Upton-on-line October 20th

Met-e-morphosis

Strange speculations (and some out-right fantasising) have caused upton-on-line to disclose the forthcoming transmorgrification of this publication. By a process of neural re-engineering that is still awaiting FDA approval (and could yet be stopped in its tracks by the Royal Commission on genetic nasties), upton-on-line will - at year's end - metamorphose into english-on-line.

Bill English (who is still awaiting his cyber-kit and thesaurus) is easily the most subtle and discriminating mind in National's team. That has been the case since his arrival in 1990. He has been safely inoculated against conventional thinking by a first class degree in literature and has been diagnosed as being capable of a sense of humour.

The way it will work is that upton-on-line will continue until the Christmas holidays. But two weeks' overseas travel in late November will see the apprentice let loose at the sorcerer's work bench for two issues. Depending on the damage, english-on-line will materialise permanently in the New Year.

Naturally, english-on-line will not be upton-on-line. But upton-on-line is planning the odd guest column as upton-on-english-on-line. Furthermore, upton-on-line is likely to resume cyber-casting from the 5th Arrondisement some time in February but with an emphasis on international environmental issues. (The possibilities of humour look distinctly limited here but who knows). Subscribers to upton-on-line and the old environet will be given the opportunity to press the escape button or re-subscribe nearer the time.

We hope readers will digest this with equanimity. English-on-line in waiting has been given stern advice on the limited half-life of party political cant on the web, and gently advised that readers have probably had their fill of Treatyology. (Today's issue is a mercifully brief summary of this year's work). The view from Dipton will be culturally distinct from upton-on-line's hilltop lair near Ngaruawahia, but it is likely to inhabit at least some corners of the same intellectual universe …

Pulling the Threads Together

In recent months upton-on-line has expended 28,000 words on the Treaty and the constitutional debate it continues to engender. It's now time to catch breath. (Don't adjust your computer; the sound you hear is readers breathing a sigh of relief that a truce has been called). To date, upton-on-line has been content to illuminate the debate, passing judgement only on the wackiest outer reaches of the Treaty solar system. Now it's time to come firmly inside the legal asteroid belt and offer some provisional propositions to mull over.

1. Aspects of the Treaty are deeply problematic. While its historical significance cannot be swept aside, neither can it provide answers to constitutional questions that were not in the minds of the parties at the time. Keeping faith with the historical importance of the Treaty does not require us to inject an historicist determinism based on fashionable contemporary theories.

2. Pakeha New Zealanders cannot consign the Treaty to the history books and get on with life; it was signed by people (their juridical ancestors) who were well aware of what they were doing. The specific undertakings to Maori were expected to be enduring ones. It was not, to use Lord Stanley’s phrase, "a mere blind to amuse and deceive ignorant savages" (see u-o-l 17th August). On the other hand, Maori cannot wring from the Treaty commitments that simply were not acknowledged by both sides.

3. Article II is deeply problematic since the Maori and English versions of the text say quite different things. Appealing to the contra preferentem principle as a way of having the Maori version trump the English one will not stick when the two sides may not have been ad idem on the subject matter in question - in other words, assuming both parties were acting in good faith, it is entirely possible that their respective understandings of tino rangatiratanga did not overlap.

4. There is no argument that Maori acted as sovereign agents in signing the Treaty. Assuming both parties signed in good faith, if there is real dispute about the substance of what was agreed in Article II, then a sensible solution would be to seek a ruling that the matter should be resolved according to Article 33 of the Vienna Convention on the Interpretation of International Treaties 1969 which provides that “the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted”.

5. The plain meaning of Article III was to confer on settlers and Maori alike the same legal rights and obligations. That cannot be argued to extend to rights to social services or, for that matter, the obligation to pay taxes or even the right to vote. Universal franchise was not at that time in the contemplation of the Crown, let alone the residents of the nascent colony.

6. If Article III is argued to be the basis of rights to social and other services under the Treaty, then that is a novel constitutional interpretation and should be the subject of full public debate.

7. Any constitutional debate should be based on talking directly to one another. Seeking to erect new rights and understandings on the basis of legal re-interpretation and innovation will not deliver a popular mandate.

8. Any proposed constitutional changes should be made by the representatives of the people, not the courts. To that end, the use of evasive language in statutes should be avoided, as should poorly defined terms such as 'partnership'.

9. Any attempt to reconstruct New Zealand as a Republic will immediately place the future constitutional status of the Treaty of Waitangi at the centre of the debate since it was signed by the British Crown. Any attempt to remove the Crown will unmask the true identity of that signatory's successor - the people of New Zealand (including the descendants of the other signatory, Maori).

10. A Treaty that is rejected by over 60 percent of the population and relied on by the balance (many of whom nonetheless consider it to have been fraudulently disregarded) can scarcely be regarded as a point of national unity.

11. The nation we have today is the only nation we are likely to get. Any alternative is likely to involve the Balkanisation of the country. There are no answers in the hallucinatory wastelands of post-colonial theory.

12. Whatever the ills and injustices of colonisation, seeing the process of contemporary debate as one between 'predators' and 'subalterns' is simply a route to envenomed race relations.

13. The warnings spelt out in upton-on-line's Quo Vadis speech (see edition of 3 August) bear repeating:

 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

14. ‘Closing the Gaps’ should be carefully re-considered to decide whether
the gaps that are being closed are ethnic or needs based. It may be incoherent to seek identical ethnic outcomes by targeting ethnic groups as a whole rather than sub-groups within them (see u-o-l October 6th).

Finally, the Government must disclose its hand and seek to make progress on a multi-party basis. In practical terms, that means making progress in a way that may not win it party-political advantage. It is irresponsible to state that progressively settling Article II claims is a necessary basis for broader constitutional reforms without spelling out what those reforms are. No single government ‘owns’ the constitution. If the constitution is not to become a party political battlefield, some mechanism to discuss the issues outlined above must be found. Otherwise, the centre may not hold.

That’s it! No more lectures. Time for Margaret Wilson to decide whether she stands by her academic utterances or another account of events. Time for National to decide where it stands (other than being in a state of perennial ambivalence about its role in settling grievances over the 1990s). And time for Labour caucus members to decide whether these issues are the property of the full caucus or the Maori caucus alone.

Explain This

The full consequences of Trevor Mallard’s re-centralisation of school funding are now becoming apparent. But the Minister has thus far failed to explain the precise policy justification for the outcomes which are – on the face of it – inexplicable.

He should explain this. Kawerau College is a decile 1 school (i.e. it draws from the most disadvantaged socio-economic catchment). 84% of the school’s roll is Maori. Under the dreaded bulk funding formula of the last government, it received $2.132 million or $6110 for each of its 349 pupils. Next year, its funding will be cut to $2.069 million or $5930 per pupil. It is widely acknowledged to be a pretty dynamic, well run institution.

Meanwhile Tamaki College in Auckland, also a decile 1 school with a similar-sized roll (369 pupils), is on the make. Its funding will rise from $2.114 million or $5730 per pupil to $2.272 million or $6157 per pupil.

Now there is a difference between the schools. Tamaki, unlike Kawerau, is a school that parents have abandoned in droves (it has the capacity to take up to 900 pupils). Tamaki also held out against bulk funding. As a bastion of ideological resistance, its PPTA hard liners held staunch against the blandishments of community control. Had they opted for bulk funding they would have received the same per pupil as Kawerau. But now they are being rewarded while Kawerau is penalised.

Why? Well it goes back to the different formulas employed by the two governments. The last government’s direct resourcing formula gave schools of equal size and decile ranking the same per capita income. Kawerau and Tamaki would have got the same.

The new government does it differently. It funds operations grants like the last government – on roll size adjusted for decile ranking. But the teacher salary component that the previous government also handed to schools on a roll-size/decile basis is now held back. Staff are funded on the basis of a pupil/teacher ratio (no allowance for decile). And the actual costs of the incumbent staff are funded. So if they’re all senior, the school gets lots of money spent on salaries per capita. And if there are lots of junior staff, the school gets less salary expenditure per capita.

What’s the logic of that? Well it’s all to do with the insistence of the PPTA that teachers are part of a national service. And you get paid on seniority wherever you are. That probably doesn’t sound too awful on the face of it. But the results on the ground are perverse. Because schools that have a high increment of senior teachers get more. And they tend to be in nice leafy areas with stable rolls.

Take Epsom Girls, for instance, a decile 10 (i.e. most privileged) school in Auckland. It will receive an increase per pupil from $3741 to $3825. (The lower absolute numbers reflect the economies of scale of a much larger school with a roll of 1687). Can anyone explain why a privileged community needs even more per capita? The answer is that it has more senior staff. (This of course will be fine by the parents who’ve had to pay over the odds in real estate to get into the school’s zone which will be much more tightly controlled under the new regime).

Meanwhile, schools that find it hard to get staff (the provincial periphery like the West Coast, Northland, rural Bay of Plenty and Gisborne) will lose because they don’t tend to appeal to the more senior teacher. Similarly disadvantaged are the schools in the fast-growing urban nodes – the northern and southern fringes of Auckland. Take Rosehill College in Hunua growing fast along with its community. It loses $332,000.

So to defend the PPTA’s desire for a national teaching service money is being removed from the needy and given to the well-heeled. Now the real issue is whether it makes sense to pay teachers purely on length of service. The basic scale rises, without any add-ons for responsibility, from $31,000 to $53,000 over an 18 year period of service. What a bizarre measure of effectiveness or inspiration.

Even the previous government didn’t have the courage to tackle that somnolent approach to remuneration. But by handing the salary grant to schools and introducing some perfomance based add-ons, it did make a start in changing the culture and rewards. Now we’re back to a nice sleepy system of incremental, automatic payments from Wellington while teachers position themselves over time in favoured locations to the significant advantage of those schools. And if you're in the back of beyond, bad luck.

As if that wasn’t bad enough…

Any prospect of better performance from school principals has been removed. The last Minister, Nick Smith, took the dangerously iconoclastic view that the leadership of the principal was the single most important determinant of school success. He thought, daringly, that jobs for life weren’t good and that it might make sense to put principals on fixed term contracts so that performance could be reviewed and reappointment considered in the light of it.

So existing principals were placed on seven year terms. And new principals were given five year terms. And the industrial cost of exposing these school leaders to the stress of performing? A cool $69 million. Money well spent we thought. Trevor Mallard has just announced that the Government is dropping fixed term contracts (no doubt on the advice of its union friends). But the $69 million extra pay? Oh, they’re keeping that…

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