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Insights 43: 15 November 2019
New report - Real Action, Not Empty Words: How to make the Zero Carbon Bill about cutting emissions.
Failing to get insurance prices right causes problems, says Eric Crampton on Stuff.
New report - The Price is Right: The road to a better transport system.

The proposals for Tomorrow’s Schools
Briar Lipson | Research Fellow |
If someone threatened to burn down your house but instead left an unsavoury on your lawn, you might well find yourself feeling grateful. You might even feel more empathy towards your assailant’s complaint.

Many school boards will be feeling this way following Tuesday’s announcement about Tomorrow’s Schools. Boards are to retain control of most school matters (excluding enrolments and some aspects of property). The proposed new Crown entities – Education Hubs – have also been dropped in favour of a ministry overhaul.

However, while trimmed and tidied since the taskforce’s original report, the government’s proposals are not without thorns. Buried in a section innocuously titled ‘Learners at the Centre’, the government sets out a legislative amendment which, if permitted, will lead to the slow and certain ruin of school.

At present, the primary objective of boards of trustees is “to ensure that every student at the school is able to attain his or her highest possible standard in educational achievement”. Boards have secondary objectives too, like ensuring their school is a safe place that caters to students with differing needs. However, the order and clarity are important. For an undertaking as vital and complex as education, having a clear primary objective matters.

However, the government is proposing to erase the distinction between the primary and secondary objectives. It wants to compel boards to put the Treaty, inclusion, and the physical and emotional safety of students on an equal footing with educational achievement.

Imagine telling the All Blacks they must prioritise the Treaty, inclusion and safety alongside winning. All three are praiseworthy objectives. The All Blacks might even advance them if they selected players based on diversity and inclusion rather than performance, and avoided every tackle or scrum. However, placing those additional objectives on an equal footing with winning would almost guarantee losing.
The same goes for schools. As much as we might want to use schools to right historic wrongs and make the world fair for children with different needs, once these become boards’ primary areas of focus, educational standards will inevitably be squeezed.

The government is probably right to divest boards of some control over enrollments. We await clarity over what will happen to property. However, if this legislative change to boards’ purpose is enacted, educational standards will be the casualty.

The Tomorrow’s Schools review may no longer be proposing to burn down New Zealand’s devolved schooling system, but it will still torpedo schooling if this change is allowed to proceed.

Policing by consent
Dr Eric Crampton | Chief Economist |
New Zealand’s basic bargain around firearms ownership and policing always seemed rather sensible. It was very much a feature of New Zealand’s general “Outside of the Asylum” approach to policy.

Background checks on potential firearm owners limit access to firearms in the interest of public safety. The police then have no need to be routinely armed. It seems a far more sensible approach than America’s, where a heavily armed public has increasingly led to a militarised police force.

New Zealand’s bargain seems to be breaking down with an increasingly armed police force coinciding with far tighter restrictions on civilian firearm ownership. It puts at risk basic principles of good policing dating back to London’s Metropolitan Police Force in 1829.

New Zealand is one of the few countries that has maintained an unarmed constabulary. Police Commissioner Mike Bush put things well in 2009 after a rare shooting of a police officer led to calls for arming the police. He described our unarmed constabulary as a unique and cherished feature of New Zealand policing, and warned that routine arming of police would make community policing considerably more difficult.

The fundamental relationship between police officers and members of the public changes when one of them has a sidearm at the ready. The trial of roving squads of armed police ready in case of armed incidents has already led to their use in more routine stops.

Sir Robert Peel outlined the basic principles of policing that have stood for almost two centuries as the foundation for policing by consent. Those principles recognise that policing and good order depends on the public approval of police actions and the willing cooperation of the public, and that both of those are diminished when police are too quick to resort to force and shows of force.

Policing is challenging. But there has been no surge in violent or property crime involving firearms; police statistics going back to 2015 suggest a flat or somewhat declining trend in court action. And restrictions on private firearms ownership have strengthened considerably over the past year.

New Zealand’s experiment with roving armed police should end. It is an unneeded show of force. And it is contrary to Peel’s dictum that the best test of police efficacy is the absence of crime and disorder rather than the visible evidence of police action in dealing with them.

Out of puff
Dr Oliver Hartwich | Executive Director |
If you have never heard of a “carbolic smoke ball”, you are obviously not a lawyer. The 1892 British case Carlill v Carbolic Smoke Ball Company is a classic in the law of contract.

After a new decision by New Zealand’s Advertising Standards Authority (ASA), we should reconsider it.

As widely reported last week, the ASA ordered Unilever to remove an ad outside a Whangarei dairy. The ad read “ice cream makes you happy”, which the ASA ruled could undermine the health of consumers. Unilever, meanwhile, maintains that it was just exaggerated puffery.

And this is where the carbolic smoke ball comes into play.

It was a curious case that ended in London’s Court of Appeal in 1892. A company had produced a phenol-filled rubber ball and marketed it as a flu remedy. In an advertisement it promised to pay £100 to anyone who contracted the diseases despite having used the ball.

You do not have to be a lawyer to guess what happened next. A certain Mrs Carlill fell ill despite this miracle cure. Fortunately, her husband was a solicitor. And so the whole affair ended in court because Mrs Carlill demanded her £100 – and eventually got them. The promise was deemed specific enough.

Carlill v Carbolic Smoke Ball Company has become a classic for two reasons. First, because it established the clear requirements of a unilateral contract. And second, because absent those requirements, an advertisement would be regarded as non-judiciable puffery.

Puffery is everything not to be taken literally. When an energy drink promises to give you wings, you do not expect feathers to grow from your back. When a fast-food chain says their burgers will blow your mind away, do not call the neurosurgeons just yet.

And when a shaver producer talks about the best a man can get … well, don’t believe it anyway. The best a man can get certainly isn’t a disposable razor.

The difference between contract and puffery once was common sense – in the 19th century. Now the ASA seriously believes that the slogan “ice cream makes you happy” contains a health claim.

By the same standards, half of political advertising would be judiciable. “Let’s do this”, “100,000 new homes” and “the year of delivery”, for example, were obvious cases of puffery.

The ASA got puffed out in a giant carbolic smoke ball. I guess I need some ice cream now.
On The Record
All Things Considered
  • Graph of the week: The Great Awokening – how American newspapers have changed over the past two decades.
  • National v Labour on education: Paths to alternate futures.
  • Cheap slogans and poor policy allow meth trade to flourish.
  • Govt hiffing expensive burdens on council ratepayers.
  • Arby’s makes 'meat-based vegetable' to rival plant-based meat craze.
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