“Given the censor says that there are groups of people that should have access, imposing a full ban seems the wrong way to go.

“It needs to be perhaps quite restricted – you have to be at least 18, you have to work for a news organisation which is subject to the New Zealand Broadcasting Standards Authority or the New Zealand Media Council – and [it should be that] if you do that, yes, you can have a copy.”

But a lawyer with a different view:

But human rights lawyer Michael Bott said the ban was the right move, and requiring journalists and academics to make formal applications meant any dubious fringe publications or spurious research claims could be ruled out.

“The right to free speech can be constrained when it amounts to hate speech and there is a real risk that someone such as the Christchurch terrorist could basically become a martyr in the eyes of fringe groups who could then use the manifesto as a propaganda tool.

“The potential for harm is just so huge.”

Many publications that could pose a “risk of social harm” had been censored in New Zealand before this, Mr Bott said.

He said, historically, a number of left wing publications were banned in New Zealand, but more recent bans included Danish publication The Little Red School-Book that instructed schoolchildren on sex and drug use, and books with instructions for building guns.

The manifesto was dangerous because it promotes “views that are toxic to democratic society and a culture of tolerance”.

In this case they are reasonable reasons why it should not be distributed or published.

But that could be a slippery slope. Accusations of toxic views and claims of intolerance are common in politics.

I have no interest in reading the manifesto, and see no good reason why most people would want to read it, but it should be able to be examined by researchers and journalists.

 

Murder accused, name suppression and international media

The Grace Millane case has raised the issue of the ineffectiveness of name suppression (non-publication orders) when it only applies to New Zealand media. It has been simple online to find out the name of the person accused of the English tourist’s murder, even without trying.

To clarify the situation – at the first court appearance on Monday the accused person’s lawyer asked for name suppression based on fair trial rights, this was declined by the judge, but the lawyer immediately appealed as he is legally able to do. Under current law this gives the accused 20 days automatic suppression, and the judge will make another decision after arguments for and against have been made.

The police have made it clear what the current situation is:

It would be stupid (as well as illegal) to name the accused, or to aid identification of him in any way. Technically, saying ‘you can find it with Google’ could be deemed an aid to finding out, but it is so obvious a way of discovery that it would be ridiculous to take action.

Lawyer Graeme Edgeler tried to do something practical regarding the law: Name suppression appeals

I have long thought that the 20 working days allowed to appeal a refusal to make a suppression order is too long, when the law requires the court appealed from to make an interim suppression order for that period.

The law did not used to require this. There was no automatic right for interim suppression, which used to be a matter of discretion. A defence lawyer could tell a judge of the intention to appeal, and ask for interim suppression.

The judge might ask: will two days (a week/whatever) be enough to appeal? The lawyer might respond: I’ve a trial tomorrow and Thursday, I’d appreciate if I could have until Friday. And the judge could agree. It didn’t always work. But it also didn’t meant an automatic 20 days.

The new law treats an appeal from a refusal to make a suppression order the same as any other appeal – allowing 20 working days to file the notice of appeal, and automatically extending an interim suppression order.

Usually, delaying filing an appeal will be bad for a defendant (if you wait 20 days to appeal a refusal of bail, that means you’ve spent 4 weeks extra in prison), but this is one time where it doesn’t.

It also unreasonably affects the public and news media who wish to report on matters of public importance, and which a judge has ruled it is unreasonable to prohibit them from doing so. In light of this 20 working days is excessive.

So I have drafted a bill, the Criminal Procedure (Interim Suppression Pending Appeal) Amendment Bill, which would reduce the 20 working days allowed to appeal a refusal to make a suppression order to 5 working days.

If anyone knows an MP whom they think would like to propose it as a member’s bill, feel free to direct them to it, over at the Progressive Bills Wiki.

However the Prime Minister has used Labourese for ‘not interested in addressing this’ by saying “At this time, it’s not part of our agenda.”

NZ Herald:  Name suppression laws not about to change

Prime Minister Jacinda Ardern says the Government has no plans to change name suppression laws, even though international media have named the man accused of murdering Grace Millane.

This morning Justice Minister Andrew Little criticised British media for naming the accused, who has interim name suppression.

Little said it was potentially jeopardising a fair trial, which could heap more misery on the grieving Millane family.

I think that there is potential for ‘jeopardising a fair trial’ it is unlikely – I think that trials found to have been unfairly  jeopardised are rare (I think Edgeler has said that).

Ardern said she agreed with Little and that name suppression should be adhered to.

Asked if name suppression laws were out of date with global connectivity, Ardern said: “There’s no doubt the environment has changed.”

But the Government was not looking at doing any work on name suppression laws, she said.

“At this time, it’s not part of our agenda.”

So Ardern doesn’t want to fix something that is clearly not working.

If it is something obviously needing modernising because it has become a farce I would have hoped the Government would put it on their agenda.

This is more evidence that the current Ardern led Government can be quite conservative at times, despite claims by Ardern and others that they are ‘progressive’.

The ‘grey area’ of political and non-political work done by parliamentary staffers

When politicians talk about ‘grey areas’ in separation political from non political work done by the staff of MPs they to an extent are correct – much of what an MP does has political connotations. But I think that MPs and parties have also used ‘grey areas’ as a way of excusing pushing boundaries on what work staffers can do. I know that at times these boundaries have been deliberately exceeded.

This can get tricky for parliamentary staff, whose jobs caan be reliant on the political success of the MPs they work for.

Misuse of parliamentary staff is one of the issues raised in the allegations of bullying and inappropriate use of staff made against National MP Maggie Barrie.

NZ Herald: Bridges says Barry management was no cause for concern, welcomes advice on definition of ‘political work’

National Party leader Simon Bridges said there is “an area of grey” in terms of what constitutes political and non-political work by parliamentary staffers and he welcomed scrutiny by the review into bullying at Parliament.

“Where there is a parliamentary purpose, it is clearly acceptable,” Bridges told the Herald.

“But it is really important the Parliamentary Service ensure that MPs and staff know where the line is so that the rules are followed.

“That does require Parliamentary Service to make sure they are educating and showing us the way.”

That’s putting the responsibility on staff. They should be clear about what sort of work they are required to do, and what sort of work is outside their job description.

He was commenting in the light of claims by a former staff member of North Shore MP Maggie Barry, that staff were expected to conduct party-political work such as writing the MP’s regular column including on the Northcote by-election and pamphlet for a National Party conference for over 60-year-olds.

Electoral law expert Andrew Geddis…

…says that MPs pressing their staff into doing political work gave them a far greater advantage in elections than non-MPs and the situation may need closer scrutiny.

“Taxpayer funding to hire MPs’ staff is given so that they can do their jobs as elected representatives, not to help them win re-election,” said Geddis, a professor of law at Otago University.

“If it gets misused for party purposes, sitting MPs get a massive advantage against their unfunded challengers.”

This is one of many financial and logistical advantages for sitting MPs and established parties. Free travel is another.

This can get tricky. Bridges was criticised for clocking up a big travel bill in his tour of the country earlier this year. It is important for the Leader of the Opposition communicate and connect with people around the country, but this is also a form of preliminary election campaigning. And their staff are involved in this.

Another electoral law specialist, Graeme Edgeler, said staff were allowed to be political to quite a large extent and it would boil down to what been in their employment contract.

A press secretary working for the National Party would be writing political press statements attacking the Government and calling for, say, Minister Iain Lees-Galloway to be sacked.

A primary role of an opposition MP is to criticise and attack Ministers, so staff helping with this are an integral part of the political process.

That would be a parliamentary staffer paid by Parliamentary Service doing a clearly political job.

“You are allowed to employ people to be highly partisan…according to parliamentary rules, the employees that you have can be expected to be highly partisan.”

He said there would be limits about how partisan a staffer could be and that assisting an MP for a parliamentary purpose would exclude seeking votes for the MP or fundraising.

Being political is what politicians do, so their staff can’t be disconnected entirely from it.

As Edgeler points out, the biggest issue here may not be that staff do political work, but the imbalance of power and the advantage this gives incumbent politicians over candidates who wish to challenge them – another very important part of our democratic process.

And incumbent MPs are the ones who are involved in making the employment rues for their staff.

A plea to consider amendments to the Electoral (Integrity) Bill

The Winston Peters Electoral (Integrity) Bill has been very contentious. The Green Party has been strongly and widely criticised for opposing the bill (very strongly opposing similar legislation historically) but deciding to vote for it ‘for the good of the Government’.

Minister of Justice Andrew Little has also been criticised for refusing to budge on amending the Bill, leading to justified suggestions that Labour as well as the Greens are being dictated to by Peters on this.

There has been a lot of criticism of the Bill beyond Parliament, including from a significant number or academics with expertise in constitutional law, but it looks like it will pass. So attention is now shifting to amendments to improve the flaws in the bill.

Graeme Edgeler: Last call on the Electoral (Integrity) Bill: A plea for Labour, New Zealand First and Green MPs to consider some minor amendments

The Electoral (Integrity) Amendment Bill is going through it’s final stages, and will likely pass this week.

It is going to pass, and amendments – such as a sunset clause – or the exclusion of electorate MPs from its scope – or a delayed start – are not going to be agreed to by a parliamentary majority either.

But it is not too late for Parliament to make some minor changes to the bill to make a slightly better, and to slightly better protect principled opposition within Parliamentary parties.

The point of this blog post is pretty simple: it is to ask Labour MPs, New Zealand First MPs and Green MPs to consider supporting three particular amendments proposed by National.

…the three amendments I seek support for are not “wrecking amendments”. They are very limited amendments, designed to ensure that the process for removing an MP from Parliament is fair, and identifiable.

These are:

  • Chris Penk’s proposed amendment in supplementary order paper 69. It would require registered parties to have rules around the process they would use to seek to expel an MP from Parliament.
  • Tim Macindoe’s proposed amendment in supplementary order paper 71. This would require that those rules would have to be provided to the Electoral Commission and available for public inspection.
  • Simeon Brown’s amendment in supplementary order paper 64. This proposes that the caucus vote to declare than an MP has distorted Parliament should occur by secret ballot.

Little has been unusually cranky about criticism of the Bill.

Justice Minister Andrew Little has accused bill opponents of failing to engage with various safeguards he says are in the bill that would prevent it being abused – in particular the requirement that two-thirds of the caucus must support the leader.

I think this is an unfair criticism…

Edgeler also said he would like serious consideration given to a suggestion in his submission on the Bill:

At present, the bill requires a two-thirds majority vote of a party caucus to expel and MP from Parliament. If an MP is really threatening the proportionality of Parliament, one would expect much greater unanimity from a party caucus as to that fact, than a mere two-thirds.

Under the current proposal, National could eject an MP even if 18 of their MPs considered the MP had not threatened the proportionality of the House, and Labour, could eject an MP with 15 MPs opposed. If the vote had anywhere near that many opposed, I think it must be seriously disputed whether proportionality would have been threatened.

When you are talking about ejecting an MP from Parliament, a much higher vote should be required, perhaps even near unanimity of the party caucus (ie unanimous, but the for the MP in question). An MP who has the support of even two or three of their party colleagues represents a significant party position likely to have been supported by at least some of that party’s voters, whose voice should not be silenced by other party factions. An MP with that level of support from the party Caucus should not be forcibly expelled from Parliament.

Chris Bishop (@cjsbishop) has responded on Twitter:

I have an amendment re “near unanimity” and a schedule that outlines what that means.

This is not online yet.

Also from Chris Penk (@ChrisPenknz):

Thanks for suggestion re near unanimity (and analysis of those already-tabled SOPs). Initial reactions:

(1) All-but-one would be preferable to a percentage basis, given distortions possible in latter where caucus small in number.

(2) Principled objection remains.

However, I acknowledge in relation to item (2) above you’re aiming for amendments that may be palatable to NZF-Lab-Green (esp last-named) given overall nature of bill and inevitability of it passing.

Edgeler asked Little, Peters and Tracey Martin for suport, and also the Greens.

I can’t find responses from any of them.

National MPs seem to be actively trying to constructively address flaws in the Bill.

Labour, NZ First and Green MPs seem to be avoiding fronting up on this.

The Greens in particular could at least restore a little of their tattered credibility by supporting amendments that will make the Bill less bad.

How a cannabis referendum might look

With the possibility of a referendum on personal use of cannabis, perhaps as soon as next year, there has been discussion on how a legislation followed by referendum approach might work.

In January Graeme Edgeler posted:

There is a good way to conduct government-initiated referendum, and there are bad ways to conduct them.

Yesterday he tweeted suggested wording for a cannabis referendum adapted the language used in the 1993 MMP referendum.

I think that would be a good approach on cannabis, and similar on euthanasia.

Parliament debate and vote on legislation, to be approved by a binding referendum  – binding in so far as a commitment by MPs and parties to abide by the result and allow the legislation to come into effect.

This wouldn’t stop later changes in law, as can happen with any law.

ODT editorial on secrecy and the OIA

Journalists use the Official Information Act extensively to try and get information out of national and local government sources, so know as well as anyone about the problems with the way the OIA is being abused by politicians.

Today’s ODT editorial looks at The perils of secrecy

Keeping secrets from the public — or as those guilty of that action would prefer to put it, withholding information for various, sometimes tenuous, reasons — is one of the first worrying steps towards that scourge of modern-day life: “fake news”.

Not so many years ago, reporters at this newspaper and other media outlets could simply pick up a phone and ask a burning question of the appropriate person at city hall, or the hospital or the university.

That is now happening less and less frequently. Instead, questions, submitted in writing, are vetted and — perhaps the same day but often a day or two later — an anodyne response is issued. That is the best-case scenario.

Politicians now often protect themselves from scrutiny by employing ex-journalists as a barrier.

In the worst-case, either the organisation leaves it a few days before saying it will not comment, or it plays fast and loose with the Official Information Act and cynically uses up the entire 20 working-day period allowed for in the Act before replying.

In a democratic nation like New Zealand — one widely vaunted overseas for its lack of institutional corruption — such pettiness and refusal to engage on matters of public interest is disgraceful. Where the public is paying, through rates or taxes, the salaries of those in the organisation doing the concealing, their actions are completely abhorrent.

These people who are actively working against transparency, who enjoy blocking the media, acting after all as the public’s advocates, are effectively walking roughshod over democracy.

Yes, and New Zealand’s democracy is much the poorer for it.

People are paid more to keep secrets than to uncover information.

Late last week there were several examples of flagrant obfuscation and obstruction from the Dunedin City Council.

In one case, the council is choosing not to answer questions which have been put to it by this newspaper for nearly a year about alleged bullying and other problems in its city property department. Despite Official Information Act requests, it is withholding a Deloitte report, saying it needs to protect privacy and also citing commercial sensitivity. Elected representatives and council staff all ran for cover when asked for comment. The ODT has now referred the matter to the Office of the Ombudsman.

On the same page of Friday’s newspaper, the city council refused to say what assets valued at $63 million it was planning to sell, again specifying commercial sensitivity as the reason. This also has been referred to the Ombudsman.

This sounds particularly stupid – how are they going to sell assets without saying what they are going to sell?

It is disgraceful that the ODT has to go to the Ombudsman on a regular basis in order to get information that should be the public’s as of right.

This refusal to engage is a very troubling development. Stalling, fudging and engaging in sophistry make any organisation look bad.

Of course, it is not just the DCC that plays these games — even the most simple public information can sometimes be very difficult to receive in a timely fashion from other Otago councils, the Southern District Health Board, the police, the University of Otago and, especially, the Government.

Especially the Government – or more accurately, Governments present and past, who have set a very poor example of refusing to engage and inform.

We need to stop this slide into secrecy before we have a New Zealand filled with nepotism and favouritism, undeserved privilege and injustice, one in which corruption is able to breed in dark, secret corners.

Lawyer Graeme Edgeler writes at Public Address: A Small Official Information Act Fix

A few days ago, TVNZ journalist Andrea Vance tweeted an Official Information Act response she had received from David Parker, the Attorney-General. Vance had sought information about workload and funding pressures on Crown Solicitors, something he had apparently taken an interest in while in opposition.

The response received advised that “the Attorney-General is not subject to the OIA in the performance of their Law Officer functions.” This is footnoted to an Ombudsman opinion that does not appear to be online. I’ve no reason to doubt it exists, although I think the argument is weak. I’m aware of another Ombudsman’s opinion (that is publicly available) that says that the Solicitor-General in performing her Law Officer functions is outside the OIA because the Office of Solicitor-General is not listed in the Ombudsman Act, or in the OIA, which I can accept. I’m not sure that it’s as clear for the Attorney-General. Ministers of the Crown are subject to the OIA in the performance of their ministerial functions, and I would have said that Attorney-General was exercising a ministerial function when acting as a Law Officer of the Crown.

That said, even the exclusion of the Solicitor-General for the OIA is a pretty big oversight.

I can’t imagine it was a conscious decision, but even if it was, it was wrong. The Solicitor-General is the Executive’s chief legal officer, and exercises all sorts of government power. There’s probably a lot of information that the Solicitor-General has that shouldn’t be made public, but that can be protected by the other grounds in the OIA, like legal professional privilege. There is no reason for a blanket exclusion.

So, with that in mind, I have drafted a short bill. It adds a short subparagraph to the definition of official information to provide that information held by the Attorney-General and Solicitor-General in the exercise of their function as Law Officers of the Crown is official information.

The problem here is that it requires a majority of politicians to force better compliance with the OIA.

Both Labour and the Greens have promised better transparency, but Labour seems to be doing the opposite.

Good ways and bad ways to conduct referendums

Our binding referenda on constitutional issues like MMP have followed good process.

There were some valid questions about how the two referendums on the New Zealand flag were conducted, but the main problem with that process was political interference with attempts to discredit the process by some because they didn’t want flag change, and by others because while they supported flag change they opposed it being initiated by John Key – in other words, the process was trashed by petty politics.

The smacking referendum was a waste of time, it was non-binding so was toothless, and the question asked was vague and therefore futile.

We will have at least one referendum during or at the end of this term, could have two and may have more.

Graeme Edgeler has posted about good ways and bad ways to do referendums in How not to waste millions of taxpayer dollars

There is a good way to conduct government-initiated referendum, and there are bad ways to conduct them.

During the course of this Parliament, New Zealand will conduct one or perhaps two, referendums – one of the legalisation of cannabis use (a result of the Green Party’s confidence and supply agreement with the Labour Party), and perhaps another on euthanasia. Unfortunately, indications are not promising that the process for either these referendums will be good.

During September, October and November last year Australia conducted a referendum. We should learn from its mistake. Australia’s nationwide “plebiscite” on the legalisation of same sex marriage, in an exceedingly useful example of how not to conduct a public referendum.

How it went is no longer breaking news: a sizeable majority of the voting public indicated support, and then the Federal Parliament passed a law providing for it.

The marriage vote asked Australia voters to give a yes or no answer to the question:

“Should the law be changed to allow same-sex couples to marry?”

This is a perfectly reasonable question to ask to get a general sense of public feeling about a general issue, but is a stupid question to ask when wanting guidance on what a law should say.

So it’s better if a law change is defined then voted on.

How should you vote if you wanted politicians yet-to-consider a same-sex marriage bill to know that you would support changing the law to allow people of the same sex to marry, but would object to a law which might require churches to marry people in breach of church doctrine?

How should you vote if you wanted politicians to know that you thought people of the same sex should be able to marry, but would find offensive a system where a whole new law was created, setting up a separate same-sex marriage register, with separate same-sex marriage celebrants wholly separate from marriage celebrants?

You couldn’t. Holding a vote in advance of a bill being written makes that impossible.

This is a trap we should aim to avoid in both the cannabis referendum, and the potential referendum on euthanasia that New Zealand First is pushing for (and which David Seymour, the sponsor of the euthanasia bill, says he supports holding).

I hope the Government avoids these traps. They are fairly fundamental.

Will it be legal to sell cannabis, or just to possess and use it? Will people be able to grow their own, or will they have to buy it from specific government licenced dealers? Will you be able to smoke it outside in public places, like tobacco, or will that be prohibited, like the public consumption of alcohol often is? How will it be taxed? Will cannabis advertising and sponsorship be banned? Will councils have a role in regulating where it can be sold, or used? Will they be able to set up enforceable non-cannabis zones (like they can with alcohol), or only unenforced zones (like non-smoking areas)?

Will euthanasia be limited to the terminally ill? Will it need a judge to sign off a decision to offer aid in dying? What will a doctor who refuses to take part have to do, if anything? Will advance directives be able to be enforced, or will applications have to be made by people who are conscious?

Unfortunately, while the legislative process underway for the euthanasia legislation should work through the detail of the scheme, any referendum seems likely to be an afterthought.

I hope that Parliament (MPs) will have the fortitude to make a decision on medical cannabis without the need to then delay it by going to a referendum.

I think that in our system of representative democracy MPs can also decide on what is best for the minority that may want to consider euthanasia.

Fortunately, it’s not too late. The euthanasia law is still early in its early legislative process, and the cannabis referendum isn’t set up yet. Hopefully, we can avoid not only the mistakes Australia made, but also new ones of our own.

It may be a mistake to even have a referendum on euthanasia, but at least it won’t happen prior to legislation being debated and voted on in Parliament.

As Edgeler says, there are good ways and bad ways of having referenda – and there are also times when they aren’t appropriate, especially if used as a way for MPs to cop out of their responsibilities as representatives.