Happy Halloween

Its Halloween! Time to carve a pumpkin with a jolly smile and set it on fire to tell people of free chocolate!



(OK, so daylight savings means that most chocolate collection happens before pumpkin lighting time. But the thought was there)

Statute or its bullshit

John Key is promising that the next FTA negotiations will be more transparent:

Prime Minister John Key says New Zealand is likely to take a more transparent approach to trade negotiations with the European Union than other FTAs.

[...]

Speaking to the Herald this morning en route to Britain, he acknowledged that the EU was conducting its FTAs in a more transparent way and indicated New Zealand would follow suit.

"But on the basis that there is more transparency on the European side, it would be self-defeating not to do so on our side."

That's nice, but grace and favour and promises from politicians on this isn't enough. New Zealanders deserve a transparent and democratic foreign policy, and if John Key is serious about that, he should legislate for it. Statute or its bullshit!

Paying to be robbed

The UK is paying millions a year in aid to tax havens:

Millions of pounds in British aid money is being used to subsidise public services in overseas tax havens, The Independent can reveal.

Tax havens including Belize, Anguilla, and Panama have such high poverty levels that they qualify for substantial UK development grants, an investigation by this newspaper has found.

In just one year, Britain paid out £45m a year in development aid to 13 countries included on a tax haven “blacklist” drawn up by the European Commission.

This is despite estimates from campaigners that the abuse of such offshore havens costs the UK Treasury around £18bn a year.

So basicly the UK people are paying extra tax and suffering worse public services because tax cheats won't pay their far share, and at the same time are paying to support the tax havens those tax cheats use to cheat their taxes. They're paying to be robbed.

And the reason they're doing this is because tax havens refuse to collect sufficient taxes to support themselves (that's why they're tax havens). Its simply obscene. As for the solution, one part of it surely has to be to stop providing foreign aid to the governments of tax havens, and instead focus it solely on poverty alleviation for those country's people instead.

But its not just the UK: locally, we bankroll the governments of the Cook Islands and Niue, both of which appear on the EU blacklist. We should be rethinking our aid to those countries accordingly.

Who'd have thunk it?

It turns out that foreign criminals and tax cheats were a major driver of Auckland's property bubble:

Overseas investors are deserting Auckland's property market as the Government crack down on foreign buyers works, but experts say asking prices now remain too high for the remaining local buyers.

Managing director of Strategic Risk Analysis, Rodney Dickens, said the Government changes which came into force at the start of October had worked, driving overseas buyers out of the market.

From October 1, foreign investors were required to provide a New Zealand IRD number, with a New Zealand bank account, and, like New Zealand investors, will have to pay capital gains tax on any investment property bought and sold within two years.

More importantly, they're required to provide their overseas tax information number, meaning their transactions will be reported to the tax authorities of their home jurisdiction. Which makes NZ property a much less desirable asset for corrupt officials or foreign criminals seeking to launder money or hide their ill-gotten gains.

This hasn't deflated the market yet. But the fact that it has had such a noticeable effect tells us something about the sort of money we've been playing haven too, and how a deregulated market enables foreign crime and corruption.

The banality of intrusion

The Herald's David Fisher has an excellent piece this morning on the wider issues raised by the Police's warrantless demand for Nicky Hager's private information. As he points out, such demands are a routine investigative tool for police - so routine that they simply don't bother to count it. But they make over 1600 requests a year to TradeMe, and if they make a comparable amount to banks, that's over 30,000 warrantless invasions of privacy a year.

So what can we do about it? As Fisher points out, "[t]he simple act of transparency is likely to reduce the practice". Once TradeMe started publish statistics, customers started applying pressure, and they in turn responded by telling the police to get warrants or production orders. Which is what they should be doing anyway. There's already caselaw that intrusive information obtained in this way without use of a formal order is inadmissible in court (R v. Ellerington, CRI-2006-032-3536), and forcing the police to meet the reasonable grounds tests of the Search and Surveillance Act 2012 before going through people's private information will ensure they build robust cases and do not intrude without cause. As for how to get that transparency, beyond promoting it as good business practice, I suggest that we legislate. The sorts of bodies we want to cover (banks, ISPS, electricity companies) are largely already defined by statute, so they're easy to identify legislatively. Then its just a simple matter of requiring covered bodies to publish annually a report on their website or in their annual report saying how many times customer information was requested and how many times the requests were responded to.

We should also be requiring the police to be more transparent. They're already required to report on their use of search and interception warrants, and this should be extended to include both production orders and informal requests for customer or third-party information in reliance on Principle 11(e) of the Privacy Act. That way we can also see how large the problem is and whether we need further measures in place to limit police powers of intrusion.

The police are routinely invading people's privacy without any statutory authority to do so. We need to do something about it. Transparency around these intrusions is the beginning of any solution.

Australia are people-smugglers

Earlier this year the Australian government reportedly bribed the crew of a refugee boat to return to Indonesia. Today, Amnesty International fingered them for people smuggling over the incident:

Australian government officials may have engaged in people smuggling, by allegedly paying the crew of an asylum seeker boat to return its passengers to Indonesia, an Amnesty International investigation has found.

In May this year, the 65 passengers and six crew of an asylum seeker boat bound for New Zealand said they were intercepted by an Australian naval ship and an Australian Border Force vessel in international waters.

Australian government officials on board reportedly paid the crew of the vessel $32,000 – in US $100 bills – and instructed them to return the asylum seekers to Indonesia, directing them to Rote Island.

After interviewing all 65 passengers who were on board the ship, as well as the six crew and Indonesian officials, the Amnesty report press release concluded “all of the available evidence points to Australian officials having committed a transnational crime”.

Australia's anti-refugee operation is supposedly there to prevent brown people reaching Australia people smuggling. Instead, they're committing it. Just another example of how lawless Australia has become in its efforts to prevent refugees from exercising their lawful rights.

Japan plans to defy international law on whaling

Last year Australia successfully took Japan to the International Court of Justice to get it to stop its "scientific" whaling program. But while they had originally announced they would obey the rulign and international law, Japan now intends to defy it:

Japan initially said it would abide by the ruling in the Hague. In April it submitted a revised whaling plan under which 333 minke whales would be killed each year between 2015 and 2027, about one-third the haul it previously targeted.

But experts at the IWC said the new program offered no scientific justification for the slaughter.

In a special declaration, however, the Japanese government recently told the UN that the ICJ’s jurisdiction “does not apply to ... any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea”.

So, faced with an adverse court ruling, they've decided to withdraw from the court on that issue. Which sounds awfully like their past attitude to international forums reasserting itself.

As for the solution, the Humane Society has apparently brought contempt proceedings in the Australian courts in an effort to force the Australian government to enforce a previous ruling against Japanese whaling in Australian waters. But I think the Australian government is unlikely to act to enforce its own laws. Which means we'll need to rely on Sea Shepherd to do it for them.

DIY democracy on the TPP

The big criticism of the Trans Pacific Partnership isn't so much that its a shit deal, but the way in which it was made: in secret, without reference to the people it was supposedly being negotiated for. Even our democratic representatives haven't been allowed to see the text, and they certainly won't be allowed to vote on it. As for us dirty peasants, we've been deliberately kept in the dark, mushroomed by an inter-government conspiracy of silence, explictily to keep the conversation between "adults" and prevent us "breathless children" from objecting to it.

This is a fundamentally undemocratic and illegitimate way to do foreign policy. Throughout the process civil society groups have been calling for more information and a public referendum on the negotiations. And faced with government refusal to let us have our say on foreign policy, one group has decided to simply go ahead and do it themselves:

Citizen group Real Choice announced today they will hold a nationwide referendum on the TPPA. Real Choice, under the name Show us Ya Text, previously attempted a citizen’s search and seizure of TPPA documents at MFAT offices in Wellington and an occupation of John Key’s electorate office in Helensville.

[...]

“We will set up a secure online voting platform and will have volunteers to set up polling stations around the country to collect votes during polling week.This is too important to be left up to a small group of MPs to decide, and they should put it to a binding referendum vote.”

“If the government really believes in democracy, it would put this agreement to the test and allow its constituents to have a say on this incredibly important issue. We’re giving Kiwis the chance to show the government we want a say on the TPPA. We want real choice, because that would be real choice”, said Sullivan.

Its an interesting idea, and while I'm not sure that the technology is quite there yet, one with potential. If the government won't hold a referendum on something because it is afraid of the public expressing its opinion, then we can just hold our own! Of course, it has no legal effect - but neither do referendums under the Citizens Initiated Referenda Act 1993. But it can still send a message.

Of course, "sending a message" isn't enough - we need to get the government to listen. And the real problem here is that successive governments have refused to act on referenda as a point of principle. And that arrogant attitude of politicians is what really needs to change. And until it does, the public will continue to treat MPs with contempt.

Submit!

The Government Administration Committee has called for submissions on the Official Information (Parliamentary Under-Secretaries) Amendment Bill. You can submit online using the link. Submissions must be received by Thursday, 10 December 2015.

The bill extends the Official Information Act to cover Parliamentary Under-secretaries, junior members of the executive responsible for specific tasks. It plugs a long-standing loophole in our official information regime. I urge everybody with an interest in freedom of information issues to submit in support.

Climate change: Time to make farmers pay their own way

Farmers are New Zealand's biggest source of greenhouse gas emissions. In 2013, their cows and sheep pissed, shat and burped out 39.2 million tons of carbon dioxide-equivalent - 48% of our national total. And yet under National's policies, they don't pay a cent for it. But the Ministry for the Environment is finally suggesting changing that:

Farmers might have to pay for their emissions like everyone else under a revision of the Government's main climate change policy.

The Emissions Trading Scheme (ETS), which puts a price on greenhouse gas emissions, is being reviewed this year.

A briefing paper produced for the Government by the Ministry for the Environment said it expected the review to consider agriculture's entry into the scheme.

A ministry spokeswoman said this did not amount to a recommendation to the Government and was simply a comment on the scope of the review. The terms of reference had not yet been determined by the Cabinet, she said.

This is important. Without a price signal, farmers have no incentive to invest in reducing their emissions, and no incentive to even look for one. Meanwhile, the cost of their polluting animals is borne by the rest of us - an effective subsidy to rich farmers. Its unjust as well as stupid policy.

Sadly, I expect National will refuse to even look at the proposal. Their job as a party is to give farmers a free ride, and that's what they'll do. But remember that next time you get your power bill: it is higher because John Key is making you pay for farmers' pollution.

New Fisk

Saudi prince caught up in drugs bust lucky the incident happened in Beirut

Catalonia votes for secession

A month ago, Catalonia held an election, giving pro-independence parties a clear majority. Faced with Spain's refusal to allow the region to hold a referendum on secession - something supported by the vast majority of Catalans - they held one by proxy by running on a platform of unilateral secession. And having won a mandate, they've now begun that process:

Catalonia has put itself on a collision course with the Madrid government after the newly elected parliament put forward a resolution calling for “the beginning of a process of the creation of an independent Catalan state in the form of a republic”.

Effectively a unilateral declaration of independence, the resolution has already been condemned by the non-secessionist Catalan parties as a coup d’etat.

In Madrid the ruling People’s party government and the Socialist opposition both issued statements condemning the move.

The prime minister, Mariano Rajoy, called it a provocation and said: “As long as I am president of a nation of free and equal citizens, justice will prevail over unreason.”

Big deal. The question is what he's going to do about it - and more importantly, whether it will work. Spain has already tried prosecuting Catalan government officials for their role in running an unofficial independence poll; that backfired. Further prosecutions will likely have the same result; interfering in Catalonia's regional government or trying to suppress their culture would be worse. As with Scotland, the desire for independence is partly fed by the opposition of central government, and the more Spain objects, the stronger the independence movement becomes. The quickest way to delay secession would be to actually let Catalans vote on it. But that would yield the independence movement's central claim - that it is a question for Catalans and Catalans alone - and is simply unacceptable to the unreconstructed Francoists of the Spanish People's Party.

Challenging the no fly list

Since the beginning of its "war on terror", the US has run a secret "no-fly list" limiting the freedom of movement of Muslims (and also children, environmentalists, human rights activists and politicians). The list was pure executive fiat, and once you were on it there was no way to get off it. But now, a US court has ruled that inclusion on the list can be challenged in the courts:

Tens of thousands of people, including U.S. citizens who have never committed a crime, are forbidden from flying into or out of the U.S. because they are on a list they were never even told they are on: the No Fly List.

Today, a federal court ruled that Americans can challenge their inclusion on this secretive list on legal grounds.

[...]

The U.S. Sixth Circuit Court of Appeals ruled on Monday that district courts have jurisdiction to hear challenges to the No Fly List, establishing a precedent for courts throughout the country. The court also reversed a lower court’s dismissal of Mokdad’s case, allowing him to proceed with his lawsuit against the Attorney General, Director of the FBI, and the Director of the Terrorist Screening Center (TSC).

This is good news, and a sign that the rule of law is gradually reasserting itself in the US. At the same time, this secret list limited the freedom of movement of tens of thousands of people, with no oversight and no real evidence. Those responsible for it need to be held accountable for that crime.

An unwarranted demand for information

Over the weekend, Scoop started publishing the court file from Nicky Hager's case against the police over their intrusive and vindictive search of his home in an effort to identify his source for Dirty Politics. And in the process, we were once again reminded of the police's habit of demanding information without a warrant or court order:

Hager's legal teams used police documents to detail how detectives sought information on him in late September last year - just after the election - from 16 "bank contacts", Air NZ, Jetstar, Spark, Trade Me and Vodafone. The request to Air NZ also sought information about anyone Hager might have been travelling with, the documents show.

Detectives told the companies they needed the information for an inquiry into "suspected criminal offending, namely fraud, dishonest access of a computer system", telling the bank the information would help avoid "prejudice to the maintenance of the law through the detection of serious offending".

The Privacy Act allows those holding personal information to waive the law if there are "reasonable grounds" to believe it would assist "maintenance of the law". There is no sign in the High Court documents of Westpac - or any of the agencies - being supplied with additional information that might assist with the "reasonable grounds" test.

The documents do show the other companies rejected the request without a legal order. Hager's lawyers said: "Police did not seek production orders for any of this information."

The police defend this practice as "just asking", but that's disingenuous. The fact that they wear a uniform and represent the state means that their requests are never just requests, but are instead by default viewed as legitimate demands which should be obeyed. And police exploit this obedience and desire to cooperate to the full - in this case, to demand extensive and intrusive information on a journalist (including his finances, his phone metadata, where he'd travelled and who with) in a purely political investigation aimed at uncovering and punishing someone for embarrassing the government of the day. Its a gross abuse of power. And it tells us both that our corporations are utterly spineless and that our privacy protections are inadequate. We have search warrants, production orders, and judicial oversight for a reason - and the police are sidestepping it whereever possible to invade our privacy.

There's potentially an interesting privacy case in this over what counts as "reasonable grounds" under the Privacy Act to release information under the law enforcement exemptions (which require the information holder to believe that disclosure etc is "necessary" to avoid prejudice to the maintenance of the law). Is a policeman's say-so enough? If so, why do we have judicial oversight at all? I'd like to see Hager take that case. In the meantime, I'd recommend not banking with Westpac, because they have clearly demonstrated that they do not respect and will not protect their customers' privacy.

(As for Telecom and Vodafone, they have extensive quisling agreements with the police, negotiated under the threat of having their servers seized and business disrupted by search warrants. There are redacted versions of both on FYI here).

New Fisk

Tony Blair didn't see the people, he saw the policies – which is why he chose war

A pro-austerity coup in Portugal

Its 2017. After 9 long years of cuts, austerity and failing public services, the public have had enough, and given Labour and the Greens a majority in Parliament. But the Governor-General - a National stooge appointed earlier that year - refuses to respect the results of the election, and instead reappoints John Key as Prime Minister.

Its a far-fetched scenario for all sorts of reasons, and I don't for a minute believe it would happen in New Zealand. But the people of Portugal, where it has just happened, probably thought that too:

Portugal has entered dangerous political waters. For the first time since the creation of Europe’s monetary union, a member state has taken the explicit step of forbidding eurosceptic parties from taking office on the grounds of national interest.

Anibal Cavaco Silva, Portugal’s constitutional president, has refused to appoint a Left-wing coalition government even though it secured an absolute majority in the Portuguese parliament and won a mandate to smash the austerity regime bequeathed by the EU-IMF Troika.

He deemed it too risky to let the Left Bloc or the Communists come close to power, insisting that conservatives should soldier on as a minority in order to satisfy Brussels and appease foreign financial markets.

And so we have democracy suppressed in the name of the EU and "financial stability" for elites.

As for what happens next, Pedro Passos Coelho, the reappointed Prime Minister, must face a confidence vote - which he will lose. The President can then respect the outcome of democracy, or reappoint Coelho as a caretaker until elections can be held - effectively demanding that the Portuguese people keep voting until they get it right. Given his rhetoric against the left, I expect it'll be the latter, and a full-on legal coup.

As for how this happened, its simply poor constitutional design. Like our own, the Portuguese Constitution gives the President the power to appoint the Prime Minister, and relies on convention and pragmatism to ensure that the choice is both legitimate and can function. But clearly, that's no longer enough. And the fix is simple: rather than having Prime Ministers appointed by the head of state, you have them explicitly elected by Parliament - thus demonstrating confidence and ensuring that the outcome is both democratic and legitimate. And that's something we should do in the long term to protect ourselves from any rogue head of state.

Speak up on the OIA

The Office of the Ombudsman is currently reviewing the operation of the OIA. As part of this, they've launched a series of surveys into the experiences of OIA users, in the hope of identifying frequent problems. There's three surveys: one for people who have made requests of the 12 government departments which are the focus of the investigation (and which can be filled out once for each department); one for people who have made requests from other government agencies; and one for current and former workers in government agencies about their experiences in responding to requests. You can fill out any or all of them.

Note that these are tailored surveys aimed at extracting specific information about people's experience, not a platform for general complaints. Those should go to oiasurvey@ombudsman.parliament.nz instead.

The more data the Ombudsman has, the better her review will be. So if you've made an OIA request in the last year, please respond to the survey. It closes on Thursday 5 November, so be quick about it.

A Tory veto in the UK

Its the democratic nightmare: some party uses its temporary mandate to strap the electoral chicken so that only it is allowed to govern. And it has just happened in the UK, with the Tories ramming through a change to Standing Orders to ensure "English votes for English laws".

How is this strapping the electoral chicken? As I pointed out earlier in the year, by allowing only English MPs to determine English law, it effectively grants them a veto on government. In order to govern and enact their policies, future governments won't just have to have a majority in the House of Commons, but also a majority of English MPs therein. Which, given the Tory dominance of England, effectively means only they can govern in practice. A future UK Labour government (or coalition with the SNP) will face having its English policies - which means education, health, welfare and tax rates - voted down by the English Tory minority, despite having a majority in the House.

(The core problem here is the UK's devolution not having gone far enough, and Westminster still thinking that it is the legislature for England rather than the UK as a whole)

The message to the Scots is clear - despite supposedly being part of the UK, they're not going to be allowed to have any say in its government. They're peons, not citizens. And faced with that attitude, there's really only one self-respecting choice: hold another independence referendum, and leave.

A cure for sociopathic capitalism

Last month, sociopathic hedge fund trader Martin Shkreli appalled the world by buying the rights to produce an essential medicine and then hiking the price by 5,000 percent. But there was a problem with his plan: the medicine, daraprim, has long been out of patent - meaning that anyone could make a generic version. And now someone has, and they're selling it for the pre-2010 price of $1 a pill. Its a clear message to the hedge fund business model of profit gouging price increases to fund debt-driven acquisitions - and hopefully it will mean Shkreli loses a fortune.

But while its worked in this case, its not a generic cure. Many essential medicines are still under patent - meaning there is no market solution to hedge fund sociopathy. But in the event that a price gouger hikes the prices of an essential but patented medicine, then there is a clear role for governments to step in to save lives by manufacturing it themselves. Unfortunately, the National Party has just signed away our right to do this via the TPP. And with hedge funds and pharmaceutical companies becoming ever more grasping in their attempts to extort money from the sick, we may be paying the cost in human lives sooner rather than later.

WTF Ireland?

Apparently you have to be baptised to go to school in Ireland:

Instead of starting school last month, Reuben Murphy found himself back in his Dublin nursery for another year as his mother, Nikki, re-embarked on her quest to find a place at a local state primary for her four-year-old son.

She has already applied to 15 schools. But, following rejections from nine last year, Murphy is far from confident that a place will be found for Reuben. In a country where more than 90% of state schools are run by the Catholic church, unbaptised children like him are at the bottom of their admissions lists.

This is what happens when you outsource your education system to a religious organisation: it takes public money to cater to its own while excluding those who don't follow their dogma. The idea that a supposedly modern state would use such a discriminatory system simply beggars belief. And the sooner Ireland does away with it and frees itself from the bigoted hand of the church, the better.

Justice for corruption in Vanuatu

Two weeks ago, Vanuatu's Speaker of the House caused a constitutional crisis by abusing his powers as acting president to purportedly pardon himself and 13 other MPs who had been convicted of bribery. The pardons were quickly revoked, and yesterday the country's Supreme Court found that they were illegal and the revocations were valid. And today, the Speaker and his fellow corrupt MPs were sentenced for their crime:

Vanuatu's Speaker Marcellino Pipite has been sentenced to three years in jail following his conviction on bribery charges.

He is among 15 MPs being sentenced in the Supreme Court in the Vanuatu capital Port Vila today

Justice Mary Sey is delivering her judgement to a packed court room.

The deputy Prime Minister Moana Carcasses has been sentenced to four years and a former Prime Minister Serge Vohor has been sentenced to three years.

[The different number of MPs is because one MP who plead guilty was not pardoned]

The sentence means that these MPs will lose their seats. Vanuatu will therefore be facing either 15 by-elections, or a snap general election.

Progress in Chile

While Chile is still dragging its feet on marriage equality, it has just passed a law allowing civil unions:

Hundreds of same-sex couples in Chile will head to registry offices this week to celebrate civil unions, which will become legal for the first time in the country on Thursday.

Although the Catholic church is a powerful influence in the region, Latin America has been relatively quick to embrace the recognition of same-sex unions. Same-sex marriage has been legalized in recent years in Argentina, Brazil, Uruguay and some parts of Mexico.

While its not full equality, its still a step forward. And hopefully, as in New Zealand, it will help lay the groundwork for full equality in the near future.

Thieves

In 2013, Parliament had the chance to end the unjustifiable travel perks of former MPs once and for all. But they muffed it, instead fobbing us off with a statutory reporting regime so we'd know who was rorting us and how much they were rorting us for. Today, the first such report was released, revealing the cost is almost three quarters of a million dollars:

Former MPs and their spouses have had the cost of their taxpayer-funded travel revealed for the first time - with some racking up bills of more than $12,000 in a year.

More than $716,000 was claimed by 154 people in the year to June 30. Several getting the perk have high-paying Government positions.

The biggest spenders include Rosalind Burdon, who claimed $12,913 and is the spouse of former National Cabinet minister Philip Burdon, who claimed $6126.

Of the former MPs, Labour's Harry Duynhoven and his wife spent $26,000. Act Party founder and former Labour finance minister Sir Roger Douglas and wife Lady Glennis spent $23,440 on international and domestic travel.

And once you add in fringe-benefit tax, the cost is well over a million.

There is no justifiable public purpose for this spending. The travel rort was never justified, and sustained solely by Parliamentary mythology and the self-interest of senior MPs from both parties who hope to enjoy taxpayer funded luxury holidays for live once they retire. And its beneficiaries are simply thieves stealing from the public (yes, they've made it legal, because they made the laws - but that doesn't make it any less a theft from the public purse). And now they're oddly reluctant to talk about their theft and upset at being named and shamed? Well, if they don't want the scrutiny that comes from spending public money, they have a simple solution: stop spending it. Otherwise, they should expect to be doorstopped and asked exactly why we gave them $10,000 of travel and what they did with it.

Meanwhile, if any MP is brave enough to stand up against their senior colleagues and end this theft, here's a bill to do it. And every day it is not introduced is another day that Parliament earns its reputation.

Justice for torture in Fiji

Back in 2012, Fijian police and military personnel captured a group of prison escapees. They then beat and tortured them so severely that one of them subsequently had a leg amputated. Today, three police officers and two soliders have been charged over the incident:

Fiji's director of public prosecutions has charged three police officers and two military personnel for the beating of a man which was shown in a video leaked online.

The video showed Iowane Benedito and another man handcuffed and being beaten by police officers in November 2012 after they were recaptured following their escape from prison.

The video received worldwide condemnation.

The director, Christopher Pryde, says four men are in custody and will appear in the Suva Magistrate's Court tomorrow after they were charged with unlawfully and indecently assaulting Mr Benedito.

But note what they're not being charged with: torture. And the reasonf or that is that Fiji's Crimes Decree says that torture is only a crime if conducted as part of a widespread attack against a civillian population. This is because their torture law is based on the Rome Statute of the International Criminal Court, not on the Convention Against Torture (which Fiji only agreed to ratify the Convention this year). But the net effect is that these soldiers and police officers get to avoid being labelled what they really are: torturers.

And while we're on this topic, let's remember what Fiji's dictator (and now elected Prime Minister) Voreqe Bainimarama said about it:

"At the end of the day, I will stick by my men, by the police officers or anyone else that might be named in this investigation," he told Fijivillage.

"We cannot discard them just because they've done their duty in looking after the security of this nation and making sure we sleep peacefully at night."

Yes, Bainimarama explicitly supported torture. Someone should really ask him whether he still supports it. And we should all watch for signs of the Fijian government interfering in the judicial process to protect Bainimarama's pet torturers.

Elections matter

An example of how elections matter: yesterday, Canada elected a new government. And today, its pulling out of the US bombing campaign against Iraq and Syria:

Canadian Liberal prime minister designate Justin Trudeau has confirmed that Canada will withdraw its fighter jets from the US-led mission against Islamic State in Iraq and Syria.

In his first news conference following the sweeping majority Liberal victory in Canada’s federal election, the visibly fatigued leader said he had spoken with US president Barack Obama in a phone call during which he discussed his intention to pull Canada’s fighter jets out of the anti-Isis campaign.

[...]

He did not set out a timeline for the withdrawal. Canada currently has six CF-18 fighter jets taking part in the US-led bombing campaign. They were due to remain in the region until March 2016.

Good. And hopefully they'll stay out. Meanwhile, it seems the trick is to force political candidates to make foreign policy commitments, so they can then be held to them.

An interesting change

Today the Ministry for the Environment and Statistics New Zealand released Environment Aotearoa 2015 [PDF], our first "state of the environment" report since 2007. The report is supposed to be a "dry run" for reporting under the new Environmental Report Act 2015 (which is not yet in force), and it paints a fairly dismal picture of the increasing effects of climate change and dairy farming on our environment. But there's something very interesting about it: the topics have changed.

Back in March, Statistics New Zelaand released its topics for environmental reporting in 2015, a political hatchet-job which sought to measure extreme weather events not by incidence of fire, flood and drought, but by lightning strike density marine pollution by debris rather than oil spills, and the effects of climate change by milk production and ski-field operating days (yes, really). The overall thrust was to avoid looking at key environmental problems, while keeping the focus of others (such as climate change) on natural causes and other countries. But today's report doesn't track lightning strikes or marine debris or milk production or any of the other Ministerially chosen bullshit measures designed to obfuscate our problems. Instead, it actually looks at our environment. That's welcome, but I'm curious: what changed and why?

A question of privilege

Yesterday at the beginning of Question Time Speaker of the House David Carter announced that the Privilege's Committee would be investigating the alleged retaliation of Maritime New Zealand against a business whose director gave evidence against them in a select committee hearing. While I oppose some of the privileges of Parliament - notably their purported power to punish members of the public who criticise MPs - one thing I do agree with is their power to punish anyone involved in

intimidating, preventing, or hindering a witness from giving evidence, or giving evidence in full, to the House or a committee...

assaulting, threatening, or disadvantaging a person on account of evidence given by that person to the House or a committee

In order for Parliament to function effectively, people need to be able to give evidence to its inquiries without fear of retribution. We protect witnesses before the courts from retaliation and abuse (in fact, intimidating or retaliating against a witness is a serious crime), and its entirely proper that Parliament has the power to investigate and punish attempts to pervert its proceedings in this manner. And its done so in the past - those of us with long memories may remember that Television New Zealand was investigated and fined for just such a contempt in 2006, after it had effectively sacked its acting Chief Executive for criticising its Board before the Finance and Expenditure Committee. That was in the context of an employment relationship, which the Privileges Committee notes can be complicated; a state agency using its regulatory powers in retaliation (as apparently alleged) is both less complicated and far more serious. And if Maritime New Zealand is found to have done this, I'd expect the relevant staff to be resigning immediately.

O Canada

Canadians went to the polls today in federal elections, and voted to kick out Stephen Harper and replace him with a Liberal majority government. Good riddance. Harper was a polluting warmonger who had eroded Canadians freedoms; he'd tried to win another term by running on a platform of intolerance and racism (as suggested by his Australian election advisors, Crosby-Textor, who have built a business on running such campaigns). Hopefully his defeat will be a lesson to other Canadian parties not to try that again.

Meanwhile, the result is once again a reminder of how messed up Canada's archaic electoral system is: on current results, the Liberals are winning 56% of the seats on 41% of the vote, the NDP are getting 10% of the seats on 18% of the vote, and the Greens are getting 0.3% (1 seat) on 3% of the vote. Canada has been a three-party system for a long time, and its voting system needs to catch up: they need proportional representation.

Unethical

Last week, we learned that former Police Minister Judith Collins was acting as a "brand ambassador" for an Auckland car dealership, receiving free use of high-end cars in exchange for promoting them. Prime Minister John Key, who has a void where his moral sense should be, sees nothing wrong with it and Collins assures us that it is, as MP's love to say when they're doing something wrong, "within the rules" (which she and her fellow MP's wrote).

But legality isn't the point. This is a question of ethics - specifically, "is it ethical for an MP to use their elected position for personal benefit like this?" And the answer to that question can only be "no". MPs should not be seeking to leverage election for private gain. We pay them huge salaries precisely so they're not under any pressure to do that. The fact that Collins is abusing her office like this to gain use of a succession of flash cars tells us that she is greedy, venal, and corrupt - and simply unfit to be an MP. If she wants to keep selling cars, she should resign.

There's coal in the milk

Fonterra is now New Zealand's second-largest coal polluter:

Fonterra is now the second largest user of coal in New Zealand, using more coal than the Huntly coal-fired power station, according to new research published today by Coal Action Network Aotearoa (CANA).

This highlights the company’s contribution to climate change and to New Zealand’s total emissions.

Fonterra does not divulge its total coal burn, but the table below, compiled by CANA from various mainly public sources, shows it is well over half a million tonnes a year and growing rapidly.

Even without the proposed huge new coal fired milk drier at Studholme, for which Fonterra has just applied for consents, it uses more coal than the Huntly power station. With the new plant it would use more than 600,000 tonnes.

The Huntly coal-fired power station has the capacity to generate 480 MW of heat, compared with Fonterra’s combined generating capacity of 572.9 MW.

And this adds significantly to the carbon cost of their milk. When you drink Anchor (or any of Fonterra's other brands), you're destroying the environment. You might want to think about that next time you shop.

Submit!

The Local Government and Environment Committee has called for submissions on the Environment Canterbury (Transitional Governance Arrangements) Bill. You can submit directly via that link by Thursday, 19 November 2015.

The bill would extend the Canterbury dictatorship by imposing a mixed appointed / elected model on ECan, with enough appointees to ensure the government and rural districts can impose their environmentally destructive agenda on the region and continue to give all the water to farmers. It is explicitly anti-democratic and I urge everyone to submit against it. As Parliament has allowed enough time for submissions (contrary to my earlier fears), it is probably worthwhile to submit, if only to make your dissatisfaction noted.

Blair's smoking gun

Over in the UK, John Chilcot is still dragging his feet on publishing the report of his whitewash "inquiry" into the Iraq war. Meanwhile, the evidence that his "inquiry" sought to suppress has suddenly become public:

A bombshell White House memo has revealed for the first time details of the ‘deal in blood’ forged by Tony Blair and George Bush over the Iraq War.

The sensational leak shows that Blair had given an unqualified pledge to sign up to the conflict a year before the invasion started.

It flies in the face of the Prime Minister’s public claims at the time that he was seeking a diplomatic solution to the crisis.

He told voters: ‘We’re not proposing military action’ – in direct contrast to what the secret email now reveals.

The damning memo, from Secretary of State Colin Powell to President George Bush, was written on March 28, 2002, a week before Bush’s famous summit with Blair at his Crawford ranch in Texas.

In it, Powell tells Bush that Blair ‘will be with us’ on military action. Powell assures the President: ‘The UK will follow our lead’.

And it talks about the price: Blair's desire to be seen to be treated as an "equal partner" to the US, rather than the subservient poodle he really was. And for that, a little ego rub, he invaded Iraq and helped kill over half a million people - and people are still dying in the aftermath of that crime.

He should be sent to the Hague to stand trial.

New Fisk

Everyone wrote off the Syrian army. Take another look now

WTF Australia?

Two weeks ago, the Australian government was refusing allow a refugee who had been raped while under their "care" in Nauru to be flown to Australia for an abortion. Last week, they finally relented and flew her to Sydney - but when she asked to see a doctor and a counsellor, as is her right under New South Wales' abortion law, they decided that she had "changed her mind" and secretly rendered her back to Nauru:

The federal government has secretly flown a pregnant refugee out of Australia to escape a court injunction, chartering a jet to take her back to Nauru and the detention centre where she was raped.

In an extraordinary effort that appears to be an attempt escape the reach of Australian courts, the government on Friday swiftly moved the 23-year-old Somalian, who is pregnant as a result of being raped on Nauru, from Villawood detention centre in Sydney.

And they did this while her lawyers were in court trying to enforce her right to medical care. Its a deliberate attempt to escape the jurisdiction of the Australian courts, and shows an absolute contempt for the rule of law.

Using forced pregnancy and rendition to terrorise refugees is wrong. Australia used to be a better country than this. Australians should hang their heads in shame.

Revoked

Last week, Vanuatau's Speaker of the House (and half the government) was convicted of bribery. Over the weekend, he abused his position as Acting President to purportedly grant himself and his fellow corrupt MPs a free pardon (oh, and sack the Ombudsman who had uncovered the whole thing into the bargain). But now, those purported pardons have been purportedly revoked.

"Purportedly" because the idea of revoking a pardon is very queasy constitutional territory. Yes, these people were guilty. Yes, power was abused to let them off the hook. But putting them back on it seems to breach double jeopardy. Vanuatu's President claims that the pardons were issued prematurely, and should have waited until after sentencing, and I'll be pleased if he's right. But that's a view which the corrupt MPs can (and likely will) challenge in court. Meanwhile, it does illustrate the whole problem of the feudal relic of giving the King's President's friends a "get out of jail free" card, doesn't it?

But regardless of what the court decides, it looks like there's growing pressure for a political solution. Vanuatu's Prime Minister responded to the conviction of half his government for bribery and a subsequent abuse of power to let them off the hook with absolute silence. When he finally spoke up after a week, it was to hide behind the sub judice rule and accuse the opposition of "making mountains out of molehills". That's simply appalling. Meanwhile, with the opposition planning a no confidence motion, MPs have all mysteriously been paid US$9000 by the government in what seems to be another attempted bribe. So, basicly the Vanuatu government have learned nothing at all from this and do not wish to change the way they do things. Fortunately it looks like they won't remain the government for much longer.

The continuing failure of the Ombudsman

The Ombudsman released their annual report yesterday. The headline news? They're still failing to meet their targets for investigating OIA complaints:


Comparing with last year's dismal outcomes, they're resolving non-investigated complaints and urgent investigations quicker - and doing worse in everything else. So unsurprisingly, complaints about OIA delays have dropped again, because people know that they just won't get a remedy.

But the Ombudsman has a solution to this problem: change the stats so they don't look so bad! So instead of reporting against timeliness for each category of investigation, next year they'll report net clearance rates and a broad resolution rate for 6 and 12 month timeframes. That won't solve the underlying problem, of course - but it will prevent blogposts like this every time they release their annual report.

(What might solve the underlying problem is the new funding they were given in Budget 2015. But thanks to changing the stats, we'll never know. And because they're not subject to the OIA, we can't ask)

The most dismal stat in the entire thing:

We finished the year with 838 OIA complaints and 161 LGOIMA complaints on hand.

...which is about a year's worth of work. And they're falling behind - their clearance rate this year was only 89%.

The Official Information Act needs a well-funded, effective watchdog to work properly. At the moment, we don't have one, and people know it. The result will be increasing lawlessness by agencies and a loss of confidence in the entire system (and the Ombudsman) by requesters. And once that confidence is lost, it will be extremely difficult to get back.

A new low from Speaker Carter

This morning Andrew Little's Healthy Homes Guarantee Bill (No 2) was drawn from the member's ballot. There is a majority for the bill, and I was wondering how National would try and stop it (since its non-financial they can't use the veto). And now we know: at the beginning of Question Time Speaker David Carter invoked Standing Order 264(a) (which prohibits bills which are the "same in substance" as a bill already voted on being proposed in the same calendar year) and essentially threatened that he would rule the bill out of order unless it was delayed. The problem? The ruling is bullshit - the bill is not "the same in substance" as the earlier version, at least under the usual understanding of Standing Orders.

There's an earlier Speaker's Ruling on this: 103/1 (in the 2011 edition):

The purpose of the Standing Orders is to prevent a question which has already been decided from being brought up again in an altered form, and the same in substance can be expressed as meaning “having the same effect”. A question is not substantially the same because it contains four out of five points of the question as originally proposed. The quantitative interpretation cannot be sustained. The important point is the effect of the words not the amount.

[Emphasis added]

Member's bills have long followed this guidance, both to avoid pre-ballots and to avoid being ruled out of order if they won. Marriage equality was passed in New Zealand in part because multiple MPs spammed the ballot with slightly different ways of doing the same thing. And bills which have failed are regularly reintroduced by finding slightly different ways of achieving the same objective. Little's bill does this: Twyford's bill allocated the power to set standards to EECA, while Little's one gives it to MBIE. Both require landlords to follow those standards, but the different regulator makes them different bills.

Carter should have noticed this. The fact that he didn't tells us that he didn't bother to read the two bills before ruling and that he is an incompetent, partisan hack who is unfit to be Speaker. The sooner he gets shuffled off, the better.

A commitment to equality

One of the problems with New Zealand politics is its inequality. Less than a third of MPs are women - and that proportion has actually dropped over the past few elections thanks to poor selection practices by the major parties. This inequality is reflected around the Cabinet table - only 30% of Ministers are women. And this sends a message to wider society: that inequality is normal and justified. After all, if government does it, it can't be bad, right?

Today, the Greens committed to changing that:

The Green Party is today announcing that, in Government, it will ensure half of all Green Cabinet Ministers are women, and will call on other members of any coalition Government it is involved in to do the same.

Green Party Co-leader James Shaw announced to the CTU conference in Wellington today that the Green Party would put gender equality at the heart of any Government it is involved in, starting with equal representation in Cabinet.

“Our hope is that by leading by example, and ensuring gender equality at the Cabinet table, the Green Party can stimulate and support a wave of gender equity reforms for women who work,” Mr Shaw said.

Its a good, principled move, in keeping with their values and nature as a modern party. Its also easy for the Greens - thanks to equal selections, 50% of their MPs are women (a proportion which will rise to 57% when Russel Norman retires, because Marama Davidson is next on the list), and they have no shortage of talented women to take those roles. And it issues a clear challenge to Labour to clean out some of its stale, male dead wood.

Meanwhile, this is being called a "man-ban" by some parts of the media, and no doubt we'll hear the term from the National Party as well. But nobody is being "banned"; instead the Greens are saying that they want Cabinet to look like New Zealand, just like their party caucus and leadership team does. The fact that some people still think that that is a Bad Thing tells us a great deal about them, their dedication to preserving unearned privilege, and their lack of commitment to modern values of equality and non-discrimination.

Drawn

A ballot for four member's bills was held today and the following bills were drawn:

• Education (Restoration of Democracy to University Councils) Amendment Bill (David Cunliffe)
  
• Births, Deaths, Marriages, and Relationships Registration (Preventing Name Change by Child Sex Offenders) Amendment Bill (Jian Yang)
  
• Electricity Transparency Bill (David Shearer)
  
• Healthy Homes Guarantee Bill (No 2) (Andrew Little)
  

Of these, the Healthy Homes Guarantee Bill (No 2) is the most interesting. Its essentially a re-run of the Healthy Homes Guarantee Bill which failed to pass on a tied vote back in March. But there's been a by-election since then, not to mention several dead kids due to poor housing, so there's now a Parliamentary majority for its passage. And because it doesn't require government spending, National can't veto it.

Plugging a hole in the OIA

Last night Parliament debated Adrian Rurawhe's Official Information (Parliamentary Under-Secretaries) Amendment Bill. The bill is a no-brainer which extends the OIA to cover Parliamentary Under-Secretaries, who are members of the executive with delegated responsibilities for decision-making and policy development. Their exclusion from the Act wasn't based on any matter of principle as far as I could tell, but an oversight - back in 1982, there simply weren't any. But as MMP has forced new coalition arrangements, governments have increasingly looked for ways of paying off minor party coalition partners (or their own MPs who think they deserve a Ministerial position and salary), and so this British legacy sinecure position has been resurrected - and in David Seymour's case, given power over a major and controversial area of policy.

In New Zealand, power is supposed to come with transparency and accountability. So I was pleased to see Ruwhare's bill drawn from the ballot, and even more pleased last night to see it pass its first reading. What I wasn't pleased to see was National and ACT voting against it - do these parties not understand the basics of our constitution? Have they no shame? Fortunately, they were outvoted by their own coalition partners, Peter Dunne and the Maori Party. The bill is now off to the Government Administration Committee, which will no doubt be calling for submissions soon. I urge people to submit in support of it.

Meanwhile, this also demonstrates that there is currently a Parliamentary majority for incremental reform of the OIA to increase transparency. I wonder if any party will seize that opportunity?

National's cruelty

The latest example of National's cruelty to the poor: adopting the British tactic of using arbitrary bureaucratic barriers to starve out cancer patients:

Hundreds of cancer patients are being placed on the Job Seeker Hardship, making it harder to gain financial support for their treatment, in what the Cancer Society say is "ludicrous".

The move came after the sickness benefit was replaced by the Job Seeker Hardship in 2013.

A cancer patient who did not want to be identified told Radio New Zealand she had to pay for a medical certificate every month to prove she was not fit to work. Her surgeon told her she wouldn't be able to work for much longer.

"The letter from the hospital wasn't sufficient. I then had to go back and get a doctor's note to keep them happy, just to prove the fact that I was going in for surgery," she told the national broadcaster.

"Then I also had to, on the day of my surgery, get someone from the hospital to fax through that I had been operated on," she said.

This is pointless and petty and clearly a barrier to people getting (and continuing to get) the help they need. But "people getting the help they need" isn't the goal - instead, this is about denying that help, about finding excuses to dump people from benefits to meet the government's arbitrary reduction targets. It is a cruel and vicious policy. But isn't it so very, very National?

Australia to (re)join the OGP

Back in 2013, Australia announced it was joining the Open Government partnership. But Tony Abbot welched on the deal, and backed out. But now he's gone, Australia is back in again:

Having been quietly shelved two years ago, Australia’s plans to join the multilateral Open Government Partnership are being dusted off by Malcolm Turnbull and an announcement to formally sign-on is expected within weeks.

Prime Minister Turnbull is understood to have considered a proposal last week to move ahead with the OGP, and the final discussions are underway to make that happen.

The Prime Minister was expected to approve in-principal policy, which would provide direction for machinery of government negotiations which are currently underway and which will ultimate decide how Australia’s commitment to the program will be managed.

Good. But its not enough to rejoin the OGP - it has to actually result in real change to the present mindset of secrecy. Restoring the office of the Freedom of Information Commissioner and appointing a replacement (its currently vacant after unsuccessful government attempts to disestablish it) would be a good start.

Statutes Amendment Bill fail

This morning National introduced a new Statutes Amendment Bill. Statutes Amendment Bills are designed for "technical, short, and non-controversial" amendments, things like updating references or recasting archaic language (while keeping its meaning unchanged). As a result, they have a special Parliamentary procedure and tend to whizz through. But National can't help itself, so in addition to the expected sorts of amendments - including one to the Members of Parliament (Remuneration and Services) Act 2013 which makes it clear that the Speaker's powers include the power to determine travel payments to de-elected MPs so they can clean out their desks - they're also trying to introduce significant new secrecy powers to the Victims' Orders Against Violent Offenders Act 2014.

The powers are contained in three new sections and allow judges to clear the court and restrict publication of proceedings and identifying details - a prima facie BORA breach - when deciding such orders. Those powers may be a good idea. They may be justified (that BORA breach, while prima facie, is almost certainly a justifiable limitation in the interests of justice). But one thing they're certainly not is "technical, short, and non-controversial". Any new power, by definition, is not "technical", and any new secrecy power is certainly not "non-controversial" given the inherent controversy around name-suppression and its consistent protection of the rich and powerful. The upshot: these powers should not be passed using the Statutes Amendment Bill, but instead should go in their own Bill where they can be properly debated. And I'll be looking for an MP to stand up and veto them on those grounds in the committee stage.

Member's day

Today is a member's day, and a busy one. There's no private or local bills to clutter the Order Paper, so we get to see some actual member's bills, with no scope for a National filibuster.

First up is Phil Goff's Education (Charter Schools Curriculum) Amendment Bill which will require charter schools to follow the national curriculum. National will vote it down. Then there's Carmel Sepuloni's Social Workers Registration (Mandatory Registration) Amendment Bill, which does what it says on the label. I don't know how that one will turn out. Third up is Adrian Rurawhe's Official Information (Parliamentary Under-Secretaries) Amendment Bill. This one ought to be absolutely uncontentious - Parliamentary Undersecretaries are part of the executive, so of course they should be covered by the OIA in the same way that Ministers are. It will be interesting to see whether it goes to committee, or whether National manages to get its crony-parties to vote against transparency (it will also be interesting to see how David Seymour votes on it, since he's the target). Finally there's Clayton Cosgrove's Keep Kiwibank Bill, which would require a referendum or supermajority for any full or partial sale of Kiwibank. I expect National will vote that one down too (which will tell us a lot about their future plans). If the House moves quickly, it may make it to Gareth Hughes' Electricity Industry (Small-Scale Renewable Distributed Generation) Amendment Bill, and that's a reasonable possibility. Which means a ballot for three or four bills tomorrow, just in time for David Seymour's End of Life Choice Bill (which I think deserves its own post).

Strapping the chicken for agriculture

When the government passed the Health and Safety at Work Act 2015 - which notably excluded agriculture but included "worm farming" in its list of high-risk occupations - Workplace Relations Minister Michael Woodhouse told us that the exclusion wasn't deliberate, but based on an the risks.

He lied:

Dairy farming was initially rated as one of the highest-risk industries during health and safety reforms before the Labour Minister, Michael Woodhouse, intervened and changed the criteria, documents show.

[...]


In a more detailed list, based on ANZSIC Level 3 figures, "dairy cattle farming" was rated in the second-highest category, which meant workers were exposed to levels of risk "greater than twice the average and up to three times the average (for severe injury), or up to four times the average (for fatality)".

Two weeks later, Mr Woodhouse's private secretary sent an email to officials with new criteria for the "high-risk" category and a list of industries. It did not include dairy farming.

So, he deliberately rigged the risk levels to achieve the outcome he (and National's farmer-cronies) wanted. And then he told the public and Parliament that he hadn't. He's lied to us and he's lied to the House. And he should be sacked for it.

Dictatorship in Canterbury, dictatorship in Parliament

National's Environment Canterbury (Transitional Governance Arrangements) Bill, which extends the Canterbury dictatorship through a mixed elected / appointed council, is currently being debated in the House. But as if continuing to deny Cantabrians a full democracy isn't bad enough, National is also trying to manipulate the Parliamentary process to prevent them from having a say on the bill which does it:

The Government has radically reduced the amount of time for public submissions on their controversial ECan bill, says Labour’s Environment spokesperson Megan Woods.

“This is just absurd stuff from the government. They’re using a sneaky tactic to rob Cantabrians of their right to have their say on a bill that’s about robbing them of their right to have their say on how their region is governed.

“Their shortened timeline could mean that instead of the usual six weeks, Cantabrians get just one week to submit their views on the bill.

“The government knows that what they are doing with ECan is deeply unpopular in Canterbury. They are trying to shorten debate so that people in Canterbury don’t hear about what they are doing.

This is simply wrong. The bill isn't being rammed through under all-stages urgency, and there is absolutely no justification for a quicker timetable. Instead, it simply seems like a transparent attempt to stifle criticism and curtial democratic rights. Worse, with a one-week turnaround, it is likely that the submissions process will mirror that of the Key / Kitteridge Countering Terrorist Fighters Legislation Bill, a total farce where committee members did not have time to even read the submissions. Submitting under such a process simply lends it (and the pre-determined outcome) legitimacy; rather than doing that, Cantabrians would be better off protecting outside the select committee hearings to make it clear they reject this insult to democracy.

Secret "justice" for spies

Last year, in a major departure from judicial norms, the UK held a secret trial, resulting in a man being sent to prison for 42 months. The evidence justifying that conviction (and which failed to result in conviction on a more serious charge at a subsequent retrial) has been kept secret, with media notebooks being locked away and jurors threatened with prosecution if they reveal any details, but yesterday we finally got to begin to learn who had demanded it: Britain's spies, who had refused to provide information to the prosecution unless granted total secrecy. Fortunately, the Chief Justice is taking a dim view of this:

Thomas warned on Monday: “One thing the security services cannot do is to say they will not hand over material to the prosecution. That is absolutely impermissible.

“It cannot be for the security services to say: ‘Well we may not cooperate’, because that would suggest that they are not subject to the rule of law.”

He added: “One of the issues [in the appeal] is the public having confidence in the way the security services work. The accountability of the security services is another issue that arises.”

Thomas disclosed that both agencies has been invited to give evidence at the media’s appeal, which is resuming after being adjourned in July, but had declined to do so. “We did ask MI5 and MI6 to make submissions [to the court] but they chose not to.”

So, the spies demand secrecy (presumably so their claims cannot be publicly laughed at), then refuse to defend it in court when it is challenged. They really do seem to think they're above the law.

And in an example of the corrosive effects of secrecy, the British government is now relying on secret evidence and arguments to justify its original demands for secrecy:

The court of appeal has received statements from both the home secretary and the foreign secretary, in which they oppose the media’s appeal, but schedules attached to those statements have not been disclosed to the media’s lawyers. This, said Anthony Hudson QC, for the media, was “profoundly unfair”.

I'd go further: arguments which one party is proceduraly barred from viewing, let alone challenging, make a mockery of the adversial system and any claim to a just outcome. If this secrecy is upheld, it will tell us that the UK's courts are a disgrace, and that it is the spies who really rule. It will make it clear that the UK is a tyranny in law as well as in fact. UKanians who don't like that either need to start doing something about it, or flee to a more democratic jurisdiction.

Facebook: Still tax cheats

Facebook has a new tactic for cheating its taxes: pay huge bonuses so you make a "loss":

Staff at Facebook’s UK arm took home an average of more than £210,000 last year in pay and bonuses, while their employer paid just £4,327 in corporation tax.

Facebook made an accounting loss of £28.5m in Britain in 2014, after paying out more than £35m to its 362 staff in a share bonus scheme, according to the unit’s latest published accounts. Operating at a loss meant that Facebook was able to pay less than £5,000 in corporation tax to HM Revenue for the year.

£105 million in revenue, and £35 million of bonuses? Yeah, right. Its so obviously a tax-cheat to engineer a loss that its not even funny.

Of course, those bonuses will have gone overwhelmingly to management, so its boosting inequality at both ends, by raising the undeserved incomes of the rich while stripping the state of the revenue needed to compensate for it.

A victory for transparency

Last month, Jane Kelsey and a coalition of NGO's challenged TPP secrecy in court, seeking a judicial review of Tim Groser's refusal to release information about it under the OIA. The court delivered its judgement [PDF] today, and has ordered Groser to review his decision. And the reasons why are pretty interesting.

Firstly, and most importantly, this is not about the merits of the decision to withhold under s6(a) and s6(b). The court hasn't looked at the material in question and decided "actually, it should be released"; instead it has decided that the Minister's decision-making process was deficient, and in at least one case, explicitly unlawful. It was deficient because the Minister didn't actually bother to look at the information in question to decide whether it could be withheld, but simply assumed, on the basis of his knowledge about it, that it could (and should) be, and because he did not comply with any of the statutory consultation provisions before withholding information for substantial collation and research. It was explicitly unlawful because the Minister said he was withholding "anodyne" information not in the public domain which he admitted could be lawfully released. The Act

require[s] the Minister to assess each piece of information requested by Professor Kelsey that was held by the Minister and/or MFAT against the criteria in the Act for withholding official information before that request could be refused.

The court goes on to say:

I also appreciate that MFAT believes that complying with Professor Kelsey’s request in the way envisaged by the Act would have involved substantial effort. That, however, is the price Parliament contemplated when it passed the Act and is a challenge regularly encountered and addressed by public servants who are charged with ensuring requests for official information are dealt with in accordance with the Act. The genuine administrative challenges associated with complying with the Act in this case did not entitle the Minister or MFAT to circumvent their duties under the Act.

So, all you public servants who complain that its just "so hard" to comply with the OIA and a distraction from your "real work"? The High Court says it is your real work and that you should stop whining do your fucking jobs. And that goes for Tim Groser too.

But this doesn't mean that Kelsey has won or that the material will be released. Because the order is simply for the Minister to reconsider his decision. And it is quite open to the Minister to say "this really is substantial collation and research" and explore fixing a charge or extending the deadline. Because this is a court-ordered reconsideration, I suspect they will have to actually offer to do either or both (in that the court won't tolerate faux-consideration anymore than it tolerated faux-review), which means that we'll probably get a price which opens the possibility of crowdfunding. But its worth remembering that MFAT still has an Official Secrets Act mindset so the final release (after paying for their review time) is likely to be small.

Secondly, there's a lot of guidance about interpretation along with the way. In addition to the biggies above, the "serious economic damage" clause in s6(e) is a much higher threshold than that of "prejudice" to international relations, s19(a)(ii) means what it says and requires a more detailed explanation than simply restating the original withholding grounds, and that (contra the Ombudsman) when agencies are "of two minds" about release after conducting the public interest test, then the Principle of Availability says they should release rather than withhold. On the downside, the Court explicitly supported contracting out of the Act, at least with other countries, as it is basicly the reason for s6(b) - which may have the perverse consequence of allowing the government to contract out domesticly as well (because doesn't the Act also contemplate such arrangements with s9(2)(ba)(i)? Though then I guess its "prejudice" vs "necessary", which are two very different tests).

As for the result, it really depends on how many agencies are adopting a Groser-esque blanket-approach to requests and deciding them without reviewing the actual material - and how many of them will think they can continue to get away with it (or have "no option" but to continue to do so because government underfunding means they have too few people for too much work). I expect parts of the public service will be pouty and threaten more charging or administrative rejections. The solution to this is to appeal every such attempt to charge or administrative rejection to the Ombudsman, both so that the merits can be tested, and so that it is clear that it is much easier simply to respond properly to a request than to erect barriers to it. Incentives matter, and we can help create incentives favouring openness over obstructionism.

A secret review of transparency

The UK government is currently reviewing its Freedom of Information Act. The review commission is comprised of handpicked opponents of freedom of information, leading to the obvious impression that the "review" is a strapped chicken designed to limit access and reduce transparency. And their first briefing cements that conclusion:

A controversial commission set up to review what the public has a right to know under the Freedom of Information act has held its first briefing – and then banned journalists from reporting it fully.

A senior figure from the Commission met reporters – including from The Independent – to outline how it intends to go about it work.

But under draconian rules, laid down by the Commission, the individual cannot be named or quoted directly.

So, its a review of transparency, and its secret. How British! But it gets better: submissions on this major public review close on November 20, but the commission expects to have read them all, drawn conclusions, written a report and gotten it printed to be ready to present to parliament by December 17. Which suggests strongly that they won't be read, and that the commission has already made up its mind. Maybe they've been taking advice on "consultation" from the New Zealand state services Commission...?

How it works in Vanuatu

On Friday, a Vanuatu court convicted Deputy Prime Minister Moana Carcasses and 13 other MPs of bribery over payments Carcasses made to influence a confidence motion. Among those convicted was Speaker of the House Marcellino Pipite, who was coincidentally acting President due to the President being out of the country. Like the others, Pipite would almost certainly lose his seat (and status and salary) next week after sentencing, but he had a simple solution: pardon everyone:

Vanuatu's acting president Marcellino Pipite has confirmed he has used his interim executive powers to pardon himself and 13 other MPs convicted of bribery.

Mr Pipite told assembled media in his office in Port Vila that the pardon was to maintain peace and unity in Vanuatu.

He pointed to disturbances in Solomon Islands, Bougainville and Fiji as reasons behind maintaining the nearly one-third of parliamentary members convicted of bribery on Friday.

When pressed on how the bribery convictions could spark instability, Mr Pipite failed to answer.

Its transparently a self-interested move to protect his position and the power of the current government. And while its certainly legal, its also unquestionably unconstitutional, in the sense that it is not how things are supposed to be done in a democratic state under the rule of law. These MPs have behaved corruptly. They should pay the price for that, including being unseated and replaced by people who haven't. Instead, Vanuatu's Speaker has abused his office to protect himself and his friends - and by doing so sent a clear message that corruption will be tolerated and protected if it benefits those in power. It is total banana republic stuff. And Vanuatu's voters should force him from office for it.

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Improper

Another day, another government abuse of the OIA - this time over GPS speeding data from Ministerial vehicles:

Opposition parties have called for GPS data from Crown limousines to be released - a move which would reveal what speeds the vehicles had been travelling.

The Department of Internal Affairs (DIA) is also refusing to release details about any speeding tickets collected by ministers driving their taxpayer-funded cars, citing privacy reasons.

[...]

Now, the DIA's general manager of ministerial services, Andrew McConnell, has confirmed that Crown limos are equipped with GPS units but says the data will not released because it was "necessary to maintain the effective conduct of public affairs through the protection of such ministers from improper pressure or harassment".

What sort of "improper pressure or harassment"? presumably they're thinking that it might lead to MPs who have been speeding to be distracted from their jobs by public criticism, or maybe even dragged into court as Helen Clark was. But the Ombudsman's guidelines are clear:

“Improper pressure or harassment” is something more than ill considered or irritating criticism or unwanted publicity. It is a course of conduct that has such an effect on the person against whom it is directed that he or she is unable to perform his or her duties effectively and hence the conduct of public affairs is at risk.

[Emphasis added]

The latter part is key. And in order to justify withholding information, it must not just be possible, but highly likely to occur. And I do not believe for a moment that Ministerial Services has met that threshold. Instead, they're just abusing the OIA to engage in a tawdry political cover-up to protect the arses of Ministers. And responsibility for that should be sheeted home to their responsible Minister: John Key.

10/10: World Day Against the Death Penalty

Today, October 10, is the world day against the death penalty. Out of 196 UN member states, 94 still permit capital punishment. Today is the day we work to change that.

This year's theme is the use of the death penalty for drug crimes. 33 countries still retain the death penalty for drug offences, though most executions are carried out by a handful of asian or Muslim states (China, Indonesia, Iran, Malaysia, Saudi Arabia, Singapore and Vietnam). Some impose it as a mandatory sentence. But the death penalty is never justifiable, and it certainly doesn't deter these offences. And in the case of applying it to drug users, killing people for suffering from an addiction is simply monstrous.