The Setchell report

I've spent the last hour reading Don Hunn's Investigation into the public service recruitment and employment of Ms Madeleine Setchell [PDF], and its not a pretty picture. We have not one, but two Departmental Chief Executives who refused to employ Setchell on political grounds after consultation with their Ministers. While officially, the decisions were their own, the fact that they were even asking compromises their independence in employment matters, and the political neutrality of the public service. We also have a Chief Executive of MfE who cravenly refused to stand up for public sector values in the face of a bullying and authoritarian Minister, then impugned the integrity of his employee in an effort to cover his legal arse. Mr Logan is now paying for that, by losing his bonus (about $50,000), but I'm not sure that its enough. Public servants depend on chief executives to stick up for them, and for the public service values which allow them to do their jobs effectively. Hugh Logan has failed in that basic duty.

By contrast, State Services Commissioner Mark Prebble comes out of it looking fairly good, apart from the issue of an inconvenient memory lapse. Unlike Logan, he did stand up firmly for public sector values (it being his job and all). The report's account of the SSC's position (p 17 and 18) makes this clear:

The Commissioner made the following points:

• the increased emphasis on environmental policy was not the same as close political management of the Minister’s position;
• if the Government was planning a politically oriented environmental communications programme, the Ministry shouldn’t be doing it: if it wasn’t, it should be possible to find a way to manage the appointment;
• because the Minister might have expressed certain views the previous evening, was not sufficient reason “to do anything dramatic”;
• the CE had a role as a good employer and his primary obligation was to concern himself with his employee;
• it would be most unwise for the CE to manage his subsequent discussions with the Communications Manager so that she felt the need to leave;
• while Ministers could not interfere with individual employment matters nor tell the CE how he was to manage individual staff members, nevertheless they could say who they were not prepared to work with or to have present at meetings in their offices.

On this latter point the Commissioner elaborated that though the Minister could say who was to be present in his office, the Minister could not require the CE to prevent particular individuals in the Ministry from having certain roles or even accessing certain information. It was the CE’s responsibility to run the department and provide assurances as to confidentiality. If the CE had confidence in the behaviour of individual staff members it was beyond the power of a Minister to control who had what role or how they worked.

The Deputy State Services Commissioner also stood up for the values of the public service, at one point telling Logan that "if the Minister does display concern, just tell him to get over it". Which is what all Chief Executives should be doing. Managing conflicts of interest professionally is their problem, not that of the Minister.

Despite this, Prebble has fined himself (about $10,000) and effectively offered his resignation. In light of the above, I think it would be foolish to accept it.

For those who can't be bothered reading the full report, Audrey Young has a good summary here.

The damage done

So, it looks like it's third time lucky for the police. Having dumped their case to Campbell Live and the Herald, only to have them withhold the really juicy stuff for fear of being charged with contempt, they've finally got what they wanted from Fairfax, who have smeared it across their front page and all across the web. A summary of the case, timelines, wiretap excerpts, exactly what the police leaking it were hoping for, all sourced from the affidavit backing the search warrants for the original raids.

The Dominion-Post claims to be acting in the public interest in doing this. I don't think so. As the Ombudsmen have often pointed out in OIA cases, "interest by the public" does not necessarily equate to a public interest in release. While many of us have a prurient interest in knowing exactly what motivated the police case, there is an overwhelming public interest in upholding the rule of law and the right to a fair trial for the accused. And that interest has been fatally damaged by the police and media's actions.

I have already said that I am against trial by media, and this clearly demonstrates why. If this material had been revealed in court, the defence could have properly tested it and cross-examined the witnesses. That right has now been denied to them, as they cannot respond for fear of prejudicing their case on the remaining charges. The effect will be to establish "facts" in the public mind (and thus of potential jurors) which have not been properly tested - "facts" which are highly contentious and could have a significant bearing in a case which is ultimately about the purpose for which firearms were being used.

It’s all the worse when you consider that in an effort to avoid prosecution, the Dominion-Post has anonymised the evidence. While on the one hand this seems to avoid some of the worst features of trial by media, the net effect is to lose any distinction between the accused, and tar them all with the same brush. According to Campbell Live, the number of people recorded making dangerous and violent statements was five - but now all seventeen defendants get to be smeared with the extremist views of Jamie Lockett.

That of course was the aim of the police in leaking this - to show that they were justified by smearing the accused. This is grossly improper for any police officer, and speaks of an utter contempt for the judicial process and rule of law. And in the face of such gross malfeasance by the police and the media and the damage it has done, the court now has only one option: to declare a mistrial.

Creationism evolves

Salon has an intersting piece about how "intelligent design" has evolved in the wake of its court loss a few years ago. Some have regressed straight back into the young-earth creationists we knew they were all along, while others have decided to remove all talk of intelligence or design, and try instead to force teachers to "teach the controversy" - a controversy which, like that of climate change deniers, really only exists in their own minds. But the ultimate aim here isn't to inform students about genuine scientific disagreement, but to create the perception of disagreement where there is none, and so leave students confused and ignorant. It's a classic PR tool, used by the tobacco and climate change denial industries, as well as every polluter under the sun. Unfortunaely, in the US, it seems PR gets to masquerade as "education"...

Election funding: cutting it fine

The government is cutting it fine on the Electoral Finance Bill. While it officially has a report back date of January 25, it is actually expected to report back this week. I was expecting it today, but its now looking like Thursday. And with only ten sitting days before the House rises for the year, they're running out of time.

Once reported back, the report must sit on the table of the House for three sitting days. So, if it is reported back on Thursday, it can have its second reading next Thursday. That will leave only four sitting days to deal with the committee stage and third reading. With National and ACT likely to pull out all the stops to disrupt the legislative process (note, not oppose - disrupt. They won't be debating it, but rather trying to make the House unamangeable by abusing procedure, just as they did over the Employment Relations Act back in 1999) and so prevent it from coming into force on January 1 next year, they're going to have their work cut out for them.

Of course, there's always the option of urgency. And with such a tight deadline, it might be able to be justified. But in general, I'd prefer the House to organise its programme properly, rather than ram stuff through at the last minute.

National supports slave labour

Yesterday, I pointed out that the National Party was casting around for a new source of warm bodies to underpin its "low wage, low skill" labour market policies. And it seems they've found them: prisoners. National wants all prisoners to be forced to work - but stripped of the redneckery, what this actually means is that they want the coercive power of the state used to force people to labour for lower wages than they would receive in a Chinese sweatshop.

There is a name for people kept behind bars all day and forced to labour for the benefit of others and punished if they refuse. They're called slaves. And the National Party wants to revive it in our prisons.

It's easy to see why. National naturally looks to America, and prison slave labour is big business over there. The captive population (mainly of Afro-Americans arrested for minor crime or drug offences, or incarcerated for life for trivial offences under "three strikes" laws - plus ca change, plus c'est la meme chose) are forced to work for a pittance, and their services contracted out to major corporations. Prisoners don't have union, employment, or workplace safety rights, so costs can be kept low. And if they complain about their treatment, you can beat them in the head with a stick. This return to nineteenth-century employment conditions allows US companies such as Dell, KMart and IBM to stay profitable. It also helps keep wages in the free economy down - after all, if you ask for too much, your job can always be "insourced" to prisoners instead.

Like American-style healthcare and anti-terror laws, this is not a disease we should be importing into our country. Quite apart from the fact that it violates international human rights obligations (something even the US admits when it is Chinese prisons they are talking about) and the effects on the free economy, it is simply morally indecent. Our government should not be engaging in slavery - it's as simple as that.

This isn't to say that I don't think prisoners should be given proper training and decent work for decent wages if they want it. These things can play a useful role in rehabilitation. But it must be done under the same standards that apply outside prison - it must be voluntary, paid at full market rates, and with the full protections of employment law. Anything less is exploiative, indecent, and wrong.

Terrorism Bill third reading

After last week's debacle over the police failing to press terrorism charges against the Urewera 17, you'd think that the government would be taking a more cautious approach with anti-terror law. But no - the Terrorism Suppression Amendment Bill will be receiving its third reading in the House today. While it’s being spun as necessary to comply with UN obligations (only if you think that those obligations include autocracy and the removal of judicial oversight on designation decisions), the bill is aimed fairly and squarely at non-existent domestic terrorism. So it creates a new general offence of "committing a terrorist act" with a penalty of life imprisonment, and removes the defence that it is not a crime to collect funds "for the purpose of advocating democratic government or the protection of human rights" from the terrorist financing section. With the police already over-reaching with existing terrorist laws, these are not steps we should be taking. Unfortunately, both major parties are firmly behind the US line and shit-scared of being labelled "soft on terror", so it will be law by the end of the week.

As for what I'd like to see instead, we do have UN obligations, so we do need a designation system (with ancillary offences of participation and financing). And it is appropriate that the primary decision-maker in designation is the executive rather than the judiciary. However, that system should apply only to foreign groups, and it should have full judicial oversight; if the UN is designating groups for political reasons on no evidence, then our courts should be able to say that. The ancillary offences should also protect the human rights of New Zealanders by making it clear that participation and financing must be intentional rather than reckless, and aimed at enhancing the ability of the group to engage in terrorism. The existing defence for supporting democracy and human rights should be retained.

As for domestic terrorism, this should be prosecuted under ordinary criminal law. Every act of "terrorism" is already by definition an act of murder, assault, criminal damage etc, and those crimes are well-understood and have sufficient penalties. This will have the added advantage of keeping the police's attention where it should be - on crime - rather than sniffing around looking for "subversives" to persecute. Because if the last month has shown us anything, its that a police anti-terror unit with nothing to do will create work for itself, at the cost of all our human rights.

Election funding: an attack on democracy?

So, the Herald thinks that the government's Electoral Finance Bill (due back from committee any day now) is an attack on democracy. I disagree. The real "attack on democracy" comes not from the bill, but from an existing regime which allows rich parties with rich mates to ignore disclosure requirements and circumvent spending limits - effectively allowing them to sell policy and buy power.

We saw these loopholes exploited in the 2005 election, when National used a network of secret trusts to launder donations, thus preventing any public scrutiny of what donors were getting in exchange for their money. That party then used its mountain of cash to spend up large on advertising before the regulated period began, thus circumventing its spending limit. Then, when the election campaign actually began, it colluded with the Exclusive Brethren and the Fairtax lobby to have well over a million dollars spent in support of their election, over and above their official spending. This was on material designed and scripted by National, but officially published by others in a deliberate effort to circumvent the law.

No democrat can regard this situation as satisfactory. Disclosure regimes and spending limits exist for a reason: to prevent corruption and ensure political equality between citizens - to ensure, in other words, the ideal of "one person, one vote". The core provisions of the Electoral Finance Bill - an extension of the regulated period and restrictions on third party advertising - protect that ideal. And while many of the provisions of the bill are flawed, I am confident that it will emerge from select committee with those features substantially improved. The definition of "electoral advertisement" will be narrowed, third-party spending limits are likely to be more realistic, and the bar when third-party registration kicks in raised as well. Better yet, it now seems likely that we will also see a crackdown on anonymous and laundered donations. These changes will no doubt fail to satisfy the extremists who proclaim an absolute "right" of the rich to buy elections, or the National Party (whose bad faith, self-interest, and hypocrisy on this issue are self-evident) - but they will satisfy the vast majority of New Zealanders who believe in democracy and want to ensure they have an equal say in our elections.

Another terror case thrown out

This one in Australia.

A judge has delivered a scathing criticism of ASIO officers involved in bringing terror-related charges against Sydney university student Izhar ul-Haque.

The charges against ul-Haque have been dropped after evidence was ruled inadmissible because of the conduct of ASIO and Australian Federal Police (AFP) officers.

In the NSW Supreme Court today, Justice Michael Adams said one ASIO officer had committed "the crime of false imprisonment and kidnap at common law''.

He also referred to the unjustified and unlawful interference with Mr ul-Haque's personal liberty and the unlawful trespass of officers at his family home.

I wonder if they'll be prosecuted or even disciplined for that, or whether the Australian police will just look the other way because the criminal was one of their own and the victim a Muslim?

More details here.

Everyone gets bail

The last four members of the Urewera 17 were bailed today, after spending 28 days in jail. Pre-trial remand is a common feature of our justice system, but I am disturbed that people were remanded in custody for a month on charges the police admitted they had no evidence for. Yet another example of the power of the "terrorism" word to bludgeon judges (who should be providing independent oversight and a check on state power) into giving the police everything they ask for.

The normal judicial process on the arms charges can now continue, assuming the police haven't screwed it up completely with their leaks. And given the lack of admissible evidence in many cases, many of those charges will now probably be dismissed.

No doubt the police will kick and scream and leak about this as well. But if there was actual wrongdoing, and the police didn't get solid, admissible evidence sufficient to convince a jury beyond a reasonable doubt, then they didn't do their job properly and have no-one to blame but themselves. And if, as seems more likely, they've roped in a bunch of innocent people in a broad fishing expedition in a desperate attempt to justify a years' worth of surveillance, then its entirely right that those people should be free to get on with their lives.

Harre and productivity

Laila Harre's 2007 Bruce Jesson lecture, Union Relevance in Aotearoa in the 21st Century, is now up on Scoop. It's interesting reading, not only for what it says about the problems facing the union movement, but also for what it says about the problems facing the wider economy. One bit I think is worth highlighting is this:

With unemployment and labour force participation at historic lows and highs respectively, already long working hours and an aging workforce demanding higher levels of productivity in future, the new right’s labour market chickens have come home to roost.

Notwithstanding John Howard’s more recent efforts to “catch down” with us, comparisons with Australia demonstrate that from a similar position in the 1980s, New Zealand’s low wages have discouraged investment in capital and skill, accounting for most of the difference between the two countries in the productivity stakes.

(Emphasis added)

Both the National Party and employer groups like to harp on about how wages can't increase unless productivity does. But improving productivity isn't a matter of people "working harder" - it is a matter of investing in technology and training so that workers can work smarter, and produce more for the same amount of effort than they could previously. And as Jordan Carter pointed out last month, those decisions are firmly in the hands of employers. So, if productivity isn't improving, they have only themselves to blame.

The government is trying to shift things in the right direction, raising the minimum wage and rejigging monetary policy to engineer a labour shortage and so creat upwards pressure on wages. Unions are also helping - by pushing for higher wages, they increase the costs of hiring another warm body, and so the incentive to invest in improving productivity. But at the end of the day, employers have to come to the party and make that investment. And so far, it seems they'd rather just bitch about it, and fight to keep wages low.

Meanwhile, the National Party seems to be firmly wedded to the "low wage, low skill, hire another warm body" model. But that model has reached its limit - there are simply no more warm bodies to hire. Unfortunately, rather than acknowledging this, and encouraging businesses to invest in their futures, they're instead casting around for a new source of warm bodies (hence their escalating attacks on sickness beneficiaries) - anything, it seems, rather than making our business leaders actually think for a change.

Terror symposium

On Saturday, the VUW Postgraduate Students Association held a one-day symposium entitled For Freedom: Demystifying Terror in Everyday Life in New Zealand, on New Zealand's terrorism laws. I was unable to attend, but Stephen Judd did, and has put his notes up here.

I am wearing combat boots

According to the New Zealand police, this means I am a terrorist, and that my phone and email communications can all be tapped, then smeared across the media.

Marvellous.

Against trial by media

So, having failed in their attempt to get Campbell Live to publish the case against the Urewera 17 on live TV, the police have instead dumped it on the Sunday Herald. Some of what they publish is disturbing, a great deal is simply incredible and says more about what the police consider to be "evidence" than any wrongdoing or criminal behaviour, and some is highly worrying : if judges are handing out interception warrants allowing phones to be tapped on suspicion of terrorism because a political party's website was hacked, I humbly suggest that they need to familiarise themselves with the proper meaning of the term. But none of that changes the basic fact that this evidence should never have been leaked, and should not have been published.

In this country, we have a police force, not a lynchmob. In this country, we have robust processes to ensure fairness, protect the rights of the accused, and prevent mistakes. In this country, we decide guilt or innocence in the courts, not in the media.

I support open justice. I do not support trial by media. The former keeps the system honest and helps ensure the police prove their case. The latter removes all safeguards and transparency and replaces them with a ratings-driven lynchmob. And preventing this sort of thing is precisely why we have a justice system in the first place.

New Fisk

Holocaust denial in the White House

Excessive force

On Sunday morning, Mark Edwards was arrested for trespassing after a domestic dispute. During the arrest, police wrestled him to the ground. In the process, they broke his neck. They then left him to lie paralysed on the floor of a cell for nine hours, before finally getting him medical attention the next day.

This is absolutely obscene. There is simply no other word for it. There is only one way someone's neck gets broken during an arrest, and that is if the arresting officers use excessive force. To then ignore the results and leave their victim in agony shows a callous disregard for the care of prisoners in their custody. This is not behaviour we should tolerate in our police force - or indeed in any police force.

But I'm sure the Police Complaints Authority will issue the usual whitewash and say that everyone followed procedure, the force used wasn't excessive, and everything is OK. In which case we'll have to ask: how much force is excessive, if they can break a man's neck and get away with it?

Satire is dead

Lord Cashpoint has called for a cap on donations to political parties.

Leaked

Yesterday, the police got egg all over their faces when the Solicitor-General refused leave to lay charges under the Terrorism Suppression Act. A consequence of this was that all the evidence they had amassed - fifteen months worth of wiretaps and covert surveillance - could not be used in court and would never be publicly disclosed. So, sometime today, one of them leaked the whole lot of it to Three News.

On one level this is entirely unsurprising. Despite Police Commissioner Howard Broads very careful use of language during his official press conference, the police operation has leaked like a seive, with lurid claims of assassination plots and napalm bombs deliberately whispered to journalists in order to prejudice the case against the accused. But this is something new: an entire police case, dumped in the lap of a media organisation, clearly in the hope they'd publicise the most juicy bits. This is not only a violation of police regulations and the law (wiretap evidence is not to be disclosed except through the proper processes, and is supposed to be destroyed the moment it is no longer needed) - it also threatened to prejudice the cases under the Arms Act of the remaining accused, potentially resulting in a mistrial. But the leaker didn't care about that. Instead, all they cared about was getting a final smear in against those the police had wrongfully accused of terrorism.

Think about that for a moment. Our police force contains people who have utter contempt for the judicial process, the courts and the law they are supposed to enforce, and who put "getting their man" ahead of everything - even proper tests of guilt or innocence. It would be difficult to come up with a clearer example of Ross Meurant's insular, judgemental, and vindictive police culture than that.

As it stands, the material was not broadcast - the Crown Solicitor contacted Three News and made it clear they'd be prosecuted if they did. But this has shown that there is still something very wrong in our police force - a lawless element cut from the same cloth as Dewar, Rickards and Schollum. These people need to be purged. There should be no place in our police force for people who would deliberately try and undermine a fair trial, or leak sensitive police evidence to the media in an attempt to smear an accused.

This is something else Howard Broad will have to stake his reputation on: finding and sacking those responsible. Because if he doesn't, we can only assume that he condones this sort of lawless behaviour. And that makes him little better than a criminal himself.

Justified fears

Back in 2004, the anti-GE crowd were concerned that the Terrorism Suppression Act could be used against them. But the response of the police was clear:

Harry Quin, Wellington crime manager, is incredulous at the use of the tag. “You and I both know what real terrorism is,” he begins, adding wryly that “unfortunately, we don’t have any governance about how the media, or how their opponents, will tag GE activists. I can assure them that their actions will not be considered as terrorism.”

Last month, that same Harry Quin was serving warrants in the police's raids against Maori, greens, and peace activists. It seems those fears were entirely justified, and the police's claim to know what real terrorism is and to be able to distinguish it from political dissent simply PR.

The mesage is clear: when the police say "this law is broad, but you can trust us to implement it properly and without infringing upon people's rights", we simply can't.

No conspiracy

On Morning Report [audio] this morning, Police Commissioner Howard Broad was asked the obvious question: why didn't he try and prosecute the Urewera 17 under the Crimes Act, for something like conspiracy to murder? His answer is revealing:

Those options were not available to us... The offences under other legislation had not been committed. So conspiracy to commit murder, conspiracy to do those other sorts of things, those offences had not been [committed?] at all.

(Emphasis added)

So, despite the lurid claims leaked to the media about plots to kill political figures, there was no conspiracy to do so. Given the low bar for conspiracy - essentially it requires proving an agreement between the parties (which need not be explicit) to carry out a crime - what this means is that the police had, at best, a few dumbarses mouthing off, with no plan, agreement, or intent to do anything.

In the face of this admission, the police's position looks even more untenable. Rather than being the victims of an incoherant law, they were trying to persecute people for actions which were simply not criminal under any ordinary understanding of the term (of course, as Ross Meurant pointed out, the police don't have an ordinary understanding. Instead, they have an insular and judgemental one, which classifies people as criminals on the basis of race, fashion, or political affiliation, then looks for something to charge them with).

Meanwhile, Broad also also spoke of a legal duty to maintain the secrecy of evidence collected under the interception warrant regime. Perhaps someone should be looking at which police officers breached this legal duty by systematic leaks intended to undermine the judicial process and smear the accused?

I have falafel in the fridge

Apparently, this makes me a terrorist:

Like Hansel and Gretel hoping to follow their bread crumbs out of the forest, the FBI sifted through customer data collected by San Francisco-area grocery stores in 2005 and 2006, hoping that sales records of Middle Eastern food would lead to Iranian terrorists.

The idea was that a spike in, say, falafel sales, combined with other data, would lead to Iranian secret agents in the south San Francisco-San Jose area.

Fortunately, sanity prevailed in this case, but you really have to wonder how many times it didn't, and how many people are now on terrorist watchlists because of what they ate, or what DVDs they rented, or what books they got out of the library...

(Hat tip: Paul Krugman)