To the New Zealand Council for Civil Liberties AGM November 2007

I never really noticed when the New Zealand Bill of Rights Act (NZBORA) was passed. I didn’t really get interested in the law until about a year later. I discovered the benefits of knowing your legal rights when dealing with police harassment – something that was at that time a pretty regular part of life.

In fact as a young dreadlock Rastafarian there was about a 50/50 chance that I would be stopped and questioned if not searched by the police any night I went out. Because I didn’t have a car I’d walk into town and back to go to a gig. This was clearly a provocative and threatening act.

The searches were always conducted under the search without warrant provisions of the Misuse of Drugs Act – described by Mike Finlayson as the crescent spanner of the police arsenal. One size fits all.

I mention this in starting because civil rights is an issue that can become very abstract. For some people it’s like we are talking about some PC theory that is just another way of tilting the legal system against victims to the advantage of offenders. Actually for me civil rights are very here and now – they are about protecting ordinary people from arbitrary abuse and harassment by the arms of the State.

My lack of awareness of the passage of the Bill of Rights was perhaps not entirely due to lack of attention. The NZBORA was relatively unheralded among the general public I think, derided even as ‘legislating by bumper sticker’ by some commentators of the time. Once it became evident that there was not the Parliamentary will for an entrenched Bill of Rights, or for justiciable protections against legislation that breached the Bill of Rights, a number of people took the view that a Bill of Rights enacted as ordinary legislation and explicitly subordinate to other legislation would have little impact.

Looking back that does not seem to be true. As my interest in my own legal protections grew I did notice and celebrate some early decisions of the Court of Appeal under Lord Cooke that upheld the right to be free from unreasonable search and seizure and the like that seemed to my untrained eye to be significant departures from the past.

Philip Joseph describes the NZBORA as an integral part of our jurisprudence and says it represents one of the major legal developments of the modern era. It clearly has been important, although how judicial methodology around it will continue to develop is up for debate and there are indications that a retreat from some of the progressive high tide marks of the past 17 years is underway.

The Shaheed case is one example, where the Court of Appeal in 2002 abandoned the decade old prima facie rule of exclusion of evidence obtained by the police in violation of the Bill of Rights. A court must now decide if exclusion is a proportionate response to the specific breach.

In considering the Evidence Act recently in the Justice and Electoral select committee we did discuss this issue, and I sought to reinstate the prior position for a prima facie exclusion, fearing that this significant weakening of the most effective sanction against such breaches and police abuse of their powers simply encourages improper use of the powers of search and seizure. Unfortunately I failed to convince the majority of the committee.

The Hansen decision provides another example. While I welcomed the judicial indication that the reverse onus of proof of guilt on the presumption of supply is in breach of the Bill of Rights, I had not fully appreciated some of the other implications of the decision.

Claudia Geiringer gave an analysis of the methodology used in arriving at that decision at the conference in honour of Sir Kenneth Keith in August this year. She cites the comment of the Chief Justice that the approach taken by the majority (which was to refuse to engage in the requirement of clause 6 that an interpretation consistent with the NZBORA is to be preferred until after considering a proportionality consideration under cl 5) risks eroding the common law method and eroding fundamental human rights. Geiringer agrees and expresses concerns about the long term implications of that.

I’ll talk more about Hansen shortly in relation to the reverse onus of proof in relation to drugs supply charges and the right to be presumed innocent until proved guilty, but let me add that the Misuse of Drugs Act provides a number of examples of problematic provisions. In particular the search without warrant powers under sections 18 and 19 provide in my view the most draconian search powers in the police arsenal and the most widely abused.

I was extremely disappointed with the way that the Law Commission’s report into search and seizure dealt with this issue. They claim to have set out to find a balance between the competing demands of protecting rights while recognising the need to investigate and prosecute crime, and in many places they did find a reasonable balance. What disappointed was the bland assertion that search without warrant powers are somehow appropriate for drugs because it is in the public interest to ensure that drugs do not circulate in the community! I guess I expected more from the learned commissioners.

The second area I wanted to discuss is section 7. The Attorney General is required to report any apparent inconsistencies with the Bill of Rights in legislation introduced into Parliament to the House. Well, the Hansen case has had the effect of ensuring that the recent BZP amendments to the Misuse of Drugs Act have failed their Bill of Rights vet, due to the presumption of supply issues. Of course that won’t prevent their passage.

I have to say though that the Attorney General’s advice to parliament has in my view been totally inadequate and sometimes arbitrary in a number of cases.

Let’s take as one example the Immigration Act. This provides for classified evidence to be used in proceedings – evidence that the defendant and their counsel may not see. They may, if lucky, get a summary of the evidence. This passed a section 7 report.

The Proceeds of Crimes bill currently before Parliament allows the Crown to take a second bite at a suspect by, after failing to secure a criminal conviction, seizing their assets at a civil threshold of proof. It allows the Crown to freeze the assets of a suspect and explicitly prohibits them from using any of those assets to fund a defence, forcing them to rely on legal aid. All here would be aware of the dissatisfaction over legal aid rates and allocation to the degree that a number of senior counsel now refuse to do legal aid cases.

That bill got a clean Bill of Rights vet, as did the recent Suppression of Terrorism amendments.

Compare that to Diane Yates’ bill to require health warning labels on alcohol containers. THAT was a breach of the Bill of Rights according to the Attorney General.

I think that there is growing Parliamentary unease on this issue, to the extent that select committees have increasingly been asking for the actual legal opinion that these vets are based on, and for independent legal advice. One of the developments that I would very much like to see is greater transparency around such opinions.

Part of the problem is that any finding is inevitably an opinion, given the qualifications inherent in section 5 around justifiable limitations on those rights. It is proper for Crown Law advice to the Attorney General to indicate areas of prima facie breach and perhaps to discuss arguments for and against their justification. What they are currently asked to do is make a decision, and they are not necessarily in a good position to do so – especially since there is rarely any testing of that advice. It is only where cases such as Hansen have provided a pretty clear judicial steer (and that on existing law) that they are able to adequately fulfil what they are asked to do.

Lastly in relation to the Attorney General’s advice is the more fundamental problem that Parliament will simply ignore such advice even when well-founded. The so-called Boy Racer laws are a case in point, where parliamentarians from a number of parties proudly proclaimed their contempt for the Bill of Rights and then a majority voted to deliberately pass law that breached it.

This is also likely to be the case for the Criminal Procedures Bill, which introduces double jeopardy and majority verdicts in juries.

The problem is the notion of Parliamentary sovereignty. Again Philip Joseph, writing on the submissions to the original white paper arguing against the power of judicial invalidation of statutes, indicates that the main argument referred to Parliament’s democratic mandate – that MPs are democratically elected. Judges, submitters claimed, are neither accountable nor representative.

“The debate” he says” failed to rise to the intensely philosophical questions judicial review posed”. Geoffrey Palmer, the Act’s sponsor, rather more bluntly, called the arguments against the White paper bill ‘grotesque’.

Judging by Michael Cullen’s arguments for the notion of parliamentary sovereignty when publicly debating with the Sian Elias a year or two ago, the argument has not progressed much further, at least on one side of the debate. I did think that the Chief Justice displayed rather more subtlety in her argument than the Attorney General

The third and last area I’d like to touch on is about one area I see really needing a proactive BORA approach. That is the rights of young people in relation to schools.

Section 27 asserts the right to justice. Young people are often denied any semblance of justice under disciplinary proceedings by school boards. I have heard of numerous cases where young people are accused of some disciplinary offence and denied basic rights at disciplinary hearings, and of course this was reinforced by a recent High Court case in Auckland.
This is especially important in light of Chief Youth Court Judge Becroft’s comment that the most useful thing we can do to address youth offending is to keep young people in education.

In this context, the Green party has been pushing for a more accessible review tribunal that can look at these kinds of issues to check both for fairness of process and proportionality of punishment. We will continue to push for an Education Review Tribunal to try to get fairness for young people in these matters.

Let me end by simply saying that I can’t predict the next ten years for the Bill of Rights. What I do think is that it is only by taking up the Bill of Rights and wielding it that we will move the agenda of human rights and civil liberties forward.

Speech to the Victim Support Conference, 12th October 2007

First of all let me thank you for the opportunity to speak to you today, and let me thank you for the work that you all do to support and assist victims of crime - people often in an extremely vulnerable position as a result of offending against them.

Despite efforts by people such as yourselves, though, I think it is fairly clear that complainants and victims need to be much better recognised and supported in a number of ways within the criminal justice system.

My own thinking on this begins with a basic question. What is justice? Well, it’s pretty straightforward. Justice is about fairness. It’s about treating others fairly, and in relation to dealing with crime it’s about ensuring a fair outcome.

It’s obvious to me that a fair outcome must firstly include the restoration of the victim, as far as possible. It must include a consequence for the offender which incorporates elements of both punishment and preventing further offending. Ideally that should be driven by genuine remorse. And it should be fair in the eyes of the community as a whole.

I do believe most people recognise justice being done when they see it.

However the common notion of justice, of fairness, is not what drives the justice system. There the focus is on procedural correctness, on proving technical guilt and then sentencing offenders.

In sentencing policy we seem confused about whether we are trying to punish, contain or rehabilitate and so don’t do any of then particularly well. As a result of that confusion, and the complexity of sentencing, many people in the community do not often see sentences received as fair.

As a result the victims’ rights agenda has been confused by some as all about tougher sentencing policy. In the absence of evidence that tougher sentencing actually reduces offending, the tougher sentencing lobby has cast their campaign as one supporting victims. The implication is that the purpose of tougher sentencing is to make victims feel better.

Well first of all I’m not at all sure that most victims of crime would agree with all the objectives of that campaign - which seems to now include the death penalty at some time in the future, judging from comments today by the Sensible Sentencing Trust.

Of course victims have an interest in sentencing – and victims have argued for both longer and shorter sentences in their own cases at times. Sentencing should include elements that contribute to the restoration of the victim, such as reparation. The primary aim of sentencing though must be to reduce reoffending. It’s about protecting the interests of wider society.

As I said before, sentencing should be able to be seen by the wider community as fair, to be appropriate, to fit the crime. Partly that’s about expanding the options for judges so that more creative sentencing can be applied, and that’s what the recent sentencing amendments have done, but it’s also about people having the information to accurately evaluate the case.

We know that surveys demonstrate that people consistently overestimate levels of crime, especially violent crime, in society and also underestimate the typical sentence given for violent offences. Games like “you be the judge” which the Victorian Sentencing Council has developed to demonstrate how sentencing works, show that despite criticisms of sentencing length, ordinary people would usually give very similar sentences to what judges give when apprised of all the facts of a case.

Having said that, sentencing is only one thread. I don’t think we do it well in this country, but we expend a lot of energy talking about it. What we don’t as a society spent a lot of energy talking and thinking about is how the system could better restore victims of crime to well being.

It’s often said that the system is set up in favour of the offender not the victim. I don’t think that is precisely accurate. The problem is that the system has evolved to meet the needs of its inhabitants – the judges, counsel for the prosecution and the defence, the registrars and court staff. Everyone else is kind of like an extra, the only ones in the play that don’t have a script.

Offenders do get some recognition. Since the enlightenment there has been an evolving focus on what constitutes a fair trial, to try to guard against wrongful conviction. Of course that has not prevented wrongful conviction, but has reduced them. It is probably largely those procedural safeguards that some victims perceive as an “unfair advantage to the criminal”.

I do not see the right to a fair trial as incompatible with recognising victims’ rights. To me they are about different things. We cannot, in seeking to better recognise victims of crime, undermine the safeguards in our justice system that prevent innocent people being wrongfully imprisoned.

How do we better recognise victims? The Justice and Electoral Committee initiated an inquiry into victims’ rights last May. The terms of reference are:

To examine the place of, and outcomes for, victims of crime and their families in the criminal justice system by:
• reviewing legislation affecting victims, including the Victims’ Rights Act 2002
• considering the terminology used for victims
• identifying services available to victims
• examining the concept that criminals owe a debt to individuals as well as society, including issues of compensation and reimbursement of costs
• examining the effect of the current court system on victims, including the role and status of complainants during court proceedings and the adequacy of court room layout and facilities
• examining the place of restorative justice programmes in the criminal justice system and their impact on victims
• considering any other relevant matters.

That inquiry arose out of an agreement that the Government made with the Green Party in 2005. In return for support over the Prisoners and Victims Compensation Act, the Government agreed, among other things, to develop an Independent Prison Inspectorate and to conduct an inquiry into victims’ rights.

In the course of that inquiry the committee heard from a large number of submitters, including your own organisation, and also visited Victoria where we saw some impressive developments centred around their Victims Charter.

That inquiry is still under consideration and so I am unable to tell you what the report will say. I am expecting it to be completed in the next few months.

But I can talk about the issues raised by submitters. They come under 8 headings:

• financial support (including compensation)
• services for complainants and victims
• police and court procedures
• courtroom layout
• sensitivity towards complainants and victims
• organisational processes and policies
• information and communication.
• the adversarial system as a whole, including inquisitorial justice and restorative justice

Compensation
A number of people have argued that there should be better compensation for victims. They say, and I agree, that victims should not be financially disadvantaged by crime.

ACC does, of course, provide some compensation to people who have suffered physical injury, or mental injury as a result of physical injury, and to the families of people who have been killed. It does not compensate for property loss or damage or for mental trauma caused by injury to another. I’d be very interested to hear any comments from you on how ACC fulfils their role in this area.

A number of people said that reparation should be paid by the Crown and then collected from offenders, rather than relying on victims to have to chase reparations. I think that is worth supporting, although whether the government is prepared to bear the cost will be the issue. Certainly we would see more reparation orders being made if this were the case, so it is hard to estimate what the cost would be, but I think it should be supported.

Services
Many people were critical of the level of service available to victims, in that services seemed to stop at the conviction of the offender. So there was a call for a more accessible, comprehensive, and sustained system of support services for victims, which should continue as long as they were needed. These could include advocacy, liaison, counselling for as long as needed, better information etc.

Can I add that the support of Victim Support was acknowledged by many.

Police and Court
People felt poorly treated by police and court procedures. A number told us that they felt that the interests of the Crown had taken precedence, which of course is how the system is set up.

There was particular concern about Victim Impact Assessments, with people feeling pressured into changing their statements. There is a tension between requiring judges to have regard to victim impact statements, in which case they need to be constrained as to what they can say same as with general rules of evidence, or they can be relatively unconstrained but judges will them pay less attention to them in sentencing.

My feeling is that the latter might be preferable in that it may be more important that victims get to express themselves without constraint. Alternatively, it may be possible to develop a system where victims can opt to either do a formal victim impact statement or an informal address to the court.

Courtroom layout
Courtroom layout was a significant concern. This is in contrast to what the committee saw at the Neighbourhood Justice Centre in Yarra, Victoria. This was a purpose built facility with separate entrances and room for complainants and their supporters and a range of services available on site. I believe that we can learn a lot from that example.

Recognition of and sensitivity towards victims
There is just a strong need for better understanding of victims of crime in general, throughout the judicial system. This goes hand in hand with a need for better procedures and processes within all the governmental agencies that complainants and victims of crime have to deal with as they progress through the system. It’s about recognising the needs of complainants and victims and placing a high enough priority on them.

The adversarial system
Lastly, a number of people said that the real problem is the nature of our adversarial system, which turns justice into a game played between lawyers with judges as ref, and which has lost its focus on justice or truth. Exploring inquisitorial models was suggested as a long term solution. More immediately, support was expressed for expanding and enhancing access to restorative justice so that it could be used where appropriate. Lack of access was the major problem, of course acknowledging the need to ensure that restorative justice is used where appropriate (and it is not always appropriate) and that facilitators are well trained and supported.

Coming out of that there are a number of areas that needs some attention it seems to me.

Coordination
In Victoria the Victims Support Agency plays a key role in overseeing all matters related to victims issues, including coordinating and monitoring agencies that complainants and victims may be required to deal with, helping develop policy, and handling complaints. It seems to me that in NZ we have some good things happening but a central coordinating body might help to ensure there are no gaps and to advocate for Victims Rights more generally in government.

This would not be a replacement to current services, but would support and enhance what’s already there.

Compensation
It would be helpful to have something that focuses on recompensing victims for their loss. ACC does provide compensation but it is limited as I have stated.

Comprehensive information
Complainants and victims on the criminal justice system get different bits of information on their rights, and the services available to them. Comprehensive and authoritative information should be available through all the agencies that they have to deal with.

Some agencies currently give this a low priority. For example the police have acknowledged that while they do have forms available, in some stations they are below the counter and you have to know they are there to ask for them.

It’s interesting once again to look at Victoria where the police have established a Victims Advisory Unit, with a high ranking officer in charge, which has given these issues real momentum. They have initiated training and simple procedures to ensure that complainants and victims are treated with respect.

Of course it is difficult for police. We expect them to be hard arses on the one hand and then demand compassion and sensitivity on the other. It is a challenge but with good procedure I don’t think it’s insurmountable.

There are a number of other specific issues, like whether involvement in the Victim Notification scheme should be opt in or opt out. I think I favour an opt out approach, as it may be a bit much to expect people to decide to opt in early on in the process. Also issues like whether victim impact statements should only be taken by accredited people, and what role the complainant should have in court. That last is a more complex debate but one worth having.

There are various gaps in service delivery, and the government has initiated a review of services for victims of serious crime. I welcome that. One thing is certain, any changes made in this area need to be preceded by good consultation and discussion with agencies such as yours. This will ensure that any well intentioned changes do not cut across the excellent work you already do and are informed by your considerable expertise in this area.

Opening address at the Waste Minimisation Legislation Conference, 24th September 2007

The first question that it is appropriate to ask at a conference about waste, is why bother about waste at all?

There are, of course, numerous reasons. Let’s begin with the environmental ones. Landfills contribute about 3% of New Zealand’s greenhouse gas emissions, mostly in the form of methane from anaerobically decomposing organic matter, such as kitchen waste, greenwaste and paper. This same organic matter is also a significant source of toxic leachate.

On the other hand, following the permaculture principle that the problem is the solution, by diverting and composting it, we create a nutrient rich soil conditioner that not only builds fertility but increases the water and nutrient holding capacity of soils, meaning less water need be extracted for irrigation and less run-off to cause eutrophication of waterways.

There is growing evidence as well that building living soils, which is at the heart of organic farming methods, may be as significant as afforestation in storing carbon. Of course compost plays a key role in that.

But environmental problems do not end with organic matter. There is growing concern about the heavy metals associated with e-waste, treated timber, batteries, CFL bulbs and the like.

There are also economic reasons for worrying about waste. The Zero Waste Trust suggests that in Auckland alone about 30,000 tonnes of office paper is still landfilled each year at a cost of approximately $9 million to Auckland businesses. It costs around $1000 to dump a tonne of screwed up paper (in rubbish bags). When cardboard or flat paper is mixed with other materials and sent to landfill it can cost up to $400 per tonne. This compares with $40-60 per tonne to recycle flat paper or cardboard.

At the production end, using for example recycled glass instead of virgin allows furnace temperatures to be considerably reduced, lowering energy demand and cost.

On the social development side, the Community Recycling Network in particular has shown that permanent work, good work, work to be proud of, can be generated through resource recovery. Interestingly, Xtreme Waste Whaingaroa has stated that any grants they receive are more than paid back in income tax from the jobs leveraged off that money.

What often gets forgotten, though, in the triple bottom line equation, are the long term benefits of resource efficiency. I want to dwell on this for a moment because a failure to understand its importance can mislead us when deciding what kinds of recovery are worth doing and what are not.

The seriousness of this issue was brought home to me recently when I read in the May issue of New Scientist a special report about the state of the earth’s mineral resources.

As with the earth’s oil reserves, estimating the extractable reserves of many metals is difficult. These figures are kept a closely guarded secret by mining companies, especially where rare metals such as indium and gallium are concerned. In addition, we don’t have an exact picture of the annual global consumption of most precious metals.

Nevertheless, people like Armin Reller, a materials chemist at the University of Augsburg in Germany, and his colleagues have been investigating the problem. One of the metals he looked at, indium, is used to form transparent electrodes in liquid crystal displays (LCDs). It is also widely used in thin-films for lubrication, and it's used for making particularly low melting point alloys, and it is a component in some lead-free solders.

An important metal, Reller estimates that we have, at best, 10 years before we run out of indium.

New Scientist did its own audit based on the US Geological Survey's annual reports and UN statistics on global population. Their calculations are rough, but alarming. Without more recycling, antimony, which is used to make flame retardant materials, will run out in 15 years, and silver in 10. Reller used a more sophisticated analysis than New Scientist to include the effects of new technologies. He estimates that zinc could be used up by 2037, hafnium - which is increasingly important in computer chips – like indium, could be gone by 2017, and terbium - used to make the green phosphors in fluorescent light bulbs - could run out before 2012.

Even for a number of common-place metals, such as copper, tin, lead and gold, reserves are measured not in centuries but a few decades, and as I said in the case of silver, in years.

A paper published last year in the ‘Proceedings of the National Academy of Sciences’ by Thomas Graedel of Yale University estimates that 26 percent of all extractable copper in the Earth's crust is now lost in non-recycled wastes. Let me repeat that. 26 percent of all extractable copper in the Earth's crust is now lost in non-recycled wastes. For zinc, that number is 19 percent.

The problem is that the market will not price materials sufficiently high to generate comprehensive recovery until those materials are substantially depleted. Within our lifetimes, many metals will be depleted, and with global consumption rising, maybe sooner than we think.

As George Bush has demonstrated in Iraq, resource depletion goes hand in hand with war. A number of African nations have been cursed, it seems, with mineral wealth. For example the Democratic Republic of the Congo saw the murder of its first elected president Patrice Lumumba and the arming and supporting of the vicious tyrant Mobutu by Belgium and the CIA over access to its copper reserves. More recently, a driver of the Congolese civil war between 1998 and 2002 was the wealth to be had from its tantalum mines - the biggest in Africa. The war coincided with a surge in the price of the metal caused by the increasing popularity of mobile phones.

So it is timely to see a growing interest in the recycling of e-waste, both in terms of increased collection and scrutiny of where it all ends up. It’s interesting to note that concern about exporting e-waste to places like China, because of the often hazardous working conditions and environmentally destructive processes there, is bolstered by another concern. The Chinese Government is supplementing its natural deposits of rare metals by investing in mines in Africa and by buying up high-tech scrap to extract the metals. They can clearly see the strategic importance of waste even if we have been a bit tardy to do so.

Wise use of resources and resource efficiency are things that the Green Party has been talking about for many years. When then Green MP Mike Ward set out to draft a bill on waste minimisation, he wanted a comprehensive document that would address waste reduction, improve resource recovery and promote a value shift way from the new and disposable towards the efficient and the durable. I think he did a bloody good job.

The original bill consists of seven parts. It sets up a new national Waste Minimisation Authority. It sets up new local Waste Control Authorities, comprised of territorial authorities working together or singly. It sets up a levy on waste going to landfill, starting at $25 a tonne. It requires all brand owners - importers or manufacturers - to establish extended producer responsibility, to take responsibility for the waste generated over the life of their products. It provides for some things to be banned from landfills by regulation. It requires all organisations to write up waste minimisation plans. And it requires public bodies to preference recycled materials in their purchasing.

The bill is undergoing amendments as we speak, and I'll talk about what the Greens and the Government have been negotiating in a moment, but I'd like to just talk a little about the reasoning behind the three main elements.

If I can begin with the landfill levy. It is really an attempt to establish a Pigovian tax. A Pigovian tax is a tax levied to correct the negative externalities of a market activity. In this case the levy attempts to internalise the externalities associated with landfills, some of which I mentioned at the beginning of this talk. In order that this to be effective, the money collected should only be spent on waste minimisation initiatives - that is waste reduction, resource recovery and education and information.

However it would not be a pure Pigovian tax. Landfill prices are variable and reflect to a greater or lesser degree their full costs. Redvale for example is probably closer to being fully costed, but some others much less so. As a result landfill charges range from around $40 per tonne to $130 and a flat levy would not be able to internalise costs with any accuracy.

The other problem is that producers do not currently have any liability for end of life disposal of their products and so no incentive to change their behaviour regardless of the cost of disposal. It is consumers, and often actually ratepayers rather than consumers per se, who pay the disposal costs. So for example when MeadowFresh ended the supply of milk in glass bottles in the South Island a couple of years ago, they were simply shifting a cost onto local ratepayers and consumers. Washing bottles was a cost to MeadowFresh, disposing of single-use tetra paks is not. I don't mean to single out MeadowFresh - all the other milk companies had done the same years before - but simply to say that disposal price signals will have no effect on those who do not pay the disposal cost.

So simply internalising costs at the landfill will not solve all the problems. It may help recycling by doing away with the environmental subsidy for landfills that advantages them over alternatives, and by creating a fund for waste minimisation, but it does nothing to address the generation of waste in the first place, or the design issues that can make recycling of some products unviable. A good example of this is MeadowFresh's fused card and plastic tetrapaks. Both of those materials are recyclable, but it is not cost effective to employ someone to cut the plastic tops off the card base, rendering the package effectively unrecyclable.

Which is why the bill also focuses on product stewardship as its second key element (or as its called in the bill, extended producer responsibility). This is about requiring producers and importers to take more responsibility for end-of-life collection, diversion and disposal. Most importantly, it creates a motive for manufacturers to redesign their products and packaging to reduce the amount of waste created.

So we need a redesign, both in terms of designing production and packaging so that less materials are actually used, and also ensuring that products can either be recycled as is, for example by ensuring that a single, and recyclable, plastic type is used in a container, or that they can be easily disassembled, for example in the case of electronic goods.

The third key element of the bill as it was introduced to Parliament was the new national body. Some people have asked why a new organisation is needed - why can't MfE do it?
MfE is currently giving a lot of attention to waste, however this has not always been the case, or will it continue to be. Their work programme depends to some degree on the tastes of the Minister, and of the CEO, and so is subject to variation. In addition like all Govt departments MfE has a significant turnover of staff and so has some difficulty holding on to institutional knowledge.

While I share the fear about establishing a self perpetuating bureaucracy, I am still convinced that a small independent organisation with representation from different sectors involved in waste minimisation, and able to play a leadership and advocacy role would be enormously useful.

The Waste Minimisation Bill was referred to the Local Government and Environment Committee last year with the support of the Greens, Maori Party, Labour and New Zealand First. It probably wouldn't have got through its first reading except that a judicial review had been taken by Full Circle and Waste Management NZ against a waste levy introduced by 3 Auckland TA's. That had just been determined when the bill came to Parliament and the court had found that the councils were ultra vires.

My understanding is that the plaintiffs did not object to a levy in principle, but said that if a levy was to apply, it must be consistent across council boundaries, the fund generated must be hypothecated for waste minimisation, and that it should not apply to recyclables but only to waste going to landfill. Of course the levy in my bill meets those criteria.

The Government tried to address the councils’ difficulty with an amendment to the local Government amendment bill going through Parliament at the time, but that was ruled out of scope of the bill. That was the dog chipping bill, if you remember it, and it was just too far a stretch from micro chipping dogs to landfill charges. So my bill was a useful vehicle for the levy.

However there was no indication at the time that the Government would support any of the other parts of the bill. In particular, the Government seemed totally committed to a voluntary approach to product stewardship, citing the success of the packaging accord as proof that further regulation was unnecessary.

As the PCE report into the use of economic instruments for waste pointed out, there are significant weaknesses in relying only on a voluntary approach. In particular, inadequate targets may be set, and the potential for free riders is huge.

Well, if the intention was to gut everything except the levy part, events overtook the Government. Last year was really the year that the environment became a mainstream issue. It was the year of Al Gores 'An Inconvenient Truth' and the Stern Report, following the previous years South East Asia Tsunami and Hurricane Katrina. It was a tidal shift in public opinion.

In addition, the submissions to the Select Committee have largely been supportive in principle of the bill. I'm not sure anyone agreed with everything, but most people agreed with something. It was a constructive process. In addition, the Committee itself has been unusually cooperative and constructive. I think all the members agree that we need to get serious about waste, and have enjoyed the challenge of working through the practicalities of it, and I want to thanks all the members for their good will and hard work.

In addition, and in response to many of those submissions, I have been working with the Minister(s) of the Environment on amendments to go to the Select Committee. I have always acknowledged that a number of amendments would need to be made to the bill, at least partly because members bills don't have the support of ministries in the drafting of them. Working with the ministers has been an opportunity to utilise the resources of the department to get the bill right.

I say Ministers of course because David Parker recently took over as Minister for the Environment, and while the relationships with both David Benson-Pope and David Parker have been constructive and cooperative, the changeover has delayed things considerably.

The amendments finally went to the Select Committee last Thursday as an SOP (Supplementary Order Paper), and the committee has agreed to send them out to the original submitters to allow them to comment on the changes, with a five week timeframe.

So what do the amendments do?

Well, they rename the Bill as the Waste Minimisation and Resource Recovery Bill, to better reflect the dual purposes of reducing waste and recycling resources. Some definitions of terms have changed, and these need to be worked through carefully.

Part 2 of the SOP replaces the original Bill’s term of an ‘Extended Producer Responsibility’ scheme with 'Product Stewardship Scheme'. Although there is a conceptual difference, with EPR suggesting sole responsibility on producers and PS suggesting a responsibility shared with retailers, consumers, local bodies etc, there is little difference in practice.

A list of ‘priority products’ for product stewardship will be developed with public submissions and relevant stakeholders will then be required to design a scheme to address the end-of-life collection, recycling and disposal of that product, and the waste associated with the product over its life including in manufacture and packaging. That scheme can be for an individual company, but it is more likely that it would be a collective scheme. PS can be backed up with regulations, such as mandating take-back provisions, advance disposal fees etc, to address the problem with free riders.

If the sector cannot develop a scheme, one will be imposed upon it.

Part 3 of the SOP retains the Waste Levy. It sets the initial levy at $10 per tonne of waste to landfills, with regulatory power to increase this over time. The New Zealand Business Council for Sustainable Development has suggested raising it to $30 over three years to fully internalise the externalities associated with landfilling. Regulation will also allow the inclusion of further facilities such as cleanfills where appropriate.

With landfill waste at over 3 million tonnes, a levy initially at $10 a tonne is likely to raise $30 million dollars. All levy funds will be recycled into waste minimisation initiatives with 50% going to territorial authorities, and 50% available nationally through a contestable fund. That might include money for loans, grants, research, public education and waste advisory services.

Its interesting to note, given the dodgy Herald on-line poll on this, that a New Zealand Business Council for Sustainable Development Survey showed that 62 percent of respondents either support or strongly support a levy of up to $30 per tonne, and only 19 per cent oppose or strongly oppose it

Support is even higher among business people. Around 69 percent of business managers, proprietors and self employed people surveyed were in support or strongly supported a levy on waste, while only 18 per cent opposed or strongly opposed the proposal.

I think that the small price increase of disposal will have little effect on householders. We are probably talking about 5c a bag of waste. Where they will benefit is from the increased access to recycling facilities, more consistency across the country, and improved access to information.

Commercial operators who dump significant amounts of waste will be affected by price. The levy will shift the balance between costs of recycling and of landfilling, making recovery a more attractive option and it will, through the fund, increase business access to recycling and resource recovery as well. That will benefit us all.

Part 4 of the Bill transfers the waste provisions of the Local Government Act into the bill, so waste legislation all sits in one place and these are mostly unchanged from the current law. It replaces the Waste Control Authority part of the original Bill.

Part 5 sets offences and enforcement.

Part 6 requires better public reporting of waste data.

Part 7 establishes the Waste Advisory Board. This replaces the Waste Minimisation Authority of the original Bill and is a smaller body with more limited functions. It will provide independent advice to the Minister on the effectiveness of the levy and how it should be dispersed, and on elements of Product Stewardship such as priority product lists and scheme design. The Board will comprise of people with strong records in waste management, enterprise, public sector and community groups.
The parts of the original bill that have been removed are the original Part 4 providing for certain wastes to be banned from landfills, original Part 7 requiring every organisation to develop a waste minimisation plan, and original Part 8 around public procurement.

We have agreed to these changes because they are no longer needed: disposal bans have been included as a possible instrument of product stewardship under the regulatory powers in the new Part 2, waste management plans for all organisations are acknowledged as difficult to implement, and public procurement is deemed to be adequately covered by existing Government procurement policies.
Those amendments have gone out for a second round of consultation to those who made representations on the original bill. They have been given five weeks to reply and oral hearings will be by invite of the committee. That gives plenty of time for the bill to be reported back to the house and passed early next year.

I'd like to finish by saying that some diehards will still see this bill as an imposition. That would be in my opinion an error. Yes, if businesses want to continue to dump rubbish in landfills it will cost more. But more and more business people recognise that the environment is a part of the business context, and progressive business people, those who want to stay in business, recognise that they have to address environmental performance.

For those people, this bill presents an opportunity. It is a way of providing improved information, improved research and improved access to materials diversion. It is about helping businesses and householders improve their environmental footprint. Whether it is a benefit or just an added cost, therefore, is largely up to you.

Speech for the opening of ‘Closing the Loops’ sustainable architecture exhibition, 5th September 2007

There are many reasons for doing resource recovery.

There are environmental ones; landfills contribute about 3% of New Zealand’s greenhouse gas emissions, mostly in the form of methane from anaerobically decomposing organic matter. This is also a significant source of toxic leachate. These can easily be reduced through simple separation and composting.

Resource recovery also provides economic opportunities; using recycled glass as opposed to virgin, for example, allows furnace temperatures to be reduced, reducing energy demand and cost. In addition, cost recovery from recycling can offset disposal fees.

What tends to be forgotten, though, are the long term benefits of resource efficiency. I want to dwell on this for a moment because a failure to understand its importance can mislead us when deciding what kinds of recovery are worth doing and what are not.

The seriousness of this issue was brought home to me recently when I read in the May issue of New Scientist a special report about the state of the earth’s mineral resources.

As with the earth’s oil reserves, estimating the extractable reserves of many metals is difficult. These figures are kept a closely guarded secret by mining companies, especially when rare metals such as indium and gallium are concerned. In addition, we don’t have an exact picture of the annual global consumption of most precious metals.

Nevertheless, people like Armin Reller, a materials chemist at the University of Augsburg in Germany, and his colleagues have been investigating the problem. One of the metals he looked at, indium, is used to form transparent electrodes in liquid crystal displays (LCDs). It is also widely used in thin-films for lubrication, and it's used for making particularly low melting point alloys, and is a component in some lead-free solders. An important metal. Reller estimates that we have, at best, 10 years before we run out of indium.

New Scientist did its own audit based on the US Geological Survey's annual reports and UN statistics on global population. Their calculations are rough, but alarming. Without more recycling, antimony, which is used to make flame retardant materials, will run out in 15 years, and silver in 10. Reller used a more sophisticated analysis than New Scientist to include the effects of new technologies. He estimates that zinc could be used up by 2037, hafnium - which is increasingly important in computer chips – like indium, could be gone by 2017, and terbium - used to make the green phosphors in fluorescent light bulbs - could run out before 2012.

Even for a number of common-place metals, such as copper, tin, lead and gold, reserves are measured not in centuries but a few decades and as I said in the case of silver, in years.

A paper published last year in the ‘Proceedings of the National Academy of Sciences’ by Thomas Graedel of Yale University estimates that 26 percent of all extractable copper in the Earth's crust is now lost in non-recycled wastes. Let me repeat that. 26 percent of all extractable copper in the Earth's crust is now lost in non-recycled wastes. For zinc, that number is 19 percent.

The problem is that the market will not price materials sufficiently high to generate comprehensive recovery until they are substantially depleted. Within our lifetimes, many metals will be depleted, and with global consumption rising, maybe sooner than we think.

As George Bush has demonstrated in Iraq, resource depletion goes hand in hand with war. A number of African nations have been cursed, it seems, with mineral wealth. For example the Democratic Republic of the Congo saw the murder of its first elected president Patrice Lumumba and the arming and supporting of the vicious tyrant Mobutu by Belgium and the CIA over access to its copper reserves. More recently a driver of the Congolese civil war between 1998 and 2002 was the wealth to be had from its tantalum mines - the biggest in Africa. The war coincided with a surge in the price of the metal caused by the increasing popularity of mobile phones.

So it is timely to see a growing interest in the recycling of e-waste, both in terms of increased collection and scrutiny of where it all ends up. It’s interesting to note that concern about exporting e-waste to places like China, because of the often hazardous working conditions and environmentally destructive processes there, is bolstered by another concern. The Chinese government is supplementing its natural deposits of rare metals by investing in mines in Africa and by buying up high-tech scrap to extract the metals. They can clearly see the strategic importance of waste even if our own government does not.

Which brings me back to where I began. While the environmental and economic benefits of waste minimisation and resource recovery are increasingly being appreciated, and for example the government is supporting my Waste Minimisation Bill, let us not forget the long term importance of materials efficiency in the face of global resource depletion.

So I am very happy to be here this evening to take part in the opening of this exhibition because what you are doing here, and the mind-set that you are developing in yourselves and demonstrating to others, is part of a cultural reorientation that is crucial to making a future worth living in.

People sometimes accuse the Greens of wanting us all to go back to living in mud huts. Apart from the obvious benefits of earth-builds, can I say that what we are really about is facing the reality of resource depletion, including oil depletion, so that we can design satisfying and enjoyable ways of living that are viable in the long term.

I think that is what you are about as well. Construction and demolition waste may be up to half of all the waste generated in New Zealand, as I’m sure you know. Finding ways of reusing that material, and in ways that will increase the energy performance of our buildings, is a crucial part of the transition to a low energy and resource depleted future.

So I want to thank the School of Architecture for making this course and exhibition available, and the sponsors for supporting it. I want to thank Maibritt for her commitment and expertise in leading it, and for inviting me. And I want to thank all those who participated for demonstrating your creativity, innovation and commitment to a positive future.

JaH blessings

Classification of BZP Amendment Bill
First Reading Speech, 11th September 2007

This bill, as the Libertarianz have said, is about putting the P into BZP. Because despite his intentions, that will be the legacy of Jim Anderton from his years as would-be drug Tsar – the criminalising of a wide range of New Zealanders and the boosting of the illegal drug market as a result.

About 20% of New Zealanders surveyed say they have used party pills. It is estimated that Benzylpiperazine (BZP) has been used for 7 years by 400,000 New Zealanders consuming 26 million pills over 9.5 million occasions with no deaths or lasting injuries. All available research shows that banning BZP will send many thousands of young adults to the more dangerous illegal drug market of counterfeit street ecstasy and methamphetamine (P). People have spoken about the dangers of BZP. Interestingly, with an estimated 200 000 pills used a month, 21 patients to Emergency Departments in a year is relatively small. But that will not be the case when prohibition is enacted under this bill.

The many people who will continue to use party pills – because as this Parliament seems to find difficult to understand, people do not obey unjust or unreasonable laws – will no longer be assured about what they are actually taking. There will be no consumer protection, no consumer information, and they will be pushed into the arms of organised criminal organisations who will most certainly fill the gap. Today the Government announced they are setting up a specialist organised crime agency – at the same time as they are essentially writing another blank cheque for organised crime with this bill.

So what is the heinous evil that the government is attending to remedy by this Bill? Well, the Expert Advisory Committee on Drugs has described BZP as a moderate risk, and that there is no evidence of aggressive behaviour, sexual assault or date rape type behaviours.
• There have been no recorded deaths solely as a result of BZP use.
• Should BZP be made illegal, this may discourage people who continue to use it from seeking medical attention if they experience adverse effects.
• There is no guarantee that scheduling a substance as a controlled substance under the Misuse Of Drugs Act reduces the availability or potential risk of harm from a drug.

I want to emphasise that last point. The legislation that empowers the EACD does not, despite attempts by the Green Party, include as a criteria for recommending scheduling a drug whether harm, or even use, would be increased or decreased by scheduling. And that’s the basic flaw of this bill.

The Drug Foundation, one of our more impartial and independent bodies with expertise in this area, has said “Clear patterns of ‘adverse effects’ are starting to emerge from the research: seizures; dystonia (uncontrollable twitching or repetitive movement); inability to sleep; and nausea/vomiting. Across the population-based research and the clinical trial, adverse effects appear reasonably common, but generally mild and short-lasting.”

In a study of the Auckland City Hospital Emergency Department Overdose Database (2002–2004) which compared party pills with ecstasy, GHB, amphetamines, cocaine, and alcohol, by the New Zealand Medical Journal, it was found that most patients presented with “multidrug ingestions” and almost all patients were discharged home after “reassurance, IV fluids, and diazepam.” Reassurance, IV fluids, and diazepam? Oh, that’s what the EACD meant by moderate harm.

Well, maybe the bill is needed to do something about the sellers? No. The Attorney General’s advice is that in relation to supply the bill breaches the bill of rights. What that means is that the reverse onus provisions breach the Bill of Rights Act guarantee that a person charged with an offence should be presumed innocent until proven guilty, and that limitation cannot be justified in a free and democratic society. This advice follows the Supreme Court finding in Hansen v R. The majority of the Court held that the reverse onus of proof in s.6(6) of the Misuse of Drugs Act 1975 was not only a breach of s.25(c) but could not be justified in terms of s.5 of the Bill of Rights. Setting the level at which presumption of supply is set at 5 grams is so ridiculously low that even the AG’s report says the amounts specified in the Bill are not sufficiently high that it is safe to conclude the drug is for ‘supply’. Therefore it breaches the Bill of Rights.

So what should we do? The Greens policy on these matters is about reducing harm. We believe that a drug-free lifestyle is the healthiest, and that all drug use, regardless of legal status can cause harm. But it is also a fact is that not all drug use is problematic and that many of the government policies in this area exacerbate harm rather than reduce. This Bill is a classic example. The Greens favour strict regulation of party pills, not prohibition. Regulations such as heavily enforced age restrictions, restrictions on where outlets can be, mandatory health information, quality and quantity controls, severe restrictions on advertising and severe penalties for breaching such regulations. This approach would more effectively address the problems raised by members than criminalising users and putting control into the hands of organised crime.

The Drug Foundation noted that in the Massey study 26.7% of users under 20 had ‘never’ been asked for age ID when attempting to buy pills, 80.7% of those under the age of 20 had ‘never’ been refused when buying party pills. Most users could get pills within 20 minutes. The 2005 Act provided for regulations on where restricted drugs (new class D, including party pills) could be sold, and the dosage, packaging and marketing of products. These regulations have not yet been passed, and to our best knowledge no enforcement officers have been appointed, so no formal monitoring or enforcement of the industry has been carried out. There is no licence or training required before selling the product, and because of this many dairies, off-licences and garages are currently selling them (an area of major concern to the public and health sector workers). Many outlets also display extensive point-of-sale advertising. So having failed to make use of the regulatory provisions the 2005 Act provided them with the Government is now saying that the status quo isn't working and jumping to prohibition. Of course the status quo isn't working, there is still very little regulation and access is very easy. Party pills are being sold at dairies, young people aren't being asked for ID, there is little enforcement - sellers don't need to get licensed and are not trained - these drugs are far less regulated than alcohol and yet instead of upping the level of control over their sale we're jumping straight to an outright ban.

Instead of passing a sledgehammer law that will crack not just the nut but break the table as well, why wouldn’t the Government put in place the regulations that the 2005 legislation provides for, and which the evidence suggests is more likely to actually reduce harm from party pills? But this isn’t about reducing harm is it? It’s about another agenda. We oppose this bill.

NANDOR TANCZOS: I was reflecting while I was preparing my speech on this Regulatory Responsibility Bill on how times have changed since I came to this House in 1999. At that time, a member’s bill from the ACT party—or the Green Party, for that matter—would usually attract the response of: “Well, we kind of like the idea, but we are not going to support it because it’s from them.” Today we have parties saying: “Well, we are not sure if we like the idea, but let’s see if we can support it, because it’s from them.”

I think that is a good thing, and I have to say that I think the Green Party has been part of promoting a different approach to cooperation across this House. It is our view that MMP parties should support members’ bills, at least for the first reading—especially of other MMP parties but also across the House, because members’ bills have made an important contribution to our democracy—except where there are good reasons not to. So we approached this bill looking for reasons to support it. Mr Hide has done an excellent job of going around and talking to the parties, and I congratulate him on the wide degree of support he has for this bill—I think he has done a very good job in that. Mr Hide mentioned to the Greens that although the bill does not currently contain any provisions around green issues, nevertheless that is something we could look at and there might be opportunity to introduce some of those things.

I am certainly very attracted to the idea of a kind of environmental vet on legislation and regulations, similar to a kind of New Zealand Bill of Rights vet. In the context of a Parliament such as ours—a majoritarian, single-Chamber Parliament, with no single constitutional document—the idea that there would be some kind of environmental constraint on the executive is an attractive one.

In the way that the New Zealand Bill of Rights recognises human rights and we recognise children’s rights, it would be something that would recognise environmental rights. Environmental rights are not just the rights of humans to enjoy a clean environment but also the intrinsic rights of other species to inhabit the planet that they are a part of just as we are. So there are some things to attract us there.

We also looked at the bill in light of the fact that the Greens are suspicious of the power of the State. The libertarian tendency that we share with the ACT party is one of the things that has joined our two parties at various times.

Rodney Hide: At the hip!

NANDOR TANCZOS: At the hip, says Mr Hide. Certainly there have been occasions when the ACT party and the Greens have been the only parties in agreement on a particular issue. We are very aware of the danger of an unrestrained State and consider it at least as dangerous as unrestrained global corporations.

Some people have viewed the Greens in the past as being “State-ist”. I reject that notion. Just as we recognise there is a place for markets, we recognise there is a place for the State and appropriate regulation. Nevertheless, we are suspicious of both and see the community as the primary locus of power and decision-making. “Appropriate decision-making” means that is not always the case, but the community is where we start from, and I say the community rather than individuals because it is a collective notion of the power of ordinary people to make a better world.

We are especially concerned about the extension of regulations and the increasing use of delegated regulation by the executive to bypass parliamentary scrutiny. The Regulations Review Committee looks at process and issues of jurisdiction but does not look at the substance of regulations. We are concerned about these things. As I say, we approached this bill looking for reasons to support it, but in the end we had to come to the conclusion that we could not, and that this bill would not do the things that we wished.

Rodney Hide: We’ll improve it, Nandor.

NANDOR TANCZOS: Mr Hide says that they will improve it. I look forward to seeing that, and look forward to the possibility that it may be possible to support the legislation at a later stage, but it seems strange to us that in order to get rid of red tape the bill promulgates red tape. Despite Mr Hide’s assurances to the contrary, it appears to us on reading the bill that it feeds bureaucracy in order to slay it. It seems to be an inherently contradictory notion, and one that we have difficulty with. So the Green Party is opposing this bill at this stage, although we recognise Mr Hide’s quite genuine intentions to do something about what is a significant issue. We look forward to seeing whether we might be able to change that position at a later stage.

Copyright (New Technologies and Performers' Rights) Amendment Bill, First Reading
New Zealand Parliament, 13th December 2006

The Copyright (New Technologies and Performers’ Rights) Amendment Bill has been so long in the drafting that some of the more telling criticisms of it can be found in the ministry’s own early documents. In its 2002 position paper, for example, it states that it is the ministry’s view that it is not the role of the Act to protect access-control technology, which is used in some cases to price discriminate and control geographical distribution of works to the detriment of users. I absolutely agree. Our copyright law should not be used to help firms to price discriminate and to control where and how works that have been legally purchased can be used. This would be to the general detriment of users and it would stifle innovation and research.

Yet this is precisely what the current bill would do. It would turn this Parliament into a tool of corporate control by mimicking some of the least desirable features of prior American legislation on this topic.

To be fair, there are some good points. The bill tries to distinguish between personal use and commercial use of digital material, but with mixed results. It protects Internet service providers from being in breach of the Copyright Act as they conduct transient copying during the process of delivering web material, and it has also tried to come up with a workable notion of 'fair dealing' in copyright material. It tries to exempt sound recordings that have been ripped to an iPod or for playing in the family car. It also seeks to create another exemption that intends to legalise the use of multi-zone DVD players. These are welcome advances - or they would be, if they were unambiguous.

I acknowledge the comments of Chris Finlayson in his call for a comprehensive approach to the whole issue of what constitutes 'fair use'. If we take the issue of format shifting as an example, currently under the Copyright Act it is illegal to rip a CD that one has legally purchased on to one’s iPod, or to make a copy to play in the car. Under this bill it would be legal to take a CD that one has bought and make one copy for each of the replay devices that one owns. Yet, incredibly, this provision has been given a sunset clause. This exemption, which allows a person to format-shift the sound recordings that he or she has bought, will expire 2 years after the legislation has been passed, unless it is explicitly renewed by Order in Council. It seems to me to be a basic principle that once we have bought a CD, we should be allowed to decide how we use it in our own homes. How will this exemption work at all if a record company attaches non-copying technology to its CDs? Under this bill it would appear to be illegal to try to circumvent that technology and to try to enforce one’s legal rights in New Zealand. One of the concerns raised by the Privacy Commissioner around this very point was that such proposals may force New Zealanders to accept intrusions on their rights that may not be consistent with New Zealand law but would be illegal to circumvent.

In addition, why has the exception for copying purchased sound recordings for personal use not been extended to audiovisual works, as well - that is to say, to DVDs as well as CDs? People do format-shift both CDs and DVDs, and will increasingly do so - it is just a simple fact of the world we live in.

The line between personal use and commercial use also gets very blurry, very quickly. If personal use can be argued to have commercial implications - if one merely communicates information about the structure of encryption codes to others who then use them for commercial or criminal purposes - the chain of liability seems very unclear. Presumably, one cannot be held criminally liable for the end uses of digital information by others.

It is also unclear to me how, under this bill as it is drafted, one could carry out open source research, which can be said to be of personal use too but can have commercial applications. The entire open source movement, whose overwhelming strength and contribution to the entire evolution of the World Wide Web and the Internet has been based on its readiness to share how codes and formats work, could all be torpedoed by this legislation. We would be legislating against the new breed of web innovators.

Where, for instance, will interoperable competitive products fall on the spectrum as the bill attempts to strike a balance between copyrights and personal use? In one sense it is clearly of personal advantage to be able to develop one’s own product, but will that not entail cracking and disseminating the codes and formats of the units one wishes to interoperate with? But, as I have previously indicated, my most fundamental problem is the degree of protection that the bill offers to technical protection mechanisms. These anti-circumvention measures primarily put Parliament in the service of corporate profit-making. They give no discernible defences at all, that I can see, against malware or encrypted surveillance measures that corporates may well incorporate into digital works that they distribute.

Collectively, these measures will - and currently already do - work to stifle innovation and research. Let me be clear at this point that the bill, despite its name, is not actually about protecting the copyright of artists. Those artists’ right to a decent income from what they have created is not the driving motive of this bill. Nor will this bill stop piracy or counterfeiting. The US legislation that the bill mirrors has been invoked not against pirates but against consumers, scientists, and legitimate competitors. What this bill seeks to do is enshrine the rights of corporations over cultural and scientific property. Artists, with very few exceptions, will continue to receive a pittance for the fruits of their labours. After all, the bill is about the right of corporations to exploit consumers at every point in the delivery of digital material, and it seeks to make a criminal out of every citizen who tries to resist those corporations’ power to do so. As an example, corporations in the United States have already sued nearly 2,000 individuals who have engaged in the file sharing of music.

Just today we have been debating legislation to end Telecom New Zealand’s monopoly of access to the local loop—why on Earth would we want to create a new realm of legislation that enshrines monopoly access in the digital domain? The international verdict on this legislation is already in.

Cory Doctorow of Boing Boing, the world’s most widely read blog, has this to say: “New Zealand MP Judith Tizard has sponsored an amendment to New Zealand’s Copyright Act. The new copyright proposal mirrors the US Digital Millenium Copyright Act. This has been an unmitigated disaster in the United States. Not only has it totally failed to keep copyrighted works from being copied without permission but it has also created an anticompetitive marketplace where companies can sue their competitors for making compatible products.” For making compatible products! Not to mention, the devastating effects on user rights and the chilling effect on legitimate security research. “The US had an excuse,” Doctorow concludes, “when it passed the Digital Millenium Copyright Act in 1998: nobody had tried it before and seen how bad it was. But here we are, 8 years on, and what possible excuse can New Zealand have for adopting this failed US policy initiative? Why would one want to import another country’s disaster?” That is the question this Parliament has to ask itself.

In fact, as someone has already said about this bill, people can poison the river and get a slap on the wrist - or get a consent, as happened in Pareora just today, I think - but if they try to tamper with a multinational’s international property rights, then the book really gets thrown at them, to the tune of fines of up to $150,000 or 3 years in jail, in the case of that legislation. Why on earth do we want to introduce that kind of legislation here?

I will make one final comment around the exemptions for educational purposes. The point was made, in an email that came to me only today from Stephen Marshall, that the Copyright Licensing Limited v University of Auckland decision has made it abundantly clear that exceptions in relation to educational purposes must be interpreted as narrowly as possible.

In practical terms it is very hard to stay within the limitations of the Act. New Zealand institutions have discovered this to their cost. In effect, every institution must use licences to manage the risk. The bill’s regulatory impact statement acknowledges that obliquely by saying that it may be that some libraries and educational establishments will be prevented from making particular use of copyright material without a licence from the copyright owner, but that it is OK because it may already be covered by their licensing agreements.

This rosy view of the world of licensing ignores the experience of Australia, which is often an accurate predictor of New Zealand in this area. We have to remember that licensing for digital provision of materials is substantially more expensive than for paper-based materials—up to 10 times the fees for the same content on digital. Institutions are having to invest heavily in onerous tracking and notice provisions.

Local Electoral (Repeal of Race-based Representation) Amendment Bill, First Reading
Speech in Parliament, 22nd November 2006

I begin my speech by referring to this idea of race. Tony Ryall said the Local Electoral (Repeal of Race-Based Representation) Amendment Bill addresses raced-based legislation. I would like to point out to members of this House who often talk in those terms that “race” is an intellectually discredited term, and has been since the 1940s, when evolutionary scientists rejected it because race-based definitions are imprecise, arbitrary, have many exceptions, have many gradations, and the number of races observed depends on who is looking at them.

In fact, the very word “race” came out of European exploration of the world and was an adjunct to racism. In the face of the rejection of the concept of race by evolutionary scientists, social scientists have replaced the term “race” with the term “ethnicity”, which refers to self-identifying groups based on beliefs, shared religion, nationality, or descent.

An ethnic group is a population whose members identify with each other on the basis of a presumed common genealogy or ancestry, and it is usually united by common cultural, behavioural, linguistic, or religious practices. I say that because I am sick of hearing people talk about race when such a concept is an absolute fallacy. If members go to any university, they will hear that.

It is so frustrating to hear this constant rhetoric about race-based legislation when none of this legislation is about race at all, and it never has been. Legislation that supports Maori aspirations or representation is not about racism—in fact, it is the antithesis of it—in my view, it is about democracy. I object to this legislation because it cuts across democracy. The Bay of Plenty Regional Council (Maori Constituency Empowering) Bill was brought to this House by Mita Ririnui, on the request of the Bay of Plenty Regional Council. Who is Tony Ryall to try to repeal that Act?

I was on the Justice and Electoral Committee that heard from submitters who had advocated for years to get that legislation before the House. They got the support of the regional council, the legislation came here, we passed it, and now Tony Ryall thinks he has the right to turn around and spit in the face of all those people and this Parliament.

The Local Electoral Act provides the option to establish Maori wards and constituencies. That is a local decision. Again, who is Tony Ryall to prohibit that? He argues that no council has adopted that measure, but that just proves that this legislation is a cheap stunt. If no one has adopted it, what is the problem that he is trying to rectify? It is a cheap political stunt to bang on with the anti-Maori rhetoric that the National Party got their blip in the polls from. Frankly, most of us in this House are absolutely sick of it.