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Traders required to have higher standards than ministers of the Crown

(Published under the headline Govt misleads with EV fee description by | NBR)

by Gary Judd QC


A discount on electric, hybrid and low emission vehicles funded from a fee on higher emitting ones is the best policy to increase low emissions vehicle uptake in New Zealand,” said ministers Michael Wood and James Shaw in their press release, “Clean car package to drive down emissions.”


The description of the impost as a “fee” struck me, a lawyer who receives fees for services rendered, as breathtaking. What services would the government be rendering to those purchasing “higher emitting” vehicles?


Some have pointed to the compulsory nature of the payment as making it a tax. The disingenuous response is that the payment is not compulsory because a person who would have to pay it can choose not to buy the vehicle. Therefore, it is not a tax, they say.


What rubbish!


Obviously, the “fee” is just as much a tax as the GST we pay on every purchase we make. On the Minister’s reasoning, GST is not a tax because we can decline to buy food and other goods and services. Or the excise duty we pay on every litre of fuel is not a tax because we can refrain from buying the petrol.


Another aspect of the deceptive pretence is this: what service will the government be rendering to the unfortunate vehicle purchaser for the “fee” the government is imposing? Obviously, the answer is: none.


They say the impost put on some vehicles funds the “discount” on electric vehicles. It is not a discount, which would be something given by the seller. It is a government subsidy, just like the subsidy which once was provided to farmers, but the government does not call it what it is and pretends it is something else.


The government is robbing some to give to others. Also, as others have noted, those robbed will in general be the less well-off and the elites the beneficiaries.


But I digress, for my main target is the “fee.” Perhaps I am being unfair. Perhaps there can be a fee without a service rendered, perhaps there can be a fee which is really a tax, and I have overlooked this meaning. I had a look at the Oxford English Dictionary, online version.


Senses I relate to feudal landholding and obligation. Although not the relevant group of meanings, one is worth mentioning. Under feudal law, a fee is an estate in land “held on condition of homage and service to a superior lord, by whom it is granted and in whom the ownership remains.” Our political mistresses and masters expect us to pay homage and submit to whatever burdens they choose to place on us. After all, they are greatly superior to the common folk, are they not?


The OED’s relevant senses are these:


II. Denoting a payment or gift.

7.

a.The sum which a public officer (? originally, one who held his office ‘in fee’: see 4a) is authorized to demand as payment for the execution of his official functions.

b.Extended to denote the remuneration paid or due to a lawyer, a physician, or (in recent use) any professional man, a director of a public company, etc. for an occasional service.

c.The sum paid for admission to an examination, a society, etc.; or for entrance to a public building. Also, admission-fee, court fee, entrance-fee.

d.Terminal payments for instruction at school.

8.

a.A perquisite allowed to an officer or servant (esp. a forester, a cook or scullion). fee of a bullock: see quot. 1736. Obsolete.

b.A warrior's share of spoil; a dog's share of the game. Obsolete.

c.Any allotted portion. Obsolete.

9. A fixed salary or wage; the pay of a soldier. Also plural. Wages. Obsolete exc. Scottish or Historical.

10.

a. prize, a reward. Obsolete.

b. An occasional gift, a gratuity, given in recognition of services rendered. Phrase, without fee or reward.

c. In bad sense: A bribe. Obsolete.

.

The common features of these meanings are that the person to whom the fee is paid has rendered a service to the fee-payer. Sometimes the fee-payer has a legal obligation to pay the fee and sometimes the fee-payer chooses to make the payment as a gift in recognition of something provided by the recipient.


Members of the present government are sufficiently well educated to know very well that this is what a “fee” is, but nevertheless they choose to call the impost something which it is not. That is dishonesty. They are so arrogant that they think we, the common folk, are so in thrall that we will put up with it.


The Fair Trading Act prohibits conduct in trade that is misleading or deceptive or is likely to mislead or deceive. If ministers Wood and Shaw were engaging in trade, they would be contravening the Act. A higher standard is demanded from those holding office under the Crown.


Gary Judd has been a Queen’s Counsel since 1995. He was chairman of ASB Bank from 1988 and its associate life assurance company, Sovereign, from 1998, until 2011. He was chairman of Ports of Auckland for three years and was a prime ministerial appointee to the Apec Business Advisory Council (ABAC) 2009-12.

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