Friday, October 31, 2014

Long past time

The Dominion-Post reports that the government is considering wiping past convictions for homosexuality. Good. As a guest-poster to On The Left has recently explained, living with a criminal conviction isn't easy; employers and agencies will simply dump applications from people with convictions, without bothering to learn the circumstances. For someone whose offence was never-again-repeated youthful stupidity that's bad enough; when its for something they should never have been prosecuted for in the first place, its worse.

Homosexuality is not a crime, and it should never have been one. It is time for our government to ecrasez l'infame and stop allowing people to be persecuted base don this long-repealed law.

MacLennan on fixing the OIA

Journalist and lawyer Catriona MacLennan has some suggestions on Fixing Official Information Act Abuses . She identifies three problems with the law: lack of resources to enforce the law; deliberate flouting of the act; and inadequate understanding of the legislation by some officials. More resources for the Ombudsman should help with the first (though it might be harder than she thinks, given the drop in service levels), and she has a list of suggestions for the other two: an Information Commissioner, reducing the time limit to 15 days (as recommended in 1997), including Parliament, specific rules for the "no surprises" policy, and pushing more proactive release. But she also notes that:

In particular, it is difficult to envisage any sanctions for breaching the act which would outweigh the political stakes involved if a government thinks that holding information back until after an election will assist it at the polls.

She's right and wrong here. Minor sanctions won't influence Ministers, who we already know put their careers before the law. But they will influence the professional public servants who actually do the work. Criminal penalties will give those public servants a reason to resist Ministerial lawbreaking, give them absolute protection from employment sanctions for doign so (because you can't fire someone for refusing to break the law for you), and if Ministers say "I'll handle it", create a clear paper trail which will assist in their prosecution. And if the maximum penalty is two years jail, triggering automatic removal from Parliament on conviction, then that may give even Ministers pause for thought - if only because they won't want to have their future political career reliant on the silence of their past Ministerial advisers.

The trick is persuading Ministers to vote to stick themselves in jail. And that is going to be very, very difficult.

All work and no play makes Jack a dull boy

It's Halloween! Time for a jolly pumpkin to remind everyone that there is chocolate nearby


The weather is terrible, and while it can't rain all the time, I suspect there may be an absence of ghosts and ghouls. Whatever shall I do with all that chocolate?

Indistinguishable from totalitarianism

SF author Charles Stross has a lovely alternate-history thought experiment which demonstrates quite neatly how British surveillance is indistinguishable in practice from totalitarianism. And if you're in any doubt, you've only got to read today's news:

The Government is facing calls to reveal the truth about a spying operation on one of Britain’s most respected human rights activists.

Previously secret documents show the late Martin Ennals was put under years of surveillance by Special Branch. He was a key figure at Amnesty International and the National Council for Civil Liberties – now known as Liberty – and a leading campaigner against apartheid.

Details of his marriage, family and holiday destinations were recorded. His luggage was also regularly searched as he made trips to and from Britain. But the files, released by the Metropolitan Police under the Freedom of Information Act, have been heavily redacted.

Any suggestion that Ennals was any sort of "security threat" is laughable. He was spied on because he challenged government policy around human rights and support for apartheid. People should not be targeted in this way in a democracy - and the fact that he was, and people like him today still are, suggests that the UK is not and never was a democratic state.

Spies and spying are simply incompatible with democracy. If we want to control our government, we have to get rid of them. It's that simple.

A lack of commitment

New Zealand has finally joined the Open Government Partnership. A requirement of membership is to submit an action plan about how you will improve open government over the next two years. So what's in ours? Sweet fuck-all:

Our Action Plan will initially focus on the:
  • Better Public Services Results programme
  • Government ICT Strategy and Action Plan to 2017
  • Kia TÅ«tahi Relationship Accord; and
  • Transparency International New Zealand's 2013 National Integrity System assessment.
To point out the obvious, this was all stuff the government was doing anyway, so our membership of the OGP has made no difference at all to actual practice. But more importantly, its a long, long way from open government as understood by citizens. There's nothing in here about increased transparency, and nothing about increased civic participation. And when you compare it to Transparency International's suggestions, top of which was extended coverage of the OIA and more transparent political party finances, there's a yawning gap. But then, given their "consultation" process, which excluded the public and ignored even its handpicked participants, that's not really surprising.

This is not an ambitious programme for open government. It is lazy, and it deliberately avoids the areas the government desperately needs to make progress on. The obvious conclusion is that we're not committed to the OGP process, but instead are using it for PR purposes, to say how great we are, while changing nothing. And that is simply dishonest.

Thursday, October 30, 2014

An unmanaged conflict

Katherine Rich is a member of the government-appointed Health Promotion Agency, responsible for (as it says on its website) "inspiring all New Zealanders to lead healthier lives".

Katherine Rich is also Chief Executive of the New Zealand Food and Grocery Council, a lobby group for the food, sugar, tobacco and alcohol industries. As part of this role, she subcontract lobbyist Carrick Graham to run dirty politics hits on health researchers via Cameron Slater's sewerblog.

Rich's two roles appear to be in direct conflict. But the government says that that conflict is managed appropriately. Bullshit. While it has been declared, as Kevin hague pointed out in Question Time today, Rich has never recused herself from a single discussion or decision of the HPA, despite a clear requirement in the Crown Entities Act that she does so on any matter in which she has an interest.

There are two possibilities here. Firstly, despite its name, function, and the extensive contents of its website, the Health Promotion Agency has never in the time that Rich has been a member dealt with any issue related to sugar, alcohol, tobacco, or any of the other unhealthy products she peddles.

The second is that the chair of the HPA is a muppet and Rich's conflict is effectively unmanaged, contrary to the law.

Which seems more likely?

Robert Fisk

Isis in Syria: A general reveals the lack of communication with the US - and his country's awkward relationship with their allies-by-default

A stretch

This morning the Herald revealed that Kim Dotcom had been convicted and fined for dangerous driving in 2009, but had not declared it on his application for residency. Immigration is now talking about deporting him.

So, this is what we are now: a country where the government talks openly of deporting its political enemies for traffic offences.

Deporting Dotcom would require the Minister to find that his residency was procured through fraud. That would require the Minister to find that Dotcom knowingly concealed his conviction, rather than viewing it as a speeding ticket. But given the summary nature of the proceeding, that would be a stretch. If the Minister did make such a finding, it would be subject to appeal to the Immigration and Protection Tribunal, and to judicial review for bias. And I'm not sure the government would win such a case.

Sadly, this being third-term National, I don't think we can rely on them not to try. Which at least will be entertaining as they buy themselves another legal nightmare.

The obvious question

John Key says he knows who the hacker Rawshark is. So, will the police be raiding his home for ten hours and taking all his data, or is that something they only do to enemies of the National Party?

Wednesday, October 29, 2014

National's failure on child poverty

National has failed on child poverty, according to the UN:

New Zealand's child poverty rates have come down by less than half a per cent since 2008, according to the Unicef report Children of the Recession.

By contrast, Australia reduced its child poverty rate by more than 6 per cent over the same period, and Finland and Norway, countries with similar populations, reduced theirs by more than 4 per cent and 3 per cent respectively.

Key is hiding behind the Christchurch earthquakes and the global financial crisis as excuses for this lack of progress - but those countries also had to deal with the banker-induced recession. No, the real difference isn't because we had disasters, but because those countries have policy where we do not. Which simply illustrates a point made long ago: the level of child poverty is entirely a matter of choice by the government. Other countries choose to have a lower level than us, and set policies appropriately. Whereas for National, its just not a priority, ranking behind forking out tax cuts to the rich and pollution subsidies to polluters and farmers - policies which collectively cost us billions.

The message is clear: if we want action on this problem, we need to elect a government which will make it a priority, rather than making excuses. Sadly, we won't have that opportunity for another three years. How many kids will suffer stunted lives and restricted opportunities in the meantime?

GCHQ's backdoor spying

One of the suspicions about the Five Eyes spying pact is that it is a pact between spies to circumvent the restrictions put on them by their governments. The NSA isn't allowed to spy on Americans, the GCSB isn't allowed to spy on kiwis, and GCHQ isn't allowed to spy on UKanians - but they can all spy on each other's citizens, then trade the data through the backdoor.

GCHQ has just confirmed this practice:

British intelligence services can access raw material collected in bulk by the NSA and other foreign spy agencies without a warrant, the government has confirmed for the first time.

GCHQ’s secret “arrangements” for accessing bulk material are revealed in documents submitted to the Investigatory Powers Tribunal, the UK surveillance watchdog, in response to a joint legal challenge by Privacy International, Liberty and Amnesty International. The legal action was launched in the wake of the Edward Snowden revelations published by the Guardian and other news organisations last year.

The government’s submission discloses that the UK can obtain “unselected” – meaning unanalysed, or raw intelligence – information from overseas partners without a warrant if it was “not technically feasible” to obtain the communications under a warrant and if it is “necessary and proportionate” for the intelligence agencies to obtain that information.

The rules essentially permit bulk collection of material, which can include communications of UK citizens, provided the request does not amount to “deliberate circumvention” of the Regulation of Investigatory Powers Act (Ripa), which governs much of the UK’s surveillance activities.

Of course, whether its a "deliberate circumvention" is up to GCHQ and decided in secret, and its a fair bet that they never refuse to take information on this basis.

UK Ministers have gone on record to state that a warrant is required for all interception and analysis of UK data. GCHQ has just shown that they lied. We can't trust our spies, and we can't trust what our politicians tell us about them. The only way to be safe from mass-surveillance is to shut them down, permanently.

Women going backwards under National

The World Economic Forum has released its Global Gender Gap Report 2014. Last year we went backwards, dropping a place from 6th to 7th. This year its worse - we've dropped six more places to 13th, and our score has dropped even further. The reason? Its all down to "economic participation and opportunity", where we've dropped on nearly every measure. Labour force participation? Down. wage equality for similar work? Down. Earned income? Down massively. We've held our own on the proportion of women in technical and senior management positions, but economic discrimination appears to have increased.

Its not hard to see why. National has passed laws which have lowered wages and reduced employment rights. And that has a direct impact on the economic status of women. But that's what happens when you have government of, by and for dead white males.

A reminder

Earlier in the year, the World Justice Project released its Rule of Law Index, an assessment of 99 countries' complaince with the rule of law. New Zealand did pretty well on it, ranking first in the Pacific and sixth overall. But there was a down side: we ranked poorly for criminal justice, and we were trending down. And where we do badly tells a story:


[The green line is the average for high-income countries such as NZ; the orange line is the average for East Asia and the Pacific]

Looking at this, the problem is not with our law - it is with our police. If investigations are not timely, then evidence fades, criminals walk free, and justice is ultimately denied. Which is exactly what has happened with the Roastbusters case. But its not just this case - the Police are systematically failing to meet their targets for clearing cases. There is a big problem with underfunding here, but the problem with Roastbusters wasn't a lack of resources, but a basic lack of willingness to investigate serious, sustained criminal offending. And the fact that they're still not even bothering to talk to the victims tells us that this is a problem in this case.

Our police need to get their act together. If they fail consistently to investigate crimes, then people will rightly ask what purpose they serve. And at the moment, that purpose simply seems to be raiding the government's political enemies. If that's what the police are for, its time to burn down the organisation and start again from scratch.

Today's lesson

If your dad is a cop, you can get away with raping kids:

Police are to make an announcement this afternoon on Operation Clover, the investigation into the "Roast Busters" allegations.

The Herald understands the victim has been told that the alleged offenders will not be prosecuted due to a lack of evidence.

"Lack of evidence" meaning "we ignored the complaints for two years, then we dragged our feet for another year, then we decided that any testimony would be regarded as unreliable in court". Heckuva job you're doing there. I hope all of you wearing that uniform are proud of yourselves.

Meanwhile, the public should be asking themselves: if the NZ police can't prosecute a case like this, where offenders gloated online about their crimes and even posted video footage, what fucking good are they? And why are we paying them when they are clearly incapable of doing their job?

Tuesday, October 28, 2014

Australia deports another refugee to torture

What a surprise: a refugee Australia refused to recognise was tortured after being deported:

Mr Naseri arrived in Australia by boat in 2011 and spent time in detention before being granted a bridging visa. He was deported from Australia in late August after his refugee application was rejected by the Immigration Department.

Mr Naseri was reportedly abducted and tortured by the Taliban for two days but managed to break free from chains around his leg using a rock.

He said he was kidnapped while travelling from Kabul to his home district of Jaghori, along the same stretch of road where Australian-Afghan Sayed Habib Musawi, also a Hazara, was reportedly killed by the Taliban last month.

Mr Naseri told the ABC he was targeted within weeks of returning to Afghanistan because militants found evidence linking him to Australia.

"They found my [Australian] driving licence, then they understood I was from Australia. They beat me, they said 'this boy is from Australia, that country is full of infidels'," he said.

Whether an attempt to claim refugee status will itself lead to persecution is something that is supposed to be considered as part of an application for refugee status. But the Australian government pretty obviously ignored that risk, in violation of the Refugee Convention, the ICCPR and the Convention Against Torture. Sadly, I doubt this is the only example.


Also interesting in that OIA release about the Christchurch Convention Centre contract is the withholding of information under s9(2)(k) to

prevent the disclosure or use of official information for improper gain or improper advantage.

This is a rarely-used clause, and this is the first time I've seen it used in a commercial tender context (normally in such cases information is withheld as commercially sensitive, provided in confidence, or under the negotiations clause). And as the Ombudsman's guidelines make clear, "improper" gain is a very high threshold to meet, requiring the expected use to be almost illegal or extremely morally dubious. Its very hard to see that in this case, especially as the requester is not a bidder in the process and cannot gain any advantage by it. Instead, the obvious suspicion is that Brownlee thinks that the information will be used politically by the opposition, and that makes it "improper". Which tells us a great deal about the government's attitude to democracy and the law...

Cronyism in Christchurch II

Back in August, National announced they were handing a $284 million contract to build a new convention centre in Christchurch to a consortium which included the Speaker's brother. From the outside, it looks like cronyism, if not outright corruption, and in such cases, the onus is on the government to front up and show that the crony was in fact the best bidder. So did they? Yeah, right:

I wanted to know more, so I fired off an OIA request. Mr Brownlee refused to respond until after the election, even though this breached the normal four week time limit. Sadly, that was no surprise. He finally responded on 13 October, some nine weeks after receiving my request.

And what his reply reveals is… nothing at all, except the need for more investigating.

About half of the documents Minister Brownlee has released to me (part 1, part 2) have been redacted, including it appears any mention at all of Philip Carter of the Carter Group. They just aren’t there at all. Curious.

That's not quite correct - they're mentioned in a footnote on p13 of part 2 as being one of the constituents of the Plenary group. And only mentioning them in that way seems appropriate - Plenary is the official bidder. So I don't think that's curious. No, what's curious is that all information on the process for selecting the consortium was withheld. All we know is that the RFP was sent to five "previously shortlisted consortia" and that
Plenary's proposal also met the requirements of the Request for Proposal

Which, in a prima facie case of cronyism, seems oddly weak - and especially compared with the information released on the operation RFP, where they say outright that "Accor was the top ranking respondent". If there was a similar statement about Plenary, they'd release it. The absence of such a statement suggests that the Speaker's brother's consortium was not the top-ranked option.

The government owes us some answers here. They're refusing to give them. And based on what they've released, it looks a lot like they've got something to hide.

Criminalising the poor in Britain

One of the first things the Conservative-LibDem coalition in Britain did was cut benefit eligibility, requiring beneficiaries to jump through even more pointless hoops to gain state assistance. The purpose of this of course was that some of them would fail, allowing their benefits to be cut off. And now that's having the expected effect: the criminalisation of the poor:

What would you do to keep your baby from starving? Perhaps the same as Lucy Hill. At the start of October, the 35-year-old mother from Kidderminster was broke. After missing an interview at the jobcentre, her disability benefits had been stopped – which left her, her partner and her toddler of 18 months without anything to live on. So she went to the local Spar and stole a chicken and some soap powder.

Two weeks later, Hill was up before the magistrate. Her police interview noted that she said “sorry to the shop … but had no money … and was in a desperate situation”. She was ordered to pay compensation, a fine, costs and a surcharge: a total of over £200 to be taken off someone who’d only committed a crime because she had no money. Her solicitor John Rogers remembers that the mother’s chief worry was that the social services might find out and take away her baby.

After running me through the details, Rogers sighs. Cases like this keep coming his way, he says: “They miss an appointment so their benefits are sanctioned [docked or stopped altogether], so they have no money, so they steal.” His local office now handles “at least half a dozen” such cases each month – up from almost nothing a year ago.

He’s just one lawyer in one post-industrial town, describing a national policy: of starving the poor into committing crime.

The net result of this policy is that "savings" from cutting benefits are spent on police, courts, and prisons, while lives are ruined. But that's not on the welfare budget, and it allows the government to demonise the poor even further.

Meanwhile, its worth considering: our government has pursued exactly the same policy of erecting bureaucratic barriers to force people off benefits. It would be interesting to hear whether we are seeing the same effect here.

New Fisk

Isis attack on Idlib: Assad's army leaders 'slaughtered' as jihadists storm Syrian provincial capital
The 200,000 Syrian child refugees forced into slave labour in Lebanon

Cementing pay equity?

Yesterday was Labour Day. Today, National is going to celebrate it by removing your right to a tea break at work. The fact that this is their highest priority as an incoming government (as opposed to, say, reducing child poverty) speaks volumes about who they work for and the direction they plan to take New Zealand in over the next three years. "Governing for all New Zealand", my arse!

Also today, the Court of Appeal ruled in the case of Terranova Homes & Care v SFWU. The case was over pay equity - the principle of "equal pay for work of equal value". Terranova pays its caregivers barely more than the minimum wage, and the SFWU argued that this was because aged-care was a female-dominated profession with devalued wages. Last year, the Employment Court accepted that, based on a straight reading of the letter and purpose of the Equal Pay Act 1972. And today, the Court of Appeal backed that up, dismissing Terranova's appeal. Which means that the Employment Court is now free to state pay equity principles and conduct a comparison exercise which should result in Terranova employees (and hopefully everyone in the industry) getting the pay they deserve.

...unless the government legislates, that is. After all, they're taking away your tea-break today, purely out of spite. What do you think they'll do when the law is on the side of workers for once, and it threatens to cost their donors and cronies real money?