Government to water down s9 (updated)

Claire Trevett reports on the Maori Party’s partial victory:

The Maori Party has claimed a partial victory after a government promise to include a Treaty clause for partial state asset sales - but will not quite abandon the possibility it will walk out until it sees the final clause.

After three weeks of consulting, the Government yesterday said it would include a Treaty of Waitangi clause in new legislation to cover companies in which minority stakes were sold to private investors.

The Maori Party warned it could walk out on the Government if Treaty rights were not properly recognised in the new legislation and said its preference was for section nine to be used or, if that was impossible, to include a new clause which carried equal weight and scope.

The Maori Party comes out of this looking strong. The party took a stand on principle and strong armed the government – or at least that’s how it looks. In reality, the government is not making a firm commitment to retaining s9. Instead, the government will use a new section that retains the “concepts” of s9. The word “concepts” is very, very vague and, if the government is not careful, could open a whole new can of worms and take Treaty jurisprudence in a direction that no one intended. S9 as it stands is well developed and well understood, so why opt for a different clause? To me, this looks like an attempt to water down the clause and send the right signals to investors. Bill English has admitted as much saying that this was not a back down, but about providing certainty for investors.

However, a new clause would provide less certainty for investors. S9 as it stands is well developed and well understood. It is more dangerous inserting a new clause as there would be uncertainty as to how it applies. In time Maori would take the issue to Court and, in my opinion, the Court would interpret the new clause broadly and in line with s9. The Courts have always taken a favourable approach to interpreting the Treaty. After all, s9, read treaty clauses, amount to a "constitutional guarantee".

The Maori Party is claiming this as an example of what can be achieved “at the table”. Fair enough, without a position in the government the Maori Party would have no leverage and no avenue to lobby Cabinet and the PM. However, this is an example of how an imperative of the table is to sell out. The Maori Party has not achieved complete victory. The new clause will, most probably, be watered down. The Maori Party claims that they’ll walkout if the clause is not sufficiently strong. Well, I’ll believe that when I see it. As Marty Mars points out, they didn’t walk on the weak solution to the foreshore and seabed, so why walk out now.

UPDATE: Joshua Hitchcock, an expert on Treaty law, blogs that s9 (as it stands) is unsatisfactory and essentially "meaningless". He provides a very interesting perspective.

National mismanagement?

The current government has an incredibly well managed image. Yet, they do not appear to possess the political management skills to complement this image. By political management I mean campaign management, strategic management (e.g. choosing what policies to implement and when) and managing ministers and caucus members. The current government’s negative press has, for the most part, revolved around failures of political management.

In terms campaign mismanagement there was the Mt Albert byelection disaster -a template on how not to run a campaign (that been said the Mana byelection was a template on how to run a campaign).

Poor political management on a policy level does not necessarily equate to unpopular policy rather policy that came about at the wrong time, for the wrong reasons and in the wrong form. In politics you can justify almost anything if the timing is right (the political climate is right), the reasons seem genuine and there are some parts, if only one or two, that the electorate considers reasonable.

National Standards is an example of policy that was pushed through at the wrong time and in the wrong form. There was no great appetite amongst the electorate for change in the education system, although the electorate appreciated the government’s intentions, and the education sector believed that the policy took the wrong form. If the government had been willing to approach implementation of the policy differently they probably could have come away with a win. There were parts of National Standards many parents seemed supportive of. Like having a single measure of achievement as opposed to a range of different measures. So the timing was wrong, the reasons and the sales pitch was poor. Political mismanagement 101.

Some of the failures of political management on a personal level include the Bill English housing rort, Pansy Wong’s abuse of travel perks, the Phil Heatley saga, the stupid Richard Worth affair and now the David Carter controversy. The PM should have a close finger on all his ministers. His hands off approach has led to more than a few ministers been caught out for activities that weren’t legit. These failures, on the part of the PM, will probably be the most damaging in the long run. They feed the perception that this government is “loose” with standards of behaviour. The opposition can easily build a narrative around this idea and I imagine the media would be fairly receptive given it is an easy angle. Policy is much harder to pin down because it is such a subjective thing whereas most people can agree using taxpayer money for personal purposes is wrong.