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Double Edition on The Nation & The ERB


Keeping Faith & Good Faith: Double Edition on The Nation & The ERB

Previous editions of upton-on-line have, from time to time, taxed the patience of some readers. They’ve been rather long. So here’s an up-front caveat: this edition covers two important issues. One is the Employment Relations Bill. The second is the extent to which our nationhood is going to be shaped by the Treaty of Waitangi.

If you’re not interested in the ERB, then go to Quo Vadis New Zealand (below). It’s based on a major speech delivered at a seminar at Parliament today. I’ve reproduced key sections from the speech. But be warned – but they’re still lengthy.

Coercing Good Faith

It's amazing how smooth words and bland titles can, like lettuce for the Flopsy Bunnies, put everyone to sleep. There is something deeply soporific about the name Employment Relations Bill and when you add in good faith bargaining deep narcosis sets in.

If the Government had introduced a Strike Facilitation Bill the unsuspecting public might have been roused from its slumber. The dogged beavering of Max Bradford and Richard Prebble induced enough wakefulness among employers to cause a round of alarm about three months ago. Since then, the Government has been maintaining the anaesthetically soothing claim that it will "listen to business" - with a numbing effect.

Only now, with the Bill being reported back to the House, is the extent of the Government's disingenuousness becoming apparent. Far from performing radical surgery on a seriously flawed bill, the Government - under cover of its charm-induced narcosis - has left almost all the objectionable provisions of the Bill intact.

Why? Because they're not objectionable at all for a Government that has, from the outset, been determined to deliver back to unions much of the power they used to enjoy - and abuse.

Employers are starting to realise this. But is the public at large? This is a technical sort of Bill, filled with terms of art. The Government's explanation to any uninformed question is that all it wants to do is restore good faith to employer-employee relationships. And who will object to that?

A more honest answer is that the Government is legislating to impose a third party - a union - between employers and employees. And that that party has some very special privileges.

Loading the Dice

One of the most dishonest features of the Government's communications strategy is its insistence that employees don't have to join unions; and that they are free to bargain directly with their employer. That's true - in much the same way that you're free to swim outside the flags on west coast beaches. Here's why.

Any group of non-unionised employees can bargain directly with their employer. But they can't conclude a single contract (a collective agreement). All they can do is conclude a series of individual employment contracts.

That's a real turn-off for employer and employee in many cases. From the employee's point of view it means they have to join a union to get the perceived security of a collective contract. From the employer's point of view it creates a situation where they cannot directly offer the staff a collective contract, even if it is what both the employer and the staff want.

So if you want the advantages of a collective contract, you have to belong to a union. So you're forced into a union just so that you can be party to a contract that covers more than one person. In other words, you either swim between the flags or you're not even allowed onto a beach where anyone else is present.

But why should this be such a matter of concern? purrs the Government's communications machine? If you object so strongly to the unions on offer, go out and start one yourselves. This is a bit like telling people in Whataroa that if they haven't got a bank they can go and start one. It might just be possible for the residents of Pauanui, but it certainly won't work anywhere else. Only the biggest employers can seriously suggest this course to their employees - as the Warehouse has done.

Multi-employer Mayhem

At the end of the day, though, the Government knows that most New Zealanders won't really be up in arms until it's too late and the consequences start to effect daily life. That's when the industrial unrest starts.

The smooth, soporific line from Margaret Wilson is that this just won't happen. Remember, good faith bargaining will spread its sedative effect around the labour market and bosses and unions will lie down like lambs together.

The only trouble is that the Bill was designed to give unions the right to strike in support of multi-employer bargaining. Under current arrangements, trouble in one firm stays where it started. The costs of lock-outs and strikes are imposed on the people who failed to work together successfully. Under the new arrangements, unions will be able to call workers out on strike in businesses that have simply no connection at all with the cause of the problems. Here are just a few exciting prospects that now await us given the new leverage unions will have:

1. Negotiations are occurring on the waterfront at Port A. The employees want a multi-employer contract. To put added pressure on the employers, the union can call a strike in both Port A and in all other ports where they are endeavouring to obtain multi-employer coverage, bringing New Zealand's export industries to a halt.

2. A group of engineers at a timber mill are negotiating for a national contract and call a general strike. Other companies which employ engineers who also wish to be covered by the multi-employer document, but may be in entirely different industries such as aircraft maintenance, are affected. Furthermore, those employers will not be able to require other employees to cover the work during the strike.

3. The pilots are negotiating for a multi-employer document covering themselves and air traffic controllers. A strike occurs at the beginning of October and our athletes will have to be content with watching TV coverage of the Olympics because the airlines will not be able to hire replacements.

4. There is now competition on the Cook Strait. But if a multi-employer strike is called by one of the maritime unions, long queues may once again be forming on the Wellington wharf at the beginning of each holiday season.

If this is starting to remind you of the balmy days of the 1970s and 1980s when holidays were routinely disrupted and New Zealanders shared a sort of gallows humour in the face of closed offices and idle vehicles then you’ll know what’s round the corner. It was such a bundle of fun back then wasn’t it? Bring back the bad old days.

Keeping Faith with the Treaty: How Far?

Last week, upton-on-line reported on two new debuts by Treaty extensionists. The first involved the ERMA decision on GM cows (which did not accept the viewpoint of the Maori Advisory Committee). We can now report that the decision is being appealed so the courts will soon be being asked to write new law. The second concerned the Treaty rearing its head in trade negotiations.

The over-arching question we all have to debate is just how far our national existence should be defined by the Treaty of Waitangi. Upton-on-line has been pondering this question in the wake of the constitutional hui held in Parliament’s Legislative Council Chamber earlier this year. (See our reporting at ).

Today upton-on-line returned to the very same chamber to address a seminar sponsored by Legislation Direct. He was asked to speak to the topic Quo Vadis New Zealand? alongside a raft of luminaries speculating on the overall seminar topic of Has New Zealand Come of Age? What follows are excerpts from the speech which posited three scenarios. The first was based on the premise that we might wish to be outward-looking and embrace a world in which the movement of people and capital limits the extent to which we might like to indulge our differences:

The first scenario … would be to operate as Australia’s outrigger.

Now being an outrigger doesn’t mean becoming a dependency. There are other outriggers – Canada vis a vis the United States is a conspicuous example – that have maintained their identity but been open to association and integration with their neighbours.

Outriggers can also provide balance and perspective to otherwise complacent or off-balance centres of gravity. For instance, we can truly offer Canberra balancing perspectives. Australians have come belatedly to developing a dialogue and reconciliation process with their indigenous people. From living together as New Zealanders, we have considerable experience, “nous” and tact at living in such relationships, over six generations in fact of success and failure on both sides, and considerable joint achievement.

That experience should be valuable to Australia in its engagement with the Melanesian and Papuan regions - throughout the so-called Arc of Instability, as indeed our facilitation of peace negotiations on Bougainville proved.

Importantly, this way of seeing our future is not dependent on us entering into a closer political association with Australia (which I personally believe to be impractical). But if New Zealand did ever wish to surrender its sovereignty to enter into closer association with Australia, mere statehood wouldn’t be enough to reflect our long period of independence and Treaty of Waitangi relationships. Nothing less than a Quebec relationship, a Charlotteville accord, would do. (That is probably the reason why Australians are generally so coolly dismissive of any proposal that we federate with them. Indeed, the very mention of Quebec would probably be enough to put paid to the prospect should anyone seriously promote it!)

In this scenario we would be aiming for a sense of nationhood that was open to easy cultural and political fluency with the world at large and, in particular, the only serious nation in our immediate region. We would be relaxed about acknowledging Sydney as 'our' world class city (it is already head office for much of corporate New Zealand) and would place high value on the unique relationship we have with Australia when it comes to the free movement of labour between our economies.

This sort of approach to nationhood would want to celebrate its unique and special elements but would be confident enough about the resilience of them not to insist that the world has to engage solely on our terms. In other words, it would mean an acceptance that we need the world far more than it needs us and that only by being open to externally-driven change can we remain fully connected.

To pull this scenario off we would need to:

 Accept that the only 'nation' we’re going to be able to build is the one we’ve got, and that to be viable in the future a nation like ours has to have a sense of shared enterprise
 See ourselves as world citizens in a South Pacific setting with both Maori and non-Maori acknowledging that neither has the 'clout' to make it independently on the world stage. New Zealand remains, in many respects, 'sub-critical'. There is less point breaking ourselves up on the 'sub-atomic' level of ethnic identity than there would be for some other nations
 Close the material gaps between Maori and European populations in a way that extinguishes the 'reparations' mentality that has invaded post-colonial discourse and convinces Maori that being open to the world – and to cultural change – is the path to a secure future
 Accept the Treaty of Waitangi as a founding document of New Zealand but make modest claims about its ability to interpret the way in which our terms of political association will lie in the future.

The second scenario takes the opposite starting point: that at the heart of our national identity is a bi-cultural reality that must permeate every nook and cranny of our society if we are to hold together:

The second scenario is one that sees us becoming increasingly absorbed by a sense of national separateness. In this scenario, our self-absorption would be focused on attempts to acculturate our political institutions to reflect a bi-cultural heritage.

To make this model work, we would have to become the Belgium of the Pacific. Scrupulous bilingualism would have to be observed in every aspect of public life in case the nation just blows apart. The Governor-General, (like King Albert II), and other public figures would find themselves making statements alternately in Maori and English to give absolute parity to each. A unitary state would be maintained but a litigious and vigilant spirit would infect all policy debate. On-going seismicity would ensue - this would be a faultline that, like the plate margin on which we live, would never be at rest. A veto button would exist over everything and as the world responded to each fast moving re-shuffling of the deck, we would be constantly trying to divine how the treaty should be reinterpreted to validate our course forward.

In the binary solar-system of this scenario, the indigenous Treaty Partner would resemble a dense neutron star, stripping gas and energy from its companion star, the “Crown”, until the two masses implode in a final supernova. The complicated laws of physics that would hold all this together for an aeon or two would be none other than the Treaty of Waitangi.

The problem with all this is that New Zealand would be denied an open-ended and flexible future as a nation. By insisting on the immutability of our bi-cultural heritage we would ensure that we are destined to wrestle alone with the issue of our identity (although with no guarantee that we will reach a shared understanding). Instead of exploring our “hybridity”, as the more inspired portions of the “Heart of Nation” report expressed it, we would be doomed to perpetual “difference” and “otherness” to one another on the legal, constitutional and socio-cultural planes. Our future would be one of constant constraint, of peering into our past, as our competitors sail on. Our energies would never be unleashed. Our self-absorption at preventing ourselves from going “nova” would become overwhelming. All this would occur to the detriment of our relations with the outside world. Australia, our linkage point with the resonating currents of world culture, would find us impenetrable and self-absorbed.

The third scenario is the most avant garde and is inspired by Moana Jackson. It would, in effect, be the first attempt at plural and competing sovereignties on the same land mass. It would be a bit like applying the theory of free banking (i.e. competing bank notes) to the business of government itself:

The third scenario is the most radical. It rejects the possibility of the unitary state we have created and would attempt a rather modern post-colonial collage of overlapping states. In fact it is the kind of state that would only be attempted if the second scenario had failed. Professor Winiata has given us one possible glimpse of this world. He proposes a constitutional settlement involving two coordinate legislatures with a Treaty House to sort out disputes between them.

This constitutional scenario would turn New Zealand into a country with divided sovereignty. Now, how are we to do that within the New Zealand scale of things? What would sovereignty sharing mean for schooling, policing, the judicial system, the whole gamut of core sovereign activities the New Zealand Government undertakes? Mäori and Pakeha, after all, inhabit the length and breadth of this land. There is no particular concentration of Mäori that would make a viable territory unless you want to carve out little Liechtensteins, Nuies, Naurus and San Marinos the length and breadth of the country. (The only alternative is Professor Raj Vasil’s bizarre proposal at this year’s constitutional conference for four radically different provinces in federal association).

Many Mäori identify as Mäori in the classic sense of identification through whakapapa and enrolment on the Mäori Electoral roll. In fact Mäori leaders insist that their definition of Maori is that they are persons with whakapapa. Yet many others, perhaps up to a third, neither affiliate nor enrol. Are we then to assist in conscripting a constituency for the autonomous Mäori authorities? For when intellectuals and activists fail to rouse the people on whose behalf they are agitating, conscription tends to be the response and a new process of colonisation begins. If that is so, we would be confronting the Wilsonian State in an exclusively ethnic form.

The problem is that Moana Jackson and others who share his sentiments define Mäori in terms of a nation (or nations) and demand some constitutional expression of that. They are classic nationalists. And a dialogue with them is very difficult since they have hermetically sealed their thought processes and arguments. Any attempt to break the tautological circle, results in one’s self-identification as a latter-day colonialist. Only from within the world of a genealogically defined nation can one talk about the terms of co-existence. Those who can summon no such identity – the colons – are forever colonists.

For Jackson and his adherents, the only state they would want to achieve, would be one for Mäori and themselves. The nation-state of New Zealand is just a white colonial power. “New Zealand” is something like “Czechoslovakia” or “Canada”, a mere convenience or inconvenience depending on whether Mäori are accorded equal sovereignty or not. And Czechoslovakia has broken up, while Canada is constantly on parole.

Even the Treaty undergoes extensive reinterpretation in the Jackson analysis. Article II acknowledges rangatiratanga. Article 71 of the New Zealand Constitution Act (1852) allowed for that by permitting a form of runanga self-government. However that isn’t good enough. Subordination of Article II to Article I of the Treaty implies that Maori are a “sub-people” according to Jackson.

Those who share his view apparently have no concern that budget votes and government agencies will have to be divided on ethnic grounds. Presumably the income any Mäori administration receives from its tax-base will be insufficient, so once again, the Crown will have to subsidise, under a Versailles-type reparations regime. Mäori who did not wish to be included in the tribal nations may well prove as elusive as ever when it comes to closing the gaps.

There would be a Mäori WINZ and a Pakeha WINZ. There would have to be separate Mäori Police, Justice and Courts systems if sovereignty were to be divided. And between these two systems, a mediating set of institutions would have to occupy the ethnic fault line between “you” and “me”. There will be no sense of “us”.

New Zealand would become one of the most over-governed and over-regulated nations on Earth. We would become the social laboratory for an experiment the rest of world would take warning from. Foreign investment and immigration would dry up. It would all be too difficult and too fractious to cope with.

Co-ordinate decision-making would exist throughout the "Condominium of New Zealand". Separate Pakeha and Mäori sovereign authorities would have to agree on any foreign policy situation. They might agree on East Timor but they might very well disagree on Zimbabwe for example.

Yet genetic convergence is fast developing in New Zealand. One can imagine most New Zealanders being able to identify both Mäori and Pakeha genes in their make-up by 2100.

Why then separate what will have to be brought back together? Or does Jackson intend Mäori sovereignty to grow like an epiphyte or a parasite on the rotting old tree of the Crown? Why does he not envisage that a new hybrid identity emerging of 21st century New Zealand? Even the recent Heart of the Nation report courageously embraced that concept.

Scenarios are just that: none of them will come to pass. But they can provide a basis for debate. Upton-on-line concluded in these terms:

These scenarios will be recognisable to those who monitor the unguarded daily conversations of New Zealanders. It would not surprise anyone here to learn that, if forced to choose, I would favour the first scenario. That is an uninteresting observation. The more important point to make is that in each case, it is how we wish to define ourselves as a nation that determines the sort of debates we will set up. The prominence and constitutional leverage we give to the Treaty of Waitangi will be the outward sign of how the debate is finally concluded.

That will be decided by the people of this country, in due course. I would just make the following observations (in no particular order):

 A treaty that is rejected by over 60% of the population and relied on by the balance (who nonetheless consider it to have been fraudulently disregarded) can scarcely be regarded as a point of national unity (making a scenario two outcome unlikely)
 An increasingly disgruntled population that finds no sense of reassurance in our constitutional arrangements is likely to seek solutions in nostalgic and populist politics that widens divisions and polarises attitudes
 A treaty that seeks to re-evaluate the basis on which we relate to the world will be a major source of uncertainty for inward migration and investment on which we rely to replenish our narrow and insular skill base
 No-one with skills is condemned to live here forever - those with internationally competitive skills can emigrate (and already are) to Australia and further afield
 Australia will only remain a safety valve for social and economic failure in New Zealand (by maintaining uniquely privileged free movement of labour between the two countries) as long as New Zealand looks reasonably viable. The more separated and complicated we become, the less reason Australia has to maintain open borders with us.,
 A country that is pre-occupied with endlessly debating the distribution of power and resources is likely to be a country that is less well placed to create new wealth and less likely to be able to make a confident contribution to regional and global affairs

My short summary is that there are real limits to the extent to which New Zealanders can indulge their post-colonial grievances and any national identity crisis that is believed to plague us. The gap between our living standards and those of other developed countries continues to widen. If that is not to continue we have to be more competitive and adaptive than we have ever been. We also have to be open to change and external influences. If we are too long absorbed by a quest for a new sense of national identity and constitutional reconstruction we may find that the nation we’re trying to grow may have become a desiccated shell for having been too long on the potting shed bench.

If you’ve made it this far and would like to read the whole speech (it will take about half and hour) click here
There are some interesting snippets on why New Zealand didn’t federate with Australia, how many Newfoundlanders died on the Somme and what Woodrow Wilson thought he was doing at Versailles…

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