Why we need an enforceable BORA

National MP Paul Quinn, with the full support of his party, is currently trying to ban prisoners from voting via his Electoral (Disqualification of Sentenced Prisoners) Amendment Bill. Meanwhile, over in the UK, it looks like they're going to be forced to repeal such a ban. Five years ago, the European Court of Human Rights ruled that the UK's blanket ban on prisoners voting violated the right to vote affirmed in the First Protocol to the European Convention on Human Rights. The ruling is binding on the UK government, and if not implemented soon will result in sanctions, including suspension from the Council of Europe and European Union. As a result, the UK government will be forced to change its law, most likely to one mirroring the present NZ law, and sooner rather than later.

This is the difference an enforceable human rights instrument makes: it stops the government from wantonly and egregiously violating human rights. And what this bill shows is that we need one here. As Andrew Geddis pointed out, if Parliament passes this bill it will forfeit all legitimacy as our supreme lawmaker. It will have shown clearly that it cannot be trusted to uphold and protect our fundamental rights, and that it will piss all over them whenever it fells it can grub votes by doing so. It will have shown that we need judicial checks on Parliamentary power. And the way to do that is by elevating the BORA to supreme law, and allowing the courts to strike down such abuses.

The US enabled torture in Iraq

Over the weekend, WikiLeaks dropped another bombshell, with the release of the Iraq War Logs - 400,000 classified reports on the war and occupation of Iraq from 2004 to 2009. There's a number of dirty secrets hiding in the warlogs, from the US's estimate of the bodycount (over 100,000, not including the battle of Fallujah) to the indiscriminate slaughter of civilians by US helicopter gunships to the murder of Iraqis who were trying to surrender. But the worst of it is what it reveals about torture in the "new" Iraq. Apart from numerous reports of the abuse of prisoners by US troops (often deliberately downplayed), it also reveals that the US had a deliberate policy of not investigating abuse by their Iraqi allies. The result is predictable: having supposedly invaded Iraq to end torture, the US ended up turning over prisoners to Iraqi torture squads:

In Samarra, the series of log entries in 2004 and 2005 describe repeated raids by US infantry, who then handed their captives over to the Wolf Brigade for "further questioning". Typical entries read: "All 5 detainees were turned over to Ministry of Interior for further questioning" (from 29 November 2004) and "The detainee was then turned over to the 2nd Ministry of Interior Commando Battalion for further questioning" (30 November 2004).

The field reports chime with allegations made by New York Times writer Peter Maass, who was in Samarra at the time. He told Guardian Films : "US soldiers, US advisers, were standing aside and doing nothing," while members of the Wolf Brigade beat and tortured prisoners. The interior ministry commandos took over the public library in Samarra, and turned it into a detention centre, he said.

An interview conducted by Maass in 2005 at the improvised prison, accompanied by the Wolf Brigade's US military adviser, Col James Steele, had been interrupted by the terrified screams of a prisoner outside, he said. Steele was reportedly previously employed as an adviser to help crush an insurgency in El Salvador.

Turning over prisoners to a jurisdiction where there are substantial grounds for believing they will be tortured is a violation of the Convention Against Torture. It may also violate the Geneva Conventions, the UCMJ, and US domestic law. And there's no question that the US had those substantial grounds - one of the warlogs reports that a US officer explicitly threatened to turn a prisoner and their family over to this unit for torture. Sadly, that officer is not identified - because if he could be, that's a pretty ironclad conspiracy charge right there.

What these leaks show is that the US engaged in crimes against humanity in Iraq as a matter of deliberate policy. And those responsible need to be held to account for it. The people who made the decisions to indiscriminately murder civilians and enable torture, on both a policy and operational level, need to go to jail. And until they do, we should regard the US as a rogue nation, no better than the torturing, murdering regime it unseated.

New Fisk

The shaming of America

Labour Day

Today is Labour Day, when we celebrate the establishment of the eight-hour day in New Zealand. Back in 1840, Samuel Parnell and his friends broke the British custom of 12 - 14 hour days, and ensured that right from the beginning, New Zealanders would have time in their lives for things other than work. And its entirely fitting that we celebrate this victory for leisure with a holiday in the sun.

The CTU is taking the opportunity to highlight the erosion of Parnell's achievement. But I think we need to go beyond just defending past gains against the greed of the bosses, and instead present a positive goal to aim for. The 40 hour week recognised that there is more to life than work, that we need time to spend on ourselves and our friends and families. I think we should have more of that. Overseas, they're experimenting with 4 day weeks, effectively changing work patterns to give everyone a three-day weekend. Other countries have tried shifting to a 35-hour week, and taking their increased living standards as time rather than material goods. Both of these are worth pursuing. Parnell won us the eight hour day by refusing to work any longer, and by persuading others to do the same. I think its time that we collectively followed his lead, and demanded more time in our lives.

(Meanwhile, there will be anti-union rallies in Wellington and Auckland today. I understand that those involved are trying to protect their livelihoods. But doing so by trying to limit the right of others to do the same? That's just shameful.)

New Fisk

They're trying to sell the Brooklyn Bridge again

Some "watchdog"

The Independent Police Conduct Authority are our watchdog for the police. So how independent are they? A story in the Dominion Post this morning gives the answer: not very. Confronted with a case showing appalling unlawful behaviour by police in persecuting an innocent woman, they refused to release their report as it was "not in the public interest":

The Dominion Post has a copy of the secret September 2009 IPCA report into a string of complaints laid by former policeman Dave White about the 2005 arrest of Mrs Teokotai, his mother-in-law.

The IPCA did not make public its findings because the authority deemed them not of sufficient public interest. It found:

[Superintendent Gary] Smith and [Bay of Plenty police professional standards head Garth] Bryan acted unlawfully by not telling Commissioner Howard Broad and the IPCA about Mr White's complaint.

Mr Burns and Mr Bryan showed "poor judgment" and failed best practice and police instructions by appointing a Tokoroa senior sergeant with "a clear conflict of interest" to look into the complaint.

Detectives involved in the investigation into Mrs Teokotai acted unprofessionally and two officers appear to have refused to be interviewed about the complaint.

Tokoroa police acted unlawfully by arresting her and lacked justification to incarcerate her and seize her passport and property.

Police breached their legal responsibility to disclose their evidence against her until six months after the case was dismissed.

The initial internal inquiry into complaints against the officers involved "lacked any semblance of independence and professionalism".

The response to Mr White's complaint was "totally mismanaged by senior officers".

I would have thought that releasing this sort of report was very much in the public interest. It would show that the conduct of police was being monitored, thus building faith in the system. Instead, by keeping it secret, the IPCA have simply shown that when it matters, when police behave unlawfully, they will cover it up for them. And then they wonder why the public has no faith in them...

And then there's the kicker: the officers criticised by the IPCA have been promoted. Smith, who covered up the complaint, got a top job in London as a police liaison. Bryan got a senior job at Police National Headquarters. These are cops who covered up for their mates, who have no place in our police force. The fact that they are still wearing the uniform speaks volumes about the police's tolerance for the criminals among them and their utter lack of commitment to cleaning house. It shows us they have learned absolutely nothing from the police rape scandal. And it shows us that they are utterly unworthy of our respect.

This stinks

Back in July, The Queenstown lakes District Council part-privatised their airport, selling a 24.99% stake to Auckland International Airport. The deal was stitched up in secret, without consultation. How secret? Well, they didn't even tell the council - their owners - until the deal was done:

The partial sale of Queenstown International Airport was kept secret because there was no time to consult the public, the airport's board decided.

Records of a Queenstown Airport board meeting on June 28 – released under the Official Information Act [sic] – show the board was concerned informing the Queenstown Lakes District Council would delay the sale for up to a year.

"Markets for QAC [Queenstown Airport] is strong right now; this may not be the case next year."

Delays associated with the possible election of a new district council was another reason given for keeping the deal under wraps, the records show.

[...]

Councillors, including Ms van Uden, were only told of the deal the day it was finalised. The only two elected members who were told in advance, and sworn to secrecy, were outgoing mayor Clive Geddes and deputy mayor John S Wilson, neither of whom sit on the new council.

This is utterly appalling. It suggests the airport company - a Council Controlled Organisation - was effectively allowed to part-privatise itself, with no input, oversight, or mandate from the council, and in questionable compliance with the consultation provisions of the Local Government Act. The latter has already resulted in a court challenge, which will be heard next year, and we should all hope it is successful. Because if it is not, this undemocratic behaviour will be legitimised, and councils (or worse, CCOs) will have a carte blanche for this sort of privatisation by stealth.

More bullshit from Gilmore

Last month, National MP Aaron Gilmore was exposed as having lied on his CV. After initially trying to blame Parliamentary Services, Gilmore has finally come clean and taken full responsibility. Or has he?

However, yesterday he said the error, and four others, were made in his own office and he took "full responsibility for those errors".

He also told the Herald it had been confirmed that the information was not sent by him.

"However, there is an email from my secretary saying: 'Here is the information' which had all the errors in it, so that is where the problems have arisen.

"I accept that I should have checked the published information and accept full responsibility for not having done so."

Mr Gilmore said he was not going to take the matter further.

"These things do happen."

Obviously. Detailed CVs appear from nowhere all the time, with no input from the person they're about. And if you believe that, I've got a brewery in Mangatainoka for sale...

In reality, this is just another refusal to accept responsibility from Gilmore. Having been caught bullshitting, his response is more bullshit. But then, did we really expect anything different from a manager?

Google is evil

Google's motto is famously "Don't be evil". So why are they engaging in tax avoidance?

Google, the internet giant which makes profits at a rate of $1m every hour, is shielding billions of dollars from tax across the world by using complex financial structures known in the industry as "the Double Irish" and "the Dutch Sandwich".

[...]

The company is pushing the bulk of its non-US business revenues, including all the revenue generated in the UK, through an Irish subsidiary, and then on to the Caribbean tax haven of Bermuda – a structure that tax experts say is entirely legal and is becoming increasingly common among multinational corporations.

Its unquestionably legal. Its also unquestionably evil. Google is using complicated schemes to avoid paying its fair share, in the process robbing governments of billions of dollars. And we all suffer as a result, through higher personal taxes and inferior government services. A corporation which truly believed in not being evil, in not maximising short-term profit at the expense of the public interest, wouldn't do that.

Why we need judicial oversight

When the government passed the Canterbury Enabling Act, a law which allowed Gerry Brownlee to change any law, for any reason, with just a flick of his pen, a lot of people were concerned. Such powers are obviously open to abuse, and the government's promises not to do so obviously an insufficient safeguard. Now, with the government panicking over the fate of a movie, we may be about to see such an abuse, with suggestions they could use the powers of the Enabling Act to amend our employment laws for the benefit of Peter Jackson and a bunch of Hollywood money men. To be fair to Gerry Brownlee, he has not threatened such a move (he certainly doesn't mention it in the RNZ interview people are pointing to), and its hard to see why he would when he could just ram it through as proper law under all-stages urgency. But what if he does?

What's clear is that the law's supposed "safeguard" - review by the Regulations Review Committee under the Regulations (Disallowance) Act 1989 - would utterly fail in such an eventuality. Despite such an amendment clearly being outside the purpose of the law (it being hard to see how making a movie is necessary for the reconstruction of Canterbury) and therefore ultra vires, no member of the Regulations Review Committee is going to want to stick their neck out and expose themselves to a public backlash by declaring it so. The "safeguard" would be ineffective, even in the face of a regulation which was clearly unlawful.

Simply contemplating this possibility shows us what a constitutional affront the Enabling Act was. And it makes something crystal clear: we cannot trust politicians to review the application of this Act, because when push comes to shove, they lack the independence required to uphold the law. We need judicial, not political, oversight.

Thoughts on Standing Orders

Parliament is currently engaged in its triennial review of Standing Orders. Its a fairly arcane subject, but I can think of a few subjects I'd like to raise with them.

Firstly, the Bill of Rights Act. Standing Order 261 echoes the requirements of s7 of the BORA and requires the Attorney-General to report on any inconsistency with the BORA when a bill is introduced. This is a useful mechanism to ensure that when Parliament violates the BORA, it actually means to - but it does not go far enough. As we've seen several times in recent years (notably with the three strikes law), amendments can be proposed either by select committee or at the committee stage which are inconsistent with the Bill of Rights Act. These receive no formal scrutiny, and this calls into question whether Parliament actually means to violate the BORA, or whether they are merely ignorant. The problem could be resolved by requiring the Attorney-General to report inconsistencies not only on introduction, but before the second and third readings as well. Alternatively, the Attorney-General could report on individual amendments proposed at the committee stage, though this would require more work.

Secondly, privilege. Standing Order 401(n) lists as an example breach of Parliamentary Privilege the following:

reflecting on the character or conduct of the House or of a member in the member’s capacity as a member of the House

As with the law of sedition, if interpreted strictly, this would outlaw virtually all criticism of MPs. Reflecting on the character and conduct of MPs in the performance of their duties, and judging whether they are ignorant, stupid, foolish, venal, self-interested or merely incompetent, is what citizens in a democracy do. But apparently, we're not allowed to, on pain of being hauled up before a kangaroo court of MPs and persecuted for daring to think bad thoughts about them.

This is an obvious prima facie violation of the right of free expression and one which is unjustifiable in a democracy. If MPs feel they have been unfairly maligned by public criticism, then they already have a remedy for that: they can sue for defamation. But they should not be allowed to punish non-defamatory speech, let alone in a manner which allows them to be judges in their own case (or to have their mates judge it for them). If this Standing Order allows punishment beyond that permitted under law, then it is unjust; if it does not, it is unnecessary. Either way, it should be removed.

(Alternatively, it could be amended to add "As a member...". If the House wants to forbid its members from reflecting on each other's character, it can. How Parliament regulates itself is its own affair. If it wants to regulate the public, it should do so by statute, not by standing orders and private law).

Thirdly, there's pecuniary interests. As we've already seen, the rules here are problematic, effectively allowing MPs to evade proper scrutiny by stashing their assets in a trust. And if you go through the register, you will find a large number of MPs availing themselves of this opportunity to thwart public oversight and prevent any scrutiny of their conflicts of interest.

There's an obvious solution to this: bust the trusts, and require MPs to disclose all significant assets in trusts they manage or are beneficiaries of. That way, we can see that our MPs are clean, and that they are not voting to enrich themselves or mingling their public and private interests.

Finally, there's the prayer. If you've ever watched Question Time, you'll know that the House opens with an explicitly Christian prayer, asking that the great bearded sky fairy guide them in various things, including "the maintenance of true religion" and "the glory of thy holy name". This is a violation of freedom of religion. The separation of church and state requires the latter to be neutral regarding religion. What god(s) people believe in is their own affair, but its no business of the state. Opening each day with a prayer violates that neutrality. It excludes every kiwi who is not a Christian - 44.4% of us at last count - by casting Parliament as an explicitly Christian body. And it dedicates "our" House to explicitly religious goals, every day.

We don’t allow prayer in schools for these reasons, and we should not allow it in our Parliament. The opening prayer has no place in a religiously neutral state. The religious beliefs of individual MPs are their own business, but here the beliefs of some are being imposed on the House - and through it, symbolically upon the whole of New Zealand. That cannot be allowed to continue.

Wilson goes

Supreme Court Justice Bill Wilson has resigned. Good riddance. His position was politically untenable from the moment the Judicial Conduct Commissioner recommended he be investigated. The integrity of our judges must be beyond reproach, their impartiality beyond doubt. Thanks to a poor decision around a potential conflict of interest, his wasn't. And that meant that he could no longer credibly serve on our highest court (or any other, for that matter).

The only question is why the government paid him a million dollars (including his legal fees in his pointless, vainglorious challenge to his removal) to go. Given Wilson's friendship with Attorney-General Chris Finlayson, it smacks of National looking after its mates with our money. Can't we for once sack someone without giving them an enormous golden handshake?

The usual story

Anne Tolley's response to the teacher's strike: there is no money for higher wages. Meanwhile, her Chief Executive Karen Sewell gets a $20,000 raise. Its just the usual story: the people at the top tell us to tighten our belts, while gorging themselves at our expense.

New Fisk

Lebanon – land of phantom oil deals, spies and political murder

The battle for France

The French government, in an effort to save money and lower taxes for the rich, wants to raise the retirement age. The people don't like it. And so they've responded the way the French do, with marches, strikes, and blockades. Things are now getting serious - the country is running out of petrol, the electricity system is collapsing, and there have been riots. Faced with this level of protest and public opposition - 71% of people are apparently against the change - any normal democratic government would have seen the writing on the wall and buckled. So why haven't the French?

First, there's the normal insulation of the government from the people. The strikes and protests don't affect them. There is always petrol for government Ministers, they can always fly wherever they want, they are always protected by their security detail and staff from ordinary life. They don't buy their own coffee, they don't do their own shopping, they don't drive their own cars, and this effectively makes them immune to the pressures of ordinary life. But more importantly than that, unlike Westminster systems like New Zealand, Ministers are not elected. Under Article 23 of the French Constitution, they cannot be members of the National Assembly or Senate. They depend for their position solely on the Prime Minister. Their political careers aren't on the line. And this makes them immune to popular pressure.

So what about the individual legislators who are actually passing the bill? Well, its currently before the Senate - who are also not directly elected. Instead, they're elected indirectly by 150,000 local officials (mayors, city councillors and the like). Worse, they serve a nine-year term. With their next election in 2017, they really don't have to give a shit what the people think.

And that's why France is such a mess at the moment, and why large protests there almost inevitably escalate to rioting: because they have an unresponsive government, constitutionally insulated from popular pressure. The people can't credibly threaten to vote them out. Which leaves burning stuff as their only way of getting their point across.

Obama appeals for bigotry

It's official: the Obama Administration is appealing for the US military's homophobic "don't ask, don't tell" policy to be retained. Their reason?

President Barack Obama has said he supports getting rid of the policy, but his administration believes that overturning it immediately could cause problems for the military.

I expect people said the same thing about desegregation back in the 50's. But then, the government realised that its most pressing duty was not to make life easier for racists, but to immediately end discrimination. President Eisenhower didn't ask for more time to implement Brown v. Board of Education - he sent the army to Arkansas to enforce the constitution and ensure that kids could go to school regardless of the colour of their skin.

With this appeal, Obama has shown that he is not the man that Eisenhower was. He's a mouse, unwilling to stand up for his beliefs, unwilling to take the opportunities to implement the change he campaigned on. He doesn't stand for change or hope - just for the same old bigotry.

Sometimes you win

For the past year, Green MP Catherine Delahunty has had a bill in the ballot (and now before the House) to amend the Human Rights Act to require the government to appoint a specific disability commissioner within the Human Rights Commission. Today, the government adopted that proposal:

Disability Issues Minister Tariana Turia today announced further measures to promote, protect and monitor the implementation of the United Nations Convention on the Rights of Persons with Disabilities.

The measures include the establishment of a full-time Disability Rights Commissioner within the Human Rights Commission, a protection and monitoring role for the Office of the Ombudsmen and resourcing a formalised role for disabled persons' organisations.

[...]

Chief Commissioner Rosslyn Noonan has welcomed the Government's decision to establish the position of a full-time Disability Rights Commissioner and will in the interim personally hold the designation jointly with EEO Commissioner Dr Judy McGregor.

Its a nice example of how a member's bill can force the government to do the right thing (and this is the right thing), and a solid achievement for Delahunty. Hopefully there'll be many more.

McCully ignores torture

Murray McCully is in Indonesia at the moment, talking trade (of course) and closer cooperation. Meanwhile, the Indonesian military are torturing people in West Papua [graphic video]. McCully's response? "I know nothing!"

As that Scoop story points out, this is almost certainly bullshit. That video has gone around the world. Its been in all the major media, and major governments and NGOs have commented on it. His office has been specifically informed about it. It beggars belief that MFAT would not have briefed him on it. Either they are grossly incompetent (which I find hard to believe), or the Minister was briefed and chose to remain silent in the face of clear evidence of torture. Which is it?

Fairness at work

More than a thousand people rallied outside Parliament today in opposition to the government's plans to extend the 90-day fire-at-will law to all workplaces. Other protests are taking place across the country. Its good, but its not enough. We've seen what we need to change the government's mind - 50,000 people marching up Queen Street. And that was on something it ultimately didn't care about that much. Lowering wages and removing all worker protections, OTOH, is part of National's core agenda. It'll take a lot more than a thousand people to change their minds.

Meanwhile, there's a chilling reminder of industrial relations under National, with DHBs walking out of negotiations with radiographers, then demanding they be forbidden to strike. In other words, make them slaves. This is unlikely to make reaching a settlement easier. If DHBs want to avoid the sorts of problems they have identified, then they need to pay radiographers what they are worth. In the meantime, my advice is don't break a leg.

Foreshore & seabed: Sinking the bill?

The Māori Party has announced that it may not support the government's Marine and Coastal Area (Takutai Moana) Bill:

However Mrs Turia said yesterday that the party would take its lead from its people and the submissions during the select committee process.

"If people round the country, if our constituency says it is not worth our while progressing this, of course we wouldn't [support it]."

The reason for this is of course ACT's amendment requiring free access. While requiring people to do something they were offering to do anyway doesn't sound like so much, the fact that it is being forced on them by ACT is going to stick in a lot of craws. In many ways, its a microcosm of the whole foreshore and seabed debacle - the problem with the original act isn't so much where it ended up (you have only to look at the current bill, which is nearly identical, to see that) as how it was passed. And sadly, ACT seems to be driving the government to make the same mistake, imposing a settlement on Māori without, rather than with, their consent.

Ultimately this could sink the bill. ACT won't vote for it. The Greens won't vote for it. And Labour would be fools to vote for it if the Māori Party opposes it (Peter Dunne is irrelevant, as always). Even if it does pass, it will have lost all legitimacy. Any legislation on the foreshore and seabed is only legitimate insofar as it has the support and consent of Māori - and the Māori Party's votes are key signs of that support (especially given their practice of consulting iwi first). The result will be to perpetuate the problem rather than solve it.

So what happens if the bill fails? The current Act stays in place, and we go round again, with the Māori Party pushing for change through the coalition process. The difference will be that attitudes will have hardened, and they will be pushing for a better deal - which they will be well-placed to demand. The cost of Hide's redneckery may very well be the very thing he ostensibly wants to avoid: Māori gaining outright ownership of the foreshore as a default, and being able to charge people who use it, just like Alan Gibbs.