A Policy A Day: Wrap-up

The list of articles in this series is available here.

The General Election is tomorrow, so this series of policy analyses comes to an end. We've looked at 24 different policies spanning a variety of policy areas and political parties, and it has been quite a journey. When I started this project I knew there would be a lot of research ahead, but I feel like doing the research on all the topics has taught me more than most of my university courses. It has been an interesting experience trying to push these posts in the wake of many political scandals, and trying to keep the discussion on policy. Shouting into the wind would be an understatement, but hopefully this resource will be here and remain relevant and useful for a few years to come.

I want to thank the guest bloggers who have helped ease the workload significantly by agreeing to write guest posts. Their styles and biases vary wildly from person to person, but all of the posts have been great and I've definitely learnt some things from the posts. These are all young people who are still developing their views about the world and politics, and every one of them is engaged with decision making in our country. Thank you for not only writing guest posts, but also for continuing to fight the stereotype that youth are disengaged from society and democracy.

I asked each of our guest bloggers to answer the question "If you could tell the incoming government one thing, what would it be?"

Charlotte Austin (Compulsory Te Reo Māori):
"Worry more about the New Zealand you are leaving your grandchildren than your reputation."

Gayathiri Ganeshan (Disestablish the IPCA):
"Keep our kids fed and warm; then make sure their parents can earn a living wage that supports a family. Let tertiary students study in a conducive environment (hint: not one in which we have to work multiple jobs to afford study). Break cycles of offending by showing offenders care and decency, especially prisoners. Give primacy to honouring Te Tiriti o Waitangi, protecting human rights and safeguarding the environment. In short: be better." [Editor's note: One thing Gayathiri. One thing.]

Jason Armishaw (Variable Superannuation):
"I would like to see the government reduce distortions in the housing market by introducing a universal capital gains tax."

Maanya Tandon (Food in Schools):
"If you could try and undo as much of the last 6 years as possible - that'd be great."

Thomas Vautier (Universal Basic Income):
"Ignoring the needs of the youth and lower/middle classes will come around to bite you. You should begin to focus policy that will begin to shrink the increasing wealth deficit. It will be the biggest problem you will face in the coming decade."

Rosie Polaschek (Abolish Maori Electorate Seats):
"Remember all the sectors of society and their interests, and to think about all of them in decision-making."

Gina Yukich (Cleaning Our Rivers):
"Ask young people what they want from education. Many teachers are out of touch with their students, and parents' desires for their children can differ from the childrens' desires for themselves."

Bhenjamin Goodsir (Castle Doctrine):
"I would remind them to keep in mind New Zealand’s strong history of protecting and furthering Human Rights. These rights are a fundamental part of our society and we need to do everything we can to continue this history."

Simon Johnson (Capping School Donations):
"Any new government should renew its focus on education. New Zealand should be aspiring to be the most highly educated nation in the world. A new government of any party should adopt a rigorous evidence-based approach and be bold in their thinking."

Camille Wrightson (Targeting Gangs):
"Prioritise people and the planet over profit."

Andrew Chen:
"I look overseas at many governments and just have to cringe. From government inaction to poor policy to political scandal, the government stops working for the people and everyone becomes worse off. New Zealand is a great country to live in - please try to keep it that way."

This election has been a very interesting one to say the least. It tears at my principles internally; on the one hand I want to only talk about policy and make sure that governments are elected on the basis of policy; on the other hand some of the revelations and details released about the current government, from dirty politics to GCSB spying, are unsettling and make me question the ethics of those trusted to lead our country. It makes me lose faith in the political system, and to a certain degree I think that it explains part of why youth are "apathetic" about politics. Hopefully we'll see youth participation in the election skyrocket after the many initiatives that have been put in place, but I'm less hopeful about that making a difference to our government. All I can do is hope that no matter who wins, that they try to keep the interest of all New Zealanders at heart, and that the country keeps trucking along.

If you've read all of the posts, then well done you! A lot of words have been written and I'm glad that someone's been reading them. But this series has to come to an end, so thank you once again to the guest writers and also thank you to the readers for giving us an audience.

A Policy A Day: MMP Reform

In the lead-up to the election, we are going to examine one policy per (working) day. We've selected policies to be as balanced as possible across a range of policy areas and across the political parties. The idea is to explain the background, analyse the policy to investigate the pros and cons, and give a verdict on the policy at the end. Inevitably, some opinion will make its way in and we make no apology for that - after all, we're voters too. Also, I say 'we' because this series will feature some guest posts from other young people, to share their thoughts and ideas as well. A list of all the articles is available here. Enjoy!

Today's post is by Pasan Jayasinghe.

Background
In 2010, the National-led Government enacted the Electoral Referendum Act 2010, which provided an indicative (non-binding) referendum on New Zealand’s voting system to be held in conjunction with the 2011 general election. As the majority of voters chose to keep the Mixed-Member Proportional (MMP) electoral system, an independent review of MMP by the Electoral Commission was triggered. The review process included a public submissions phase that considered written and in-person submissions across the country; the subsequent release of a Proposal Paper; a further submissions phase; and the publication of a final report in October 2012. Of the primary recommendations made by the report, lowering the party vote threshold from 5% to 4% and abolishing the one electorate seat threshold for allocating list seats (or the 'coat-tailing' provision) attracted the most attention, particularly across the spectrum of political parties who would all be affected by the changes in different ways. In 2013, then Minister of Justice Judith Collins announced that the National-led Government would not be implementing any of the Electoral Commission’s recommendations as no consensus on implementation was reached by the parties in Parliament. Opposition to the recommendations was expressed by parties such as ACT, United Future and MANA, whilst support was expressed by Labour and the Green Party.

What are the Party Vote and One Electorate Seat Thresholds?
Under MMP, a political party is entitled to a share of MPs that is the same as its share of the party vote if it reaches one of two thresholds: either it gets at least 5% of the nationwide party vote; or it gets at least one electorate seat.

Taking the 2008 General Election as an example, for instance:

• The Green Party won no electorate seats but because it won 6.7% of the nationwide party vote (and therefore reached the 5% threshold) it got nine of the 122 seats in Parliament
• The ACT Party did not clear the 5% party vote threshold (its nationwide party vote was 3.6%) but because one of its candidates won an electorate seat (that is, it reached the one-seat threshold), it was entitled to five seats overall (one electorate and four list seats)
• The New Zealand First Party won 4.1% of the party vote but did not win an electorate seat,  because it reached neither threshold it did not receive any seats. 

Because governments under MMP are formed by political parties who can collectively command a parliamentary majority, and because no single party has ever received more than 50% of the seats in Parliament on its own under MMP, changes to the vote thresholds are hugely consequential. For minor parties, the thresholds determine their very existence. For the major parties, the thresholds determine their ability to form governments they are able to lead.

Policy Proposals
The Labour Party proposes to give effect to the Electoral Commission’s proposals by lowering the party vote threshold from 5% to 4% and abolishing the one electorate seat threshold. The Green Party also supports these provisions. The Labour Party’s proposals were first expressed in a Private Member’s Bill put forth by then leader David Shearer upon the government’s decision to shelve the recommendations.

Arguments for Lowering the Party Vote Threshold to 4% and Abolishing the One Electorate Seat Threshold
It is possible to consider the Electoral Commission’s arguments for the vote threshold proposals here, particularly as they are commonly expressed by the Labour Party in support of its proposals:

Lowering the party vote threshold is seen as a means of striking a balance between proportionality and stability. The present 5% is contested as being too high a barrier for parties to enter Parliament. On the other hand, lowering the threshold too much is claimed to result in a proliferation of minor parties which would make government formation and governance difficult.

With respect to the one electorate seat threshold, it is argued that whilst it increases the proportionality of Parliament, it does so arbitrarily and inconsistently (compared to lowering the party vote threshold). It is held to undermine the principles of fairness and equity, which underpin the primacy of the party vote, by giving voters in some electorates significantly more influence over the make-up of Parliament than voters in other electorates. It also causes excessive focus to be placed on a few electorates and distorts election campaigning.

Analysis of the Proposals to Change Vote Thresholds
Abolishing the one electorate seat threshold is a reasonable proposal. While it does in fact increase proportionality by giving parties who achieve it representation proportional to their party vote (so does not disenfranchise their voters) this proportionality is not uniformly guaranteed as it gives voters in certain electorates a greater and undue influence in choosing the ultimate make up of Parliament. This is best illustrated by the notorious ‘cup of tea deals’ made in the Epsom electorate in the past few elections, where National Party leaders Don Brash and then John Key both encouraged their supporters to vote for the ACT Party candidate with their candidate votes (Rodney Hide in 2005 and 2008, and John Banks in 2011). This allowed the ACT Party to bring in one and four extra MPs in 2005 and 2008 respectively. Comparing this against parties who fail to clear both thresholds despite receiving higher vote shares than one electorate seat threshold beneficiaries – for instance, New Zealand First in the 2008 example above – can be seen as both unjust and illogical. As a result, public opposition to the one electorate seat threshold is high, demonstrated by the high number of submissions against in in the MMP Review.

The 5% threshold is generally seen as too high a hurdle for parliamentary representation; only two parties aside from the two major parties cleared it during the last three MMP elections. However, it is unclear if the 4% threshold (by itself) gives smaller political parties a more reasonable chance of gaining seats in Parliament. There have been only three instances of parties receiving between 4% and 5% of the party vote in all MMP elections to date, proving that it might still be too high a hurdle. The unfairness here is not on the parties denied entry to Parliament, but rather on the voters denied representation. Under the current electoral roll for instance, a party requires the party votes of more than 123,000 voters to clear the 4% threshold; a substantial number. The situation appears even starker when considering new parties and the near impossibility they face in gaining representation given the institutional advantages offered to parties with existing parliamentary representation (including broadcasting allocations during election periods). Indeed, no party since 1996 has been able to break into Parliament without already having representation there.

The proliferation of very small parties is often used as an argument to not lower the threshold below 4%. The Electoral Commission supported this claim with the general principle that the lower the threshold, the greater the risk to parliamentary effectiveness and government stability. To examine this claim, we can look at the six elections under MMP so far, which provide a highly diverse sample of small parties at every possible size, from single MP parties up incrementally to multiple MP parties. These results further provide case studies of parties in various configurations of government, opposition or otherwise. Even a brief attempt at considering all this data shows that very small parties can hardly be seen as having caused undue instability either during government formation or actual governance; the major parties have always been able to produce governing arrangements with the aid of small parties (often numerous in number) without having to resort to another immediate election, and no government has lost its parliamentary majority mid-term. The case of the National-New Zealand First coalition following the 1996 election is an arguable case, as the National Party was still able to retain its parliamentary majority after New Zealand First’s exit from the coalition. And in any case, such a scenario has never repeated itself since. The fear that small parties’ excessive influence would decrease governmental durability and increase the level of instability has not eventuated. More often than not, it is the dog that wags the tail. Finally, there are many benefits to decreasing the burden to smaller parties entering Parliament, including the representation of a more diverse range of interests and views and greater democratic integrity for voters who are able to express truer political preferences.

Perhaps most pressingly, the lowering of the party vote threshold to 4% needs to be considered in conjunction with the one electorate seat threshold’s removal. When doing so, it is clear that there would be a rise in disproportionality from the status quo. When past election results are subjected to the Gallagher Index, which measures electoral disproportionality, there is indeed an average increase in disproportionality under a 4%–no electorate seat threshold arrangement. If the Labour Party’s proposal is implemented alongside some of the Electoral Commission’s other recommendations, such as abolishing overhangs (which restricts Parliament to 120 seats), disproportionality could further increase. This goes against the explicit intention of MMP, which is to produce Parliaments with the least possible disproportionality.

All this is grounds for lowering the threshold lower than 4%. A threshold of 3%, for instance, would lower the number of party votes required below 100,000, slightly increase the number of parties receiving representation, and more effectively counteract the disproportionality caused by the one electorate seat threshold’s removal. In regards to the proposals however, the state of affairs today may be preferable, even with the disproportionate influence it grants voters in some electorates, as that is a less negative outcome compared to the disenfranchisement of a larger numbers of voters, a smaller numbers of parties in Parliament, and increased disproportionality.

The Electoral Commission did make a provision for the 4% threshold to be reviewed in future (in three elections’ time), with a view towards potentially lowering it to 3%, and David Shearer’s Members’ Bill echoed this provision. It is unclear from the current Labour Party (or Green Party) proposals whether this would be retained. However, the waiting period for this of three elections, or nine years, is still a long time for this disproportionality to persist.

Verdict
The case for abolishing the one electorate seat threshold is strong. Unfortunately, its removal when paired with the lowering of the party vote threshold to 4% produces a range of undesirable effects, from potentially disenfranchising many voters to increasing Parliament’s disproportionality. There is a stronger case to be made for lowering the party vote threshold further if the one electorate seat threshold’s removal is desired. As it is, implementing the Labour Party’s proposals is likely to produce an increased consolidation of the larger parties’ representation and power, whilst minimising minor party representation compared to now. If we subscribe to the idea that our Parliament should aim to enfranchise as many voters and represent as many different political views as possible, notions which underlie the MMP electoral system, then the proposals cannot be supported.

Pasan is currently completing a Master of Arts in Political Studies. When not crying over his thesis, he enjoys copious amounts of tea, murder mysteries, and cat appreciation.

A Policy A Day: Targeting Gangs

In the lead-up to the election, we are going to examine one policy per (working) day. We've selected policies to be as balanced as possible across a range of policy areas and across the political parties. The idea is to explain the background, analyse the policy to investigate the pros and cons, and give a verdict on the policy at the end. Inevitably, some opinion will make its way in and we make no apology for that - after all, we're voters too. Also, I say 'we' because this series will feature some guest posts from other young people, to share their thoughts and ideas as well. A list of all the articles is available here. Enjoy!

Today's post is by Camille Wrightson.

Law and order policies are easy pickings for politicians. We hear the “get tough on crime” rhetoric most elections, because the public loves it and parties come off as authoritative and austere. Right-wing parties generally take the "hard line" approach to crime, and this election is no exception: ACT and Conservative have flagship policies regarding tougher sentences for criminals. National has taken an interesting approach with its justice policies this year. Their general law and order policies are definitely on the tougher side, but their higher profile gang policy, despite the "getting tough on gangs" slogan, has, partly, a more measured approach.

There are, perhaps unsurprisingly, some significant practical and rights-based issues with the policy. National does have to play to the more extreme of its supporters, including those who commented many times over that a bullet would be an easier way of dealing with gang members.

Policy
Police and Corrections Minister Anne Tolley announced the policy last month, which includes four big initiatives:

1. A multi-agency Gang Intelligence Centre led by the Police and based at their national headquarters. The agencies involved would be Police, Corrections, Justice, MSD, Education, Health, Te Puni Kokiri, Housing NZ, Inland Revenue, and Customs;

2. Start at Home, a work programme designed to encourage reintegration and rehabilitation. Corrections services will be targeted at gang members, including violence and addiction services and support, alongside increased effort towards education, employment, and housing;

3. Two Dedicated Enforcement Taskforces: the Outlaw Motorcycle Gang Border Protection Taskforce which targets drug-trafficking, including putting drug-dogs at domestic airports, and the Criminal Asset Confiscation Taskforce which would strengthen asset recovery efforts, prevent the financing of crime and target profits received from crime;

4. Strengthening legislation by amending the Sentencing Act to include 24-hour GPS monitoring of high-risk gang affiliates following release from a prison sentence of less than 2 years, to stop them associating with gang members. It would also stop serious gang offenders from buying weapons, and would penalise those who knowingly supply those weapons.

The funding for this policy has been specified as $1.6 million over two years.

Background
Gangs, for generally good reason, have a pretty bad reputation. The statistics provided by the Minister include that while gang members account for 0.1% of the population (approx. 4000 members), they are responsible for:
· 25% of homicide-related charges
· 34% of class A/B drug offences
· 36% of kidnapping and abduction offences
· 25% of robbery/aggravated robbery offences
· 26% of grievous assault offences
She went on to say that these gang members average 53 offences in their lifetime.

There has been some interesting coverage of gang life in New Zealand recently, including the discussion about whether it was fair that a father wasn’t allowed to chaperone at his son’s camp because he was an active gang member, and the story of the Mumzys group of gang wives in Porirua. Articles like this are slowly opening up the gang world to the public, showing that gangs are not just hotbeds of crime – they are also collections of whanau. In the past, Parliament has largely treated gangs as the former, which may explain why previous efforts to control gangs through legislation have had mixed results.

Analysis of the Policy
The response to the multi-agency intelligence centre have been widely welcomed, including by Police Commissioner Mike Bush, Dr Jarrod Gilbert, NZ’s foremost academic on gangs, and the Herald editor. A broader approach to the problem of gangs has been desired for a long time, and using so many different agencies looks like a really positive step. It has been great to hear Minister Tolley saying things like “It is just an acceptance that you are never going to arrest your way out of the gang culture” and that “law and order is only part of the answer”.

Nevertheless, there are some serious issues with the policy.

It is well-documented that crackdown measures on gangs don’t often work that well. Overseas and local research, including by the Justice Policy Institute in Washington DC, has demonstrated that if legislation further stigmatises gangs, this leads to increased internal cohesion and hostility towards authority, rather than the deterrence that was intended. Unison and defiance of gang-members is precisely what the legislation wants to stop, but if it is too heavy-handed it might actually cause that. The GPS monitoring could have this effect. Dr Gilbert has said that under legislation like this “they feel like they’re being attacked and so they create their own value systems to rebel against that. It creates perverse outcomes.”

There are human rights concerns with the GPS tracking proposal as well. The biggest concern is a breach of section 17 of the Bill of Rights Act – freedom of association. Practical issues also arise – if you are from a small town, and/or your only circle of friends/family/whanau is gang-connected, it is highly unlikely or even desirable that you will avoid those people after your release from prison. Minister Tolley has said that currently there has been no Ministry of Justice vetting regarding implications on human rights with this policy. While presumably the legislation would be checked by the Attorney-General for any breaches as it made its way through the legislative process, the Government hasn’t had a particularly good track record of listening to the AG’s concerns in recent years.

Dr Gilbert has accused the Government of overstating the problem. He has raised concerns with the statistics the Minister used, suggesting that the figure that 28% of inmates are gang members also includes gang associates. This would mean that not just active, patched members were included, but also anyone who has any connection to anyone in a gang. This potentially means we’re dealing with a pool of 60 000 people as opposed to 4000.

Also, the initiatives targeting the drug trade rely on an assumption that gangs are responsible for the majority of drug trafficking. This is not necessarily the case, as apprehension data recorded by the police have gang affiliates making up between just 7 and 12% of apprehensions depending on the type of drug. A focus on gangs while trying to address drug trafficking may well mean that, in the words of Dr Gilbert, “the drug dealers who aren’t in gangs, the vast majority of drug dealers, tend to go under the radar. And that is a problem, it’s a problem for all of us.”

While the multi-faceted approach is a great idea, it’s going to need sufficient funding for it to work. $1.6 million over two years is a drop in the bucket, and isn’t a particularly good omen.

However by far the biggest issue with this policy, and with most anti-gang policies, is that it doesn’t address the root issue. Gangs thrive in communities that have issues with poverty, unemployment and poor education. As long as Kiwis struggle with these issues, we will always have gangs. If the Government is unwilling to seriously address them, then any legislation attacking gangs is bound to fail. The multi-agency approach is a great start, but policy-makers need to look even broader if they want to make a change regarding the underlying causes of gang activity.

Gangs are enabled by social problems as well as by freedoms (of association, of expression) that we have granted all citizens under the Bill of Rights Act. Dr Gilbert warns that “lawmakers must be mindful of chipping away at the latter blindly or due to an inability or unwillingness to tackle the former”.

It would be interesting to know if Minister Tolley has had discussions with leaders in gang communities to better understand their problems and how best to fix them, as Robert Muldoon was well known to do. Those who speak to the media have a very clear message: Denis O’Reilly, lifelong Black Power member, has said that the idea of the Gang Intelligence Centre is a “pathological construct. If we keep on focusing on the illness, we are likely to miss the drivers of wellness. Deal with whanau, not gangs”. Dennis Makalio, Mongrel Mob boss, has said that “what works is when they focus on what the problem is in New Zealand and not a gang… This is not a gang problem, it’s a New Zealand problem. The problem is, if you can’t get employment what are you going to do to feed your family?”

Verdict
The multi-agency approach is a fantastic step forward in addressing the problems that gangs cause, assuming it is adequately funded. A broader, more holistic approach in this manner has been needed for a long time. Further focus on rehabilitation and reintegration is a major plus as well. The other aspects of the policy don’t bode so well, and show a desire from National to play to its more conservative supporters in election year, rather than listening to the experts or to gangs themselves. Positive change in this area is possible, but we need to consider the general social problems which enable gangs, rather than just manage the after-effects.

[Update: The article mentions that there was some confusion about the statistics - Dr. Gilbert has OIA'd the data and it shows that he was correct.]

Camille Wrightson is a left-leaning Law and Politics student at the University of Otago. She likes feminism, public policy, and making brownie-in-a-mug.

A Policy A Day: Carbon Tax

In the lead-up to the election, we are going to examine one policy per (working) day. We've selected policies to be as balanced as possible across a range of policy areas and across the political parties. The idea is to explain the background, analyse the policy to investigate the pros and cons, and give a verdict on the policy at the end. Inevitably, some opinion will make its way in and we make no apology for that - after all, we're voters too. Also, I say 'we' because this series will feature some guest posts from other young people, to share their thoughts and ideas as well. A list of all the articles is available here. Enjoy!

Today's policy comes from the Green Party. Climate Change is a serious issue that faces the entire world, and New Zealanders should play their part in helping address it. The New Zealand Attitude and Values Study (from the Dept of Psychology at the University of Auckland) shows that 72% of New Zealanders believe that climate change is real, and that 62% believe that climate change is anthropogenic (caused by humans). This post assumes that climate change is an issue that we want to make a serious attempt at addressing - if you think that climate change is not a real thing then this is probably not the post (or blog) for you. The question then becomes one of how we address climate change.

In the area of controlling carbon emissions, there are two main systems that have been adopted around the world: cap-and-trade systems and carbon taxes. New Zealand currently uses a cap-and-trade system called the Emissions Trading Scheme (ETS). The Green Party proposes:
- Phase out the failed Emissions Trading Scheme and instead put a meaningful price on carbon through a charge on polluters (full policy document here)
or in other words, scrap the ETS and implement a Carbon Tax instead. They also propose a number of complementary policies, including using the revenue from the Carbon Tax to bring in income and company tax cuts, but this post will focus on the differences between carbon emission control mechanisms rather than what any difference in revenue would be spent on.

Background

With both a cap-and-trade system or a carbon tax system, the idea is to set a "price of carbon" so that some financial cost is introduced for carbon emissions. This disincentivises carbon emissions and helps to reduce the overall level of emissions. Without a price of carbon, companies and individuals could emit as much carbon as they want into the environment at no cost to themselves, but it creates a wider cost to society (an externality in economics jargon) - hence, the government has to step in to regulate carbon. In both systems, companies continue to emit carbon until there is some alternative (such as new technology or a different process) that costs less than the price of carbon. The price of carbon is thus very important, because it essentially dictates whether carbon emissions actually decrease or not, while also being careful not to excessively increase the cost of goods and services which would hurt businesses as well as end consumers.

The existing system in New Zealand is the Emissions Trading Scheme (ETS). In a cap-and-trade system, the government sets a maximum level of carbon that can be emitted throughout the country, and then distributes permits (or "carbon credits") out to companies for free that allow the company to emit carbon up to the value of the permits they hold. Those companies are then able to trade those carbon credits as necessary - some companies will be given fewer credits than they need, and will have to purchase from other companies who hold more credits than they need. Eventually, the government stops distributing permits, as carbon absorbers (such as forest owners) "generate" carbon credits that they can sell into the market. The idea is that carbon emissions are controlled by market mechanisms - supply and demand drives the price of carbon with as little government intervention as possible. With a floating price, carbon generally becomes more expensive over time as the government tries to reduce the overall cap but companies want to grow. As the price rises, companies are increasingly incentivised to find other ways to conduct business without emitting as much carbon, and thus the goal of the government is achieved. There is a dual incentive because as the price rises it also becomes more profitable for companies to plant trees and earn carbon credits to sell on the market. However, because the price is floating it provides less certainty for businesses, especially since the price of carbon can be difficult to predict. This makes it harder for companies to price their products for customers, who generally expect stable prices. This is one of the biggest problems identified by the Green Party in the existing system - companies are generally forced to pass a larger cost onto their customers (for example, the price of carbon might be $22 per tonne of CO2 but the company uses $25 per tonne of CO2 in their pricing - customers would be annoyed if a bottle of milk cost $2 one week and $2.50 the next week and $2.20 the week after due to the carbon price changing) to allow for price fluctuations and a general upwards trend over time (it's better for the company and customer expectations to just keep the price at the upper level).

The Green Party policy is to replace the ETS with a Carbon Tax. In this system, the government sets a carbon price, and then all emitters are forced to pay a tax on their emissions to the government. In comparison to the cap-and-trade system, the price of carbon is fixed, not floating at the whim of market forces, but it is important for the government to get the price right. Additionally, the government increases their revenue and can spend the money from the tax on other policies such as incentivising forestry (and thus tree planting that absorbs carbon) or providing income tax cuts. The intended effect of the tax is to force companies to avoid the tax by changing their processes to emit less carbon, or alternatively to generate enough revenue to reduce carbon emissions in other ways (such as tree planting), thus achieving the goal of the government. However, there is no limit on the amount of carbon emitted - as long as companies (and their customers) can afford the price of carbon, then companies can continue to emit. Ideally, companies will change their processes to reduce carbon emissions if the carbon tax is high enough, but in reality companies generally just pass the cost of the carbon tax onto consumers (similarly to GST), which may not actually incentivise any behavioural or process changes in the carbon emitters. Purely theoretically, there is also no dual incentive to plant trees because there is no reward for doing so, although in reality most carbon tax systems use some of the revenue to give subsidies/grants to forestry. I should note here that some economists advocate for a hybrid design - some mixture of both; for example, a cap-and-trade system that has government defined price floors and ceilings to restrict the market between reasonable values. At the moment, the government essentially has a price ceiling by selling carbon credits at $25/CO2, so that if the market exceeds this price there is always an option for companies to purchase from the government instead of the market, forcing the market price back down.

Analysis of the Policy

The above background gives a reasonably theoretical view of the two main carbon pricing systems. Theoretically, both systems achieve the same ends - they reduce carbon emissions. The cost to carbon emitters is lower in a cap-and-trade system, but the government doesn't get any revenue (and generally ends up paying more money in subsidies and other schemes). The cost to carbon emitters is higher in a carbon tax system, but the government can generate a significant amount of revenue. Which system a country uses therefore becomes influenced by ideology - a right-wing government that is more business-friendly and believes in smaller government favours a cap-and-trade system (as evidenced by NZ's ETS), while a left-wing government that believes in the welfare state and the power of government to help people favours a carbon tax. A right-wing government also tends to believe in the power of the free market to achieve economic efficiency (cap-and-trade), while the left-wing government supports government regulation and intervention to provide better control to ensure that the desired outcomes are achieved (carbon tax). The ETS was actually introduced in 2008 by the Labour government, before being amended heavily by the National government in 2009 and 2012.

Apart from ideology, it is important to look at whether the status quo ETS is working, and whether a carbon tax would resolve any problems. Pricing carbon is a relatively young strategy (the first was a carbon tax in Finland in the 1990s), and while there are now a large number of countries with either a cap-and-trade system or carbon tax, there is insufficient data to declare one system better than the other through empirical evidence. In general (page 12 of this document), European states have opted for carbon taxes while Asian and American states have gone towards cap-and-trade systems. So unfortunately, we can't look overseas for a "correct" answer. For this reason, I feel a little uncomfortable about Russel Norman's claims that the ETS is failed. We have to give these systems a bit more time to see if they will work; prematurely rejecting them would not only be wasteful, but might send us down the wrong track instead. Having said that, there are certainly some signs that the ETS as it stands in New Zealand may not be working.

At the root of the problems with the ETS is that the implementation in New Zealand does not match the theory. In an effort to appease business interests, the government was forced to phase in the ETS gradually, and the exceptions to the scheme just piled up. Right now, agriculture has been excluded from the ETS, which just doesn't make sense when agriculture is responsible for nearly half of all carbon emissions in New Zealand. The original intention was to include agriculture by 2015, but the lobbyists won and date for when agriculture gets included in the ETS is now not set at all. The argument is that forcing agriculture to pay extra for carbon credits (or a tax for that matter) increases the costs of production and hurts our competitive ability in export markets. This is a legitimate argument but goes against the entire point of carbon pricing, which is to force companies to reduce their carbon emissions by finding alternative ways to conduct their business. As indicated in the previous section, the ETS has also brought harm to consumers, as businesses forced to allow for fluctuating carbon prices have passed on higher costs to consumers than the actual costs of the carbon - some businesses are essentially profiting off the ETS. There are issues with the (free) allocation of carbon credits to certain industries, as well as the (previous) trading of carbon credits on the international market that largely undermine the ETS. There are many problems with the existing ETS, and something probably needs to be done to address them.

The question is then whether a carbon tax would resolve those problems or be otherwise more effective than the ETS. This is where the water becomes a lot murkier because there is little real evidence beyond assertions to show that a carbon tax would do a better job than a cap-and-trade scheme. An ideal carbon tax system as proposed might do better than the broken cap-and-trade system we have now, but realistically any carbon tax system is likely to be modified and weakened to meet the demands of businesses and industry. A broken carbon tax system is unlikely to be better than a broken ETS. It then comes down to which party has more resolve to withstand those demands - there is an argument that the Green Party will be more principled and stand stronger than the National Party. Whether this is true cannot be tested until the Green Party is in government, and cynically I'm not sure if the Green Party (as a support partner for the Labour Party) would be entirely immune from lobbyist pressures.

If we are to switch to a carbon tax, then we need to be aware of the side effects. Firstly is the massive cost in phasing out the ETS, re-educating the public and businesses, and re-implementing a new tax. This compliance cost is non-negligible, and would delay progress towards a working system. One of the most common arguments for a carbon tax is that it provides certainty for businesses because they know how expensive carbon will be - but for a carbon tax to be effective it has to be flexible to respond to changes in global markets and the environment, introducing uncertainty. Leaving the price of carbon in the hands of the government could therefore be dangerous - the intention is for the price to be relatively fixed without constant adjustments, which means that it is difficult and slow for the government to respond to change. Additionally, just like how the OCR is a blunt tool for controlling inflation, a carbon tax rate would be similarly blunt as it has less granularity than a market-set price. It is also difficult for the government to know exactly where to set the price - the Green Party has proposed $25/tonne of CO2 (except for agriculture, set at $12.50/tonne of CO2 (and paying out $12.50/tonne of CO2 to forestry)), but we can't be sure whether this number is too high or too low until it is implemented and we see the effects. At least in a cap-and-trade system, the price can correct itself quickly if the price is too high or too low - in a carbon tax, the price is set and difficult to change.

Lastly, the fact that there is no upper limit of emissions set in a carbon tax scheme means that there is potentially no limit to emissions. Yes, businesses are disincentivised from emissions and encouraged to use cleaner processes, but businesses simply pass the costs onto customers (it is probably important to note that the Green Party policy (page 12) to use the revenue from a carbon tax on tax cuts and a tax-free threshold would supposedly leave households better off even after taking the increase in household costs into account). In a cap-and-trade system costs are also passed onto customers (perhaps less efficiently), but at least there is a limitation on the total amount of emissions allowed. In the carbon tax system, companies continue to emit at will (at a flat tax rate), and pass the tax on. In the cap-and-trade system, if they continue to emit at will the price rises and it becomes increasingly expensive to emit more. From this perspective, it seems that a cap-and-trade system will probably achieve the desired end of limiting and reducing carbon emissions better than the carbon tax system. The only way to combat this in a carbon tax system is to set the carbon price very high, which is not responsive and would unfairly penalise all emitters when only some emitters may be increasing emissions.

Verdict: While I agree that the ETS as it stands is broken and untenable, I'm not convinced that a carbon tax is the best alternative - maybe that's my conservative economics coming through. I don't think that starting again is necessarily the right move - I would prefer to see a government make the ETS work like it was intended to by removing subsidies, enforcing the scheme on the agricultural industry, and in general make it more stable. Maybe some government intervention is needed to set price floors and ceilings, but that would be preferable (in my view) to a carbon tax.

A Policy A Day: Capping School Donations

In the lead-up to the election, we are going to examine one policy per (working) day. We've selected policies to be as balanced as possible across a range of policy areas and across the political parties. The idea is to explain the background, analyse the policy to investigate the pros and cons, and give a verdict on the policy at the end. Inevitably, some opinion will make its way in and we make no apology for that - after all, we're voters too. Also, I say 'we' because this series will feature some guest posts from other young people, to share their thoughts and ideas as well. A list of all the articles is available here. Enjoy!

Today's post is by Simon Johnson.

In July 2014 and to great public fanfare, the Labour party announced a package of educational reform designed to reduce inequality and improve social mobility amongst the young people of this fair land. Labour faithfully promises that it will, through the benign and liberal agency of the Ministry of Education, improve the life chances of all young New Zealanders, set the teachers free from the reign of the Hated Honourable Hekia Parata [1], and institute general happiness across New Zealand schools which will be set free from the shackles of poverty and oppression. In short, a new Jerusalem for education in New Zealand's "green and pleasant land." [2]

All good, tub-thumping stuff and an overall aim that no sensible commentator could argue against. Of course, making big political statements is easy but making real change requires detailed policies. Time, and Andrew's patience, prohibits me from examining each of Labour's proposed educational policies in the detail they deserve. Instead, I shall limit myself in this blog to focusing on the policy proposal which caused the most hot air in the public press: the proposed additional funding for those schools which do not charge 'school fees' or ask for 'donations'.

At the moment, a state school in New Zealand [3] receives money from the Government to pay for its day-to-day running costs [4]. The amount of money a school receives is roughly calculated on a per-pupil basis, with an additional sum if the school has a large concentration of the poorest students (through the 'decile system'). This, the Ministry of Education claims [5], gives schools the money they need to deliver the core educational curriculum.  In addition to this government income, a school may raise alternative income through other means – international students, trading income [6] and 'donations' are the most common – to fund the additional extras that a school wishes to offer its students. Crucially, a school is not allowed to make 'donations' compulsory [7]. Despite calling them 'school fees' and – worryingly often – exerting a degree of pressure on parents, a school cannot legally require parents to pay school fees [8].  The new policy idea is that the government will give additional money (at the rate of $100 per student) to any school that does not ask for donations.  In this new world, voluntary 'donations' will still be permitted but, so the Labour party believe, most schools will not ask for them. Instead they will take the easy money from the government. Of course, this is only true if the school currently reliably receives less than $100 per student in donations. Otherwise, they would act in an economically rational way and continue to accept donations [9].

As a starter, a close look at the data makes the Labour party look a little foolish. Their policy paper assumes 78% of schools will take up the $100 per student offer [10] and thus this will cost the Treasury $55M per year. To calculate these numbers, they made the erroneous assumption that most schools in deciles 1-7 receive less than $100 per student in donation income. As part of this paper, I have requested from the Ministry of Education school-level financial data [11].  This new data reveals that only 42% (vs. the predicted 78%) of schools get less than $100 per student in donation income [12]. Hence, assuming schools act rationally and only accept money from the government when it is less than their donation income, the policy is likely to cost the Treasury ~$29M (in 2012 dollars). Labour have miscalculated the price by approximately 50%. Oops.

The politically partisan amongst us can now stop reading and enjoy a nice 'yaa-boo' moment at the expense of a Labour party who have got their sums wrong, again. The non-partisan of us can sigh at another example of quick headline grabbing leading to under-developed policy solutions and make a plea (again) for evidence-based public policy.  However, what really concerns me is why this mistake happened. Why do the Labour party think that giving $100 per pupil will level the income disparity between schools? What does this show about Labour thinking?

Partially, it could be that the Labour party don't want to equalise the financial basis of schools, despite their stated intentions. They could also have just been lazy in the calculations. However, let's give them the benefit of the doubt and assume that they intended this policy to have a real impact. In my view, the key reason for this massive misunderstanding is that I don't think the Labour party have got their heads around the extent of the difference in income between the richest and poorest schools in New Zealand.  The richest schools in New Zealand (those in decile 10) have, on average, 59% more income than a school in decile 1. This is additional purchasing power, of the sort of that funds swimming pools, sports facilities and the like. This additional purchasing power is driven by a hefty difference in donation income. 43% of a school's budget in decile 10 is comprised of donation income; 1% in decile 1.  This conclusion doesn't really surprise anyone ('of course decile 10 schools can charge more fees, they have richer parents') but what is amazing is the scale. For every $100 that a decile 1 school spends, a decile 10 school spends $159. This, when magnified over a school's scale, is a phenomenal difference in real spending power – as the next graph shows.

(A technical deviation: the average size of a school in decile 10 is significantly greater than a school in decile 1. Given this, it could be argued that this next graph should not look at the total income per school but instead look at the total income per pupil. If we did this, we would find that decile 1 schools have significantly greater funding per pupil than other schools. However, I would reject the conclusion that follows from this (that there is no issue with regressive funding) – what matters is that high decile schools have a much greater purchasing capacity, which is partially driven by their scale effect.)

Faced with this massive, massive difference in income between schools, $100 per pupil is pretty irrelevant. A government grant of $100 per pupil is simply not enough to rectify the difference in spending power between the poorest and richest schools. The graph below makes this clear: the light yellow bars show the average funding (from all sources) today; the dark yellow bars show the average funding that a school would recevieve under the new model. Nothing changes. The policy does next to nothing to reduce the difference in income between schools of different deciles. Of course, this is not the same as saying that a school will get more money: 42% of schools will get more money to spend. The problem is that this new extra money will be spread evenly across all deciles. If the aim of the policy is to reduce the difference in spending power between schools of different deciles, it will manifestly fail.

So let us ask ourselves a slightly different question: is it a good thing that the New Zealand government should give additional funding to schools (at some amount) if the school agrees to not accept donation income?  In other words, is this a policy which matters?

New Zealand is relatively unusual within the western world for having a culture of school donations. A non-exhaustive benchmarking exercise [13] reveals that UK state schools are completely prohibited from receiving donations by law [14]. Donations, it is argued, would be unfair because they would deliver superior facilities to richer children who could afford to pay for them. As New Zealand shows us, this is undoubtedly true: the facilities offered by a decile 10 school are of a different order to a low-decile school. Crucially, it cannot be shown by any rigorous study that such facilities make a difference to student outcomes. As John Hattie's marvellous book shows, the provision (or not) of sports facilities, drama studios and expensive camps actually makes only a tiny difference on education performance. Much more important to outcome is teacher quality and motivation [15]. If it could be shown that poor children did worse in their exams because they were denied the opportunity that this money can provide, then there would be a compelling case for government invention to level the playing field. This cannot be shown and therefore there is no outcomes-based reason to restrict donations.

(Another technical deviation: due to the mechanics of teacher funding in New Zealand, schools cannot use donation income to pay for teacher salaries or for more teachers [although they can pay for more teacher-aides and teaching assistants]. This is deliberate and limits the ability of richer schools to 'poach' good teachers with higher salaries.  There is a different and much longer argument to be had about whether this protection fully works (a clue: it doesn't) but that is a deviation from this argument. For the moment, it is sufficient to note that being a richer school is not linked in a straightforward way with the ability to pay more for teaching staff.)

This conclusion doesn't feel entirely satisfactory. Even if better sports facilities and drama studios do not lead to better examination outcomes, one could still argue that it is unfair that poorer students are denied the opportunities that the state system (which is meant to be equal for every student) provides to richer students. This is a matter of personal political convictions and a personal definition of what is meant by 'fair'. For myself, I make no clear adjudication on the issue, but I do very clearly acknowledge the political difficulties of abolishing donations in New Zealand.  I leave it for the reader to decide whether they consider this massive difference in income between schools in the state system 'fair'.

Back to the policy. We can conclude:

- The Labour party has got its sums wrong: its proposed change in donations policy is likely to cost 50% less than they predicted and affect only half as many schools as they anticipated [Editor's note: assuming that they stay at the proposed $100/student]
- There is a very real difference in spending power between New Zealand's richest and poorest schools, driven by donation income – and the proposed $100/additional per student does very little to address this.
- This donation income is affecting the amount of facilities a school can provide – but there is no robust evidence that these facilities make students perform better in exams
- Whether to restrict donations comes down to a matter of personal understandings of 'fairness' and whether we think it right that rich schools should have better facilities

The result is that Labour's big new education policy is a bit of a waste of political capital. It will make the budgets of the very poorest schools a bit easier (although it won't bring them up to anything like the level of a rich school) but does not remodel the education system. Rich schools will remain just as rich as they are now; it is not a full-fronted attack on the very real income disparity that exists between schools.  If this is something that Labour are passionate about tackling then they should really tackle it. If it is not a priority, and the evidence suggests that it should not be, then Labour should have spent their time on something which really matters – like teacher quality.

Conclusion of the conclusion: the policy is a waste of political effort. Focus on something which matters.

Simon is a former Treasury official and is now a management consultant. He writes in his personal capacity and has no party-political affiliation. All data is Ministry of Education, released under the Official Information Act and is from 2012. He is happy to share the data on request. He would like to thank the officials who responded so willingly and helpfully to his data requests. He would also like to thank the three people who commented on the article in draft form and whose helpful comments clarified many areas. [Editor's Note: The author no longer resides in New Zealand. He's also rather tall and very British.]

[1] The current Minister of Education, should anyone's memory need a refresh. Refer to also 'Novopay' and 'class sizes' debacles.

[2] As William Blake nearly said.

[3] This paragraph refers to state schools, not integrated schools which have separate funding arrangements.

[4] It also receives money to fund one-off capital (building) expenditure - a different topic.  Teaching salaries are also paid direct by the Ministry of Education, on a national pay-scale, driven by the number of students.

[5] And some headteachers very strongly dispute

[6] e.g. renting out facilities to community groups etc.

[7] The right to a free education is guaranteed by s.3 of the Education Act (1989) – a provision which does not prohibit schools from charging for other non-core expenses (such as school camps, etc.)

[8] This is different for international parents

[9] This is a simplification, obviously, which assumes the transactional costs of donation-receipts to be negligible and no political/ideological reason to act in an economically irrational way.

[10] They don't bother to publish this number. I have worked it out for them based on their stated assumption of 100% of schools in deciles 1-7 accepting the offer and 30% of schools in deciles 7-10 accepting it.

[11] The OIA act is a wonderful thing  - I would encourage people to make more use of it.  This data is now available on request from me to anyone who wants it. [Editor's note: Comment below or tweet at Andrew]

[12] I make two assumptions in this analysis which (unlike the Labour party) I shall make explicit: firstly, this is 2012-3 data, the last year available. It may have changed non-materially in 2013-4. Second, there are a small number of schools who do not report donation income. Unfortunately, I have been unable to ascertain from MinEdu if these are schools which do not report donation income or schools who don't collect them so have excluded all of them. This is very unlikely to change the analysis in a non-trivial way

[13] A fancy term for me google-ing [Editor's note: and not bothering to look very far]

[14] Although new models of 'academy' education are starting to change this, it remains true that there is no culture of parental donation to schools

[15] John Hattie Visible Learning

Who's on The Civilian Party List?

I received my election pack from the Electoral Commission on Friday, which included the party lists for the election. Expecting The Civilian Party to only have one name (and a pineapple) on their list, I was pleasantly surprised to find eight names on the bit of paper. So let's have a closer look at who these people are, using only the first page of Google to see what we can find (Disclaimer: this is just what Google says, these might be the wrong people or it might be the wrong information. Having said that, Google knows everything right?):

1 UFFINDELL, Ben

Ben is famous enough to have his own Twitter account, and is the editor of The Civilian Newspaper (on the internet). His bio on that website lists him as a former Vice-Chancellor of the University of Canterbury (false), married with a six year old daughter (false), and a belief that he is better able to inform the public of the news than the actual news (plausibly true). He was a finalist for the NZ Herald New Zealander of the Year in 2013 and spoke at TEDx Christchurch, where he revealed that he was actually born in Whangarei (formerly known as Wangarei). His degree from the University of Canterbury is in Political Science. He is the public face of the party, appearing on TV a few times, much like Colin Craig for the Conservatives or Peter Dunne for United Future or Winston Peters for NZ First, so they're all pretty much the same.

2 WALSH, Lucy-Jane

Lucy-Jane appears to be a Business Analyst for the Canterbury Earthquake Digital Archive (CEISMIC) at the University of Canterbury. Her degree from the University of Canterbury is in English Literature (with Honours). She was once reported missing with her father while tramping, but they were found two days later safe although hungry and cold. She once commented on a Civilian post on Facebook, saying "brilliant".

3 GOWER, Marcus

Marcus, a former IT Consultant, is currently a Councillor on the Waipa District Council representing the Te Awamutu Ward. His party is listed as "The awesome choice!" His wife was featured in a rather long article in the Daily Mail in 2008 for being "used" by a gay man who was actually in love with their priest and was later married in Britain's first gay church "wedding". Projects that Marcus has worked on within the Council include a cycle strategy, community gardens, and a new library and museum.

4 TOPP, Michael

Michael is a civil engineer working at Harrison Grierson, graduating from the University of Canterbury with an Engineering Honours (2nd Class Division 1) degree in 2013 (according to LinkedIn). He once wrote an open letter to Nick Smith fighting against fracking that was published in the student magazine Canta in the column that was normally written by Ben Uffindell.

5 O'NEILL, Katie
Katie is possibly a photographer in New Plymouth, a mountain biker from Rotorua, a copywriter/project manager in Christchurch, or a racing horse in 1995 from Matamata. On the balance of probabilities I'm going to guess that she's the one with a BA in English and Japanese who enjoys long walks, good friends and travel (but not Oxford commas).

6 BERGER, Harry
A former Wellington College student who earned four Outstanding Scholarships and one Scholarship (making him one of ten Premier Scholars in 2012), Harry is a student at the Victoria University of Wellington where he has a Victoria Excellence Scholarship. He once debated with the Victoria International Leadership Programme (VILP) on "Is inequality natural?" where his team won 49-43. This may or may not be his Twitter account.

7 McLEOD, Tim
There are a number of Tim McLeods on Google, but he is probably the civil engineer who graduated from the University of Canterbury in 2013.

8 DOWNING, Kim
Kim perhaps wins at keeping her life private - all that could be found was an empty LinkedIn profile.

A Policy A Day: Castle Doctrine

In the lead-up to the election, we are going to examine one policy per (working) day. We've selected policies to be as balanced as possible across a range of policy areas and across the political parties. The idea is to explain the background, analyse the policy to investigate the pros and cons, and give a verdict on the policy at the end. Inevitably, some opinion will make its way in and we make no apology for that - after all, we're voters too. Also, I say 'we' because this series will feature some guest posts from other young people, to share their thoughts and ideas as well. A list of all the articles is available here. Enjoy!

Today's post is by Bhenjamin Goodsir.

Today’s policy is the ‘Castle Doctrine’. This policy has taken many different forms but the basic idea is that a person’s house is their castle and they should be able to protect themselves and their property however they see fit. This is one of NZ First’s Law and Order policies and is also supported by Colin Craig and the Conservatives. Both parties say the main reason behind the policy is that even if it isn’t illegal to defend yourself in your own home, under the status quo those who do defend themselves often have to go through a trial before being found not guilty. Trial, they argue, is mentally taxing and expensive. Both parties seek to widen the scope of the self-defence and defence of property provisions so that people who defend their homes can avoid being charged and the costs associated with the trial.

The problem is that neither party is particularly clear on how the policy might actually work. Moreover, when it comes to the criminal law, many people are familiar with the concept of ‘self defence’ but less familiar with how it actually works in a trial. First then, I’m going to take a look at what the law is currently, then at how the parties a proposing to change it. Finally I’ll wrap up with what that all means practically.

Self-Defence in New Zealand

Section 48 of the Crimes Act defines Self Defence. When self-defence is raised, the court will consider the following:

Given the circumstances as the defendant believed them to be:

- Was the defendant acting in self-defence (or in defence of someone else)?

This is an important requirement. The defendant must have believed they were acting to protect themselves or someone else from imminent danger. It is not enough to simply be protecting your property.

- Was this exercise of self-defence reasonable?

The use of force in self-defence should be proportional to the danger faced. What is reasonable in the circumstances will be a question for the jury but it does not exclude the use of weapons and even firearms in self-defence.

If the answer to both of these questions is yes then we say that the defendant was justified in their actions and they are not held to be criminally liable for their actions. It is important to remember that these questions are considered based on what the defendant believed the situation to be, not what it actually was.

But what if the defendant doesn’t believe that they are in imminent danger? What if they are simply looking to defend their property?

Defence of Property

Under section 52 a person may use reasonable force to resist moveable property being taken by a trespasser so long as you don’t strike them or cause them bodily harm. Similarly, under section 55 a person my use necessary force to prevent someone else from breaking and entering, including after they have actually entered the house. ‘Necessary’ force here, is a tighter standard than ‘reasonable’ force. The distinctions between these defences and their effects are all a little bit difficult to understand, so let’s look at some examples.

R v Oates

In this case, 2 men wearing balaclavas and carrying shotguns entered Mr Oates’ house in the middle of the night. While his wife was being seriously assaulted, Mr Oates was able to escape and retrieve his gun. It was only after he shot one of the intruders that the assault stopped. He was charged with murder – the facts were a little more complicated but the prosecution basically argued that Mr Oates shot the intruder out of anger rather than self defence. The jury disagreed and found that he was acting in self-defence and that his action was reasonable.

Even if the intruders hadn’t been attacking Mr Oates’ wife it probably would have been enough that they were wearing balaclavas and carrying shotguns. A pre-emptive strike can still be reasonable. For NZ First and the Conservatives the issue in this case is not so much that Mr Oates was found not-guilty but rather that he was even charged in the first place.

Let’s look at another example

R v Frew

Mr Frew was moving into a new house and shifted most of his stuff in – he intended to move in with his family the next day. When he arrived the next morning he discovered that a lot of it had been stolen including a tent. After reporting the robbery the police warned Mr Frew that the thieves might return given they had forgotten to take the tent poles. Mr Frew arranged for his family to stay elsewhere for the evening while he slept at his new house with his gun. When the thief returned during the night, Mr Frew promptly shot him in the leg without warning and called the police. After the shooting Mr Frew was interviewed by the police:

P[olice]: What was your intention?

F[rew]: My intention was to shoot one and wait till the police arrived […]

P: So right from the outset your intentions were to shoot an offender?

F: Yeah, I'm no hero, I wasn't going to get up and grab one, he got no warning, just shot.

P: You shot him in the legs deliberately?

F: Yeah, there is no mistaking that, I could have shot him in a big part of his body but I deliberately shot him in the legs. From the time I heard him coming in the window I had the gun at leg height.

[1993] 2 NZLR 731

Mr Frew was found guilty of Wounding with Intent to Injure. He could not claim self-defence because he had no belief that he was in any personal danger. He tried to rely on the section 55 defence – that he had used necessary force – to prevent the breaking and entering. The jury disagreed.

It might have been open to the jury to conclude that shooting the thief in the leg was ‘reasonable’ (the legal standard for self-defence) but the section 55 standard was only what was 'necessary’. Proponents of the ‘castle doctrine’ would very likely argue that Mr Frew was more than justified in shooting the intruder.

NZ First’s Policy

On their website NZ First describes their Castle Doctrine as ‘empowering New Zealanders to defend themselves and protect their homes and families with all necessary force.’ You’ll probably notice that this doesn’t really change the current law at all. A New Zealand Herald article on Richard Prosser (NZ First MP) suggests that homeowners should be able to use "’any firearm that is lawfully available to that person’ to defend themselves.” Again, this isn’t specifically excluded by the current self-defence provision. I would infer that they want to make it clear that to shoot someone in self-defence in your home is a special case that will be considered reasonable. This wouldn’t have helped Mr Frew though, who, as we saw, wasn’t acting in self-defence.

Mr Prosser also mentions they would base their law on the Irish Castle Doctrine law that was instituted in 2011. If a similar law were instituted in New Zealand it would do 3 things:

1. Allow a person to use ‘reasonable’ force to protect their house and property (rather than just necessary force).

2. Confirm that there is no duty to retreat (also known as a ‘Stand your ground’ law)

3. Confirm that a use of force shall not exclude the use of force causing death.

Essentially this would change the section 55 standard from ‘necessary force’ to reasonable ‘reasonable force’. If such a law had been in place for Mr Frew, would he have still been found guilty? Maybe, maybe not. It would still have been a question for the jury which means that he still would have gone to trial.

The Conservative Party’s Policy

On his ‘Ask Colin’ section, Mr Craig states that he supports a ‘Castle Doctrine’ law but the policy isn’t really fleshed out anywhere on their current site. At the last election however, the Conservatives had quite a detailed policy:

The [Conservative] Party supports the "castle" doctrine under which persons who invade others' homes or property have few rights, and law abiding citizens can – within some limits – do whatever they deem necessary to defend themselves or their property. Only in the rarest and most extreme circumstances should law abiding citizens find themselves facing charges arising out of situations where they have protected themselves against criminals threatening either themselves or their property. Those "rare and extreme circumstances" should be clearly stated and enshrined in legislation.

I assume that if they were to support such a policy in parliament in the future it might look something like this. This statement of the castle doctrine is, in my opinion, more extreme than NZ First’s and much more in line with similar laws in the United States. Although they haven’t stated what the ‘certain limits’ are if they are wide enough to let a person shoot an intruder then there won’t be much that is prohibited. This policy, or one like it, would go a long way towards preventing home owners from being charged for attacking intruders on their property. The question is, at what cost?

The role of the Judicial System

Underlying this whole discussion is the NZ Bill of Rights Act. Section 8 is the right not to be deprived of life. If the defence of property provisions swing too far in favour of the homeowner then we start to see a real danger of infringing on people’s rights – even where these people are committing crimes. Ultimately the role of the court and the jury system is to make these sorts of judgement calls on what, in the circumstances, is reasonable or necessary. There are real problems with giving homeowners carte blanche to act as they ‘deem necessary’ – the reason we have our jury system is to decide on questions such as this. The advantage of the current system is that the verdict is very much based on the specific facts of the case. If a ‘Castle Doctrine’ law were brought in, there is a real concern that in order to effectively prevent people from being charged in cases such as the examples we discussed, it would have to be written so widely that even people who probably should go to prison would be able to use the law to escape conviction.

We should also be asking ourselves whether this is even something we want in New Zealand. Should we be encouraging more widespread use of firearms for protection? We only need to look at the statistics in the USA to see that higher levels of gun ownership don’t correlate with lower levels of crime. Even if you accept that criminals who are shot or killed under this law ‘get what’s coming to them’ the reality is that by encouraging people to defend their houses with violence or lethal force, it is inevitable that innocent people will be hurt as well. Take for example, the man who shot and killed a policeofficer executing a no-knock search warrant (and was found not guilty for murder), or the grandmother who shot her 7 year-old grandson when she mistook him for a burglar.

Verdict: This policy plays on the public’s ignorance of the current law. The rhetoric of ‘get tough on crime’ politics is always very popular with voters, and particularly with the target demographic of NZ First and the Conservatives. I think that the current law is about right – the current defence provisions allow juries to make reasoned decisions based on the facts of each case. I think there is a real risk of innocent people being hurt and I’m not convinced that encouraging more widespread use of firearms will, in fact lead to a safer society. In short, it’s a no from me.

UPDATE (12/09/14 2:05PM)

Act Party Policy

Today’s post is apparently well timed because ACT has chosen today to release their ‘Right to Defence of Person andProperty’ policy. This seeks to address many of the same issues raised by NZ First and the Conservatives. ACT proposes the following law change:

“The onus of proof will be on the prosecutor to prove the accused did not believe, in their own mind, that they had to take whatever action they did to defend themselves or their property.”

My reading of this is that essentially it would change the legal test from an objective standard to a subjective standard. So instead of the jury deciding what was reasonable or necessary in the circumstances they would have to decide what the defendant thought was reasonable or necessary in the circumstances. The bit about the burden of proof isn’t any different to our current law. In general, this is out of step with the rest of the law where objective standards are used to provide certainty and consistency.

Additionally, ACT’s law change would seem to have the same standard of defence whether you a protecting yourself or your property. For me this is a bit concerning. I am not convinced that it should ever be reasonable to attack someone in order to protect, say, a teapot. I am reminded of the very controversial case where Bruce Emery stabbed and killed atagger after discovering that he had tagged all over his fence. Given that under the current law Mr Emery was convicted of manslaughter, a provision such as this might have been enough to allow him to escape without a conviction. Many may disagree but I think that would have been a grossly unjust.

In addition to changing the legal test ACT also proposes three other measures to protect home owners in cases such as these:

- The decision to prosecute a home owner in cases such as these must be reviewed by the Solicitor-General based on a ‘public interest’ test.

It’s hard to analyse this without know the details of the suggested test. The biggest issue I see with this idea is that it would very likely open new avenues of appeal. The Solicitor-General’s decision would very likely be open to judicial review (Where the courts decide if the decision was made correctly) and this could extend the time it took for a case to get to trial and make any decision more uncertain.

- Where it is at least arguable that a person was acting in self-defence they will be entitled to legal-aid; and

- Where a person is acquitted of charges because they have successfully argued self-defence they will be entitled to full compensation from the crown.

These last two elements of the policy deal with the central issue that all 3 parties are trying to solve. There are certainly cases where people who have acted in legitimate self-defence and have nevertheless been put on trial. In law defences are categorised  as either ‘excuses’ or ‘justifications’. Self-defence is categorised as a justification where we say that they are not-guilty AND their actions were, in fact, justified. In cases such as these I see no problem with ensuring that a person who acted in self-defence does not suffer financially. How much this policy would cost the government is another question and unfortunately not one I have time to investigate.

Updated verdict: Of all the ‘Castle doctrine’ policies that I’ve considered, ACT’s is probably the most reasonable. I still don’t think there is any need to change the defence provisions and the change proposed by ACT is too uncertain I think. Covering the cost of people who are acquitted in such cases is a reasonable solution to the central issue here and there is no reason why this aspect of the policy couldn’t be implemented on its own.

Bhenjamin [Editor's Note: not a typo of his name] is a 3rd year student studying a conjoint degree in Law and a Bachelors of Arts in Criminology and French. He is politically neutral with no affiliations to political parties. He’s interested in public policy and the process of turning ideas into law but also cooking and dogs.