Hearing the submissions

I've been watching the webstream of the Foreign Affairs, Defence and Trade committee's hearings on the Countering Terrorist Fighters Legislation Bill. Its been interesting viewing. So far, I haven't seen a single submitter who has approved of the process or the urgency, and there hasn't been anyone who has approved of the bill as a whole or even overall. There's been a lot of criticism of the extended sunset clause, the lack of natural justice in the passports regime, the duration of "urgent" warrantless search powers (and even the need for them at all) and the need for visual surveillance.

(Whoops, we've just had a positive submitter. They're a racist who believes that all religious speeches which aren't from a set text should be made in English or Maori "so we know what you're talking about". Which tells you everything you need to know about the demographic who approves of these measures)

There have been lots of positive comments from the committee suggesting they are open to improving the bill, but the National members will be under marching orders from Kitteridge, Key and Finlayson. Still, if they want bi- or tri-partisan approval, they're going to have to shift. The question is how much that approval matters to the spies.

Despite the very tight timeframe, there have apparently been over six hundred submissions - far more than most bills get, and the sort of number which should make politicians sit up and take notice. The committee will be sitting long into this evening to hear those who want to speak. Its great to see that despite the government's attempt to suppress it, people still believe in democracy in New Zealand and are willing to speak up for it. The question now is whether Kitteridge, Key and Finlayson will listen.

Utter contempt for the OIA

The OIA is very clear: requests must be answered "as soon as reasonably practicable, and in any case not later than 20 working days [of receipt]". While that time limit can be extended, that can only be done if a request is for a large quantity of information, or if consultations are required, and it must be done within the 20-day limit.

Last night, over Twitter (and with further details via email), I heard of an appalling violation of these clauses.

The requester lodged an OIA request on 11 October. There was no acknowledgement of receipt, and no response by the deadline of 10 November. When the requester called to inquire, they were told they would not be getting one any time soon, not even within 20 working days from the date of inquiry. When reminded of the law, the agency said "Yes, I'm breaking the law and that's the way it is".

The agency in question? The police. Who are charged with upholding the law. Somehow, I don't think they'd be too impressed if a burglar said that to them.

This is utter contempt for the OIA and a wilful violation of the law. The Ombudsman isn't preventing such behaviour, so I'm wondering: do we need to start bringing private prosecutions against state agencies (and individual bureaucrats) for contravention of statute?

Success!

Earlier this year, the government effectively banned legal highs by withdrawing all interim certifications for them. How's that worked out? The front-page of the Manawatu Standard today tells me that "Meth use on rise after legal high ban":

Former methamphetamine addicts in Palmerston North have gone back to using the drug since synthetic highs were made illegal, a Manawatu addiction service says.

MidCentral District Health Board's alcohol and other drug addiction (AOD) service reported an increase in people presenting with problematic methamphetamine and cannabis use since synthetic cannabis became illegal in May.

Mental health service clinical director Dr Syed Ahmer said staff had seen an increase in use of the drug, particularly when people were also using other substances.

I'm not sure that that's really a good result, either from a public health or criminal law perspective. But its what happens when you pass knee-jerk legislation in the midst of a moral panic, rather than stopping to think about it.

Tonga votes

Tongans went to the polls yesterday in their second election since the 2010 democratic reforms - and threw out most of their Parliament, returning only five of their incumbent People's Representatives (and only one PR Cabinet Minister). Unfortunately this doesn't look like it will translate into a government led by the Democrats - internal squabbles meant that the party lost three seats, and the Nobles will likely be able to buy the couple of independents they need to retain power.

Submission on the Countering Terrorist Fighters Legislation Bill

Below is my submission on John Key's Countering Terrorist Fighters Legislation Bill. Hopefully some of you made your own as well.

1. I oppose the Countering Terrorist Fighters Legislation Bill and ask that it not be passed.
   
   
2. I also oppose the abuse of the Parliamentary process seen in the passage of this bill - and in particular the short select committee stage. It is a matter of some irony that a bill which will permit the SIS to spy without warrant for 48 hours without any submission to the Minister does not give the public even that length of time in which to make submissions. The short period for submissions is an express denial of our democratic rights, which brings Parliament into further disrepute. And when combined with the similar abuse done in the name of the GCSB Act, suggests that on matters of spying, the government and spy agencies do not want our voices to be heard.
   
   Amendments to Passports Act 1992
   
   
3. I oppose the amendments to Passports Act 1992 contained in the schedule to the bill.
   
   
4. I particularly oppose the power in new sections 1(6) and 2(6) extending the length of passport refusal / revocation from one to three years. At present, the Minister can cancel passports for a year, and can extend this for a further year on application to the High Court. The government has made no case that this period is inadequate and has presented no evidence that the current process of judicial extension is not working. The effect of these clauses (and the similar clauses applying to certificates of identity, refugee travel documents etc) is to remove judicial oversight of such decisions. This is something that should not be accepted in a free and democratic society.
   
   
5. I oppose the avoidance of doubt clause in new section 1(3), 2(3) etc that the government can refuse or cancel a passport to someone outside New Zealand. This seems to interfere with the fundamental right of citizens to re-enter New Zealand, and to turn passport refusal/revocation into a Ministerial-imposed sentence of exile without trial. While emergency one-use travel documents are in theory available under s23(30 Passports Act 1992, "in theory" is not sufficient. In practice, any refusal or cancellation of a passport or travel document of someone who is offshore should result in the immediate issue of documents to enable the victim to return to New Zealand, to ensure that they are not effectively exiled.
   
   
6. I oppose the new clause in s1(5)(b), 2(5)(b) etc that "notice [of a passport cancellation/revocation etc] is to be treated as given if the Minister has taken all practicable steps to provide it." Sections 1(7)(a), 2(7)(a) etc limit direct appeals to the Minister to within 30 days of notice. The combination of these two clauses is to effectively rob those whom the Minister decides it is impractical to notify of any right of appeal. This is inconsistent with the Right to Justice affirmed in section 27 of the Bill of Rights Act.
   
   
7. I oppose the power in new section 7 to temporarily suspend a travel document for 10 days. The power requires no evidence or even suspicion of wrongdoing. Instead it merely requires that a report be being prepared. It is hard to see how such an arbitrary suspension of an individual's freedom of movement accords with the right to justice affirmed in section 27 of the Bill of Rights Act, or how it could be considered to be the least intrusive measure.
   
   
8. I oppose the extension of sections 29AA to 29AC (permitting the government to use secret evidence which is not disclosed to the other party in cases involving "national security") to cases involving passport refusal / revocation etc. The use of secret evidence in court cases is absolutely inconsistent with the right to justice affirmed in s27 of the Bill of Rights Act, and its use has been found to impair similar rights overseas.¹ As Lord Kerr noted in Al Rawi and Others v. The Security Service and Others [2011] UKSC 34, "Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial". Absent such an opportunity, both the justice and the public credibility of a judgement is irreversibly compromised.
   
   
9. I oppose the limitation of crown liability in new section 9. It serves no purpose except to insulate the government from the legal consequences of poor decision-making. As I value good decision-making where human rights are concerned, I would prefer that the government had every incentive to get it right, rather than enjoying impunity.
   
   Amendments to Customs and Excise Act 1996
   
   
10. I oppose new section 280M, which provides for police and SIS to have direct access to Customs' data for counter-terrorism purposes.
    
    
11. As the bill's RIS and BORA-vet makes clear, this section is required because significant doubts have arisen about the legality of Customs' current information exchanges with police and SIS. Current practice is that police are able to directly enter targets into the Customs' database, specifying who they want stopped and what they want to search for.² Customs then provides them with the results of any warrantless search at the border conducted under s151 Customs and Excise Act. Presumably there are similar arrangements with SIS. These powers are specifically used to conduct warrantless searches of digital devices such as laptops and cellphones.^3. But as the Minister of Justice notes in her BORA-vet, "comprehensive examination of data, either from cell phones, laptops or other storage media, for general law enforcement purposes would require at least reasonable suspicion".
    
    
12. The result of section 280M therefore is to effectively bypass the protections of the Search and Surveillance Act 2012 and New Zealand Security Intelligence Service Act 1969 to enable both agencies to conduct warrantless searches of anyone entering the country, potentially gaining access (via their cellphones, stored emails, browser histories and files) to every detail of their lives. These protections exist for good reason: the oversight of the courts (or, in the case of the SIS, of Ministers and the Commissioner of Security Warrants) prevents abuses of power. This clause would throw away any oversight, and grant these agencies arbitrary search powers. This is inconsistent with the right to be free from unreasonable search and seizure affirmed in s21 of the BORA.
    
    
13. As a further note, because it is not a "search power" in terms of the Search and Surveillance Act 2012, border searches conducted by Customs under s151 have no protections for journalistic privilege, or for attorney-client privilege. They therefore raise the prospect of Police and SIS colluding with customs to violate the rights of journalists, and the fair-trial rights of people whose lawyers travel to and from New Zealand.
    
    Amendments to New Zealand Security Intelligence Service Act 1969
    
    
14. I oppose new sections 4IA to 4IC governing the use of visual surveillance warrants. The power to film a person in their own home, with their family, is extremely intrusive. It needs to be subjected to the strictest safeguards. Sadly, those covering SIS surveillance are insufficient. Such warrants should only be authorised by judges, not by Ministers. And they should be subjected to full judicial oversight, not hidden behind a wall of secrecy.
    
    
15. The justification for such warrants is "security". In the past, the SIS has shown extremely poor judgement of what constitutes a threat to "security", and the existing oversight procedures have provided no protection. They have spied on politicians and even children. The abuses which could result from allowing them to do so with video cameras ought to be obvious.
    
    
16. I oppose the emergency surveillance powers of new sections 4ID to 4IF. These allow the SIS to exercise its surveillance powers (including the new visual surveillance powers, but also existing powers to e.g. break into people's homes) for up to 48 hours without a warrant where obtaining one would be "impractical" and a delay "is likely to result in a loss of intelligence".
    
    
17. In terms or practicality, it is difficult to see why in this age of cellphones it would be impractical to gain Ministerial authorization. If the concern is that the Minister may be out of the country, then an arrangement similar to s19A Government Communications Security Bureau Act 2003 (which allows other Ministers to authorise interceptions when the Minister is unavailable) would be a more appropriate solution. If the concern is that oversight by the Commissioner of Security Warrants is a delay, then this is effectively an attack on the entire oversight system which needs to be resisted.
    
    
18. In terms of "loss of intelligence", to spies any delay may result in such a loss. The clause effectively serves to circumvent the entire warrant oversight system.
    
    
19. The "safeguards" around this are non-existent. Quite apart from any doubts about whether the Minister would refuse to confirm such a warrant, if a warrant is not granted, the information collected must be destroyed - except for any "relevant to the detection of activities prejudicial to security [or to] the gathering of foreign intelligence information that is essential to security". Effectively this is saying that the SIS can keep the poison fruit of breaking the law. The fine for failing to destroy information is derisory (and as any offence will be secret, there is no prospect of prosecution). These are not proper checks and balances.
    
    
20. A comparison with existing police powers for emergency warrantless search and surveillance shows that the bar to such powers in a free and democratic society is high. Under the Search and Surveillance Act 2012 the police may conduct emergency searches without warrant to prevent the destruction of evidence of serious crime (sections 8 and 15), or where there is a risk to the life or safety of any individual (s14). They may also conduct emergency surveillance using a surveillance device for up to 48 hours in similar circumstances. Note the threshold: serious crime (punishable by 14 years or more imprisonment, or specified offences involving firearms) or a real threat to life and safety. A vague and unsubstantiated "risk to security" simply does not meet this threshold (and in the cases where it does, the SIS should be turning the case immediately over to police, so that they can exercise their powers and prosecute the offender).
    
    
21. While both the visual surveillance and emergency surveillance powers have been compared to existing police powers, it is important to remember that the SIS are not the police. The SIS's goal is to gather intelligence, while the police's is to gather evidence. The former is secret, while the latter must ultimately be revealed in court and withstand judicial scrutiny. This public and judicial oversight provides a further check and balance on the police and gives them a strong incentive to act within the law. As their intelligence is kept secret and used privately, there is no similar incentive on the SIS, and the results can be seen in the dismal history of the service.
    
    Sunset clause
    
    
22. The provisions of this bill have a "sunset" clause and expire on 1 April 2018. While I welcome the sunset clause, the duration seems far too long. The SIS is supposed to be reviewed next year, and I would expect Parliament to treat the outcome of that review as a matter of some urgency (though not the unconstitutional level of urgency displayed in the passaged of this bill). A 2016 expiry seems more suitable.
    
    
23. I do not wish to make an oral submission to the Select Committee.
    

^1. See for example Secretary of State for the Home Department v. MB (FC) (Appellant) [2007] UKHL 46, which found that the use of a similar "closed material proceeding" with "special advocates" violated the fair-trial rights of suspected terrorists.
^2. See OIA response to TechLiberty and the police-customs MOU annex on data access.
^3. As an example, police asked Customs to stop the wife of a suspected drug-dealer at the border so they could download the contents of her cellphone.

The Law Society on the spy bill

At the moment the Foreign Affairs, Defence and Trade committee is hearing submissions on John Key's Countering Terrorist Fighters Legislation Bill. One of the first submitters was the Law Society. So what did they think of it? It is a disproportionate response to the problem:

some provisions in the Bill substantially interfere with and reduce human rights and individual liberty. Thus, the powers taken should be limited strictly to what is required by the threats that have arisen.

They're recommending that the term for passport denial not be extended, and that it be subject to stronger judicial review. They think that there's a very weak case for visual surveillance powers. Visual surveillance seems less appropriate for intelligence work, and the threshold in the bill is significantly lower than that required by police for such surveillance. As for warrantless emergency surveillance, they again note that the threshold is far too low, the period too long, and the safeguards nonexistent. They also criticise the use of urgency and the extended "sunset clause".

These are all strong criticisms. If you'd like to add your voice to them, please submit. There's a submission guide here. Just do it quickly, because submissions close today.

John Key's TXTs and the Public Records Act

Today in Question Time, in response to further questions about the Prime Minister's communications with sewerblogger Cameron Slater, Steven Joyce (on behalf of the PM) informed the House that Key deletes all his text messages, "in case his phone is lost".

Pretty obviously this is useful for Key. It means that there is no evidence of what he's been saying to who. But it is a problem for us, because legally Key's texts are a public record. If they contain substantive discussions or decisions, then there is a duty to retain them, or a summary, as part of the Prime Minister's obligation to maintain full and accurate records. If no such summary is created - and Joyce seemed to suggest that there is not - then deleting them is a criminal offence.

Is Key going to face prosecution? Of course not. Even if the Chief Archivist - who is now an employee of the Department of Internal Affairs rather than an independent public servant - stood up for the law and took their duty to act independently seriously, the police would simply laugh at it. Where the Prime Minister is concerned, the law apparently means nothing.

Meanwhile, you might want to ask yourself: why would a politician with nothing to hide delete public records?

No freedom of speech in Pakistan

Veena Malik is a Pakistani actor. In May this year she played a role in a historical wedding scene based on the marriage of one of Muhammed's daughters. For this, she has been sentenced to 26 years in jail for blasphemy:

Veena Malik has expressed her anger and disbelief after she was handed a 26-year jail term by a Pakistani anti-terrorism court for ‘malicious acts’ of blasphemy.

Her crime? Appearing in a pretend wedding scene, staged on a daytime show broadcast by Geo TV and based on the marriage of the Prophet Mohamed’s daughter.

The programme sparked a wave of controversy in the Islamic country when it aired in May, despite the fact similar scenes had been aired in the past to little or no such public outrage. Some even apparently suspected that Pakistan’s military were behind the mock wedding, and that it was put on in a bid to wage a blasphemy war against the broadcaster.

Malik’s husband, Asad Bashir Khan, and Mir Shakil-ur-Rahman, the chief executive of the biggest media group in the Asian country, were further sentenced to 26 years behind bars for the apparent religious offence. The host of the show Shaista Wahidi was also punished.

I'd suggest that the Pakistani courts are incapable of distinguishing between fiction and reality, but as this is a religious offence, that's a given.

Climate change: Rising seas

One of the primary consequences of climate change is sea-level rise due to thermal expansion and melting ice. What impact will this have on New Zealand? The Parliamentary Commissioner for the Environment is going to tell us:

The Parliamentary Commissioner for the Environment, Dr Jan Wright, has warned that flooding and erosion from rising sea levels will have a large impact on many New Zealanders in their lifetimes.

Today the Commissioner released a report that explains the science of sea level rise, one of the major consequences of climate change. A second report, due next year, will show which towns and cities are most vulnerable. It will also assess the risk to roads, buildings, stormwater systems and other infrastructure in those areas.

Its the second report which will really be interesting here, but this is a good start. And it gives us an idea of what to expect: 30 centimetres by mid-century, and a metre by 2100. And that is going to mean some big, and disruptive changes. Just around Wellington, that 30cm by 2050 is going to mean that the Hutt Road, the Hutt-Wellington railway line, Petone and Eastbourne will become increasingly vulnerable to storms (and Eastbourne already loses houses this way); a metre may make those transport links untenable without major engineering work. And of course there will be the impacts on coastal property - some owners of which resolutely have their fingers in their ears and are trying to gag councils to enable them to dump their junk on suckers preserve the "value" of their "assets". Adapting to this is going to cost a lot of money - money we wouldn't have to spend if we, and the world, had acted sooner.

The full report can be read here.

Submission guide: Countering Terrorist Fighters Legislation Bill

I've just completed my submission on John Key's Countering Terrorist Fighters Legislation Bill. In the past I've posted my submissions, but that has tended to lead to a bunch of people copy-pasting them, which has in turn reduced their impact (MP's hate spam-submissions). So I'll post it tomorrow, and instead do a quick guide on how to write your own. Remember, submissions are due tomorrow, so write fast!

Some points you may want to make:

• The government has not made a case for the inadequacy of the current passport regime. In particular, it hasn't explained why a one-year cancellation / refusal is insufficient, or why going to court to get an extra year doesn't work. Indeed, there's no evidence at all that they've ever gone to court to extend a cancellation.
  
• The ability to cancel the passports of people overseas creates a risk of rendering people stateless and constitutes a de facto sentence of exile imposed by Ministerial fiat.
  
• The ability to suspend a passport for 10 days without evidence is (by definition) an arbitrary infringement of people's freedom of movement, and makes all our international travel subject to Ministerial whim.
  
• The ability to use secret evidence in appeals against these actions violates the right to justice and undermines the credibility of the courts. They should have learned this from Ahmed Zaoui.
  
• Giving the police and SIS access to Customs data effectively circumvents the safeguards on their search powers, at least where the target of an investigation may be travelling overseas.
  
• Visual surveillance is highly intrusive, and given their past poor judgement and collection of irrelevant material, the SIS cannot be trusted with such powers.
  
• 48-hour emergency surveillance powers seem designed to circumvent existing safeguards, while permitting the SIS to retain anything "interesting" they find. There are other solutions, including designating alternative Ministers who can approve warrants (as is done for the GCSB). In cases of real emergancy, such as a threat to life, the police already have the necessary powers, and cases should be turned over to them.
  
• The short period permitted for submissions is ab abuse of the democratic process.
  

Once you've written it, you can submit through the online form here. Remember, you've now got less than 24 hours to do so, so be quick about it.

This takes the cake

The Inspector-General of Intelligence and Security is now threatening John Key's victim with prosecution:

As the Inspector-General stated at the release of the report yesterday morning, she is examining what steps to take over the early disclosure of information from the report.

That disclosure was contrary to the non-disclosure obligations under which affected parties received some limited prior notice of the report and was also unfair to others.

Ms Gwyn said that she was aware of Mr Goff's subsequent statements that he had disclosed some information concerning findings in the report. She will be seeking further information from Mr Goff and others.

The broadcast or publication of that information may also have contravened the IGIS Act and, in any case, these events raise questions for the handling of future reports. Any issue of prosecution will, however, be for the Police.

Presumably such a prosecution would be under section 29 Inspector-General of Intelligence and Security Act 1996, which prohibits the unapproved publication of IGIS reports. But it is difficult to see how such a prosecution could possibly succeed, because the report was approved for release. While it was discussed with the media before the IGIS made her announcement, a press embargo is a PR measure, not a security one. Any court with a proper respect for the right of freedom of expression affirmed in the BORA would find that. The IGIS doesn't have a leg to stand on. Instead, by attempting to bully a victim of the SIS (and an MP), all she has done is bring her office - and the whole idea that it is an effective check and balance on SIS behaviour - into disrepute. And if they're going to try and bully Members of Parliament - their ultimate bosses - I'm happy to see both the IGIS,and the spies she supposedly "oversees", shut down permanently.

Submit!

The Foreign Affairs, Defence and Trade committee has called for submissions on the Countering Terrorist Fighters Legislation Bill. Submissions can be made via the online form and are due by Thursday, 27 November 2014.

Yes, that's right. An important bill with major human rights implications, and we have one day to speak up about it. The consistency of this with our democratic norms is left as an exercise for the reader.

Still, we need to submit. While National is wholly committed to the spy deep state, its support partners and opposition parties aren't. Every other party is extremely uncomfortable with these measures. And while the committee has a solid National majority and will rubberstamp whatever the Prime Minister wants, there's a good chance that the bill will at least be toned down in order to secure a majority for the second reading. While I'd prefer to see it defeated (and the spies who asked for it sacked and their agencies disbanded), any improvement would be good.

Making their own terrorists

Last year, two men murdered a British soldier in the middle of a London street. Now, the UK's Intelligence and Security Committee has found that MI6 may have directly contributed to one of the killers' radicalisation:

The British government may have been complicit in ill-treatment of Michael Adebolajo, one of Lee Rigby’s killers, during his detention in Kenya, the intelligence and security committee has said.

The official inquiry into the circumstances leading up to Rigby’s murder also criticised evidence from the former MI6 chief Sir John Sawers, saying it was incorrect and that a document showing this was initially not given to the committee by the intelligence service.

Adebolajo alleged that he was beaten and on more than one occasion threatened with electrocution and rape during his detention in Kenya in 2010. The ISC said he had gone there to join extremists in neighbouring Somalia.

The implication: if MI6 hadn't been complicit in Adebolajo's torture, he might not have gone on to behead someone. British spies helped create one of the terrorists they use to justify their budgets and powers.

Its just another example of how the war on terror is a hugely counterproductive exercise which exacerbates rather than prevents terrorism. Sadly, the spies and generals who gain power and prestige from waging it and the politicians who have to appear "tough" seem incapable of understanding that. And its ordinary people, not those spies, generals and politicians, who pay the price.

Vodafone collaborates in mass-surveillance

The latest analysis of the Snowden documents shows that Vodafone is actively collaborating with GCHQ's mass-surveillance programmes:

One of the UK's largest communications firms had a leading role in creating the surveillance system exposed by Edward Snowden, it can be revealed.

Cable and Wireless even went as far as providing traffic from a rival foreign communications company, handing information sent by millions of internet users worldwide over to spies.

The firm, which was bought by Vodafone in July 2012, was part of a programme called Mastering the Internet, under which British spies used private companies to help them gather and store swathes of internet traffic; a quarter of which passes through the UK. Top secret documents leaked by the whistleblower Edward Snowden and seen by Channel 4 News show that GCHQ developed what it called "partnerships" with private companies under codenames. Cable and Wireless was called Gerontic.

Under the moniker, the company carried out tests on equipment used to carry out the surveillance, it came up with suggestions on how the spies could go about tapping its network, and even had a GCHQ employee working full-time within the company.

So Vodafone are quislings who collaborate with spies. But it gets worse. One of the leaked documents shows that Vodafone (as well as REMEDY (British Telecom), PINNAGE (Global Crossing) and LITTLE (Level 3)) rent space on the Southern Cross cable. Why is this relevant?

a 2011 document reveals that Cable and Wireless went further. The company rented space on a cable owned by Indian telecoms company Reliance Communications that stretched from Asia across the Middle East and landed in Porthcurno in Cornwall. Reliance's transatlantic cable lands in Sennen Cove six miles to the north. And the two cables come together at nearby Skewjack Farm. Documents show that in 2011, this allowed Britain's spies to access all traffic from Reliance's main cable and send it to the GCHQ base up the coast in Bude.

Let a GCHQ "partner" onto your cable, and GCHQ gets all your traffic. They don't need to physically tap the cable - they just get their quislings to take it all off at the landing site. So the very people we are trusting to protect the security of our communications are instead betraying us to foreign (and possibly our own) governments.

A surveillance power-grab

Section 7 of the government's spy bill introduces a new power for police and SIS to access information held by Customs. Its not mentioned in the press release, and the bill's explanatory note is extremely vague. So what's it about? Fortunately, the BORA-vet is explicit: its about allowing police and SIS access the fruit of Customs' warrantless border-search powers:

38.The Customs and Excise Act contains significant search and surveillance powers. As an example of one such power, a High Court decision has held that s 151 provides that a Customs officer may examine or analyse any goods that are subject to the control of Customs or the officer has reasonable cause to suspect are subject to the control of Customs. Section 151 is designed to provide Customs officers with the widest possible powers to deal with persons who arrive in New Zealand from overseas. Customs officers are entitled to examine and analyse such articles as may be of interest to them by any means whatsoever. Section 151 does not provide a requirement of reasonable cause or suspicion of criminal activity, and the information obtained may be retained for law enforcement purposes. An example of the information obtained includes data downloaded from a cell phone. [17]

39.It is entirely appropriate for Customs to have wide latitude to search and seize goods at the border without a warrant for the purposes of border protection. What is of issue is NZSIS and Police having access to data taken by Customs without a warrant for border protection and then using it for other purposes such as investigation of suspected criminal offending. We consider that comprehensive examination of data, either from cell phones, laptops or other storage media, for general law enforcement purposes would require at least reasonable suspicion. [18]

40.The Bill states that the use of Customs’ information by NZSIS and Police is for the purpose of conducting counter-terrorism investigations. The investigations involve addressing serious threats to safety or property and the information taken by Customs is in the strictly regulated environment at the border. This power to access Customs’ information will be subject to a sunset clause expiring on 1 April 2018. In addition, in November 2013 Cabinet agreed to a full review of the Customs and Excise Act. The review process now underway aims to develop new legislation that improves facilitation of travel and trade through the border, supports Customs’ border management and has the flexibility to adapt to new technologies and developments. It is intended to have new legislation passed in 2017.

41.Based on the above, we consider that access to Customs’ information for the limited purpose of counter-terrorism investigations appears to be a reasonable search and seizure.

[Emphasis added]

The prospect of the police using Customs to circumvent warrant provisions is one I've raised concerns about in the past. The Minister of Justice has just said that it's illegal, but that she's OK with legalising it (because "national security" justifies spies poking through all your text messages and data without a warrant). But the fact that she's said its illegal invites the obvious question: how many times has Customs broken the law by providing border search information to police or the SIS? And will they be held accountable for it?

Another shoddy analysis

What's the case for the government's Countering Terrorist Fighters Legislation Bill? I've been reading the bills Regulatory Impact Statement, and the short version is that there isn't one.

A RIS is a vital part of the quality control process for government policy. The guidelines for RIS's are laid out in treasury's Regulatory Impact Analysis Handbook. A RIS should state the status quo, define the problem and objectives, identify the range of feasible options, and analyse them. Often this is a game of salmonella, with options chosen simply to frame debate and push approval of the government's preferred option. But the mere fact that they have to do that, and assess the costs and benefits of their preferred policy against a default option of doing nothing, means that we get some idea of whether a policy stacks up.

The spy-bill RIS doesn't bother with this. It has a problem, it has a preferred option, and that's it. No alternatives are considered, and there is no cost-benefit analysis. There's not even any human rights analysis (another regular feature of RISs). It is, in short, a shoddy and unprofessional piece of work. Just like their last one (and note that it is the same public servant signing off on both of them).

What about the BORA-vet? Amy Adams thinks the bill is consistent with the Bill of Rights Act. Taking people's passports away, exiling them from New Zealand without charge or trial, sticking video-cameras in people's bedrooms without a warrant? All fine according to her. National security trumps fundamental human rights, and the SIS's desire to spy trumps any safeguard. If this is an example of how the BORA-vet process works, its just another example of why we need judicial rather than political oversight.

Counterproductive

Since June, the US has been bombing Iraq. Since September, they've been bombing Syria. In both cases, the aim is ostensibly to stop ISIS. So how's it working out?

About as badly as you'd expect:

US air strikes in Syria are encouraging anti-regime fighters to forge alliances with or even defect to Islamic State (Isis), according to a series of interviews conducted by the Guardian.

Fighters from the Free Syrian Army (FSA) and Islamic military groups are joining forces with Isis, which has gained control of swaths of Syria and Iraq and has beheaded six western hostages in the past few months.

Some brigades have transferred their allegiance, while others are forming tactical alliances or truces. Support among civilians also appears to be growing in some areas as a result of resentment over US-led military action.

In other words, murdering people from the air has strengthened support for ISIS. Its been a hugely counterproductive effort. Much like the war on terror itself.

And John Key wants us to involve ourselves in this mess? I can't think of anything stupider.

No justice in America

On August 9, police officer Darren Wilson shot and murdered Michael Brown in Ferguson, Missouri.. The shooting of unarmed black men by American police is so routine that they don't even bother to keep statistics on it. And of course, they never prosecute. Today a grand jury continued that trend, deciding that Wilson will not stand trial.

The message is clear: there is no justice in America. If you're black, the police can kill you with impunity.

People in Ferguson are angry, and rightly so. The justice system has failed them. Their police have failed them. Their government, at all levels, has failed them. And not just with this decision, but the military force and oppression their protests have been met with over the last three months. Its clear that "their" government does not regard them as equal citizens, with rights to life, justice and freedoms of assembly and speech, but as a troublesome underclass to be beaten, intimidated, and ultimately killed into submission. 150 years on from the end of slavery in America, and nothing has really changed.

Abuse of power: The OIA / public records dimension

One of the things to emerge from the "dirty politics" report is that the SIS pissed all over the OIA:

The NZSIS also made a significant error in considering information requests by the news media. Such requests were, from 25 July to 5 August, not treated as OIA requests but simply denied.

Meanwhile, they were bending over backwards to accommodate Slater's request. But despite the fact that they'd gone to the same email address and it was the same staff handling them, the IGIS finds no politicisation; instead the SIS suffered from doublethink, an imagined distinction between "media inquiries" and OIA requests. There is no such distinction. As the law makes clear, any request to a Department, a Minister, or an agency, is legally an OIA request, and has to be answered. And every time a Minister says "no comment" to a duly particular media inquiry about information they hold in their capacity as a Minister, they are breaking the OIA and could become the subject of an Ombudsman's complaint.

And then there's this bit:

I issued a production order to Mr Ede in respect of his personal email accounts after it became apparent from evidence, including evidence provided directly by Mr Ede, that some of the correspondence pertinent to this inquiry was conducted from non-official email accounts. Upon receipt of the production order, Mr Ede provided a supplementary written statement to the inquiry in which he advised that the emails had been permanently deleted prior to the commencement of the inquiry and could not be recovered. I made my own enquiries and confirmed this was the case.

The IGIS is primarily concerned about the security implications of this, but there's another one. Insofar as they deal with official Ministerial business - and if it deals in any way with official information its Ministerial business, as Ministers do not hold such information in their political capacity as MPs - then this appears to violate the Public Records Act, putting Ede on the hook for a $5,000 fine per email. Its small potatoes, but in the absence of a crime of "crimes against democracy", it will have to do. Meanwhile, we have to wonder how many other Ministerial staff are doing this in an effort to evade the OIA. Its time for the Chief Archivist to do an audit.

An abuse of power

The Inspector-General of Intelligence and Security has released her report into the release of information to Cameron Slater by the SIS. Its a lot to digest, but it looks like the core allegation of Dirty Politics - that the Prime Minister's office colluded in releasing SIS information to their pet sewerblogger - has been upheld. But while the report highlights unprofessional and partisan conduct by then-SIS Director Warren Tucker, and dirty politics by the PM's staffers Phil de Joux and Jason Ede, Key is treating it as exonerating him. At this stage, its worth remembdering that Key's conduct was not part of the terms of reference, so of course the report draws no conclusions about him. But there's both a credibility question - do we really think Key was unaware of the smear machine in his office - and a responsibility one. This was his office. These were his staff. They were acting in his name. He's responsible for this.

As for what that should mean, the use of spies against domestic political opponents is well beyond democratic norms. It is Nixon territory. And there is only one appropriate response to this abuse of power: the Prime Minister should resign.

How to get rid of the State Services Commissioner

Over the wekeend, Andrew Little effectively called for State Services Commissioner Iain Rennie to resign over his mishandling of the Roger Sutton sexual harassment claim. I'm inclined to agree. But as DPF points out, the SSC can't just be sacked, but can only be removed by a motion of the House of Representatives in response to a suspension by the Governor-General (which effectively means the government, because the G-G always and only acts on advice). But that's not quite the barrier that it seems.

To point out the obvious: as head of the state services, the SSC must maintain and be seen to maintain political neutrality - including (from their own Standards of Integrity and Conduct) the ability to work with future Ministers. If the SSC can't work with a future government, its time for them to go. So, all Labour needs to do is lodge a motion in the House calling for Rennie's resignation. It doesn't have to pass, it doesn't even need to be voted on - the mere fact that it has been lodged would be enough to make Rennie's position untenable. After all, he can hardly enforce political neutrality throughout the public service when the opposition has said publicly and formally that it cannot work with him. At that stage, the only way he could effectively do his job would be to quit it.

Sadly, I don't think Labour is actually serious about this. Instead, they're just trying to get some cheap PR without any intention of following through.

How British

How corrupt is the British establishment? This corrupt:

The security services are facing questions over the cover-up of a Westminster paedophile ring as it emerged that files relating to official requests for media blackouts in the early 1980s were destroyed.

Two newspaper executives have told the Observer that their publications were issued with D-notices – warnings not to publish intelligence that might damage national security – when they sought to report on allegations of a powerful group of men engaging in child sex abuse in 1984. One executive said he had been accosted in his office by 15 uniformed and two non-uniformed police over a dossier on Westminster paedophiles passed to him by the former Labour cabinet minister Barbara Castle.

The other said that his newspaper had received a D-notice when a reporter sought to write about a police investigation into Elm Guest House, in southwest London, where a group of high-profile paedophiles was said to have operated and may have killed a child. Now it has emerged that these claims are impossible to verify or discount because the D-notice archives for that period “are not complete”.

And yet, they stand up today and say "there can't have been a D-notice because we would never have destroyed important files to protect important people". Meanwhile, an inquiry into whether the Home Office did exactly that says that it cannot be ruled out.

Spies are supposed to protect national security, not child molesters. If this is what Britain's spies do, the UK should rid itself of them (and arrest those involved in this coverup as accessories).

New Fisk

Iran is shifting from pariah to possible future policeman of the Gulf

A war on judicial oversight

In response to a leak, the government has been forced to release its "temporary" anti-terror legislation - and reveal that its a lot less temporary than they said it would be. Rather than a one-year patch-job pending a review, John Key's spies will have extra powers and warrantless emergency surveillance rights for his entire term. And to spies, everything is an "emergency"...

Reading the bill, the overwhelming thrust is to remove appeal rights and judicial oversight. This is particularly clear in the case of the new powers to seize and cancel passports, where a 12-month cancellation, extendible for a further 12 months on application to the High Court, becomes a 3-year cancellation. The net effect is to remove judicial oversight from the process. Note that the government hasn't actually told anyone how many times it has even applied to extend a cancellation, let alone whether it has been successful or not; no case has actually been made. We're all simply supposed to believe that there is a problem, and see unaccountable Ministerial discretion as a solution.

There are obvious BORA problems. The cancellation of passports interferes with freedom of movement, both the right to leave New Zealand, and the right of every New Zealander to return here. And while the former might conceivably be justifiably limited for reasons of preventing crime etc, the latter cannot be. It also appears to be punishment without trial, a violation of the right to justice, while the procedural denial of appeals from those overseas (appeals are limited to 30 days after notification, but the Minister doesn't actually have to notify his victims) is another. Not to mention the new rules allowing the government to use secret "evidence" in court cases, which have been found overseas to violate fair trial rights...

These measures are not acceptable in a free and democratic society. Insofar as they are necessary to prevent terrorism, they should be exercised by judges in open court, rather than Ministers in secret.

Class of 2008

Labour announced its new lineup today, and the change in leadership has led to a significant change: their top 10 are now absolutely dominated the Labour's class of 2008, while the old guard of Mallard, Goff etc have been shuffled off to the rear. Labour finally seems to have got the generational change it has been desperate for.

Except for Annette King, of course. She's still there as deputy, an MP who has been in Parliament longer than many voters have been alive, a veteran of the Rogernomics era. While the rest of the lineup screams "change", she's a big reminder of Labour's dirty past, and of its rump of older MPs who don't know when to quit. Its poor messaging, and for the sake of a senior MP maintaining a vanity position. A clean break would have been better.

Chipping away at police unaccountability

Traditionally, our police have enjoyed a wide discretion over who to prosecute and how. Sometimes, this is a good thing - it means that the time of the courts is not wasted on minor crimes. In other cases, its use is more questionable, enabling the police to selectively enforce laws, persecute those they dislike or want an excuse to put under bail, and ignore crimes by friends, relations, or fellow officers. And in some cases, such as the Roastbusters, its use appears to be truly mind-boggling.

The key problem here is that there has been no public accountability over police charging decisions. Who gets charged and with what, is secret. But thanks to a recent Ombudsman's decision, that could be about to change.

The decision concerns a request for information concerning the Police's decision not to lay a charge of manslaughter against Christopher Drummer for a shooting during a hunting trip (Drummer was instead charged with careless use of a firearm causing death and jailed). The police refused, claiming legal privilege. The Ombudsman accepted that the material was privileged, but found that there was a public interest in release of a summary as

The complainant was entitled, as is the public, to a fuller explanation from the Police about why they decided to charge Mr Dummer with the lesser charge of carelessly using a firearm causing death. Disclosure of a summary of reasons for this decision serves to increase the transparency of the decision-making process and to promote the accountability of the Police for their decision.

The upshot: the Police will have to release summaries of prosecution decisions on request, at least in major cases, allowing them to be scrutinised to see whether they are justifiable. The application to the Roastbusters case is obvious.

Tearing up Westminster

The central bargain of Westminster democracy is that the monarch stays out of politics, and in exchange they get to stay in the role, both legally and literally. Prince Charles - already famous for his undemocratic interventions in politics - is apparently planning to tear up that bargain:

Prince Charles is ready to reshape the monarch’s role when he becomes king and make “heartfelt interventions” in national life in contrast to the Queen’s taciturn discretion on public affairs, his allies have said.

In signs of an emerging strategy that could risk carrying over the controversy about his alleged meddling in politics into his kingship, sources close to the heir say he is set to continue to express concerns and ask questions about issues that matter to him, such as the future of farming and the environment, partly because he believes he has a duty to relay public opinion to those in power.

“He will be true to his beliefs and contributions,” said a well-placed source who has known him for many years. “Rather than a complete reinvention to become a monarch in the mould of his mother, the strategy will be to try and continue with his heartfelt interventions, albeit checking each for tone and content to ensure it does not damage the monarchy. Speeches will have to pass the following test: would it seem odd because the Queen wouldn’t have said it or would it seem dangerous?”

But any political comment by an unelected monarch is, by definition, dangerous. The idea of an unelected monarch purporting to tell elected Ministers what to do even more so. If a future king Charles keeps doing that, then Parliament will have to rethink the role of the monarch, and whether they want them to have any constitutional role at all.

As for New Zealand, I think its unlikely that Charles would pay any attention to us (though now I'm curious: has he sent any of his infamous "black spider memos" to any NZ Minister?) But the idea of a monarch who purported to be able to tell us what to do would not sit well with our democracy. If there was any suggestion that he would, then it would be time to rid ourselves of that piece of historical baggage.

Journalism is not terrorism

What happens if you're a UK journalist and you campaign for press freedom or report on police misconduct? The police database you as a terrorist:

A group of journalists has launched a legal action against Scotland Yard after discovering that the Metropolitan police has been recording their professional activities on a secret database designed to monitor so-called domestic extremists.

The six journalists have obtained official files that reveal how police logged details of their work as they reported on protests. One photographer discovered that the Met police had more than 130 entries detailing his movements, including what he was wearing, at demonstrations he attended as a member of the press.

They have started the legal action to expose what they say is a persistent pattern of journalists being assaulted, monitored and stopped and searched by police during their work, which often includes documenting police misconduct.

This is an appalling abuse of police power. Sadly, it seems to be entirely normal behaviour for the British police, who treat any democratic dissent of questioning of those in power as terrorism. As a result, they've spied - on a massive scale - on peaceful protestors, politicians, and even their own victims. This is a force which is rotten to the core, more suited to a totalitarian state than a democratic society. It is long past time it was cleaned out and made fit for a modern democracy.

Boycott thieving employers

In the past few days, we've learned of a new employer horror: petrol-station workers, often on the minimum wage, being forced to pay for the crimes of their customers. Its unfair, immoral, and possibly illegal. So what can we do about it?

These people have the right idea: boycott the scum employers and the petrol chains who tolerate this from their franchisees:

Angry customers are calling for a boycott of service stations which dock workers for customer drive-offs.

The calls came after it was revealed today that at least four low-paid workers at Masterton's Night 'n Day store, which also operates a Gull service station, were docked hundreds of dollars in wages after customers fled without paying.

"Boycott all Night n' Day stores and pumps," said Stuff.co.nz reader "marty@wainui" in a comment on the story. "I for one am taking my business elsewhere until Gull resolves this," said fellow reader "jestriding".

And the same should go for any other station or chain which does this. Which means Gull, Mobil and Caltex as well, until their head offices start restricting franchisees (according to this story BP and Z have already publicly declared such policies).

Class warfare in the UK

Surprise, surprise! An independent study has shown that the UK's conservative government has been driving a massive transfer of wealth from the poor to the rich:

A landmark study of the coalition’s tax and welfare policies six months before the general election reveals how money has been transferred from the poorest to the better off, apparently refuting the chancellor of the exchequer’s claims that the country has been “all in it together”.

According to independent research to be published on Monday and seen by the Observer, George Osborne has been engaged in a significant transfer of income from the least well-off half of the population to the more affluent in the past four years. Those with the lowest incomes have been hit hardest.

[...]

The report also claims that the transfer of funds from the poorest half of the country to the more affluent did not contribute to deficit reduction.

It says: “The revenue gains from some tax changes and benefit cuts were offset by the cost of tax reductions, particularly the increase in the income tax personal allowance.”

So, the bankers fuck up the economy, then their get their government to steal from the poor to pay them for it.

There is a name for this: class warfare. And the sooner we recognise what it is and call it by its name, the sooner we can fight it.

(Meanwhile, I'd love to see a similar analysis of the Key government's regressive "tax switch" (which lowered taxes on the rich while raising GST on the poor) and austerity programmes. While its unlikely to have been as extreme as the UK version, its the same underlying tactic at play: making the least well-off pay for the continued prosperity of the few).

That didn't take long

National's new teabreak law isn't even in force and employers are already abusing it:

Yesterday a union member, who prefers to remain anonymous for fear of retribution, emailed Hotel Organiser Shanna Reeder.

“This morning in the briefing our manager declared that its now her right to decide when we take our breaks, and that since it was a busy day no one could have one until 3pm. Everyone started at 8am, and were due to finish at 3:30pm or 4pm.”

The new law actually will only come into effect in March 2015, however it seems this misinformed employer has jumped at the opportunity to stop workers having their breaks.

[The employer should have been named. If the law will no longer constrain bad employers, then we'll just have to use public pressure and boycotts instead].

National passed this law, so they get to own it. Every bad and abusive employer who behaves like this can be laid directly at the Minister's door. And hopefully the opposition will take the opportunity to ask him about every incident in Parliament.

Justice is more important than international relations

Yunus Rahmatullah is a Pakistani citizen. In 2004 he was disappeared by British forces in Iraq. The British then gave him to the Americans who rendered him to Afghanistan and kept him there without charge or trial for ten years, during which he was tortured. He was finally released in May this year, and is now seeking justice through the UK courts. Now, the courts have ruled that potential damage to foreign relations is no barrier to the case proceeding:

The high court has dismissed the government’s claim that Britain’s relations with the US would be damaged if a Pakistani citizen who says he was tortured by British and American troops was allowed to sue for damages in court.

British courts would be failing in their duty if they did not deal with the claims even if that involved the court finding that US officials acted unlawfully, Mr Justice Leggatt ruled on Wednesday.

“If it is necessary to adjudicate on whether acts of US personnel were lawful … in order to decide whether the defendants violated the claimant’s legal rights, then the court can and must do so,” he said.

He added: “For the court to refuse to decide a case involving a matter of legal right on the ground that vindicating the right would be harmful to state interests would seem to me to be an abdication of its constitutional function.”

Not to mention an outright denial of the principle that the government is also subject to the law.

This case has a long way to go yet, but if past behaviour is anything to go by the British will settle once it becomes clear that they actually show up in court, in order to avoid an actual court ruling that they tortured people or collaborated in torture. Why? Because such a ruling would then expose British politicians, spies and generals to criminal charges. And apparently the whole point of the British legal establishment is not to ensure that torturers are prosecuted, but to prevent that from happening.

No wonder no-one believes in the British state: its a scam to protect the powerful. Always has been, always will be.

Climate change: The cost of past inaction

For the past 20 years, New Zealand's climate change policy has been one of inaction and delay. While we've seen no less than four failed attempts at putting a price on carbon (including the current ETS), we've never really tried to cut our emissions. Instead, we've treated our legally binding targets as a "responsibility target" and relied on forest sinks and the international carbon market to meet them.

Writing in the Herald, Simon Terry points out how this is about to go disastrously wrong:

It is the third period from 2021 to 2030 that is the critical one. This is the period world leaders are focusing on for global climate action to make a genuine showing and commitments for it are to be set next year.

It is also the decade during which the trees New Zealand relied on to claim forestry credits are scheduled to be cut down.

Including payback for forest credits, New Zealand's emissions for the third period are officially projected to be 55 per cent above even the current target level - an overshoot of 350 million tonnes of carbon dioxide equivalent.

The Treasury warns that carbon prices will be considerably higher during this period, and expects them to be between $10 and $165 a tonne. At the midpoint of that range, even a 350 million tonne excess would represent a $30 billion cost if settled with carbon credits. Result: Visa card payment comes due with major penalty interest - and underlying emissions growth on top of it.

And even if its at the low end, we're looking at billions of dollars, the sort of cost which is beyond even a major policy initiative.

This is where short-term thinking and a refusal to take action gets us: it hasn't made costs disappear, just put them off. Now that bill is about to come due. But the current government isn't thinking about it because they will have all retired on their fat Ministerial pensions by then, leaving others to clean up their mess.

Policy of fear

Community groups have a vital role in New Zealand. In addition to speaking out on social problems such as poverty, mental illness and addiction, they also often have a direct role in fixing them via government funding. Unfortunately there's an obvious tension between those two roles - and one National is exploiting to stifle criticism of its agenda:

Community groups are being muzzled by fears that speaking out against Government policies will result in funding cuts.

One organisation, which wished to remain anonymous, told Radio New Zealand about subtle threats from a cabinet minister it refused to name, and said the fear of being punished financially for speaking out had worsened over the past three years.

[...]

Those fears were backed by a recent survey by Victoria University senior lecturer Sandra Grey and teaching associate Charles Sedgwick.

The pair conducted two surveys into advocacy at non-Government organisations with the same 93 community groups.

Dr Grey said in the latest survey, conducted over the past year, about half of respondents said if they spoke out their funding would be cut, compared with about 25 percent in 2008.

What changed in 2008? We switched from a Labour to a National government.

Naturally, the organisation which controls the purse strings, MSD, sees no problems here. But they wouldn't, would they? After all, they and the politicians who give the orders are the prime beneficiaries of this policy of fear. But terrorising and intimidating community groups doesn't exactly seem democratic, does it?

What should replace Parliament's prayer?

While the current Speaker is trying to preserve it, given the changing religious landscape in New Zealand, its only a matter of time before Parliament's opening prayer is consigned to the dustbin of history. So what, if anything, should replace it?

The current prayer does two things: its a statement of religion which excludes all non-Christian (and arguably, non-Anglican) New Zealanders. But it also attempts to remind MPs why they're there. We can keep the last bit. An opening statement reminding MPs of the purpose of Parliament - to represent the people of New Zealand and hold the government to account - would work.

Appalled

The more I read about Roger Sutton's sexual harassment, the more appalled I am. And reading the allegations, I'm left asking the same question as Danyl: how can you not be sacked for this? Behaviour like that is not acceptable in any workplace, and everybody should know that. If the State Services Commissioner thinks it is acceptable - and that's implicit in his admission that he would not have asked Sutton to stand down - then he is completely out of touch with modern workplace standards and utterly incapable of upholding the values of our public service - in short, a sexist dinosaur who should stand down himself.

(And that's without even getting into the ethics of Rennie's tacit endorsement of Sutton during his PR exercise yesterday...)

For fuck's sake, this is the New Zealand public service, not Mad Men. We expect better.

(Meanwhile, now that Sutton has breached confidentiality - something Rennie tacitly endorsed with his presence - does that mean we can actually sack him now, rather than giving him a golden handshake and unblemished record which leaves him free to harass and abuse again? Or will the SSC boy's club forgive that too?)

Denying what we already know

One of the core concerns about the GCSB is that they don't really work for us, but for the US. As part of this, they host NSA staff, not as arm's length liaisons, but completely integrated into their organisation. We've known about this since Secret Power, and the former Deputy Director of the NSA this month admitted it on NZ TV:

"There is a sharing of personnel," says Mr Inglis. "We call them 'intergrees' across the Five Eyes partnership."

So there is no reliable proof of bases, but the NSA does have staff working in New Zealand.

However, when the GCSB is asked directly via the OIA whether they host NSA staff, they refuse to answer:

In response to your request, under the provisions of section 10 of the Official Information Act (the Act), I can neither confirm nor deny the presence of a Special US Liaison Officer in New Zealand or a New Zealand Liaison Officer in the United States, on the grounds that disclosure of this information would prejudice the interests protected by section 6(a) of the Act.

This fools no-one. Firstly, as noted above, its a documented fact. Secondly, given the optics with the New Zealand public, if there weren't such NSA plants in the GCSB, they'd surely admit it. So their "refusal to confirm or deny" can really only be taken as an admission of guilt.

Against the extradition of Kyung Yup Kim

Kyung Yup Kim is an alleged murderer. In 2010 he allegedly murdered a prostitute in Shanghai. Since May 2011 he has been on remand in New Zealand pending extradition to China to face trial for murder.

I have no opinion of whether Kim is innocent or guilty. But regardless, we should not extradite him to China. Why? Because China has the death penalty for murder, and they are the biggest state-murderer on the planet. If Kim is extradited, there is every chance that he will be executed by the Chinese government.

New Zealand opposes the death penalty. Our Bill of Rights Act affirms that everyone has a right not to be deprived of life, and this is regarded as one of sections for which there can be no "justified limitation". The pre-BORA Extradition Act says that a Minister "may" refuse extradition where there is a chance of execution. In light of the BORA, that "may" is now effectively a "must", of similar strength to the prohibition on extradition to torture.

New Zealand should not extradite people to be murdered. We should not extradite Kyung Yup Kim.

Meh

The last three times Labour has changed its leader, my initial reaction has been "they'll do OK". I've been wrong every single time. Phil Goff may have been a safe pair of hands as a Minister, but he displayed a total lack of virtù as a leader. David Shearer was a spineless wimp. And Cunliffe has been eloquently judged by the electorate. So what to make of Andrew Little being elected as Labour's fourth leader in three years? To be honest, I'm unenthused. He's already displayed some of the same spinelessness I despised in Goff and Shearer, as well as a disturbing desire to chase the votes of the rich. But to be honest, Labour isn't my party, and Little isn't my leader. I've been relying for a long time on the Greens to provide a principles-based left-wing voice, and I don't really see Little's election changing that.

Secret "justice" in the UK

Surprise, surprise! Britain's secret "trial" has resulted in a conviction:

A man accused of plotting terrorist attacks in London has been convicted of possession of a bomb-making manual.

Erol Incedal was found guilty six days ago, but an order imposed by the judge in the case prohibited any reporting of the verdict before Monday.

Incedal, 26, will face a retrial next year accused of preparing acts of terrorism, after the jury failed to reach a verdict on that charge. His four-week trial at the Old Bailey in London was surrounded by unusual secrecy, with the public and press excluded from two-thirds of the hearing.

As a result of that secrecy, the public were forbidden from hearing - and the press forbidden from reporting on - the evidence against the defendant. Which means that we are simply unable to assess the quality of that evidence and therefore whether the conviction is valid. The result is that the conviction simply lacks credibility.

But this isn't just an affront to justice which brings the British justice system into disrepute - it's also a mistake. By holding the trial in secret and casting doubt over its integrity, the British government has ensured that it will be used as an example of British oppression and a recruitment tool for terrorists. Another fine foot-bullet from Britain's spies, and a perfect example of how they do more harm than good.

A low R&D economy

The Herald this morning reports that New Zealand is near the bottom in global R&D spending:

New Zealand's world ranking for research and development spending continues to drop, despite increased incentives for companies to invest, according to a report by Grant Thornton, which puts New Zealand near the bottom of the table.

Paul Kane, spokesman for the global business consultancy, said the number of companies in New Zealand that expected to increase their spending on research and development had dropped significantly, with just 12 per cent of firms expecting to increase their spending in the next year.

"We're really at the bottom of the table, we're fourth from the bottom behind Estonia, Argentina and Russia, and we've been steadily dropping," Kane said.

Economic Development Minister Steven Joyce is in full denial mode, saying that this doesn't reflect what he's seen. From which we can conclude that he did not read his own department's Briefing to the Incoming Minister, which explicitly says (in bold, so the Minister won't miss it) that NZ's level of R&D investment is "low by international standards". Its also very clear about who is at fault:

While New Zealand is spending a lot more on science and innovation, our investment is still very low when compared with the small advanced economies. This is true in both absolute terms (the total that we spend) and in relative terms (the size of our science and innovation investment relative to our GDP). The 1.28 per cent of GDP New Zealand spends on science is well below the OECD average of 2.06 per cent. There are many reasons for our comparatively low science spend, although a significant portion of the disparity is due to our low investment in the business sector.

According to the BIM, the government wants to increase business-sector R&D spending. Perhaps the first stage to doing that is admitting that we have a problem, rather than trying to deny it.

No place for prayers in our Parliament

The New Zealand Parliament may be getting a new prayer. But while its shorter, removes the offensive reference to "true religion", and masks its reference to the imaginary sky-fairy by putting it in te reo, the fundamental problem remains: it is still a prayer, and a Christian one at that. And in a country which is committed to freedom of religion (and which is no longer Christian), that's simply not tenable.

In our society religion is not a matter of state, but a private matter, between an individual and whatever entities they believe in. Our Parliament is not supposed to be a bully pulpit for granting a particular religion the official approval of the state, but should be religiously neutral. And the way that is done is not by having a watered down prayer, but by not having one at all. Its a Parliament, not a church.

Meanwhile, the way this is being done - a straight choice between the two alternatives, with no amendments, let alone a "none of the above" option - is terrible, an attempt to strap the chicken for the status quo. Rather than endorse this charade, MPs who favour freedom of religion should deny it legitamacy, and abstain.

Climate change: King of denial

John Key is desperately trying to defend the dairy industry's climate change record:

The Prime Minister has defended the New Zealand dairy industry's record on climate change issues in the wake of a landmark agreement between the world's biggest two polluters.

[...]

Mr Key said methane and nitrous oxide from pastoral agriculture were major contributors to New Zealand's greenhouse gas emissions.

"If the behaviour you're trying to change is something you have no answer for and the farmer can't control - the methane and nitrate emissions from the animal - then aren't you just really putting a tax on them for the sake of it?" Mr Key said this morning.

Except they can do something about it. We have farming methods which reduce emissions, and we always have the fallback of reducing herd sizes (which probably needs to happen for water quality reasons anyway). The problem isn't that farmers can't adopt these methods, but that they do not want to. And the consequence of indulging them isn't just that they continue to pollute our atmosphere, but also that the rest of us effectively subsidise them by paying for it.

We should not be subsidising farmers like this. It violates "polluter pays", and it violates basic principles of social equity for the poor to subsidise the rich like this. Instead, farmers should pay their own way. And with carbon prices at a low due to the slowness of international climate change talks, now is the perfect time to internalise that cost and make them stand on their own two feet.

New Fisk

Isis in Syria: The militia that has transcended tribal divisions to fight Islamic State

Least preferred option

Back in September, John Key said that sending the SAS to Iraq was his "least preferred option", "at the very outer edge of what we'd be wanting to do". Today, he's changed his tune:

New Zealand's elite Special Air Service (SAS) could be deployed to Iraq to protect Kiwi troops sent to train local forces.

Prime Minister John Key confirmed that was one option under consideration as the government continues to weigh up its response to the rise of Islamic State (IS) n Iraq and Syria.

[...]

Speaking to Fairfax on his way to the G20 summit in Brisbane at the weekend, Key said the Government was still weighing up the shape of its contribution, and said he could not rule out deploying the SAS.

[As Pablo points out at Kiwipolitico, deploying the SAS even for "protection" will inevitably see them used in a combat role].

Do we need any more evidence of Key's deceit over this? He knows kiwis do not want to see our troops in Iraq, but the US has snapped its fingers, and so he offers up some human sacrifices. The last two months of prevarication and slow escalation have been about selling that decision to us. In the process they've made it perfectly clear that our government works for foreign masters, that we cannot trust anything it says, and that they view us as subjects to be lied to rather than citizens to obey.

Wouldn't it be nice to have a government which served us, rather than the US?

New Fisk

War with Isis: The forgotten, plucky Kurds under siege in their enclave on Syria’s border with Turkey

There was no cession in New Zealand

The founding myth of New Zealand is that unlike other countries (such as Australia and the US), British governance was established here peacefully, by an act of voluntary cession. In 1840, via the Treaty of Waitangi, Māori gave up their sovereignty to Britain in exchange for citizenship and protection of their lands (which the government then proceeded to steal by fraud and a series of military campaigns, but as I said, founding myth).

The Waitangi Tribunal has just blown that out of the water:

The Tribunal today released its report on stage 1 of its inquiry into Te Paparahi o te Raki (the great land of the north) Treaty claims.

The report concerns the ‘meaning and effect’ of the Treaty in February 1840, when the first signings of te Tiriti took place in the Bay of Islands and the Hokianga. Stage 2 of the inquiry, which is under way, will consider events after February 1840.

‘Though Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Māori and Pākehā, it did not explain this to the rangatira’, the Tribunal said.

Rather, Britain’s representative William Hobson and his agents explained the Treaty as granting Britain ‘the power to control British subjects and thereby to protect Māori’, while rangatira were told that they would retain their ‘tino rangatiratanga’, their independence and full chiefly authority.

‘The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain’, the Tribunal concluded. ‘That is, they did not cede authority to make and enforce law over their people or their territories.’

[Emphasis added]

The Tribunal has exclusive authority to determine the meaning and effect of the Treaty, so that's pretty definitive: as understood in 1840, the Treaty wsn't a cession of sovereignty, but a partnership agreement with a limited role for the foreign crown.

Note the important caveat: as understood in 1840. The Tribunal is at pains to say that they draw no conclusions about how the government acquired the sovereignty it de facto exercises today - only how it didn't acquire it. But by ruling out the central element of our founding myth, they've suddenly put our constitution on an uncertain basis.

What does it mean? Likely that certain acts in the 1840's and in the decades thereafter will be Treaty breaches (and we've got the issue of pre-1840 Treaty breaches, as the British violated a promise to investigate pre-1840 land transactions and return land which had not properly been acquired). The existing Treaty settlement system is perfectly capable of dealing with this. It does potentially raise the prospect of new claims, as those breaches may not have been included in past settlements - and that will put pressure on the government's claims deadline (which, insofar as it rules out just claims, can only be seen as a Texan-style bureaucratic barrier to prevent justice). It will raise questions about the legal effect of laws and ordinances passed in the pre-sovereignty period, and about their effect on Māori customary law (which, legally speaking, survives until over-ruled by Parliament). And its a clear steer to the Supreme Court in cases dealing with those laws.

But the biggest effect will be psychological. Pākehā are going to have to confront the fact that our history is a bit more complex and far less comfortable than we like to pretend. Or not. Given past practice, this is likely to result in a surge of racist anger at Māori for upsetting our myths, then a return to comfortable ignorance.

Another day, another abuse of power from Key

When John Key announced during the election campaign that he would be releasing declassified GCSB documents to counter Edward Snowden's claims of mass surveillance in New Zealand, it was pretty obvious that the release was purely political, aimed at National's security rather than national security. Now, thanks to an OIA request from the Greens, we have it in black and white.

The released documents show that the GCSB declassified the documents in July, but that Key then sat on them and timed release for his own political advantage during the election campaign. Russel Norman calls this an abuse of power, and he's right - and as with the SIS release to Cameron Slater, it shows that Key views classified information and our spy agencies as his personal political tools, to be used for his personal political advantage. Which may work for him in the short term, but only at the cost of further eroding public trust in those agencies.

Meanwhile, the early declassification suggests that the GCSB (or their NSA/GCHQ partners) knew what Greenwald, Snowden and Dotcom were going to release about New Zealand. Which suggests that they're still spying on some or all of those people in a self-serving attempt to limit democratic debate about their activities. That's not something we should tolerate in a democracy, and its another example of why the GCSB needs to be shut down.

Failing to hide our failing justice system

Earlier in the week the government released its Briefings to the Incoming Minister (BIMs) - basically introductory documents to the work a Minister will have to do, highlighting core upcomg decisions and some key advice on direction. As usual, these were heavily censored, with even trivial details redacted (in MBIEs case, they basically redacted every potential upcoming decision, seemingly on principle). But one department did a bad job: the Ministry of Justice. If you read their Justice Sector BIM (backup copy here in case they take it down), you'll find that you can uncover the big block redactions by copying and pasting them to a different document. And thanks to that sloppy redaction, we've learned two important things:

The justice sector is not coping with National's budget cuts. This is apparent even from the redacted version, where they talk about having operated within flat baselines for the last two years. But two years of effective cuts through inflation has a price, and MoJ now says the justice system is "under some pressure" (p. iv). On page 12 they go into more detail, saying explicitly that "sector performance will be constrained without new resources":

Despite significant progress within flat baselines, under the existing operating model and without new resource, the sector’s ability to continue improving performance is constrained. The current operating model (with fixed numbers of police, and a nation-wide network of courts and prisons) is likely to cost at least $140 million more than current baselines by 2017/18. Sustaining an effective and trusted justice system requires a level of baseline funding that is now under considerable pressure.

That's how National is goign to achieve its "surplus": by putting off costs for future years and leaving the resulting problems for the next government to sort out. But under any honest system of accounting deferred maintenance is not a real saving - and that's basically what this is: they're running down our core government institutions, such as the court service, in pursuit of an arbitrary budget target.

The Ministry of justice believes we are not treating teenage offenders properly. They're quite explicit about this:

Currently the adult criminal jurisdiction begins at 17, which is out of step with comparable jurisdictions and international legal obligations. Evidence suggests better long term justice outcomes (reduced lifetime offending) and social and economic outcomes (improved skills and employment prospects) could be achieved by dealing with 17 year olds in a different way to adults.

And later:

For teens, more punitive approaches to offending can disrupt skill development and lifetime employment outcomes. New Zealand is out of step with comparative jurisdictions and international obligationsin this area. There is therefore value in reviewing the current boundary between the youth and adult criminal system (17 years).

You can see why this was censored: National loves to bang the "law and order" drum, and young people make an easy target (especially when those young people are browner than the scared Pakeha pensioners National are trying to appeal to). But its not good policy and it violates the United Nations Convention on the Rights of the Child - the most widely accepted international human rights instrument in the world. But if we don't want to condemn kids to a life of crime, then we need to act on this.

Meanwhile I expect people will be taking a closer look at other BIMs. Sadly, none of the ones I've checked have similar problems.