Strengthening proactive release

Newsroom has an opinion piece by Marcus Ganley, on the problems of proactive release of official information. The government releases vast quantities of stuff - annual reports, cabinet papers, briefings, research, investigations, datasets, OIA responses, and so on - but its often very hard to find. It's not deliberate "beware of the leopard" territory so much as no-one really cares about making it easy, and even if an agency is doing a good job this week, they'll inevitably "update" their website, break all existing links, and wreck it all. And of course there's no indexing or metadata telling you what these documents are or what is in them - just a soup of cabinet papers and "proactive release material" you have to trawl through.

There's not even a central index of where to find each agency's data. Te Kawa Mataaho has a spreadsheet listing the various places cabinet papers are found, but it was last updated in 2023 - which I guess shows how much of a priority it is for them.

We can obviously do better than this. Ganley has a few suggestions:

Since 2010, the Australian Freedom of Information Act has required agencies to publish information released to a requester on a website. In New Zealand this is a discretionary matter. Some agencies publish all requests, others only those they deem to be “of public interest”. Making publication of all releases compulsory would be a simple change.

Another step would be to require agencies to publish a much wider range of information on a regular basis. In the same way that we don’t have to wait for someone to request a Cabinet paper, there are whole categories of government information that, after a limited period of confidentiality, could be routinely released.

The UK Freedom of Information Act is the model here. It establishes a system of "publication schemes", basically requiring every government agency to say what it is going to publish, and to actually do it (meaning its legally enforceable; agencies can be forced to publish information they have "forgotten" to). Looking at the model publication scheme shows that it contains a lot of stuff that's routinely published here. But its a legally enforceable duty, not the current system of grace-and-favour, which can be revoked or forgotten on an official or Ministerial whim.

Adopting a publication scheme system would give us enforceable rights to proactively published information. It would also resolve Ganley's other issue, about legal protection for OIA releases not extending to proactive releases, and this perversely deterring release. There are very good reasons why that is the case - they can be summed up with the words "Paula Bennett" - but extending protection to release under a publication scheme would I think avoid that problem, and make it even clearer that any such release is prima facie bad faith (so not protected anyway).

But that still leaves us with the problem of things being difficult to find. There's a solution to that too: open government advocates have long advocated for a central government proactive release portal, with proper metadata, indexing, tagging, and searching. Chris Hipkins even suggested the first step towards one, with a proposal for a central repository for released cabinet papers. But he shot himself in the foot by not even bothering to consult the agency he thought should do it, allowing them to sink it. Such a portal would be a huge leap forward for open government in Aotearoa, the sort of project worthy of the Open Government Partnership. And we need to push for it (and then for things to be added to it). But I just can't see it happening under the current bunch of tyrannical control-freaks.

Crown solicitors deserve scrutiny

Graeme Edgeler had an interesting piece the other day advocating for crown solicitors to be subject to the Official Information Act. Uniquely in the western world, Aotearoa has privatised its most important prosecution decisions to private law firms. These make public decisions in the name of the state, decisions that if they were made by any other government functionary would be able to be scrutinised using the OIA. But because they are appointed by royal fiat, rather than simply a contract, they are not subject to the OIA:

This isn’t true of all prosecutions. The serious fraud office conducts prosecutions – including jury trials – of serious fraud. You can request information about these prosecutions under the Official Information Act. And when Police prosecute more minor offending, and Police prosecutors are making the same sorts of decisions around plea bargaining that Crown Solicitors make, Police are covered by the Official Information Act, and their decisions can be subjected to public and media scrutiny.

And the same goes for importation prosecutions by Customs, and fisheries prosecutions undertaken by the Ministry of Primary Industries, and District, City and Regional Council prosecutions, and even the exercise of prosecution powers by local Fish and Game Councils when people fish or hunt without a licence.

[...]

But, if that charge wasn’t fishing without a licence but was instead murder, the Official Information Act will not help you understand the decisions made by those prosecuting on behalf of the State, because the law says that there is no public interest in allowing OIA oversight of murder prosecutions.

This is, quite obviously, fundamentally wrong. And even the solicitors themselves recognise that! A 2021 investigation of crown solicitors by RNZ quotes one of them as being uncomfortable with the lack of scrutiny of their decisions not to prosecute (it also highlights other issues deserving of scrutiny: the lack of diversity, the level of expenditure, the way that these warrants have been held by the same clique of law firms for a century. Which just... smells. But the state protects itself from investigation by denying basic transparency...)

Not mentioned in Graeme's article: crown solicitors are subject to the Public Records Act. And the terms of their appointment state that all their information belongs to the state, and they must make it available to the Solicitor-General on request. Which simply reinforces his point: these are public officials, making public decisions in our name. As he says, "given the power Crown Solicitors possess, conducting the most serious prosecutions on behalf of the Government, there is no good reason not to subject them to the same scrutiny as Fish and Game wardens."

Graeme has set up a petition to parliament asking for the OIA to be extended to cover them. I've signed it. You should too. Because the people who make decisions about whether to prosecute rapes deserve at least the same level of scrutiny as fish and game wardens.

Using austerity to attack democracy

A couple of weeks ago, when the Financial Times reported that the UK regime was planning to attack their Freedom of Information Act because too many people were using it, I wondered how long it would be before National tried the same. Not long, as it turns out

The Government has asked officials to examine the costs associated with responding to Official Information Act requests, in a move some fear could lead to reduced transparency.

Justice Minister Paul Goldsmith has confirmed any changes could lead to less information being released to the public in some cases, arguing the system has become unsustainable as “every different little element of communication has been included”.

[...]

In a statement to Newsroom, Goldsmith confirmed he had asked the ministry to gather more information on the effects of a sharp increase in OIA requests, which had risen 394 percent since 2016.

“We are interested to know what revisions could be made to make the Act more efficient and practical.”

...which he then confirms means more secrecy. Because that's what "efficient" and "practical" means to these arseholes.

OIA numbers have absolutely risen over the last decade, for a lot of reasons. There have been changes in who and what gets counted, reflecting both government restructuring and evolving OIA practice, and there have been changes in awareness and accessibility and in democratic engagement. But that's really just the background increase. Because when you dig into the numbers, you see huge increases in service delivery agencies, agencies like Corrections and ACC and MSD, who make decisions over people's lives. And it seems that part of the story is that government has become more adversarial - denying people their rights in prison, cutting ACC and benefits to save money - and people are using the tools they have to push back and enforce their rights.

(There are other things going on as well. Over 85% of Custom's OIA workload in 2024 seems to be "travel movement requests" by insurance and finance companies wanting to check if someone has left the country. There are likely other similar stories for other agencies when we start digging...)

Goldsmith has apparently tasked some consultants to dig into this. If they do their job properly, that will help us understand where the increased load has come from, and how badly successive governments have under-resourced agencies to handle this basic democratic requirement. But consultants say what they are paid to say, and they may simply have been paid to do a hatchet job to make a case for removing our rights. The regime could avoid such suspicions by proactively publishing the brief and all their advice on the issue so far. But until they do, we should assume the worst. This regime surrendered any claim to a presumption of good faith long ago.

The OIA is a key constitutional measure, a pillar of our democracy. We can't participate in democratic decision-making or hold the government to account for its decisions without the transparency it enables. Yes, it costs money - but so do elections, and like elections, we should gladly pay that price as the cost of living in a democratic society. A regime which sees it merely as a cost to be cut and controlled is both missing the point, and fundamentally opposed to democracy. We need to vote that regime out while we still can.

Our outdated anti-corruption laws

Last year a group of VTNZ staff were fired after being caught taking bribes to falsify driving test results. This isn't the first time this has happened, and it suggests there's a systematic problem (and there's a big government report on that). But one of the issues is that our anti-corruption laws no longer match the shape of our public service.

In the 2019 case, corrupt VTNZ staff were prosecuted for obtaining by deception, essentially for misleading NZTA about whether people had passed the test. Which got the job done - they went to jail - but the actual offence here is bribery, corruptly using an official position to extort a personal benefit. The two offences have a similar penalty (at least if the amount of money involved is large enough), but very different elements. And one actually recognises what happened and goes on corruption statistics, and one does not.

So why weren't previous offenders prosecuted for bribery? Because they couldn't be. Aotearoa's anti-bribery law applies only to "officials", defined as:

any person in the service of the Sovereign in right of New Zealand [sic](whether that service is honorary or not, and whether it is within or outside New Zealand), or any member or employee of any local authority or public body, or any person employed in the education service within the meaning of section 10(7) of the Education and Training Act 2020.

And despite the name, VTNZ is not a public body, and its employees are not public or state servants. They used to be, but Jenny Shipley privatised them in 1999. They're just an ordinary company, providing a service to the government under contract. "Management by contract" was meant to give greater accountability and transparency. But it turns out that when push comes to shove, it means less of both.

Such relations have become pervasive throughout the New Zealand state. Contractors perform all sorts of private functions. But our anti-bribery law was written in 1961, and is still framed in terms of a monolithic state with a clear distinction between public servants and others. It desperately needs to be changed, to cover anyone performing a public function on behalf of the state. That way, when they take bribes, we can at least call the crime by its name, and recognise that we have a corruption problem, rather than pretending that that's something which only happens elsewhere.

100% pure vandalism

Aotearoa is in the middle of a giant environmental disaster, caused by climate change. So naturally, the regime thinks this is the perfect day to introduce a bill to disestablish the Ministry for the Environment. Because nothing says "we care about this problem" like shutting down the agency which warns us about such things and devises policy to avoid them.

While some staff will be merged with other agencies to form the regime's new development and infrastructure ministry, they will very much be sidelined, taking a back seat to the new agency's core functions of housing, transport, and local government. The rest will simply be sacked. Which means all that policy expertise will be lost to Aotearoa forever, and will take decades to rebuild. Which is the point. National wants to silence the institutional voice for the environment, so they don't have to admit in their cabinet papers that MfE told them it was a terrible idea with terrible consequences. So they're going to just rev up the bulldozer and crush it all, so nothing can stand in the way of them bulldozing everything else.

Again, this dogshit vandal regime has to go. The question is how much of Aotearoa they'll outright destroy before we can get rid of them.

How do we change OIA culture?

Former district court judge David Harvey has a column in the Herald today lamenting the state of the Official Information Act. Like others before him, he agrees that the law is fundamentally sound - its the public service that is the problem. Despite clear statutory language in favour of transparency, they are incentivised by ministers, chief executives, PR departments and deliberate underresourcing to delay, deny, and defend against OIA requests. And the Ombudsman is no help, because they are also structurally underresourced, and culturally focused on turning over complaints as quickly as possible to make their numbers look good, rather than actually investigating.

This isn't an abstract problem. As Harvey points out,

secrecy and obfuscation are not neutral administrative choices; they actively corrode democratic legitimacy.

And that is exactly what is happening. And you only have to look overseas to see where that leads.

What can be done? People have talked about training, but no-one is doing it - at least, not the sort of training that rams home to public servants that their duty is to the people, not the minister, and that they need to release information ASARP. And while criminal penalties for egregious abuses would help (and are entirely normal overseas), Ministers seem unlikely to pass laws which punish those protecting them, and the police seem unlikely to enforce them if they are passed.

The core problem here is that the fish rots from the head. Ministers want to be protected, and chief executives obey because they want to keep their jobs. So breaking the employment nexus by making chief executive contracts non-renewable while imposing clear positive transparency duties would be a start. We already do this for the Auditor-General precisely to prevent cosy relationships and strategic employment-seeking behaviour from corrupting their duties; doing it to the rest of the public service isn't so great a step.

Fundamentally, though, it comes down to ministerial leadership. Everything is downstream of that. When the OIA was passed, ministers decided they wanted it to work, made their expectations clear to the public service, and resourced them to do it. We clearly need a similar drive from ministers to clean out the culture of secrecy they have imposed, and restore transparency. As for how to get that, that seems to be our job, through the electoral process. Those running for office need to be asked about their attitude to the OIA, and what they will do to restore transparency. Those who support secrecy, or who do not keep their promises need to be electorally punished. Until that happens, ministers will keep fucking us over, and we will keep responding to them with the disdain that deserves, and public trust in them and their institutions will continue to decline.

Naked cronyism

Judith Collins, the toxic piece of shit responsible for National's campaign of dirty politics, is finally retiring. Yay! But we're not rid of her yet, because in a parting gift (and an effort to continue her malign influence), she'll be appointed as president of the Law Commission.

The appointment is naked cronyism, a retirement package to ease her way out the door. As president of the Commission, Collins will be paid over half a million a year - more than the Prime Minister. She's not unqualified for the role, and if this appointment had been made five or ten years after she had left politics, then it would have been far less controversial. But the Law Commission is meant to be a politically neutral expert body advising on law reform - and there is simply no way Collins, with both her reputation and recent political involvement, can meet that part of the brief.

Meanwhile, looking at the list of the Commissions current projects - which include hate crimes and director's duties and liabilities - and you can see all sorts of ways for a far-right scumbag like Collins to put her thumb on the scale, and distort the direction of our law for decades (let alone of the Commission is requested to examine terrorism or protest law). But then, the solution to a politicised Law Commission is for elected governments to keep throwing its reports in the bin. But then, there's simply no point in having such a body - and paying Collins half a million a year - if that is the result.

As I've said on other crony appointments, this corrupt culture of political cronyism around public service positions has to change. Appointments should be made on merit, not on connections or patronage, and appointees should be able to demonstrate they meet basic political neutrality criteria. Politicians have repeatedly demonstrated they are incapable of doing that job properly, so its time to take it out of their hands, and give it to an independent appointments body. That is the only way to end this corruption in our political system.

Coalition of cronyism

Another day, another naked crony appointment from the regime. This time its gun minister and former gun lobbyist Nicole McKee appointing fellow gun loonies to the Ministerial Arms Advisory Group:

The search for two new members took place last year after four MAAG members came to the end of their three-year terms. McKee decided to reappoint two (Shayne Walker and Debbie Lamb) and cut two (Yasbek and Helene Leaf).

McKee also agreed to the Ministry of Justice seeking nominations through “agencies, ministers, Cabinet, caucus and interested groups”, according to a ministry briefing in July, released under the Official Information Act (OIA).

A week and a half later, she changed her mind when the ministry sought permission to invite nominations from groups including the police, Te Puni Kōkiri, the Māori Firearms Forum, MAAG members and the Arms Engagement Group. The ministry should only proceed if there were no nominations from her coalition colleagues, McKee’s private secretary told the ministry.

According to the OIA documents, McKee, who is an Act MP, then told two people she wanted for the group (Mike Spray and Michelle Roderick-Hall) to send their CVs to the Act Party’s chief of staff at the time, Andrew Ketels, who nominated them.

Who are her preferred nominees? Both gun nuts, one has worked directly for McKee's company Firearms Safety Specialists NZ Limited, and the other has worked indirectly for her through an organisation FSS founded. So its naked cronyism.

This isn't a statutory position, so the appointments can't be declared unlawful (unlike the regime's unlawful crony appointment to the Human Rights Commission). But its morally no different. And it makes it clear that this government is about abusing government to hand out public salaries and policy influence to its mates.

This has to change. The culture of crony appointments has to stop. That's not just a matter of de-electing this regime, because Labour is no different. Instead, all government appointments, whether statutory or ministerial, need to be taken out of the corrupt hands of politicians, and be made by an independent appointments body. The politicians have shown time and time again that they cannot be trusted to apply the law correctly when jobs are involved. Time to give the job to somebody else instead.

Under-resourcing transparency

The Ministry of Health is in my experience one of the worst performing government agencies when it comes to handling OIA requests. They unlawfully extend any non-trivial request, hyper-parse everything and adopt the most unhelpful and self-serving interpretation without consultation (and in violation of the principle of availability and the duty of assistance), and in the end are late anyway. Their Minister reportedly blames resourcing pressures for this. But as the PSA points out, resourcing is decided by the Minister:

However, the PSA's national secretary Fleur Fitzsimons told RNZ the minister should be taking responsibility instead.

"It shouldn't take the Ombudsman stepping in for Health NZ to provide information to the public, but really this does come back to the minister. He can't keep demanding savings and then blame officials when the impacts of cuts are felt," she said.

"Health NZ has lost over 2000 roles either through early exits, voluntary redundancies, or vacancies not being filled. This includes teams that support official information requests. They've lost critical expertise."

She said it was no wonder the public wanted information when the government was making such cuts, and the minister, his office, and health agencies should have seen it coming.

"This government is undermining the Official Information Act. It plays an absolutely critical role in enabling the participation of the people of New Zealand in public administration, but also in holding ministers and officials to account."

Its also worth noting that the courts have ruled (in relation to Corrections) that resource limitations do not justify failure to comply with statutory duties; if there are resource issues, then it is the chief executive's duty to reallocate resources so there are not. In the case of Corrections, the High Court ordered the chief executive personally to obey - raising the prospect of fine or jail if they do not. If government agencies keep making similar pleas when it comes to the OIA, then its time we took them to court and subjected them to similar orders.

Meanwhile, RNZ also quotes Labour's Carmel Sepuloni as blaming under-resourcing and cuts for OIA delays. So obviously, if she becomes Minister, she'll be ensuring that transparency is fully resourced, and that information is released expeditiously, and she'll resign if its not, right? I look forward to a public commitment from her, and all Labour's potential Ministers, on this.

Unlawful appointments

Last year, the regime sabotaged the Human Rights Commission by appointing a pair of terfs and hatemongers as chief human rights commissioner and race relations commissioner. And when people dug into the appointment process, we found it to be the usual crony stitch-up: both candidates had been shoehorned in at the last-minute and were appointed against the recommendation of the independent panel (and in the case of for-the-time being chief commissioner Stephen Rainbow, because he was an ACT-party crony).

Now, the High Court has ruled that both appointments were unlawful, as Minister of Justice Paul Goldsmith applied the incorrect legal test and ignored mandatory considerations in his decision-making. They have not overturned the decisions - Rainbow and Derby get to keep their jobs. But there's a clear statement that the Minister of Justice failed to do what was legally required of him.

What does this mean? Firstly, I've looked at a lot of government appointments over the years, and a lot of them follow this pattern. Some of them are potentially at risk of being overturned (for example, the 2024 appointments to EECA, or maybe this year's appointments to the Waitangi Tribunal). A big problem is that ministers shoehorn candidates in and appoint them and don't say why - because the "why" is unseemly and corrupt: "jobs for the boys" / getting your own people in regardless of merit to sabotage an agency. While Ministers can subsequently explain why in court of challenged, the court was pretty suspicious of Goldsmith's evidence, implying it was an ex post facto invention to fit the case, nad basically disregarded his bland statements that of course he followed the rules, because he provided no actual detail. The upshot: Ministers are going to have to provide a better documentary record of why they make appointment decisions, and exactly how candidates fit the statutory criteria, or risk having them overturned.

Secondly, of course, this obviously affects the mana of both the candidates and the commission itself. And given the centrality of mana to the work of the commission, a decent, professional person would recognise that this made their position untenable, and resign. It remains to be seen if either Rainbow or Derby are such people.

If they're not, well: from the outset I've said that as they did not meet the statutory criteria, and are unable to credibly perform the functions of their office, the next government should exercise their lawful powers under the Crown Entities Act and simply sack them. Now that there is an explicit ruling saying their appointments were illegal, that seems even more urgent. Unlawful appointments cannot be allowed to stand. it is that simple.

Finally: again, this highlights that the key problem in state appointments is corrupt Ministers, and the solution is to remove them from the process entirely. If we want independent, lawful, merits-based appointments according to statutory criteria, then we should give the job to a permanent independent appointments panel. We already use such a process for appointing the Government Statistician (with criminal penalties for any Minister who attempts to interfere in it); we should do the same for other roles, starting with constitutional appointments and independent crown entities and working our way downwards. Ministers cannot be trusted not to behave corruptly; we can fix that problem simply by taking the job off them.

The obvious question

Stuff has a story about ACC lying in an OIA response, and how it was exposed by a whistleblower under the Protected Disclosures (Protection of Whistleblowers) Act 2022. Its the usual story: journalist hears about expensive party, sends in an OIA request, is pressured to agree to limit scope to parties which cost over a certain amount in an effort to prevent disclosure, then when it turned out that it did cost more than that due to travel costs, they decided they were really travelling for "other work" so they could pretend those costs didn't count. And everyone involved knew it was wrong:

Another staffer disagreed with the manager.

Their message said: “‘other work’ This is wrong. Fundamentally wrong.”

In the discussions, ACC staff had said they did not believe that all of those 11 staff would have flown to Wellington had the farewell function not been held.

The manager admitted it was dodgy. “Everybody knows that,” they said. They then said they would personally sign off the response.

That statement indicates a willingness to take responsibility for the illegal decision. Which raises the obvious question: have they? Have they faced an employment process over it? If not, why not? Because knowingly violating your legal obligations as a public servant is the very definition of "serious misconduct". And people should be fired for it.

A terrible idea

RNZ reports this morning that the regime is conspiring to abolish the "demographic ministries":

The Public Service Commissioner is considering a major shakeup of several government agencies, including the Ministries for Women and Pacific Peoples.

Sir Brian Roche is refusing to rule out that they would be absorbed into larger ministries and said "all options are on the table" and he was "not going to get into ruling things in or out".

To point out the obvious - which the white men running this government don't seem to have noticed - these ministries exist for a reason. They exist to give a formal voice in government to people that the power structure systematically ignores. Like women, who are ignored distressingly often, despite being a majority of the population.

Abolishing them wil remove those perspectives. It will mean that women, Pasifikia and the disabled will not be heard in government, and policy about them will be made without them. This isn't just misogynist, racist and ableist - it is also a mistake. The lack of those perspectives will lead to worse policy and expensive but unexpected (to the bland white econodudes in the regime) outcomes.

The fundamental problem here is that said bland white econodudes do not recognise that they do not know everything - that there are entire worlds outside their experience, which they don't bother to model because they're "not important" (to them and the things they care about). We've known this for decades - Marilyn Waring literally wrote the book on it - but they prefer their models of perfectly spherical people in a vacuum, and if reality doesn't match, well, it is reality, and the annoying reminders of it, which must change. This is not a recipe for good policy. It is not a recipe for good governance. And it is certainly not a recipe for happy politics. And this regime needs to have that rammed home when we vote them out at the next election.

(Meanwhile, as for Rimmer and his cries that we shouldn't have ministries for specific types of people, that's rather rich, coming from a guy who had a whole ministry for weirdo libertarians created just for him. He should just smeg off back to the far-right thinktank which spawned him and stop fucking up our country).

Gagging the medical professions

Aotearoa has had a public health system since the First Labour Government in the 1930s. And for as long as it has existed, medical professionals have been speaking out about its failures, criticising cuts, and generally acting as a watchdog on government policy. This has been inconvenient to those governments, but the professional role of medical staff has always been respected, because it is recognised that - like academics - they have a duty to their patients and to the public.

...until now. Faced with a public health system collapsing due to systematic underfunding, National wants to silence medical professionals. Its Healthy Futures (Pae Ora) Amendment Bill (which is primarily about imposing white supremacy) includes a clause classifying Health NZ staff as public servants, and requiring them to uphold the principle of political neutrality.

This is a complete novelty in Aotearoa. As noted above, medical staff in the public health system have never been classified this way. And this isn't about a change in status - DHBs have been legally "crown agents" since the 2004 reorganisation and reclassification of the wider public sector with the Crown Entities act 2004, and were effectively in that position since their foundation in 2000 (as were their Area Health Board, Regional Health Authority, Crown Health Enterprise, and Hospital and Health Service predecessors). Instead, the motive is obviously to gag critics of the regime.

You might think that this would engage the right to freedom of expression affirmed by the BORA - and you'd be right. But weirdly, the Ministry of Justice, who did the BORA vet on the bill, didn't think so - they don't mention it, even to say it is a justified limitation. Though possibly this is because, as usual, they "ha[d] not yet received a final version of the Bill" (which should raise questions about the quality of the Ministry's BORA vetting process, and the quality of the advice on this core constitutional responsibility...)

What might a BORA vet have looked like? In the case of ordinary public servants, we accept that political neutrality and consequent restrictions on publicly criticising the government of the day are a justified limitation, because a neutral public service is an important public purpose, and the restrictions are proportionate. But ordinary public servants don't have a professional obligation to protect the public of medical staff, or a decades-long tradition of doing so. And the latter is relevant - as the Attorney-General noted in her section 7 report on the voter suppression provisions of the regime's Electoral Amendment Bill:

Expectations based on longstanding legislative settings are salient to judging potential prejudice and proportionality.

We have an expectation based on long-standing legislative settings that medical staff are free to act as critics of the public health system. They have been part of the wider state sector for nearly a century, and have always been free to speak. Restricting that right, when nothing meaningful has changed in terms of their status, therefore seems disproportionate.

The regime could have made a case that this change complies witht he BORA. The fact that they haven't even bothered speaks volumes. It must be rejected. If you'd like to speak up on it (or the other, racist changes in the bill), you can do so here.

Feathering their cronies' nests

The central refrain of this regime has been "we can't afford it". They're constantly pleading poverty over public services, and using "tight" finances as an excuse to drive down public service wages. Meanwhile, they're nearly doubling the pay of their cronies who serve on government boards:

A Cabinet document, quietly uploaded online on Monday, shows ministers agreed to lift the maximum annual fee for chairs of governance boards from $90,000 to about $162,000.

The "Cabinet Fees Framework" is not binding but provides guidance to ministers when deciding compensation for those on a range of bodies, such as royal commissions and ministerial inquiries.

Speaking on Tuesday, Luxon said public sector fees had become completely "out of whack" with private sector rates and needed a reset.

So, just to get this clear: workers are paid too much and need a pay cut, but managers and board directors are paid too little, and need a whopping increase (probably so they can afford butter). As usual, austerity applies only to normal people, not the rich. Alternatively, the regime is just looting the public purse and engaging in upwards redistribution - as usual.

And next, of course, those higher pay rates for government boards will be used to "justify" higher pay for Ministers. Just wait...

More misogyny from National

How misogynistic is this dogshit regime? Since 2020 the Public Service Act has included explicit legal commitments to pay equity and diversity in the public service workforce.

This government is repealing them. Today they introduced a new Public Service Amendment Bill, which (among other things) repeals pay equity and freedom from bias from the "good employer" principles, and removes the promotion of diversity and inclusion as a duty of chief executives.

Reading the bill's Regulatory Impact Statement, there's a lot of mealy-mouthed bullshit about how these are things better addressed through the public sector workforce policy statement, and how "different governments take different stances on these matters". Clearly. This government, for example, does not believe in pay equity. It wants to pay women less. It also does not believe the public service should look like Aotearoa, preferring instead one which looks like local councils (where for a while there were more bald old white men called "John" than women as councillors). That position is simply not shared by the people of Aotearoa. And if we're allowed free and fair elections next year - currently in doubt due to regime plans for voter suppression - we should throw this misogynistic pack of wankers out on their arses.

Stealing from their victims

Between 1950 and 1993 the New Zealand government tortured and abused up to 250,000 children in residential care facilities. Following decades of cover-up and denial, dragging out cases, slandering their victims, and denying redress, the government finally gave a two-faced "apology" last year. You might think that that would mean they'd finally provide proper compensation for their victims, but no - that would cost money. So instead, they're spending two-thirds of their announced $774 million package on "administration" - that is, on denying claims:

Less than a third of the government's $774 million abuse in care redress package will end up in the pockets of survivors.

Figures obtained by RNZ revealed only $205m was earmarked for paying new claims with $52m to go towards topping up previously closed claims.

In defence of the figures, Erica Stanford, the Minister leading the government's abuse in care response, said redress payments were not the most important thing for some survivors and some of the $774m in this year's Budget was going towards changing the care system and providing other supports.

However, $92m was for the civil servants who administered the redress funds and another $37m would pay for operating costs like premises and IT.

So basically they're stealing from their victims, while bundling up other costs to make a Big Number for PR purposes. Its revolting, the sign of a government driven more by austerity and PR concerns than by righting its past wrongs. And combined with the news that none of the public servants identified as being responsible will ever be held accountable, it makes it crystal clear that this government does not give a single sloppy shit about its victims.

The rotten, unaccountable crown

Between 1950 and 1993 the New Zealand government tortured and abused up to 250,000 children in residential care facilities. They then proceeded to cover it up in order to minimise their liability, dragging out cases, slandering their victims and ultimately denying redress. In its final report, the Inquiry into Abuse in Care declared that this policy was wrong, and named specific public servants who were responsible. Some of those public servants - including Solicitor-General Una Jagose - are still employed in positions of responsibility. But now, the government has decided none of them will ever be held accountable:

After examining its own conduct, the state has decided it will not take any action against public servants named or implicated in the landmark Royal Commission of Inquiry into Abuse in Care.

[...]

Public Service commission deputy chief executive in charge of policy and integrity Hugo Vitalis told Newsroom he did not believe the behaviour of those identified amounted to ‘misconduct’ or ‘historical misconduct’.

“Nevertheless, in all cases the commission considered the commentary, discussed the matter with the relevant employer and was satisfied that no further action was required.”

I guess they've decided to accept Jagose's "befehl ist befehl" argument.

So, we have a huge crime by the state and its agents, and the state just washes its hands of it, holds no-one accountable, and refuses to compensate its victims properly. Apparently people are just meant to be happy with a bullshit, two-faced "apology". And then they wonder why public trust in them is declining. This is why. Because a state which outright refuses to hold itself accountable for torturing children is basically a criminal regime, and unworthy of trust or respect.

Grooming us for identity theft

Local body elections are in October, and so like a lot of people, I received the usual pre-election enrolment confirmation from the Orange Man in the post. And I was horrified to see that it included the following:

Why horrified? After all, surely using email, rather than the failing postal system, makes elections more accessible?

Sure. But it also exposes us to scams and fraud. Think about the emails you usually receive. How many of them are real? Now think about important emails - things from your bank, or NZTA, the IRD. How many times have you seen warnings from the government or these bodies about scam emails?

Now imagine the following: you receive an email from "votе.nz", with a link (also to votе.nz) where you can confirm your details. You click it, and it presents you with a RealMe login page, asking you to enter your username and password to proceed.

This is exactly what the government would do (because DIA is desperately pushing RealMe into everything whether they want it or not). And its also how you get scammed (with or without the lookalike Cryillic letter). And in this case, the consequences of being scammed includes identity theft, someone being able to use your RealMe to get a passport in your name, and possibly having your voter details changed to deny you your right to vote.

The government should be protecting us from these risks. Instead, we have a government agency basically grooming us to be scammed, because its more administratively convenient for it to do so. Its stupid and wrong, and it would be nice if they stopped.

Law, culture, and the OIA

Yesterday outgoing Ombudsman Peter Boshier published a report, Reflections on the Official Information Act, on his way out the door. The report repeated his favoured mantra that the Act was "fundamentally sound", all problems were issues of culture, and that no legislative change was needed (and especially no changes to his office). Open government advocate Andrew Ecclestone has already done a deep dive into the legislative changes Boshier has advocated in the past, so I'll restrict myself to two points. Firstly, it is quite worrying that the only legislative changes he highlights in his report are those that strengthen the state by giving it impunity to dox its critics and restrict requesters by creating further - and entirely arbitrary - reasons for refusal. And secondly, the primary way we can change the culture of government to be more open is to legislate for it.

The latter ought to be obvious. After all, that's what the Official Information Act was all about: legislating to change the culture from one of secrecy, where telling people what government was doing was literally a crime, to one where "information shall be made available unless there is good reason for withholding it". That principle has been eroded in various ways, or not worked out as well as it should have. But we can absolutely push things back in the other direction by legislating for it. If we don't want public servants to destroy data to hide it from requests, or Ministers or their advisors ordering public servants to lie, we can legislate to make those things crime. If we want proper proactive release, rather than the current half-arsed grace-and-favour system which hides everything and releases nothing, we can legislate for that too. And if we want it to be harder for agencies to refuse or delay requests, we can legislate for that as well. Because while agencies have a clear interest in hiding information, fundamentally public servants will obey the law rather than risk jail, and that is a way of changing the culture.

But its not just the culture of the public service which needs to change - its also the culture of the Ombudsman's office. In the report, Boshier rejects the idea that the idea that his office is toothless (and needs to be replaced by an independent Information Commissioner) as

While it is true that my role is recommendatory only, the OIA imposes on agencies and Ministers a public duty to observe my recommendations. This public duty may be enforced by the Solicitor-General by issuing court proceedings. My predecessors and I have on rare occasions had cause to refer unheeded recommendations to the Solicitor-General for enforcement and this has prompted compliance without the need for court proceedings.

Which sounds tough. But how many times has he actually done this? Once. And its worse when you realise that the Ombudsman bends over backwards to avoid issuing formal recommendations which would create such an enforceable duty - instead preferring to resolve almost all complaints informally and by mediation. And the perfect example of this is Health NZ, which the Ombudsman singled out for a litany of unlawful behaviour in his accompanying "timeliness reviews".

The core problem with Health NZ is that they are deliberately delaying OIA responses by a blanket 5-8 working days for Ministerial "review". This is a widespread problem - its also mentioned in DIA's timeliness review, and mentioned in Kāinga ora's. And its a long-standing one. For example, the Ombudsman upheld a complaint against police over this back in 2022, but made no recommendations, "as Police informed him it had amended its ministerial notifications practice during the investigation". Public duty avoided, they then changed them right back, showing the Ombudsman to be useless and toothless. If the Ombudsman had issued a formal recommendation, that wouldn't have happened. But they're too conflict-averse, too focused on mediation, too unwilling to clean out bad behaviour with fire and sword - and so bad behaviour continues and grows.

(To pick another example: seven years ago, I request some information from MFAT. After two investigations by the Ombudsman, they promised they'd talk to a foreign government about ensuring its release. And they just... haven't. They don't respect the watchdog, and they think the promises they make to it can be ignored).

In the case of HealthNZ, the Ombudsman did make a recommendation. But its under the Ombudsmen Act, so no enforceable public duty applies. And of course it applies only to Health NZ, so other agencies are free to ignore it. Which is another example of why we need to replace the mediation-focused Ombudsman system with a judicial one with an Information Commissioner: because while agencies and public servants routinely ignore the Ombudsman, a judicial model will produce actual court orders, which are both far less ignorable, and provide clear legal precedent for other agencies. Which seems far more robust than the current system of urging agencies to "be a good chap".

An inappropriate candidate

Last month I dug into the appointment of fossil-fuel lobbyist John Carnegie to the board of the Energy Efficiency and Conservation Authority. Carnegie was rejected as a candidate in two appointment rounds, being specifically not recommended because he was "likely to relitigate board decisions, or undermine decisions that have been made" and "likely to create tension or conflict with fellow board members". Despite this, then-Energy Minister Simeon Brown appointed him anyway. So how bad a candidate was he? RNZ's Eloise Gibson has done some digging of her own, and turned up a rather disturbing interview (on a cooker platform, to boot) where he rails against EECA's work:

"[Oil and gas companies] are asking what will happen in six or nine years if we get someone who basically a) wants to reintroduce Onslow [a massive pumped hydro electricity scheme], who basically wants to go back to the old policies so, b) wants to make fossil fuel technology harder to consent, reintroduces a 100 percent renewable electricity target, reintroduces GIDI... that was the state subsidised demand destruction... that's the question investors are going to be asking," he said.

GIDI was the Government Investment in Decarbonising Industry fund, under which EECA gave grants to heavy industrial companies to subsidise the costs of converting coal and gas boilers to electric or biomass.

GIDI has been scrapped. But EECA's core functions still reduce demand for oil and gas.

Whether he will effectively do that work, or whether he will try and sabotage it from within is left as an exercise for the media. But MBIE had pretty clearly reached their own conclusion on that question, which is why they recommended not appointing him.

Meanwhile, that rant - reintroducing Onslow (killing winter demand for fossil fuel peaking), making fossil fuels harder to consent, a 100% renewables target (now looking entirely achievable in an average year thanks to solar), reintroducing GIDI, and state-sponsored demand destruction to drive the fossil industry out of business - looks like a solid policy agenda which would give us both energy security and cheaper power. And hopefully we'll see exactly that when we throw this corrupt, climate change denying government out on its arse.