Three Waters Reform: The left opposed water reform in the 90s, why trust them now?

You might have noticed the childlike cartoons the Government has chosen to communicate to you about one of the most radical infrastructure policy reforms proposed for over twenty years – the Three Waters Reforms. Those cartoons might have put you off, but they shouldn’t. For all of the fluff government is involved in, one of the most important activities it unfortunately is responsible for is the supply of reticulated water and the collection of wastewater and stormwater. Forget Covid19, because if the water systems fail you really ARE in for a public health crisis. Millions of people worldwide don’t have access to clean drinking water and don’t have safe sewage collection and disposal, and it costs lives. This is important, too important to have those who use and pay for it talked down to like primary school children, and too important for you to ignore.  Bear with me, this is complicated...

What’s the problem?

The current system of managing water infrastructure is, in many parts of the country, a failure. Who could miss the regular reports out of Wellington, the capital, which has systematically failed to put enough ratepayers’ money into the water and sewage systems? Stories of drinking water from Hawke’s Bay to Otago being infected or tainted. So the case for reform is overwhelming. The Government’s own papers indicate 40,000 people lived under temporary or permanent “boil water” notices for their reticulated supply in the year 2018-2019. Four people died and over a third of the population in Havelock North became ill because Hastings District Council didn’t effectively manage the town’s water supply. An earlier study indicated 35,000 people get ill annually because of the quality of drinking water.

The Government’s own report estimates there is at least a $120 billion gap in capital spending on water infrastructure. Another stat is it is estimated that 21% of water is lost in reticulation – 1 in 5 litres of water that Councils collect to reticulate to homes and businesses is wasted in the distribution. That is frankly outrageous.  Local authorities are often reminding us all to look after the environment and not to waste water, but their own ineptitude results in enormous waste.  It is notable that there are limited statistics about the state of stormwater infrastructure, because local authorities just don't know. If your home or business has ever flooded due to rainfall, then you might care, because stormwater infrastructure is what helps protect your property.

Why has this happened?

The Government claims the problem is a matter of:

· Lack of economies of scale: 67 local authority entities supply water infrastructure (there are small private operations as well) without the capacity and capability to address issues. Career paths for those in the sector are limited with multiple small entities and small scale capital spending generates insufficient competition in the contracting sector to put price pressure on those costs. It claims water entities need customer bases in the high hundreds of thousands to be viable.  There is definitely merit in this.

· Unaffordability of needed investment: Under the current approach, the money ratepayers would need to be forced to spend to remedy historic underspending is enormous. Government estimates increases of 300-1500% in spending are needed over the next thirty years compared to current levels. This is quite credible, indicating a desperate need for both new capital and for ways to obtain efficiencies to reduce these costs over time.  However, it would be dishonest to pretend that those who use water shouldn't pay for this, albeit over many years. 

· Poor incentives and lack of effective oversight:  This is where the Government lays bear what’s REALLY wrong. It is that the model of “democratic control” of the provision of water services, and the “power of general competence” of local government in overseeing that control is a failure.  It is worth remembering that "democratic control" is a touchstone of leftwing political philosophy.  

To quote from the Government’s own report:

Local authority service providers operate in a political environment, in which investment decisions are made by elected representatives who have a duty to consider broader community interests (for example, other investment priorities and affordability of rates increases) and a constrained financial environment, in which the main funding and financing  mechanisms are via ratepayers and council borrowing. These factors combine to limit the level of three waters investment.

In short, local politicians prefer spending rates money on other stuff and prefer not to raise rates to pay for water infrastructure. It talks of misaligned incentives, which is surely a euphemism for politicians care most about being elected, second most about getting attention for shiny stuff they made ratepayers pay for, third most about other stuff they can get credit for in three years. How many local politicians campaign on fixing the pipes, especially when such work can literally take years to complete, is largely only visible as a disruption and the end result is… continuity of what you had before?

These failures are a legacy of opposition to water reform in the 1990s

Electricity, gas, telecommunications, aviation, ports, road transport, public transport, all were subject to significant reforms in the 1980s or 1990s, but water was largely left alone. With the sole exception of Auckland, with the creation of Watercare Services in 1991, all other water provision was left in the hands of territorial authorities. Water is a legacy of the Muldoon era and beyond, with the exception of some local authorities consolidating and in some cases implementing water metering, not a lot happened.

Some Aucklanders might remember the Water Pressure Group, led by the late, conspiracy theorist, Penny Bright.  One of the cause célèbre of the hard left was opposition to the commercialisation of water in Auckland seen in the creation of Watercare Services, which supplies water and wastewater (not stormwater) services in the city. The New Labour Party, later the Alliance (when it included the Greens) were loudly opposed to what they saw as the bogey of privatisation (which never happened).  As the Alliance was on the ascendancy, after the 1993 General Election, National pursued little in reform of the water sector, and as Labour went back to the left under Helen Clark, the idea of reforming water was parked.  After MMP, there was no majority for any serious reforms in the sector, and from 1999-2008 the Clark Government proceeded, with support from the Alliance and the Greens (who had now left the Alliance) to pass the Local Government Act 2002 to grant local government a "power of general competence".  In short, the left trusted local government to get on with the job. Of course the Key/English Government from 2008 until 2017 did nothing either to reverse it.

The power of general competence and community empowerment have been a failure

The implementation of the power of general competence was to usher in a new era.  Then Local Government Minister Sandra Lee said "It is both a reaffirmation of the place that local government has within our democracy, and of the rights of local people in their communities to exercise controls over their aspirations, their decisions, and the democracy that affects them."   

So communities were "empowered" which of course is code for empowering local politicians. Sandra Lee even made it clear that water privatisation was to be prevented. "We are not going to agree to allow councils to sell what is not a commodity--the access to clean water--but a fundamental human right."  I'm not sure how the people who died in Havelock North had their "fundamental human right" protected, and how asserting that right works if the Council has let the local infrastructure fall into disrepair.  Indeed then Associate Local Government Minister Judith Tizard later claimed credit for having including "cultural wellbeing" in the objectives of local government.  Not much culture if you're sick because the Council supplied water is contaminated.

Backed wholeheartedly by the Greens, the reforms were to usher in a new era of “local democratic accountability” with more powers to deliver what “the community wants”. Indeed, it is the heart of the mantra of the economic left that justice is achieved by more “democratic control” of resources. Well we’ve seen how democratic control of water has been going, and the results are in – it's been a failure.

 What needs to be fixed?

Users, in many cases, don’t pay for what they use. With the cost of water infrastructure for many hidden in rates bill, there are no incentives to manage water use, and those who need water face rationing alongside those who waste the resource. Furthermore, those who benefit from stormwater infrastructure don't necessarily pay rates reflecting the protection of property value they obtain from it (nor do insurance costs reflect that adequately).

Local authorities get paid rates regardless of how much water is used or wasted. So they have poor incentives to stop wasting 21% of the water collected and distributed, to plug leaks so that they can sell the water they collect. 

Local authorities aren't required to spend money on water infrastructure so they may levy water rates, or pay for water from general rates, but they have a "power of general competence" and they are accountable to you every three years at the ballot box.  They spend money how they like, and your power to change that is tiny.

Politicians are no better able to decide how best to spend money on water infrastructure than they are on electricity (which they don’t) or telecommunications (which they don’t) or on farms. Bear in mind local politicians are primarily responsible for housing shortages because they are the controllers of permission to build housing and to allow land to be used for housing. Expect them to make similar quality decisions around provision of essential infrastructure.

Imagine if your local power company spent the money raised from your power bill on a convention centre. The reason that, by and large, electricity and telecommunications infrastructure work is because you pay for its use and the providers spend the money on maintaining and providing the service. It’s capitalism working, because those companies borrow money based on future earnings and invest in the network to continue providing reliable service.

Given that the Ardern Government is the most leftwing government in New Zealand in nearly 40 years, you might think that with reality confronting ideology, they might actually think that this is a failure due to their own philosophy not working empirically. You see if the Douglas/Richardson reforms had NOT progressed, you’d be seeing the same malinvestment in electricity (which was beset with blackouts in the 70s and 80s before reforms), and telecommunications (which famously, before the mobile phone era, saw it take weeks to get a phone line installed).

What is proposed?

It’s curious that the Government has relied somewhat on Scotland as a source of advice for how to implement water, especially when its own report indicated much better performance in England (see above)– which DID famously reform water by privatising the lot in the 1980s. It notes that privatisation of water in England  improved productivity by 2.1% per annum over 24 years (64% all up) after adjusting for quality of service improvements. Achieving a net saving of 64% in cost over such a period has to be tempting.

That is, of course, the right answer.

It isn’t proposing that, because you see, the Ardern Government is in many ways, continuity Alliance,

It is proposing:

· A water regulator to set standards for water quality, with powers to direct water providers to act to meet its directives;

· Consolidating 67 entities into 4;

· The new entities will be owned by local government

· Two boards will govern the new entities. A professional independent board, akin to boards supplying other infrastructure (a semi corporate board) and a regional representative board, which is to be split 50/50 between local government and Iwi.

· The Regional Representative Board will appoint members to the independent selection panel to select the Board, which will then select the board. In effect local authorities and Iwi will indirectly appoint the board.

· Setting of charges must be done transparently, with no changes to how people are charged in “the initial years”. The new entities will have powers to borrow.

· Protections against privatisation, mostly by local government and Iwi having to have a 75% majority in favour of it.

· The entities be statutorily required to uphold “the principles” of Te Tiriti, with the board needing to have competence in Te Tiriti, Tikanga, Matauranga and Te Ao Maori;

· The entities must direct water users funds towards the capacity and capabilities of mana whenua to support delivery of water services

· To throw taxpayers’ money at the entities to lure in local government to agree.

So it is resisting commercialising the delivery of water, preferring to largely aggregate water into entities similar to what governs water in some parts of the country already. They will be, in effect, very large Non-Commercial Council Controlled Organisations with co-governance with Iwi.

What other options were considered?

Well not commercialisation or privatisation.

The report indicates that three other options were considered:

· Local government led reform: This of course would be consistent with the Government’s philosophy, but has no merit because there are few incentives to make it work.

· A National Water Fund, akin to how land transport funding operates. Except there are no fees charged for water use nationally, and it wouldn’t really fix anything other than enable consumers in places which have well managed water systems to subsidise those in areas that don’t.

· Regulatory reform only, in other words introducing a regulator without structural reform. This would not achieve efficiencies and achieve only limited accountability.

So privatisation wasn’t considered, but the Government should be transparent as to why – which is ideology and politics. Why wasn’t commercialisation considered, by creating genuine arms-length council owned water companies, similar to Watercare services? Why not vest those companies in shares held by ratepayers (noting that it is property owners that primarily benefit from stormwater infrastructure, which protects their property from damage) or even just citizens and permanent residents as consumers? After all, the success in England in holding companies to account for quality of service, levels of investment and addressing systemic underinvestment is considerable. Why does the Ardern Government acknowledge that success then steer down another path? It seems like it is purely ideological.

What's good about the proposals?

Large entities will be able to be more professional, achieve significant capacity building and attain economies of scale. There is no doubt that there are far too many local water entities. Having borrowing powers and the ability to levy charges on consumers is also critical, but these powers largely exist now within local government.  Regulatory oversight ought to result in better outcomes than just leaving it to local government and iwi to manage, and more money will ease the pain, but that's transferring a burden from ratepayers and water consumers to general taxpayers, with no sense of the distributional impacts of that.  

What's wrong about the proposals?

The new entities wont be companies, wont be required to make a return on capital or to pay tax, meaning it will be less transparent as to whether they are operating as efficiently as they could be, or maximising the utility of their assets. As a much larger version of the current model, there isn’t so much incentive to treat those who consume water and use wastewater and stormwater services as customers. Having a customer, provider relationship more directly would provide much more input into consumer preferences than by having an advisory board.  What's fundamentally wrong with considering water similar to electricity?

Local government will still own the entities, although this ownership effectively diluted because governance is now shared with iwi, who own none of the infrastructure, nor are accountable to ratepayers.

There are probably too few entities proposed and Watercare Services, which has fewer problems compared to many other water entities, will be required to be decommercialised and merged with Northland water provision, which may mean Aucklanders cross subsidising water infrastructure in Northland. There is no need to dis-establish Watercare Services and no options given as to the number or geography of the proposed entities. Local authorities that are successful ought not to be forced to be subsumed by entities of those that are not, noting that the three waters are NOT an integrated network like energy, telecommunications and roads. There is little need for disjointed networks to be managed together, except to achieve economies of scale and professional capacity for competency.

Governance remains highly political. With local government half responsible for appointing the panel that then selects the board, the incentives are there to offer positions to those they know and trust, in short local authority nepotism. With four entities, headquartered and dominated by Auckland, Hamilton, Wellington and Christchurch, expect the local authorities of those cities to take charge.

The introduction of iwi governance is a vast increase in power for iwi over core infrastructure that has no precedent in other industries, and which assumes that Maori as both consumers or voters is insufficient in protecting and promoting their interests, although it might certainly promote iwi interests. The iwi role will be to share oversight with local government, which already has a growing mandatory iwi co-governance role in any case. Iwi have the same incentives as local government in appointing people to select a board to govern water. The outcomes expected from this are extremely vague such as enabling mana whenua to express kaitiakitanga, but what will this achieve in terms of outcomes such as water quality, quality of investment and accountability? Embedding Te Mana o Te Wai is harmless enough, but this is hardly unique, because Te Mana o Te Wai is universal to humanity. More fundamentally, the Government is effectively proposing a transfer of 50% of the power around the water sector to iwi, with neither the responsibility of ownership, or accountability to consumers or the owners of that infrastructure. It is a significant uplift from current obligations around consultation with Iwi, to hand over an equal share of governance, with no indication of outcomes or what it means for other sectors such as electricity, gas or telecommunications. It is a form of privatisation of governance, to iwi. I

Now there IS a valuable point in “iwi/Māori have roles within the current three waters service delivery system that will need to be acknowledged. They are suppliers and/or recipients of water services (particularly to rural marae, papakāinga, and rural communities).” As suppliers, they should be subject to the same oversight as other suppliers, but as recipients they are little different from anyone else. They receive a mix of good and poor service, but it is unclear why their role as consumers is more special than anyone else. Sure, water is a taonga, but it is to all humanity. It’s ludicrous to claim that it is more special to iwi than it is to any other.

However, this is more fundamentally about the Government’s interest in what is, in effect, creeping constitutional reform, by redefining the Te Tiriti partnership of Crown and Iwi, into one that goes beyond meaningful consultation and engagement, to sharing powers over assets that do not belong to iwi (the three Waters are about infrastructure, not lakes, rivers and streams after all). There IS a role for consulting iwi about the use of property they own or control, but to privatise half of the control over ratepayer owned infrastructure, to iwi deserves to be justified in terms of outcomes, when the reforms themselves are based on addressing serious problems with the status quo. Should this really be used as an opportunity to facilitate more iwi control?

What should happen?

Reforms are badly needed, primarily because many local authorities have proven themselves utterly inept in managing and funding water infrastructure. However, the Government is proposing to consolidate existing water entities, including successful ones, into four entities which largely resemble Council Controlled Organisations and share governance with iwi. Yes, having professional large water utility entities will be a step forward, but continuing to have significant local authority governance, which has proven to fail, and using the reforms to implement iwi co-governance, with no sense as to what improvements to outcomes this could deliver, is missing an opportunity.

Government should be bold, it should transfer the water assets of local government into a handful of specialist water companies, and issue shares in them all to all property owners connected to their networks and float the companies on the share market (and as a sop to fear over foreign takeover, you could even cap foreign ownership at 49%). Let the water companies meter or flat fee property owners for their services, and force councils to drop rates proportionately and NOT increase them by more than inflation. Given their quasi-monopoly status, central government should oversee the water companies in terms of drinking water quality, but by having popular share ownership concerns over water companies gouging consumers can be ameliorated.  If the Government did this, I'd accept the value of an independent regulator, to monitor and report on performance.

 It’s time to take the three waters out of the hands of politicians and put it in the hands of consumers as shareholders, and run it like a business. You have no more reason to trust this Labour Government with water reform than you would Jim Anderton, who opposed competition and privatisation of telecommunications, electricity, aviation etc etc.

We've seen the results of having a utility sector entirely at the behest of democratic accountability to the community under local government. It's been a failure.  The water sector needs reforming, it needs bold moves resembling what happened and succeeded in England in the 1980s. Shame the Government is willfully ignorant and unwilling to even consider that model as an option.

The Government claims significant benefits from their reforms, over thirty years. This may well be credible, but is based on many assumptions around efficiency savings seen in Scotland with consolidation, and that these efficiencies wont be lost in a strange new co-governance model.  However, since the Government didn't even look at the option of following England  - even without privatising the companies - we wont know if it chose the best option, as the options analysis has clearly been politically cauterised, by people whose political ideology has so demonstrably failed in this instance.

Why would anyone trust them to get this right now?  

Local authorities are currently consulting on whether communities support the Three Waters Reforms, and many oppose it, not least because local government never likes losing power and influence.  You should let them know that you oppose the proposals, but not because it takes powers away from local communities (whatever that is), but because it puts power in the hands of people who are NOT primarily interested in delivering efficient, high quality services to consumers.

So tell your territorial authority AND tell your local MP what you think of these reforms.  Be grateful also that electricity and telecommunications aren't being run by your local authority.  Imagine the blackouts.

Labour's greatest asset is its past success, its second greatest asset is a divided National Party

We all know the story, New Zealand achieved enormous success in isolating itself from Covid 19 in 2020. With a very low death, hospitalisation and infection rate, the Ardern Government was able to feel vindicated in having a hard lockdown, putting up walls around New Zealand and subsequently being able to open up the economy and life to relative normality after a few months. Sure, part of it was because the geography of New Zealand made it much easier to block foreign travel than say Ireland or Switzerland, but it was also a series of policy decisions, albeit blunt as they were.  There can be little doubt this saved both lives and illness from Covid 19.

Furthermore, it was that handling that predominantly drove Ardern and Labour to a historic victory in the 2020 general election. For the first time since 1951 a party obtained over 50% of the vote (party), this remarkable mandate is built on that record, and don't they know it.

Following opening up to Level 1 conditions, New Zealand got complacent. The assumption being that putting all overseas visitors into managed isolation would stop it entering the country. Indeed, as Australia looked like it reached similar (although inferior) levels of success, the "Trans Tasman Bubble" opened up the countries to one another, giving a vision of what the future might look like. 

Meanwhile, as New Zealand basked in people overseas wondering at how sports matches, concerts and other events could be undertaken unhindered, New Zealanders watched at hospitalisations and death elsewhere. In the USA, UK, and elsewhere, the outside world looked unsafe, especially as some faced lockdowns of months long, albeit leakier with foreign travel. However, in parallel some other countries engaged with vaccinations, and ordered vaccines quickly and started vaccinating as their pathway towards less death and more freedom.  Israel and the UK were great success stories.

New Zealand, despite the claims of the Government was never at the "front of the queue" for vaccines, but few cared. It seemed through early to mid 2021 that NZ was free of Covid, and vaccines could be rolled out slowly, focusing on those working at the border, health workers and the vulnerable. To be fair, Australia was moderately better.  Then came Delta.

Then Delta leaked from MIQ (it seems) and now New Zealand is in full-scale lockdown, as cases grow.

The Government and its supporters continue to focus on well the country has done up to now, with so few deaths.  This is all fair enough, but that time is over.  What is clear though is that in the time after the first lockdowns, little government attention has been paid on how to cope with a second lockdown and moreover how to move beyond the Little Aotearoa Hermit Kingdom model of how to live in a world that is learning to live with Covid.

There are big questions that deserve answers. 

However, this is a Government, that whilst wielding unheard of powers of command and control over people and their property, wants everyone to trust it.  It doesn't want to be questioned too much about how it exercises those powers and why it hasn't learned much from the past lockdown and moreover its basis for making decisions at all.  

You see it prefers to present Jacinda Ardern, the Mother of the Nation, at press conferences that spend a good 15 minutes providing background to the announcement 90% want to hear about - which is what level of heavy-handed control will the country be living under and from when.  The strategy is elimination "indefinitely" with lockdowns "indefinitely".

What are those questions?

Here are a few...

1. Is the real reason NZ has been slow in obtaining vaccines because it "didn't want to compete" with others that needed it more, or was it just bureaucratic or political inertia?  After all, Australian PM Scott Morrison apologised for not ordering enough vaccines, why is NZ different? Is it because Pharmac didn't order them?
2. Isn't the real reason contact tracing is a nightmare the complacency encouraged by having "kept Kiwis safe" with less than 10% QR code scanning and having planned not at all for a ramp up of contact tracing for a future lockdown? i.e. didn't most people treat Level 1 as Level 0?
3. Why wasn't their planning for ramping up testing if there was another outbreak and why did vaccinations have to halt because there had been no planning to take into account vaccination in an outbreak?
4. What is the basis upon which Cabinet decides to change Covid lockdown levels? Is it infection rate, is it case numbers, is it contacts? If there isn't some objective basis to start from, how is this decision made?
5. Why were frontline emergency workers not regarded as a priority for vaccination?
6. Why does NZ continue to only use the highly invasive version of PCR tests instead of less invasive (not back the nose) versions seen in Australia or use saliva testing for those being frequently testing, as recommended in the Simpson-Roche report?
7. If high vaccination rates are reached, and vaccines remain effective in preventing death, hospitalisation and serious illness from Delta (and any other variants), why should NZ not end nationwide lockdowns in response to outbreaks?
8. Why does there remain a MIQ booking system that is blatantly unfair and not even linked to booking air tickets? 
9. Why are lockdown rules not shifting to an outcome based approach (meeting performance standards for minimising infection) rather than ad-hoc rules based?
10. What are the conditions for NZ opening up home-quarantine for fully vaccinated travellers from overseas?
11. On what basis does Cabinet decide to allow people to get access to MIQ bypassing the system for everyone else? Is it just a case of who has the greatest political pull?

Or is it just that keeping New Zealanders safe from Covid 19 has ended up being greatest asset the Ardern Government has ever had, and if New Zealand moves on from it, and gets back to normal, and there are never any lockdowns, and foreign travel and tourism returns, that it no longer looks that special anymore? Then more attention will be turned to the other elements of the health system, to the housing shortage, to poor educational outcomes, to the dramatic economic and social impacts of policies designed to look like it is combating climate change, to the pursuit of highly illiberal policies around speech, centralisation of water management and taking outrageous Critical Race Theory approaches to treating vulnerable Maori children. 

You see Ardern and the Government have a strong preference for intervention in the economy and in people's lives. It is the most leftwing government since the Kirk era, and it has hired an expansive public sector to implement it.  Consider the micro-management of Covid regulations, that ban private imports of Covid tests (despite them being available in pharmacies and supermarkets in Europe), that ban butchers and greengrocers opening. This Government believes its interventions can fundamentally change the country for the good, by ignoring how markets work, by ignoring personal preferences and choices and by not relying on competition and choice for consumers and taxpayers, but rather central direction and control.  They've swallowed structuralist leftwing identitarianism wholesale, and it is hard to believe that this thinking, which does not gain widespread support in other liberal democracies, is the mainstream of New Zealand thinking. Finally, it has embraced not just meeting the Paris Agreement commitments on climate change, but taking a rigid central planning role to reducing emission through the Climate Change Commission.   The effects of these policies will be to increase energy prices, to increase taxes and have zero discernible impact on climate.

So pardon me if I don't think the Ardern Government believes people's freedoms are that important. It has proposed making political and ethical beliefs protected from so-called "hate speech".  It has a vision of a "kind" state "providing" for people's needs, and caring for the environment, and fixing unfairness. Although it is notable that in recent months the pursuit of this agenda has seen the massive political lead of the Labour Party get halved, it remains ahead.

So keeping everyone safe is part of that, and Ardern can easily argue that, for the past year or so, she has kept people safe, and being seen to be doing that is an asset to Labour.  

Peter Cresswell has a worthwhile list of what wasn't done with the time available after the last success to suppress Covid in NZ. Government supporters may want the debate to be some banal "oh you want thousands to die like in Britain" retrospective, when no one is arguing that.  What IS being argued is that a Government that is philosophically committed to a highly activist state, that spends, regulates and micro-manages more than any in the past 38 years, has been lazy and incompetent in improving its performance.  

However, the Government and its army of supporters can keep looking backwards at the success of last year, paint those challenging it as "destabilising" the current efforts to eliminate the Delta variant or "wanting thousands dead", and still get some traction. The past success is their slowly eroding asset.

But their second greatest asset is a divided and distracted National Party. They have a fairly obvious choice - have a clear, consistent strategy of messaging around what can and should be done to reduce and eliminate the need for lockdowns, and a positive vision looking forward, based on better outcomes for the whole country. An open, outward looking vision of a largely vaccinated, prosperous country, that confronts failings in housing, healthcare, education and water, that encourages diverse responses to those challenges (yes, that includes Maori-based delivery for those who want it).  A government that is fleet of foot, innovative and doesn't tolerate poor performance, and doesn't default to having to command and control to address problems.  Can Judith Collins deliver that? I don't know, but the National caucus needs to develop a strategy and decide who is best to front it and lead it politically. Chris Bishop has been doing a decent job of taking the Government to task over issues like vaccines and saliva testing.  How hard can it be for the Opposition to focus on demanding better from a Government that has had nearly a year to prepare for the risk of a second outbreak?

Fighting racism in all of its forms?

Racism is “growing in temerity” says Race Relations Conciliator Meng Foon in Stuff and it should be dealt with in “all its forms”.  Pardon me if I think he doesn’t really mean that.

He cites the colonial history of racism that diminished the status of Maori, which is all very well, but in that he infers that this predominantly remains in the minds of many.  I’m not so sure that’s true. There are certainly some who cling to ideas of racial superiority and inferiority, even if it is subtle rather than explicit, but to consider that the thinking in the 19th century of settler is akin to the thinking in the 21st century of their descendants (and the millions of others who are not descended from settlers) seems a stretch.  He’s right to point out historic discrimination against Chinese New Zealanders and of course the Dawn Raids on Pasifika communities came from racist fear, which both main political parties took advantage of at the time.  In all cases this was actions by a state that believed it was right to treat citizens not as individuals, but members of a group deemed to be below that of others.  

Foon points to threats towards some academics, all of which is completely unacceptable.  Speech threatening violence is not protected, as it is a direct violation of the rights of those threatened. However, speech that is abusive and angry is not, and indeed anyone entering the public domain to express their views should not be protected under the law from people responding with anger.  There is nothing wrong with people expressing anger in debating issues, indeed it seems almost de riguer for MPs from Te Pati Maori to do so.

Any cranks promoting violence should be dealt with firmly, but Foon’s commitment to addressing racism “in all its forms” has a blind spot. He accepts on face value the claims of academics who take a post-modernist structuralist view of racism, in that racism doesn’t even need to be expressed in actions but is inferred through outcomes. His citing of AUT lecturer Dr Heather Came who claims there is structural racism “everywhere” is indicative of his view.  The same Dr Heather Came blames “libertarian discourse” for distracting people from the privileges of Pakeha (this is the radical idea that people have some agency for their lives, and that one reason why crime occurs is poor parenting).

This belief system means he wont see the rhetoric of Te Maori Pati MP Debbie Ngarewa-Packer as what it is. Ngarewa-Packer isn’t a traditional ethno-nationalist, she bases her world view on classifying people based on links to land, not land and blood (like ethno-nationalists do), and their belief system.  You’re one of three groups depending on whether:

• You are THE people of the land (or not); and

• If you have redeemed yourself in your belief system (or not).

Note if you are tangata whenua, you don’t need to redeem yourself.  Ngarewa-Packer wrote in the New Zealand Herald on 26 May 2021 that New Zealanders consists of three groups, Tangata Whenua (she includes herself in this, and presumably encapsulates all who identify as Maori), Tangata Tiriti who she calls “reformed racists” (those she deems as allies, basically those who agree with her view as to the constitutional, legal, policy and social structure of New Zealand as a nation-state and society) and racists (everyone else).  

So instead of treating over 5 million diverse individuals with distinct backgrounds, characteristics, abilities, knowledge, perspectives, beliefs and ideas, she pigeon holes them first and foremost into two groups. Maori and others. She declares Tangata Tiriti as equals, although they have sinned, they have redeemed themselves.  As far as everyone else is, they are still sinner, they may yet be able to redeem themselves (and become Tangata Tiriti), but they need to be “left in the past”.  

What is this view if it is not racist? Place these comments in the hands of any ethno-nationalist and they wouldn’t be unfamiliar. There are the best people, there are the people they let become their allies and then there are those that are against them.  Who knows what Ngarewa-Packer thinks should happen to the third group? Given someone who had responsibility for Rawiri Waititi’s Twitter account claimed Caucasians are an “archaic species” and she cites several demographics, she seems to think that eventually Tangata whenua and Tangata Tiriti will be the majority and so the “racists” can be ignored. What if she is wrong and a majority don’t share her little Aotearoa view of humanity?

If she were from another ethnic background, it would be called out for what it is, simple racism. Her view is that unless you are Maori there is something wrong with you that can be fixed, and the way you fix it is by agreeing with her world view and by actively promoting it.  You then gain mana equal to tangata whenua. You should feel lucky then, perhaps that you can be reformed through compliance.  What happens if you don’t agree with it all though? Are you racist if you think there should remain a liberal democracy with majority rule, and that the principles of a common law criminal justice system should remain over an undefined traditional Maori system of lore (which, as with all matauranga, was passed down by word of mouth and observation/tradition, and was not recorded with a written language)?

One indication of what she thinks is her belief that if you are not Tangata Whenua, your right to live in Aotearoa is conditional.

She wrote:

Tangata tiriti accept and appreciate the reason they live in Aotearoa is because te tiriti gives them citizenship and mana equal to tangata whenua. This doesn't denounce their own culture, it strengthens their stand on the whenua they've chosen to live on.

Hang on a moment. Chosen to live on? So, you may be BORN in Aotearoa, you may have no other citizenship, but you’ve chosen to live there. A choice that is not a right because you apparently had another “choice”, which will be news to millions who don’t have dual citizenship.

This is all a bit chilling.  You’re not equal after all.

Ngarewa-Packer in her maiden speech said Maori suffered a “holocaust”, which is demonstrable nonsense. Injustice, killings and discrimination is not industrial-scale extermination, and indeed to compare the violence of the colonial era (an era that Te Pati Maori thinks hasn’t ended) to the Holocaust might be seen as racist by members of those groups that suffered under the Holocaust. However, I doubt Meng Foon will be calling that out and to be fair, Ngarewa-Packer is not the first to make such a ludicrous comparison. 

Imagine for a moment if the Caucasians are an archaic species” comment from Rawiri Waititi’s account had been uttered from the Twitter account of a National or ACT MP, in describing Maori as “a species”. No apologies would have been accepted, the staff member would have had to resign and the mea culpa from the MP would never had been enough.  

So no, Meng Foon is not interested in racism in “all of its forms”. His is a narrow, post-modernist, structuralist view that racism can't be expressed by people who identify with groups he deems as not having power,  although it is difficult to see Members of Parliament as people who are lacking in power.  Is racism increasing in New Zealand? Foon gives no useful evidence, but rather cites a series of anecdotes, all from academics or politicians which universally share one political perspective. It would be better if he were to spend some of the taxpayer money his office gets undertaking balanced surveys of people's attitudes to other races, including testing various stereotypes. 

However, would Foon simply think I am the third category of the Ngarewa-Packer hierarchy of Aotearoa? I am not Tangata Whenua (I think), I am not Tangata Tiriti (I'm not keen on any state that believes power should be shared, rather than fully devolved to individuals as much as feasible), so does that just mean I am racist?

Transport policy with a vacuum of critical analysis

Politicians love transport policy.  I used to think it was some throwback for the men who engaged in it, who as boys may have played with model planes, trains, cars or whatever, and perhaps didn't get a chance in adulthood to get to play with full sized equivalents, because they chose a different career path.  Yet women in politics are quite keen on it too, although in most cases it tends to reflect one side of politics - the desire for control.

Transport is a sector which almost everyone has an opinion about, because almost everyone travels on a regular basis whether it be short trips in town, commuting or long distance travel.  However, as in most sectors, a little knowledge isn't really enough to make informed decisions about what should actually happen (except for your own choices).  The problem with transport is that almost all politicians have just that - a little knowledge.

That's exactly what you can see today in New Zealand, and if you think I'm just picking on the Labour Government you're wrong.  The previous National led government was far from perfect, nor was the previous Labour led government. All of them have been unwinding what was around 20 years of reforms in transport policy that progressively reduced or removed political roles in the supply and prices of transport infrastructure and services.  It started under the Clark Government, which renationalised the railways and Air New Zealand, for quite different reasons (both of which were a result of its own failure to continue previous reforms), and undertook a series of reforms that increased political control over central government funding of roads and public transport.  It renewed Wellington commuter rail system, and poured hundreds of millions to revive Auckland's system.  The Key Government took that new politicised framework, and reprioritised it to large motorway projects (Roads of National Significance), but it also funded the electrification of Auckland's commuter rail system and the City Rail Link (underground rail loop) in Auckland.  

Now, of course, the Ardern Government is moving away from motorways and focusing on trams.  

It announced its "Government Policy Statement" which is effectively a way of declaring its priorities for spending the money collected from road user through fuel duty (which it wants to increase), road user charges (which it also wants to increase) and motor vehicle registrations and licensing fees.   Phil Twyford might have announced it, but Julie Anne Genter, former junior transport planner, has also been influential. 

To understand what it means you need to also understand that in transport policy there isn't an agreed single point of view as to what works best or the impact of different policy instruments.   

The market-oriented approach

On the one hand is a belief that allowing market mechanisms such as user pays, competition, private enterprise and choice for users will enable better outcomes overall.  Indeed, you can see the results of this in many parts of the transport sector.  In shipping, aviation, freight and even intercity passenger transport in New Zealand, there is a light handed approach to the role of government.  Advocates of a more market approach seek to move away from politically based funding of transport infrastructure and services, encouraging transport users to pay for the costs of the services they use, which also includes a move to forms of road pricing.  Advocates of a market based approach tend to consider that there is little reason for government entities to own or operate transport service providers and that there are merits in moving towards more private ownership of private infrastructure as well.  They regard the negative externalities of transport (congestion, accidents, pollution) as being able to be managed through more market mechanisms and technology, rather than by controlling user behaviour.  Market oriented advocates are neutral across transport modes or user decisions, as long as users pay for what they use.

New Zealand transport has a lot of the free market

Ports are all run as businesses, some with private ownership, and all shipping (except the Interislander - which is profitable in its own right anyway) is operated competitively by the private sector.  Prices are set by the operators depending on competition and demand.

Airports are largely all run as businesses, some are partially privatised, and the airline industry is completely open to competition.  Air NZ may be (just) majority state owned, but it receives no subsidies, and New Zealand has one of the world's most open aviation markets.  The main restrictions are bilateral ones, many have "Open Skies" agreements with NZ, others have limits on the number/capacity of flights.  Airlines set their own fares, which was not at all the case until the late 1980s.  Airways Corporation is still an SOE, but is not subject to any political interference.  Unlike some countries, such as the USA, the NZ aviation sector funds itself, with airlines paying airports and the Airways Corporation for their services.

It's on the land that the role of politicians is most intrusive.  Yet in many areas they have little role.  For freight transport (on road), there are no significant barriers to entry and operators set their own prices depending on competition and demand.  Goods move around the country and in cities with relatively few restrictions, except some limits on road use due to noise and limits to the network.  For passenger transport between cities, besides aviation, most people drive, but for those who don't, coach services operate as an open market, with competition and prices set by the market.   Even though Kiwirail is state-owned (and has received well over $1 billion in new capital from the past two governments), it operates non-commuter passenger services as a business and is the same with freight.  It just happens to not be able to charge some of its freight customers enough to pay for the renewal of its infrastructure - which is where your taxes come in.  The taxi sector too is reasonably open, which is why Uber has been able to set up successfully too.

Now you're going to say - hang on, the roads are all government.  That's true, but it's also important to separate the roads into what are two networks. Firstly, the state highways (this includes all motorways). These are fully funded by road users from fuel taxes and road user charges.  All revenue from those charges goes into the National Land Transport Fund, and road user charges are set to recover the higher costs heavier vehicles impose on the road network, through greater wear and tear.  Secondly, the local roads. On average about half of the money spent on council roads comes from the National Land Transport Fund, the remainder from local rates.  Some argue that this means local roads are "subsidised", but there is an argument for ratepayer funding of local roads, because the presence and standard of local roads influences property values.  They could be seen as a proxy for an access charge to the road network for property owners.  However, it's not as if local roads typically "compete" with other transport modes like railways.  It is state highways that do that.

So all public roads are dependent on funding from the National Land Transport Fund allocated by the NZ Transport Agency, which also happens to manage the state highways.  Local roads are also dependent on ratepayer funding. This is far removed from the United States which funds a reasonable proportion of road spending from general taxes, or on the other hand from the UK, where road funding is around a quarter of the revenue raised from motoring taxes.  For NZ the emergence of taxpayer funding of roads has been a recent policy initiative, and not a welcome one.

The central-planners' approach

Unlike the advocates of a market oriented approach, central planners believe strongly in politically directed funding, regulation and provision of transport infrastructure and services.  They tend to be  advocates of central or local government owned and operated transport providers, and unquestionably support government ownership of transport infrastructure.  They seek control of service standards, frequencies, routes, fares and charges.  The primary focus of central planners is on urban transport, although they drift into intercity transport of people and goods as well.  They largely show limited interest in the shipping and aviation sectors.

The central planners are now heavily focused on environmental objectives, with strong enthusiasm for scheduled fixed-route public transport.  That's because they are particularly focused on inputs, on what infrastructure and services are provided.  This is interesting because the current generation of transport central planners like to think of themselves as showing "new thinking", because they reject the previous generation of central planners selection of inputs.  Both generations embrace the "predict and provide" methodology of deciding what transport infrastructure to build.  The difference is they disagree on the inputs.

The previous generation were strong advocates of building more roads, large urban motorways and car park buildings to accommodate the predicted unfettered growth in car traffic.  They weren't interested in road users really paying for those motorways (or at least not just the ones riding them, with the exception of tolls on some crossing), but saw the future as one where private car use could be accommodated in cities.  On the scale some planners predicted that was clearly neither going to be affordable, nor desirable, but when such roads were built they did encourage development at the locations they served, and by lowering the cost of driving (in terms of time and fuel), they helped generate demand (that's where the widely misused "if you build roads they just fill up with traffic" cliche comes from).  The "motorway planners" regarded public transport as antiquated and increasingly just existing for those who do not own cars, or in high density cities, accepted as commercial metro systems.

The current generation of planners are strong advocates of building more urban railways, building tram lines (now called "light rail") and uses buses to connect to these, as well as supporting cycling infrastructure.  However, most notably they also support measures to reduce the speed of other road traffic, by reallocating road space to trams, buses, bicycles and pedestrians, and to provide priority to the preferred modes (rail, bus, cycling, pedestrians), over cars, trucks and vans (freight isn't that important to the central planners - either it should go on rail or be moved at off peak times, or it is ignored altogether). The "public transport" planners regard private motoring as not just antiquated, but almost malignant. Some of the language used to describe motorists is either hostile or treats them as is need of help.  The term "car dependent" or "addicted to their cars", is language you'd expect of those who abuse narcotics, not people who choose a mode of transport.  It's designed to support a narrative that "if only" more money was spent on public transport, people could be "weaned away" (as they are children) from their cars.  For the central planners, the only choice worth making is away from driving.

It's all about emissions

Now the policy is singularly focused on climate change, despite existence of the Emissions Trading Scheme which means every time you refuel your car, or ride a bus or fly domestically, you are paying for your CO2 emissions. The Ardern Government thinks it is responsible for helping save the world by making it more expensive to own (the wrong) cars and use them, and to take money from you for driving and put it into their preferred modes of transport. Similarly the Vision Zero strategy around eliminating road fatalities is as much about making driving less convenient and less fast - enforcement of bad driving behaviour comes second to reducing speed limits and instituting speed bumps, because slower traffic is safer (it's also more competitive with modes that are demonstrably slower). 

That's why even if road transport emissions dropped dramatically because of takeup of electric vehicles and the like, that isn't good enough.  You see the policy is not so much about reducing emission, but reducing emissions the right way.  It doesn't matter that it makes no difference.

The moral imperative of the Ardern Government's transport policy is not one based on trusting people to make their own decisions, but rather to direct them and to spend money to provide choices that are approved and recommended (like the Te Huia train) having taken it from those that are not approved or recommended (car drivers and truck operators).  There is policy obscurity in that having concepts like "user-pays" or "economic efficiency" are not desired, because they don't deliver a tramline, nor do they deliver a bicycle bridge over Auckland harbour.

Is it because the Ardern generation are too young and too narrowed minded in their understanding of history (and too full of conceit about the capabilities of their power and the ability of the state to figure out what's best for everyone)?  Have they swallowed the hyperbolic nonsense of the Greens that the whole system is set up to "favour" driving, even though motorists buy their own vehicles and pay a much higher proportion of the costs of their transport choice than public transport users?  Do they really think the common people would be happier and better off if they only just walked and biked a lot?  Do they really think that many people don't use vehicles for their "legitimate purposes"?

That last point is instructive, because it shows the philosophical starting point of Ardern and Wood.  They think the ordinary folk make endlessly foolish decisions, and they need correcting.  So they will take their money and give them "correct" choices, like the slow train from Hamilton to.... Papakura (soon Puhinui... wow).  Like the slow tram down Dominion Road (maybe), which isn't really about relieving congestion, but about a vision around urban form (it doesn't matter that most jobs wont be accessible with the tram).  Now most recently the Let's Get Wellington Moving project which was once a collaboration between central and local government to plan a major uplift in road and public transport infrastructure, now relegated to proposing a pedestrian crossing on a part of SH1 near the airport of which one side is over a kilometre from anyone's home.

It's not quite the 1970s, it isn't illegal to send freight by road if there is a parallel rail line, and petrol prices aren't regulated, nor is Kiwirail a department yet - but any sense that users should drive spending and users should, by and large, pay for what infrastructure they use is evaporating.  This is a government that thinks it knows best.

Are the hate speech proposals anything more than ineptitude?

Jacinda Ardern has demonstrated since the last election that she isn’t a “do nothing” Prime Minister, she wants to be transformative. She has been elevated by the predominantly left-leaning media domestically and internationally as a political superstar, quite something for someone who led a party that came a fairly distant second in 2017 and only gained powered with the support of two other parties (and until the Christchurch terror attack was looking lacklustre in the polls).  She has capacity for emotional empathy, rather than hard-nosed policy, and it is the former that drives her to reform laws on hate speech.  It’s clear she despises, like any right-thinking people, the ideology that drove the shooter to commit mass murder on the basis of religious belief. The idea that there are people who speak, shout, type, write or otherwise express hatred to others is a mystery to her, and her philosophy of the purportedly kind, caring, maternalistic state runs through so much of what she does and says.

So, she thinks, it is entirely consistent with her vision of the big mother state that people be prohibited from being mean to others.  The original issue around the Human Rights Act is that the two key provisions, S.61 and S.131, only apply to “colour, race, ethnic and national origins”, but of course an attack on Muslims isn’t readily defined by this, as Muslims can be from any racial or ethnic background, with majority Muslim countries ranging from Bosnia-Hercegovina through to Indonesia geographically.  However, it’s not so simple to simply amend the law to add “religious belief” because the law as it stands is absurdly worded.

The current provisions prohibit expressions that are “threatening, abusive, or insulting” (S.61) or “with intent to excite hostility or ill-will against, or bring into contempt or ridicule” (S.131).  Few would argue with the term threatening, but insulting is awfully close to prohibiting calling people names. Whereas bringing into contempt or ridicule looks exactly like a ban on criticism or certain forms of humour.  Allowing a law change to prohibit intentionally ridiculing people because of their religion is almost a law against blasphemy.  Sure it’s not nice to ridicule people’s religion, but the right to ridicule religion came from the Enlightenment.

So Ardern’s proposals (one can’t assume that the empty headed Kris Faafoi had much agency over these proposals) are to replace “threatening, abusive or insulting” and “with intent to excite hostility or ill-will against, or bring into contempt or ridicule” with a much more simple provision: 

intentionally incite/stir up, maintain or normalise hatred… of protected groups… through threatening, abusive or insulting communications, including inciting violence

Working backwards I know no one who disagrees with laws against inciting violence, so clarifying this alone would be welcome, but why restrict it to protected groups?  Inciting violence against ANY group of people (with a defence of self defence to cover situations when a group might attack someone or their property) should be a crime.  Why would it not be? However the rest deserves very close scrutiny indeed.

The proposal seeks to prohibit certain actions being “threatening, abusive or insulting communications”, with certain intent “to incite/stir up, maintain or normalise hatred” of the listed protected groups.  The key word here is “hatred”.  What is hatred?

For hatred to be “incited” or “stirred up” it must already exist somewhat, and certainly “maintain” and “normalise” are for emotions that already exist, “normalise” implies that there is hatred that exists that the “bad person” wants to say is valid.

Ardern doesn’t think hatred should exist, at least not towards the protected groups.

Going back to the actions that are sought to be prohibited, few would argue against threats, but what about abuse or insults? The most confusing element of these proposals is exactly what the terms mean, how a judge or the Police will interpret them in practice, and to help inform that it is useful to understand exactly what Ardern and her acolytes (including the Greens) think is action that is insulting and abusive, or even threatening, and how they interpret hatred.  You see it is the jurisprudence of today and the intentions of Parliament and how that percolates into the Police and the judiciary that matters.

And we all know what that culture is.  It’s the culture that is seen in trans-activism, that deems feminists who are concerned about self-identified trans-women with penises convicted of sexual assault entering womens’ prisons, as TERFS and spreading hatred.  There’s no nuance, the feminists are directly accused of inciting hatred, rather than engaging in a debate about a sensitive issue.  

It’s the culture seen in race-activism, that declares an organisation or system “racist” if the outcomes are not proportionate to inputs by race, always according to the race or races the race-activists are concerned about (they blank out other minorities performing much better).  It’s racist to be focused on the correct answer in mathematics according to some race activists in the United States, so would insisting that students not pass unless they get problems solved correctly “stirring up hatred”? Is ridiculing such people seen as threatening? 

It’s the culture of sex-activism. The lack of equal proportions of women on company boards or the so-called “gender wage gap” if challenged is seen as sexist, because equality of opportunity is not the goal.  Unless outcomes are equal, the system is one with entrenched misogyny, although the lack of men in primary school teaching is not seen otherwise. Is questioning the gender wage gap “normalising hatred”? Is this seen as insulting communications?

It’s the culture promoting permanent welfare dependency. Some on the left promote a guaranteed minimum income or perpetual increases in welfare benefits for those who don’t find work that they want. Is claiming that someone who has been on welfare for years is lazy or that the welfare state is parasitical inciting hatred against people on welfare?  Why is receiving taxpayer money seen as being deserving of protection, but having money taken from you by the government not?  

Finally, it’s the culture of blasphemy.  Charlie Hebdo has produced many magazine covers grotesquely insulting of religious figures.  There is little doubt that many adherents of those religions regard them to be insulting or even abusive and would argue that they are intended to incite hatred.  Could the law even be turned on itself by arguing that the likes of Charlie Hebdo are inciting hatred from Muslims against them as a provocation?  The same can be said of the Life of Brian, which some Christians may interpret as inciting hatred against them, through ridicule and insults to their religion.  It’s not hard to tell which of these is more likely to be seen as falling foul of the law.

One of Charlie Hebdo's highly offensive covers

And that’s just some of the protected categories.  Most of them are ridiculous.  What should be by far the biggest concern is that the very idea of including these protected categories got not only past officials, but past Ministers and the Prime Minister.

What mindset thinks it is ok to make hatred of groups according to political or ethical opinion illegal?  

There can be only two possible conclusions, mind-numbing stupidity or a sinister and disturbing set of beliefs about the limits of a free society.  With this government both are entirely plausible.  There is no shortage of very poor quality policy initiatives, whether it be the Climate Change Commission, housing, He Puapua, Fair Pay Agreements or the mess around large scale managed isolation vacancies whilst foreigners, and much much more.  

So it is quite likely that the Ministry of Justice lacks institutional capability to actually remove political and ethical beliefs from this discussion paper, but it must have gone through senior managers.  By what logical contortion can anyone defend criminalising hatred against Nazis?  This is what professional civil servants are meant to do, protect Ministers from doing anything stupid.

Because it’s abundantly clear neither Kris Faafoi nor his own Chief of Staff and advisors are capable of it.  He’s most certainly well out of his depth as Minister of Justice, it being utterly laughable that he is expected to lead a major legal reform.  Which then comes to the Prime Minister.  How could DPMC let this go through, how could Ardern and her advisors think it was right to criminalise hatred against people who think (for example), that sex between adults and children should be encouraged (e.g, groups like NAMBLA), or that human beings should progressively wipe themselves out (the voluntary human extinction movement), or the Khmer Rouge (a political group)?  Are they inept letting this get through, or just a bunch of woke morons who discuss and debate issues like some sort of mutually reinforcing circle of intellectual onanism?  Is it new age stupidity that thinks hatred is always wrong?

I’d like to think it isn’t sinister.  If Ardern et al genuinely think it might be a good idea to ban hatred by political group, they want to sanitise all political and ethical discussion to abolish “hatred” of ANY opinion.  It’s classic moral relativism, that all ideas are equally valid and ok, and nobody should “hate” people for having opinions that offend them.  This seems unlikely, not least because the dominant philosophical thread of this government and indeed the political mainstream is to not think all ideas are equally valid and ok, but rather a culture of wanting to suppress opinions that cause offence. I suspect Ardern doesn’t want to criminalise hatred against feminists against trans-gender radicalism (it’s not radicalism, it’s mainstream), but she does want to criminalise feminists hating trans-gender radicalism.  I suspect she doesn’t want to criminalise hating Nazis, but she does want to criminalise hating the Labour Party.  

The proposals should be scrapped, and much more simple reforms be instituted.  It should be abundantly clear that threatening behaviour whether communications or actions should be illegal, and that threatening behaviour should be towards individuals or ANY group of individuals defined by the person threatening.  They should not be defined by category.  Threatening Muslims, Green Party members, real estate agents, golfers, buskers or redheads should all be illegal, enough with the identitarian slicing and splicing people by categories.  Threats should include abuse that is threatening.

Creating a new law against hatred should be abandoned.  Ardern should sack Faafoi and appoint someone competent to be Minister of Justice, and that Minister should send shivers through the Ministry of justice that it dared propose such authoritarian rubbish that is seen in this discussion document.

You have under four weeks to make a submission - you should do it here.  

Hate speech Proposals 3 to 6: are you likely to be causing incitement to discrimination? Who says

Having gone through Proposals 1 and 2, I have looked at 3 to 6 and there is more to be concerned about.

Proposal Three is simply an increase in penalties to fines of up to $50,000 and up to three years’ imprisonment, up from $7,000 and three months.  For threats these new penalties are reasonable, but given I reject elements of the proposals themselves, this becomes moot. It's notable that this penalty is higher than the following actual crimes of violence:

Assault on a child (S.194 Crimes Act)

Assault on a person in a family relationship (S.195 Crimes Act) (domestic violence)

Common assault (S.196 Crimes Act)

It is the same as assault with intent to injure or aggravated assault. So the Government thinks intentionally injuring someone's body is no more serious than injuring their feelings. 

Proposal Four would see the S.61 civil offence wording similar to that of the Proposal Two criminal wording, but also retain the existing provision of bringing a group into contempt would be retained. If you have issues with Proposal Two then they parallel Proposal Four.  

Proposal Five would see the Human Rights Act prohibit “incitement of others to discriminate” simply to align it with the International Covenant on Civil and Political Rights. Abiding by an international treaty is not an argument in and of itself for reform, as it should be advanced on its actual merits.  The proposal chillingly says: 

Under this proposal, section 61 would also make speech that is likely to cause incitement to discrimination unlawful

So the law would mean Police would have to decide if speech is “likely to cause incitement to discrimination”, and of course it applies to the long list of groups, including political and ethical belief. 

Imagine that, the state deciding not if you intended to incite discrimination but that you are likely to cause incitement to discrimination. Frankly, much of what the Maori Party says lately may do just that, but so might columns written about race, gender and identity. So-called “TERFs” will be deemed as likely to cause incitement to discrimination (if Proposal Six continues), but so will strict Catholics. Of course there are those who think that not being 100% compliant with UN treaties is somehow an act of turpitude, but given the UN accepts membership from a jurisdiction that incarcerates small children as political parents for the crimes of their parents, none should be churlish about simply laughing at claims of moral superiority.  

It is not the role of the state to punish people for making speech based on some probability that it will incite someone to discriminate against another, particularly on grounds of political belief.  To hell with such an illiberal attitude to what people say or write.

Finally Proposal Six, which seeks to expand “sex” to include “gender, gender expression and gender identity” to S.21 of the Human Rights Act.  Given that some trans-activists regard any challenge to be an act of hatred, the scope for this to be abused is considerable. There is a case to say that people should not be legally required to accept a purely self-identified change of gender, or that birth certificates should not be altered to remove any reference to biological sex at birth.  Some women are uncomfortable with biological men who identify as women being allowed into spaces declared for women, and they should not be regarded as inciting hate for expressing their concerns.  Nobody should threaten or incite threats against people regardless of gender identity or expression, but adding this category to any laws constraining speech beyond that is not the role of the state - the state does not exist to protect people from being insulted. 

Overall the proposals by the Ardern Government are chilling in their breadth and depth.  If the intention is to better protect people from threats or incitement to violence, then the scope of the proposals should be much much tighter, but that is clearly not the intention.  The intention is to prohibit "hatred" and promoting "hatred" against groups, some of which are defined by immutable characteristics, some reflect personal choices (marital, employment, family status), some reflect matters of conscience (religion, politics or ethics). Yet it goes further than that, it seeks to prohibit communications that Police (for it is they who enforce these laws) will interpret as being likely to cause incitement to discrimination.

At a bare minimum if these changes proceeded excluding political belief and ethical belief, they would be notably less dangerous, but there is a much more fundamental question at stake here. Beyond threats of violence or inciting threats, what rights should the state be protecting people from being violated?  Do you want the Police to arrest people for insulting others, particularly insulting them online?  Do you want films, novels, letters, conversations to get you criminalised because someone thinks you are likely to cause someone to be encouraged to discriminate against a group?  

If you are an activist for Palestine (I am not), are you happy that your incessant opposition to Israel could be likely to incite hatred of Jews?  If you are an activist for Maori sovereignty, are you happy that your constant portrayal of Pakeha as colonisers, privileged and racist is likely to incite hatred against them? If you are an activist for Hong Kong democracy, are you happy that your portrayal of the Chinese Communist Party could be likely to incite hatred against Chinese people? If you are an activist against honour killings are you happy that your concern over Salafist teachings could mean you incite hatred against Muslims generally? In all cases because Police think so?

In the past decade or more the prevailing culture has shifted to one of ever growing intolerance of people having opinions that some disagree with. It has been predominantly driven by a far left almost Leninist approach to disagreement.  Those who challenge Maori seats in local government are called "racist" as a kneejerk pejorative, those who question trans-women engaging in womens' sports are "transphobic".  Those advancing these changes are almost certainly of the philosophical perspective that supports these perspectives, that regards classical liberal positions on individual freedom and rights to be at best archaic, or at worst somehow white supremacist and misogynist.  

There are crumbs of sense in these proposals. There should be clarity around laws that prohibit threats or incitement to threaten people on any grounds, but there is neither a need for the other changes, nor are they compatible with an open, vibrant, liberal democracy. Whether you are libertarian, conservative or a left wing radical, or a believer in any religion, or none, or if you hold an ethical position that many find outrageous, you should fear these changes, and you should oppose them.

You have until 6 August to oppose these changes, you need to tell the Minister of Justice and the Government what you think.  

New laws on hate speech: Proposal Two, a consolidation of law against threats or another step too far?

 So Proposal One will prohibit publishing, broadcasting or using words in a public place that are threatening, abusive, or insulting to anyone on the grounds of a wide range of factors. It would also prohibit expressions with intent to excite hostility or ill-will against or bring into contempt or ridicule on a wide range of grounds. These grounds include political opinion, ethical opinion and religious belief, all of which should send chills down the spines of anyone who even claims to be remotely liberal.  

Threats and abuse are actions that give rise for concern, but the state does not exist to protect people from being insulted because of what they think.  Likewise, exciting hostility (which is threatening) also gives rise for concern, but ill-will, contempt and ridicule are entirely legitimate emotions against political ideologies, ethical positions and religious dogmatism. Christians should not be protected from Monty Python, which intends to ridicule their religion, but neither should Muslims be protected from Charlie Hebdo. I shouldn’t even have to explain why political and ethical positions shouldn’t be protected.

So what about Proposal Two?

This is where it gets a little complicated, because it proposes to amend one of the Sections discussed in Proposal One by replacing it altogether.

It proposes to replace the criminal provision in the Human Rights Act (S.131) with a provision in the Crimes Act and replace the words “excite hostility, ill will, bring into contempt or ridicule” with “incite” or “stir up” “hatred.  

It would be a crime to:

1. intentionally incite/stir up, maintain or normalise hatred

2. against any group protected from discrimination by section 21 of the Human Rights Act

3. through threatening, abusive or insulting communications, including inciting violence

4. made by any means.

This has a kernel of merit. There should be clear provisions on inciting violence, but it should not be confined to groups listed in S.21 of the Human Rights Act, it should apply to ANYONE. Similar threatening communications should be illegal as it is threatening an initiation of force. 

However, it once again wants to criminalise abuse and insults if the intention is to incite hatred. However, once again, why should there be protection on the grounds of political belief or ethical belief? Why shouldn’t people hate communists, advocates of sex with children or ISIS? What is morally wrong with inciting hatred against groups that advocate violence against others? The obvious question is what about all other groups? Should the law make it a crime to stir up hatred against groups based on immutable characteristics? Most importantly, where does religion fit into this?  Religion is sometimes an identity equivalent to ethnic identity. After all, the divisions in Northern Ireland aren’t really about the source of interpretation of scripture, but a form of tribalism – and such hatred is utterly toxic and irrational. Yet religion itself is a source of power, and ethical and political belief, and so should not be protected from those who hate those beliefs. Dr. Richard Dawkins and the late Christopher Hitchens both regarded all religions will contempt and even hatred, so why should that be at risk of prohibition? Indeed why should similar beliefs by the religious against atheists also be prohibited?

However there is more to this.  How will inciting hatred be interpreted? Is challenging Maori ethno-nationalism going to be seen as inciting hatred against Maori? Is challenging trans-gender activism going to seen as stirring up hatred against trans-gender people?  How much of an incentive is there for protected groups to claim this is exactly what critics are seeking to do?  If the answers to this are unclear, then this proposal should be rejected as well.

I'm all for a clear criminal provision on inciting violence and expressing threats to anyone (of any form of initiated force or fraud), but the idea there should be a law against promoting hatred against groups defined by what members of those groups think, or that it can be used to shut down criticism of what people think because it is claimed to be about their protected status is fundamentally illiberal and unacceptable in a free society.

New laws on hate speech: An honest attempt to protect people or a sinister effort to erode free speech?

As a libertarian my instincts are for the highest levels of freedom of speech. However as with all freedoms its limits lie where they infringe on the rights of others. Libertarians aren’t anarchists, you can’t “do what you want” when it initiates force or fraud against another. As your rights are to be free from violence against you or your property (and your property includes intellectual property and your reputation), then the appropriate limits on freedom of speech are those that violate the rights of another. There are laws on these violations already.

That includes threats of violence, it includes inciting others to inflict violence (including property damage) and includes recording a crime as an accessory to that crime (this covers child pornography and filming rape or someone being assaulted “for fun”). One claim is that the law doesn’t cover threats of violence against groups, but a group is a collection of individuals, and if this is true then a simple amendment of the Crimes Act can be made, with S.174 adding to “person” the words “or group of persons”. S.306-308 also contain provisions around threats that are relevant, so they idea that somehow there is some yawning gap in the law that allows people to threaten others with violence is simply false. 

Is expressing hatred of someone a violation of that person’s rights, or more generally is expressing hatred for a group or class of people a violation of their rights? In and of itself no it isn’t. Hatred has come to be an emotion that the “kindness” state of Jacinda Ardern wants banned, but it is not an emotion without merit. In the right context, it is not only appropriate, but almost a moral imperative. Why would any decent person not hate Fred and Rosemary West, or “Dr” Mengele, or Saddam Hussein? If a defined class of people are waging violence against you or your loved ones, or even complete strangers why should you not hate them? Actual Nazis, the Khmer Rouge, ISIS, Al Qaeda, the Stasi, Japan’s wartime Imperial Army, a mafia family, a criminal gang.  

You don’t have a right to be protected from someone hating you as an individual or a member of a group. Indeed, this is a position held by many people across the political spectrum. Religious zealots hate non-believers, communists hate the bourgeoisie, trans-activists hate those they call TERFs, socialists hate “neo-liberals”, environmentalists hate fossil fuel producers and buyers of large utes, crime victims hate criminals, etc etc. You see hatred of others is a normal reaction to a passionate set of beliefs or a passionate belief in injustice. The issue is when such hatred is expressed as a threat, whether it be a direct threat to imminent violence or an implicit threat of violence or other action to prevent someone going about their lives peacefully. The fear generated by those expressing such threats, and by those touting bigoted views is palpable and contrary to the values of a rational, moral and liberal society.  The question is how to address such threats. Criminal law should protect people from threats of violence, but I’m very cautious about how far to take that. 

So there is hate speech law now, but the Ardern Government wants to go further. The stated purpose is to help prevent a repeat of the Christchurch Mosque Attack, but this hypothesis is questionable at best. Let’s look at the direct purpose of the proposed changes from the discussion document:

The proposals target the types of communication that seek to spread and entrench feelings of intolerance, prejudice, and hatred against groups in our society. All people are equal, and our society is made up of people with many different aspects to their identities. The incitement of hatred against a group based on a shared characteristic, such as ethnicity, religion, or sexuality, is an attack on our values of inclusiveness and diversity. Such incitement is intolerable and has no place in our society.

The idea that inciting hatred against a group based on a shared characteristic that is inherent to those people is certainly an attack on the values of a free liberal society and should have no place in a free society. However, if a shared characteristic is simply sharing an opinion, there that is a whole different situation. You can’t help race, sex or sexuality, but you can help what you think, and what some people think does not entitle them to be immune from hatred.

So the proposal is not about threats of violence, but about communications that are intended (intent matters after all) to spread and entrench (i.e., sustain) “feelings of tolerance, prejudice and hatred”. Now it’s easy to work out what these might be, the problem is what some might think these are. 

Is the column by Karl Du Fresne in the Spectator that talks of “Maorification” one that “entrenches” feelings of prejudice, or is it legitimate political commentary?

How about when Debbie Ngarewa-Packer describes in the NZ Herald NZers as either being tangata whenua, recovering racists and racists? Does that seek to spread feelings of intolerance against non-Maori?

Clearly there is no point asking Kris Faafoi, who doesn’t have a clue as the least qualified Minister of Justice for 13 years. The man's an idiot. Furthermore,  Jacinda Ardern thinks she shouldn’t be responsible for explaining what Cabinet’s decisions on new laws should mean in practice.  The nodding dogs of the Labour left and the Greens are all filing in behind her, so it is better to just read the proposals.  So in this post, I'll look at just one.

Proposal One: Change the language in the incitement provisions in the Human Rights Act 1993 so that they protect more groups that are targeted by hateful speech. Under this proposal, more groups would be protected by the law if hatred was incited against them due to a characteristic that they have.

This is about Sections 61 and 131 of the Human Rights Act. Section 61 prohibits publishing or distributing written matter, or using words in a public place that are “threatening, abusive, or insulting” on the grounds of colour, race, ethnic and national origins. Section 131 prohibits “with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins”. 

The Government wants to expand the groups this law “protects” from “insults” or from “contempt or ridicule” far beyond race and nationality. Consider the categories it wants to include:

• Sex (so no jokes about men, or women)

• Gender (no jokes about men who self-identify as women and look absurd)

• Marital status

• Religious belief (so yes that IS Life of Brian. Don’t intend to ridicule religion)

• Ethical belief (so don’t be ridiculing people who think abortion is murder, or who think pornography is good or evil, or that smacking is good practice, or etc etc)

• Disability (including carrying an infection)

• Age (don’t ridicule stupid young or old people)

• Political opinion (don’t bring communists or libertarians into contempt or else)

• Employment status (don’t bring into contempt people who are receiving taxpayers money)

• Family status (which includes “being a relative of a particular person” so you can’t ridicule a husband/wife/partner of a psychopath?)

• Sexual orientation.

Some of these are less objectionable than others, but the idea that there should be a prohibition on bringing into contempt or ridicule people because of their opinions is entirely outrageous.

Intending to bring into contempt any group of people on the grounds of their religious belief will be banned. That’s frankly outrageous. Fundamentalists of any religion should not be immune from insults or being brought into contempt because their beliefs are worthy of contempt.  This is blasphemy law through the back door. It goes further, you can’t ridicule entire groups because of their ethical belief (i.e., blood transfusions are evil, or vaccinating children is evil), nor can you ridicule people for their political beliefs.

This is frankly extraordinary. 

Given the Christchurch shooting was entirely motivated by religious hatred, if the law were to be about change to cover this, it would be simple enough to only prohibit threatening language regardless of the basis because nobody should be threatened.

This proposal alone should cause anyone who believes in liberal democracy and freedom of expression to go cold and simply reject this nonsense. 

To add insult to this, the discussion document assumes that there isn’t a legitimate point of view that outright opposes this proposal. It’s proposed questions are:

Do you agree that broadening the incitement provisions in this way will better protect these groups?

o Why or why not?

- In your opinion, which groups should be protected by this change?

- Do you think that there are any groups that experience hateful speech that would not be protected by this change?

The first question begs the question “protection from what”? From being ridiculed? Is the question ever asked why some groups should be protected from ridicule?

The second question is just “what groups” should this apply to.

The third question is “who else can we protect from being laughed at”?  I can see some saying “fat people, thin people, redheads, blondes, short people, people wearing revealing clothing, people wearing hats, types of occupation, types of recreational activity”.  I mean the list of groups is ENDLESS.

To hell with this Orwellian social-engineering philosophy to “protecting” people based on their opinions. There is a shred of value in asking why sex, disability and sexual orientation are not included in the current law, because those are characteristics that are essentially immutable, but almost every other element listed is a conscious characteristic.  At the very least this proposal will have a chilling effect on humour, but at worst it will make it illegal for me to say communists are either morons or psychopaths, or that Salafist Muslims are stone-age cretins, or that the Green Party are a bunch of loony leftie authoritarian control freaks.

And that’s just Proposal One….

It alone should cause you to make a submission before 6 August (see here for details).

By the way, good on both David Seymour and Judith Collins for taking this on, and also on the left, for Martyn Bradbury, who I scarcely agree with on anything, but he's right on this one.

Te Huia - a nice idea, but a lot of money to achieve very little

The launch of the Te Huia commuter train from Hamilton to Papakura has obtained a lot of publicity today, showing how journalists love an excuse for a train ride, and the lack of any high profile easy to understand positive news in New Zealand.

It is easy to see why some would be convinced this might be a good idea.  After all, there has been a daily commuter train from Palmerston North to Wellington (the Capital Connection) since 1991, running until very recently, as a commercial (unsubsidised) service, although it carries more people from intermediate stations like Levin and Otaki especially, than from Palmerston North.  However, experience for passenger rail travel from the Waikato to Auckland has been not so good.  The last time this was attempted was in 2000, commercially, by the then private TranzRail with a train called the Waikato Connection.  It ran once daily from Hamilton to Auckland, but had most of its passengers boarding at Pukekohe (which then had no service) and Papakura (because it basically offered a faster/non-stop more luxurious option than the basic diesel commuter trains), so that at the end less than a seated bus load of passengers used it from Hamilton. 

The latest attempt is not even a train from Hamilton to Auckland, it is from Hamilton to Papakura, to connect with the electric commuter train to Auckland, so it actually takes 2.5 hours from Hamilton to downtown Auckland.  This isn't exactly competitive with driving, which is around 1hr 40-50 minutes from station to station (and realistically almost everyone isn't starting or finishing their trips at either) although congestion can worsen that towards 2hrs.  The train has two stations in Hamilton and one in Huntly, with no other stops, so it offers nothing for any commuters in Ngaruawahia, Taupiri, Mercer or Pokeno for example, although those in Ngaruawahia or Taupiri might drive to Huntly to leave their cars.

The cost is eye-watering, at $67.6m in capital spending, $58.5m from road users' taxes and $9.1m from local authorities. Another $29.3m in being spent over 4.5 years in subsidies, mostly $22.1m from road users' taxes.  Over $1m has been spent to make Huntly Station operational in itself.  Given $55.1m is being spent on public transport subsidies for all other Waikato services in 2018-2021, this is a lot of money to take from road users and ratepayers for one service, operating two times a day weekdays.

The media reports indicate it could remove 73,000 cars off the road... a year.  The train has capacity for 150 people (not much at all bearing in mind that the Capital Connection has 448 seats).  Now given there are 262 working days a year, this means it should take 279 cars off the road each weekday return. Page 16 of the last Household Travel Survey 2015 indicated mean NZ car occupancy per trip is 1.51 so if we optimistically assume this is car occupancy for potential users of the train, that means that the train need to carry 421 people per day (which is significantly above its capacity of 300) to remove 73,000 car trips a year.

Media reports today variously indicated 90 people arriving or 70, but even if 90 all drove a car each, for each service (and don't now) it would still only be around 47,000 car trips a year removed from the road.  However, it is highly unlikely 90 all drove or would drive separate vehicles, so it all seems a bit far-fetched.

Even if it DID do this, at what cost? is it worth nearly $100m to take 279 cars off the road a day? In emissions terms it is meaningless, because the ETS means that the emissions from cars simply get consumed by someone else (and if the cars still drove someone else wouldn't be using those emissions).  In congestion reduction terms it might make a small difference to travel times, but it isn't worth $100m