Friday, February 21, 2020



Another environmental crime

The recent floods in Southland have highlighted the issue of Rio Tinto's illegal toxic waste dump in Mataura. But according to Newsroom, there's an even worse mess in Ruakaka near Whangarei:

A Northland property stockpiled one million litres of flammable and toxic chemicals. Almost two years since the situation came to the attention of authorities, the poorly stored solvents remain a fire and environmental risk.

While Government agencies struggled to get a polluter to clean up his mess, up to one million litres of flammable and toxic solvents in corroding drums has sat next door to key infrastructure.

The solvents were illegally accumulated by a Ruakaka solvent recycling plant in breach of its consent to store 50,000 litres of solvent. Poorly stored, they were thought to pose a fire danger to the Marsden Point oil refinery pipeline and its electricity supply.

Last week two grass fires occurred nearby. One was approximately 700 metres away from the property.

Locals are largely unaware of the scale of the issue on their doorstep.

As well as liquid solvents stored outdoors in rusting drums and plastic containers, it's thought 150 to 200 tonnes of contaminated material was buried illegally. Tests on groundwater showed levels of contamination 1200 times higher than drinking water standards allow.


Reading the whole thing, I'm appalled, and left with the overwhelming question: why is this person not in jail? Because I'm seeing serious breaches of the RMA (including violation of enforcement orders), which is punishable by two years imprisonment, and probably breaches of the Hazardous Substances and New Organisms Act as well in relation to storage of hazardous substances (which is probably worth 3 months in jail, a $500,000 fine, plus $50,000 a day if non-compliance continues). This is a serious, ongoing environmental crime, which endangers key infrastructure as well as people's health. and it needs to be treated as such.

A dry hole

OMV's exploratory drilling in the Great South Basin has failed to find oil. Good. Firstly, because we can't afford to burn the oil and gas we've already found, so there's just no point looking for more. And secondly, because offshore, deep-water drilling poses a risk of an environmental catastrophe, which we're better off avoiding. But since they've failed to find anything, those risks will not eventuate.

Now if only they'd surrender their permits and fuck off back to Austria, rather than coming here to destroy our environment...

Strengthening whistleblower protection

The government has announced it will strengthen whistleblower protections. The major change is "allowing people to report serious wrongdoing direct to an external authority if they wish", which fixes one of the big flaws in the Act. At present, whistleblowers must generally make their disclosure direct to the body they are blowing the whistle on - a requirement which disincentives disclosures (because of obvious and justified mistrust) while enabling institutional coverups. If "external authority" means MPs and the media, then that removes that barrier, while setting a strong incentive for organisations to have effective and trustworthy internal processes (because otherwise people will just go to the media instead).

Unfortunately, the rest of the changes are mostly technical. On the other big problem with the Act - the lack of real protection for retaliation - the government proposes "strengthening" protections by making requirements clear. Which simply isn't enough, because it still relies on private enforcement for a breach, and will only impose civil penalties (which will usually be borne by someone else). Australia meanwhile has made retaliation against whistleblowers a criminal offence, which means there is a real incentive not to do it. And as for the decriminalisation of intelligence whistleblowing - shamefully made a criminal offence by National, despite clear evidence of its public value and of unlawful behaviour by spy agencies - that doesn't even get a look in. So, while these are welcome changes, they simply don't go far enough.

(Meanwhile, I guess this will be proudly announced as an Open Government Partnership commitment in our next action plan, despite being a business-as-usual policy which has been in the works for years. It is neither ambitious nor additional. But that's the typical scale of New Zealand's OGP "commitments")

An unjustified policy

On Monday, we learned that the Marlborough District Council wanted to charge more for LGOIMA requests. The proposed polcy violates OIA charging guidelines, so I asked them for the advice justifying it. MDC provided a rapid response pointing me at the relevant committee agenda item [p38 - 39]. According to that,

Requests for information received are increasing on a daily basis. Often, for example, requesters will go on a ‘fishing expedition’ against an expectation that the ratepayers should fund the costs involved in retrieval of information thought to be of interest by the media or others.

Sadly, they did not provide any statistics to back up those claims, so I asked them for those. I received the response by email yesterday:
The formal requests received through January to November 2019 are as follows:
  • January – 7
  • February – 7
  • March – 2
  • April – 13
  • May – 20
  • June – 8
  • July – 39
  • August – 48
  • September – 32
  • October – 28
  • November 20
We note that a separate history of media requests only started from July 2019 and this accounts for the difference between January/June and July/November.
Older statistics "would require compilation which would take considerable time and could trigger the application of our Costs Policy." So looking at this, it appears that the claim that "Requests for information received are increasing on a daily basis" - the justification for increased charges - is because they started counting requests which they had been handling all along. But its not actually clear that anything has really changed, or that higher charges are needed. As for the claim about "fishing expeditions", MDC sadly does not publish a disclosure log, so we can't easily tell how many of their requests would fall into this somewhat nebulous category. So, I'll just have to request some (and along the way make a judgement about how often is "often"). Because otherwise the natural conclusion is that they're objecting to this:
In the last six months, media requests in Marlborough have uncovered council representatives went a decade without a pay rise, 7000 plastic cups were purchased by the council last financial year, and $2.1 million was spent on councillor wages over the last three years.

None of these questions are very exciting, but its the ordinary business of media oversight. And it is exactly what the LGOIMA is supposed to enable. Marlborough District Council's charging regime should not be altered to discourage it.

Thursday, February 20, 2020



The blue wall of silence

Another day, another IPCA report on criminal conduct by policy. This time they kicked a child in the head when he was handcuffed:

Police chased him and yelled out for him to stop. When he turned to face the police, he threatened them with a hammer.

That's when the officers tasered and restrained the boy but once they had him on the ground, he said they kicked him in the head.

A nearby witness also saw the boy being kicked and reported it because he was "disturbed" by what he saw.

The Independent Police Conduct Authority found that the use of a taser was appropriate, as the boy confronted the officers with a hammer.

But Judge Colin Doherty said that threat diminished once the boy was restrained and there was no reason to kick him.

"This was an excessive use of force," he said.


There's more in the report: they also attempted to intimidate a witness filming the arrest on a phone, suggesting they knew their behaviour was criminal. But the IPCA was unable to determine which police officer delivered the kick. In other words, two of these three police officers covered for their criminal colleague and perverted the course of justice. And that is simply not acceptable. The police must be accountable under the law, and prosecuted when they break it. When they cover for each other, they are acting like a gang with fancy uniforms, not a police force under the rule of law.

Time for public funding of our political parties

The investigation of two of the five parties in Parliament for fraud around their election donations has pushed the issue of party funding back into the spotlight. And while there are obvious things we can do to tighten up the donations regime - a much lower declaration threshold, realtime disclosure of all donations, statutory intrusive audits to make sure the rules are complied with - none of these address the obvious problem: that there is money in our political system. And where there is money, there is influence and corruption. Regulation might help things a little, but fundamentally if we want clean politics, we need to take the money out. Which means publicly-funding our parties rather than forcing them to rely on bribes from millionaires and shady foreign-linked businessmen.

Cat MacLennan, pointing out that public funding is common overseas. 58% of countries, including Canada, Sweden, Germany, and the Netherlands, provide direct funding to political parties. These are countries which we think of as democratic leading lights, and which don't have a problem with corruption. So that seems worth emulating. Clint Smith also address the issue in Stuff, and makes the simple point:

If we don't want anonymous wealthy people trying to buy our democracy, maybe we should pay for it ourselves.

And that's really what it comes down to, isn't it? Should politicians work for voters, or donors? I think almost all of us prefer the former, and that means gritting our teeth, putting aside our justified dislike of politicians, and giving them public money to work on the public's behalf. Because our democracy is worth it.

But there's also the corollary: if politicians defend the current system, or drag their feet on making these changes, then its clear that they think they should be working for donors, not us. And we should vote them out.

Wednesday, February 19, 2020



How unsurprising

Former National Party chief whip Jami-Lee Ross is one of the four people charged over National's multiple fraudulent donations. How unsurprising. Meanwhile, just days ago National leader Simon Bridges was trying to pretend the charges were nothing to do with his party. Yeah, right. When your chief whip effectively publicly confesses to money laundering for the party, and tells you about it, its hard to look clean. Sure, Bridges hasn't been charged, because he has no legal responsibility for donations. But its clear that his party was a knowing party to these dealings, and voters should hold them responsible for that.

An unlawful policy

If you've been watching FYI for a while, you'll have noticed that the police have a bad habit of demanding ID from requesters. They have apparently been repeatedly told to stop doing this by the Ombudsman, but we all know what law enforcement thinks of the law, so thye keep doing it. Now someone has actually asked them for their policies about this, and its pretty eye-opening. For OIA requests, police guidance is that:

It is not necessary to verify the identity of an OIA () requester (unless they are a NZ body corporate requesting personal information about the requester (s25)) and they do not have to provide personal details. However, if you have concerns about the nature of the information sought and whether they meet the section 12 requirements of a person entitled to make a request (i.e. NZ citizen/permanent resident/in NZ), you may ask for a reasonable level of evidence, e.g. a NZ address or phone number, but you cannot demand proof of identity.

[Emphasis added]

The Ombudsman has said it is fine for agencies to ask for proof of eligibility where they have real concerns about it, and the police guidance on that seems OK (what's not OK is that they repeatedly ignore it, demanding photo ID rather than just an address or phone number). But the first bit, which purports to permit an ID check based on what is requested, is flat-out unlawful. That is simply not something permitted under the Act, and it makes it clear that the true purpose of such demands is almost always to discourage requests the police don't like.

The Ombudsman should stomp on this, and a law-abiding agency would obey them and change their behaviour. But we've seen repeatedly that the police care as little for the Ombudsman's legally binding "recommendations" as they do for the IPCA's. Which highlights firstly, a need for criminal penalties for non-compliance with the Act, and more importantly, a need to get rid of the eligibility requirement entirely (as recommended by the Law Commission) to prevent this sort of abuse. And if any MP wants to take some steps on the latter, there's a bill you can put in the ballot here.

Tuesday, February 18, 2020



This is unjust

The Herald reported over the weekend that an Auckland business owner is being targeted with asset forfeiture laws over a workplace death:

A workplace fatality has seen police use a law usually associated with drugs and organised crime to seize millions of dollars in assets from a business owner because of health and safety breaches.

The case is set for the High Court in Auckland next Wednesday and Ron Salter - who served home detention after the 2015 death - says he and wife Natalie stand to lose everything they have worked for over 38 years.

It is a first for legislation usually associated with gangs and the drugs trade. High Court documents show police have used the Criminal Proceeds (Recovery) Act to legally restrain their family home in Auckland, along with family trusts, the family bach and waste fuel collection business Salters Cartage Ltd.

At risk are properties worth $8,125,000, according to government valuation, and the Salters' waste fuel recovery and recycling business that could triple the value of the restrained assets.

It follows the 2015 death of Jamey Lee Bowring, 24, at the Salters Cartage Ltd yard in Wiri, South Auckland. Bowring was welding on a 100,000-litre fuel tank when it exploded, throwing him about 100m.


This is unjust. Not because its being used against a white-collar criminal - crime is crime, and criminal profits are criminal profits whether they derive from drug dealing or systematically unsafe business practices (or fraud, or tax evasion, or wage-theft, or pollution, or any other form of rich-person crime; I'd like to see the law used more often against such criminals, subject to the constraints below). But the problem here is that Salter has been convicted and served his sentence. Coming after him three years after that seems to be a classic case of double jeopardy, and a violation of s26(2) BORA. Its a perfect example of why asset forfeiture should only happen on conviction, and as part of sentencing (as was typical pre-2009): because otherwise punishment never ends.

National wants lower wages

Just days after talking about how people feel "squeezed" and promising tax and service cuts as a "solution", National is talking about cancelling a rise in the minimum wage if elected:

National is considering scrapping the Government's planned minimum wage increase if it wins this year's election, the party's finance spokesman Paul Goldsmith says.

The Government has progressively been increasing the minimum wage and promised it would reach $20 an hour by April 2021.

But, speaking to RNZ this morning, Goldsmith said National was considering putting a stop to this.


If they were really worried about people feeling poor, they'd be supporting a higher minimum wage, because increasing the minimum ratchets up wages for everyone else. But it seems that that is precisely what they want to avoid - because higher wages for ordinary kiwis means lower profits for National's big-business backers. So instead, they're promising to keep people in poverty, and cut the services they need to get by, so they can channel more money to their rich donors and cronies.

History repeats?

A Labour government desperate for the numbers crawls into bed with Winston Peters. Winston ignores the law and secretly takes money under the table from someone. When it is exposed just months out from an election, he is investigated by the Serious Fraud Office.

That's what happened back in 2008. And its happening again. Back then, Peters was immediately suspended as a Minister when the investigation was announced. But politics (and Winston) is more shameless now, and politicians care less about what the public thinks of them, so who knows if that's going to happen? But if it doesn't, then we're going to be in a situation where a Minister under investigation for taking secret donations is still exercising power, still potentially selling influence. And that will make the entire government look even more corrupt and dirty.

(The third act of this story is "Labour loses the election". Maybe they've got more of a chance this time because National also has its own dirty donations story, which has resulted in prosecution. But if it goes that way, Labour will have no-one to blame but themselves. Lie down with dogs, get up with fleas...)

Meanwhile, with two of the five parties in Parliament under investigation or in court for laundering donations, we need to fix the system which enables this corruption. Public funding, freeing parties from the need to beg for money and so effectively prostitute their policies, is an obvious solution. Get the money out of politics, so the public's voice can be heard again. But if people don't want to go that far, then at the least, we need massively lowered disclosure thresholds, real-time disclosure of every donation, and annual audits by the SFO to ensure that the rules are properly complied with and that politicians don't try any dirty tricks to get around them. Plus an audit of the past five or ten years' donations to every party, so we can tell who is clean and who is not. But of course, the politicians will never vote to put their own in jail. So the first step is to vote them out and replace them with people who will.

Double the fraud with National!

When people were charged over laundering a $100,000 donation to the National Party, people were horrified. But now it turns out that its not one $100,000 donation, but two:

The Serious Fraud Office prosecution of four people over donations to the National Party involves not one but two $100,000 donations - in June 2017 and June 2018.

Court charging documents released to the media by order of Auckland District Court Judge Edwin Paul today show that three of the four defendants - whose names are suppressed ahead of a hearing next week - each face two joint charges of deception over a sum of $100,000 donated to National in 2017 and $100,050 donated to the party in 2018. The maximum penalty if convicted on the charge is seven years' imprisonment.

The fourth person is charged jointly with the others only over the second $100,050 donation - but also faces one charge of providing misleading information to the SFO.


(In 2018 National received $742,000 in donations. So this single donation is 13% of their funding that year).

Multiple donations suggests that this isn't a one-off aberration, but a systematic pattern of behaviour. And it raises the question of how many other times they (or other parties) have done it and gotten away with it. Not to mention who is making these huge secret donations and exercising influence behind the scenes.

We don't have an answer to that because for the moment everyone has interim name suppression. Hopefully that will be overturned when they appear in court next week. Because it is hard to think of a more compelling public interest in transparency than in election fraud.

Monday, February 17, 2020



A political vacuum?

Writing on The Spinoff, Danyl Mclauchlan argues that we have a vacuum in our political system, in that there is no longer an anti-establishment party anymore:

I think there’s a vacuum in our political system. There are obvious problems with the status quo but no real critics offering reform. It’s a situation that Simon Bridges is temporarily taking advantage of, but to which offers no actual, meaningful change. He’ll follow the current laws but since the current laws are designed to be crooked, that doesn’t mean very much.

Lenin used to say that he found power lying on the streets, and simply picked it up. I suspect there’s power lying on the streets in New Zealand politics, waiting for someone to say that our parties shouldn’t be secretly funded by the richest people in the country; that lobbyists shouldn’t be in powerful Beehive jobs, that the country should be governed in our interest, not theirs. And that power is just waiting for someone to pick it up.

It used to be the job of the Greens to say those things (and more besides). But now they're in Cabinet, they are the establishment. Collective responsibility and the desire to get along with their government partners has effectively gagged them and prevents them from offering any effective critique. Yes, they make some ineffective noises every so often, but you can't fight the power when you are the power (as we've seen on War On Terror bullshit).

Meanwhile, I'm hoping that someone picks up that power before the racists to National's right do.

Climate Change: Oversubsidising polluters

Stuff today has a piece about the government discovering it has been oversubsidising polluters for a decade under the Emissions Trading scheme:

The Government is pledging to urgently fix an issue within the Emissions Trading Scheme (ETS), after it emerged some polluters are likely being over-compensated with taxpayer-funded carbon credits.

[...]

The quantity of free credits each company gets is based on a formula with various factors. Among them is the Electricity Allocation Factor (EAF), a rate calculated in 2011 that estimated future electricity price increases caused by the ETS.

It has since emerged the EAF is inaccurate. Numerous assumptions made in setting the rate did not come to fruition, including lower than expected electricity demand and lower gas prices.

It means polluters are being compensated for price increases that never happened.


The good news is that the amount of this subsidy is set by regulation, so it is easy to fix. But at the same time, it is ignoring the elephant in the room. Because as the Parliamentary Commissioner for the Environment pointed out last week, the entire subsidy system is rotten to the core, encouraging emissions while delivering public money to companies that neither need nor deserve it, on entirely spurious grounds. The issue isn't that we're giving them too much for electricity - its that we're giving them anything, full stop. And hopefully, the select committee currently examining the Climate Change Response (Emissions Trading Reform) Amendment Bill will do something about that. If not, then we will need to get a government, and a Parliament, which will.

An unreasonable charging regime

The Marlborough District Council, tired of public scrutiny, wants to increase the amount it charges for LGOIMA requests:

The cost of requesting official information from Marlborough's government agency could almost double after a jump in "fishing expeditions".

Charges could be raised from $60 to $100 an hour for information supplied by the Marlborough District Council, and from $60 to $100 for "assurance" deposits on bigger jobs, to "avoid [a] waste of resources".

The issue was raised at a planning, finance and community meeting last week.


The problem: these proposed charges are higher than the official OIA charging guidelines. While these strictly do not apply to local government, the Ombudsman has repeatedly found that they are reasonable charges for local government to use, and that
the application of an internal charging policy that is inconsistent with the Charging Guidelines, for example, by charging higher rates for staff time or photocopying, risks an Ombudsman’s finding on review that the charge in question was unreasonable.

So, if Marlborough District Council, or any other body, attempts to charge you for a request and the charges are not according to the guidelines, complain immediately to the Ombudsman. This will cost them a lot more time, and they will soon learn that it is cheaper to not try charging.

Finally

When Winston Peters was caught money laundering donations and stalking journalists, the Greens were conspicuous by their silence. It was another example of how getting along with their government partners was eroding their values and their own reputation. It was obviously unsustainable, and so now James Shaw has finally spoken up about it:

The Greens have broken their silence and expressed alarm at the published photos of Gray with the journalists who have been reporting on donations to the party.

But party co-leader James Shaw, who has until now been reluctant to weigh in on the saga surrounding the NZ First Foundation, stopped short of asking questions of governing partner New Zealand First.

[...]

Shaw also took a step further in relation to questions about the NZF Foundation and whether it has properly declared donations to the NZF party.

"The allegations are concerning and due process must be followed while they are investigated," Shaw said.

"We know New Zealanders will be looking at this issue and worrying about what it means for their democracy, which is why we are focused on making the system more transparent and fair."

And on the latter front, he has a proposal for a citizen's assembly to set electoral donation rules. Its a good idea: its our democracy, and the politicians who we have trusted to set the rules so far are obviously compromised by their own self-interest and incapable of doing a good job of it. The problem of course is that those same compromised politicians would have to enact whatever reforms the assembly came up with. And judging by their past behaviour over electoral reform, they would simply refuse to do so, then when dragged kicking and screaming to it, do their best to undermine it to protect the corrupt status quo. As with so many of our problems (climate change, housing, poverty), fixing it requires the destruction or significant weakening of the current political establishment.

(And meanwhile, Jacinda Ardern is still trying to say that its nothing to do with her. Bullshit. She's the Prime Minister, and wholly responsible for the ethical standards of her Cabinet. Pretending otherwise is simply a coward's way of saying that she's perfectly fine with corruption and dirty politics when its done by her allies, or at least willing to look the other way. But while this denial of responsibility gives her formal deniability, the problem is that this stench is not going to go away, and some of it is going to stick to her. And if it costs her a second term, she will have only herself to blame).

Friday, February 14, 2020



Time to crack down on house-hoarding

The Helen Clark Foundation has released its report on the housing crisis, and found that house-hoarders are to blame for it:

Property investors are to blame for New Zealand's high house prices, a new research paper published by the Helen Clark Foundation says.

[...]

McArthur said previous attempts to address housing problems had not worked because they saw it simply as an issue of supply and demand.

But she said the windfalls for those in the property market had come at the expense of families and people's basic need for shelter.

Speculation in the market was the primary driver of house price growth, she said, and houses were being treated as an investment, fuelled by the availability of cheap credit.

To address that, she recommended debt-to-income limits on borrowing for high-income households and a capital gains tax.


Its the obvious solution. But it requires the consent of MPs, who are among the biggest house-hoarders in the country. Their self-interest and greed is a big part of why we have this problem. And we should judge them harshly for it.

Reported back

The Abortion Legislation Committee has reported back on the Abortion Legislation Bill and recommended that it be passed with some amendments. Unfortunately, the latter include even more hoops to jump through for those seeking abortions after 20 weeks, including a time-wasting requirement to consult a second doctor. No-one casually seeks an abortion that late, but those whose circumstances change or who discover an unforeseen medical problem will still have to endure the wagging finger of society over what is a basic medical decision. The committee has also strengthened the ability of "conscientious objectors" to obstruct the process and waste people's time, and explicitly allowed them to do so to victims of sexual violence. And that's just a bit shit IMHO.

I expect there will be a lot of amendments offered on this bill at the committee stage. Hopefully we'll see some MPs put up amendments to create the liberal regime the Law Commission recommended, rather than the worst option that the government chose (which has then been made worse by the select committee process). This bill was passed by a huge majority, and hopefully there's a majority within that for a far better law than the bullshit compromise the government is offering. And otherwise, well, this is still a massive improvement on the status quo, but it still stinks that reform has been watered down like this.

A positive consequence of Brexit

Brexit is likely to be a disaster for the UK (how sad, never mind). But now that they're out of the EU, the latter has finaly taken the opportunity to blacklist one of their key tax havens:

The Cayman Islands, a British overseas territory, is to be put on an EU blacklist of tax havens, less than two weeks after the UK’s withdrawal from the bloc.

In a clear indication of the country’s loss of influence on the EU’s decision-making, the bloc’s 27 finance ministers are expected to sign off on the decision next week.

[...]

On Wednesday, EU ambassadors judged that the islands in the western Caribbean Sea are not effectively cooperating with Brussels on financial transparency, the Financial Times reported.

The Cayman Islands will join Fiji, Oman, Samoa, Trinidad and Tobago, Vanuatu and the three US territories of American Samoa, Guam, and the US Virgin Islands, on the “non-cooperative” list.


Previously they'd been kept off the blacklist - and their money laundering enabled - by UK lobbying. But now they can finally be financially isolated and forced to adopt a proper regulatory regime which doesn't enable theft by billionaires and other criminals. And hopefully the EU will adopt the same tactics towards the rest of the UK's network of money laundries.

We need to fix defamation law

Bob Jones has dropped his defamation case against Renae Maihi. Good. But at the same time, it perfectly exposes what the case was all about: not protecting Jones' reputation, but punishing someone who had dared to criticise him, and deterring others from doing the same. This rich pompous asshat dragged a young women into court and heaped costs on her just because he could. And he walked away when he got bored (and when she was about to be able to have her say) because he could afford to do so. Its a disgusting abuse of power, and it shows exactly what is wrong with defamation law.

As for what to do about it: the US, Canada, and the ACT all have laws against "SLAPPs", and adopting one would be a good start. But the problem is that fines and damages mean nothing to the rich. Jones was willing to wear the cost of a pointless defamation suit just to discourage and intimidate, and doubling or trebling those costs is not going to make someone like him stop. Fundamentally, we need to change the law, and do away with defamation law as we know it. Graeme Edgeler has some good suggestions on this, such as limiting cases to malicious falsehoods which cause financial loss (rather than simple name-calling and expressions of opinion). Moving cases out of the courts and into a more accessible tribunal would also help a lot, and remove their use as a legal weapon of the rich against the poor. But fundamentally, in a free and democratic society, it should not cost you a year of your life and hundreds of thousands of dollars if, you express a reasonably held opinion that someone is of poor character. Being judged by others for your actions is part of life, and rich pricks like Jones need to accept that.