Mark Thomson has provided a guest post on the patents issue. I’ll also be blogging a guest post from Guy Burgess on it, so we are truly fair and balanced!

Should software be patentable? Well, let’s first be sure that we understand what people mean when they talk about patenting software. Because it’s really not clear to me that everyone who has an opinion on the subject is seeing this in exactly the same way.

We know software can be copyrighted, and there are usually very good reasons to protect it that way. However I can’t say that I’ve ever personally seen a patent that defines a specific piece of software and I doubt that there are many situations in which that would be a good way to protect the relevant intellectual property.

Utility patents are concerned with invention – the creation of a new way of solving a problem that is not obvious to people who are skilled in the field. However, for inventions that are intended to be implemented as software, a genuine inventive step – i.e. the novel idea that is not obvious to other skilled practitioners – is usually defined at a much higher level of abstraction than the code itself.

To illustrate, here are a couple of patents I’ve been involved with myself –

http://bit.ly/OZ1jth
http://bit.ly/TYrYWY

I don’t expect these to make sense to many people (sadly, that often includes patent examiners!). However both of them involve significant, original insights into how to solve some very challenging, and (according to me :)) important, technical problems. These inventions resulted from extensive commercial R&D investment of precisely the kind that I believe patents are intended to foster. I can tell you that the world would almost certainly never know about them if they hadn’t been patented.

Note that there’s nothing in the specification of these patents that refers explicitly to software, and certainly no specific code is defined. Yet it is *completely* obvious to anyone who understands these patents that the only sensible way to implement them is in the form of software. But the details of what that software might look like is completely incidental to the essence of the inventions. And since the process of translating the invention as it’s described into a specific software implementation would not itself pass the ‘non-obvious’ test (that’s just what software engineers do), that process and any software that results from it could not possibly be part of any claims within the patent (but copyright protects the code itself anyway).

And then we have Clause 10A:
—
(1) A computer program is not an invention for the purposes of this Act.
(2) Subsection (1) prevents anything from being an invention for the purposes of this Act only to the extent that a patent or an application relates to a computer program as such.
—

I’m happy to be corrected on this by anyone directly connected with the Committee, but taken at face value my impression is that the intent of this statement is simply to exclude patents in which the software – i.e. the code itself – is (or at least purports to be) the actual essence of the invention – that would certainly make sense to me and be consistent with my own experience of how patents work in the real world. I’m guessing that the proposed wording “a computer program as such” is intended to get at precisely this point. A paraphrase would therefore be “a patent may not include as one or more of its claims a specific piece of computer software, in either source or object code form”.

In my view, this is a very reasonable position for the Government to take. But note that it would not in any way prevent patents being granted for inventions that are implemented purely as software, as long as they involve substantive inventive claims that are genuinely novel, useful and not obvious to those skilled in the field.

I’ll let others debate how well “as such” actually conveys this idea. But let’s set that issue aside for now. What about the ’embedded computer program’ idea? The folks at no.softwarepatents.org.nz maintain that this is what the Government actually meant to say, and to support this they’ve referenced a press release from Craig Foss dated 28/8/12 (http://www.beehive.govt.nz/release/progress-towards-modernising-patent-law). Here is what he said –

“Under the amendment, computer programs as such would not be eligible for patent protection. However, inventions that make use of embedded computer programs will be patentable.”

It’s pretty clear that no.softwarepatents are interpeting the second sentence as defining a (comparatively narrower) exception to the (more widely applicable) restrictions prescribed in the first. But that may not really be exactly what Foss thinks he said (assuming he understands the concepts at all). The wording that the Committee have actually chosen to put in the Amendment, together with my own experience I outlined before leads me to think that a more natural way to understand the second sentence may be as a clarifying contrast to the second. So what Foss really means by “embedded computer programs” would be “inventions embodied (implemented) using software”. Note that the term ’embodiment’ is very common in patent language. So it wouldn’t be a complete surprise if that somehow morphed in someone’s mind into “embedded”. Again to paraphrase, the overall meaning would be “you can’t patent software itself (regardless of the kind of software), but (clarifying contrast…) you can patent any invention implemented using software as long as the claims of the invention meet the usual criteria of utility, novelty and non-obviousness”.

So this interpretation does not attempt to differentiate between two different kinds of software – i.e. embedded and something else, which seems to be no.softwarepatents’ perspective. Because no.softwarepatents interpret embedded software as a different type of software, Guy Burgess’s article is mostly focused on whether that term is sufficently well-defined within the industry. Ok, but remember this is only relevant if that’s really what Foss and the Committee had in mind. And remember, Foss is an MP, who used to be an investment banker (though of course we don’t know who actually wrote the release). He’s not from ‘the software industry’.

As to whether the term itself does in fact have a well-defined meaning, well yes and no. Historically (and forgive me if I’m stating the obvious), it’s been used mainly to reflect the distinction between:
 – on one hand a more or less ‘traditional’ view of a computer as “a thing in itself”, e.g. something that sits on your desk, often with a screen and keyboard etc and which you use to ‘run computer programs’, and
 – on the other hand something principally viewed as “other than” a computer, but which nonetheless has computing elements within it – washing machines, petrol pumps, engine control systems, medical instruments…
 
The examples given by both Burgess and no.softwarepatents.org.nz indicate that they have in mind essentially the same understanding.

A very large amount of the software development done worldwide falls within the broad scope of ’embedded software’ as I’ve described it. So it’s no surprise at all that there are lots of papers published on the subject and lots of jobs advertised for embedded software engineers and that people understand broadly that these roles involve particular kinds of platforms, skills and techniques (e.g. certain kinds of processors, programming languages, memory constraints, development methodologies etc…).

But even if this really was what Craig Foss was referring to, I still couldn’t agree at all that this would make the term ’embedded software’ useful in the current legislative context, for two reasons… First, as technology platforms are evolving, these boundaries are blurring rapidly. Software in a cellphone was certainly viewed as embedded code a few years ago (such as the voice compression software I was writing for cellphones 12-14 years ago). But what about the latest smartphones? These are used to ‘run computer programs’. Some of these ‘programs’ inter-operate with (e.g. control) embedded components and other embedded devices. But plug some smartphones into a dock with screen and keyboard and you have something that acts just like a ‘computer’ (on more or less this point, see Eric Schmidt at 21:59 in this video recorded yesterday – http://www.youtube.com/watch?v=0VkIpT3-kBM).

But the problem is even more complicated than that. Take the example patents I referred to earlier… either one of them could equally well be deployed in an embedded device, or as part of an application on desktop computer, or within a server farm. And these are far from being strange exceptions. The patents themselves simply don’t tell you anything about the kind of environment/device/platform in which they should be used. So if the legislation were to use the “embedded computer program” terminology in the sense that Burgess and co. want, what would that legislation tell a patent examiner or a judge that they should do with patents like these? So really I just don’t see that this language makes sense here.

Hoping to better understand where people are coming from, I went and dug a little deeper into the no.softwarepatents.org.nz website, and I found this… http://no.softwarepatents.org.nz/background, where they say the following, regarding the Commerce Commission Select Committee’s deliberations on the Patents Bill –

—
The Select Committee agreed, recommending unanimously that the new Patents Bill explicitly exclude software. Their report said:

 ‘We recommend amending [the Bill] to include computer programs among inventions that may not be patented… A number of submitters argued that there is no “inventive step” in software development, as “new” software invariably builds on existing software. They felt that computer software should be excluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques. In general we accept this position.’

The Select Committee did, however, make one important caveat: that inventions containing embedded software should still be patentable:

 ‘We received advice that our recommendation to include computer programs among the inventions that may not be patented would be unlikely to prevent the granting of patents for inventions involving embedded software. We recommend that the Intellectual Property Office of New Zealand develop guidelines for inventions containing embedded software.’
—

Again we see the ’embedded software’ language, but once more I’m less than convinced from the context that the Committee are knowingly using that term in the sense that it’s understood in the industry. And there are some curious ideas here…

– “A number of submitters argued that there is no “inventive step” in software development, as “new” software invariably builds on existing software.”

First, the fact that one system builds on another tells you absolutely nothing about whether there is an inventive step involved. Patent law requires an inventive step. There is no need to distinguish between software and hardware if this were genuinely the concern.

Furthermore, the statement seems not to recognise that there are multiple levels of abstraction involved in defining and developing complex software systems. The idea that there is “no inventive step” *can* be true at the level of pure implementation but *completely* false at a higher level representation of system design. And this is true regardless of whether we are talking about embedded or non-embedded software.

– “They felt that computer software should be excluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques.”

At least part of this is just wrong – if patents are being granted for trivial or existing techniques, it’s not because the law allows it and it’s not because they are composed of software. It’s because the tests of novelty, utility and non-obviousness are not being applied correctly. As to whether they stifle innovation and competition, there are probably cases where this is true. But there are also cases where the publication and licensing of patents that have software embodiments foster innovation and competition, and others where the developers of software based IP freely choose by themselves not to patent their work, often precisely in order to better foster innovation and competition.

 – “We received advice that our recommendation to include computer programs among the inventions that may not be patented would be unlikely to prevent the granting of patents for inventions involving embedded software”
 
It’s kind of difficult to tell what this means. If you decide to exclude software, you won’t actually be excluding some software? What’s the justification for this claim? Did anybody ask?

Thanks to Mark for a very useful post.

Isaac Davison at NZ Herald reports:

The Waitangi Tribunal would have binding powers to remedy Treaty breaches in a written constitution drawn up by 50 of the country’s brightest young people.

The draft constitution, developed by law, history and communications students at Parliament, also called for New Zealand to become a republic and for four-year parliamentary terms.

I agree with a four year term (essential in fact) and a republic. The Treaty issue is more difficult.

Lead facilitator Dean Knight, from Victoria University Law School, said the group made it very clear that the Treaty of Waitangi should be central to a new constitution.

The final document, which is published online today, said: “The tribunal may provide a remedy to a claimant if a breach of a right arises from a breach of the principles of Te Tiriti.”

Mr Knight noted that the gathering did not reach a consensus on this clause. “What they’re signalling is enhanced powers for the Treaty of Waitangi, moving towards binding recommendations, but not necessarily going as far as striking down legislation.”

At present, the tribunal could make recommendations which Government could choose to ignore.

Otago University law student Louis Chambers said the biggest sticking point in developing the document was how strong the constitution would be. “We had to ask: ‘Is the constitution a symbolic document that guides the New Zealand public or is it something that you can actually go to the courts and enforce if it is not complied with?”‘

The group eventually decided that the Bill of Rights would be strengthened, and the Waitangi Tribunal would be given greater powers. But ultimate responsibility would be left to Government, and the judiciary would not be able to declare any law invalid if it breached the constitution.

I support there being a written constitution. Having seen a Government retrospectively amend the Electoral Act to keep a Minister in Parliament, I am convinced we need safeguards from a non-benign Government.

I’m not against the Treaty of Waitangi being part of a constitution, but with two caveats.

1. It must be the Treaty itself in the constitution, not these nebulous “principles of the Treaty” that have taken a life of their own.
2. The constitution, and hence the Treaty, must be amendable

You can not put something into constitutional or supreme law, which is unamendable. The US Constitution and Bill of Rights is amendable. The US Declaration of Independence is not, and hence has no status in law.

If people want the Treaty to be part of our constitution, they have to provide for a mechanism which can update it

Stuff reports:

The Government has squeezed hundreds of millions of dollars in savings from the student loan scheme through a series of changes.

Tertiary Education Minister Steven Joyce and Revenue Minister Peter Dunne today announced the write-off on student loans had fallen to 39 cents in every dollar borrowed.

It had been about 48 cents in every dollar when the former Labour-led Government took interest off student loans, Joyce said.

”When we came into government, we committed to get that cost down and initially targeted getting it under 40 cents in the dollar,” Joyce said.

“I’m pleased to be able to say that changes over the past three budgets have helped reduce that cost from 48 cents to 39 cents in the dollar so far. 

That’s good At 48% write-off, the loans scheme was approaching becoming an ATM scheme. The idea of having loans is that they get repaid. It costs the Government money to borrow, to loan it in turn.

Hopefully over time the proportion written off will fall below a third.

Hone Harawira has said he will never support a National-led Government, so if he gets the chance will support or even be a Minister in a Labour-led Government. David Shearer has not ruled him out.

So has Labour got anything to say on whether they find it acceptable for Harawira to call other Maori MPs, “house niggers”?

You see their silence is rather inconsistent. In 2005 David Benson Pope alleged Rodney Hide said “dopey niggers” in the House. He was wrong, as what Rodney said was “Don’t be negative”. But Benson-Pope said he was so offended he was going to file a Privileges Complaint. He also refused to apologise for his mistake, until Clark made him do so.

So will any Maori MP from Labour have the guts to stand up to Hone and say how offensive his words were? I won’t hold my breath waiting.

A Southern Bell Frog contemplating an early start to the day.

Click for larger, higher res image

Chris Barton writes at NZ Herald:

In its rushed proposals to stomp out cyber bullying, the Law Commission has blundered in haste.

Instead of refining our existing laws to ensure they reach into cyberspace, it’s proposing a whole new offence “causing harm by means of communication device.”

No, it doesn’t mean causing grievous bodily harm by taking to someone with your iPhone. The proposed offence aims to make it illegal to send “a message or other matter” – whether by text, Twitter, email or Facebook that is “grossly offensive; or of an indecent, obscene, or menacing character; or knowingly false”. To make the criminal charge stick you’d also have to show that the sender was out to cause substantial emotional distress to someone else.

I have some concerns with the proposed law also. But it is worth noting the law does not create a new criminal offence, or charge. It proposed a tribunal that could order material removed.

“We are prepared to accept that a case can be made out for making the very worst of deliberately harmful speech illegal,” says Tech Liberty, which has argued against aspects of the proposals. “However, we see no reason why this illegality should only be limited to electronic communications. Surely a poison-pen letter delivered to the letter box can be as harmful as an email or a text message on a phone.”

Making separate laws for the internet and the real world ushers in a dangerous precedent and sets up the prospect of two different legal realms.

This is one of the issue. Something done offline and online should be treated the same. Arguably you could extend the gambit of the proposed Communications Tribunal to include offline harmful speech also. Or you could narrow it to only target speech which is currently covered by our laws.

The proposed law is under consideration by the Government, and could even be introduced to Parliament later this year. There are potentially very significant ramifications for Internet users.

To help inform debate, and to try and improve the proposed law, InternetNZ has organised two half day workshops on the proposed law. The agenda is here and details are:

• Wellington, Mon 17 Sep, 1 pm – 5 pm, Civic Suites, Wellington Town Hall
• Auckland, Tue 18 Sep, 1 pm – 5 pm, Limelight Room, Aotea Centre

If you wish to attend, you can RSVP to [email protected]. They are free to attend.

Trans-tasman reports:

To add to the gay theme came, like an echo from the past, the accusations of former Labour MP Philip Field. Now out of prison for nearly a year, Field claimed he had been the victim of a gay and lesbian group within Labour who wanted him out of the road due to his profound and deep Christian beliefs.

The existence of a conspiracy minded gay and lesbian group within Labour opposed to Christian beliefs is something we can take as a given. The ability of such a group to conspire with judge, jury and Police to put Field behind bars though is a bit of a stretch.

Maybe they’re like the Freemasons? 🙂

What is a real shame is that Field still does not accept he did anything wrong. To be fair, that is also the position of the NZ Labour Party who have never said he did anything wrong – just that the acknowledged the verdict!

There’s been a fair bit of discussion in some quarters over a two word change to the Patents Bill.

The intent of the bill has been that software not be patentable. This is the case in Europe, and there is a lot of evidence that software patents have been stifling innovation, not fostering it. Actual software code can be copyrighted, but under the proposed law change, software will not longer be patentable. This is welcome by most of the local ICT industry. It stops patent trolls and the like.

However some NZ companies such as Fisher & Paykel Appliances said that software embedded in an appliance should still be patentable. The select committee and the Government agreed to this.

The problem has been how to define it. The bill was going to refer to “embedded software” as being exempt but now the Government has said the definition will be:

A computer program is not an invention for the purposes of this Act … only to the extent that a patent or an application relates to a computer program as such.

I’ve not been able to get a clear feel as to how significant this change is, adding on the words “as such”. Several IP lawyers have said it is good, while the Open Source Society has said it is bad, and they have a petition against the change.

I tend to be in favour of clear law, and think that is what the Government wants. However lawyer and software developed Guy Burgess makes a good case that the new definition is less clear than referrring to embedded software. He blogs:

There is no definition of “embedded computer program” in the Bill, nor does the industry-supported amendment include one. So because it’s undefined in the Bill, that creates “uncertainty”, right?

Wrong. Guess what else is not defined in the Bill, nor by any other law in New Zealand, nor by any Court in New Zealand: “computer program”. So how can there be objection to the lack of a definition for “embedded computer program”, when “computer program” itself is not defined? There can’t – and the same applies to many other terms in the Patents Bill.

The fact is, it is perfectly normal for undefined or hard-to-define terms to be used in laws. 

So Burgess argues it is not a big issue to keep the term “embedded computer program”. He notes it is commonly used:

But it’s not just Fisher & Paykel Appliances who have no difficulty with the term embedded software. A quick search on Seek.co.nz shows there are currently 48 jobs using the phrase “embedded software”, including Embedded Software Engineers, Embedded Software Developers, and so on. So while lawyers, for example, may claim the term is uncertain, the evidence is that the software industry itself has no difficulties with it.

There are many other resources confirming the commonplace use of the term in the IT industry. For example, there are over 42,000 articles on Google Scholar discussing “embedded software”, including from authoritative bodies such as the IEEE andAssociation for Computing Machinery. And of course there have been numerous patentsinvolving “embedded software” already granted.

So how about the alternative proposed by the Government:

Any possible questions about the industry-accepted term “embedded software” pale into insignificance compared to the European-style “as such” exclusion recently introduced into the Bill (i.e. the clause 10A(2) that the petition seeks to replace). If you ever wanted an example of notoriously uncertain, problematic language, it is the European “as such” terminology.

But don’t take my word for it – here’s what the Institute of Patent & Trade Mark Attorneys of Australia said in their 2010 submission to the NZ Minister (and which was expressly endorsed by the Australian Federation of Intellectual Property Attorneys):

[The EPC approach] will still introduce uncertainty and confusion as to the patentability of computer related inventions… The approach in Europe has also led to considerable uncertainty and criticismamongst European industry, the European Patent Office and the Courts… the approach has been often criticised as being inconsistent andcontradictory to the EPC itself… In our view, adopting the EPC approach would create a significant degree of uncertainty as to how the section is to apply and which, in any event, is inherent in the EPO approach.

Burgess concludes:

The exclusion of patents for computer programs remains, but with an express carve-out to ensure patentabilty of inventions containing embedded software – not the embedded software itself. Consequently there is no need to determine whether software is embedded or not to determine whether it is patentable. No “uncertainty” arises: under the industry-supported amendment, no software would be patentable. It’s pretty simple. And it’s entirely consistent with the Select Committee’s unanimous recommendation.

On the other hand, the European-style exclusion (which as the Australian patent attorneys say is uncertain, confusing, inconsistent, contradictory, unpredictable, and costly) is entirely contrary to the Select Committee’s unanimous recommendation.

Burgess makes a good case. I’m not 100% convinced that the proposed change is as dramatic as some claim, and think having the European style exemption is still a big improvement on our current law. But neither am I convinced that the proposed change brings benefits, over the select committee wording, and may be detrimental to our local software industry.

I welcome any op eds from interested parties on this issue.

The Herald editorial:

Genetic engineering of food crops appears to have largely disappeared from public concern since the Environmental Risk Management Authority was set up a decade ago.

It is hard to know whether the disappearance of the issue is because the ERMA has prevented much experimentation in this country, or because crops engineered elsewhere have been in the food chain for just as long and the world’s general health does not seem to have suffered.

Both explanations are true, according to American experts here for a biotechnology conference this week. One of them, a vice-president of Dupont Agricultural Biotechnology and an adviser to the State Department, warned that New Zealand was slipping behind advances in food production and risked being left with outdated crops. …

The regulations governing biotechnology trials in this country appear to have stifled field experiments almost entirely for the past 10 years. The Treasury has expressed concern that agricultural innovation is inhibited and the Environment Minister, Amy Adams, is taking a closer look at the rules. It is high time they were reviewed.

A decade ago, the ERMA regime made economic sense. Genetic engineering was receiving international criticism and this country listened to warnings that its reputation as a “clean green” food producer could suffer unless it adopted a restrictive regime. Now GE has faded from most of the world’s consciousness, “clean green” does not face the same risk. It is time to assess whether the country’s agricultural science is suffering. 

A review is timely.

People are often susceptible to exaggerated fears of a new technology. Cellphone towers were widely feared. Older people will remember warnings about television when it first arrived. When we travel we probably eat modified rice and wheat products without giving it a thought.

Almost every new technology is feared by some initially.

Hat Tip: Whale Oil

I think one can understand why Hone didn’t last in the Maori Party, if that is his view of other MPs.

Any other MP who referred to Maori MPs as “niggers” would be resigning in disgrace.

Stuff reports:

A Facebook page boasting of sordid sexual exploits, robberies and misadventures has painted Hawke’s Bay as a hotbed of morally questionable behaviour – and home to a good many people with poor spelling and grammar.

OMG Hawke’s Bay Confessions has attracted more than 3000 “likes” in the five days it has been running, as people anonymously reveal their infidelities, boast about where they’ve had sex, and even own up to robbing someone for revenge. …

Hastings Mayor Lawrence Yule was appalled at the page.

“I just think it’s rubbish; it’s not worth the stuff it’s written on.”

Napier Mayor Barbara Arnott said it appeared to be a platform for “non-thinking low-lifes” to play out “perverted fantasies”.

She doubted the truthfulness in the posts but worried that the page had the potential to spiral out of control. “It’s anonymous at this stage but it has the potential to be hurtful to individuals.” …

Confession pages exist for other New Zealand towns and cities but pages viewed by The Dominion Post yesterday were not as active or as graphic in detail.

OMG (oh my god) Wellington Confessions has 29 likes and a policy of not posting any secrets about rape, violence or abuse.

Dunedin Confessions, with four likes, states “nothing too cruel will be put up”.

Oh Good God, get over it. For those interested the page is here.

The appalling grammar suggests that it is indeed HB locals using it. Some fine prose examples:

well when i was 15 i went to hawkes bay for my cousins 16th and i was still a virgin, i ended up hooking up with her cousin and cheated on my bf i had been with fr two years ooops and he always said to me that he would wait until i was ready, i guess he just wasnt there when i was ready

Actually that one may be false. Someone still a virgin at 15 in Hawkes’s Bay?

Was at a party once with couple of the boys. Walked into one of the rooms and caught my gfs brother getting sucked off haha. He then looks at me pulls down her pants and tells me to help him out. I thort fuck-it and jumped right in there! He haznt said a word to anyone! Best brother-inlaw in the world right? Haha

His sister may disagree!

Rather than try to close the page down, they should use it as scripts for a soap opera!

Chris Keall at NBR reports:

The government is keeping the fee for an infringement notice under the file sharing law at $25, Commerce Minister Craig Foss said this afternoon in a briefing paper to cabinet.

NZ FACT – representing the major Hollywood studios – had wanted the fee dropped to “pennies”.

The Recording Industry Association of NZ (Rianz), representing multinational and local music labels, submitted the fee needed to be dropped to $2 or less for it to send a serious number of infringement notices.

This is excellent news. A drop would have seen ISPs not getting reimbursed for the costs they incur in processing these notices, and could have led to an avalanche of them.

The briefing paper reveals the number of notices sent by four of the five largest ISPs:

Telecom: 1238
Vodafone: 417
TelstraClear: 398
Orcon: 115

What I am interested in, is how many got second strikes or third strikes. If those who download copyrighted material stop after a first strike warning, then the regime is working effectively.

Paula Bennett has announced:

People with outstanding arrest warrants will no longer receive a benefit while evading Police says Social Development Minister Paula Bennett.

“Of the approximately 15,000 people with a current arrest warrant, around 8,200 are on benefits,” says Mrs Bennett.

“If someone has an unresolved arrest warrant we will stop their benefit until they do the right thing and come forward to the authorities.”

I’m a bit amazed that up until now you could be on the run from Police, and indefinitely keep claiming a benefit!

3 News reports:

New Zealand First is suggesting all New Zealanders pretend to be Maori to get special privileges under the law.

The party wants the Government to define who is and isn’t Maori before offering deals to iwi over water rights, after delaying the asset sales programme. 

Winston Peters says anybody could be Maori under the law.

Heh only Winston could suggest that.

For the 2nd time this week, I am partially agreeing with him.

I don’t think Maori should have special privileges under the law.

But I do think Iwi do have common law rights. I have no problem with saying that Iwi have customary rights in certain areas.

So the issue for me is not about rights for “Maori” but rights for “Iwi”. I don’t think you need to define who is or is not Maori, but rather the Crown needs to recognise Iwi, and Iwi have lists of their members.

This is why a national settlement on water rights is not desirable. Any rights belong to specific Iwi in specific locations – not to Maori generally.

Some will say Iwi have no special rights at all. I disagree. Just as property owners in a certain area may get rights of objection or compensation for developments that impinge on them, so do Iwi.

Kirk Hope of the Bankers Association writes in the Herald:

 It’s Money Week. It’s not just about our everyday personal money management. We also need to think about how we’re providing for retirement income as a nation. The debate has recently been dominated by a narrow focus on age of eligibility issues for New Zealand Superannuation.

And the debate needs to be far wider than that.

Ignoring the fact that the best mix for providing retirement income is neither fully public nor fully private leads us to ask the wrong questions, and gets us caught up in issues that may not be as important as we think. The questions we need to ask are whether we should adopt a compulsory approach to private savings, retain the current voluntary arrangements, or move to a mix of the two depending on individual circumstances.

I would go even wider than that. There are basically three sorts of retirement savings. They are:

1. state
2. workplace
3. private

We need to debate all three together. KiwiSaver has been created, and no changes made to NZ Super. This means that some people will actually be earning more in retirement than when they are actually working.

Another critical issue in respect of NZ Super is its universality. Is it necessary? Is it affordable? Most importantly, is it sustainable? The Australian equivalent of NZ Super is both means and asset tested, acting as a safety net for those without sufficient savings income. The Treasury acknowledges in its 2010 paper, Saving in New Zealand – Issues and Options, that if we were to move to compulsory private provision of superannuation then also retaining a universal government funded pension scheme would make us unique.

The provision of a state pension for everyone over a certain age, regardless of their need, assets and other income, was a great innovation in its time. It was a defining aspect of 20th century New Zealand. It had its place in a time when we had a strong economy, a large working population, and a relatively small retired population that did not on average live too long past the age of retirement. Much of that has changed. We now need to develop a sustainable solution for this century, and we’re well on the way with KiwiSaver.

To truly make NZ superannuation sustainable, we need to delink it from the average wage. Other benefits are inflation adjusted only. In recognising superannuation is a bit different, I’d look at having the level be adjusted by say CPI +1%. This means it will increase in real terms, but not be unsustainably linked to the average wage.

Golden Poplar Trees Reflected In Roys Bay, Lake Wanaka New Zealand. Photography By Sarah Sisson

Hello all and welcome to the world’s first ever KiwiBlog Wednesday Wallpaper for September (I’m sure that you will all agree that is quite the achievement….)

This week we regress to Autumn, as a nod to any Northern Hemispherical readers.  This image was made by my lovely wife Sarah, we just sent a 1 metre canvas print of this image to an Australian client this week, our little contribution to reducing balance of payments deficit 😉

Download the big version from this link:  [free iPad wallpaper] Password = freewallpaper

See you next week!

Cheers – Todd

[www.sisson.co.nz] [blog]

The Northern Advocate reports:

A drunk Whangarei teacher, whose erratic driving forced concerned motorists to take the keys from her car when she stopped at lights, was more than five times over the legal limit.

Five times? At least she only teaches the kids, not drives them to school.

A police summary of facts said Ash was driving on Western Hills Dr about 6.10pm on February 1 when her driving – including weaving from lane to lane and appearing confused and lost – attracted the attention of other motorists.

They were so concerned that when Ash stopped at traffic lights a motorists took the keys from her car’s ignition and called police.

Ash was unable to complete a passive roadside breath test.

Unable or unwilling? How blotto do you have to be to be unable to do a breath test?

She refused to tell police what type of alcohol, or how much, she had been drinking. The blood test recorded a level of 424 milligrams of alcohol per 100 millilitres of blood, more than five times the legal limit of 80mg.

That is a massively high level. For a woman weighing 65 kgs, you’d need to do around 15 drinks in an hour to get that much alcohol in your blood. At that level you would be close to passing out.

Ash was sentenced to three months’ community detention, 150 hours’ community work, 15 months’ supervision and indefinitely disqualified for her third drink-driving conviction.

I wonder if that is enough. To have three actual convictions means you have probably driven drunk well over 100 times. Her level of alcohol was massive, and she seems quite unrepentant.  I fear someone is going to end up dead or injured at her hands.

The Government has announced:

Cabinet has approved the redevelopment of the Canterbury District Health Board’s hospitals with a final plan due back by the end of the year, Canterbury Earthquake Recovery Minister Gerry Brownlee and Associate Health Minister Jo Goodhew announced today.

“This project will be the largest hospital build in the history of New Zealand’s public health service and includes fast tracking the design of Burwood Hospital redevelopment in the eastern suburbs,” Mr Brownlee said.

“The total cost is expected to be more than half a billion dollars, with a final price tag confirmed in December.

Now that the central city plan has been largely agreed to, I suspect we’re going to see a number of large construction projects finalised. The university also needs a fair amount of repairing or new buildings

The Herald reports:

A new study has discredited the tobacco industry’s assertion that there is no proof plain packaging on cigarette packs reduces the appeal of smoking.

How can you discredit something, that hasn’t been asserted? This is a classic red herring.

As far as I have observed no one disputes that numerous surveys have shown smokers say they find branded packs more appealing than plain packs. This study has reached the same conclusion as several others. It is nothing new.

Scientists from Canada, the United States and Brazil conducted a study of 640 young Brazilian women to determine if cigarettes had the same appeal when presented in plain packaging.

“The women in this study rated branded packs as more appealing, more stylish and sophisticated than the plain packs,” said study leader David Hammond of the University of Waterloo, Canada.

I am sure they do.

However the key question is not about whether packaging makes a particular brand of cigarettes more appealing, but whether plain packaging will reduce the proportion of people who smoke or the amount people smoke. And as far as I can see this research does not answer that question.

I personally welcome effective anti-smoking measures. I do regard tobacco as different to alcohol. Around 95% of the smokers I know want to give up smoking, and have tried to do so. None of my friends who are drinkers want to give up drinking alcohol (except for that 48 to 72 hour period after a big night out).

With plain packaging I can accept the argument that until you try it, you will never be able to measure its effectiveness. But this is an argument to trial it, not to implement it blindly.  A plain packaging requirement does create a precedent, and already some advocate it should also apply to alcoholic drinks and even to fast food. That slope might get very slippery.  Any decision to introduce it should be based on proven success at reducing smoking – not hope.

There are two ways it can be trialled. One is to let another country do it first, such as Australia, and see what happens. However that will only work if Australia doesn’t implement any other measures at the same time. If they put up the excise tax also, then it will not be possible to know if any reduction in smoking rates is due to the excise tax increase (which has proven success) or plain packaging.

So my preference again is to have a geographic trial in New Zealand, such as have plain packaging in the South Island for a two year trial. Then measure any change in the smoking rates and quantity of tobacco sold in both the North and the South Island, and see if the South Island change is statistically significant.

This would be a win-win. If it shows there is a statistically significant difference, then that trial will be used globally as evidence to introduce plain packaging. If the trial shows no significant difference, then New Zealand avoids implementing a measure that sets a disturbing precedent and doesn’t actually achieve anything.

UPDATE:

A reader has sent me this, which is a graphic of the current packs used in Brazil. They are vastly different to those currently allowed in NZ. No rotting eyeballs and the like on the packs. It is a no brainer that people will say those packs are attractive. That is, as stated above, a different question to whether they may more people smoke, or smokers smoke more. And as NZ packs look nothing like the above, using the results to argue for a change in NZ is silly.

Again – I am not against plain packaging if it works in reducing the number of people who smoke, or the amount people smoke. I just want any decision to be based on a proper scientifically conducted trial with a control group.

Clare Curran blogs:

My post yesterday on Bill English and his mostly closed electorate offices in Balclutha and Gore has attracted some interest on Red Alert and on facebook.

A number of people commented that they were experiencing the same issues in other National-held electorates.

I’m wondering how many National Party electorate offices are actually staffed on a regular basis?

And how much direct constituency work they do and what options are open to constituents if they try to approach their local MP and are rebuffed, ignored or can’t make contact because it’s always closed.

Firstly I would note that the public are quite good at removing electorate MPs they don’t think do a good job. And suggesting that National MPs are neglecting their electorates is just silly, when Nationals holds 42 seats to 22 for Labour.

With Bill English, I note he got 21,375 votes and the Labour candidate 5,207 votes.

As for why, Bill’s offices may have been closed. Well it is all about size. Clutha-Southland is the largest general electorate in the country. It is 3.82 million hectares in size.

Urban seats, such as Dunedin North, have only one electorate office. They can use their staffing entitlement to have an office all the time.

Bill has three electorate offices, to enable people to see him or his staff. They are in Gore, Balclutha and Queenstown. Hence it is no surprise that all three offices are not open all the time.

The work required to service a rural electorate is often immensely greater than relatively small urban electorates, as you can spend much of your weekend driving from appointment to appointment. The hardest electorate of probably West Coast-Tasman as it can be 13 hours from one end to another.

Deborah blogged:

 Today’s inanity and offensiveness from Trevor Mallard, on his Facebook page. …

It’s puerile, and offensive. I am completely over the focus on women’s bodies. And I would like the senior members of the Labour party to stop enabling this silly behaviour.

Update: I put this post up at about 11.15am on Friday 31 August. In what is becoming a familiar pattern, by 2.30pm the same day, the picture had disappeared from Mr Mallard’s Facebook page.

Now don’t get me wrong. Personally I’m not offended. This is no surprise as I like both puerile and offensive humour. But if I was an MP, I would not post something like that to Facebook. The fact Trevor deleted it suggests he came to that conclusion too late.

I once commented that Trevor seems to be happier as a blogger than an MP! If he ever leaves Parliament, he’ll be a very effective blogger.

HT: Keeping Stock