OnPoint by Keith Ng


Sock-Puppeting Big Tobacco to Chew on ACT

Don Brash's speech on Saturday was pitched at farmers and property owners. The focus was on the RMA, but at the end of that, he tagged on a bunch of stuff about ACT's Regulatory Standards Bill, selling it as a way to protect property owners. Basically, it's about enshrining property rights in law, in the same way that fundamental human rights are enshrined.

So, "Rightwinger Wants to Enshrine Neoliberal Principles in Pseudoconstitution". Big whoop, right? But under the slogan "this land is your land", with Don Nicholson doing his best Barry Crump impersonation, they're selling RMA reform along with the Regulatory Standards Bill. Even though the latter has little to do with land, they want to get farmers on-board so they'll have an easier time pressuring National (while, at the same time, trying to eat their lunch).

I've never really understood the fuss over the Regulatory Standards Bill, but then I got a little help from my favourite corporate citizen, British American Tobacco NZ. In its submission on the Bill last year, it said:

While BATNZ broadly supports the principles in the Bill, we consider they could be improved in the following ways:

  • The principles should include a reference to New Zealand's international obligations, which is an important feature of the LAC Guidelines.
  • The principles should specifically state that an evidence-based assessment is required of the issue and the necessity of legislation to address that issue.
  • The 'Taking of property' principle.. should be amended to specifically state that 'property' includes both tangible and intangible property.

If you're not finding this hilarious yet, let me explain the joke for you.

Right now, Philip Morris is suing the Australian Government for billions of dollars over its plans to introduce plain packaging for cigarettes. Plain packaging means no brands, just pictures of lung cancer, rotten teeth and so forth. Philip Morris is arguing that this law would diminish the value of its trademark (i.e. Intangible property), and doing so violates a bilateral investment treaty between Australia and Hong Kong (i.e. Australia's international obligations).

Tariana Turia has said that "New Zealand will inevitably follow their lead and look to introduce the plain packaging of tobacco products".

BATNZ's submission went on to say:

There is no good reason to deny compensation for breaches of the principles in the Bill if compensation for breaches of the rights in the [NZ Bill of Rights Act] exists. The reasoning of the Law Commission in approving remedies under the NZBORA applies equally to the Bill; the Bill is closely modelled on the NZBORA and has been described as being functionally equivalent to a bill of rights.

Not only should the Bill not deny compensation, BATNZ considers it would be prudent for the Bill to be amended to explicitly allow damages for breaches, rather than leaving development of remedies to the 'slow and sporadic' common law.

So, what BATNZ is saying is: "Look, we appreciate having property rights enshrined in this Bill. If the government does anything that hurts our business, we can claim that this is a breach of Principle 3 and demand compensation in the same way that those who have their human rights breached get compensation. But we'd have to spend millions on lawyers, having them argue that our brands count as property under Principle 3 and that the only way to remedy a breach of this bill is with money. And it will take years! It'd be heaps easier if you, you know, did it for us."

It's pretty cheeky, asking the Government to change the bill specifically so they'd have less of a case to prove when they sued the government. But top marks for hilarity, Corporate Lawyers!

Such a use wouldn't be an abuse, a side-effect or a necessary evil to come out of the Bill. It *is* the Bill. It's intended to stop the state from interfering with private property, which includes the property of big businesses, which includes cigarette brands. Yes, it affects ordinary property owners too - but they don't have the resources to use it to fight the government.

We enshrine rights in our kinda-constitution because there are some things we don't want ourselves - as a nation - to be able to do even if we wanted to. That's why we enshrine the right to life, civil and democratic rights, and freedoms from the state itself. But do we really care about property rights in the same way? Do we really think that a tobacco company's right to profit off their brand should trump a democratic mandate saying otherwise? Because that's exactly what enshrining property rights in the pseudoconstitution means.

Hmmm, I guess it still doesn't amount to much more than "Rightwinger Wants to Enshrine Neoliberal Principles in Pseudoconstitution, Multinational Corporation Glad to Hear It".

But the BATNZ submission is also gleeful about evidence-based policymaking. This scares the shit out of me. The main problem for people like BATNZ is that hosting politicians in their corporate boxes only gets you so far - that is, not terribly far. They have deep pockets, but there just aren't enough opportunities for them to use it.

But if we were in an environment where policies have to meet evidentiary thresholds to become law, every evidentiary threshold would be an opportunity for them to throw money to impede the law (essentially, hire consultants to ceaselessly shit on our windscreen until we crash).

For example, their international strategy is to say that every measure that hurts tobacco companies will benefit the illicit tobacco trade, which is basically organised crime, which is basically terrorism.

(I kid you not. Check out this awesome video. BAT basically did their own episode of 24. Spoiler: The regulators are the bad guys!)

Anyway, because that's their international strategy, they regularly commission research on the illicit tobacco trade. In Australia, they've thrown money at PwC and Deloitte to do "estimates" of the size of the problem (which, funnily enough, always falls on the high side), backed up by surveys from Roy Morgan. In New Zealand, they got Ernst & Young to do the same thing.

They might be commissioned specifically to reinforce a global PR message, they might make claims about an inherently invisible market that are impossible to prove/disprove, and their estimates might always be higher than official ones, but they're still evidence. BATNZ seem to think that such an environment would work in their favour, and I have no reason to doubt them. In such an environment, players with deep pockets can afford to buy facts and hire an army of lawyers to hold them up.

Of course, an evidence-based policy framework doesn't have to be courts-based, or provide absolute thresholds for evidence to meet. But it's just something to think about for you policy wonks. And if you are a policy wonk, I'd encourage you to read BATNZ's submission for yourself. It's basically a wishlist of sharp objects they'd like to stab you in the eye with.


P.S. Don Brash, I know you're too busy to keep up with popular music the kids listen to these days, but I'm pretty sure the lyrics go "this land is your land, this land is my land", not "this land is your land, so you can tell everyone else to fuck off".

In fact, Wikipedia tells me that the original version of the song included this paragraph:

There was a big high wall there that tried to stop me;
Sign was painted, it said private property;
But on the back side it didn't say nothing;
This land was made for you and me.

I think you just made half a line of a communist song against private property your new slogan for private property.

Very post-mo.

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