Chris Hipkins' poor leadership on freedom of information

Chris Hipkins is the Minister for the Public Service. In this role, he's responsible for overseeing the whole public service and ensuring that it meets its obligations under the Public Service Act 2020 to be politically neutral, provide free and frank advice, and so on. One of those obligations is "to foster a culture of open government". But there's a problem: the Minister pretty obviously doesn't believe in that, and prefers secret, closed government. How do we know? Just look at the way he answers OIA requests.

Here's an example: an anti-vaxxer used FYI, the public OIA request system, to lodge a request seeking affidavits prepared for the purposes of any judicial review relating to any COVID-19 Order. Hipkins, as the Minister named in those proceedings, would naturally be presumed to hold that information in his capacity as a Minister. But rather than responding properly, Hipkins refused the request, with the rather novel claim that since it had been before a court, it was "court information":

The affidavits you have requested are "court information" for the purposes of section 173 of the Senior Courts Act 2016... Accordingly, I must refuse your request under section 18(c)(i) of the Act, as making the information you have requested available would be contrary to the provisions of the Senior Courts Act 2016 and the Senior Courts (Access to Court Documents) Rules 2017.

Which would be a fine response if the requester had actually requested court records (and you see responses like that all the time where people have done that from the Ministry of Justice). But they hadn't. Instead, they had requested information prepared for a court case but still held by the Minister. And that means it is not "court information" (which, from the definition in the Senior Courts Act, is strictly information forming part of the court record, in its custody or control, or held on its behalf by the Ministry of Justice), but "official information", and fully subject to the Act. As an additional data point, such information was subject to the OIA prior to the passage of the Senior Courts Act (see for example Ombudsman's ruling 405640), and there's no reason to think the Act changed that position. Instead, it seems that the Minister (or his staff, for whom he is completely responsible) has adopted a tendentious interpretation of the law to shut down a request he simply did not want to answer, from someone he did not want to talk to (and honestly, I'm Done With Antivaxxers too, but the OIA works for them just like everyone else).

This would be simply another case of ordinary bad ministerial behaviour, another sad example of a tribal politician viewing information as a weapon and abusing his powers to deny it to someone he viewed as an "enemy", except that Hipkins is Minister for the Public Service. And as noted above, that carries additional responsibilities. Former Ombudsman Beverley Wakem made the point back in 2014 that the leadership of Ministers on the OIA matters, that their attitude to requests matters, that if they set a poor example, they undermine the Act. She was talking about the Prime Minister, but the same applies now to the Minister for the Public Service. Hipkins has a responsibility to be better than this. If he does not want to meet that responsibility, he should resign so that someone better and more committed to open government can take his place.

The IPCA should be subject to the OIA

This morning, RNZ raised the question of whether the Independent Police Conduct Authority - an agency which is a fraud on the New Zealand public - should be subject to the Official Information Act. The short answer is that of course it should be. As for the long answer, see below.

The Law Commission noted the anomalous situation of the IPCA in its 2012 Review of the OIA, The Public's Right to Know. It recommended that the Ministry of Justice conduct a review of all public agencies to determine what should and shouldn't be included (this of course has not occurred). It also provided a list of the Legislation Advisory Committee criteria on whether a body should be subject to the Act, as a guide to the process:

1. the extent of the agency’s dependence on central government funding;
2. the obligation of the agency to consult with the Minister on particular matters, respond to ministerial directions, or obtain ministerial approval;
3. the existence of ministerial control over appointments in contrast to, for example, elected membership representing relevant interest groups;
4. the existence of any government controls on finance, for example by the Auditor-General;
5. the public purpose of the agency.

The IPCA is government-funded. Its chair and membership are appointed by the government. It is subject to the control of the Auditor-General. It serves a public purpose, described in its Act as "the investigation and resolution of complaints against the Police". This means it meets four of the five core criteria for application of the OIA. The Law Commission also recommended two more criteria: the degree of public ownership of the agency and "the potential for decisions of the agency to impact on members of the public". It meets both of those too.

What about its statutory independence and investigative and quasi-judicial functions? There are other independent crown entities with similar functions - for example, the Human Rights Commission, Privacy Commissioner, Commerce Commission, Criminal Cases Review Commission. Every single one of them is subject to the OIA. They protect investigative and quasi-judicial information in various ways (typically through a secrecy clause, which may be broad or narrow depending on when the agency was established, and which may or may not be justified), but fundamentally they are subject to the Act, allowing basic oversight. The IPCA is an anomaly in that regard, and at the least should be subject to the same regime.

If the IPCA was fully subject to the OIA, the "sensitive" information around investigations would clearly be subject to various withholding grounds: privacy and confidentiality for witness statements and details, and the maintenance of the law where there is still a chance of prosecution. And where there is no longer a chance of prosecution, there seems no case for secrecy. Its been established that police prosecution decisions are subject to the scrutiny of the OIA, even if they hide behind legal privilege, and there seems to be little justification to withhold similar information on resolved complaints. The only purpose that services is to continue the unaccountability of police, which is contrary to the purposes of both Acts.

Incidentally, this means that where the IPCA recommends prosecution and the police refuse, the details of the police's decision can be requested, and they will need to at least provide a summary with their reasons, allowing their decision-making to be scrutinised. I am surprised the media doesn't do this more often in controversial cases.

The IPCA is a fraud on the NZ public

RNZ examines the Independent Police Conduct Authority this morning as part of its ongoing series about murders by police. The first part of the article discusses the IPCA's exclusion from the OIA, which is probably worth another post. Because the rest of the article, about the IPCA's funding issues and its relationship with police, is pretty interesting reading, and it crosses over with a recent select committee report on Shannon Parker's petition. The agency started out underfunded and toothless - it had no investigators of its own for its first 15 years of existence - and has stayed that way. While it has some independent investigation capacity today, it still relies on police to investigate the vast bulk of complaints for them, rubberstamping and laundering their conclusions, despite the obvious conflict of interest and clear concerns in some cases. Which is pretty dubious when you think about it. The IPCA was established precisely so police wouldn't be investigating themselves. Instead, they still are (because of underfunding and the desire to preserve a cooperative relationship). Which essentially makes this entire agency a fraud on the New Zealand public, a toothless propaganda exercise designed to make us think there is oversight when there is not.

Can it be salvaged? That would require a complete change. A complete change in organisational culture, from a cooperative relationship with police to one of actual oversight, which works for victims of police misconduct rather than for police. It would also require sufficient resources for the task, so they could effectively investigate complaints themselves, plus powers to force police to cooperate and report misbehaviour by their coworkers. And it would require giving them powers not just to prosecute criminal offending by police, but also to intervene in the employment relationship to discipline, sanction, and if required, fire police officers whose misbehaviour does not warrant criminal charges. Because it is clear from the evidence that the police won't do any of that themselves, and are viscerally opposed to any real accountability.

Will the government do that? If they want the public to have any confidence in the police at all, they need to. Otherwise, we have no reason to view them as anything other than a well-armed, government-sanctioned gang.

Sticking a privacywall on our history

Archives New Zealand is the repository for our public records, the institutional collective memory of the nation. All sorts of people use it: genealogists, historians, policy wonks. I've used it, when digging into the history of sedition, or of the Official Information Act. But the Department of Internal Affairs has just decided to make using the archives much harder: they've introduced a new search engine to replace the old (but quite effective) Archway. This will allow access to some recent digital records online, which is great. But if you want to view older records, either by visiting and looking at them on paper, or by getting the staff to digitise them, you'll need to get a RealMe account:

To book a viewing in one of our reading rooms or to pay for an archive to be digitised you’ll need to login using RealMe.

Why is this a problem? Well, apart from the conceptual problems of an agency which is supposed to be all about enabling public access sticking a privacywall on our history, people absolutely hate RealMe, making it effectively a barrier to access. When people say things like "I hate RealMe with a visceral loathing" about a digital identity system, you probably want to avoid it (which is why NZ businesses generally do).

But it also seems entirely unnecessary. Why do you need a digitally verified identity to visit what is essentially a library? What was wrong with the old system of physically signing up and signing in? Does the government really need to be able to link what you request in the archives with your medical, welfare, and travel records? Or is the real problem here that nobody was using RealMe if they could possibly avoid it, so DIA (which runs the digital ID system as well as the archives) decided to try and forcibly impose it on more people?

A loss for Labour

Louisa Wall has been one of the most effective MPs of recent times. She gave us marriage equality, she gave us safe zones around abortion clinics, she gave us a ban on revenge porn, and she's currently working on protecting journalists sources. And now she's resigning, having been forced out of Parliament by her own party:

Labour MP Louisa Wall has resigned from Parliament, ending a 14-year career marked by the passage of same-sex marriage legalisation but also clashes with her party.

Wall, who has been cast as an outsider in the party, specifically referenced in her resignation an internal stoush at the 2020 election which led her to be ousted from the Manurewa seat, which she has held since 2011.

“It’s been an honour to represent and provide a voice in parliament to those who are so often unheard,” Wall said on Tuesday afternoon.

This is a tremendous loss for Labour, but they won't recognise it. But the rest of us should. And it certainly makes you wonder what is wrong with a party which cannot accept her.

Finally

Last month, we learned that Australia had agreed-in-principle to Aotearoa's offer to resettle refugees from Australian concentration camps. And today, Australia finally accepted it:

In a major about-turn, Australia has accepted New Zealand's long-standing offer to take 150 refugees a year for three years from detention centres in the Pacific.

The deal aims to rehome some of the thousands of refugees who have arrived in Australia by boat, and been placed in detention in line with the country's policy.

The original offer was made by then-prime minister John Key in 2013 and has continued to be extended by his successors Bill English and Jacinda Ardern.

Australian authorities have rejected the proposal until now, citing concerns that the refugees could claim Kiwi citizenship and then travel into Australia freely.

Australia's solution to that problem has long been a demand that we permanently deny their victims citizenship. Obviously, this has been unacceptable to the New Zealand government. And it looks like we got our way: the refugees won't be denied residency or citizenship. Further, while Immigration Minister Kris Faafoi has said that Australia's border decisions are a question for Australia, he's also said that we expect all kiwis to be treated equally - suggesting there may be diplomatic consequences if they try any continued victimisation.

Obviously, this deal could have been made nine years ago when it was first proposed. The fact that Australia refused over illusory, racist fears, and then tortured these people for nine years, is something Australian politicians need to be held accountable for.

Jamaica plans to become a republic

At the end of last year, the Caribbean state of Barbados became a republic. Now, the Jamaican government has taken the opportunity of a royal visit to announce plans to do the same:

Jamaica’s prime minister has told the Duke and Duchess of Cambridge that his country is “moving on” and intends to become a republic.

The royals’ arrival in Jamaica on Tuesday coincided with a much-publicised demonstration urging the monarchy to pay reparations for slavery, and calls from politicians for the country to become a republic.

The couple’s visit to Jamaica has given the nation the opportunity to address “unresolved” issues, the prime minister, Andrew Holness, told them. During an official welcome, Holness said: “There are issues here which are, as you would know, unresolved but your presence gives an opportunity for those issues to be placed in context, put front and centre and to be addressed in as best [a way] as we can.

“Jamaica is as you would see a country that is very proud of our history and very proud of what we have achieved. We are moving on and we intend to attain in short order … our goals and fulfil our true ambitions as an independent, developed, prosperous country.”

They've already established a ministry for constitutional reform, but Barbados provides an easy model for quick change: simply twink out the old royalist terms like "monarch" and crown", write in "president" and "state", and appoint your existing, domestically-appointed governor-general as president. This settles the main change - getting rid of the British - while preserving existing constitutional norms and leaving space open for further changes if desired.

And obviously, this raises the question: when will Aotearoa join the modern world?

Climate Change: Ending Tiwai's subsidies

The Tiwai Point aluminium smelter is one of New Zealand's biggest climate scammers. Under the ETS's industrial allocation provisions, it receives far more carbon credits than it actually emits, which it can then sell to other polluters for profit. The core of its scam is a thing called the "electricity allocation factor" (EAF), which is meant to compensate heavy electricity users for the effects of the ETS on the electricity price. Tiwai receives over 900,000 tons of carbon credits free every year under this scheme, despite paying below-market prices for power, and being subsidised $350 million a year by the rest of us. But now, that scam is over. back in December, Climate Change Minister James Shaw took a paper to Cabinet arguing that Tiwai's EAF be reduced to zero:

I recommend setting NZAS’s EAF for the main contract at zero. This means there are no emissions costs passed on to NZAS under this contract. Should Cabinet agree to this recommendation, NZAS will not receive emission units for its electricity consumption under this contract.

While there's no corresponding cabinet minute in today's proactive release, Shaw clearly got his way, because the regulations have now been changed, reducing Tiwai's allocation by 60%. The emissions impact is 934,000 tons per year - over 1% of our entire national emissions. And because industrial allocation is accounted for before ETS auction volumes are set, that will be a real reduction: polluters won't have access to these permits anymore, so they'll either have to pollute less now, or use stockpiled credits (meaning they pollute less later).

The paper notes that there's a wider review of the EAF and industrial allocation, as well as of ETS volume settings, so hopefully this will become a permanent reduction. And it would certainly be one way of compensating for both past CCR releases and the massive stockpile of carbon credits built up by past government stupidity. If we don't want that stockpile to threaten our future targets, we need to force it to be used by ratcheting down annual supply. And cracking down on pollution subsidies is a great way of doing this.

The decision will also apply more pressure on Tiwai's decision on whether to stay after 2024. This has a significant impact on renewable electricity supplies, and the government's plan for decarbonising industry depends on them leaving. Cutting their subsidies will send a message that the free ride is over, and force them to make that decision on the basis of actual costs, rather than what they can milk out of the government. And that can only be a good thing long-term.

Throwing away our cheese

Back in 2020, Siouxsie Wiles and Toby Morris published a catchy graphic on The Spinoff on the Swiss Cheese Model of public health, with various policy interventions as slices of (holey) cheese. Stack up enough slices, and its harder and harder for covid to get through the holes. Except for the past few months - ever since the introduction of the "traffic light" system, covid policy hasn't been a matter of stacking up slices, but of ripping them out and throwing them on the floor. Traffic lights. Opening the border and ditching MIQ. Sacking the contact tracers. And today, the government has taken out another few slices, by effectively ditching gathering limits, scanning in, vaccine passes, and vaccine mandates. And they're not doing this at a time when the covid risk has decreased, but in the middle of our biggest outbreak, when people are still dying. As a result, the model now looks something like this:

("Something like" because this is based on the pre-vaccination graphic. The version which shows vaccines and masks doesn't show a bunch of the other stuff).

The Prime Minister says that these changes will mean that we will have a baseline caseload of "potentially several thousand cases a day" when the current wave is over. In other words, more covid than we had in the first wave, when we all locked down, and more than we had in the Delta wave, when we all locked down again. That caseload is going to mean ongoing, constant deaths, and an increasingly large number being disabled from long covid. But clearly Labour is fine with that now. Some of us may die, but its a sacrifice they're willing to make to pander to the increasingly sociopathic hospitality industry.

I remember when the government was kind, and was obviously doing its utmost to keep us all alive. That is clearly no longer true. This is a policy of stochastic murder. And we should hold the government accountable for it at the next election.

Climate Change: We need to end fossil fuels

Last year, the International Energy Association warned us that the world needed to cease all new fossil fuel development immediately if we wanted to reach net-zero by 2050. That still leaves the problem of phasing out existing production, though. Now, a think-tank has recommended that the richest countries end all production by 2034:

Rich countries must end all oil and gas production in the next 12 years, while the poorest nations should be given 28 years, to provide a fair transition away from fossil fuels, according to a study.

The report, led by Prof Kevin Anderson from the Tyndall Centre for Climate Change Research at Manchester University, found that wealthy countries such as the UK, US and Australia had until 2034 to stop all oil and gas production to give the world a 50% chance of preventing devastating climate breakdown, while the poorest nations that are also heavily reliant on fossil fuels should be given until 2050.

This proposal would put New Zealand in the second group, with a phase out by 2039. Interestingly, business-as-usual will see almost all existing oil and gas mining permits expire by 2037, so this is actually slower than we are expecting. But this is only for a 50% chance of avoiding catastrophe, which is pretty shit odds (basicly worse than playing Russian roulette, and with human civilisation on the line), so we need to move faster. Which means we need to legislate to end those mining permits early, as quickly as possible. If we are to have a future, then the fossil fuel industry cannot.

Finally

After years of foot-dragging, the government will finally implement a public beneficial ownership register:

Cabinet has agreed to push for a public beneficial ownership register - effectively pulling back the veil of corporate secrecy and requiring companies to declare who they truly act for - following years of pressure by transparency advocates and multilateral bodies.

MBIE had proposed such a register in 2018, with public consultation taking place that year, before the reform apparently stalled.

But a change of government, two changes of minister, international scandals, a multilateral body earlier this month requiring members - including New Zealand - to implement such a register, and four years later, Commerce Minister David Clark this morning said Cabinet had agreed to introduce legislation by the end of the year.

There may be devils in the details - will it apply to trusts, for example? - but this is a good move, which will help narrow the space for tax cheats, criminals, and oligarchs to hide their stolen wealth. The sooner it is passed and implemented, the better.

Disarm the police to save lives

RNZ has launched a major investigation into killings by police, revealing that we have one of the most violent police forces in the western world:

New Zealand police kill at 11 times the rate of police in England and Wales.

[...]

The police in England and Wales have fatally shot 77 people over that time - twice as many as in New Zealand but in a population more than 10 times greater than ours.

When taken over the last 10 years, the rate of fatal shootings is 11 times higher in New Zealand than in England and Wales - or six times higher dating back to 1990.

Specialist firearms lawyer Nicholas Taylor said the high rates of police shootings were the result of poor weapons training, a shoot-to-kill policy and a police culture which put risk taking ahead of deescalation.

Its a long article, looking at who they shoot (disproportionately Māori and/or the mentally ill), whether they had weapons (not always) or had injured anybody before being shot (mostly not), and how often they were shot in the back or while fleeing (disturbingly often). Its an ugly picture, which gets worse when you remember that the Independent Police Conduct Authority has never ruled a police shooting unjustified, even when they shoot innocent bystanders (RNZ will apparently be doing more on that issue later).

Killings by police were historically low, but seemed to escalate in 2007, and again after 2015. I'm wondering what caused those changes, and my suspicion is that it is readier access to firearms (the police started installing gun safes in every vehicle in 2012, and it will have taken time for that change, and the change in mindset from an unarmed force to one with guns everywhere, to filter through). And as the article makes clear, the police now have a mindset of getting their guns, charging in, and putting themselves in a situation where they "have" to kill someone, where previously they would have called for help, contained and de-escalated the situation, and waited for the armed offenders squad to arrive. We need to force them back into the latter mindset. And the best way to do it is to take their guns away, and restrict them to specialist, trained officers, rather than giving a lethal weapon to any yahoo in blue.

We also need to make sure that police officers who use lethal force (or any force) face meaningful oversight, and prosecution where their decisions are legally questionable. The current situation of effective impunity is effectively an ongoing incentive for the police to kill. And that is not something we should tolerate in our society.

Climate Change: Stuff, denialism, and net-zero

Back in 2018, Stuff finally took a sensible stance on climate change, recognising the need to save the planet. part of this was a commitment that they would no longer publish climate denial:

we won't include climate change "scepticism". Including denialism wouldn't be "balanced"; it'd be a dangerous waste of time.

Four years later, they're back publishing climate denial again, in the form of an op-ed calling for the net-zero goal to be dumped. The author is a fossil industry shill (their partner is general manager at an oil company), and they're doing this in a context where the people who pushed Brexit have now taken a hard turn to pushing climate inaction (the author also pushed Brexit, so it looks like she's the local troll in Farage's network). You might expect a media organisation to be aware of these facts, it being their job to follow the news and all. But I guess that expectation is about as realistic as expecting them to keep their promises.

As for the merits, the troll's argument is basicly that net-zero is "unrealistic", "will never be delivered", and "incremental and ineffective". In other words, the standard "its all too hard" that climate deniers have fallen back on now that they can no-longer deny the physics. Which is simply bullshit.

The current net-zero target gives us 30 years. Its perfectly realistic and achieveable to decarbonise over that length of time - after all, we carbonised over that timescale. The Maui gas-field was discovered in 1969, and NZ gas use peaked in 2002. Farmers doubled the size of the dairy herd between 1991 and 2019. New Zealand's first car was imported in 1898, and 30 years later horses were confined to farms (we mass-motorised even quicker, in the short period from the opening of the Auckland Harbour Bridge in 1959 to the oil shock in 1973. And we moved to multi-car households and dirty inefficient utes and SUVs over a similar period in the 2000s). So decarbonising energy and transport, eliminating the fossil fuel industry, minimising industrial emissions and culling the dairy herd is perfectly do-able over a similar timeframe. Yes, we need to do all of these things all at once. But its definitely do-able.

Early long-term climate targets were recipes for delay and inaction. But the framework of the Zero Carbon Act means the 2050 target gives shape and focus to our short-term goals, ensuring that our incremental progress stays on track. The problem with the 2050 target isn't that its "unrealistic", its that its not ambitious enough. The climate data is suggesting that we need to decarbonise even faster to avoid catastrophic damage, and countries like Germany are already bringing their (all-gases) net-zero targets forward from 2050 to 2045. And Putin's war and the increased public understanding that carbon bankrolls tyranny is likely to give them a strong incentive to push that process harder. Aotearoa will need to do the same.

How fast we decarbonise is largely a matter of how fast the government pushes it. And as we've seen from Covid, the government can push very hard indeed when the chips are down. Articles like Pagani's are there to do the opposite, to lay the groundwork for further footdragging. They are simply propaganda for civilisational suicide. And a responsible media outlet like Stuff, which proclaims that it will no longer publish climate denial, should not publish them.

A policy that purports to over-ride the OIA

A request made via FYI, the public OIA request site, has uncovered the NZSIS-Police Joint Operating Strategy and Information Sharing Protocol. Most of this is the usual stuff about protecting classified information. But it also in places purports to over-ride the Official Information Act, potentially resulting in unlawful OIA decisions.

The protocol explicitly acknowledges the OIA and Privacy Acts. But it also follows the "originator control" (ORCON) principle common to spy agencies, and explicitly states that when information is subject to an OIA request:

Disclosure or acknowledgement of the existence of that information must not occur without the written authorisation from the source Party.

This is contrary to the OIA. While it is proper to consult the originating agency about a request (and this may result in a transfer), the processing agency must ultimately make its own decision, and its assessment of the interests at stake. The originating agency cannot veto release. In fact, this seems to be exactly the sort of illegal secrecy contract ruled out by Wyatt Co (NZ) Ltd v Queenstown-Lakes District Council, except it is the government agreeing secrecy with itself, rather than an outside party (which makes it even more dubious). Which means that any refusal of a request for information under this protocol should be immediately challenged with the Ombudsman.

(This is a similar issue to that of "security of information" agreements, except again, its the government agreeing secrecy with itself, rather than with an outside party. A perfect example of how spy-thinking infects and corrupts our democracy).

Whose law did they think they were subject to?

During the war on terror, the US ran a program of extraordinary rendition, in which alleged terrorists were kidnapped, taken to foreign countries, and tortured for information. The British government colluded in this, both directly by assisting in kidnappings, and indirectly by providing questions for their torturing proxies to ask the victims. Now, their victims are suing. The British government's "defence" has been to claim that its spies weren't subject to British law when performing their official duties. The UK Court of Appeal's response? yeah, right:

UK intelligence services who allegedly asked the CIA to put questions to a detainee who was being tortured in “black sites” were subject to the law of England and Wales and not that of the countries in which he was being held, the court of appeal has ruled.

The three appeal judges were asked to decide whether Abu Zubaydah, who was subjected to extreme mistreatment and torture at secret CIA “black sites” in six different countries, has the right to sue the UK government in England.

[...]

In [Justice] Males’s written judgment, he said: “These are strong connections connecting the tortious conduct with England and Wales. They reflect also the parties’ reasonable expectations. While it is true that the claimant himself had no connection with this country, he could reasonably have expected, if he had thought about it during the 20 years in which he has been detained, that the conduct of any country’s security services having to do with him would be governed by the law of the country concerned. As for the services, they would reasonably have expected that their conduct here would be subject to English law.”

Which is obvious the moment you think about it. For a government to claim it is not bound by its own laws is simply absurd. But apparently nothing is too absurd when the British establishment is attempting to justify and excuse torture.

The path is now open for Abu Zubaydah to sue. And hopefully he will force the British government to admit its crimes and extract compensation for them. But the spies who colluded in torture and the Ministers who authorised that collusion shouldn't just be facing a civil suit - they should be facing criminal prosecution. And if the British government refuses to prosecute its own, well, there's a court in The Hague for that.

Luxon is a climate change denier

Chris Luxon claims that climate change is a "priority" for him. So what does being a priority mean in practice? Opposing every policy which might make a difference. He opposes the clean car discount (or specifically, the dirty car fee which funds it). He opposes cycling infrastructure and therefore mode shift away from polluting cars. He opposes bringing agriculture into the ETS and making farmers - our biggest polluters - pay their way. And he today he added a few more things to the list:

Christopher Luxon has reaffirmed National's policy of overturning the ban on issuing new permits for offshore oil and gas exploration, saying it is a solution to New Zealand's energy crisis. He also suggested his big tax cut policy could change by the time of the next election.

The Government is currently grappling with the high cost of fossil fuels, driven by Russia's invasion of Ukraine. While it is motorists and businesses who are currently most exposed to high transport costs, other fossil fuels like coal, which New Zealand burns for electricity, have also spiked.

Luxon said gas could be used as a bridging fuel, and said the Government should scrap its 2018 decision to stop issuing permits for oil and gas exploration offshore.

Gas as a "bridge fuel" sounded OK 20 years ago (and indeed, its how the UK reduced its emissions: by swapping coal for gas). But this deep in the climate crisis, it is a recipe for disaster. We cannot afford to burn existing fossil fuel reserves if we want to survive, and the International Energy Association - historicly a pro-fossil fuel group - has said that all new development must cease immediately. So the problem with our offshore exploration ban isn't that it exists, its that it does not go far enough. Rather than repealing the ban, we need to extend it, and phase out fossil fuels entirely. Anything less is suicide.

As for Luxon, his continued support for fossil fuels and his opposition to any practical policy to limit emissions show that he is just a dirty old climate change denier (he's simply moved from denying physics to denying we need to do anything about it). And as such, he is unfit for any position of responsibility. He should not be a CEO, he should not be an MP, and he certainly should never be allowed to be our Prime Minister. Fortunately, with MMP, voters have the tool we need to defend ourselves against him.

More Labour secrecy

The government introduced a new Natural Hazards Insurance Bill today to replace EQC. And as has become depressingly usual from this government, it includes a secrecy clause. Section 113 of the bill requires insurers to pay levies to the new Natural Hazards Commission. Section 118 of the bill requires them to keep that information secret, on pain of a $50,000 fine.

The clause essentially re-enacts section 25 of the old Earthquake Commission Act 1993, but with a significantly higher penalty (the penalty under the current Act is a $1,000 fine). But that isn't a justification. The information covered by the secrecy clause is obviously commercially sensitive, and its provision is compelled by an enactment. It can therefore be withheld under sections 9(2)(b)(ii) and 9(2)(ba) of the Official Information Act. While a public interest test applies, its hard to see how the usual public interests of transparency, accountability, and participation apply, so really it would only be disclosed where there was evidence of fraud. Which seems like the right level of protection (interestingly, as written the secrecy clause seems to forbid disclosure to the SFO if the Commission believes there has been fraud). A statutory secrecy clause basicly signals that the government does not trust the OIA, or the Ombudsman, or the public. And that's not something we should accept from our government.

Member's Day

Today is a member's day. First up is the Paige Harris Birth Registration Bill, an uncontroversial private bill to properly recognise a particular child's parent. Its being whizzed through with all its final stages taken as one debate after a lightning short select committee stage. No-one opposes giving this family some dignity, so I expect debate will be pretty short (not least because MPs may be saving it for Coffey's bill later).

Following that is the third reading of Louisa Wall's Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill, which will be followed by the rest of the second reading of Steph Lewis' Biosecurity (Information for Incoming Passengers) Amendment Bill. Following that the House should get most of the way through Nicola Willis' Unit Titles (Strengthening Body Corporate Governance and Other Matters) Amendment Bill. If things move quickly, the House should make a start of Tāmati Coffey's Improving Arrangements for Surrogacy Bill, which (in part) addresses the general issues raised by the Paige Harris bill. Its a worthy bill, and I'm hoping it passes.

There are still plenty of first readings on the order paper, so there won't be a ballot tomorrow.

Climate Change: A convenient "error"

Last year, the government released its draft emissions reduction plan. The plan further weakened the Climate Commission's already-weak emissions budget, allowing an extra two million tons of pollution over 2022-25. The "justification" for this was supposedly that "landowners and forest managers [plan] to increase afforestation and decrease deforestation". That explanation was pretty fishy in and of itself - more trees means lower emissions, not higher - but its worse than that: it was simply a lie:

In October, the Government suggested the first budget (2022-25) be loosened, with later budgets tightened, citing a survey of forest owners as justification. But Stuff discovered the data does not support official statements.

The Ministry for Primary Industries (MPI) drafted the faulty explanation in documents provided to the public and Cabinet – who pre-approved the change to the country’s draft budgets. In a statement, the ministry admitted the mistake, which it attributed to “genuine human error”.

The error could mean the 2022-25 budget is brought back in line with the commission’s original advice, after Stuff raised the issue with officials and the Climate Change Minister.

While the public was told that newly planted forests were to blame for the extra pollution in the 2022-25 budget, because the planting would release soil carbon, ministry data shows that an increased appetite to chop down trees is the driving factor.

The Stuff article has more details, but basicly MPI massaged away the increase in deforestation, pretending that it was decreasing, while attributing increased emissions to planting more trees. As noted above, MPI says this was a "genuine human error". Whether that is really believable given their history of total industry capture and opposition to climate action is left as an exercise for the reader.

The good news is that the budget is yet to be finalised, and Cabinet has an opportunity to reverse this change. And hopefully they will. Because fundamentally, the idea that the budget should be increased because polluters plan to pollute more is self-defeating and morally bankrupt. And rather than saying "OK, go ahead", Ministers should be pointing at the ETS cap and saying "good luck with that".

Climate Change: No duty of care in Australia

Last year, in a victory for the climate movement, an Australian court ruled that ministers owe young people a duty of care over climate change. But today, that ruling was overturned by the Federal Court:

The Federal Environment Minister Sussan Ley does not have a duty of care to protect young people from climate change harm when considering fossil fuel projects, such as mines, a court has ruled.

The ruling of the full bench of the Federal Court overturned an earlier decision that found in favour of eight teenagers who brought a class-action case that challenged a proposal by Whitehaven Coal to extend its Vickery coal mine, near Boggabri in NSW.

[...]

“The court is unanimous in the view that the duty should not be imposed upon the Minister. The three judgments of the court have different emphases as to why this conclusion should be reached,” Chief Justice James Allsop said in his judgment on Tuesday.

Which immediately invites the question: if the government doesn't have a duty of care to the young, what exactly is it for? Unfortunately, in Australia the answer appears to be "protecting the profits of old, rich, fossil-fuel polluters".

Making the costs clear

The government today has buckled to right-wing pressure, and "temporarily" cut fuel excise taxes. But at the same time, they're halving the price of public transport for the same period. And the relative costs of these policies are interesting:

[Finance Minister Grant Robertson] said the $350m cost of the petrol change would be met by reprioritised spending from the Covid-19 response fund – notably the smaller expected spend on managed isolation.

The public transport subsidy would cost between $25m and $40m and would also be met from the Covid-19 response fund.

Which seems really, really cheap, and suggests that a full "free fares" policy would cost only ~$200 - $320 million a year at current useage rates. That would be a hefty chunk of the government's $4.5 billion, four-year decarbonisation fund, but given the importance of transport in our emissions, it might be worth it to promote the mode-shift we desperately need. And the current reduction is certainly going to provide some hard data on how public transport use responds to price changes.

It also puts a ballpark on what it would cost to provide free public transport for everyone, that is, if the mode shift is wildly successful, most people in cities use public transport, and only rurals regularly use cars anymore. This would mean a roughly tenfold increase in public transport useage (some people walk and cycle, remember), so ~$2 - $3.2 billion a year. Which is an awful lot of money, but by comparison the government spent $5.3 billion on motorways in 2020, and you don't need nearly as many of them when people are using buses and trains (or rather, you don't need them as big, or to spend as much on maintenance). In other words, this looks like a transition we could make in the long term, without breaking the bank. And we could certainly afford to make it halfway, let alone to Climate Commission's 2030 target of a 120% increase in public transport use. It is just a question of priorities.

Copyright term extension violates the BORA

Last night I did a last-minute submission on the international treaty examination of the UK-NZ Free Trade Agreement, focusing on the issue of Labour's sneaky extension of the copyright term. After making the obvious points that this was not in our interests (the FTA's National Interest Analysis is pretty explicit on that) and that it was undemocratic to make this sort of change via an FTA, I noticed that the NIA said there was "[n]o effect on human rights in New Zealand". Which led to another point: extending the copyright term violates the BORA.

Copyright is a restriction on freedom of expression. Restricting the right to disseminate and distribute copyrighted works to their owners is clearly a limitation on the right to receive and impart information affirmed in section 14 of the BORA. It does this so that creators can make money and earn a living, thus incentivising the creation of further works.

As we've seen in the case of vaccine mandates, a limitation on a right may be justifiable if it is a "reasonable limi[t] prescribed by law as can be demonstrably justified in a free and democratic society". This means that it must serve an important public purpose, and be rationally connected to and proportionate to that purpose, and impair the right no more than is reasonably necessary for that purpose.

Incentivising the creation of cultural works is clearly an important public purpose, and a limited period of exclusivity is clearly rationally connected to that purpose. The question is one of proportionality: how long should that period of exclusivity be? There is obviously a range of possible answers here, depending on how the copyright term is structured, but the important thing to note here is that we are talking about a change. And it is clear that if a longer term would not result in a greater incentive for the creation of new works, then it is disproportionate. And on that point, we can just look at the NIA, which says explicitly:

there is no evidence that increasing the term of protection for copyright and related rights would incentivise either the creation of new copyright works or the dissemination of older works (which are the primary policy goals of copyright protection).

This is effectively an admission of disproportionality, and therefore of inconsistency with the BORA. Under the BORA, Parliament is the first guardian of our rights, in that it is supposed to scrutinise proposed legislation and not pass laws which are inconsistent with it. It needs to do its job here, and reject England's copyright extension. And if it doesn't, then this seems to be a prime case for a declaration of inconsistency in future.

Meanwhile, I'm wondering where the hell MFAT gets off on proposing a treaty which is inconsistent with our constitution (because that's what the BORA is: a key part of our constitution). The answer is probably that they just didn't think about it - FTA's are about money, not human rights. But its their job to think about it: the BORA imposes standing obligations on all branches of our government at all times. At the least, this means that it should not make agreements contrary to the BORA as a matter of public policy, but I would go further and argue that it does not have the legal power to make such agreements at all (basicly running the "contracts are subject to statutory obligations" line of Wyatt Co (NZ) Ltd v Queenstown-Lakes District Council, but on MFAT and the BORA, rather than on a local body and the OIA). Either way, MFAT appears to have overstepped here, and we need to know what safeguards they have to prevent them from doing so in future.

Stop giving personal information to Ministers

When Charlotte Bellis complained about MIQ, Covid Minister Chris Hipkins leaked private information about her in an effort to smear her. Now, the Herald reports that he did it despite being specifically told not to:

Covid-19 Response Minister Chris Hipkins publicly disclosed private information about Kiwi journalist Charlotte Bellis who was stuck overseas despite officials telling him it was "not for public comment".

Meanwhile in Question Time today Hipkins is suddenly clamming up, refusing to discuss why he disclosed personal information because it is "not in the public interest to do so". Its a fine example of how Ministers consistently conflate the public interest with their own personal political interests, while ignoring the actual public interest in accountability. But when have politicians ever really been interested in that?

This is just the latest case of Ministers leaking personal information for political advantage (or simply petty revenge), and it is clear that it is a consistent problem across our political culture. Once Ministers have tagged someone as an "enemy", they lack both the ethics and self-control to resist smearing with whatever weapon is at hand. Agencies sticking warnings on such information is clearly not effective in preventing such abuse. The solution seems obvious: if Ministers cannot be trusted with personal information, agencies simply should not give it to them.

Another starving watchdog

The Independent Police Conduct Authority is meant to investigate complaints against police and uncover illegal behaviour. But it is collapsing under the weight of complaints, with 50% staff turnover:

Police’s independent watchdog is facing “material risk” in its ability to deliver its core functions amid a 64 per cent rise in complaints over three years, meaning a new plan to promote its services to vulnerable communities remains on hold.

The Independent Police Conduct Authority expects the number of complaints will continue to increase, after recording 4257 complaints for the 2020/2021 year, up from 2592 in 2017/2018.

[...]

In a meeting with the Ministry of Justice last October, the authority reported the increasing demand was causing capacity restraints and impacting its ability to deliver its core functions in a timely manner.

The most obvious reason for this is underfunding. While the IPCA has received a small budget increase over the last few years (from $4.1 million in 2017/18 to $5.7 million in 2021), that's clearly nowhere near the increase in workload, or enough to retain staff. And the result is that they're in the same position the Ombudsman was in a few years ago: constantly trying to do more with less, and failing as a result. And pretty obviously, this has an effect on public confidence in both the IPCA and the police. If the government wants to stop that erosion of confidence, it needs to increase the IPCA's funding so it can actually do its job properly, rather than just starving it. And if its wondering how to fund that, actually sacking police officers found by the IPCA to have broken the law would free up some money...

Decarbonisation for peace

When Vladimir Putin invaded Ukraine, people were quick to point out that his war was funded by fossil fuels. 60% of Russia's export revenue comes from oil and gas. Europe's dependence on Russian gas is effectively funding Putin's war to the tune of US$285 million a day. Cutting that revenue would limit Russia's ability to wage war and commit acts of aggression against its neighbours.

Meanwhile, we are in the middle of a climate crisis, and desperately need to reduce global emissions to avoid destroying our civilisation and making the planet uninhabitable. And suddenly, the solution to one of these problems is looking like the solution to the other. The US has banned Russian oil. The UK is doing the same. The EU is cutting its dependence on Russian gas. In all three cases, making things work is going to require crash investment in decarbonisation - renewables, energy efficiency and EVs - to avoid significant damage. Meaning a permanent shift away from fossil fuels, and permanent emissions reductions.

But its not just Russia: globally, some of our worst tyrannies - Saudi Arabia, Syria, Iran, Venezuela - are petrocracies, and rely on oil revenues to fund their wars and repression. (The USA, the world's largest oil producer, also engages in wars of aggression, but it is not a petrostate like the others are). Again, cutting those revenues will make them less powerful, less capable of hurting their own people or others. Reducing emissions is a way of defunding war everywhere. Sadly, it has taken a major war of aggression to remind everyone of this. But now it has been bought to our attention, we should seize the opportunity, decarbonise, and watch the tyrants shrivel.

Ending restraint of trade clauses

Back in January journalist Tova O’Brien became the public face of "restraint of trade" clauses when she was banned from working for two months. O’Brien was a high-paid journalist, so it mattered less, but the case highlighted the growing use of these clauses by New Zealand bosses eager to retain a captive labour force. Now Labour's Helen White has put up a bill which would effectively gut them.

The Employment Relations (Restraint of Trade) Amendment Bill would do three things: limit the use of these clauses to cases where employers actually have a "proprietary interest" which is specified in the contract, make them completely ineffective where people are paid less than three times the minimum wage (so around $125,000 a year, assuming a 37.5 hour working week), and where they are effective, require employers to continue to pay the worker at least half their regular salary for the duration. So it should end the bullshit of trying to lock in low-paid workers, while imposing a real cost on employers of high-paid workers who want to do so. The requirement to specify the interest supposedly protected (and for restrictions which are no greater than necessary) will also make such clauses far easier to challenge.

This bill looks good and necessary, and hopefully it will be drawn from the ballot soon.

Rules for effective OIA requests

After seeing one too many terrible requests over FYI, I've tried to put together some basic rules on how to make an effective OIA request. These are really aimed at beginners, and intended to help them avoid unnecessary frustration by avoiding common pitfalls (because there's more than enough frustration in the OIA process, and we can at least avoid inflicting it on ourselves).

1. Don't rant: I've seen far too many requests introduce their subject with an angry tirade, filled with hostility and accusations. Don't do this. For a start, its being an arsehole, and that's never a good approach when you want something from someone. While "requester was an arsehole" is not a valid withholding ground under the OIA, it certainly primes the people processing your request to think of it as vexatious from the start, and it is not going to encourage them to be extra-helpful in the way you want them to be. Secondly, its a distraction. A frothing rant may feel good when you type it, but it distracts from the focus of your request, and makes it harder to work out what exactly you are asking for. And you will likely get a worse answer as a result.

   What should you do? The OIA is a process for requesting information, so request information. If you are asking for a specific document, don't waste space on a preamble, just ask for it. If your request is less specific, then you may need to provide context, but keep it to a minimum. Lots of my requests are sparked by media stories, so I usually go for an intro like "Today Stuff reported that X (ref to headline so they can see what I'm talking about). I would like to request the following information under the OIA..." - and that's enough. You don't need to write a huge introduction, let alone an angry rant.

2. Know exactly what you are looking for: This is easier said than done, and not helpful advice to beginners, but pretty obviously if you know how government works and what sort of information it generates and where, you can get more value out of the OIA and be more effective.

   What if you don't? I didn't when I started out, so I made requests asking for "all advice and communications" on a particular policy. That's a useful phrase, but in some cases it may turn up a bit much, and the agency may ask you for a specific timeframe or whether you want emails. If you're not sure exactly what you're after, its better to narrow the request rather than risk a refusal for "substantial collation and research". After all, you can always ask for the other stuff later. And as you build up specialist knowledge in your area of interest, you'll get more of an idea of what might be there to find.

   Whatever you are requesting, be as clear as possible about it, since this will avoid mutual frustration over misinterpretation later.

3. Ask the right agency: If you ask the wrong agency, they have a duty to transfer the request, which is another 10 working days and some unnecessary frustration. You can avoid that by asking the right agency in the first place. Again, knowing how government works and which agency does what helps here. If you don't, who to ask should be apparent from the circumstances that provoked the request (a media story will usually suggest who to ask, a consultation process will be run by some particular department, and if you've had unsatisfactory dealings with an agency then they will hold the information about their policies and procedures). If you're still not sure, there is a thing called the Directory of Official Information, which lists all government agencies, what they do, and what types of information they hold.

4. Know what you can get: The OIA includes numerous withholding grounds, and some of your request may be redacted or refused (you can challenge such refusals via the Ombudsman, but that's really beyond the scope of this post; if you want to learn to be effective at that, start reading the Ombudsman's guidelines)

   Requests for the following information will almost always be refused, and so it probably isn't worth asking for unless you specifically plan to challenge a refusal:

   • "national security" stuff
   • specific communications with other countries
   • details of active criminal investigations / court cases
   • upcoming budget docs
   • legal advice

   Other things you shouldn't bother asking for: court records, and stuff clearly done by politicians in a "political" (party leader / MP) or personal capacity rather than in their capacity as a Minister (e.g. coalition negotiations, where they went on holiday, what they had for lunch). Neither of these are "official information" in terms of the Act, and you can't get them via the OIA.

The massive cost of climate change

How much will climate change cost us? Waikato Regional Council looked at just one aspect - coastal defences for a handful of Coromandel holiday towns - and found it would cost them $1.1 billion:

[W]hile there are no ballpark costings done yet on a regional basis, a new report is hinting they could be a very hefty burden for ratepayers and other funders.

Information prepared for this week’s Waikato Regional Council climate action committee says there’s a potential $1.1 billion price tag up to 2120 for coastal defence works at eight key Coromandel sites.

To put that in context, that's 10% of WRC's entire rates income, every year, for a century. And that's just to protect these eight towns. The real cost - fire, flooding, relocating infrastructure - will be substantially higher. And that's just one local authority. Other councils all around the country will be facing similar costs, which will likely only get higher as climate change begins to bite.

The "keep rates low" brigade will no doubt be pushing for us (or rather, them) not to pay those costs, or not to pay them yet. Which means pushing them onto future generations, or paying them in fire and flood and cleanup, or in reduced quality of life (or all of the above). But one way or another, we will be paying them; the only question is how.

Of course, we could reduce the amount we have to pay, by reducing emissions instead, and encouraging other countries to do the same. Rapidly cutting the most damaging greenhouse gas - methane - will substantially reduce warming, hence damage and the cost of protecting against it. That means polluters paying now. But that seems significantly fairer, since the costs of climate change are really costs polluters are dumping on the rest of us. The polluters made this problem, so as far as possible, they should be the ones to pay for it.

The selfishness of tax cuts

National leader Chris "I used to run an airline" Luxon gave a state of the nation address on Sunday, in which he proposed National's bold new policy to solve New Zealand's problems: tax cuts for the rich!

[Luxon] also promised National would repeal every extra tax hike or added levy the Labour Government had imposed, since 2017.

That would see the removal of Auckland’s fuel tax.

It would also see the removal of the 10-year extension to the “bright line test”, which imposes what is effectively a capital gains tax on people selling investment properties within 10 years of buying them.

He said it was unfair for the Government to have removed interest deductibility on rental properties.

(He also promised indexing tax thresholds to inflation, which is a bit meh. Adjustment is something the government needs to do every so often, and whether it is periodic or automatic is a question of how much you like automatic stabilisers...)

Labour's main income tax change has been a new top tax rate for high earners. Reversing it would benefit those high earners. Ditto reversing the extension of the bright line test, and restoring interest deductibility - effectively a subsidy to landleeches. So Luxon is nakedly promising to redistribute income upwards to benefit people like himself, at the expense of everyone else.

And it will be at the expense of everyone else, because taxes pay for things: schools. Hospitals. Public transport. Pensions. Cutting taxes on the rich means the money will be ripped right out of those things, hurting people like you and me, so a bunch of rich pricks like Luxon can compare the size of their pile and buy themselves another yacht.

Taxes also discourage things we don't want, like fossil fuels and utes and house hoarding. Cutting those taxes will mean we have more of those bad things, so that old rich people can keep destroying the planet and sucking us dry through parasitic landlordism.

The biggest effect though would be to starve the government of resources right when we are facing multiple crises. We have covid, a housing crisis and climate change, and fixing or mitigating all of these needs money: money to fund our health response, money to build state houses to protect people from landlords, money to decarbonise our economy and reduce emissions, money to rebuild and relocate infrastructure (and entire towns) because anything less than 2 metres above sea level is at risk and needs to moved or protected. The clear implication of Luxon's demand to cut taxes is that he doesn't want us to solve these problems. Or rather, he thinks rich people getting another BMW is more important than us not dying of covid, than us having secure and affordable housing, than us not burning down or flooding (or both) due to the methane spewed into the atmosphere by his farmer friends. Its a completely selfish worldview. But isn't that what National ultimately stands for?

Why Labour buried the OIA review

Why did Labour bury its promised review of the OIA? When the news first broke, it was about priorities: the Ministry of Justice was simply too busy with other things. A subsequent OIA release made it clear that austerity was partly to blame: years of penny-pinching by successive governments had eroded MoJ's policy capacity, to the extent it was unable to meet Ministerial demands for advice and was forced to prioritise. But now, a further release forced by the Ombudsman has made it clear: Labour killed the OIA review so MoJ could focus on the "higher priority" of giving them a four-year term.

The link is explicitly made in a less-redacted copy of a 2020 briefing on "Policy Projects". After noting the need to prioritise due to lack of capacity, the briefing included a table of projects that could be deferred. Only the OIA review line is shown (the rest being out of scope of the request), but it explicitly links deferral to the new government's "electoral projects":

What were the government's "electoral projects"? Back in December 2020 when this briefing was prepared, it included controversial changes to MMP to make the system less representative, and a surprise proposal to extend the parliamentary term from three to four years, reducing the accountability of politicians. So a project intended to improve accountability was killed in favour of one to reduce it. Which I guess shows exactly how much of a priority they place on being "the most open, most transparent Government that New Zealand has ever had"...

No accountability means no confidence III

Its a given in New Zealand that when the police break the law, they refuse to prosecute their own. Even when the Independent Police Conduct Authority makes findings amounting to criminal behaviour, the police at best respond with a "confidential employment process", the outcome of which is kept secret. This undermines public confidence in the police, because there cannot be confidence without public accountability. A few years ago, after reading two appalling IPCA reports in quick succession which detailed seriously illegal (and arguably criminal) behaviour by police, I challenged this, lodging an OIA request seeking the outcome of those employment processes to see whether there had in fact been any accountability at all. The police refused, though they did confirm that "all the officers involved in both incidents remain employees of NZ Police".

Now, after an Ombudsman's complaint, they've finally been forced to release a "summary" of the relevant employment outcomes. "Remedial action" was taken against officers in both cases, though there are no details as to the nature of that action. Whether this builds public confidence in the police's handling of crimes by their own is left as an exercise for the reader.

While this seems to be an unsatisfying outcome, it has at least established a precedent that police must provide summaries where they take employment action. Hopefully people will start doing that whenever the IPCA publishes a report.

Send Putin to The Hague

The International Criminal Court has formally opened an investigation into war crimes in Ukraine, after being asked to by 39 countries:

The prosecutor of the international criminal court (ICC) in The Hague has announced that he will launch an investigation into possible war crimes or crimes against humanity in Ukraine.

Karim Khan said that although Ukraine was not a member of the ICC, it had awarded jurisdiction to the court. He said that there was grounds to open an investigation based on a previous preliminary investigation on Crimea and the Donbas published last year, and on current events in Ukraine.

“I have already tasked my team to explore all evidence preservation opportunities,” Khan, a British lawyer, said.

Which is good, because war crimes and crimes against humanity are undoubtedly being committed by Russian forces in Ukraine, and they need to be prosecuted. But thanks to a quirk of the Rome Statute, the real crime here - the crime of aggression ( "the supreme international crime" which "contains within itself the accumulated evil of the whole") - will not be part of the investigation. Neither Ukraine or Russia is a party to the Rome Statute (though Ukraine has accepted jurisdiction), so the ICC cannot prosecute for aggression. Which means firstly, that we need to reform the Rome Statute so that it can; and secondly, that until that happens, we will need a special-purpose tribunal to prosecute this crime and hold Putin accountable.

The IPCA is a joke

Another day, another IPCA finding that police unlawfully arrested and assaulted someone. And as usual, the police simply refuse to accept the finding:

The arrest of a man using excessing force and resulting in a head injury was not justified, an investigation has found.

The Independent Police Conduct Authority said the arrest last year in the early hours of Sunday 27 February on Wellington's Courtenay Place was not lawful.

[...]

Meanwhile the police have again denied the arrest was unlawful, and sought legal advice in the decision.

Acting Wellington District Commander Tracey Thompson said police are satisfied staff made the right decision that night.

If you or I knocked someone over, causing a head injury, then stuck them in a truck and locked them in a room, that would be assault and kidnapping and we would be charged. But repeatedly, the police refuse to acknowledge breaking the law, and on the rare occasions when they do, decide that it is "not in the public interest" to prosecute their own, hiding behind a "confidential employment process" (though in this case they didn't even bother doing that). And when the IPCA tells them they're wrong, they just ignore it.

This is not acceptable. The IPCA exists to provide oversight of the police. It is therefore incumbent on the police to accept their oversight body's decisions (just as the SIS must accept the decisions of IGIS). I've argued for a long time that the IGIS needs independent powers to prosecute police staff where police won't; its clear we also need to extend that to include the employment relationship, and allow them to discipline and fire officers where they have made a finding against them (and discipline and fire officers who cover for them). Otherwise, this institutional corruption in the police will never end.

The NOIAs

This government has promised to be "the most open and transparent government ever". But its practice seems to be diverging further and further from that ideal. Now, the Media Freedom Committee has launched a new series of awards recognising this:

The NOIAs (No Information Awards) are the creation of the Media Freedom Committee, the pan-industry group representing national publishing and broadcasting outlets, including NZME media outlets the New Zealand Herald and Newstalk ZB.

Journalists working for organisations represented on the committee are invited to nominate examples of particularly frustrating interactions with communications staff and officials, primarily involving requests submitted under the Official Information Act (OIA) and Local Government Official Information and Meetings Act.

[...]

Categories in the inaugural NOIAs include the Terrier Award, for the most tenacious journalist; the All Black Award, for the most redacted OIA response; and the If You Didn't Laugh Award, for the funniest reason for a response being rejected.

"We do want to acknowledge that there are lots of hard-working people doing their best to help journalists too," added Alexander. "That's why we're including a 'Little Ray Of Sunshine' award for the individual who has gone above and beyond in their commitment to transparency."

Sadly, only members of the MFC can nominate. Otherwise, I have a few suggestions...

Thoughts on a riot

Like a lot of Aotearoa, I spent today watching the police's efforts to clear the anti-vaxx / pro-Nazi occupation from Parliament and surrounding streets. Initially, it was mostly pushing and shoving, with some fire extinguishers and pepper-spray when things got heated. But after police began to take back Parliament grounds, it rapidly devolved into a full-on riot, with occupiers setting fires and throwing metal poles and cobblestones at police. They burned the Parliamentary playground, and tried to burn down the Old Government Building, the largest wooden building in the southern hemisphere. At one stage, they (again) tried to use a car as a weapon, reversing rapidly into a police line. I am amazed that no-one was killed.

It was probably always going to end this way. This occupation was violent from the start, with nooses, death threats, and execution lists from day one, and (fortunately muppetlike) attempt to storm Parliament in the first few days. As it embedded itself, it harassed and intimidated locals, while relying on the persistent threats of violence to discourage police action. And when the police finally did take action to stop it from taking over the streets and making them unsafe for local residents, the occupiers escalated their violence, throwing shit and acid and driving cars at police lines. This was just more of the same.

In the aftermath, I'm concerned about what this will mean for the right to protest, and particularly the right to protest at Parliament, where the government has to see you. Speaker of the House Trevor Mallard is already talking about turning it into a walled fortress, allowing the government to lock the gate whenever it doesn't want to hear from the peasants, and in the wake of this shitshow - which was nothing like any protest I have ever seen before in Wellington - he might be allowed to. A better idea would be to focus on the actual problem, and block cars, not people, either temporarily when required, or by pedestrianising the entire government precinct. Parliament's grounds are the People's Lawn, a taonga, and Mallard needs to guard them on our behalf, not try and lock them away from us.

I'm also concerned about what it means for police use of force. Generally, this was very restrained (which is good), but the final stages saw the police using rubber bullets on the streets against stone-throwing rioters. Which is not something I recall happening before in Aotearoa, and seems to be a significant escalation. It may have been a justified and proportionate use of force - cobblestones can cause serious injury, or even kill - but no-one should be comfortable with it, and we should all be deeply concerned that the police will start taking such weapons to protests in future, rather than keeping them in reserve for extreme situations (its bad enough that they're allowed to take tasers, which should never be required at any normal protest in Aotearoa).

Finally, I hope the "celebrities", media figures, and politicians who enabled and excused this shitshow are taking a good, hard look at themselves at the moment. Today's events may not have been what people like David Seymour or rich white boat dude intended, but its how it ended up, and the public are fully entitled to judge them for their role in it, both politically and socially. If you were a friend to the occupiers, you should expect to have no friends now, because that stench sticks. And if they don't like that, well, maybe they should have shown a bit more care in their choice of friends.

Climate Change: Our future is on the line

The Intergovernmental Panel on Climate Change has released the next part of its Sixth Assessment Report, on Impacts, Adaptation and Vulnerability, and its grim. Fire, flood, famine, plague, sea-level rise, wet-bulbing, and that's just if we stay below 1.5 degrees. If we go higher - and we seem to be on that path at the moment - then things are going to be even worse. The Summary for Policymakers ends with a very strong and simple statement:

The cumulative scientific evidence is unequivocal: Climate change is a threat to human well-being and planetary health. Any further delay in concerted anticipatory global action on adaptation and mitigation will miss a brief and rapidly closing window of opportunity to secure a liveable and sustainable future for all.

The quicker we act, the less bad things will be. And we know what action we need to take: massive and rapid decarbonisation of the global energy system, which means the complete destruction of the global fossil fuel industry. Interestingly, the solutions to our crises are combining: Russia's invasion of Ukraine is funded by oil and gas revenues, so decarbonisation is also a measure for a more peaceful world. And it seems the government of Germany recognises that, bringing forward its 100% renewables target by 15 years so they can get off Russian gas.

In Aotearoa, our government finally has the beginnings of a policy. But it needs to use this as an opportunity to increase its ambition, and push further and faster for decarbonisation. We clearly can do it; the question is cost and who pays for it. And the government is still dragging its feet, trying to do things on the cheap and protect polluters like the dairy industry. But if we are to have a liveable future, we need to drive these ecological criminals out of business. And the longer we delay in doing so, the worse things will be.

Locking away our culture

Back in October, we learned that the government had reached an "in-principle" free trade agreement with the UK. This morning, we learned that they signed it. Unfortunately the deal includes an extension of the copyright term from 50 to 70 years, threatening to lock away major cultural works which are soon due out of copyright (such as James K Baxter and Bruce Mason, plus Tolkien, Christie and Wodehouse from overseas) for an additional 20 years. Its pure rent-seeking by the copyright-mafia, a 40% increase in how long they can continue to collect rent from the works they own. And it serves no public purpose; in the long list of "disadvantages" of the move, the National Interest Analysis (p 70) notes that

there is no evidence that increasing the term of protection for copyright and related rights would incentivise either the creation of new copyright works or the dissemination of older works (which are the primary policy goals of copyright protection).

The sole good news is that the extension will not apply to works already in the public domain. Combined with a 15 year implementation period, this means that if we drag our feet, we can get those works out and in public so that everyone can use them. That implementation period is also 15 years we have to lobby for the change to be reversed, and for a shorter copyright term in general.

So why did we sign up for it. Essentially because MFAT negotiators gain status and prestige from cutting deals, and saw this as something they could just trade away. But it also seems to be a perfect example of undemocratic (and hence illegitimate) foreign policy, and an example of why we need transparency in trade negotiations: so our government - or our unelected bureaucrats - can't trade stuff away without our consent.