Maybe Little should actually win the election first?

So, Andrew Little thinks the Wellington City Council should cancel its plans for the Golden Mile, because there's an election in five months:

Andrew Little told Nine to Noon he'd be disappointed to see the council march ahead with the plan, given local body elections are to be held in October.

[...]

He said he'd repeat his message to the council - asking them to pause on signing more work contracts for the Golden Mile.

"Given that there is going to be a change of mayor after 11 October - and there'll be a new line-up in council - I don't think it's ethically correct for this council to be signing off significant new contracts that will bind the next council at a time when things are so sensitive for the Wellington economy."

...which is assuming a whole lot, not the least that Little will be elected as mayor, and that the future council will be as anti-redevelopment as he is. Meanwhile, the actually existing council were elected to serve a three-year term, which won't end for five months, have consulted repeatedly on this project, and many of them were elected on a platform of doing it. But apparently all of that counts for nothing against the whims of an unelected dude who feels entitled to power.

There's an obvious comparison here with US Republicans who refused to allow Merrick Garland's nomination to the Supreme Court, on the basis that their dude - Trump - would win the next election. And its as ugly and entitled and undemocratic from Little as it was from them

But then, ugly and entitled is Little's campaign to a t, starting from the moment he shoved Tory Whanau aside. The problem is that he needs Whanau's progressive urbanist pro-Golden Mile project voters to win. And if they correctly conclude that he is offering them nothing, and don't turn out for or second-preference him, and he loses, he will have no-one but himself to blame.

Shoving the future aside

I woke this morning to the shock news that Tory Whanau was no longer contesting the Wellington mayoralty, having stepped aside to leave the field clear for Andrew Little. Its like a perverse reversal of Little's 2017 decision to step aside for Jacinda - the stale, pale past rudely shoving the voice of the future aside.

This isn't any criticism of Whanau - she has to do what's right for her, and she's been very gracious about it (even effectively endorsing Little). But there's a real question of whether her progressive urbanist voters will stomach supporting another Labour failure, especially when his immediate response is to double down on the Keep Rates Low bullshit which has ruined Wellington in the first place:

The former Labour leader said one of the main reasons he stepped up to be a candidate was so he could restore the faith in the council.

“There, there’s not, it is simply not acceptable for rates to increase, by my calculation, about 30% in the last two years,” Little said.

“A lot of that is, I think, council not getting a grip on their own finances.”

Nope. Its because politicians like Little Kept Rates Low and didn't pay to maintain the infrastructure which literally underlies their city, instead choosing to kick the can - or rather, the giant puddle of shit - down the road. Now that bill has come due, the council is actually facing up to it, and the wealthy wankers in their drafty "heritage" villas want to just keep on not paying, because they'll be dead soon. Last election Wellington voters told those people to go fuck themselves, by electing Whanau and a progressive council. The question is, when the only mayoral choice on offer is "Keep Rates Low" wearing different-coloured ties, whether they'll even bother to turn up this time.

Little's pitch

So, having teased it last week, Andrew Little has announced he will run for mayor of Wellington. On RNZ, he's saying its all about services - "fixing the pipes, making public transport cheaper, investing in parks, swimming pools and libraries, and developing more housing". Meanwhile, to the readers of the reactionary Post, he's making a rather different pitch:

Little, who is working as a lawyer after serving as an MP for 12 years, said his priorities in office would be fiscal responsibility, affordable housing and better project management, such as reconsidering the controversial Golden Mile project.

[...]

As mayor, he would pursue a regional deal to build new infrastructure, put an end to front-loading costs on ratepayers, and run a ruler over-spending.

"Fiscal responsibility", "an end to front-loading costs on ratepayers", "run a ruler over-spending" - yes, it's the same "Keep Rates Low" platform which is responsible for the underinvestment in infrastructure which has seen perpetually leaky pipes and shit on the streets. With a side order of empty promises of "better management" and some wishful thinking about getting someone else to pay for it all. Oh, and some "questions" about cycleways and urbanism, just to ensure wealthy urban-villa-owners and ute-drivers are on-side. And that's apparently what Labour stands for now: the classic stale, pale, male agenda which has wrecked local government in Aotearoa. The last gasp of the greedy generation which looted everything while stealing from the future.

The good news is that Wellington has STV, so Little running won't split the vote and allow some right-wing, Keep Rates Low candidate to win. But we may get one under Labour colours instead. Vote accordingly.

The SIS turns Parliament into liars again

When Parliament passed the Intelligence and security Act in 2017, they assured us all that it was full of safeguards. Any intrusive surveillance of New Zealanders would be subject to a "triple lock", requiring the approval of the Minister and (supposedly independent) Commissioner of Intelligence Warrants, as well as post-facto review by the Inspector-General of Security and Intelligence. But according to the latest report from the Inspector-General, the SIS has turned them all into liars.

The problem is that the SIS has switched from using individual warrants to "class-based" ones when collecting intelligence on potential terrorism and violent extremism. So rather than having to convince the Minister and Commissioner of the need to spy on a particular person, as they were required to do in the past, they have instead switched to convincing the Minister and the Commissioner that they need to spy on classes of people, broadly and apparently subjectively defined - meaning that the actual decisions about who gets spied on and how are left entirely to them. This is clearly envisioned by the Act, but at the same time also clearly evades all those safeguards we were told about. And in the specific case, the Inspector-General argues persuasively that it is a "general warrant" (one which does not specify exactly what can be done under it) - a thing which has been unlawful since forever. And interestingly, once you strip away the tortured language designed to hide the admission, it seems that Crown Law agreed:

The Service disagreed with me that the warrants were general warrants at common law, provided the class definitions were tightened, and this was a view supported by Crown Law.

[Emphasis added]

The SIS subsequently did that. But the "improved" warrant still lets them decide "what ideologies are considered terrorism or violent extremism, who is a valid target, and what intrusive activities would be carried out, up to the maximum level of intrusiveness that the law allows." It may no longer be illegal, but it is absolutely improper.

That question of propriety is the real and underlying issue here. The IGIS is clear that while class-based warrants may legally be available, using them for intrusive surveillance "undermines the spirit of the warranting regime" and betrays the promises made to us about safeguards:

The authorising framework in the ISA provides for a process to give the public confidence in the justification for the agencies’ actions, by requiring external authorisation for the use of highly intrusive powers. Prior authorisation is a safeguard against agency overreach. It helps to ensure that breaches of protected rights in the interests of national security are justified and according to law. In the development of the ISA, this was described as a “triple-lock” of protection for individuals, with the three locks being control from the Minister, the Commissioner of Intelligence Warrants, and post-facto review by the IGIS. The effective delegation to NZSIS, under these warrants, of decisions on who to target for counter-terrorism or violent extremism purposes, by what means and for how long, and to undertake the most intrusive activities available, effectively leaves the scrutiny of individual cases to my office alone, after the fact. That is not what the public was led to expect.

Bluntly, the ISA was meant to stop the spies from doing whatever the fuck they want. This is a deliberate circumvention of all those safeguards. It is absolutely unacceptable. Further, it betrays that the culture of lawlessness and unaccountability the ISA was meant to stamp out continues to exist, in the SIS at least. And if that's the case, you really have to ask why we tolerate their continued existence.

IGIS will now be putting the SIS's improperly-delegated targeting decisions under the microscope, giving them the scrutiny the Minister and Commissioner should have. But while that's better than nothing, its not enough. And you really have to ask whether the Minister and Commissioner of Intelligence Warrants were doing their jobs properly when they signed off on this. The then-Minister, Andrew Little, is gone, so there's nothing we can do about him other than make sure he's not let within a mile of the position in future. As for the Commissioner, this seems to be a strong case for removal for neglect of duty.

Good riddance to authoritarian rubbish

Former spy minister Andrew Little has announced he will not be taking up his list seat in the new parliament. Good. As justice minister he failed to deliver on a promised review of the OIA, as spy minister he presided over a further expansion of spy powers, and as defence minister he over-rode a bipartisan select committee to impose secrecy to protect NZDF war crimes. So I'm not at all sorry to see the back of him.

The downside? He'll be replaced by the next candidate on Labour's list - in this case, Shanan Halbert, who is a known bully. It would be good if he did the decent thing and stood aside too.

More petulance from Andrew Little

Back in June, the Foreign Affairs, Defence and Trade Committee reported back on the Inspector-General of Defence Bill, making numerous improvements. But Defence Minister Andrew Little said "fuck transparency" and petulantly undid them. Now it looks like he's going to do a repeat performance. The same committee has reported back on the Immigration (Mass Arrivals) Amendment Bill, delivering a unanimous report that it was unnecessary and that it not be passed. They recognised that the bill undermined our international obligations under the Refugee Convention and international human rights law, and effectively criminalised seeking asylum. Andrew Little's response? It's the committee and submitters who are wrong:

Little vowed to continue progressing the bill despite the select committee’s concerns. He said classified information, which the committee heard, would explain the need for this law change.

He reprimanded the select committee on Tuesday, saying there was something “seriously wrong” with it.

[...]

Little said the committee had failed to adequately consider “legislation dealing with a pretty serious potential national security risk”.

...Or maybe his bill really was an ill-considered power grab which infringed fundamental human rights without any justification - and one so awful that even the authoritarians in the National Party could see it (you know you're in trouble when the National Party is acting as your conscience...)

Unfortunately, thanks to single-majority government, Little will probably get his way. He'll convince Cabinet, Cabinet will whip the Labour caucus, and that's 61 votes. The actual merits simply don't come into when one party holds a majority. Which means the sooner this aberration is over and we can get back to the checks and balances of normal consensual MMP politics, the better.

The SIS has received intelligence from torturers

One of the many horrors of America's "war on terror" is the way it has degraded human rights around the world, even in countries like ours. Quite apart from the direct crimes committed by America and its allies (Iraq, Guantanamo, the extraordinary rendition program, mass surveillance), there's also been the sight of intelligence agencies from countries with strong domestic human rights protection colluding with regimes which use torture. Dirty foreign regimes do the torture, and western agencies get the intelligence while keeping their hands "clean" (until they end up being investigated by police)

The SIS received "intelligence" the Americans had tortured out of people in the early 2000s, but that's meant to be all in the past. The post-Dotcom reforms were meant to fundamentally change our intelligence agencies and put them on a sound legal footing. The Intelligence and Security Act 2017 gave spy agencies an explicit legal duty to act in accordance with New Zealand law and international human rights obligations. A system of "ministerial policy statements" is meant to provide clear, public guidance for agencies and let the public know what they are and aren't allowed to do. For example, there is an MPS on Cooperating with overseas public authorities, and it's pretty explicit in outlawing cooperation with torturers:

GCSB and NZSIS must not request or use intelligence where they know, or assess there is a real risk the intelligence was obtained through a serious human rights breach – such as torture, or cruel, inhuman or degrading treatment.

This is backed up by an SIS/GCSB Joint Policy Statement on Human rights risk management which sets out how they're meant to assess the risk that cooperation will result in human rights abuses, and who signs off on that assessment. The policy uses five risk categories, with differing level of severity and scrutiny. So for example category 5 is where there is "negligible likelihood of any human rights breach", and can be signed off by any manager. Category 1 is where there is a "substantial likelihood of torture or similar mistreatment (mitigated or unmitigated)", and must be signed off by the Minister. "Proposed actions" by an intelligence agency - for example, providing intelligence or assistance to a foreign agency, or entering a long-term relationship with them - require a human rights approval. Receiving intelligence requires a human rights review.

When I first saw this policy on FYI, I was curious, so I asked GCSB and SIS for some basic statistics about the numbers of approvals and reviews sought and approved in each category. GCSB's response was reassuring: a lot of low-level approvals, but they clearly weren't providing information to enable people to be tortured (OTOH, the lack of reviews shows they don't think there's any human rights issue with mass-surveillance or with where their information comes from). SIS's response - extended because of the crapness and disorganisation of their internal record-keeping - showed the same pattern in approvals. On reviews, it is a different story. Since JPS-006 was approved in 2017, the SIS has sought and received Ministerial approval for two category-1 human rights risk reviews. That means they have twice received intelligence where there was "substantial likelihood of torture or similar mistreatment", in contravention of both the Ministerial Policy Statement and Aotearoa's obligations under the United Nations Convention Against Torture.

The policy was approved in late September 2017, when Chris Finlayson was Minister. A month later Andrew Little became Minister, and has held the role ever since, so its almost certainly him who signed off on this. And I think he owes us some serious answers about exactly what he signed off on, and how he manages to look at himself in the mirror every morning having done so. This also seems to warrant an immediate investigation by the Inspector-General of Intelligence and Security, and by the Ombudsman (who is our main National Preventative Mechanism under OPCAT). Because this was not what we were promised in the post-Dotcom intelligence "reforms". Instead it seems to be the same old dirty spies, up to their same old dirty tricks, and letting people be abused in our name.

Labour are chickenshits on abortion

Last night, inattentive MPs caused a major fuckup on the Abortion Legislation Bill, with David Seymour's amendment to remove safe zones being passed on a voice vote without anyone noticing. It was a procedural error, and the government has multiple options to fix it. But do they want to? Of course not:

Justice Minister Andrew Little will not try to re-introduce "safe zones" into his abortion legalisation bill after a procedural snafu saw them removed on Wednesday night.

[...]

Little said in a statement he would not be attempting to re-insert the safe zones into the bill.

"The safe zone provision was always the most marginally supported," Little said.

He said it wasn't clear if Seymour's amendment actually had the numbers but he would not be pursuing further change as the "substance of the bill" remained.

Another example of the complete chickenshittedness of this government. Its too much effort to find out where Parliament actually stands (rather than sleeps) on this, so they won't bother. But hopefully, some other MP will step up to lead where Little is refusing to. And if not, its an obviously subject for a member's bill once the main bill is passed.

More crime from the spies

Last year, the Inspector-General of Intelligence and Security reported on significant problems with the intelligence warrant system. While they were unwilling to declare any warrant "irregular" (meaning unlawful) due to the recent law change, they were also not willing to give the system a clean bill of health. Now, they've done a followup report, and while there have been improvements in several areas, they have also for the first time reported that a number of warrants did not meet the statutory criteria under the Intelligence and Security Act 2017:

As noted above (paragraph 10) the Inspector-General reached the view this year that one of the Bureau’s Type 2 warrants was irregular for a lack of sufficient operational detail in the application and a consequently inadequate demonstration of necessity and proportionality. We have since found that another Bureau Type 2 warrant was irregular for deficiency of information on one of the activities for which authorisation was sought. The Bureau is working to address the issues raised by this warrant.

Late last year we formally advised NZSIS that activity under one of its Type 1 warrants was irregular, as it involved a privacy intrusion beyond what was articulated in the warrant application. The Service did not agree...

The Inspector-General says they will be doing more work to bring the agencies into compliance, but shouldn't they be doing more? Because, to point out the obvious, the effect of a lawful warrant is to authorise things like the use of interception devices or the unauthorised access of a computer system, both of which are crimes. If the warrant wasn't lawful, then the activities conducted appear to be criminal. Shouldn't the spies therefore be being prosecuted? Or does the law simply not apply to them like it applies to the rest of us? And shouldn't the agencies be paying damages to the victims of their criminal interference with privacy? Instead, it seems like secrecy will let them just get away with it. With the result that no-one will be held to account, and that there is no incentive not to repeat such behaviour in the future.

This shows the toothlessness of our "watchdog". Yes, they've got quite a bark on them. But like the IPCA, nothing ever results (except perhaps law changes retrospectively legalising the spies' crimes). And that means that their net effect is to provide a veneer of accountability to unaccountable criminal agencies. Until they can prosecute people - and actually do so - they're a sham, and a waste of everyone's time.

Meanwhile, we should remember: spy Minister Andrew little approved these warrants, despite their unlawfulness. Which shows that he is aimply unfit for his position. And it should also cause severe questions about trusting this Minister and these agencies with any more powers, like the control orders they're currently trying to ram through Parliament.

Unstalled?

Last month, I reported that BORA reform was stalled. Documents released under the OIA showed that there had been no advice on the topic since a proposed Cabinet paper was withdrawn in April (it also revealed some rather frank comments suggesting that the entire proposal had been nothing more than a shoddy legal tactic to fool the Supreme Court). But now Newsroom's Sam Sachdeva has followed up on the issue - and the government says it is "back on track":

Delayed proposals to give New Zealand's unwritten constitution greater strength have kicked back into gear, with legislation giving courts the right to declare a law inconsistent with the Bill of Rights set to go to Parliament before the end of the year.

[...]

Speaking to Newsroom, Little denied that [it was a legal tactic] and said Cabinet was likely to sign off on a final policy next month, with the relevant legislation introduced to Parliament before the end of the year.

There had been "a fairly intense set of discussions in the last three or four months", with the bulk of debate concerned with the balance between the role of any new legislation and what should be dealt with through Parliament's standing orders.

Which is great, if true, and I look forward to seeing the bill. But there's only six sitting weeks until the end of the year, so he'll need to get a move on.

BORA reform is stalled

Eighteen months ago, the government promised to strengthen the Bill of Rights Act, by explicitly affirming the power of the courts to issue declarations of inconsistency and requiring Parliament to formally respond to them. So how's that going?

I was curious, so I asked for all advice about the proposal. You can read the response here. And the short version is that the proposal appears to be stalled. The documents leading to the announced in-principle decision suggested consultation with experts, with Cabinet approval by October 2018, and legislation in early 2019. But after that, everything stalled. There was a briefing on the outcome of Attorney-General v Taylor, in which the Supreme Court upheld its inherent jurisdiction to issue declarations of inconsistency, a briefing on options, and (in April) a draft Cabinet paper with the Attorney-General (both sadly withheld). But that paper does not appear to have been submitted to Cabinet.

As for why, who knows? Maybe Winston has vetoed an effective Bill of Rights Act, or maybe the government has just chickened out like they did over the capital gains tax. Alternatively, there's a screaming hint in the early briefing material, where they repeatedly push the idea that Crown law could mention an in-principle decision to allow declarations to the Supreme Court, and that "this could be viewed favourably by the Court... and could be relevant to the Court's deliberations". In other words, this was being pushed as a shoddy legal tactic, and now that that tactic has failed, the government sees no need to push it any further. Which is a pretty shitty way to do constitutional change.

Of course, that may not be the reason at all. But if the government insists on withholding information, then people are entitled to read between the lines and assume the worst. And if they don't want us to do that, they have an easy solution: front up and explain why an apparently serious proposal for real constitutional change has apparently been shitcanned.

No MMP referendum

Last year, Justice Minister Andrew Little teased us with the prospect of a referendum at the next election on the unfair MMP threshold. But buried in the announcement on their (not) "binding" cannabis legalisation referendum is some bad news: that won't be happening either:

The Justice Minister also confirmed there will be no other government initiated referendums at the next election.

So, I guess we're not going to see MMP made more democratic then. Not that Labour ever really cared about that - they're happy with a high threshold, because it limits political competition. But its another example of how they're wasting the opportunity of government, even when change would be pushing on an open door.

(I'm not sure if this means Little is also ruling out the proposed referendum on the End of Life Choices Bill happening at the next election, or whether that's not a "government-initiated" referendum).

Little's whitewash

One of the obvious questions which immediately arose after Friday's act of terrorism was why our extremely well-budgeted spy agencies didn't stop it from happening. The fact that it happened, and 50 people were killed, represents a huge failure on the part of the SIS, and one the public deserves answers about. Yesterday, in her post-cabinet press conference, the Prime Minister suggested that we would get those answers, promising an inquiry into the question. But her Intelligence Minister Andrew Little has just pre-judged the outcome:

The Minister in charge of New Zealand's intelligence agencies, Andrew Little, says an inquiry into the events surrounding the Christchurch terror attack will show those agencies did their jobs.

[...]

Speaking to Q&A on Monday night, Little welcomed the news of the inquiry and said it would show the intelligence agencies did their jobs.

"… these agencies have done the correct things and done nothing other than fulfil their mandate in terms of security and intelligence."

He rejected any comments there was too much attention given to surveying potential Islamic extremism over other kinds of extremism.

So I guess we'll be getting a whitewash then, an exercise in arse-covering designed to protect the reputation of the spies, while doing nothing to address the question of who they target. Just like the Operation Burnham inquiry. Except of course they'll probably try and grab even more intrusive powers along the way.

We spend $80 million a year on the SIS, an amount which has nearly quadrupled in the last 15 years. What do we get for it? 50 dead bodies. They need to be held accountable for that, and we need to know where they went wrong, so we can be sure it will never happen again.

Making work for themselves

Speaking of the Minister of Justice, I've been trawling through his answers to parliamentary written questions (in the hope that some useful opposition Minister might have asked a basic question about briefings received which might suggest documents worth investigating), and noticed a series of questions from Gerry Brownlee seeking information about how the Minister's OIA requests are tracked as well as basic timeliness statistics. Its the usual story of unhelpful, bullshit "answers", but he eventually admits he uses "a spreadsheet" and then a database with "several thousand fields" which must be kept secret to protect the Minister and requesters from malignant hackers (hint: you can request this spreadsheet, and I've done so in the past). But despite all this record-keeping, the Minister is apparently unable to answer basic questions about timeliness, including average and maximum response times, or even how many requests are answered within statutory timeframes (all of which should be standardised reports or functions in any well-designed system). Meanwhile, his associate Minister, who presumably uses the same system, is able to provide at least some of this data (though is still incapable or unwilling to work out the average of 26 numbers).

(Poking around, Brownlee seems to have asked the same series of ten questions seeking basic OIA data to every Minister and associate Minister. Basic OIA data which agencies are required to publish, but Ministers are not).

The government complains regularly about the opposition "flooding" them with written questions. But here, an opposition MP was forced to send twenty-one questions seeking information which, thanks to government obfuscation and denial, could have been answered in one or two, and which arguably should have been proactively published anyway. Its a perfect example of how Ministers make work for themselves by obsessively playing bullshit games over secrecy. And our ability to hold them accountable suffers as a result.

As for what to do about it, the broad answer is for Ministers to grow the fuck up and be transparent. But on the specific issue, they have decided to hold agencies accountable for their OIA performance by requiring them to publish statistics, and they should hold themselves to the same standard. As for how to do it, its surely not beyond the wit of Ministerial Services to have a standardised application or spreadsheet format with inbuilt reports for Ministerial staff to use. But that would require Ministers committed to opennness and accountability, rather than wasting everyone's time playing bullshit political games simply to frustrate the opposition and the public.

The government's secret OIA plans II

You may recall that back in September we learned that the government was secretly planning to review the OIA, planning to consult a hand-picked, secret group of lawyers, bloggers and commentators in a "targeted consultation" on quasi-constitutional legislation. The details of who they plan to consult and when are of course secret (whether they should be released or not is currently before the Ombudsman). But thanks to Justice Minister Andrew Little being forced to reconsider his OIA decisions, now at least we know what the options are.

The details are in this table, which was redacted (along with various mentions of the number of options under consideration) from Little's previous release. It shows us that Little was advised both of the public feedback on the 2016-2018 Open Government Partnership National Action Plan, and on the views of academics, commentators and OIA experts, both of which supported extension of the OIA to Parliament, the establishment of a specialist Information Authority, and legislative support for proactive release. As for the options under consideration, they are:

• A full public review of official information legislation (which could target areas that would benefit from further public engagement, such as the establishment of an Information Commissioner);
  
• Reconsidering the Law Commission's 2012 recommendations;
  
• "targeted reforms" to address specific Law Commission recommendations (AKA cherry-picking the ones the government likes, while ignoring the rest); and
  
• Legislative amendments to support proactive release (which assumedly includes the push to extend s48 to grant immunity to Ministers and officials who abuse their control of official information to dox their political enemies).
  

what the officials actually think of these options is withheld as "confidential", but based on the focus on targeted engagement, it seems they are pursuing one of the middle two. And again, this is all being done in secret. Which, when you consider that this is our primary transparency legislation, is simply obscene. If the government doesn't want to talk about major reforms, it can simply say so. But if it is going to make changes to quasi-constitutional legislation which affects our ability to participate in government and hold them to account, it must do so openly and in public, rather than using stovepiped insiders to present us with a fait accompli.

Little lays down the law to the GCSB

Yesterday we learned from the Inspector-General of Intelligence and Security that the GCSB appeared to be breaking the law, by using Type 2 warrants (which have a lower level of oversight and scrutiny) to illegally scoop up New Zealanders' private communications. Today, Intelligence Minister Andrew Little made it clear that that was unacceptable:

Minister of spies Andrew Little has backed the intelligence agencies' oversight body as it raised questions about the legal basis relied on by the GCSB to carry out electronic surveillance operations which captured New Zealanders' communications.

[...]

Little said he had personally pushed back on "Type 2" warrants to ensure it was the most appropriate form of authorisation. "Part of my role is to probe and question."

"If New Zealanders are going to have their privacy interfered with in more than an incidental way, or there is a possibility New Zealanders are going to be caught up in an area of activity they are going to go after, there would have to be a Type 1 warrant."

Gwyn's report said the GCSB should be seeking a Type 1 warrant when it knew it was likely to incidentally pick up New Zealanders' communications.

Little has also made it clear that in the absence of formal advice from the Solicitor General, spy agencies should defer to the legal interpretation of the Inspector-General. Which should help enormously in bringing these rogue agencies under control.

But this isn't just an abstract legal argument: people's privacy has been invaded, their private communications are likely to have been unlawfully intercepted, snooped through and stored. All of which is likely to constitute an unlawful search under s21 BORA. Will those responsible be held accountable? Will they be prosecuted or fired? I think we all know that the answer to those questions is "no". Which means there's no incentive for the spies not to engage in similar abuses in future.

The government's secret OIA plans

Back in September, when the government announced plans to increase proactive release of official information, we learned by accident that they were also considering another review of the OIA, and "intend[ed] to carry out targeted engagement to inform a decision on whether to progress a formal review". As someone interested in OIA reform, I was naturally curious about this, so I sent an OIA off to Justice Minister Andrew Little seeking information about the proposal. I finally got the response back on Friday, after a month-long extension for "consultation". Unfortunately, its not very informative.

You can read the released documents here. As is obvious, all interesting information about the proposal has been redacted. All their specific proposals for reform are secret, as is practically everyone they plan to consult in their "targeted engagement". People with specific expertise in the law? Secret. Bloggers and commentators? Also secret. They do list some media organisations, and the members of the OGP Expert Advisory Group, but everyone else is secret. Which is outrageous when you think about it. The OIA is quasi-constitutional legislation, something that belongs to (and affects) all of us. But rather than a full public consultation, they plan to privilege some voices over others, presenting their select secret proposals to a select secret group, then presenting the stovepiped results to us as a fait accompli. And they kept this entire process secret as well: they decided it all back in May, but never announced anything. The only reason we know about it at all is because of a passing reference in another document. Whether these are the actions of a government committed to transparency, accountability, and participation is left as an exercise for the reader.

As for the quality of their proposals, well, they're secret, so we can't tell. But what they do reveal isn't encouraging. For example, the Ministry of Justice's brief advice on whether the OIA should be extended to Parliament cherry-picks its examples to include only those that support the status quo, while ignoring the obvious counterexample: the UK Parliament is fully subject to its Freedom of Information Act, and this has brought about a huge improvement in accountability. Which doesn't provide much reason for confidence in the quality of their advice. And while they don't seem very keen on extending s48 of the OIA to cover proactive release, repeatedly highlighting the Law Commission's recommendation against extension, all their actual advice is secret, so we can't tell whether its robust or flawed. Which given the huge potential for abuse in the proposal - it would basicly give Paula Bennett total impunity to dox people at will with their benefit, medical, police and tax records - is something we need to know.

We deserve better than this. Its not just politicians, journalists and trouble-making bloggers who use the OIA, but all of us. Steven Price's 2005 study of the OIA contained an extensive list of examples of how ordinary citizens use the Act, and summed it up as "the stuff of democracy". According to the Ombudsman's 2017-18 annual report, individuals made three times as many OIA complaints as journalists, and its 5.5 times as many when you look at the LGOIMA. In short, it's our Act, not theirs. And any non-trivial changes to it require publicly consulting all of us, not just a select group of chosen insiders.

Update (31/1/19): Andrew Little has reconsidered his decision and released the options under consideration. More information here.

Finally

Our justice system isn't perfect. Whether by overzealousness, incompetence, or downright vindictiveness, our police sometimes prosecute innocent people or present evidence that isn't sufficient for a conviction. The in-built safeguards of the court and jury system don't always work. We all know the names of the victims: Teina Pora. David Bain. David Dougherty. Arthur Allan Thomas. Now, the government is doing something about it:

The Government has moved to establish an independent body tasked with addressing miscarriages of justice.

Justice Minister Andrew Little has introduced a bill to the House which would establish a Criminal Cases Review Commission (CCRC) – an independent body for addressing miscarriages of justice.

The establishing of this commission was part of the Labour and New Zealand First Coalition agreement, signed in October last year.

The CCRC will review convictions and sentences where there is a suspected miscarriage of justice in a "timely, fair and independent", manner Little said.

Looking at the bill, the primary function of the Commission will be to investigate cases and refer them back to the courts for a fresh appeal. This is what the UK version does. Unlike the UK, which requires a "real possibility" of such an appeal being successful, the NZ version will have a far more flexible criteria: whenever it is in the interests of justice to do so. They will be required to consider the prospects of success and whether existing appeal rights have been exhausted, but these are merely issues they must have regard to, not conditions for referral. Of course, whether such an appeal will be successful is up to the relevant court - and in the past, they've proven reluctant to correct their own mistakes. But it will still be a massive improvement on the current situation, and one we should welcome.

Another OIA review

Yesterday's announcement that the government would be proactively releasing Cabinet papers had a buried lead: the government may be planning another review of the Official Information Act:

The documents revealed the existence of a Cabinet business committee paper produced last month which noted Little “intends to carry out targeted engagement to inform a decision on whether to progress a formal review of the OIA”.

Speaking to Newsroom, Little confirmed he was considering whether a full review of the OIA legislation was needed, or whether improvements could be made through non-legislative changes to departmental guidelines and policies.

“It wasn’t top of the priority list at the beginning of the year, but as we get to now embarking on a programme of proactive release then these things have come into sharper relief.”

But do they really need to? The OIA has been reviewed twice in recent years: by the Law Commission in 2012, by the Office of the Ombudsman in 2015, and by the NZ Council for Civil Liberties earlier this year. While none of them is perfect, these reviews contained useful proposals for reform, particularly around eligibility, oversight, coverage, and penalties. But despite public support by users of the Act, these recommendations have been ignored by successive governments. And now, instead of implementing them, Little is proposing another review.

Little's proposed review is a waste of our time. We already know what is wrong with the OIA regime and how to fix it. Rather than dragging his feet with yet another review, Little should actually do something to fix the Act. Otherwise, people might get the impression that he was trying to thwart change rather than enable it...

Little on the SIS

The Herald has a big piece on the SIS's unlawful use of customs data, which includes the first comment by SIS Minister Andrew Little on the matter:

Gwyn seems to have eschewed diplomatic niceties for the benefit of plain-speaking. It is not common to have oversight watchdogs speaking so bluntly.

And when Gwynn does speak so, the agencies' minister Andrew Little has reminded Kitteridge that she is obliged to listen.

"The Inspector General is the final and independent active oversight of these agencies.

When she reports, that's the bottom line.

"If the Inspector General is saying something is unlawful, it is for the agencies to step in line with what she says."

Which is what you'd expect a Minister to say. The problem is that here, the SIS has systematically refused to listen, and obstructed the Inspector-General's investigation (which is a crime). There need to be consequences for that, so that they actually get the fucking message. Unfortunately, where Little could be laying down the law and making examples, he is silent. Which is not a good sign that this will be the last case of unlawful behaviour by our spies, or that their culture of impunity will change.