(Some) justice for "three strikes"

Last year, the Supreme Court ruled on National's (now-repealed) unjust "three strikes" law, and ruled that the sentences it required were so disproportionate as to "shock the conscience" and violate the Bill of Rights Act ban on disproportionately severe treatment or punishment. Today, they've the High Court has ruled that the victim of that injustice - a mentally impaired man who spent almost five years in prison - should never have been charged at all. They've awarded him $450,000 in damages, which will help, but the injustice still remains. Why? Because despite ruling that he should never have been charged, the conviction and resulting sentence still stand. Pretty obviously, if he should never have been charged, then he should also never have been convicted or sentenced. But that would involve the courts accepting responsibility for their part in this abuse, which they seem reluctant to do. The press summary notes that "in an unrelated case, the Supreme Court has held that judicial acts (such as sentencing) cannot found a claim under the NZBORA", and this seems like a completely self-serving decision explicitly at odds with the clear wording of s3(a), which states that the BORA applies to acts of "the legislative, executive, or judicial branches of the Government of New Zealand" [emphasis added]. But I guess that's another example of how the legal profession is all about making words mean things that they don't, or not mean things that they do.

This case raises more questions. The job of "crown prosecutor" is weirdly contracted out to private law firms, so the obvious question is whether that contractor - who has manifestly failed to do their job properly - will be rehired, or whether the contract will be terminated. The other question is whether they will be paying for it, or whether the taxpayer will be carrying the can for their failure. Because the latter seems utterly unacceptable.

Finally, a ruling that prosecutorial decisions are bound by the BORA ought to result in some change, which will be welcome. But the decision also has obvious application to mutual assistance and extradition cases where someone may be subject to disproportionately severe treatment or punishment. And hopefully that will act as a deterrent to legal cooperation with cruel foreign regimes like the USA or China.

Correction: This was a High Court decision, not a Supreme Court one.

More Labour secrecy

Today the government introduced its Worker Protection (Migrant and Other Employees) Bill to the House. And as has become sadly common for this government, it includes another secrecy clause. To help Immigration do their job and ensure migrant workers are being paid, there's a power enabling them to obtain employment documents like wage and time records from employers. And then there's a clause forbidding them from disclosing that information to anyone, which implicitly over-rides the OIA.

You may be wondering what the problem is here - after all, this information is private and commercially sensitive and there's a clear government interest in being able to continue to obtain it. Sure. But those interests are already protected by the OIA - they are literally the first three other withholding grounds. The OIA doesn't make it absolutely secret - withholding is subject to the public-interest override. But given the type of information involved, the circumstances where that would come into play are basicly where there has been some massive fraud or fuckup, basicly where people have lied and holding them accountable trumps any interest in privacy. And even then, I expect it would have to go to the Ombudsman, or to the courts. What Labour's secrecy clause tells us is that they do not trust those institutions to make the right decisions about this information. It's just control-freakery, which makes the executive unaccountable to the agencies which are meant to oversee it.

Public Sector Minister Chris Hipkins is on-record as being concerned about secrecy clauses and wanting safeguards against them so they're not used willy-nilly. Clearly that hasn't happened here. Whether he was lying, or just useless, is left as an exercise for the reader.

If we can't trust the Ombudsman, who can we trust?

This post has been updated; please see the information at the bottom of the post.

Today the Ombudsman released Ready or Not, a followup to their 2015 report Not a Game of Hide and Seek. And the first revelation in it? That the Ombudsman lied to me.

Last year, I'd grown curious about what problems had been identified in Not a Game of Hide and Seek, and whether they were problems I was still seeing in agencies handling of requests. Unfortunately, unlike subsequent practice reports, the Ombudsman hadn't published these ones. So I asked for them. While the Ombudsman is not covered by the OIA, they have said that they wish to be, and will abide by its spirit, so there was reason to think that they would either release the reports, be spurred to publish them, or give me a reason why not. Instead, they explicitly denied that they existed:

In order to prevent any confusion, it should first be said that there are no individual reports for the twelve agencies you listed in your email. These agencies were investigated between December 2014 and November 2015 as part of the Not a game of hide and seek report. Therefore, there are no ‘subsequent practice reports’ available that relate to the Not a game of hide and seek report because they do not exist.

[Emphasis added]

So I was pretty shocked today to read this in the "Background" section of today's report:

As it was not practicable to examine in detail the practices of all government agencies subject to the Ombudsman’s jurisdiction, 12 government agencies were selected to investigate as being representative of central government agencies... The 12 agencies ultimately were provided with individual reports, and although these reports were not published, the agencies were provided with action points which, if implemented, would lead to improvements in OIA practice.

[Emphasis added]

I find it impossible to reconcile or explain these two statements. If the Ombudsman didn't want to waive investigative secrecy and release these reports, or felt that there was some other good reason to refuse, or had just decided that actually they didn't want to abide by the OIA on this occasion, they could have just said so. Instead, it appears that they lied to me (alternatively, they suffered from an unconscionable record-keeping failure which calls their basic competence into question). The Ombudsman rightly takes a very dim view of agencies who mislead requesters like this. So you can imagine how I feel about being misled by them. And it is Not A Good Look for an agency tasked with policing the integrity of government decision-making. After all, if we can't trust the Ombudsman, who can we trust?

Update (29 September 2022): I have now received a response from the Ombudsman. The key part:

I have now had an opportunity to review what has occurred. I can confirm that the advice you received last year simply was not correct. I apologise unreservedly for this error, which appears to have been the result of a process error.

[...]

In sum, I deeply regret that my staff provided you with incorrect information last year and trust that the above helps clarify the position. I have also reinforced to my staff that enquiries of this type ought to be referred to the staff within my office who hold the relevant information and are thus in the best position to help prepare a response to them, to help avoid mistakes of this nature in future.

They will not be releasing the original reports, and that's fine - they've given a good reason to withhold, and as they note they're not subject to the OIA anyway. And hopefully they won't be misleading people in the future.

The SFO and the right to silence

Newsroom today has an article asking Is the SFO too powerful for its own good?. The article is about the NZ First Foundation fraud trial, and much of it is about the allegation that Labour politicians were charged and questioned solely to protect the SFO from expected government moves to disestablish the agency. But the first part of the article talks about the SFO's compulsory examination regime, in which there is no privilege against self-incrimination, no right to silence (refusing to answer is a criminal offence punishable by up to a year in prison), and a secrecy clause preventing anyone questioned from talking about it.

As Newsroom notes, this is a pre-BORA law, and clearly inconsistent with it. Section 23(4)(b) affirms the right to silence of those arrested or detained, while s25(d) affirms the right of someone charged not to be compelled to be a witness or to confess guilt. But refusing to attend for questioning is a criminal offence, so those questioned are effectively detained, and where the powers are used against a suspect (rather than a third party like an accountant) then they are clearly used to compel people to give evidence against themselves. Which raises the obvious question: isn't it time we reviewed this law and replaced it with a BORA-consistent regime?

Interestingly, we kindof already have. A decade ago, when the government was first thinking of disestablishing the SFO and moving serious fraud investigation back into the police, the Search and Surveillance Act introduced a new system of "examination orders". But it has never been used - the police have never applied for or been granted such an order in a decade, preferring instead to pass cases where it might use such powers on to the (still-extant) SFO. But a consultation document for a 2016 review of the law provides a useful overview. The examination order regime had a clear focus on being used against third-parties and witnesses, to provide legal protection for those otherwise bound to confidentiality. It is questionable whether it can even be used against suspects. While there is no right to silence - something Parliament was deeply uncomfortable about and added safeguards as a result - the right against self-incrimination is not overturned. The regime is far from perfect - while compulsion may be required to overcome professional obligations, there seems to be other ways to do that without generally violating the right to silence, and an explicit statement that they cannot be used against suspects is required - but it would still be a marked improvement on the SFO's existing regime. It would also bring the SFO into compliance with the Search and Surveillance Act and all its caselaw about its relationship with the BORA. And that would seem to be a Good Thing.

The police are out of control

On Friday, RNZ carried a story about the police use of Auror, a private surveillance network. Police use it to track people and vehicles using ANPR, washing their hands of any legal restrictions or privacy obligations because the actual surveillance is being done by a private company. That's bad enough, but it gets worse: in at least one high-profile case, when police couldn't meet even Auror's lax standards to obtain information, they simply created false crime reports in order to get it:

Police falsely reported cars as stolen to gain access to powerful databases that record number plates when hunting for the women whose travel sparked the Northland Covid-19 lockdown last October.

Detectives identified the cars associated with the women then listed the vehicles as stolen which opened access to Automatic Number Plate Recognition systems operated by two private-sector companies with a massive network of CCTV cameras.

[...]

A spokesperson for Police National Headquarters said it was not known whether officers had falsely reported cars as stolen on other occasions so as to access the powerful network of cameras.

The government says they are "concerned", and so they ought to be. Because this smacks of a deep culture in the police of ignoring legal safeguards and telling whatever lies are required to get their man (or woman). We saw that culture on display when they falsely told Martyn Bradbury's bank that he had committed computer fraud in order to access his bank records. Most infamously, we saw it during the stitch-up of Arthur Allen Thomas, when the police simply planted evidence to secure a conviction. And like that latter example, this case was a serious crime. That fake police report was a false document. Merely making it with the intention that it be acted upon as genuine is forgery, punishable by up to three years imprisonment. Actually using it and causing someone to act upon it as if it were genuine is using forged documents, punishable by ten years imprisonment (other offences might also apply if the surveillance data obtained is viewed as a "property, privilege, service [or] benefit"). This is serious criminal behaviour, which is completely unacceptable from the police. But I expect the police will simply refuse to prosecute their own, even if the IPCA recommends it, and corruptly abuse their power to prevent one of the gang from being held to account.

As for Auror, using it to search for someone using ANPR is fairly clearly a "search" in the current legal understanding of the term (in that it clearly interferes with the reasonable expectation of privacy). And its worth noting that the GCSB requires an individualised warrant to search NSA databases for information about New Zealanders. The same rule should apply to police to search systems like Auror. And if that fucks Auror's business model, well, that's too bad. Circumventing warrant requirements should not be allowed to be sold as a service, and is not the sort of "disruption" and "disintermediation" that our society should tolerate.

Who to vote for in Palmerston North (2022)

My local body voting papers arrived earlier in the week, so its time for the usual post in which I try and work out who I'm voting for. Essential tools for this have been Vote Climate, which looks at climate and public transport policy; Policy.nz, which gives a more general overview, and FACT's roundup of media coverage of misinformation-linked candidates, which is an effective veto list (because I am not voting for rioters who want to spread disease and "make New Zealand ungovernable"). Policy-wise, I'm interested in climate change, public transport, and housing, and very uninterested in asset-stripping and under-investing in infrastructure (typically described as "keeping rates low") or in shit on the streets (so being opposed to Three Waters is a no-no). On top of that, I want a council which looks like Aotearoa, rather than a bunch of dead white males, so my general preference is to vote for women over men, young people over old ones, and anyone rather than a 65-year-old pakeha male called "John". Where does that leave me? Read on...

Mayor

Not much choice here this time. I don't especially like the incumbent, and refused to preference him last time, but there are only four candidates. One of whom of which is a diagnosed delusional psychotic and convicted child-beater, and another of whom is an anti-vaxxer conspiracy theorist who participated in the parliament riot. Which leaves Hussein Kikihounga-Ngot as the default anti-incumbent candidate. Unfortunately, he rates terribly on climate change, and his Herald interview makes it clear that he opposes three waters. Smith meanwhile identifies climate as the top priority. Shit, I'm going to have to vote for him, and grit my teeth to give Ngot a second preference because at least he's not actually insane. If only the Greens would run someone for mayor again, so I could feel enthusiastic about a candidate...

City Council

The opposite problem from mayor - 33 candidates chasing 13 positions, which is almost too much choice. Fortunately its easy to winnow the field. And I have clear choices at the top of the ballot - two Green and two Labour candidates who endorse each other for top preferences (because they understand STV). My real question there is whether there's anyone I want to put between those groups, either a a strong candidate or a "fuck you" to a party which has betrayed us, and who I put after them. At the other end of the ballot, Sam Walmsley, James Candish, and Dion Jensen are all VFF anti-vaxers, as is Mel Butler (check her Facebook page) and Murray Wellington (check his blurb), so they're all off the list. Nathan Wilson and Bruno Petrenas are climate-change deniers (or were in 2019). Les Fugle is a property developer who ignores resource consent requirements and whose solution to his legal battles with the council is to try and get elected to it (so: inherently conflicted). Jacinta Fraser and William Wood are both in the real estate industry, so are also inherently conflicted (and Wood has other flaws). Zakk Rokkanno promises to Do His Own Research on everything, and thinks that "cancel culture" is the biggest issue facing Palmerston North (which is a screaming red flag if ever I saw one). And once I've eliminated the overlapping "Keep Rates Low" and "anti-three waters" groups, as well as the stealth-Nats, religious fundamentalists from freaky anti-vaxx churches, and former soldiers (which seems to correlate with some scary stuff), I'm left with a very short list: the Green and Labour candidates, Rachel Bowen, Manjit Chawla, Atif Rahim (who is pro-three wasters), and Rhia Taonui. If I feel a need to pad, I might give a pity preference to Orphee Mickalad, who is good other than his opposition to three waters, and to Patrick Handcock, who is good but a former police officer and ACAB.

Horizons

Again not much choice here: five candidates for four positions. In previous years I've voted for Wiremu Te Awe Awe and Fiona Gordon as good environmental candidates, and I'll do so again. I've been reluctant to support Rachel Keedwell despite her environmental credentials because she was once an anti-fluoride campaigner, but regional councils no longer have any say over that, and she's been very clearly pro-vaccination, so I think I can vote for her. New candidate Bal Ghimire seems pretty inspiring. Former corrupt PN mayor and National MP Jono Naylor does not. Horizons still uses the archaic and unfair bloc vote system, and Naylor will be the one not getting my tick.

With the elimination of DHB's I don't need to waste time on that this year. I guess there's some benefit to centralisation after all.

Voting closes at noon on 8 October. They're using DX mail this year rather than NZ Post, so make sure you get the right box, or use the drop boxes at the council or mobile library. There's a map of drop-off points on the council website to help you find the nearest one.

Still striking for a future

In 2017, Labour leader Jacinda Ardern said that climate change was "my generation's nuclear-free moment" and promised action. In 2019 and 2021 school students walked out of classrooms to demand she deliver. And today, they walked out again, because she still hasn't.

The strikes are smaller today, because the movement has lost momentum due to covid. But everyone should be supporting them. The students' basic demand for a liveable future isn't just about their future, but ours as well. We're already experiencing the leading edge of the burning apocalyptic hellscape our elders have left us, and if you're under 80 you can expect to experience it getting worse and worse and worse. On top of the drumbeat of cyclones, droughts and floods, We've already seen megafires in Australia and the US, and megafloods in Pakistan. we haven't yet had out first city-scale wet-bulb event, but we all know its only a matter of time. Unless we stop it. Unless we make our governments stop it, with policy to quickly eliminate fossil fuels, decarbonise the economy, and remediate the damage that has already been done.

This demand for a liveable future is both just and achievable. We have the technology and the knowledge to get there. What stands in our way is a handful of billionaires, who would rather burn the earth than let things change. Our job is to make our governments work for us and not them. Protest is part of that. And if the government refuses to listen, and continues to support the destructive status quo, we should vote them out on their arses and get another one which will.

Fuck the economy

Stuff reports that bank economists are saying that 50,000 people need to be thrown out of work to control inflation:

The current labour market was “very, very tight”, [ANZ chief economist Sharon Zollner] said, and bringing down inflation required “some spare capacity” in the labour market.

It was a hard thing for the Reserve Bank to talk about, she said.

“It’s a difficult thing for them to talk about. To beat inflation, they require some people to lose their jobs. That’s a comms challenge right there,” she said.

Unemployment had not been this low since the 1980s, [head of private wealth at Craigs Investment Partners Mark] Lister said.

“You’ve got to cause some pain. You’ve got to create some unemployment,” he said.

The right's Big Lie has always been that what is good for the economy is good for everyone, and what is bad for it is bad for everyone. But if you've lived through the 80's, or the 90's, or the GFC, or Covid, you know that that simply isn't true. What's "good for the economy" only ever means what is good for the rich. Meanwhile, it tends to be very, very bad for everyone else. But if the price of protecting the value of the rich's hoarded wealth and stopping it from evaporating is to throw 50,000 people out of work and 50,000 families on the breadline, then I say "fuck the economy". Let it burn. We shouldn't pay to protect their privilege. And the politicians elected by our votes shouldn't try and make us (not if they want to keep their jobs).

And while we're at it, do you know what's deflationary, but doesn't throw 50,000 people out of work or cause a recession? Taxing rich people. Wealth taxes. Highly progressive income taxes. A windfall tax on excessive bank profits. But for some reason, we won't see economists pushing for those solutions. Which simply underlines how much of the profession are simply ideological mercenaries for the rich, who exist solely to wage class warfare against everyone else.

Labour: From disappointment to deceit

In the 1980's and 1990's, Aotearoa faced a succession of governments who brazenly lied to the public, promising one thing to get elected, then doing something completely different in office. As revenge, we inflicted MMP on politicians, to saddle them with coalition partners and deprive them of the absolute majorities which enabled this deceitful behaviour. And the politicians seemed to learn their lesson, avoiding such blatant public betrayals for a generation. But 25 years on, it seems the current government has forgotten that lesson. The combination of a previously-unheard of majority government with a legacy FPP party with a legacy FPP institutional culture has returned to the old ways of lying and deceit.

What lies? "My generation's nuclear-free moment". "The most open and transparent government ever". "No mines on conservation land". Change. These are all promises the government made, things it campaigned on, which the public therefore expected it to deliver. And instead of what was promised, we've got foot-dragging, pretended helplessness and more gas permits; more secrecy, more mines, and the status quo. Single-majority government has stripped them of any excuse for this failure - now they can no longer blame a hostile coalition partner, it is clear that Labour's failure to deliver is not due to practical inability, but to its own unwillingness. They've moved from being a government of disappointment to a government of active deceit.

(Oh, but they want a four-year term, so they can not do the things they've promised, but for longer!)

Which is why my reaction to Peter Dunne's Newsroom column arguing that Labour must make a bold, unpredictable move if it wants to win the next election was a bitter "they could try keeping their promises". And why I just laughed at Ardern's claim that she would make New Zealand's position clear if Russian diplomats confronted her at the UN. Unless she actually punches a Russian diplomat in the face or throws a purple dildo at them on the floor of the General Assembly, this is just another meaningless pleasant lie to be forgotten the moment the news cycle shifts. This government no longer means anything it says, and after years of disappointment and betrayal, we can no longer place any faith in anything it promises. Its the political equivalent of cash upfront now: either they deliver instantly, or its bullshit.

As for what can be done about it, one part of a solution is no more majority governments, because they enable this behaviour. But beyond that, Labour badly needs an electoral lesson. We need to take their majority off them, and saddle them with a coalition partner who will force them to actually do what they say they will do. Which, in the case of the promises they have broken, means the Greens and/or Te Pati Māori. And the best thing about this solution is that Labour will absolutely hate it.

Update: And when I posted this, I hadn't even seen Labour's latest: an explicit refusal to do something they promised to do. Why should we believe they are anything other than arrogant, self-entitled liars now?

Hoist by his own petard

In 2017, in response to being criticised by anonymous bloggers, then-Samoan Prime Minister Tuila'epa Sa'ilele Malielegaoi restored the archaic colonial offence of criminal libel to Samoa's statute book, ramming it through parliament in under an hour. Now, he's being prosecuted under his own law [paywalled]:

Police have perused a file on a defamation complaint against the Opposition Leader and forwarded it to the Attorney General’s Office for review, as it has recommended the veteran politician be charged.

[...]

Police Commissioner Auapaau Logoitino Filipo said the investigation has been completed and referred to the Attorney General’s Office for review, when contacted by the Samoa Observer on Wednesday.

He confirmed that there are recommendations to press charges but it is subject to a review by the Attorney General’s Office.

But enjoyment at seeing a failed tyrant hoist by his own petard aside, this is bullshit. Defamation should not be a criminal offence. And that's even clearer when you look at what Tuila'epa is accused of:

Tuilaepa had accused Olo of ignoring Government policy and Treasury Instructions on the purchase of Government official vehicles when making purchases in Australia.

He claimed the Minister could have bought the vehicle locally at a discount price.

"Politician criticises other politician and accuses them of lying" is not something that should ever be any business of police. Samoa's new government should repeal Tuila'epa's law.

Drawn

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

• Oranga Tamariki (Repeal of Section 7AA) Amendment Bill (Karen Chhour)
• Employment Relations (Restraint of Trade) Amendment Bill (Helen White)
• Sale and Supply of Alcohol (Cellar Door Tasting) Amendment Bill (Stuart Smith)

So its ACT racism (s7AA is a treaty clause), a nice little minor improvement in worker's rights, and a regulatory subsidy for wineries. Hopefully something more interesting will be drawn next time.

One country at a time

Equatorial Guinea has abolished the death penalty:

Equatorial Guinea has abolished the death penalty, according to a new criminal code signed by veteran President Teodoro Obiang, adding to a growing list of African countries seeking to extinguish a vestige of colonial rule.

The West African oil-producing country of 1.4 million people is no stranger to political violence. Campaign groups have accused the government of torture, arbitrary detentions and sham trials during Obiang's 43 years in power.

Yet the world's longest-serving president appears willing to move with other African countries that have ended the practice. The last execution took place eight years ago, according to Amnesty International.

The new penal law, seen by Reuters on Tuesday, is dated Aug. 17 but was officially published over the weekend. It will come into force in 90 days, the document said.

Equatorial Guinea is the third country this year to fully abolish the death penalty. And hopefully Zambia won't be far behind.

Member's Day

Today is a Member's Day. First up are two committee stages: Rachel Boyack's Plain Language Bill and Steph Lewis' Biosecurity (Information for Incoming Passengers) Amendment Bill. Once they're out of the way, the House will move on to the first readings of Damien Smith's Overseas Investment (Exempt Investment from OECD Countries) Amendment Bill, Golriz Ghahraman's Electoral (Strengthening Democracy) Amendment Bill, and Jacqui Dean's Increased Penalties for Breach of Biosecurity Bill. If the House moves quickly it might make a start on Duncan Webb's Companies (Directors Duties) Amendment Bill. There should be a ballot for two bills tomorrow.

This seems like a process we can have confidence in

Yesterday, National leader Christopher Luxon announced that the National caucus had voted to readmit MP Sam Uffindell - who had got together with his mates to beat a fellow student with bed-legs in the middle of the night in a cruel and pre-meditated attack while at school - after an "independent" investigation. Today, it turns out that the MPs weren't actually allowed to read the investigation report or even an executive summary:

National MPs met to discuss Sam Uffindell’s future with their caucus, but they were not given the report – or even its executive summary – discussing his conduct and allegations of bullying.

Nevertheless, the embattled MP’s caucus colleagues defended Uffindell on Tuesday and said they had faith he was “reformed”.

Bay of Plenty MP Todd Muller said Maria Dew’s report had “vindicated” Uffindell, but he said he hadn’t seen her report or its executive summary.

National is also refusing to release the terms of reference which guided the investigation.

Obviously this is a process we can all have confidence in: there's a report that supposedly says he's cleared, but no-one is allowed to see it, or even see the terms of reference to ensure the chicken wasn't strapped. Such secret "evidence" is simply laughable, and Luxon and the National Party are insulting the public by expecting us to just take their word for it. If they expect us to believe this was a truly independent investigation which explored all relevant issues, they need to show us the evidence.

But beyond the laughable process, this also says something rather disturbing about how much trust Luxon and National's senior leadership have in their own caucus - namely, none at all. And if they don't trust their MPs to read a report, how can they expect us to trust them to run the country?

Climate Change: James Shaw pretends to be helpless

RNZ this morning reports that Climate Change Minister James Shaw is open to another look at climate change rules to ensure that the Zero Carbon Act and its statutory target can actually be legally enforced:

"If the temperature threshold is the point of the entire legislation, then surely it should be part of the actual decision."

If court action revealed that climate change legislation was not protecting citizens effectively then it was worth reconsidering it, Shaw said.

Changes were not being actively investigated, and they were waiting on judgements to land.

The law in question is s5ZN of the Climate Change Response Act, which allows (but does not require) decision-makers to consider climate change targets in decisions. But it might not actually need to change, because s5ZO allows the "responsible Minister" - presumably the Minister for Climate Change - to issue guidance to departments on when and how to do that, including what to take into account. I was curious about whether the Minister had issued such guidance, or whether there was any under development, so I filed an OIA request with the Minister. The answer? Of course not:

I have not issued guidance under s5ZO of the Climate Change Response Act 2002 (CCRA) to date in my capacity as Minister of Climate Change.

If the Minister actually wants the law to be effective, maybe he should? And if he doesn't, then all his hand-wringing just smells like more insincere pretend helplessness...

Hungary is no longer a democracy

Since his election in 2010, Viktor Orbán has shifted Hungary sharply away from democracy and the rule of law, changing the constitution to stack the electoral system and the courts against his opponents, while dismantling the independent media. And now, the European Parliament has recognised the truth: that one of its members is no longer a democracy:

Hungary can no longer be considered a full democracy, the European parliament has said in a powerful symbolic vote against Viktor Orbán’s government.

In a resolution backed by 81% of MEPs present to vote, the parliament stated that Hungary had become a “hybrid regime of electoral autocracy”, citing a breakdown in democracy, fundamental rights and the rule of law.

While the vote has no practical effect, it heightens pressure on EU authorities in Brussels not to disburse billions in EU cash to Hungary that is being withheld over concerns about corruption.

Democracy is supposed to be a foundation of the EU, and its appalling that Hungary has been allowed to diverge this far from European principles before the Parliament has stepped in. And along with Poland, it shows that the EU needs effective mechanisms to sanction its own members to ensure their conformity with European law.

Shouldn't we make them pay for it?

Yesterday a new report from Environment Southland found widespread environmental contamination at the Tiwai Point aluminium smelter. Both the soil and groundwater has been contaminated with fluoride and polycyclic aromatic hydrocarbons, and the stormwater drains are full of heavy metals. Worse, this is just what we know - the data is incomplete, and they don't really know whether it has contaminated the harbour. Today, Environment Southland put a cost on the cleanup: a staggering $1 billion. Which leads to the obvious questions: shouldn't we make the company responsible for this mess pay to clean it up, as we've done for the oil industry? And if they don't want to, why should we let them operate in Aotearoa at all?

Sweden falls to the Nazis

Swedes went to the polls over the weekend, and after a tight count, appear to have elected a Nazi-coalition government. The right-bloc has a three-seat majority, and the neo-Nazi Sweden Democrats are the largest party within that bloc. And to gain power of course the "moderate" centre-right parties are willing to snuggle up with them to form a government. Oh, they won't have them in Cabinet - that would be going too far (for the moment) - but they're willing to rely on their support, and pay whatever policy price is required to get it. Which means Sweden is going to become a lot more racist, to keep the rich rich.

How racist? Well, the SD campaigned on a "repatriation express", basicly advocating the ethnic cleansing of "non-European" immigrants to make Sweden white again. That's what the Moderates, Liberals, and Christian Democrats have signed up for. Not that the Social Democrats are blameless here - because when confronted with such explicit racism, they followed the path of other spineless centre-left parties (e.g. UK Labour) and tried to compete with it. Which is obviously a losing proposition - the Nazis will always be more racist, and trying to pander to them alienates your non-racist supporters.

Of course, it doesn't have to be this way - there are other coalition combinations possible which exclude the Nazis (though none without the Social Democrats). But that would require the centre-right to share power and moderate their policies leftwards rather than rightwards. And I guess they'd rather just be racist.

We need tougher penalties for electoral donation fraud

Writing in Stuff, Max Rashbrooke Lisa Marriott examine the dismal history of election donation fraud in Aotearoa, and conclude that there are no real consequences for it. Prosecutions are rare, and the penalties derisory:

It looks awfully like one law for the rich and one for the poor. At one end of the justice system, people can be fined or jailed for relatively minor crimes such as the driving offence of “wheel-spinning”, where no injury is caused. But there seem to be few legal consequences for breaking the laws around donations to political parties, something which typically involves the rich and powerful.

[...]

Meanwhile, the penalties in the act are often relatively minor, at least from the point of view of wealthy individuals. Admittedly, a party secretary convicted of any corrupt practice faces a prison term of up to two years, or a fine of up to $100,000.

But wilfully misleading the Electoral Commission attracts a maximum fine of just $2000 – and many other offences similarly have maximum fines of $1000 to $2000. This is roughly the same maximum penalty that applies for tagging a tree.

They suggest greater penalties, and greater powers for the Electoral Commission to investigate the prosecute offences. I agree. You can get seven years for stealing a TV set; stealing an election seems rather more serious. The problem of course is that one of these crimes is committed by poor people, while the other is committed exclusively by rich people and politicians, who write the laws to suit themselves.

Wellington's user-pays "democracy"

In the face of a rising tide of climate protest, governments are cracking down. In the UK, the only-partly-elected government has effectivley banned protests, just like they did in the eighteenth century. In Wellington, they're more subtle, simply imposing unaffordable costs for "traffic management fees":

Wellington City Council left school strikers scrambling to raise $5000 for private traffic management services because the students wanted to march against Government climate inaction.

School Strike 4 Climate Wellington – a group of school-aged students – planned to walk to Parliament next Friday, but did not have the money or options to raise the cash. The council covered the costs for two previous marches.

The council’s actions infringe on their civil right to protest, the students argue.

But the council says it covered the costs twice before and explained to the strikers in June that it wouldn’t fund a third march.

It is of course perfectly legal to march without paying vig to the council's cronies (the council of course doesn't charge people itself - that would be too obvious. Instead, they demand protesters pay Fulton-Hogan, effectively giving them a private taxation right over democracy). But the council threatened a bunch of schoolkids with unspecified legal consequences if they exercised that right, and so as a result there won't be a march. Whether the Council's actions are consistent with the right to freedom of assembly afirmed in the BORA, or with its own climate emergency declaration is left as an exercise for the reader.

Meanwhile, if I was in Wellington, I'd be asking candidates for council what they think about this, and what they're going to do to protect democratic rights if they're elected. And if they support the council's decision, vote the bums out.

Labour abandons us to covid

Today, the government has taken its long-signalled decision to repeal virtually all covid restrictions. From midnight tonight, there won't be traffic lights or mask requirements, and isolation rules will be further weakened. The few remaining vaccination requirements will disappear in a couple of weaks. Essentially, the virus will be free to spread, and the government will do nothing to stop it.

The government is selling this as "taking back control". What it actually does is make things more uncertain. Under the (weakened) traffic light system, and the stronger level system which preceded it, we knew what to do to stay safe. If covid numbers went up, the level would (in theory) change, telling us all to work from home and avoid public places and keep to our bubbles. And if they went down - way further down than at present - then the opposite would happen, and we could go out and see each other. Now, we've got nothing. We're on our own. And if covid numbers rise and you don't feel safe, you need to persuade your boss yourself that you need to work from home, without a traffic light to point to. With no masking requirements, you need to work out yourself whether any particular setting is safe, based on how many doorknob-lickers there are. And if you want to enforce a masking or vaccine requirement on your business or event, good luck with that, because the government isn't setting a standard and won't back you up anymore. We're on our own.

As for Labour, they've just abandoned us and walked away in the middle of a once-in-a-century public health crisis. Its as if they responded to the Christchurch earthquakes by repealing all building standards and the EQC system. They've basicly surrendered to the Parliament rioters and become quislings for the virus. And even if you don't share that harsh view, I think its legitimate to ask: if government won't step up and protect people during a public health crisis, what the fuck is it for?

No freedom of speech in the UK

In the eighteenth century, the British government waged a campaign of repression against those calling for democracy and an end to the monarchy. Over two hundred years later, nothing has really changed:

A woman was arrested holding an anti-monarchy sign in Edinburgh today, before the Queen’s cortege arrived in the city.

[...]

She held a sign saying ‘f*** imperialism, abolish monarchy’.

Officers appeared behind her and took her away, prompting the crowd to applaud.

The police are saying there was "a breach of the peace". But peacefully holding a sign is not a breach of the peace, and in a free and democratic society citizens are expected to have tolerance for the views of others and their right to protest. But then, the whole problem here is that the UK is not a "free and democratic society" - it is a monarchy, a hereditary dictatorship in fancy dress. If UKanians want to be free, they need to fix that.

Bring on the republic

When I was a child, the foreign monarch visited New Zealand. They marched us all out from school and had us stand by the side of a road to watch a car go past, and it was absurd and boring and meaningless, pretty much like the monarchy itself. For most of my adult life, Aotearoa has been sleepwalking towards a republic, with every recent Prime Minister saying its "inevitable", but never doing anything to make it happen. The conventional wisdom, spouted by most politicians, has been that the time for change was when the incumbent died, and not before.

Well, that just happened. And once the body is buried, its time for politicians to fulfil their promise and let us make the move.

Obviously, such a change would need to be endorsed by a referendum, so the process will take a couple of years. As for the nuts and bolts, Dean Knight helpfully provided a guide for the minimal reform - which changes nothing while changing everything - in his 2020 paper A Republic for New Zealand: A Possible Blueprint in the Tradition of Minimalist Reform. That would rid us of the foreign monarchy and replace the appointed Governor-General with a government-nominated, Parliament-endorsed Head of State, clearing away the royalist baggage without the distraction of other issues, and leaving us free to decide what other changes we might want to make later.

The archaic ideology of monarchy is completely at odds with the values of modern, democratic Aotearoa. And now the incumbent is dead, it is finally time for us to move on.

The police piss on the law again

In 2020, RNZ ran a story about police in Wairarapa coercing photographs from young Māori. it turned out this was a more widespread practice, and eventually the Privacy Commissioner and Independent Police Conduct Authority began an investigation. Their report was released today, exposing illegality, systematic racism, and widespread ignorance among police officers of the limits on their behaviour. Not only were police coercing "voluntary" photographs from young Māori on the street - they were also coercing "voluntary" additional sets of photographs and fingerprints when they arrested someone in an explicit attempt to evade statutory limitations on retaining that information - a practice so obviously illegal that the Privacy Commissioner was forced to issue a compliance notice forbidding it. There are other disturbing practices - including photographing people at traffic stops and videoing people who are videoing them in an explicit effort to deter such scrutiny - all of which shows a widespread disregard for the Privacy Act's requirement that collection of personal information have a lawful purpose. There's also a passing comment about widespread ignorance among officers of the core BORA provisions relating to search, seizure, and freedom from arbitrary detention. All of which says that the police have a significant practice, culture and training problem

So are the police going to fix it? Of course not. They've treated the report with the same contempt they treat other IPCA reports, refusing to accept some findings because it would "present significant challenges to our staff being able to carry out their duties successfully". Because apparently, they're unable to enforce the law unless they routinely and systematically break it.

This isn't good enough. Oversight bodies are there for a reason, and the agencies they oversee need to listen to them. And if the police won't do that voluntarily, then its time to give the IPCA compliance notice powers like those enjoyed by the Privacy Commissioner, as well as leadership willing to use them. Because we cannot tolerate the police pissing on the law like this.

OIA stats and public sector leadership

Te Kawa Mataaho / Public Service Commission has released its half-year OIA statistics today. Last year they received some harsh media coverage calling them "close to useless" due to various rorts, and in response this set includes information on extensions, transfers, and response times. Public Service Commissioner Peter Hughes is trumpeting that the average response time across all agencies other than police and NZDF was 12.5 working days, and saying that this shows that everything is fine and "the use of extensions, transfers and refusals [is] not a factor". It doesn't. Instead, the focus on the average performance is being used to obscure some rather significant failures.

Firstly, the good news: three quarters of the 32 core agencies met the expected standard of handling 95% of requests on-time (and two of the ones which didn't had a single late request). Some of these agencies are doing very well: seven of them had median response times of less than ten working days. And three agencies - Corrections, MPI, and Customs - had a median response time of only two days. Which is genuinely good, but also suggests that these agencies have a large number of routine, standardised requests which are processed quickly, and that the performance for "real" OIAs sent to their head office may be different. And that's actually supported by MPI's data, where the two day median is combined with a 15.4 day average, suggesting a bimodal distribution where roughly 2/3rds of their requests are routine and quickly processed, while the rest take the full 20 working days or longer (Ministry of Health shows a similar pattern, combining a six working day median / eight working day average with an on-time rate of only 90%, which works out pretty nicely if you assume all late requests take only 21 days).

Secondly, two of the top performing agencies - Customs (average 5.7 days) and Ministry of Health (average 8 days) are two of the busiest in the public sector, and largely determine the low overall average response time. Meanwhile, ten agencies - including major media request targets such as MBIE, DPMC, MSD and Ministry for the Environment - have average response times of more than 20 working days, while 12 have a median response time of 20 or more days (Oranga Tamariki's is 21, FFS). Which is a clear sign that they're treating the OIA's 20 working day time limit as a target rather than a limit, and pissing on the requirement to respond as soon as reasonably practicable.

As noted in that Stuff article above, long response times don't necessarily mean requests are late, as agencies can extend. And contrary to Hughes, there is clear evidence that some agencies are rorting the system to juke their stats. Sorting the table by extension percentage shows us that a typical agency extends less than 20% of requests. Meanwhile, six agencies are extending more than a quarter of requests, including MfE, which extends more than half, MFAT (44%), and DPMC (34%). These agencies are rorters, and now we can all see it (the spies are also in this category, and have recently been spanked for it by the Ombudsman).

Astonishingly, two of the worst extension rorters - the spies and DPMC - are also the worst performers for (legal) timeliness. MBIE is also a poor performer, with only 91% on time. As for non-public service departments, the police claimed a 98% on-time rate by rorting their stats, while NZDF was late almost 50% of the time and refused to provide response time statistics. Which sounds like they have contempt for the law and are in severe need of a practice investigation by the Ombudsman.

All of which explains the derision Hughes' sunny proclamation was met with from journalists and requesters. There's a story in his new, improved statistics, but he's simply not interested in telling it. Which also means that he's not interested in improving OIA performance, and is content to let the rorters juke the stats without penalty. Whether this is fulfilling his statutory duty to provide leadership and promote transparency and accountability in the public service is left as an exercise for the reader.

A corrupt abuse of power

There's an election on, so the government uses its websites to host advertising for its members, explicitly promoting their re-election. Russia? Thailand? Some other corrupt, authoritarian state? No, its South Auckland's corrupt liquor trust:

A South Auckland licensing trust's decision to help promote candidates in this year's local body elections was ill-advised, but not illegal, according to Auckland electoral officer Dale Ofsoske.

Nick Smale recently complained to Ofsoske about social media posts by the Wiri Licensing Trust endorsing the Manurewa Action Team - a political ticket running in the election for the trust, council and local boards.

"In my opinion, this is a blatant misuse of public resources squarely aimed at influencing the election. It influences not just the licensing trust election, but the council election too," Smale said.

[...]

But Smale said he understood there was nothing he could do about it because it involved a licensing trust.

Ofsoske confirmed his suspicions in a response to questions from Local Democracy Reporting.

So apparently while its obviously unfair and an abuse of power, its not actually illegal for a local body - or a liquor licensing trust - to use their control of public resources to put their thumb on the scales to secure their own members' re-election. Which seems like a significant omission. Fortunately, there's an opportunity to remedy it: there's a Local Government Electoral Legislation Bill which is currently open for submissions. Parliament could include an explicit ban on such abuses, which would hopefully prevent them in future.

(Of course the real solution to the constant abuses of power by licensing trusts is to vote to end their monopoly, then dissolve them. But they'll fight tooth and nail against that, and spend as much public money as they can get away with resisting that fate).

Labour doesn't want to protect journalists after all

Last year, in response to several highly-publicised abuses by police, then-Labour MP Louisa Wall put a bill to protect journalists' sources in the ballot. It was lucky enough to get drawn, was given a first reading in October and sent to select committee. Today, the committee reported back. But rather than the usual amendments and recommendation to pass or not pass, they had this to say:

We received a letter from the member in charge of the bill on 20 August 2022 informing us of her intention to withdraw the bill. The member told us that there are insurmountable drafting issues with the bill, and that the bill would not achieve its intended policy outcome. In accordance with the member’s wishes, we therefore do not recommend that the bill proceed.

What are these "insurmountable drafting issues"? The Ministry of Justice's Departmental Report on the bill goes over the issues, which basicly boil down to the definition of "journalist" and associated questions around the scope of the bill, the proposed requirement to seek a production order for some information before seeking a search warrant, procedural requirements around production orders and search warrants, and the imposition of a general duty to protect the rights of journalists. That same report also included multiple solutions to all those problems, though it would require the bill's sponsor to make some choices (some of which might have been "this section doesn't work, ditch it"). The same report includes as a giant piece of fearmongering the consequences on non-police search powers, but those would also seem to largely be addressed if the core issues were, and by a few minor technical amendments.

But all that would have been work. And rather than do that work, or make those choices, the bill's sponsor (now Ingrid Leary, after Labour forced Wall out of Parliament) just decided to dump it. Which I guess tells us how much - or how little - Labour really cares about protecting journalists.

As for the solution, hopefully we'll see a tweaked version of this bill put back in the ballot by a Green MP. Because unlike Labour, they would actually care about it.

Still against a four year term

Newsroom has a piece on Labour's local government review, which will apparently recommend a reduction in the voting age and a move to a four-year term. Which (because of the need for alignment with general election rules) tells us Labour has pre-determined the outcome of its electoral act review as well (of course they did). As for the merits, the same arguments that apply to central government apply to local government on both issues: a lower voting age is good, because young people have interests, and are affected by local government decisions. And a longer term is bad, because it reduces accountability and voter control. Look at your current local government: do you really want them to have another year of impunity before facing the electorate? And if you do, why not just vote for them at the next election, without surrendering control or accountability?

The primary "argument" for longer terms is that they would let government "get more done", either by insulating them from electoral pressure (an explicitly anti-democratic argument) or just by giving them more time to consider policy and bed in change. And it occurs to me that the best argument against this is this Labour government. They were elected with an absolute majority, giving them the power to do anything they wanted. But look at how little they've done. Look at what they've chosen not to do. Can anyone really argue with a straight face that they'd "get more done" if they were less accountable to the electorate? That the real barrier to them acting on inequality or housing or climate change has been lack of time, rather than lack of interest? Really?

Labour didn't rule out a capital gains tax because they lacked time to implement one. They ruled it out because it is not in their class-interest as highly-paid, wealthy property owners. They haven't dragged their feet on climate change because of lack of time - they're doing it to protect the status quo. And they haven't refused to reverse the 1990 benefit cuts or cancel WINZ debt because of lack of time. They've ruled those things out because at the end of the day they don't care and don't want to be seen as being nice to the poors.

Rather than "getting more done", if given a longer term, this government would just sit on its arse collecting its inflated salaries, while making excuses for its political choices and trying to gaslight us into thinking that everything is great. And laughing at us all the while for being fool enough to make them less accountable.

(And on the flip side, if they were a government which did things? Yeah, we want an opportunity to vote that shit out as quickly as possible, because we might not like it. Just think of what Roger Douglas or Ruth Richardson could have done with an extra year... Aren't you glad voters could nobble them when we did?)

As mentioned above, if you like a government and think it deserves more time to implement its policy programme, vote for them at the next election. But don't surrender control or allow them to be less accountable. Because that will lead to worse, less responsive, and more arrogant government, while benefitting no-one but the politicians.

Member's morning

Today is an extended sitting of Parliament devoted to Member's business: Member's Morning! So far the House has already dealt with the third reading of the Palmerston North Reserves Empowering Amendment Bill, and is currently working on the second reading of Rachel Boyack's Plain Language Bill. After that they should move on to Damien Smith's Overseas Investment (Exempt Investment from OECD Countries) Amendment Bill, and if they get through that in time they should make a start on Golriz Ghahraman's Electoral (Strengthening Democracy) Amendment Bill, but probably won't get far enough to vote on it. There will be no ballot.