There'll be a lot of silliness before National's foreshore and seabed law gets passed. Here's my contribution.

I've largely been absent from the blogosphere for a couple of weeks - go on, did you notice? - due to a combination of actually having to do some work and moving house (with concomitant, albeit temporary, loss of broadband access).

But something has happened that so enrages me that I cannot allow it to pass by in silence. So I'm back.

During the Commitee stages of the debate on the Marine and Coastal Area (Takutai Moana) Bill - the replacement for the Foreshore and Seabed Act that will rectify that injustice without doing much at all differently - Act's Hilary Calvert made the following comment:

"'Tikanga' is an 'Alice in Wonderland' word. It means whatever the Queen - I think it was the Red or White Queen - said it would mean, no more and no less."

Other commentators both more incisive and quicker off the mark than I already have drawn attention- see here - to some of the more unusual aspects of Ms Calvert's speech, or have - see here - pointed out that her argument that "Tikanga" has no meaning independent of the claims of the person using it is not strictly accurate.

Further, there's something a little strange about an Act MP complaining bitterly about proposed legislation importing controversial and unclear terms into our law when her party concurrently is trumpeting its success in having the Regulatory Standards Bill voted through to select committee. This latter legislation - discussed in more detail in this guest Pundit post - would require every other piece of legislation to be measured against this list of ... somewhat controversial and unclear general principles. A little uncertainty to cure a lot, perhaps?

But it's not the historical silliness that I mind. It's not the rather hypocritical attitude towards uncertainty in other people's legislation, as opposed to your own. It isn't even the somewhat patronising (dare I call it anything stronger?) assumption that Maori customary practice cannot possibly found legal rights and obligations, as opposed to the customary practices of business folk which is something often referred to in matters of contractual interpretation or the like.

No - all that is ephemera, as passing and insubstantial as the foam on the foreshore.

The real blood boiler here is the attribution of the timeless conversation between Alice and Humpty Dumpty - contained, incidentally, in her adventures Through the Looking Glass, not in Wonderland - to the Red, or maybe White, Queen. Here is the full context, so you can marvel in its cleverness:

"`I don't know what you mean by "glory,"' Alice said.

Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'

`But "glory" doesn't mean "a nice knock-down argument,"' Alice objected.

`When I use a word,' Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'

`The question is,' said Alice, `whether you can make words mean so many different things.'

`The question is,' said Humpty Dumpty, `which is to be master - - that's all.'"

So, Hilary, for shame. How can anyone claim to be a lawyer who does not know the correct provenance of this absolutely basic legal text? And an Otago trained lawyer, too!

Comments (23)

by The Falcon on March 16, 2011
The Falcon

Well regardless of whether you agree with her opposition to the new F&S Bill, you will enjoy Calvert's hilarious filibustering:

http://legislation.govt.nz/sop/members/2011/0217/latest/whole.html#dlm36...

New subclause (1A): to insert after subclause (1) (after line 37 on page 49):

(1A) For the purposes of this section, marine mammals includes the Mesoplodon bidens Sowerby's Beaked Whale.

New subclause (1A): to insert after subclause (1) (after line 37 on page 49)

(1A) For the purposes of this section, marine mammals includes the Mesoplodon species ‘A’ unamed Beaked Whale.

New subclause (1A): to insert after subclause (1) (after line 37 on page 49)

(1A) For the purposes of this section, marine mammals includes the Mesoplodon bowdoini Andrews' Beaked Whale."

by Deborah Coddington on March 16, 2011
Deborah Coddington

Most Act MPs hate Maori culture - why else applaud Brash's speech bemoaning karakia? It has become a party which no longer upholds property rights - witness its opposition to this legislation, and its "trumpeting" of the Regulatory Standards Bill which will trample all over property rights all for the common good. This latest MP, Garrett's replacement, is hugely ambitious, judging by her speech to the conference, but breathtakingly ignorant. However, I don't think you can hold Otago responsible. Somehow she must have just slipped through.

And yes, I did miss you Andrew.

by william blake on March 17, 2011
william blake

Aw.

by Claire Browning on March 17, 2011
Claire Browning

did you notice?

An unlikely story, all round. I saw you loitering round the Dim-Post, more than once ...

by Claire Browning on March 17, 2011
Claire Browning

Aw.

Do you need me to translate that for you, Deborah?

by Deborah Coddington on March 17, 2011
Deborah Coddington

Yes please Claire, t'would be helpful.

by Chris Webster on March 17, 2011
Chris Webster

Andrew:

Hilary's tikanga is racism and ignorance - both of which she displays - crudely.

And there's really only one remedy for which the Queen of Hearts is famous - off with her head!

 

 

by Andrew Geddis on March 17, 2011
Andrew Geddis

Falcon,

Heh ... that's actually pretty clever (and quite funny).

Deborah,

Thanks - nice to be back. I'm a bit uncertain, though, what you mean when you say "the Regulatory Standards Bill [...] will trample all over property rights all for the common good." Given that Act (and the Regulatory Responsibility Taskforce behind this measure) say that the intent is to strengthen property rights, this would be (at the least) an unintended consequence!

Claire,

The Dimpost is just a place to visit. This is my tūrangawaewae.

by Claire Browning on March 17, 2011
Claire Browning
Aw.
by Deborah Coddington on March 17, 2011
Deborah Coddington

Andrew: "should not take or impair property unless it is in the public interest and full compensation is made"

So, if I understand Huang's essay correctly, this enables further, beyond the Public Work's Act (which is bad enough), the nationalising of private property. Further, because the PWA does not cover the 'goodwill' of a business.

Sure, compensation will be paid, but compensation is already taken in the form of taxes, and two wrongs don't make a right, if you like. And I take the view that a private property owner, for instance a home-owner who happens to live in the path of the proposed Kapiti Expressway, has the right to live there undisturbed and in peace and should not be forced to sell under the Public Works Act. Nor under this new piece of regulation, should anyone be forced to surrender the goodwill of a business just because a new regime comes into power and decides, for moral reasons, their enterprise should be illegal.

If Act really believed property rights were sacrosanct, they would put their energy into guaranteeing that under the Bill of Rights.

by The Falcon on March 17, 2011
The Falcon

Jeez Deborah, I realise you're following the Chris Trotter formula of "one column praising my side, one column criticising", but you're stretching it here. Look at the 5th amendment of the US constitution:

http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Consti...

"nor shall private property be taken for public use, without just compensation."

Even the original text of the US constitution accepts that, if just compensation is paid, private property may occasionally be taken for public use. I'm far more concerned about the numerous times when governments take things without any compensation.

by stuart munro on March 17, 2011
stuart munro

 "should not take or impair property unless it is in the public interest and full compensation is made"

just because a new regime comes into power and decides, for moral reasons, their enterprise should be illegal.

Perhaps you feel that this extends the powers of government too much, but it is a perfectly ordinary pattern, and consistent with the assumption that a new business is permitted unless it proves to be problematic.

Those businesses that prove troublesome - party pill purveyors for example - may find themselves closed down if a public interest argument can be made against them. It's not a matter of simple moralising,  just straightforward societal trial and error.

It has been suggested that for some risky and difficult to regulate activities, like the creation of derivatives, that possible new products should be expressly defined, so as to avoid problems like the bundling of US subprime mortgages. Such a regime might seem onerous - but it would make the protection of goodwill of specified businesses practical.

by nommopilot on March 17, 2011
nommopilot

"It's not a matter of simple moralising,  just straightforward societal trial and error."

Listen buddy, Shower flow is a moral issue, cutting benefits is not social engineering.  On my planet...

by Tim Watkin on March 17, 2011
Tim Watkin

You make me feel all warm inside, Andrew... And you're right to be protective of one of the greatest tracts of writing in the English language.

Deborah, I've got to ask, re this statement:

Nor under this new piece of regulation, should anyone be forced to surrender the goodwill of a business just because a new regime comes into power and decides, for moral reasons, their enterprise should be illegal.

Does that mean we can't learn a lesson and change our minds? Or let new science teach us that something ain't healthy or wise? Once legal, always legal? I mean, what about the slave business?

Or am I misunderstanding?

by Deborah Coddington on March 18, 2011
Deborah Coddington

Oh good point Tim re the slave business and property rights - you own your own body! You caught me out there. I was only looking at it from the other angle, ie, criminalising prostitution. So how would the Act Party marry that property right with decriminalising drugs? That is, you have the right to put into your own body whatever you like?

by Berry Zondag on March 18, 2011
Berry Zondag

@Deborah: while you "own" your body, you might wonder what "inalienable" means, as in "inalienable rights".

One might argue that you cannot alienate your body (i.e. hand over the "property rights" to it to someone else, or slavery), but that doesn't go as far as puting into it whatever you like or approve (prostitution and use of drugs are in that category).

by Chris Diack on March 21, 2011
Chris Diack

Oh dear.  Deborah seems terribly terribly confused about the RSB.  I guess that's what happens when one lacks research capacity one simply cannot cope.  Have a conflab with the Hubby - if one can access the wattage for free for a once over why not use it.

And to attack someone for graduating through a lapse of standards from a fine NZ university raises the issue of one's own graduation and Alma mater.

As to the faux concern about the principles in the RSB being novel or uncertain that's a bit odd most are derived from the common law.  One can disapprove or approve of them but they are not that uncertain.   The application in particular fact matrix might be open to debate but that is the case with all principles or maxims really.  And overtime the common law would provide guidance.  In fact the RSB principles are miles more certain than Palmer's SOE Act principles of the Treaty of Waitangi in 1986 - the inclusion of which he verbally assured cabinet was merely symbolic and would not substantively alter our law.

The Maxim paper's real beef is some of RSB principles offend their conservative religious based communitarianism.  In that, these particular conservatives share common ground  (or is that good) with old lefties like Andrew.  As from the comments above Andrew's concerns are really springing from a class based analysis (nasty capitalism nice tikanga) the Maxim one is primarily moral..... yip sex.

Regarding Andrew's main point he misses the target.  ACT's problem with the CATMB isn't primarily about the uncertainty (although there will be plenty of that) but rather principle - it was a common law property rights issue which should have been heard in the Courts under their common law jurisdiction as a customary rights and customary title issue.  Thanks in part to our Geoffey the NZ Courts have some skill in working through these sort of issues (not public policy or political issues at all) just like they will take the RSB principles in their stride.

 

by Andrew Geddis on March 21, 2011
Andrew Geddis

I think you'll find, Chris, that the thing which unites the Maxim Institute, Richard Ekins (who wrote a guest paper for the Institute, which isn't the same as being a part of the Institute or speaking for it) and myself is a profound disquiet at shifting policy questions away from elected, accountable individuals to unelected, insulated individuals. It's got nothing to do with whether, substantively, the "principles of regulation" are good or bad.

So, for all your championing of this mythical, golden "common law", you might want to address the basic democratic legitimacy of this extension of the judiciary's power over the executive and legislative branches? Or - why do you hate democracy and love Colonel Ghaddafi so much?

Oh - and as for "to attack someone for graduating through a lapse of standards from a fine NZ university raises the issue of one's own graduation and Alma mater" ... surely that would be as silly as judging an entire political party on the behaviour and character of an individual MP forced to resign? Something I'm sure you'd agree would be entirely unfair, no?

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