In 2007 the PSA and the SFWU started court proceedings and they have finally won. The arguments used to deny these workers the minimum wage have all failed in court. After some negotiations and with the good will of the major employer (IDEA Services) the Government has worked with all parties to craft an affordable transition to a fairer situation. Back pay will be paid by Christmas to many of the workers who badly need this money.

It will cost $27.5 million to cover the back pay and $90 million to pay all workers a staged increase reaching the minimum wage by June 2013. The Government is contributing because IDEA services and other disability service providers couldn’t survive the legal requirement without help. The consensus now exists to do the right thing over time.

The Greens would like to see these workers paid the minimum wage and more straight away but we recognise that the formula developed is a workable solution and an opportunity that needed to be grasped. We strongly support the unions and IDEA Services for their constructive approach and the Government for helping mak this work. There were ugly suggestions about changing the definition of the minimum wage  so that the night shift hours did not have to be changed. However the worst has been avoided and the hourly rate goes from $3.77 per hour for some night shift workers to the minimum wage in incremental steps over the next two years.

I sat on the very short Select Committee and I was very pleased for once to see Urgency used for once for an urgent issue. Congratulations Phil Dickson, the worker who led the charge and congratulations to all involved.  For once the Parliament has used Urgency to be useful to the lowest paid, unlike the Video Surveillance Bill which is a total and utter disgrace!

To add insult to injury, the legislation will be retrospective, to make legal the behavior of the Police over recent times in conducting covert video surveillance without any warranted power to do so.

Even worse, the Police have been consciously breaking the law, as Chief Justice Sian Elias pointed out in her judgement in the Operation 8 case, which saw charges against 13 defendants dismissed. She said: “In circumstances where the police officer in charge of the inquiry knew that there was no authority for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.”

The Police also knew from the 2007 Law Commission report on Search and Surveillance Powers, and three years of parliamentary proceedings on the Search and Surveillance Bill, that they had no legal authority to conduct covert video surveillance.

In attempting to justify urgency and retrospectivity, the Prime Minister has referred to problems with 40 pending trials and 50 Police operations. However, it is well established that for serious crimes the Evidence Act allows for some illegally obtained material to be used, as has occurred in the Operation 8 case, where the Supreme Court has allowed used of the video evidence against the four remaining defendants, charged with being members of an organised criminal group.

This rush to change the law in a week contrasts with the considered approach of the Justice and Electoral Select Committee, which spent two years fine-tuning surveillance powers in the Search and Surveillance Bill which has, for the last year, been awaiting its Second Reading in Parliament.

Covert video surveillance was a major topic of debate in the Committee and the Green Party’s minority report (which I wrote) argued that we should not go so far as to allow covert surveillance involving trespass, for example putting covert camera in someone’s living room. We were also concerned that under the Bill surveillance warrant powers will be granted to a whole range of government departments from Internal Affairs, Conservation and Commerce to the Food Safety Authority.

To now deal with such complex and controversial matters in a new bill, in urgency, is an affront to the parliamentary process.

We have yet to see the actual Bill, but from what we have heard about it so far it is not something the Green Party could support.

As Frog indicated, we knew only that ‘a government bill’ would be introduced under urgency.  At about 10.30pm on Wednesday night, we were presented with one paper copy of the bill,  no electronic version to facilitate distribution to caucus members or our researchers; no supporting documentation, no regulatory impact statement, no evidence in support, and this was ‘graciously’ given only on the basis of keeping the strictest confidence.

We were obliged to speculate about the harm that the bill was intended to remedy and the need for the secrecy and urgency; we were required to second guess what the intent and real purpose of the bill might be, and it was not until about 8.15am on Thursday that we got access by phone to a ministerial adviser who confirmed that our speculation was more or less on track. 

We learned in the course of the debate that the Maori party, as a confidence and supply partner, had the bill  ten days earlier.  (I must say in passing that they made good use of the time – Rahui Katene delivered some very fiery and well crafted speeches opposing the bill , and good on her for doing so!).

I have it on good authority that the Act party, on the other hand, was as surprised as we were by the content of  the bill, and had as little prior warning of it. Indicative of the parlous state of the Nat – Act relationship perhaps?

Despite my direct questions, Labour was rather coy about confessing when they were given access to the bill, which leads me to assume they saw it well in advance of the tabling.

My point in all this is that the process demonstrates that the two old parties are locked into the game of making deals with each other, without making any  attempts to build consensus across the House, which they might otherwise have done had they approached us in a reasonable fashion about the ‘error’ they sought to correct. 

Had we been taken into their confidence about the problem (which they have been aware of  for ten months!) we could well have negotiated a process that would have allowed us to air our misgivings, to draw on appropriate legal advice, and even potentially to cooperate in drafting a piece of legislation that would then have gone through a proper process of public and parliamentary scrutiny and delivered an appropriate outcome. 

We have had an MMP parliament for nearly 15 years – how much more time do these guys need to get up to speed with the ‘new’ reality, and to respect and indeed to utilise the possibilites for the more consensual form of politics that it presents?  Maybe the next generation…?

One comment in terms of the substance of the bill – I repeatedly asked the government during the debate for evidence that since the police stopped retaining youth particulars ten months ago, their task of identifying and apprehending young offenders has been more difficult.  I’m still waiting for an answer, which leads me to suspect there is no such evidence, and so the law change was not only procedurally undemocratic but also unnecessary!

Urgency at this stage of the electoral cycle is not all that unusual, although it is indicative of governments’ failure to adequately manage their legislative programmes.  So only a mild chiding for National from me over that.

What is unusual is that yesterday’s urgency motion included “…the introduction and passing of a Government bill.”

The Government intends to introduce an as yet un-named Bill, and ram it through all stages under urgency.  And they won’t even tell the Opposition parties or the public what its title is or what it is about until it is introduced.

This is the legislative process at its worst.  The Bill may well be something innocuous, closing a legislative loophole or fixing up a previous mistake.  But whether it is innocuous or otherwise, all legislation deserves proper scrutiny to ensure it does what it is intended to do and does not have unintended consequences.

In keeping this Bill secret, whatever it does, the National-led Government is showing utter contempt for democracy.

Update 18 August 2011:   So now we know the Bill is the Policing (Storage of Youth Identifying Particulars) Amendment Bill. It retrospectively validates the unlawful storage of personal information held by Police. National and Labour argue that the need for it resulted from a drafting error in the 2008 legislation. But apparently they have known about it since October last year. So why the urgency now? And why the secrecy? Green MPs didn’t get a copy of the Bill until last night, and it was not publicly available until after the debate on it commenced in Parliament.

The problem with urgency is that it often means that laws don’t receive the kind of scrutiny they should. So it means you get laws with mistakes and laws that do bad things without ever giving the people a chance to influence them.

To be fair, sometimes urgency is just extending the sitting time of parliament just to get through a backlog but using normal processes. Nonetheless, the amount of time parliament spends in urgency can give some indication of how much the governing parties are trying to subvert the usual checks and balances of parliament.

It is great to see Russel’s concerns now being echoed by others in the political arena and the media.  Here’s Labour MP Grant Robertson, last week:

1. By-passing the select committee process should be something that is done in only the most exceptional circumstances. It may be that a different kind of urgency motion should be required for that, with perhaps 75% of the House having to agree.

2. We should investigate whether there is a way of extending the sitting hours of the House in a way that does not compromise the integrity or quality of the legislative process. One suggestion that has been floating around is to allow for the Committee of the Whole House to sit on Wednesday and Thursday mornings when the relevant Select Committee is not sitting. I am sure there will be other suggestions.

And National aligned blogger David Farrar:

1. That standing orders be changed so that a bill can bypass select committee stage only with approval of the Speaker (as is needed for extraordinary urgency).
2. That standing orders be changed so that question time automatically carries on, even if the House is in urgency
3. That the number of sitting weeks be increased, hence reducing the need for so much urgency, from 31 to 33 by reducing the number of two week recesses from five to three.
4. That standing orders be amended to distinguish between “extended sitting hours” which would merely extend the sitting hours on Wednesday and/or Thursday and full urgency (where you specify particular bills, and the House keeps going until they are disposed of)

Today, the NZ Herald joins in:

The copyright law is an especially curious case. It was set aside after being reported back from a select committee last November, and did not seem a pressing matter. All the Government’s rush has done is spread apprehension. A more considered approach would have avoided this. Likewise, there seemed little reason for urgency for the latest Christchurch legislation, other than to establish the Canterbury Earthquake Recovery Authority. The Government had already granted itself wide-ranging emergency powers under law passed after the first earthquake.

Legislation rushed though in this manner has a much reduced chance of being good law. When the select committee stage is bypassed, a valuable chance to iron out problems is removed and opposing viewpoints are denied due consideration. A glaring example of this was the law change introducing national standards in schools.

Well done, Russel, for getting this discussion started.  All we need now is for National to take notice of your concerns. Maybe that will happen now some of their supporters are beginning to share them.

To be fair, sometimes urgency is just extending the sitting time of parliament just to get through a backlog but using normal processes. Nonetheless, the amount of time parliament spends in urgency can give some indication of how much the governing parties are trying to subvert the usual checks and balances of parliament.

In the previous post I looked at this parliament compared to the last one, in tems of the amount of time spent under urgency. Some of those commenting asked if I could post the figures for earlier parliaments also. I asked the library to have a go and this is what they came up with (below).

What is shows is that so far this current parliament had gone into urgency more than under the Labour dominated parliaments of 1999-2008. However, I should note that Labour often pushed the Greens to support urgency during the period 1999 – 2008 but we refused on most occasions. But during the period 2002-2005 United Future were happy to oblige with urgency and you can see it in the figures below where Labour used urgency almost as much as National is using it currently.

It’s worth noting that these figures hide the detail. Using urgency to push the Hobbit law through all it’s stages without select cttee scrutiny in the space of 2 days is different to extending parliament’s hours to consider a bill that had otherwise normal select cttee consideration, but this distinction is blurred in these stats.

Urgency

No other Parliament has come close to this use of urgency in recent times, the closest being during the second term of the Fifth Labour Government which called for urgency 21% of sitting time from 2002-2005.

With very few checks and balances in our unicameral Parliament, it’s vital our already streamlined legislative process is not rushed. Fast law is bad law. Is the problem of boy-racers so bad that we needed to accord urgency to the passage of the Vehicle Confiscation and Seizure Bill?

A quick look back in the history books shows that urgency was first used on July 21, 1903 when Premier Richard Seddon moved that urgency be taken to put the Rotokare Domain Bill through all its stages. Seddon was moving quickly to protect the destruction of native forest by settlers in a “beauty spot” of great significance to Maori. By 12:05am the following day, the law was passed and the “vandalism” halted.

The first recorded use of urgency in New Zealand was for environmental protection. Sadly, it didn’t create a lasting precedent…but Rotokare remains.

Given that this is how our government currently operates, where we get hastily composed legislation, with only minutes to digest it and make a submission, I thought I would get the word out swiftly. The press release says:

Lake, the lead singer from indie/folk/pop band Urbantramper, has announced today that he is to write and record the band’s new album ‘under urgency’. He says that the rest of the band, along with Urbantramper listeners, will have until tomorrow to give feedback on the songs. Lake will then record them later tomorrow evening.

Lake clearly lacked regard for his listeners too. “They have ‘til tomorrow like everyone else. I mean I hinted at this three months ago. They should be able to infer from my experiences over the last while what I’m going to write about.”

Urbantramper listeners are unhappy about the move, saying Lake is only writing for himself. Fansite spokesperson John Kahu is, however, not surprised, “he’s done it before and he’ll do it again. We’re just sad about the music- which inevitably suffers.

It will be very difficult for me to get an informed Submission Guide prepared in the time we have for submissions, so I will confine myself to industry gossip and hearsay.

An insider I spoke to said that in fact, Urbantramper has already completed the new album, called Rise and Ride Toward, and that Lake was only going through the motions of consulting the public. I expect this sort of behaviour out of the National-led government, even Labour sometimes, but not the kiwi music industry.

The other reason mooted for the rushed public consultation is because the band was going on a two-week holiday around the country, which they are billing as a ‘tour‘, probably for tax purposes.

I guess I’m getting old and cynical, but is this a case of life imitating art, or art imitating life?

The Clerk of the House advises that urgency be accorded the introduction and first reading of the Taxation (Business Tax Measures) Bill, the Gangs and Organised Crime Bill, the Criminal Investigations (Bodily Samples) Amendment Bill, and the Sentencing (Offender Levy) Amendment Bill.

So this week we’re going to tax the crims, create curb-appeal police to clean up Wanganui’s ill dressed households on top of Chester Burrow’s fashion police, and we are going to take DNA samples from everyone arrested for an imprisonable offence to profile them against a database, all without proper parliamentary scrutiny. I seem to recall a certain Hon Dr Nick Smith bludgeoning the last government for “rushing” legislation (which had, in fact, gone through a proper select committee process) and calling it un-democratic. It seems the new government is no better.

Tumeke has an interesting take on the DNA bill and an “exclusive” on police profiling here.

NoRightTurn blasts the DNA Bill as a violation of the Bill of Rights Act, here.

RadioNZ has a brief summary here.

What I would like to know is; How the law will differentiate between a law-abiding person  with a gated driveway and a suspected gang house with the same? Are we not about to criminalise both? And what are the enhanced surveillance powers being given to police, ostensibly to fight the gangs? Will they be turned upon other groups that the police think are threatening? Just how are we going to define “gangs”?

The report on the first reading debate can be heard here. (audio)

And as far a taxing the crims, well, populist an idea that it is, is it even remotely practical in the real world? Are criminals as likely to pay their fines on time as anyone else?

I will stop short of damning it all outright, but I wonder if we haven’t traded in the nanny state for Big Brother.

It is this sort of ambiguity that would have been picked up and corrected at a select committee. Ramming this through under urgency is just the sort of activity National cried foul about before the election. (Except in Labour’s case, select committee hearings actually took place.)

Isn’t it too bad that the National government itself isn’t subject to the 90 day fire at will provision themselves?

How on earth can the public engage in the discussion if they can’t get access to the bills. So we’ve scanned the bills and made them into PDFs. Here they are:

Bail Bill

Education Bill

Biofuel Repeal Bill

Sentencing (Offences against children) Amendment Bill

I think an electronic version of the ‘fire at will’ bill is available but I will post it here anyway.

Fire at Will Bill

Allowing just any Tom Dick and Harry to appeal something [to the environment court] is a recipe for endless debate and dispute by people that are just anti-progress and anti-development.

Well Act and its developer constituents might not like it but some of us care about the physical environment and don’t want every developer to be able to build every abomination they can fund.

Many environmentally destructive developments get given the nod by compliant councils and the Environment Court is the last hope for many community groups and regular citizens (yes those Tom Dick and Harrys that Rodney disparages).

And in a society governed by rule of law, the citizens should be able to appeal the decisions of council hearing panels to the courts. But I guess all Act’s talk about ‘rule of law’ is only when it suits them not when it might stand in the way of making a buck at the expense of the environment.

What this means is that MPs are going to have to vote and debate bills they will not see until it is tabled. This gives the first opposition speaker ten minutes to read the bill before they have to speak on it. And as the Greens are the fifth speaker, it gives us 50 minutes from getting the bill to speaking on it.

Then there is no select committee process for the public to make submissions on the bills.

This is not a democratic way to make law and it is not a way to get good law.

UPDATE – Gerry made the bills available just before the House rose at midnight. So we’ll have a few more hours to read them before we debate them.

The bill replaces the tax cuts voted in by the last parliament. The tax cuts voted by the last parliament haven’t all come into force yet but if left alone would roll out over the next few years.

The Nats tax bill replaces the last bill and reduces the tax cut of low earners while increasing the tax cuts for those earning upwards of $100,000. Yep, you heard it right. The Nats bill means that low income earners will pay more taxes than if the parliament did nothing. And it means that high income earners pay less tax.

To test this proposition, Michael Cullen moved an amendment to the effect that if any taxpayer found themselves worse off under the Nats tax act then they could get their money back. Bill English as Finance Minister put in a financial veto – that is the government can block an amendment if it has a significant fiscal impact – saying that it would cost $750m if Cullen’s amendment got up. What English was admitting was that taxpayers will be $750m worse off under Nats tax bill then under the existing tax cut law.

Then bizarrely English withdrew the financial veto so the amendment could be voted on. National, Act, Maori, United voted against the amendment, effectively admitting the truth that their tax bill take tax cuts off the low paid.

National and Act voting for such a bill makes sense, but the odd thing is that the Maori Party would vote for a bill that takes money off the poor and gives it to the rich. Sitting in the House tonight, National kept a very close eye on the Maori party. Rahui Katene was given very close attention by Tau Henare.

I think the Nats want to rush this through so that people won’t realise the true situation. Most taxpayers will get a tax cut next year and will think National did it. They won’t realise that they were going to get a tax cut anyway and if they are a low income earner they would’ve got a bigger tax cut.

For the Greens there are two key principles at stake with the ETS. They are fairness and urgency. The Bill as drafted, even before the government’s recent backtracking on timing, is deficient in both.  Half our emissions (agriculture) don’t enter the scheme till 2013. Big business is protected against trade competition, but not small and medium business. Because none of the allocation issues are even signalled in the legislation itself, business is both complaining of uncertainty and crying wolf about how it will send them broke, just to spook the Government. Just look at Rio Tinto – it’s no accident their smelter is located at a place called Bluff.

Problem is, with no guidance in the legislation to what allocation plans are supposed to achieve, the next government, regardless of who it is, is pretty much free to rig the system for their friends without any oversight from parliament.

This is grossly unfair to businesses and households, who genuinely do need certainty in order to plan investments. It also means there will be furious lobbying by vested interests and gaming and special pleading.

Remember why we’re doing this? It’s to get a price signal for carbon into the market so that businesses and individuals begin to change their behaviour in ways that mitigate climate change. We don’t even need to get a huge signal into the market all at once. But we do need to allocate the costs of carbon fairly amongst those who use and abuse it the most. This is why I continue to call for an earlier entrance for agriculture and transport so that our foresters have someone to trade with, and so that the effort is seen to be shared across the economy. Even if this means that they come in gradually. We don’t need to bring transport in at 100% in 2009. But they should pay for at least some fraction of their emissions from that year.

Back in the mid 1990’s, when Simon Upton asked whether we should have a carbon charge or an ETS, I argued for a carbon charge, because this at least gave business certainty of price, even if there was no certainty of environmental outcome. And I knew that businesses don’t invest in new technologies if prices are uncertain.

An ETS should in theory give certainty of emissions reductions, but not of price. However, because this ETS has no cap, with potentially unlimited credits from overseas, it offers neither certainty of price nor of reductions.

In conclusion, we need more sectors in the market, earlier, to get faster action and to allow trading to begin. Having all sectors in earlier, even at lower exposure rates, begins to send the price signals the market needs and ensures a fairer spread of the costs. It would also begin to meet the urgency test. After all, Pachauri says that if we haven’t taken action by 2012, it is too late. Please take a few minutes and listen to the radio interview linked above.