Wednesday, June 29, 2016

Open Government: The dog ate their homework

Back in March, the New Zealand government received a formal warning from the Open Government Partnership that we were failing to meet our obligations. Given the reputational damage of such a warning, you'd expect it to have had a saultory effect on our policy and encouraged the government to do a better job. Instead, SSC did the opposite, unilaterally delaying the action plan and deciding to use it as a propaganda exercise, while ending any pretense at a partnership with civil society.

So how did this happen? Simple: The Minister claims to have never received the OGP's warning:

On 11 April 2016 I was first made aware of the Open Government Partnership Support Unit’s letter to the New Zealand Government dated 4 April 2016 (but received by New Zealand after that date). The letter dated 21 March 2016 referred to in your question was never received by the New Zealand Government.

"I didn't receive it" is the saddest of sad excuses, and it raises serious questions about whether SSC is fulfilling its duties as a point-of-contact competently. But also if they're paying this little attention to the issue then it explains a hell of a lot.

11 April is also when Bennett was briefed on SSC's plans to ignore the OGP's deadlines. Presumably, she also approved them. Which means when they turn into a clusterfuck and we get ejected from the OGP, we can hold her accountable for it.


For the past two weeks I've been running a petition campaign against Bill English's cowardly, unconstitutional and undemocratic veto of Sue Moroney's Parental Leave and Employment Protection (Six Months’ Paid Leave and Work Contact Hours) Amendment Bill. On the advice of ActionStation, the petition was submitted by post yesterday when it had only 1275 signatures:

With a supplementary email with the final list following just a few minutes ago.

All up, 1385 people signed it, which is far more than I ever expected. Now, I guess, we get to see whether it works. And if not, well, I have other plans...

Member's Day

Today is a member's day, and the finale in Sue Moroney's campaign to extend paid parental leave. There's a private bill to get through first, but her Parental Leave and Employment Protection (Six Months’ Paid Leave and Work Contact Hours) Amendment Bill will have its third reading today. The bill is subject to an unconstitutional financial veto by National, and unless that is withdrawn, it will not get a vote.

When that's done, there's the third reading of Adrian Rurawhe's Official Information (Parliamentary Under-Secretaries) Amendment Bill. I doubt that will be finished tonight, but if it passes, I'll be celebrating.

Because today will be all late stages, there won't be a ballot tomorrow.

Tuesday, June 28, 2016

National wants domestic GCSB spying

The Law Commission has just announced the statutory review of the Search and Surveillance Act 2012. But in addition to the expected material on whether the Act has worked and whether it needs to be fixed, the terms of reference also include this:

As suggested in the report of the First Independent Review of Intelligence and Security, the review will also consider whether the Act (or any related legislation) should be amended to enable broader use of the capabilities of the Government Communications Security Bureau and/or New Zealand Security Intelligence Service to support police investigations.

Those "capabilities" of course include mass surveillance, spying on private communications, and covert burglaries and bugging with no judicial oversight whatsoever. The capacity for abuse is obvious.

There will be public submissions on this, and we need to speak up about it. The question is whether it will do any good, or whether National's stooges on the commission have already been told what their conclusions will be.

New Fisk

My father fought in WW1, and my mother learned Esperanto – this is what they would have thought of Brexit

Customs are Islamophobic and racist

Radio New Zealand this morning has appalling data on apparent Islamophobia by Customs, with kiwi Muslims being regularly stopped and searched at airports for no apparent reason other than their religion:

Members of New Zealand's Muslim community say they have been humiliated and treated like "criminals" by airport customs.

They say they are regularly stopped at Auckland Airport for hours, while their belongings are searched and their mobile phones taken off them.


On Sunday night, Muslims living in Auckland's Mount Roskill suburb gathered at Al Manar mosque to pray, celebrating the final week of Ramadan.

Between prayers, the Imam made an announcement asking those who had been stopped by New Zealand customs to come forward and share their stories.

RNZ News spoke to 11 people that night.

Unmentioned: thanks to National, Customs can give the data it pulls off those phones and digital devices straight to the police, or the SIS (who can then pass it on to their foreign masters), without any need for suspicion, let alone a warrant.

Also worth noting: this isn't the first time this issue has been raised. Its a persistent, pervasive problem of discrimination at the border. Customs, of course, denies it, pretending that there is a reason for these searches. Unfortunately, what this "reason" boils down to is Islamophobia and racism. And the net effect of it is to tell kiwi Muslims that they're not "real" New Zealanders and that the state hates them and will not let them live their lives in peace. And when you're fighting a "war on terror", that message is an extremely dangerous one to send.

Monday, June 27, 2016

A coincidence, I'm sure

Damning inquiry points finger at the Government, State Services Commissioner, Stuff, June 23, 2016:

The Government has rejected parts of a damning report into its handling of an inquiry into leaks from the Ministry of Foreign Affairs and Trade.

Ombudsman Ron Paterson has told the Government it should compensate a former top diplomat whose career ended in tatters after he was targeted by the inquiry, which was instigated by the State Services Commission.

He has also recommended a formal apology.


In a statement, Rennie said he did not agree with all elements of the Ombudsman's findings, in particular that in making findings relating to the investigation being outside its terms of reference.

Ombudsman resigns: Professor Ron Paterson steps down two years early, New Zealand Herald, 27 June 2016:
One of the country's two Ombudsmen has resigned and will leave the role two years before the end of his five-year term.

Professor Ron Paterson will leave the role on Thursday. He was appointed an Ombudsman in June 2013 for a five-year period.

Deputy Ombudsman Leo Donnelly will be appointed temporary Ombudsman for a 12-month period, which could be extended by another two years.

The timing of this really doesn't look good. The SSC report was apparently hotly contested, and Rennie effectively refusing to accept its "recommendations" may have been a final straw.

Open Government: Dismissing the stakeholders

In 2015, a year after joining the Open Government partnership, the government established a Stakeholder Advisory Group. According to its terms of reference, the purpose of the group was to

assist with the development, implementation and evaluation of the commitments in New Zealand's Action Plans by providing constructive advice, communicating openly and involving other stakeholders.

The Stakeholder Advisory Group was also important for compliance with our OGP obligations. According to SSC,
Establishment of the SAG also aligns with an OGP requirement for a forum that enables regular multi-stakeholder consultation on implementing the Action Plan. It will also address concerns expressed by stakeholders during development of the Action Plan about the OGP being about stakeholder participation, not just consultation.

According to my sources, SSC has recently sacked the SAG. It will apparently be replaced with a yet-to-be-detailed "external advisors group".

As for why, it appears to be because SSC no longer considers it necessary for stakeholders to participate in the development of open government policy (if they ever did), and no longer wants to hear from them. Back in February, the SAG were told to go away and "provide further feedback on the possible themes for the next Action Plan". They dutifully did this, and produced a variety of reports on draft OGP commitments, the OGP and the Treaty, and specific commitments around the review of the OIA. In the meantime, SSC had decided that they wanted to delay the action plan and use it as a propaganda exercise, so their response was "thanks, but no thanks":
The Deputy Commissioner thanked SAG members for their contributions. Given the need to conduct a wider enhanced engagement process, individual SAG input could be revisited following planned engagement with Civil Society and New Zealanders, and formulated as a part of a broader group of ideas for consideration by government.

It will be interesting to see how many of their proposals feature in whatever document SSC finally produces, but my guess is "none". SSC isn't interested in hearing from civil society about open government. And apparently that even extends to a bound and gagged "advisory group". They just want us to shut up and go away. This attitude is of course utterly inconsistent with the ethos of the Open Government Partnership. But it has been clear from the beginning that SSC has no commitment to that ethos at all, and simply regards our OGP membership as a burden foisted upon them, to be grudgingly and technically complied with and otherwise ignored as much as possible.

Fixing the Statutes Amendment Bill

Last October, I highlighted a problem with the government's Statutes Amendment Bill. Such bills are supposed to be used only for "technical, short, and non-controversial amendments", but the bill included amendments to the Victims’ Orders Against Violent Offenders Act 2014 which created new powers and new criminal penalties, as well as being a prima facie violation of the right to freedom of expression.

Following my post, I made a submission to the Government Administration Committee on the matter, and it seems they took it seriously: today, they've split those provisions out into a seperate Victims’ Orders Against Violent Offenders Amendment Bill, allowing them to be properly debated.

I expect that bill to pass - the new powers (to clear courtrooms and make suppression orders around proceedings under VOAVO) are reasonable and a justified limitation under the BORA. At the same time, its good to see Parliament standing up against the constitutional abuses of the National government in trying to slip changes of this magnitude through under the (abbreviated) legislative tidy-up procedure of the Statutes Amendment Bill.

New Fisk

The relationship between Israel and Lebanon is deteriorating again - and it's civilians who will suffer
What does the Middle East think of Brexit? A lot more than you'd assume
Fallujah, the 'resistance' city, is liberated yet again – for the fourth time in a decade

The establishment protects itself

In 2004, Britain helped the CIA kidnap Libyan dissident Abdul Hakim Belhaj and his family from Thailand. Belhaj and his pregnant wife were rendered to Libya, where they were imprisoned by the Gaddafi regime. Belhaj was tortured. MI6 knew and wanted this to happen. And yet the British government has spent over £600,000 trying to prevent him from seeking justice through the British courts:

The government has spent at least £600,000 of taxpayers’ money trying to prevent a civil case being brought against it by a husband and wife who allege that British intelligence was complicit in their detention, rendition and torture.

Figures released under the Freedom of Information Act reveal the extraordinary lengths to which the government is going to prevent the civil case against it, former home secretary Jack Straw, and former MI6 spy chief Sir Mark Allen coming to court.


[I]nformation released under FOI shows that by 10 September last year the government had spent £355,000 on internal legal advice and £259,000 on external advice as it sought to have the case dropped. Of this, £27,000 was spent on advice relating to Straw and £110,000 on advice relating to Allen.

The FOI data reveals that the government has been paying as much as £250 an hour to two senior barristers involved in defending the action. A number of junior barristers have also been charging between £45 and £120 an hour.

Given that the figures are 10 months old, there is speculation that the total cost of fighting the case – before it even comes near a court – could be well in excess of £10m.

Belhaj isn't seeking damages - he is seeking an admission of involvement and an apology. But actually admitting what everyone knows - that they are complicit in rendition and torture - would be deeply embarrassing to the British political establishment, not to mention expose senior members to (well-deserved) criminal prosecution. So instead they're spending public money to prevent that. Just another example of how Britain's criminal establishment governs in its own interests, not those of the people.

Friday, June 24, 2016

The people have spoken

So, the results are in, and its Brexit by a million votes. The old, nostalgic for empire and Britain being important, voted to fuck the young, as always. And it turns out that I do have an orc in this fight - and it wears a kilt. Scotland voted overwhelmingly to remain part of the EU. England voted to get out. So another independence referendum beckons.

As for England, some people are trying to highlight the fact that the poll is not legally binding, and hoping that parliament will veto the people. While legally true, doing so would give up any pretence that England is a democracy and that its government is legitimate. The consequences of such action will probably resemble the nightmare we saw on Friday.

Finally, no matter what you think of the result, its a Good Thing that the people of the UK can express their opinion and decide to leave by peaceful, democratic means. And it would be nice if the Basques, Kurds and Tamils were allowed to do the same. If a region or group wants to leave your country, the only moral option is for a peaceful departure, on terms which will maintain a friendly and peaceful relationship. So the idea that the EU would punish the UK for leaving and impose punitive exit terms pour encourager les autres to stay is fundamentally immoral. And if that happens, it will, like Greece, be another reason not to care what happens to the EU anymore.

No news but Brexit

You expect bloggage today? Sure, there's other stuff going on, but like everyone else, I'm glued to the results of the Brexit referendum. I don't have an orc in this fight (I hate the racists pushing for Brexit, and yet I can never forgive the EU for Greece, so they can both kill one another for all I care), but I'm a tragic election watcher, and I love seeing the politicians (and the banks) scattering like cockroaches in the face of a decision made by the people rather than them. Democracy, it's so messy for the people in power. We should have more of it.

Thursday, June 23, 2016

Open Government: More bad faith

When the government announced a unilateral delay in New Zealand's second Open Government partnership Action Plan, it was ostensibly for the purposes developing "more inclusive" engagement processes. The implication was that their mandatory consultation on the Action Plan and its commitments would be better than the last one's mockery.

They lied.

According to OGP Stakeholder Advisory Group papers released today (which had been kept secret despite still-standing commitments to public agendas and papers in advance), this is their new timetable for "consultation":
So, we're going to have one month to decide on commitments, and one month of consultation on the final Action Plan. Neither timeframe allows any scope for serious commitments or real change; instead, we're likely to be served up some pre-decided, pre-existing measures. Just like last time.

Also of note: the timeline makes a lot of noise about "awareness raising". SSC has never done any relating to the OGP (unless you count dumping material on an obscure corner of a website that only tragic geeks like me read), and there's been no signs of them doing any in the time-periods indicated by this plan. But stranger things have happened, and we can but hope.

Finally: its clear from SSC's utter denial of the problems with their first action plan that they don't like civil society involvement. So, their solution is to engage with the wider public via a survey. This is being done specifically to "reach beyond the ‘usual suspects’" - which are explicitly identified as "civil society organisations". You know, the ones the government is supposed to be in partnership with under the OGP.

The survey is a draft only, and it does at least ask respondents which of the OGP's core values they think are most important. But it also presents a frankly misleading statement of the actions in the first action plan (hint: the "work" on "Addressing processes and practices relating to the transparency of parliamentary proceedings, campaign finance and government procurement" was reading and responding to someone else's report on the issue - which they didn't actually do). It asks respondents to rank these in order of importance (rather than whether they have anything to do with open government). It does not ask about future commitments at all.

So SSC's "enhanced engagement" is to ignore its partners and instead try and get people to rubberstamp some list of pre-existing policies via a strapped-chicken survey. Again, they are dealing with us, and the international community, in bad faith, engaging in sham participation as a box-ticking exercise while ensuring that it will have no impact on policy at all. And that goes against the entire ethos of the Open Government Partnership.

The revolution in freedom of expression law continues

Back in 2007, the Supreme Court ruled in the case of Brooker v. Police [PDF]. The case represented a victory for the freedom to protest, significantly raising the threshold for prosecution for the public order offence of "disorderly behaviour". A majority of the Court applied a traditional analysis, balancing the insult to the values of "right thinking" member of the public test against freedom of expression (and weighing that heavily in light of the Bill of Rights Act). But it was Chief Justice Sian Elias' judgement, which approached it as a matter of straight statutory interpretation from the basis that public order law was about public order and disruptions to the use of public space, which has been the most influential. And so a few years later, in Valerie Morse v. Police [PDF], the offense of "offensive behaviour" was viewed not as primarily about giving offence as aggression and threat which interfered with the use of public space (the upshot being that quietly burning the flag at an Anzac Day dawn service simply didn't meet the threshold).

And now we have another example, with the Court of Appeal applying the same logic to rule that non-sexualised public nudity is not "offensive behaviour":

The bench of three learned judges at the Court of Appeal said the crucial question to consider was whether a conviction for offensive behaviour required the behaviour to be seen and that it actually disrupted public order.

The crown contended that it was enough that Ker was capable of being seen and his nudity had the potential to disrupt public order.

But ​the court ruled that offensive behaviour had to be observed - otherwise it could not cause public disorder -
and must actually disturb public order.

Because there was no evidence Ker had offended anyone or caused any problems, his conviction was quashed.

[Emphasis added]

Which is as it should be. If you're not causing anyone any grief, the law should leave you alone. Sadly, as with the previous rulings, it may take the police a while (and a pile of failed prosecutions) to get the message.

Simply illegal

You know those bad jokes people tell about $InsertRegionHere being backwards? Sadly, some people in the Waikato seem to be doing their best to make them true:

A man says he was denied a Waikato rental property because he loves another man.

Artist Lewis Johnston and his male partner of 15 years were considering renting while they sell their house and look to buy another.

But Johnston is now fuming after being told by a landlord the pair weren't wanted because of their sexuality.

And after the recent Orlando nightclub massacre, Johnston's not prepared to put up with that attitude any more.

It is of course illegal to discriminate on the basis of sexual orientation - and that's been the case for over twenty years. Which is more than enough time for people to get used to the law and the fact that society has changed. After twenty years, the Human Rights Act's "softly softly" dispute resolution mechanism isn't enough; we should be prosecuting bigots, or allowing them to be sued into oblivion when they discriminate.

Paula Rebstock should pay for this

Back in 2012, after a campaign of leaks about its proposals to restructure MFAT, National announced an inquiry. Naturally, they appointed their go-to girl Paula Rebstock to investigate. And when she reported, it turned out to be a total hatchet job which ignored evidence and slandered innocent public servants, while failing to make a concrete case against the prime suspect.

Today, the Ombudsman has found that the leak inquiry was flawed, and recommended a formal apology and compensation to one of Rebstock's victims:

The Government has been told to compensate a former top diplomat whose career ended in tatters after he was targeted by an inquiry into leaks at the Ministry of Foreign Affairs and Trade.

Ombudsman Ron Paterson issued a report on Thursday slating the State Services Commission over its handling of the leak investigation.

The 2013 inquiry headed by Paula Rebstock resulted in senior diplomats Derek Leask and Nigel Fyfe being singled out , despite evidence that one of the most significant leaks originated from within the State Services Commission itself. The person responsible for that leak cannot be identified because of suppression orders.

While they were not named in the State Services Commission-ordered inquiry, Leask and Fyfe were easily identifiable and their conduct was publicly castigated by the State Services Commissioner and Foreign Affairs Minister Murray McCully.

Unfortunately, outgoing State Services Commissioner Iain Rennie seems to be refusing to do either. That's unthinkable. While technically not legally binding, the "recommendations" of the Ombudsman are always acted upon. And in this case, they need to be. An innocent public servant has been mistreated and defamed. The integrity of the public service depends on righting that wrong.

Meanwhile, its worth noting that Rebstock was paid $208,907 for this report, and was also awarded a knighthood for "services to the state". Now, it turns out to have been a dud. She should be forced not just to pay the money back, but also to pay any compensation to the victim. This is her fault, and she should pay the price.

Worse than I thought

Yesterday I worried about the privacy implications of toll roads. Turns out National's plan is far worse than I thought:

GPS devices could be installed in every Auckland car, tracking where and when the driver goes around the city, as part of moves to introduce a form of road tolling in the city, the Automobile Association says.

The government has done an about-turn on its earlier opposition to motorway tolls and now says "network pricing" will be needed to combat worsening congestion in our biggest city.

AA principal adviser Barney Irvine said the system would not be a road toll as we traditionally know it, but would cover the whole Auckland region and replace the fuel tax.

A GPS in every car, tracking you everywhere you go? This isn't a toll system - its a fucking surveillance network.

Again, once the information is collected, it is useable by other government agencies. The police can already access toll-road records through the production order system (or simply by asking); this would let them get everywhere you have ever been. And they wouldn't even have to pay for the tracking device - you'd have to buy it for them in order to be allowed to drive.

Fuck that shit. Lets keep our privacy. Lets say "no" to spy-roads.

Wednesday, June 22, 2016

Toll roads, petrol taxes, and privacy

Yesterday the government reversed its long-standing opposition to road tolls, and instead suggested tolling roads in Auckland to reduce congestion. Today, they suggested the quid pro quo: lower petrol taxes. So why should we prefer one to the other?

Both petrol taxes and road tolls make transport users pay the cost of their activities. Petrol taxes are broader: the more you drive, the more you pay. Road tolls and congestion charges ar emore specific, allowing certian useage at certain times (e.g. rush hour, or the afternoon school run) to be targetted. But there is one major difference between the two: privacy.

Once upon a time, toll roads meant stopping and paying at a booth. Now, they use Automatic Number Plate Recognition to automatically identify and record vehicles. The mere act of running a toll road means collecting and storing a huge amount of information about people's everyday movements. And that information is available to others: not just the toll operator, but to police, intelligence agencies, even private individuals. And that's only looking at lawful disclosure. Toll operators could conceivably track individual vehicles and sell the information to third-parties for profit.

The best way to protect your privacy is not to create information in the first place. Toll roads create vast quantities of highly intrusive information. Once the information exists, it will be used. Better to stop that at the source. Better to tax petrol than toll roads.

Unreasonable and unnecessary

In 2013, the government passed a law allowing more frequent and more invasive stip searches of prisoners. The changes were criticised at the time as "needless, degrading and possibly dangerous" by the corrections union. Now, thanks to information released under the Official Information Act (via FYI, to boot), we know that that is true:

Prison guards are conducting thousands of strip searches but finding virtually no weapons or drugs.

The searches became more invasive three years ago, and at about the same time peaked at around 4500 a month, newly-released figures show.

But the hit rate on contraband in 2013 of 20 or so items a month is the same as now, even though strip search numbers have plunged by two thirds to 1500 a month across all prisons.

Looking at the raw data, the success rate even on "reasonable cause" searches (those where an officer claims to have "reasonable grounds for believing that the prisoner has in his or her possession an unauthorised item") is less than 2% (as of June last year; the success rate for other searches is about a sixth of that). But a success rate that low suggests that those "reasonable grounds" simply aren't. Instead, these searches are being conducted as a deterrent, or to degrade and humiliate prisoners and show them who is in control. But that is not what they are for and it is not lawful to use them for those purposes.

The other searches, legally justified by prisoner movements, aren't off the hook either. While the law says a prison officer "may" conduct a strip search under certain circumstances (basicly, when a prisoner has been moved or met with someone), that law must be interpreted through the lens of the Bill of Rights Act, which affirms the right of every person to be free from unreasonable search and seizure. That includes prisoners. And while the right is subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society", I don't think anyone could claim with a straight face that the mass strip-searching of people, making them squat naked while a guard looks up their arse with a torch, in order to find nothing, is "reasonable". Instead, it is the very definition of unreasonable.

Unreasonable searches. Degrading and humiliating treatment. That could be very expensive indeed for the government. To point out the obvious: this humiliation is an everyday experience for prisoners and there have been over 100,000 searches in the last five years. At $600 per strip search, the government could be looking at a bill of over $60 million. And when it arrives, we should lay it at the feet of one woman: Judith Collins.