Monday, November 19, 2018

The government's secret OIA plans

Back in September, when the government announced plans to increase proactive release of official information, we learned by accident that they were also considering another review of the OIA, and "intend[ed] to carry out targeted engagement to inform a decision on whether to progress a formal review". As someone interested in OIA reform, I was naturally curious about this, so I sent an OIA off to Justice Minister Andrew Little seeking information about the proposal. I finally got the response back on Friday, after a month-long extension for "consultation". Unfortunately, its not very informative.

You can read the released documents here. As is obvious, all interesting information about the proposal has been redacted. All their specific proposals for reform are secret, as is practically everyone they plan to consult in their "targeted engagement". People with specific expertise in the law? Secret. Bloggers and commentators? Also secret. They do list some media organisations, and the members of the OGP Expert Advisory Group, but everyone else is secret. Which is outrageous when you think about it. The OIA is quasi-constitutional legislation, something that belongs to (and affects) all of us. But rather than a full public consultation, they plan to privilege some voices over others, presenting their select secret proposals to a select secret group, then presenting the stovepiped results to us as a fait accompli. And they kept this entire process secret as well: they decided it all back in May, but never announced anything. The only reason we know about it at all is because of a passing reference in another document. Whether these are the actions of a government committed to transparency, accountability, and participation is left as an exercise for the reader.

As for the quality of their proposals, well, they're secret, so we can't tell. But what they do reveal isn't encouraging. For example, the Ministry of Justice's brief advice on whether the OIA should be extended to Parliament cherry-picks its examples to include only those that support the status quo, while ignoring the obvious counterexample: the UK Parliament is fully subject to its Freedom of Information Act, and this has brought about a huge improvement in accountability. Which doesn't provide much reason for confidence in the quality of their advice. And while they don't seem very keen on extending s48 of the OIA to cover proactive release, repeatedly highlighting the Law Commission's recommendation against extension, all their actual advice is secret, so we can't tell whether its robust or flawed. Which given the huge potential for abuse in the proposal - it would basicly give Paula Bennett total impunity to dox people at will with their benefit, medical, police and tax records - is something we need to know.

We deserve better than this. Its not just politicians, journalists and trouble-making bloggers who use the OIA, but all of us. Steven Price's 2005 study of the OIA contained an extensive list of examples of how ordinary citizens use the Act, and summed it up as "the stuff of democracy". According to the Ombudsman's 2017-18 annual report, individuals made three times as many OIA complaints as journalists, and its 5.5 times as many when you look at the LGOIMA. In short, it's our Act, not theirs. And any non-trivial changes to it require publicly consulting all of us, not just a select group of chosen insiders.

Friday, November 16, 2018

"A serious threat to public health"

That's how UK doctors have described that country's benefit system:

Universal credit has become a serious threat to public health, doctors have said, after a study revealed that the stress of coping with the new benefits system had so profoundly affected claimants’ mental health that some considered suicide.

Public health researchers found overwhelmingly negative experiences among vulnerable claimants, including high levels of anxiety and depression, as well as physical problems and social isolation exacerbated by hunger and destitution.

“Universal credit is not only failing to achieve its stated aim of moving people into employment, it is punishing people to such an extent that the mental health and wellbeing of claimants, their families and of [support] staff is being undermined,” the report states.

It concludes that universal credit is actively creating poverty and destitution, and says it is not fit for purpose for many people with disabilities, mental illness or chronic health conditions. It calls for a radical overhaul of the system before the next phase of its rollout next year.

This system is profoundly evil. And its entirely intentional. Tories have never supported effective welfare systems. Instead, they want them to be cruel and punitive, pour encourager les autres. Every "suicide" due to universal credit is in fact a murder - a murder committed by a cruel and vicious government wanting to eliminate the poor.

meanwhile it'd be interesting to see similar information on the New Zealand welfare system. But I suspect WINZ refuses to collect any useful information, because it could only make them look bad.

New Fisk

On Armistice Day, we had the luxury of remembering the Great War – while Palestinians are still living its consequences

Time for the government to pay up

Primary teachers are on strike this week, secondary teachers are planning the same, and next year there's the prospect of a joint teachers' strike meaning schools everywhere will shut. Meanwhile, other strike action is shutting down the courts, forcing trials to be delayed and clogging an already overstretched justice system. The underlying cause of this? Nine years of National penny-pinching and trying to "do more with less" has left public servants overworked and underpaid, and now they're sick of it enough to actually do something about it.

The government's response has been to claim there is no more money. Bullshit. Whether there's money for public servants or planes is simply a matter of priorities. And this government's priorities are to spend $2.3 billion on war-toys for America rather than making sure basic government services like schools and the courts function. More generally, they get to decide their financial parameters, such as how fast they pay down National's debt, or even whether to raise taxes to gain additional revenue to boost public services. The fact that they're not considering any of this tells us that providing basic services is simply not their priority. What is their priority? Fuck knows - but its looking like as little as possible while collecting their fat salaries. Just like National, really.

But the New Zealand public does care about those services. We care about whether kids can go to school, and we care about whether the courts function. So unless the government wants us to start caring about them, at the ballot box, it needs to change its priorities and pay up.

Thursday, November 15, 2018

More dirty dairying

Councils and the courts finally seem to be getting serious about dirty dairying, with another conviction in the Waikato resulting in a near-record fine:

A Waikato dairy farming company has been fined almost $60,000 for discharging effluent into a waterway.

H & S Chisholm Farms Limited has been convicted and fined $57,375 for two discharges of dairy effluent from its South Waikato farm in mid-2017.


Judge Harland noted that the company's response to the incidents was "exemplary", with significant investment in effluent infrastructure on the farm following the pollution events.

However, she also noted that "dairy farmers in the Waikato region have had ample time to understand what is required to lawfully manage dairy effluent and to become educated about best practice, both in terms of the design, operation and management of effluent systems".

The fine is among the highest for effluent offences in recent years, with two other fines of more than $50,000 and a further six of more than $35,000 in 2017/18. However, the 21 convictions in the past two years involve a tiny fraction of the country's 8000 farm owners and 4000 sharemilkers

Which tells us the scale of the problem: a huge number of dairy farms fail to comply with their resource consents (almost a third in some regions), yet only a tiny number are ever prosecuted for it. Which means that most of these environmental criminals get away with it. if we're to solve this problem and clean up our waterways, that needs to change. The law needs much greater enforcement, so that dirty farmers will credibly fear prosecution and change their behaviour. Fortunately, the government looks like it is planning to do just that, by allowing the EPA to prosecute where councils won't.

The Fijian election

Fijians went to the polls yesterday in the second elections since the 2006 coup. While bad weather forced polling to be suspended in some areas, and the final count is not yet in, the provisional results show coup-leader Voreqe Bainimarama's FijiFirst party has retained its majority. The iTaukei SODELPA party, led by another former coup-leader Sitiveni Rabuka looks likely to be the main opposition, with about 38% of the vote, the Ind-Fijian National Federation Party coming third on 7.5%. There's 30% of the vote left to be counted, and things would have to shift significantly for FijiFirst to be forced into coalition.

FijiFirst threw everything it had at this election, unsuccessfully trying to convict the leader of the opposition over his asset declaration (which, if successful, would have disqualified him from the poll and made all votes for him invalid, costing SODELPA around half its total vote), and prosecuting another high-profile SODELPA candidate for sedition (again, unsuccessfully), and disqualifying former Prime Minister Mahendra Chaudhry from competing. Fiji's election system is built entirely on candidate recognition, with most votes going to party leaders - for example, ~over 70% of FijiFirst's votes were cast for Bainimarama - so eliminating high-profile candidates can have hugely disproportionate effects. And with their dirty tactics, they've managed to just retain power. Which suggests that in a fair election, they might not be so lucky. While none of Fiji's political parties is especially appealing, in order for the coup legacy to end, its architects need to be de-elected. The sooner that happens, the better.

Wednesday, November 14, 2018

Keeping a promise

After the Pike River disaster, then-Prime Minister John Key gave the victims' families an "absolute reassurance" that their loved ones bodies would be recovered. He lied, and left them to rot. Now, Labour is keeping his promise:

The Minister responsible for Pike River re-entry has this morning announced that a plan to re-enter the mine drift to retrieve the bodies of the 29 men who died there in 2010 will proceed.

Andrew Little made the announcement at Parliament, in front of a number of the families of the Pike 29.

"Re-entry of the Pike River Mine will proceed. To the Pike River families, to New Zealand, we are returning."

He said he decided the Te Kāhui Whakamana Rua Tekau Mā Iwa - Pike River Recovery Agency, recommended course of action to enter the drift, using the existing access tunnel, was by far the safest option.

Good. Because this isn't just a sentimental matter of recovering remains. Pike River is also a crime scene, and re-entry may help the police gather the evidence required to hold those responsible to account. They've already bribed their way out of trouble once - actions later found by the Supreme Court to be "an unlawful agreement to stifle prosecution". Hopefully they won't be able to do that again.

Pure cronyism

So, the rumours were true: the government has appointed former Labour deputy Annette King as High Commissioner to Australia. So much for Winston Peters' supposed opposition to such appointments - it turns out that he's really only opposed when they're from the wrong party. But the normal arguments against cronyism are even stronger in the case of this job. Australia is our nearest neighbour and one of our most important diplomatic relationships. It deserves better than to be used as a retirement home for washed-up, has-been former MPs.

Tuesday, November 13, 2018

Another reason to use a false name for OIA requests

Because if you request information about a company, they may turn around and request information about you:

In a case of the hunter becoming the hunted, people making Official Information Act requests cannot bank on remaining anonymous.

Over the past two years the Commerce Commission has received 10 requests from companies wanting to know the identity of those seeking official information about them.

Three requesters - all of them companies - were identified with their consent, five had their identity withheld under the privacy protection clause in the Act, and a further two cases were undecided.

While agencies should consult requesters about release, they're not bound to withhold if you object, and s48 of the OIA gives officials absolute protection from liability if they release your information in good faith. I've started putting a "fuck off" notice on the bottom of my requests, making it clear that I do not consent to any release of my personal information to any third party, but ultimately the only way to protect your personal information is not to give it away in the first place. If you care about your privacy, or think anyone else might care about the requests you are making, you should use a false name. Its not illegal, its not immoral - its just basic privacy protection. And fortunately, we have an online platform which makes it very easy...

Monday, November 12, 2018


That's the Chief Ombudsman's formal opinion of Horowhenua District Council's practice of redirecting, blocking and editing emails from people on a secret shitlist. While the Ombudsman recognises that sometimes members of the public might send emails that require management to prevent harassment, the way Horowhenua Council was doing this - in secret, without any formally recorded justification, and blocking innocuous and ordinary business content as well as abusive emails - was simply wrong. They highlight the way the blocks prevented communication with elected representatives and encouraged one councillor to route official emails through a private account to ensure they were received - effectively undermining good record-keeping practice and the LGOIMA. Apparently the policy has already been ended, which saves the Ombudsman from having to recommend that, but they have recommended an apology. Given Horowhenua's toxic environment, it'll be interesting to see whether the Council even tries to fake sincerity on that.

This is what happens when agencies investigate themselves

The State Services Commission's inquiry into its appointment of Deputy Police Commissioner Wally Haumaha has reported back - and unsurprisingly, cleared the SSC of any wrongdoing. The full report is here, but the short version is that the appointment panel didn't know of Haumaha's support for convicted rapists Brad Shipton and Bob Schollum, because Police Commissioner Mike Bush thought it had all been resolved and didn't think it was "relevant", even when explicitly asked by the Minister. Which seems to be extremely poor judgement on his part. But they go further, and claim that it wouldn't have mattered anyway if the panel had known, because they would have agreed with the Police Commissioner and ignored it.

Which is the exactly the sort of result you get when organisations investigate themselves, and simply shows the extent to which the police and SSC still don't get it. Their past behaviour of raping women and covering up for it has left the police with a lingering taint and caused many people to lose confidence in them. If they want to be rid of that taint and regain the public's trust, they need to change, and be seen to change. The fact that the Commissioner considers concerns about it to no longer be relevant, and sees no political risk in appointing someone perceived as condoning that past behaviour to a senior position sends a clear message that the police haven't changed, and that they are utterly blind to public concerns about their integrity. And that in itself seems to be a reason to sack him as well as Haumaha.

We don't need more terror laws

Back in 2007, the New Zealand Police invaded Ruatoki, terrorised the town, and held children at gunpoint as part of a series of raids against "terrorists". But when it came time to prosecute the seventeen people they'd arrested, the whole case fell apart because the police's behaviour had been "unlawful, unjustified, and unreasonable". No-one faced terrorism charges because, fundamentally, none of those targeted had broken that law: no-one had committed or planned a "terrorist act" (and no, talking shit about firing the Prime Minister out of a trebuchet doesn't count). In the end, despite four Arms Act convictions, it was a humiliating fiasco for the police, requiring a public apology to the people whose town they had invaded.

So now the police want more anti-terror powers, so they can do all that again and get away with it this time:

The Government is reviewing the anti-terror laws because of the carnage of the poorly enacted Urewera raids meaning authorities don't want to use them.

Minister responsible for GCSB and SIS Andrew Little, has ordered officials to fully scrutinise the Terrorism Suppression Act and the Counter Terrorism Act, both passed in the aftermath of the 9/11 and Bali bombings.

They were judged "unworkable" after the botched Urewera raids in 2007, and Little says authorities are now "reluctant" to use them.

While Little wants to remain open to what will happen, police are pushing for greater powers to intervene earlier when they detect suspicious behaviour.

Unlike the Minister, I don't regard reluctance to use anti-terror laws as a problem. Instead, they're something police should be reluctant to use. The fact that they want to use them (and in the complete absence of anything remotely approaching a terrorist threat, or which can't be dealt with under existing laws criminalising assault, murder and arson) says rather more about their desire to crush political dissent than any real need. And in this context, the reference to UK-style laws criminalising people for what they read on the internet - which are primarily used to persecute academics - is chilling. Faced with a lack of real terrorism to justify their inflated budget, the police want to introduce ThoughtCrime. And that's something any democraticly-minded kiwi should oppose.

But we know how this will go: they'll have a secret, closed-shop review, agree to limit our human rights for their convenience, and the law will be rammed through under urgency, backed by a National-Labour duopoly. Democracy? Not where "terrorism" is concerned, apparently.

"Not a priority"

On Friday, the Supreme Court upheld the right of the courts to formally declare laws to be inconsistent with the Bill of Rights Act. This does not overturn or invalidate them, but it sends a clear message to Parliament that it needs to fix the situation. But the government's response to this situation is that it is "not a priority":

Prisoners look unlikely to get the vote any time soon even after a Supreme Court ruling in their favour.


Justice Minister Andrew Little told reporters he personally disagreed with the ban, but the government as a whole had yet to take a position.

"It's not that much of a priority," he said.

"We haven't even had a discussion about that and it would be wrong for me to express any view on behalf of the government about it."

Ministers were unlikely to consider the issue for at least a year, he said.

This is simply not acceptable. When the Supreme Court makes a ruling like this, it should automatically become a priority for Parliament, and should be formally drawn to its attention for a response. The government has already signalled that that is what it wants to do in future, so why won't it do it in this case? And there's a pressing need: we're having an election in 2020, and it would simply be unacceptable given the ruling for prisoners to be unable to vote in it.

The government needs to make this a priority. And the longer it refuses to do so, the stronger the argument is for simply taking it out of their hands. If politicians will not protect our human rights, lets remove them from the equation: repeal s4 of the Bill of Rights, and the courts fix the law directly when the politicians abuse it.

Sunday, November 11, 2018

A hundred years

Today marks the centenary of the end of the first world war. While it wasn't quite the world's stupidest war - that title probably goes to the Football War or the War of Jenkins' Ear - it ranks among them. Greedy, self-important aristocrats piled up the tinder for decades, with their bullshit concerns about empire and prestige and spheres of influence, so that in the end all it took was one spark. One dead Archduke killed 17 million of us.

Not that they did well out of it. Their empires fell, and in the "winners", their class was almost annihilated (I guess noblesse oblige was good for something). But we got the worse end of the deal. Their selfish war fucked up the entire twentieth century: the Russian Revolution, the inevitable rematch with Germany, and the subsequent Cold War can all be traced to the First World War. And we're still living with the aftermath, in the shape of the contradictory promises made by Britain to conquer the Middle East, and the artificial countries it left there.

The First World War is a warning of the danger of giving our political elites the power to wage war. While their stupidity couldn't kill all of us then, it can now. Stupidity, greed and selfishness being inevitable amongst elites, the only way we can defend ourselves from them is to disarm them. Peace is our only protection. And next time they tell us to fight, we should tell them to go fuck themselves.

Friday, November 09, 2018

Ending the pillage

Back in 2015, we learned that miners were destroying Northland's wetlands to dig up swamp kauri and exporting the raw logs to China under the guide of "carved temple poles". The latter was obviously taking the piss, a pretext solely to avoid export restrictions. And now the Supreme Court has agreed:

Swamp kauri must not leave the country unless it has been processed into a product, a court has ruled.

A Supreme Court of New Zealand ruling, released on Friday, found that, to be lawfully exported, a swamp kauri item must be a product in itself and in its final or kitset form and it must be ready either to be used or to be installed into a larger structure.


The wording and purpose of the Forests Act made it clear that the definition of finished or manufactured indigenous timber product contained is intended to ensure that value is added to indigenous timber before it is exported, the court ruled.

To be lawfully exported, an item must be a product in itself and in its final or kitset form and it must be ready either to be used or to be installed into a larger structure, the court ruled.

A table top, which was not a product in its own right, could not be exported and logs with surface carving were unlikely to meet the definition, the court ruled.

Or, to put it another way, the law means exactly what it says. Which really does invite the question of why MPI thought it meant something different and that these exports were permissible. Their decision has enabled years of pillage and environmental destruction, and there needs to be accountability for it. Heads must roll.

New Fisk

Izzeldin Abuelaish's three daughters were killed in Gaza – but he still clings to hope for the Middle East

One way of fixing it

Private spy companies infiltrating environmental groups to disrupt and spy on them for governments and toxic industries seems to be becoming increasingly common. In New Zealand, there's a whole company, Thompson and Clark Investigations, specialising in it. But UK anti-asbestos activists have found a solution: sue the fuckers:

A private security firm has been forced to pay damages to five anti-asbestos campaigners after they discovered it had spied on them.

The firm, K2 Intelligence, paid an infiltrator for four years to masquerade as a sympathetic documentary-maker to obtain confidential information about leading activists in the worldwide campaign to ban asbestos.

K2 Intelligence, which made no admission of wrongdoing, agreed to make the payments after the five campaigners took legal action in the high court against it, Matteo Bigazzi, K2’s executive managing director in London, and the hired infiltrator, Robert Moore.

The size of the damages was not disclosed, but was described as substantial by the campaigners’ lawyers.

The high court in London had heard that K2 passed the information to clients in the asbestos industry. The court was told that the aim of the espionage was to gather information about the campaigners, their methods, funding and future plans.


The campaigners had taken legal action alleging breach of confidence, misuse of private information and breach of the Data Protection Act.

It would be interesting to see whether such an approach could work here. If so, Thompson and Clark's business model could get substantially riskier, both for their company and for them personally.


Back in 2016, the High Court declared that National's 2010 prisoner voting ban (the one which was so shabby and shoddily passed that it brought Parliament into disrepute) was inconsistent with the Bill of Rights Act. The case has worked its way through the courts, and today it was finally settled by the Supreme Court. Their ruling? That the courts have the power to issue declarations of inconsistency with the BORA. Their reasoning is pretty obvious: declarations are part of the usual arsenal of remedies available to the court, and so are available, just as damages were (the Chief Justice throws in specific statutory authorisation from the Declaratory Judgements Act 1908 as well). While the BORA states that laws are binding despite such a declaration - something else which the court takes as justifying their existence - that does not mean declarations are a worthless remedy. Instead, they are a clear vindication of the right, an explicit statement of the law, and potentially useful in international litigation e.g. before the UN Human Rights Committee. As for the Attorney-General's argument that inconsistent legislation wasn't really inconsistent because it altered the rights in the BORA, that was treated with the contempt it deserves.

What happens next? Nothing much. Because despite its shoddy arguments in this case, the government has already yielded the point and announced plans to give the BORA tiny teeth by explicitly recognising such declarations of inconsistency and requiring Parliament to formally respond to them. Again, that won't allow laws to be overturned - but will force the politicians who pass them (or more likely, their political successors) to rethink the matter and publicly justify themselves. Which is a start. But while they're at it, there's another obvious way they could improve things: by requiring every enactment passed despite a s7 declaration of inconsistency from the Attorney-General to undergo periodic review to determine whether it is still necessary. Which might help Parliament fix its own messes before the judiciary has to put them on formal notice.

Thursday, November 08, 2018

Restoring the RMA

During its final term in office, National removed democracy from the RMA by removing notification and appeal rights while allowing Ministers to dictate local plans from their office in Wellington. now Labour is planning to repeal that as the first step in its program of RMA reform:

Stage One will reverse some objectionable changes made by the previous government in 2017 that were widely criticised.

For example, the Bill would repeal measures that prevent public notification and appeals by applicants and submitters in residential and subdivision consent applications. Proposed residential developments near existing facilities (such as ports, airports, quarries and electricity networks) can have significant impacts on existing operators and their future development options.


A Bill addressing changes that can be made straight away will be introduced to Parliament early next year.

It will address particular issues with resource consenting, and monitoring and enforcement processes in the RMA.

It will also repeal the broad regulation-making power passed last year, which enabled the Minister for the Environment to override councils. It will retain national direction powers via National Environmental Standards and National Policy Statements.

All of this is good - and amusing, requested by the developers National was trying to help, who found that not being able to submit on or appeal RMA decisions which affected them wasn't such a good idea after all. But it gets better: reading the Cabinet paper, they'll also be reinstating financial contributions (meaning councils will be able to make developers pay the full costs of the required infrastructure, rather than dumping them on ratepayers), and enabling the EPA to take enforcement action to back up councils and enforce the law where they won't.

And then there's stage 2 - the buried lead of which is putting climate change back into the law. Ironicly, it was Labour who removed it, with the Resource Management (Energy and Climate Change) Amendment Act 2004 preventing councils from considering the effects of climate change in RMA decisions. Now, it looks like they want to reverse that mistake. Which should enable councils to refuse consents for fossil fuel extraction and use, unless the impacts on the global climate are somehow mitigated. If actually enforced, that promises to be far more effective than their bullshit ETS.

Police look the other way on crime by their own

Another report from the Independent Police Conduct Authority was released today, finding that police who sped at 200 km/h down a busy Auckland motorway during a pursuit violated pursuit policy in multiple ways and should have been charged with dangerous driving. The full report is here, and the behaviour the officers engaged in was appallingly dangerous and would have resulted in prosecution if any member of the public had done it (here's an example). But the police apparently ignored their own procedures, refusing to even investigate. It's just another example of the police protecting their own, and looking the other way on blatant criminal behaviour simply because the perpetrator wore their uniform. That is not acceptable, and it undermines both the rule of law, and public confidence in law enforcement. Unfortunately, because the IPCA took a whole year to investigate, there's now no possibility of charges: dangerous driving is a category 2 offence, and charges must be filed within six months. The IPCA's slow investigation has precluded that, and allowed these uniformed criminals to escape justice. Which doesn't exactly encourage confidence in them either.