Tuesday, April 4, 2017

Stephen Franks: Doubling down for Nick Smith

I was obliged to spend all yesterday on unplanned responding to calls about Dr Nick Smith’s Resource Legislation Amendment Bill. It could be passed by Parliament this week.

Yet New Zealand is just waking up to what desperately bad legislation it is. Some beneficial provisions are badly overdue, but it tries to fix other weeping RMA sores by forcing Councils  to plaster them with Ministerial acne cream. It is so prescriptive it could be a Green bill, rejecting property rights as a cure for Planners Paralysis, and instead subjecting local authorities to detailed Ministerial decrees.

So it mostly wastes time instead of cauterising the RMA bleeding.

But the more critical problem in the Bill is its transformation of local government democracy into racial power sharing. The Bill gives every local authority exercising RMA powers 18 months to reach a power sharing agreement with any iwi or hapu that asks for one. If they can’t agree the agreement will be dictated by forced mediation, with “guidance” from the Minister.

Once reached the agreements are permanent, unless iwi/hapu agree to amendments. There is nothing in the legislation to protect citizens from permanent subjection to the religious/cultural/venal demands of unelected iwi leaders with their hands on some of the most critical levers of local government. The RMA delegates to Councils powers which are legislative, semi-judicial, coercive and punitive. They have been justified on the basis that the voters’ right to eject councilors is a backstop protection. Bitter experience of abuses of power have also evolved the prescribed procedures and criteria for exercising the power, in the Local Government Act, and supervisory jurisdictions including Auditor General inspection.

So far as I can tell from the Bill there is virtually nothing to prevent power sharing agreements with iwi/hapu from by-passing democracy and diving below the current legal safe-guards against dishonesty and self-dealing.

When I heard that the National caucus were being whipped into backing this Bill, to show solidarity with Nick Smith, I was reminded of the latter days of Sir Robert Muldoon.
Not because there is any likeness between Muldoon and PM Bill English. There isn’t. Bill English does not rule by fear. He has not tried to humiliate journalists and the public service. He is not presiding over a government clinging to power with increasingly desperate expedients to block economic steam vents.

But I thought of Muldoon because taking a virtue to a foolish extreme can end both great and lesser political careers. Muldoon allowed blind loyalty to a friend named Colin McLachlan to show that he placed a friendship ahead of good government and his MPs interests. Muldoon had an incompetent (probably ill) Minister of Transport. The Minister became a target for media ridicule. It reached a crescendo with a ridiculous excuse for what appeared to be public drunkenness. But instead of distancing himself and his government Muldoon tried to force his caucus to back the doomed Minister.

It was only one among several reasons why caucus loyalty unravelled. But it told many backbenchers that Muldoon’s political instinct was no longer reliable. It told them he no longer put first the good of the country, and stable and respected government.

I’m reminded of that telling saga by the inexplicable determination to push ahead with Dr Smith’s Bill, especially just before an election. It can’t possibly get one extra house built before the election. It should be superseded early by the major reform recommended by the Productivity Commission. So its only function now is to try to salvage Dr Smith’s reputation as a ‘can do’ Minister.

It can’t do that on any objective assessment. Winston Peters will use it to mince up what is left of National credibility on RMA issues.

So to those whose calls I did not return yesterday, I apologise. I can’t explain why the government is doing something so radical and so dangerously silly (constitutionally and politically) other than to say that it would not be the first time that friend loyalty has trumped duty and common sense.

To the journalist who apologized with “Sorry to have to admit it, but I’ve only just heard about this. I couldn’t believe what I heard, but now I’ve looked into it, why haven’t we heard all about it for months. Why on earth is the government handing this gift to Winston?”


Stephen Franks is a principal of Wellington law firm Franks & Ogilvie and a former MP. He blogs at


paul scott said...

Its hard to know what the outcome will be. Certainly the arrogant Nat Government has lost all touch with reality, and has continued Slackjaw's gift for smiling and bending over backwards. From what I can gather Peters will demand three Ministerial positions, after September. .
The NZF attitiude to the RLA was not so good recently. This was, that it would have to be dissected apart piece by piece over three years, post election.
However, now Peters is saying that the thing will be repealed entirely.

Smith, Finlayson, and by implication the entire Nat Government are traitors to democracy in New Zealand.
You would be amazed how many people do not know what to do. My brother and Sister in law
[ blue blood voters if ever there were ] talked about voting Labour. My eyes glazed over while I explained to these professional people how valueless that would be, and that in this instance only a NZ First vote can make any difference at all.
By all means take out the NAT electoral seats at Christchurch and Auckland Central , and he in Ohariu.
Then hold breath and party vote NZ First. It is the only way to avert utter disaster.

Mike L. said...

Well said, Paul. We voters are now faced with a choice which previously we would have thought impossible - or at least extremely unlikely. I have said I will never vote for National again, and believe this racist nonsense will cost them the next election. I cannot bring myself to vote Labour and thereby contribute to the nonsensical Greens having a hand in Government. So, regardless of my thoughts on Winston personally, it will be NZ First for me. Unless the unlikely happens and the Conservatives or ACT arise from the near-dead!

KP said...

Well, it certainly settles any ideas of moving back to NZ and bringing in a $million to invest!

Multiply this by the half a million Kiwis over here, plus those who will realise Australia is far more attractive because it DOESN'T have this racist bullshit, and it will be a costly exercise for the average taxpayer.

There's not a chance in hell that Winnie will do anything about it, his past recod shows its all about getting power so he get s bigger mirror to stand in front of.

Auntie Podes said...

Nick Smith is a danger to the public!
Some years ago he instituted a ludicrous set of measures to combat that persistent falacy of global warming.
For a while he was, fortunately, cast into the desert to contemplate his navel in the hope that he would gain some knowledge. (Something his "Doctorate" failed to imbue in him.)
Now he has excelled himself in furthering the ambitions of Maori to take over our nation and instituting the only law worse than Sharia - that of Tribalism!