Thursday, February 16, 2012

The Food Bill deconstructed

I've been hearing about this Food Bill for months now. Facebook sources tell me the Government is going to fine us for growing carrots and lock us up for giving away our excess marrows. Hell, I've got so many oversized zucchini's that I don't know what I'd do if it was illegal to give them to my friends. I decided I'd better take a look for myself.

What a stupid idea THAT was. The select committee report, including the bill as amended, ran to 378 pages of meticulously crafted tedium. Only another late night reader of legislative material can comprehend the depths of stupification of which I write. By the time I got to the end I felt as braindead as Paul Holmes on Waitangi morning.

What comes next is not legal advice – or easy reading. This is just a general explanation of what I think the bill means. I need to read the bill a few more times to get the full picture but frankly that thought makes a round with Sonny Bill Williams look appealing. If you are responsible for a food business you need to get some detailed advice about your specific situation. In addition the bill is coming up for its second reading and there will be amendments made during the Committee of the House stage after that, so it is likely to change a bit. Nevertheless it is worth being aware of some of what it does do, while getting some reassurance about what it doesn't.

Firstly, the bill will not affect people who grow or process food for themselves and their family or keep seed. The bill does affect people who sell or trade food, including barter, but how much depends of the scale and type of the operation. Keep in mind that barter is not the same as reciprocal gift giving of excess harvest. Barter is a commercial transaction (maintaining value) while gift giving is a social transaction (maintaining relationships). The bill does not mention gift giving at all but I'd argue it does not apply to it.

At the lowest end of the scale, some people who trade food will have no new obligations under the bill. They will be subject to “food handler guidelines” but these will be educative only. This will be for things like clubs providing food to members secondary to an activity, school fairs, growers that sell at the farm gate or at farmers markets, very small scale or home-based production, people who sell things like chippies only, childcare providers where food handling is no more than, say, cutting up apples. This is not a complete list and schedule 3 of the bill sets it out in more detail.

The next level is where people have to go on a public register and will have to comply with a National Programme. These will be designed to identify and deal with potential health risks from food production. NB This will almost certainly not deal with things like pesticide residues or GMOs, but will be aimed at hygiene and gross contamination etc. They will also specify what paperwork businesses need to do to reassure the Ministry that they are complying. National Programmes with be at three levels of hassle, depending on type of business.

Level 1, the easiest, will cover honey, wholesale horticultural growers and pack houses, sugar refineries, people who sell hot drinks and prepackaged foods only, ice cream and ice block makers and food transportation companies.

Level 2 will include bakeries that only make bread, residential child care, lolly makers, dehydrated fruits, crisps and popcorn, jam, pickles and preserves, water and ice, frozen food (not ice cream), cereals and biscuits.

Level 3 businesses include those that make things like alcohol and non-alcohol drinks, edible oils and margerines, food additives (incl. vitamins and minerals), flours and grains and things like dairies with pick 'n' mix lollies and garages that heat up pies. Again, a full list of what is covered in set out in schedule 2 of the bill.

The heaviest regulation comes for businesses that have to register a Food Control Plan. This includes the food retail sector (bakeries, dairies that make filled rolls, fish mongers and butchers), food service sector (on premises, home or commercial delivery, take away and mobile) and manufacturers of everything from dairy products, herbs, dips and nuts to commercially sterilised food, dry powders and vegetable proteins. The full list is set out in schedule 1 of the bill.

A Food Control Plan must begin with a detailed description of the business including the type of food it deals with and the nature of the business. It must identify all the hazards and risks and set out how the business will deal with them. It must also set out who is responsible for the plan and verification procedures.
The plan can be developed by an individual business or adapted from someone else's. It can also be based on a template that the Ministry may develop for different classes of business. The plan must be registered and approved - in practise by the local authority under powers delegated by the Ministry. There are a range of procedures for amending, approving and appealing.

The bill also has special clauses for winemakers and requires importers to be registered on a public register and comply with certain requirements.

If a lot of this looks like incredibly bureaucratic paper-shuffling, that's because it is. Making dairies write a Food Control Plan with all the on-going verification and paperwork that goes with it because they make filled rolls is kind of bizarre. What's more, if the dairy gets sold the new owner has to register a new Food Control Plan. I seriously doubt that filled rolls and samosa from the local Four Square present enough of a health risk to New Zealanders to warrant this kind of bureaucratic overkill.

In fact I don't know any significant problems with the way the system operates now that deserves this level of intervention. The current Food Act from 1981 probably does need updating but this is something far more ambitious than that. It's Ministry empire building.

The National led Government is slashing jobs from the public sector and looking at how it can further tighten the screws on the poorest and most marginalised people in our community. At the same time it is introducing legislation that will massively increase enforcement officers to ensure that – wait for it – the local chip shop is up to date with their verification paperwork.

Most of the bill is not actually about how to improve food safety. Its about how to make sure that the New Zealand food industry obediently fills out all the necessary forms, and charge them for the privilege. Make no mistake, the bill very carefully empowers the charging of fees and levies, spending 12 pages on the subject.
The bill contains provisions for the appointment and registration of 'recognised agencies and persons', 'verification agencies and persons' and 'food safety officers'. With almost every food business in the country having to register and comply with either a National Programme or a Food Control Plan, expect there to be plenty of them.

The powers of food safety officers in particular are concerning. They have the power to enter (using force if necessary) a wide range of premises with or without a warrant. The power to enter without a warrant is so unconstrained that it is hard to see why they would ever bother to apply to get one, although its such a simple process that they can do it on the phone if they leave it to the last minute. If they do search without a warrant they have to give the owner reasonable notice, unless that would interfere with the investigation. They don't even have to produce the warrant and identify themselves if “compliance would prejudice the successful execution of the warrant.” for example if they forgot to bring them.

The Food Bill isn't as bad as some of the wilder claims being made about it, but does make you wonder what on earth they were thinking. A more conspiratorial soul might comment that it lies at the intersection where bureaucratic and global food corporation's interests meet. Big businesses won't be phased by it – it probably won't be that different from what they do now, but it will be a major compliance obstacle for small and medium sized businesses. New businesses in particular need to spend time on making money to pay the bills rather than filling out redundant plans and forms. Either way this bill will be bad for the majority of food businesses and bad for consumers. The Minister needs to challenge her Ministry on it and start again.

Thursday, December 1, 2011

Te Hau

Every day you change
your eyes now slate not
magnetite black
or dark as the infinite sky.
You are coming into your body
into this world
sharpening and shrinking
like light through a lens
a star coming into focus.

I cried when you were born
your body indescribably soft in my hands
as soft as the womb you were born from
"Once the head's out"
she says
"the feeling of the body sliding
down the birth canal
is amazing"

I'll never know but
I cried
because of the intensity
because of her courage
because you had come.

Tuesday, November 29, 2011

Post election thoughts

National supporters in Epsom will be congratulating themselves for following instructions and voting for John Banks. Now that he has climbed through the electoral window, his support may be crucial to a compliant National-led coalition government.

It must have revolted National to depend on him after his weirdly camp cavortings during the campaign, a kind of Derek Zoolander crossed with Fifi the psychotic poodle, but surely no more than it revolted any of the liberals left in the ACT Party.

Still, it is almost two weeks until the results from the special votes are released and a fortnight is a long time in politics. The Green Party will be hoping that they are delivered their usual late election surprise and get to add another MP to their 13. Looking at the numbers it is not impossible. I would love to see Mojo Mathers in Parliament, both for her personal qualities and for the challenge that she would bring to the system as a deaf MP, but to be honest I'm not holding my breath. The political maturity that the Greens demonstrated in a focused, engaging and well run campaign means that they appeal to a broader section of the New Zealand public, but that they are less likely to be scooping up the last minute voters.

Me, I'm predicting the specials will favour Mana and New Zealand First. I say Mana because they have strong support among young Maori and first time voters. These were the kinds of people who in the past have enrolled late just so they could vote Green. Now they'll be enrolling to vote for Hone Harawira. My prediction is also based on a great deal of wishful thinking. There are few things in politics these days as guaranteed to bring a smile to my face as the thought of the formidable Annette Sykes in Parliament. It is not only Te Ururoa Flavell who will be dreading the idea.

New Zealand First was the big surprise result this election. There is no politician in the country who can do so much with so little as Winston Peters. Those who put his success down to memory loss among his older constituents misread the situation in my opinion. I recall seeing an interview with a young first time voter who said she'd vote for him because he was 'incorruptible'. Which is true if you think about it, in the same way that the Titanic now really is unsinkable. It’s not that elderly voters have forgotten what he is like, but that young voters never knew in the first place. What Winston most undeniably is, though, is a bloody good scrapper. He knows how to make politics a spectator sport, and for that he will always, it seems, be rewarded.

The party that I do not envy at all is the Maori Party. They face some very difficult decisions in the days ahead and even more so if the outcome of the special votes is that they actually become the king-makers.

If National has the numbers to govern without them, they will have the opportunity to distance themselves over the next three years. If they decide to remain outside a formal coalition they can still negotiate a confidence and supply agreement or, like the Greens, a Memorandum of Understanding and make policy gains while remaining free to oppose the Government on an issue by issue basis. And if they are genuinely unable to stop asset sales going ahead and do manage to get some kind of preferential deal for iwi, it's not just Maori who ought to thank them.

I should note here that I always felt the Maori Party had more opportunity to distance themselves from National than they allowed themselves, even as part of the previous coalition. As far as I could tell, the challenge that led to the expulsion of Hone Harawira from the Party was not that he opposed going into coalition but that he thought the Party had become too servile.

A good example that has since come back to haunt them was their support for National Standards – not just for the policy itself but their votes to allow the legislation to pass all its stages under urgency, avoiding public submissions. If they had been allowed, those submissions may well have warned the party of the danger that National Standards pose to schools like in Moerewa, where a hugely successful programme for Maori students is now threatened by closure.

If National does end up needing them for a majority, though, the challenge is more acute, especially over asset sales. During the election campaign the Maori Party was forced to clarify their initially ambiguous position by saying that the party does not support asset sales, but that they support preferential rights for iwi if asset sales cannot be stopped. Voting against asset sales if they did have the deciding vote would be consistent with their election promise but would put a huge strain on their relationship with National since Key has said that the issue is not negotiable. Given how important asset sales are to Key, would he threaten to refuse to form a Government if the Maori Party is unwilling to support them? Going through with such a threat would be a dangerous game indeed.

Up to now the Maori Party has been unwilling to seriously test their relationship with National. On the other hand this could be exactly the opportunity the party needs to address its strategic positioning. The astute position that the party took when it first formed, of non-alignment, has morphed into a perception that they steer to the right. In the last few days of the campaign the Maori Party recognised the danger and tried to reposition itself towards neutrality. If National relies on the Maori Party to form a Government after this election, taking an uncompromising stance on asset sales would be a way to win back a perception of independence and perhaps start to woo back some of the progressive Maori vote that the party has lost to Mana and the Greens.

from my 3news blog

Saturday, November 19, 2011

Key's curious desire to talk policy

It is refreshing to hear John Key demanding the media focus on policy in the election campaign. Curious strategy, since I would have thought National's policy platform was their Achilles heel but they do need to get away from the poor handling of the storm in a teacup.

National has relied heavily on John Key's easy-going charm, using things like RadioLIVE’s 'politics-free' Prime Minister’s hour and a presidential-style campaign, and Key's overreaction to what should have been a minor affair hurts his brand. Ironically, the party which has expended so much effort to play up Key's personal characteristics now has to convince people to shift their gaze.

Which is a good thing. It would be nice to think the election might be decided on what the political parties plan to do if they become government, rather than which of the leaders we'd rather have round for a barbie. Anything which takes us closer to that goal has my support. This is especially true in the context of an on-going global financial crisis, looming oil supply constraints, accelerating environmental degradation and increasing frequency of extreme weather events due to climate change..

National has been criticised for being on the “smile and wave” plan when it comes to economic management. In my view that is unfair. National does have a clear plan for the future, which is to strip mine the country.

From Key's enthusiastic support of Solid Energy's plan to dig up lignite (the lowest value and dirtiest type of coal) and convert it into briquettes, urea and diesel, to his secretive meetings with Anadarko boss James Hackett this week, one of the companies involved in the disastrous Gulf of Mexico oil spill, to his on-going commitment to dig up the conservation estate, National remains committed to coal mining and deep sea oil drilling, despite this putting at risk the natural environment that is so fundamental to our national identity.

Similarly, National intends to strip-mine Aotearoa's wealth by partially privatising a number of State Owned Enterprises. This will turn a sustainable income from the returns from those shares into a one-off payment, effectively giving Key's government (if elected) a chunk of money to spend but leaving a short-fall for future governments to make good. As with deep-sea oil drilling, National seems prepared to sacrifice the future well-being of the country for a short term cash boost.

What makes it worse is how National intends to spend the money. A significant portion of it will be spent on education and health – which is a bit like selling the tractor to pay for school fees. Education and health spending are basic budget items that should be paid out of income. It would be lunacy to sell income-generating capital to pay for them.

The rest of the money will go on subsidising farm irrigation. This will speed up the expansion of dairy farming at the very time when we need to put limits around it.

Creating taxpayer-funded artificial profits for farming (which are increasingly owned by corporations rather than families) prevents diversification of the economy by preventing more efficient land use in marginal areas. It also speeds up the killing of our lakes and rivers and makes it impossible for us to pull our weight in international efforts to prevent catastrophic climate change.

The problem voters face, of course, is where else to turn. Labour has taken a bold step in announcing a range of courageous policies that begin to take it back to its base.

Phil Goff is looking more attractive to the public when he occasionally manages to relax at bit and stop trying so hard. The fact that most of Labour's best ideas are actually samples of long time Green policy may be a good or a bad thing depending on how one looks at it, but what Labour lacks in my view is coherence. Labour needs to be clear about its vision if it wants to be convincing, and it may just be too soon after its foray on the right to do that.

The party that does have a coherent economic policy, one that actually grapples with the realities of the 21st century, is the Greens, which is why they seem to be on a trajectory to becoming the main opposition to National. Let’s just hope they get enough votes this election to prevent Steven Joyce and Gerry Brownlee doing the skinhead moonstomp all over Aotearoa New Zealand.

Read more:

Thursday, September 29, 2011

My (late) representation to Parliament on the Video Camera Surveillance (Temporary Measures) BIll

The Chair
The Justice and Electoral Committee
Parliament Buildings
29 September 2011


Dear Chester and the members of the Justice and Electoral Committee

Firstly, I appreciate that the closing date for representations on this bill was yesterday. However given that the public was given just one day to lodge a view, I hope that you will consider receiving this brief late addition.

My views are as follows:

1. I totally oppose this bill as unnecessary, inimical to good policing and as offensive to justice and the rule of law.

2. I urge the committee to report it back to the House with a recommendation that it not proceed.


I sat on the Justice and Electoral Committee from 1999 until 2008. During that time the committee scrutinised the Evidence Bill (now Act). The very lengthy consideration the committee gave to section 30 (2) is what informs my view that this bill is simply not needed. As you well know subsection 2 (b) states that

“if the Judge finds that the evidence has been improperly obtained, (they must)
determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.”

It is simply not credible that the judiciary will let serious accusations go undetermined, given their obligation to give proper account of the need for an effective and credible system of justice. The fact that the Supreme Court decision that led to this bill allowed the improperly obtained evidence that was the focus of appeal, be admitted in the prosecution of 4 of the defendents demonstrates that there is no need to violate the doctrine of the seperation of powers by retrospectively legitimising police activity.


The Law Commission report into search and surveillance powers had put the police on notice that the legality of the use of covert filming was questionable. The fact that the police continued to rely so heavily on these techniques demonstrates an attitude to the law that is careless at best.

Retrospectively legitimising this activity holus bolus rewards such an attitude and makes a powerful statement to the police that they can be haphazard in following the law when it comes to gathering evidence. The only real sanction that exists to keep the police within the law, and in conformity with the intentions of Parliament when it enacts laws proscribing search and surveillance powers, is for improperly obtained evidence to be excluded in court. I find it hard to believe that the intention of this Parliament is to condone police impropriety.


It seems extraordinary that a country that purports to be a democracy that respects the separation of powers and the rule of law can contemplate passing retrospective validation of illegal police video surveillance, under urgency, with a select committee process lasting one week and with one day for the public to prepare representations. I do not think I need to spell out further to this committee why
this bill and this process is offensive to justice and the rule of law.


I offer thanks in advance in the hope that the committee has agreed to accept this late representation. I urge the committee to send this bill back to the House with a recommendation that it not proceed and with a report that spells out clearly why this bill is ill-conceived and offensive.

Emergency surveillance law shows the Crown has too much power

New Zealand is not a democracy, if by that we mean government for the people, by the people. This was proven to me beyond a doubt when I was sworn in as an MP for the third time in 2005. MPs are required to swear allegiance to the Queen and her successors before they can take part in the Parliament. When I tried to add “to the people of Aotearoa New Zealand and the Treaty of Waitangi” (Parliament's true sources of legitimacy) I was forbidden to do so. MPs allegiance must be to the British Crown alone.

I was neither the first nor the last MP to attempt to add something meaningful to the oath, but it was a personal reminder about who the Parliament serves. Allowing New Zealanders to elect the people who serve the Crown in this country fools us into thinking that those representatives are there to serve us. More importantly, it obscures the lie that is at the heart of our constitution – that the source of political authority is the Queen.

The Parliament only sits after it receives Letters Patent from the Queen giving it the power to do so. Every Act passed through Parliament has to be signed off by the Queen, or her proxy the Governor General, before it becomes law. Regulations are actually Orders in Council from the Queen or the Governor General, made on the advice of her Minsters. Within our system, the Queen is the very source of political power and legitimacy.

This is not just abstract political theory. It distorts our very thinking about what the Government can and can't do. It is the reason why New Zealanders have so few real protections from the State, protections that would limit the power of the Crown. It is the basis for the Governments ability to sack an elected council in Canterbury and replace it with hand chosen appointees, or forcibly take over the administration of the waterfront from Auckland City. It is what allows the Government to seriously contemplate passing a law under urgency to legalise police surveillance that the courts have already ruled was illegal and that the police were repeatedly warned about. It was what allowed the last Labour Government to steal huge areas of land based on the ethnicity of its owners with the Foreshore and Seabed Act. The power of the Crown trumps the rule of law.

If we were a real democracy, our political system – our constitution – would be based on the recognition that sovereignty flows from the people, not from a monarch (and a foreigner at that). It would embody the idea that political power flows upwards. Sovereignty begins with our right as human beings to make decisions over our own lives. We express it in the collective decisions we make as communities. Elements of it can be passed on to the national parliament and to the regional and global governance bodies that we collectively choose to take part in.

A New Zealand democracy would be based on the Treaty of Waitangi, which reinforces the local decision-making rights of hapu over the things that affect them. In the Maori language version of the treaty that the chiefs and Governor Hobson signed, Maori never ceded sovereignty to the Crown. The idea that the Queen is the sovereign power is simply incompatible with the tino rangatiratanga of hapu. That is why the courts have had to invent the “principles of the Treaty of Waitangi” in an attempt to sidestep the international legal doctrines that give priority to the Maori language version.

A real New Zealand democracy would provide protection for all its people from the arbitrary use of power by the State. It would safeguard our human and civil rights from those given enforcement power over us, such as the police, prison system, customs, and increasingly food and medicines regulators. At present New Zealanders have no constitutional protection at all. It is only the lack of a simple majority due to MMP that has slowed the Government from ramming through an emergency retrospective law to give police carte blanche powers of video surveillance.

Finally a real democracy would not have local councils made and unmade by the whim of the Crown, but as expressions of people's inherent right to make decisions at a local level over the things that affect them at a local level. The ability to sack a properly elected council and replace it with Government appointees is an outrage, made possible only by a distorted view of political legitimacy and power.

New Zealand will become a republic sooner or later. The real question we need to ask ourselves, though, is much deeper. Does the power of our Parliament come from some person because they are more divine than the rest of us, more imbued with wisdom and justice? Or rather does it come from the people and their inalienable right to rule their own lives, and their choice to bestow on the Government the ability to make decisions in the best interests of the nation? Once we have decided that, eveything else will become clear.

Thursday, September 8, 2011

Take prosecution power away from police

A young man I know was in court recently. He and some friends were drinking round the back of a sports club and they decided to smash a window. It was typical dumb drunk stuff and they deserved to get caught. He didn't deserve a conviction for attempted burglary, which was what the police charged him with.

I asked the police prosecutor how he justified an attempted burglary charge when the window was visibly barred and impossible to enter. He said that if the window hadn't been barred he was pretty sure the kids would have tried to get inside.

I don't need to mention that the young guy was Maori. Of course he pleaded not guilty, on the reasonable basis that he wasn't trying to burgle the place, he was just being a vandal. The case dragged on for about a year, wasting police and court time and costing who knows how much money. Eventually, frustrated over police delays and deferred proceedings, he pleaded guilty on the promise of a community sentence. I guess you could call it conviction by attrition. If the charge had been willful damage or some such, however, there would have been a guilty plea and the case could have been dealt with straight away.

For me it was just another example of why prosecuting practice needs to change. The case didn't make the national news, but it illustrated the point just as well as the infamous case of the autistic light bulb collector Cornelius Smith-Voorkamp. Mr Smith-Voorkamp was accused of being a looter, detained in custody for 11 nights (and his partner for 6 weeks) and prosecuted for 6 months before the case was dropped in August. All for taking two light bulbs. Then there is the case of singer Tiki Taane who was charged in April with disorderly behaviour likely to incite violence. He sang the NWA song 'Fuck the police' while police were in the club he was performing at. The case was dropped this week but it is hard to avoid the suspicion that the police deliberately wasted months of court time and fistfuls of public money for a bit of personal revenge.

The Minister of Justice Simon Power, like Justice Ministers before him, has recently introduced changes to the legal aid rules in a bid to cut costs. It's time his officials pointed out to him that a more effective, although less populist, way to cut spending on lawyers, as well as get the courts running more smoothly, would be to crack down on ridiculous prosecutions.

The problem is that the police seem to lose perspective. That's understandable – they are in the thick of things. But it means that we cannot rely on the police to not prosecute matters that just shouldn't ever go to court. It means we cannot rely on the police to always lay charges that are in proportion to the offense that was actually committed.

That's without even mentioning those cases where police perjury is involved, as when then-senior constable Neil Robert Ford caused a traffic accident, lied about it and persuaded a to blame the victim. Shane Cribb, 17, was charged and found guilty. Mr Cribb and his supporter Steve Potter spent 5 years fighting for justice. After it was over Mr Potter said that he worked out what really happened within days of the accident. He commented that "If I could see what was gapingly wrong, why couldn't the authorities? That's the thing that I really still struggle with."

This case also demonstrates that the police find it hard to make objective decisions when it comes to prosecuting police officers who may have broken the law. The failure of the police to prosecute Constable Abbott after he shot Steve Walla dead in Waitara in 2000 is another example. The family had to bring a private prosecution before the legality of that killing could be tested, even though the courts found there was a case.

We have to take prosecuting decisions out of the hands of the police. We need an independent Public Prosecutors Office with responsibility for deciding when to prosecute and what charges to lay. The job of the police should be to investigate crime, interview suspects and gather evidence. Having a prosecutors office which can then evaluate the evidence without any prior stake in the case would clear the crap out of the courts as well as give citizens a bit more protection from malicious prosecutions. Who knows, it might even have saved those Operation 8 defendents who have just had their cases dropped after four years of legal hell.

from my Monkeywrenching column 8 Sept 2011)