NZPols

Wednesday, March 31, 2004

CATHARSIS: A friend of mine sent this to me today. Called it catharsis. An attempt to deal with his grief at the passing away of one of his history heroes. It seemed like it was worth sharing.

I am at work. Michael King is dead. He was in a car crash yesterday. His wife died too. Michael King was one of my heroes. I really wanted to meet him one day. I wanted to be like him; wanted to write books and articles and make TV shows about New Zealand History. We need people like him in this country. People with reasoned, credible voices who struggle and fight to be heard in the race relations feeding frenzy, without ever raising their voices. People with the knowledge and the ability to communicate so as to steer our collective understanding of our past (and therefore our present) towards a fairer, more accurate and ultimately “truer” point of consensus.

Michael King was a pioneer. OK, yada yada yada, so he was the first professional historian to write in the field of Maori history. The thing is, he wrote in a way which respected the autonomy and control of iwi, and hapū, and individual Maori over their own stories. Yet his work was embraced and read by an enormous Pakeha audience. His biographies of Whina Cooper and Princess Te Puea captured what can only be described as some sort of national zeitgeist. Suddenly, New Zealand realised that these and other local Maori leaders (many of them strong, female figures ranging from late middle into old age) were at the forefront of something incredible, something unique to this country. That thing is today referred to as “the Maori renaissance”, as if it was a cold, hard, now dead social phenomenon – a fact to be impersonally dissected and dismantled by and political commentators. Michael King was there, man. As a journalist, author and historian he went out and crossed cultural boundaries that many New Zealanders didn’t even know existed. Good on him I say.

Michael King showed us the human element of history. His biographies were of “important” New Zealanders – not important as holding power or office, important as in changing the very fabric of the society we live in. Biography is a curious art. Executed successfully, the reader feels as if the author just isn’t there. Reading the book is like engaging in a long discussion with the subject about the hidden subtleties of their life. Michael King could do that. His Frank Sargeson and Janet Frame were the same. Looking back, people will say “In the 1980s and 90s, Michael King wrote the biographies of prominent New Zealanders” as if he actively went around seeking out “important” people to write books about. Bollocks. These “important” people, country-changing people, they trusted him. Janet Frame trusted him to write her life in a way that was truthful yet passionate and considerate of the fact that she was still alive. Wrestling with the Angel told the story of an old taonga, one who deserved to be treasured and celebrated rather than picked over, scavenged and interrogated – the regular wages of a New Zealand tall poppy.

Janet Frame’s recent death only adds to the poetic timing of Michael King’s passing. This was a man at the height of his powers. Finally, after years of prolific publishing, the release late last year of his Penguin History of New Zealand gave him the recognition he deserved. In the brouhaha that currently passes for political debate in this country, his contribution has been timely, measured, unbiased and immensely valuable. I was saying to a friend this morning, imagine if the Penguin History had been published 5 years ago. As a country we would almost certainly be in a different place now. I know it sounds cheesy, but his loss will be keenly felt, no clichés intended. Simply put, New Zealand is worse off without him.

¶ 10:57 pm

Monday, March 29, 2004

LIGHT BLOGGING: For the remainder of the week. Work commitments are taking their toll.

¶ 10:48 pm

Sunday, March 28, 2004

I CLEARLY DON'T CARE AT ALL ABOUT HUMAN RIGHTS, I MUST BE AN EVIL PERSON: I'm beginning to make a habit of questioning the unquestionable value of human rights. Oh well.

No Right Turn claims that the proposed SIS powers to deny passports for reasons of national security "should be opposed by anyone who cares at all about human rights".

Accrding to Idiot, there are just some things no government can be trusted with, and messing with the right to freedom of movement is one of them. He has a point of course - the right to freedon of movement is important. But at the same time, it should be clear that it is not absolute. Indeed, we "violate" it all the time with criminals, both by locking them up, and by imposing parole conditions on them. If you accept that common crimes are a valid reason for such "violation", then it shouldn't be too much of a leap to argue that national security should be a valid reason too, provided it's properly construed. After all, national security is fundamentally about preserving the rights and freedoms of us all. At the risk of understatement, it is very important.

Despite his bluster claiming that this is about more than just "concerns about the competence and motives of the SIS", I confess I find it difficult to see why we should have any concern about this if we thought the SIS was perfectly competent. Indeed, his post defending the claim that there are things that no government can be trusted with, is entirely about why we cannot trust the SIS. At no point does he defend the thesis that a real national security threat would not justify an interference with rights, and to be honest I don't think he'd be able to.

Pace NRT, I would suggest that the challenge for anyone who cares about human rights should not be to mindlessly oppose this move. Rather, it should be to design a system that protects both the rights of the individual and the rights of society. Normally, this would be accomplished by involving the courts. However, national security issues are generally of a nature that means this will not be appropriate. Information should be revealed to as few people as possible. So we need to be more creative.

In fact, contrary to NRT's assertions, that "the decision is in the hands of the SIS and the Minister, with no checks, no balances, and no independent oversight" there are checks that we use in situations like this, and which are likely to be appropriate here. The primary one is that the leader of the opposition - someone who has every incentive to blow the whistle on an overzealous government - is briefed on the matter. Another possibility would be to involve the Governor General (though that could get messy), or perhaps just the Chief Justice. Either of these strikes me as more productive than simply crying "tyranny" and telling the government it has no right to protect its citizens.

NB: I'm probably with NRT in opposing the other changes, which restrict inward immigration in a much more blanket manner. They seem to me to be far too loosely targeted to have much positive benefit from a national security persepctive, and in addition to being bad for potential immigrants, also fail to take into account that immigration has a variety of other benefits for New Zealand.

¶ 11:57 pm

FARRAR ON PROXIES: David Farrar argues that the ethnic targetting issue is not actually as simple as I made out earlier, when I said:

race-based funding that is not simply a proxy for need is bad; race-based funding that is simply a proxy for need is not.

He's partially right. I purposefully tried to make things seem simpler than they were to try to get people to understand the fundamental point that race-based and need based funding are not mutually exclusive. What I actually should have said was:

race-based funding that is not simply a proxy for need is bad; race-based funding that is simply a proxy for need is not neccessarily bad.

That, I think, is still sufficient to dispose of the Steven Franks' comments to which I had taken exception. However, David makes three more nuanced points, which are worth responding to individually - even if ultimately, I think only one of them really hits its mark (and even then, it's inconsistent with Dr. Brash's own sloganeering, so it's a little rich to expect it to stick as a criticism of Labour).

#1

[I]t isn't that simple. As Maori are over-represented in almost every negative statistic, then one can justify any programme aimed at trying to help Maori in that sector as needs based.

I think this misunderstands the term "proxy". Over-representation in a negative social statistic isn't all that's required for ethnicity to be a good proxy. You have to control for other things as well. If all Maori overrepresentation in poor health or education outcomes is completely explained by their lower socio-economic status, then ethnicity is not a good proxy. The problem for Dave here is that the evidence suggests that a differential remains even after other factors are controlled for.

#2

There is also a big debate about correlation and causative effect. The former does not mean one automatically has the latter, and if not then targeted funding is inappropriate.

If a correlation still exists between A and B, even once you've controlled for other variables, then the main reason for doubting that A causes B is the possibility that causation runs the other way: that B causes A. But, as it seems rather unlikely that poor health or educational outcomes cause people to be Maori, David seems on slightly shaky ground here.

More importantly, even if the argument that there's no causation here works, I fail to see how it makes targeting inappropriate. It might do so if you were looking at a correlation between, say, smoking and poor health: if you establish that particular causal link, you can try to discourage people from smoking in order to improve health. But note how this doesn't work with ethnicity: the point is not to discourage people from being Maori in the hope they'll get healthier. Rather, it is to say "this group of people is likely to have greater health need; consequently, they're likely to need more treatment, which (surprise) will probably need more money". Causation is irrelevant to this reasoning.

#3

It is simplistic to conclude that (for example) because Maori on average die younger than non Maori, that paying Doctors more if lots of Maori live in the neighbourhood will actually produce benefits.

On this point, I completely agree. Although we might suspect that putting more money into areas where there is greater need, this may not be the case. Indeed, many public sector agencies are notorious for gulping down greater and greater amounts of money for little return. This is the area where real debate is sorely needed. If targeted funding doesn't produce results, then we need to look for better ways of getting them. However, I would add two caveats. First, there's probably a legitimate presumption that need based funding is likely to produce better results - indeed, Dr. Brash's own slogan accepts as much. Second, if you don't think targeted funding works, you should be consistent about it and question all targeted funding, not just that which is ethnically targeted. To date, National haven't been willing to say "let's scrap decile funding" or "let's stop funding health on the basis of need." (I'd suggest with good reason.) Until they do, it's tough to take David's claims seriously.

¶ 12:47 am

Saturday, March 27, 2004

WHAT'D WE DO? One day, PNN has NZPols listed as one of the top 5 NZ blogs. The next, we don't even make it onto the blogroll.

¶ 12:11 pm

THE TREATY AND GROWTH: Yesterday's Herald reported that Treasury papers have suggestsed that uncertainty around Treaty claims could impact negatively on economic growth by making proterty rights seem less secure. Fair enough. But it's important to note that the conclusion that we should just be done with Maori land/foreshore/seabed claims does not follow from this. In fact, it's part of the reason why we need to make sure that we deal with these issues properly, and that any solution is a lasting one that everyone can buy into. Because if it isn't, then the sort of uncertainty Treasury is worried about is only going to continue for longer.

¶ 12:03 pm

QUESTION: People often defend the right to be a memeber of a union as part of the right to freedom of association. Yet, those same people are unlikely to be willing to defend the right to be a member of a producer cartel as part of the same right. What's the difference?

I'm not suggesting here that consistency would demand that either both be allowed, or both be abolished, but the rights-based argument seems to me to be little more than a convenient way af avoiding talking about the actual economic effects of unions.

¶ 11:47 am

TO HELL WITH THE FACTS, IT'S ALL TOO COMPLICATED:

Trevor Mallard has released the terms of reference for the government’s review of targeted funding initiatives. Oppsotion reaction seems to fall into two categories.

1. To Hell With the Facts. We Want Action!

Gerry Brownlee reckons that:

[i]nternal navel gazing will not satisfy the public demand for changes to the way Labour's Maori policies and programmes are delivered.

I love the way politicians, activists and anybody else who happens not to have a substantive argument to hand resorts to this sort of fallacious appeal to democracy. Of course, it's possible to support uninformed majoritarian decision-making solely on the proceduralist grounds that it "takes everybody's opinions into account", but anyone who believes that part of the value of democracy is that it tends to come up with right answers (as opposed to just any old answers as long as their "ours") should welcome the chance to get more information.

(On a slightly separate note, I wonder how much hammering the race-based funding theme is actually helping National. Most of the National supporters I know, while agreeing with Dr. Brash that things have gone too far in terms of treaty clauses in legislation, and "Maori consultation" on everything under the sun, have no problem with ethnically targetted funding - indeed, they think it's a good idea.)

2. It's all too complicated for me. Off with its head!

Meanwhile, Steven Franks argues that "it's all too complicated". First, he trots out the tired old line that any funding with an ethnic component is, by definition, discriminatory. Then, against arguments that it’s not quite that simple, he offers this brilliant piece of non-argument:

[a]ny complexity is self-created, to hide the logic vacuum at the heart of the race privilege industry. It's complicated because it's dishonest - many words trying to deceive. Many perpetrators are well meaning - it's complicated because they've been trying to deceive themselves, along with everyone else.

And people complain about left-wing obscurantism.

Actually, Franks is right that this isn’t complicated. It’s simple: race-based funding that is not simply a proxy for need is bad; race-based funding that is simply a proxy for need is not. What we need to know, is which one of these two categories current targeting regimes fall into. One suspects that there’s a little of both. But Franks seems to suggest, without evidence, that we already know that it’s all of the first type.

¶ 11:39 am

Thursday, March 25, 2004

PROGRESSIVES SUPPORT FREE TRADE, THEY JUST CAN'T CALL IT THAT: Matt Robson reckons that "International trade reforms won in the last big round of WTO negotiations have created thousands of new jobs in New Zealand," but it's important to note that this is not because of freer trade. It's because of fairer trade.

So what's the difference?

¶ 9:54 pm

IF YOU'RE GOING TO SAY SOMETHING, SAY IT: Muriel Newman is apparently looking into whether CEG grants have been awarded to "political friends of the Labour Party". Fine. Given that she doesn’t appear to have found anything yet, you’d think it might be a little premature to start slinging allegations. But who needs facts when you can just sling hypotheticals like this instead:

[a]t least three [grant] recipients, who could well be Left-wing activists, have received more than $50,000 in taxpayers’ money. If this were true, then it would appear that Labour is using this fund to reward political cronies and mates.

And if Muriel Newman were just milking an unfounded suspicion to score cheap political points, then it would appear that politics has stooped to all new lows.

¶ 9:44 pm

THE OBVIOUS CHOICE: according to United Future finance spokesperson Gordon Copeland:

is for those who believe that New Zealand can choose both faster economic growth and build families is to vote United Future, thus providing a Dr Brash-led government with a coalition partner dedicated to those goals.

Of course it is.

¶ 8:47 pm

Tuesday, March 23, 2004

PARTY LEADERS MAKE UP OVER MARRIAGE SPAT: Good.

¶ 7:58 am

Monday, March 22, 2004

DISJOINTED THOUGHTS ON TREATY CLAUSES: Kiwi Pundit beat me to much of what I was going to say in response to No Right Turn's recent post on "The Importance of 'Treaty Clauses'" - especially the bit about getting comments.

So in the absence of anything coherent to add, I'll throw in a couple of disjointed thoughts instead.

Disjointed Thought #1: A question for Idiot

You seem very keen to use the Treaty as a preventative measure to stop a majority taking the property of a minority, which, at least at the time the Treaty was signed, held most of the land in the country. This is not dissimilar from the motivation that lies behind the Takings Clause in the US Constitution, which was designed to prevent the landless majority from voting themselves the property of the landed minority. (The clause states that "private property [shall not] be taken for public use, without just compensation".) Indeed, the only major difference seems to be that this particular takings clause only applies to Maori.

My question then is, would you support a takings clause being added to our Bill of Rights, to be enforceable by the courts? If not, how do you reconcile this with your support for Treaty clauses? And is there any reason for it to apply only to Maori?

Disjointed Thought #2: A question for all those who think the Treaty should define the relationship between the Crown and Maori (including those who think it's only about property rights)

Assume that the only viable interpretation of the Treaty was that Maori had not ceded sovereignty to the Crown in 1840, and therefore still had sovereignty over New Zealand. Assume that there is only one person of Maori ancestry left in New Zealand. Would you be willing to honour the Treaty and bow to him as King?

Assume that Maori sold themselves into slavery in 1840? Would you be willing to honour the Treaty?

[UPDATE: In both instances, assume that we'd misinterpreted the Treaty for about 160 years, (perhaps thinking it was just about property rights or something) and the result was a situation broaldy along the lines of what we have today. So honouring the Treaty would involve a significant reorganisation of society.]

If the answer to either of these questions is no. Why do you think we should honour the Treaty we actually did sign 160 odd years ago? What makes the cases different?

Disjointed Thought #3: A muse for anyone who's still reading

Let's assume, arguendo, that all the Treaty did was protect private property rights. Now, the standard legal line on this, as Idiot pointed out, is that the Treaty is a nullity at international law (and from what I know of international law, this seems right). But why should that be the end of the matter as far as its enforceability is concerned? If I sign a contract with the Crown today, does the fact that I have no standing in International Law affect the validity of the contract? No. The Crown is bound by it. In fact, given that under the common law, domestic courts don't directly enforce international treaties, it may be that it is more enforceable as a private contract than it would be as a treaty.

Presumably one objection to this would be that the Chiefs who signed, and who purportedly ceded sovereignty to the British Crown had no authority to do that, under international law as it stood at the time. On this reasoning the Contract could be void for lack of consideration, because the Crown already had the legal right to assume sovereignty. However, I'm not sure this would be dispositive, for two reasons.

(1) Case law has recognised that a promise to fulfil a pre-existing legal obligation can constitute valid consideration if one party gains a real, practical benefit from it. It's strongly arguable that the Crown gained a real practical benefit from Maori accession to the idea of British sovereignty (lack of resistance would seem to be a practical benefit). This could potentially constitute consideration.

(2) Alternatively, the right of pre-emption granted to the Crown might be thought to be sufficient consideration for the protection of property rights.

Of course, Parliament could still override Maori property rights through legislation, but presumably any Executive takings would be actionable. I'm sure there's a problem with this reasoning somewhere, but I've got the flu, my brain is fuzz, and I can't figure out what it is. Perhaps it has something to do with Crown immunity from suit prior to the Crown Proceedings Act 1950 (though the CPA may have removed this even for contractual breaches ocurring before it came into force). Can anyone out there enlighten me?

NB: The questions above are genuine questions, not ones simply intended to prove a point.

UPDATE: No Right Turn responds here. I think he misinterpreted my second question (probably my fault). I've amended it to more closely capture what I was attempting to get at.

¶ 11:25 pm

Sunday, March 21, 2004

VOLUNTARY COMPULSION: is apparently not an oxymoron. According to this Sunday Star Times article, 71% of Kiwis would favour some form of compulsory retirement savings scheme. This would seem to provide a pretty good case for the establishment of a superannuation scheme that everyone was automatically enrolled in, provided they were given the chance to opt out.

Indeed, this would seem a perfect example of the sort of reasoning advanced by Cass Sunstein and Richard Thaler in "Libertarian Paternalism is not an Oxymoron", that:

The idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people’s preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded selfcontrol, libertarian paternalists should attempt to steer people’s choices in welfarepromoting directions without eliminating freedom of choice.

PS. I'd be interested to hear what libertarian readers of this blog think about the article. I suspect that hard-core natural rights libertarians might not buy it (because it requires governmental administrative expenditure to be funded through taxes, which I assume they'd consider theft, no matter how welfare promoting). I'm not so sure about consequentialist libertarians though.

¶ 10:32 pm

TAXING: Rod Oram reckons Don Brash is naive if he thinks cutting company tax rates is going to send us shooting up the OECD ladder.

Brash is unrealistic to hope that a minor tax reduction will somehow bring alive our do-nothing companies. Similarly, he believes trimming the tax rate to 30% - the same level as across the Tasman - will help New Zealand companies compete for investment in Australasian businesses.

The trouble is, the tax rate is a red herring. Our companies are already better off than their Australian competitors. They are taxed only on their profits but Australian companies pay that plus a compulsory superannuation charge of 9% of wages, as well as state taxes varying from 3.65% to 6.85% of payroll.

Aussie workplace compensation levies average 2.47% of payroll against less than the 1% ACC charges here; other government charges are far higher - for example, building consents in Queensland cost roughly nine times the equivalent here.

Every study of red tape shows Australians are much more burdened than we are. To add insult to injury, Australia's top personal tax rate is 48.5%.

Yet for all those apparent disadvantages, Australia still does better than we do. Even if we knocked our wage and tax rates back to absurdly low levels we might still fail to attract investment. Why build a business here when it makes more sense to build it inside a market six or seven times bigger across the Tasman?

Almost every bit of which is correct, except the implication that taxes don't matter. Oram is right that more than lower taxes will be needed to lift our game. But it in no way follows from that, that lower taxes are a waste of time.

Pace Oram, the red herring is not the argument that taxes should be lower, but the idea that because taxes are already close to or below Australia's, we can ignore them. Indeed, surely the logical conclusion to be drawn from the observation that we are smaller and more distant from lucrative overseas markets than our transtasman cousins is that our policies need to be much better than theirs - not that we should be content with where we are.

¶ 10:16 pm

Thursday, March 18, 2004

A QUICK OVERVIEW OF STUPID THINGS FROM THE LAST FEW DAYS/WEEKS:

Stupid Thing #1 (for Craig - sorry it took so long)

Helen Clark criticising a Maori Land Court judge for not recusing herself in a case in which she was interested. To be fair, I think Helen's probably right on the substance - the judge should not have involved herself in a matter in which she was obviously biased. The question, though, is whether that justifies breaking with the convention that politicians do not criticise the judiciary. Margaret Wilson is right to suggest that there may be cases that justify a breach of the convention, but this is not one of them.

There are strong reasons for the rule that politicians do not criticise judges, and they should not be departed from lightly: that a case is "unusual" is not enough. The impartiality of the judiciary and its isolation from political pressure is too important a value to be cast aside for political gain. Of course, Helen's argument here is that she was attempting to uphold the impartiality of the judiciary by pointing out a conflict of interest. But there is no reason why this needed to be carried out in the public domain as it has been. Instead, the appropriate course would seem to me to be to seek to judicially review the judge's decision - not to attempt to play the issue out in the media.

Stupid Thing #2

There may be good reasons for opposing fines that increase with income, but, pace NZ First justice spokesperson Ron Mark, the idea that it's inconsistent with "one law for all" is not one of them. As I've pointed out in a previous post:

"equality" is a very messy idea, that can in fact lead you to just about any policy prescription imaginable. It all comes down to the question "equality of what?" To take a simple example, equality could be conscripted in defence of a wide variety of tax regimes depending on what you want to equalise: equality in the absolute amount of tax paid = poll tax; equality in proportion of income paid as tax = flat tax rate; equality in after tax income = 100% tax on all income above $X.

Likewise, equal dollar value fines, fines of an equal percentage of income, or fines that leave people with an equal amount of money after paying it are all "equal". There's a pretty good argument that what you're concerned with here is equal deterrent value, for which income-related fines would seem a decent proxy. Stephen Franks is right to suggest that wealth is a better proxy - but that's not necessarily an argument against income-based fines. If you accept Franks' argument that we don't have the data to issue wealth-based fines, then the fact that they're better than income indexing becomes irrelevant. The question is whether income related fines are better than the current system, which I think there's a good case they are. Suggesting you should pick the worst option because the best one isn't available seems pretty odd reasoning to me.

Stupid Thing #3

Commenting on the High Court injunction issued today to prevent the release of comparisons between New Zealand and British universities, Bill English says:

If the information is found not to have been of sufficient quality to compare New Zealand universities with their British counterparts then serious questions must be asked about the integrity of the processes that have been used... It seems that the Tertiary Education Commission has not analysed their data in a way that is robust enough to bear international comparison. If the data collected for these rankings is not up to scratch then the whole methodology of the TEC is thrown into doubt.

On its face, this might seem fair. But it's not. Notice how there is no substantive criticism of the PBRF methodology anywhere in Bill's comments. He's not pointing out anything wrong with the PBRF methodology, which you'd have thought he'd have had plenty of time to do before now if he actually had any problem with it. Rather, he's suggesting that because we can't directly compare it with the British system, it must, somehow be flawed because it doesn't stand up to international comparison.

As anyone who has any sort of experience with data should know, there are lots of equally valid ways to measure things, that are not necessarily the same: for example, in rankings of research "quality" for example, a great deal often turns on the precise weighting assigned to publication in the very top tier of journals. Change this slightly, and your results can vary massively. Yet there's often no particular reason to think that one weighting is inherently better than another. They're just different. Second, even if you assume (wrongly) that the fact that measures aren't comparable means one of them is shoddy, there's little reason to believe that it's ours. It could easily be the Brits'. (In fact there are a number of areas where the way New Zealand regulation is arguably better than most of the rest of the world, but we lose out for being different.)

Stupid Thing #4

This article in which slate senior editor Dahlia Lithwick calls a recently introduced bill that would allow congress to overrule Supreme Court decisions by a 2/3 majority "dumb", and completely fails to back up here position (Link via the Volokh Conspiracy). Let's be clear, if this Bill somehow managed to pass it could lead to one of the biggest changes in the balance of power between the arms of government in the US ever, and it's far from clear it's a good idea. But it's certainly not "dumb". In fact, it's pretty similar to the Canadian system, which allows Parliament to override judicial rulings made under the Canadian Charter of Rights and Freedoms. (Although some Americans might regard that as further evidence of the proposal's dumbness, I assume most readers of this blog will not.)

As I've argued before, it's far from obvious that courts will systematically make better decisions than democratic legislatures on rights issues. (At the very least it's something that is open to reasonable debate.) And there is certainly nothing in the US Constitution that conclusively says that the courts were intended to be its ultimate guardians - they took that upon themsleves, of their own accord, in Marbury v Madison. On this basis, a proposal that allows a legislative override, subject to a 2/3 majority seems a reasonable way of safeguarding rights. (Bear in mind that achieveing a 2/3 majority is no small feat.) Indeed, it's essentially the same standard as applies to legislative overrides of Presidential vetos (which some argue, in an interesting parallel, were originally intended only to be exercised when the President thought Congress had acted outside its constitutional authority).

Nonetheless, while I am sympathetic to the Bill, I do think there are a number of problems with it. Although not fatal, the likelihood that it would get struck down by the Supreme Court, even if passed by Congress, might make it seem preferable that such a result be achieved by amending the Constitution, rather than ordinary legislation (which suffers from the additional flaw that it could be repealed by a simple legislative majority). Moreover, though I am (obviously) not an American Constitutional Law expert, I suspect there are parts of the Constitution, other than the Bill of Rights, which are better left to the courts to police. Given the choice I might draw the bounds of the override more narrowly.

However, my biggest concern is that, while I think an override power would be better than the current system if you were starting from a blank slate, effecting this sort of change at this point in time runs you into path dependence problems. Some commentators (such as Mark Tushnet) have argued (IMHO convinvincgly) that one of the effects of judicial rights review of legislation has been that Congress has been far more willing to pass legislation that potentially breaches individuals' rights - on the theory that "we don't have to think about it, because if it's wrong, the courts will strike it down". Despite my initial preference for democracy, it seems rather dangerous to entrust a body with this sort of attitude with the task of rights defender. Thus, while I would be inclined to trust Canadian, or British, or New Zealand legislatures with a veto power, I'm not sure I can say the same of the US Congress. (I suspect part of my trust in the Commonwealth parliaments here also stems from the more seculra environments in which they operate, which in my view makes it easier for them to respect rights, but I'd still have qualms regardless.)

¶ 9:06 pm

Thursday, March 11, 2004

ARROGANT. SIMPLEMINDED. DISGRACEFUL: I've generally tried stay out of the name-calling that's gone on in what's passed for a "debate" since Orewa. But this is the only way I can describe Don Brash's refusal to participate in a commission of inquiry on the Treaty.

As OtherPundit points out, there's undoubtedly politics in play here:

Clark desperately wants race relations off the political agenda before the next election — and there's no downside to a forum that any Government can ultimately ignore if the results aren't to it's liking even after setting terms of reference and selected the members. Meanwhile, she looks awfully statesperson-like because nothing screams gravitas like opening an impotent talk shop.

I think the idea that the government could ignore results it didn't like has been conclusively proven wrong by Brash's popularity in the polls. But apart from that quibble, OP's assessment is pretty accurate. Nonetheless, (as I constantly pointed out to opponents of the Iraq war) that something is done partly for the wrong reasons doesn't make it a bad idea. In fact, a royal commission on the Treaty and the race relations debate makes a lot of sense. (And even if the terms of reference suggested by United Future don't, Labour have offered to let National contribute to their final form.)

I can only think of two reasons why Brash would refuse this offer. One is simpleminded, the other is simply disgraceful.

The simpleminded reason is that he's so convinced he's right that he thinks the whole thing is unnecessary. Putting aside the fact that this is coming from the man who said he was willing to front up and debate, this sort of conviction that one's own views are so infallible that no discussion is necessary or desirable is exactly the politically correct attitude that lead us to the point we are at now. As I've pointed out before, even if when you are right, cutting off discussion doesn't make disagreement go away. Any lasting solution to the Treaty/race issue needs to be one that the vast majority of New Zealanders can live with - not just 45%. A commission of inquiry, properly constituted, at least holds out the possibility of that happening. Brash's attitude does not.

The disgraceful reason is that there's politics in play here:

Brash desperately wants race relations on the political agenda before the next election — and there's no upside to a forum that he can't just ignore if the results aren't to his liking, even though he get's to help set the terms of reference and select the members. Meanwhile, she looks awfully statesperson-like because nothing screams gravitas like entering into reasoned debate with your opponents.

If he was really worried about the commission being stacked, rather than just taking the punch out of his election strategy, then he should say he's willing to participate as long as it's impartial and the terms of reference make sense. Then if it's not or they don't he can rightly deride them as such and relaunch the offensive. As Colin James has pointed out, Brash's advantage is that until now he has seemed principled enough to pull off what would otherwise be derided as petty politicking. But when the most convincing explanation for his current conduct is pettiness, (I don't believe Brash is simpleminded), he's likely to end up shooting himself in the foot. He's certainly just lost a massive amount of my respect, and I'm pretty sympathetic to many of his views.

¶ 8:46 pm

Thursday, March 04, 2004

APPARENTLY, THERE'S STUFF HAPPENING IN THE WORLD: Unfortunately, you'll have to go elsewhere to read about it for the next few days. I'm going on holiday. See you next week.

¶ 11:04 pm

Wednesday, March 03, 2004

DUMB QUOTE OF THE DAY: goes to Winston Peters. In the course of offering to support the government (which he seems particularly keen on at the moment) in undertaking "any reasonable action" to help bring down the dollar, Peters pulls out this gem:

The Government has created an internal consumer driven economy based on rising house prices and a retail shopping frenzy while the real economy is being strangled by the high dollar.

And how exactly has it done that? Forced people to buy houses and McDonalds at gunpoint? And does the real economy suddenly not include housing and retail?

Rhetoric aside, Mr. Peters offer dangerously confuses two quite distinct ideas. The first is that excessive exchange rate volatility harms the NZ economy. This seems fairly plausible as a diagnosis, and may have at least a partial cure: getting the RBNZ to more closely emulate the Australian central bank's practice of trying to soften the peaks and troughs of the exchange rate cycle. Although there are undoubtedly tradeoffs to this strategy (such as a reduced ability to control inflation), they may be worth it given our economy's dependence on exports. (The Australian example at least suggests that it can be done without destroyng an economy.)

The second is a very different kettle of fish (and one which Winston, perhaps characteristically, seems far too keen on): the idea that our exchange rate being high hurts our economy, and that government should intervene to keep it down. Actually trying intervene to depress the exchange rate below its market determined value for any sort of extended period is a BAD idea. Doing this would involve the RBNZ buying up increasing stocks of foreign exchange, increasing government debt, and contributing to exactly the deficits Peters seems so worried about in the first place - at least until the point where such a policy becomes unsustainable and has to be abandoned.

¶ 10:57 pm

DON DISAGREES WITH ME: Apparently Dr Brash has vowed not to raise the eligibility age for superannuation, (as I suggested earlier) although it's a little unclear from some of his comments whether he simply means that he would grandparent (forgive the pun) any changes so that they won't affect anyone now over 50 - which seems reasonable. If he means more than that, I'd be interested to hear why. Especially as sounds like he's intent on protecting state pensions rather than privatising them. Means testing perhaps? Or does he think the Periodic Reporting Group is just scaremongering?

¶ 10:29 pm

ACT SLAMS FREE TRADE: Ok, so this is slightly misleading, but I'd always wondered what it felt like to write sensationalist headlines that misrepresented reality. Nonetheless, there is no small irony in ACT deputy leader Ken Shirley advocating caution over free trade with China because it is "a single party Communist state that suppresses dissension and persecutes those who oppose the central regime, [which] does not meet the standard required for formal recognition as a market economy." Despite the qualifier that "trade with the People's Republic of China is important and should be fostered" the thrust of his message is more reminiscent of the Greens than a supposedly liberal party like ACT.

Shirley may have some legitimate concerns here. I just don't know enough about the matter to guess whether allegations of dumping against China are well founded, or simply disguised protectionism. Caution seems a prudent counsel.

UPDATE: Oh, I see No Right Turn beat me to the sensationalism.

¶ 10:20 pm

Tuesday, March 02, 2004

DUMB QUOTE OF THE DAY: Keith Locke:

During today's Question Time in Parliament I gave Helen Clark the opportunity to assure New Zealanders that its security service had not been associated with illegal espionage against the United Nations.Ignoring Parliamentary accountability, the Prime Minister repeatedly said she didn't comment on 'security matters'. It is not as if a denial of New Zealand's involvement would have endangered any legitimate security operation. It would simply have cleared matters up.

To be fair to Keith, this is a little complicated. But he's still wrong. If you establish a practice of issuing denials when you're not involved in something, then that immediately makes any future failure to comment a confirmation (because if you weren't involved you would say so) and thereby endagers legitimate security operations.

¶ 10:59 pm

REDRESSING HISTORIC INJUSTICE: No Right Turn has a couple of good posts on the Treaty today.

The first is on Steve Maharey's (offhand?) suggestion that we should consider time limits on Treaty claims. Like NRT I tend to be more sympathetic to the idea of setting an end date as a goal rather than enforcing it as a time limit. However, I suspect my reasons are somewhat different. To me, imposing time limits would not be wrong because it seeks to avoid doing justice. (To be honest, I'm not sure that "redressing the wrongs of the past" has all that much to do with "justice" at all. This Jeremy Waldron piece I linked to last week should explain why.) But rather, becuase it would be unlikely to achieve it's expressed aim: allowing us to move forward as a society (which inceidentally, is the subject of NRT's next post). Imposing time limits now, especially in the current climate of distrust, could only lead to greater division and tension. Rightly or wrongly, many Maori have become so attached to the oft-derided grievance industry, that forgetting the wrongs of the past is simply not possible.

I once believed that it would be best for all of us if Treaty claims would just go away. In pure economic terms, the entire process resembles nothing more than a massive rent seeking exercise that accomplishes nothing whatsoever productive. (And the incentive grounds for enforcing private property rights violated so long hence is decidedly thin.) Having seen the amount of time some of my whanau have invested in the claims process, I still wonder what they could have accomplished had the same energy and effort been devoted to something "productive" instead. However, the depth of feeling amongst many of these people, and the burning need they feel to have the wrongs against them (at least symbolically) righted, cannot just be wished away. Trying to do so now (especially right now) is likely only to strengthen these feelings, not assuage them.

Moreover, we do have a model of how settling historic grievances can provide a much needed opportunity to many Maori, as this quote (from the Listener via NRT) shows:

Once you get to the end of the rainbow and you get your pot of gold, what do you do? You get a life. You become like everyone else. The thing about the settlement of the claim is that it makes you like every other New Zealander. You don't have any moral high ground. You're equivalent to everyone else. So you get a life and you get on with it.

Some have suggested that attempting to use the settlement of historic grievances to redress socio-economic inequalities is a counterproductive conceptual confusion. If such inequalities are to be remedied, let them be remedied through tradtional social demoractic methods of targeted support for the disadvantaged. I think that such a criticism is misguided: in fact, the settlement process has one important benefit when compared to more traditional redistributive mechanisms. The major problem (at least from a consequentialist perspective) with standard redistributive models is that they undermine the normal incentives associated with private property. Treaty settlements do not (necessarily) suffer this flaw, because they work within a proprietary framework, under which Maori are not "rewarded for failure". The "necessarily" is an important caveat however. If Treaty claims are allowed to go on perpetually, including not only past grievances, but present and future ones, then the incentive structures will change, and the perpetual search for new grievances will undermine appropriate incentives to invest in real Maori development.

In this sense, Steve is right to suggest that there must be an end to the grievances at some point. At some point we must finally say "enough is enough" and put the past behind us. But that can be best accomplished not by imposing time limits, but rather, by doing two things. The first, as NRT suggests, is to set a realistic goal to have claims finished by a certain point, and to back that goal up with resources (not threats). At some point in the future, there should come a time when we can simply say "enough" and most people, Maori included, will accept that. But trying to do draw that line now would be counterproductive.

The second is to make it clear that only past breaches will be considered. Current or future breaches should not be on the negotiating table. Ideally, I think this should include any "appropriation" of the foreshore and seabed. Such appropriation is, in principle, perfectly within the sphere of legitimate government activity, and the appropriate form of redress if we think the government has messed up on this, is through the polls, not through the Tribunal. However, I realise that this may not be politically feasible or desirable at this point, for the same reasons as suggesting a time limit, so perhaps the line should be drawn so as to disallow claims only for breaches post-foreshore.

Doing these two things should be both politically possible (though not necessarily easy) and help to preserve the positive aspects of the Treaty settlements process while minimising the ongoing harm it has the potential to do to our society.

¶ 10:44 pm

Monday, March 01, 2004

DUMB QUOTE OF THE DAY: Me, earlier this morning:

I'm not going to blog today.

Yeah right.

¶ 10:47 pm

AND YOU THOUGHT TAXES WERE TOO HIGH NOW: Stuff reports that Treasury papers presented to the retirement commisioner predict that, even with Dr Cullen's super fund, failure to do more to deal with the rising costs of population aging will leave us facing 10-cents-in-the-dollar tax hikes at some point in the not too distant future.

The Chair of the Periodic Reporting Group follows this up with dire predictions that:

[i]f we don't do something and we are forced to increase tax on younger people to support the expanding number of people receiving NZ Superannuation, those young people will say, `blow this, I'm going to Australia' and this country will go backwards at a faster rate.

While these are probably overstated (other Western countries will have similar problems in providing for their baby boomers, and as this paper tentatively suggests, our own demographics may actually give us a slight advantage over others) he is right to claim that we need to do something.

I might post more on this once I've had the chance to read the full report. But to me, probably the most sensible solution would seem to be to raise the age at which people are able to claim public pensions. Especially as people live longer into retirement, it seems only fair that they work for longer to offset those increased costs. This would likely require something of a shift in attitudes to older workers, who are typically undervalued in today's workplaces, but this doesn't seem an insurmountable hurdle. Probably a greater one is the outcry with which this would be greeted by the potential pensioners deprived of their longed-for freedom from work. Hopefully there's someone around with the backbone to tackle this. Otherwise we could all end up paying for it in the future.

¶ 10:09 pm

THERE'S SOMETHING ABOUT LABOUR MARKETS: Even if I don't always agree with him, I've generally respected Roger Kerr's ability to put the case for free markets coherently and intelligently. So I was somewhat surprised to find his opinion piece in today's Dom-Post (“There’s nothing unfair about labour markets”) so full of flaws.

Kerr argues:

At the heart of the debate about the Employment relations Act and the proposed changes to it is the Margaret Wilson view that ther is 'unequal bargaining power between firms and their staff, which necessitates unionisation, collective bargaining and special rules.

This idea is fundamentally Marxist - Marx saw the world as as a class struggle between workers and owners of capital. But it is easy to show it is wrong, both empirically and in theory.

Empirically, if employers had systematic bargaining power, wages would never rise. Indeed, a wage of, say, $20 an hour would be driven down to $15 then $10 and then to a bare subsistence level. That is exactly what Marx thought would happen.

But of course real wages rose strongly, even in Marx's lifetime, in the developed world, and have done so ever since.

…

What is wrong with the Marx/Wilson theory? It is simply that the adversarial view of employment relationships is fallacious. Firms (buyers of labour) compete with other firms for staff, and workers (sellers of labour) compete with one another for jobs. As in any other market, sellers do not compete with buyers. Bargaining "power" depends on the alternative opportunities available to parties on both sides of the market.

While it’s a lovely piece of rhetorical sleight of hand, Kerr actually does little more than demolish a straw man: equating Margaret Wilson's view of bargaining inequality with Marx's and then trotting out the well-worn refutation of the latter. The problem is that Marx’s view of bargaining inequality is a particularly extreme one, which finds few adherents nowadays, even amongst those rare (and misguided) souls who continue to call themsleves Marxists. It certainly isn’t the view of bargaining inequality that underpins the ERB. Far from predicting perpetually falling wages, it simply predicts that workers will get less than the marginal product of their labour. And as long as that marginal product is rising, that is perfectly consistent with the rising wages Kerr points to.

Kerr's dismissal of the idea that buyers and sellers compete with each other relies on a similar implicit reductio. While there's no doubt that there are co-operative and mutually beneficial elements involved in labour markets, just as there are in any other, it doesn't follow that there is no element of competition. When I bargain with my employer over conditions there is always a point at which my gain is her loss, and her gain is mine. (And this is no less the case when I haggle with a trader in a bazaar.) The point is not whether there is competition, but whether such competition is carried out on equal terms. And it is here that Kerr's argument is decidedly thin. He notes that bargaining power depends on the alternative opportunities available to the parties; but somehow forgets to mention Marx's original argument for inequality in bargaining power, which rested on precisely this point: that workers' alternatives (in Marx's day starvation) are typically rather worse than employers (less profit). Things have clearly changed somewhat since Marx's day - the depleted ranks of the reserve army of the unemployed (with unemployment in this country at a long-time low) mean that in some cases employees do have the upper hand in wage negotiations. Yet there are, equally clearly, some workers - unskilled, un-educated, or immigrants for whom English is a second language - who are particularly vulnerable and do lack bargaining power relative to employers.

Of course, it doesn't necessarily follow from any of this that state intervention is likely to be productive. Sometimes it will be and sometimes it won't. (In fact I have major qualms about much of the content of the proposed Employment Relations Bill, and tend to think that minimum wage laws probably serve to redress much of the inequality.*) But claiming that there is no such thing as bargaining inequality and that there can therfore be no possible justification for state intervention in labour markets seems simply misguided.

* Interestingly, welfare payments may redress a good deal of the rest. Although commonly considered as a pure labour market distortion, such payments may actually improve efficiency in one respect: by giving workers a more favourable alternative to work, their bargaining power is increased. There are clearly other negative labour market effects, but it's not a one-way street.

¶ 9:28 pm

DUMB QUOTE OF THE DAY*: A question asked by the Bioethics council (via Scoop):

It's acceptable to insert human genes into animals if it is for medical research that might save someone's life, but not if it is for commerical gain. Agree or disagee?

There are at least two different ways to disagree with this statement. I might think that genetic modification is fine whether it's for medical or commerical reasons. Or I might think it's evil regardless. So how exactly do they tell what people's answers mean if they disagree? And what happens if it's (heaven forbid) part of medical research by a drug company for commercial gain? What the hell do you do then?

I thought these people were supposed to be smart.

* Today's quote of the day is actually neither a quote, nor from today. Instead it's a paraphrase of a question asked a two days ago. The real question has disappeared from the website now, hopefully because they realised it was stupid.

¶ 12:03 am