Friday, February 28, 2020

Climate Change; An important precedent

For over a decade, Heathrow airport has been wanting to add a third runway, to increase air traffic. Its been vigorously opposed by people concerned about the environmental impact. And now, its been ruled illegal on climate change grounds:

Plans for a third runway at Heathrow airport have been ruled illegal by the court of appeal because ministers did not adequately take into account the government’s commitments to tackle the climate crisis.

The ruling is a major blow to the project at a time when public concern about the climate emergency is rising fast and the government has set a target in law of net zero emissions by 2050. The prime minister, Boris Johnson, could use the ruling to abandon the project, or the government could draw up a new policy document to approve the runway.


The court’s ruling is the first major ruling in the world to be based on the Paris climate agreement and may have an impact both in the UK and around the globe by inspiring challenges against other high-carbon projects.

Lord Justice Lindblom said: “The Paris agreement ought to have been taken into account by the secretary of state. The national planning statement was not produced as the law requires.”

This doesn't necessarily kill the project - as noted, the government could redo the decision, taking climate change targets into account (though its hard to see how airport expansion is compatible with them). But it raises the bar on both this and future projects - and not just in the UK. New Zealand courts are not afraid to look at foreign precedents in analogous cases, and the Zero Carbon Act has included a clause stating that decision makers may take climate change targets into account. Importantly, Parliament removed a clause preventing any challenge for a failure to do that, on the grounds that they wanted to let the law develop - meaning that they wanted the courts to decide when that "may" effectively becomes a "must". The net result is that the sort of projects where it would be unreasonable not to consider climate change impacts - say, fossil-fuelled power stations, or airport expansions - are open to legal challenge on climate change grounds. And they may find their plans overturned if they are not compatible with the government's climate change targets.

Another SFO referral

Christchurch Mayor and former Labour MP Lianne Dalziel has been referred to the Serious Fraud Office over her attempt to launder local election donations. So, three of the biggest scams used by parties to launder donations and hide who is influencing them - donation splitting, trusts, and auctions - are now actively under investigation. Which ought to send a message that continuing to use those scams is risky and potentially invites prosecution. The question is whether our institutionally corrupt political parties can stop themselves, or whether politicians will have to go to jail before they clean up their act. And given their reluctance to engage with the issue of reforming the system, I think its probably the latter.

Thursday, February 27, 2020

NZ First's contradiction

NZ First portrays itself as an anti-establishment party, standing up for "the little guy" (always a guy) against Big Auckland Money and its tool-parties. But it turns out that its secret slush fund is funded by the very people it claims to oppose:

Stuff can reveal a longer list of donors to the NZ First Foundation up to April 2019 – which appears to operate as a political slush fund – based on Foundation documents seen by Stuff. It includes New Zealand's richest man, Graeme Hart, and the billion-dollar Spencer family.

Business magnates, property developers, a chicken farmer, and thoroughbred horse breeders are among the wealthy known to have contributed heavily to the foundation, which tallied more than $500,000 in donations.

How can they be anti-establishment when they're literally funded by billionaires? Only Winston knows. Meanwhile, there's a lot in here potentially of interest to the SFO: donations by multiple members of the same family on the same day, or by an individual and multiple companies they control, suggesting efforts to evade disclosure thresholds (not that the money laundry was paying attention to those anyway). Given the current National Party trial, those donors should be nervous.

Meanwhile, Shane Jones is worried that this may discourage people from donating to NZ First. But if you're the sort of donor who will only given tens of thousands of dollars if you can do so secretly and illegally, and while exercising a secret and undeclared influence over policy for a corrupt purpose, then I hope that that is exactly what happens. Our democracy does not need or want this sort of money. And if politicians disagree, then we do not need or want them either.

Climate Change: The same old cycle

Newsroom reports that the government is going to miss its electric vehicle target to have 64,000 EVs on the road by the end of 2021. But this isn't because NZ First shitcanned the feebate scheme, their only real policy to boost uptake - it wouldn't have come into effect until after the deadline. Instead, its because, they simply had no policy to achieve it. National, the government which set the target, hadn't bothered with the actual details of how to do it, and Labour had pissed about and dragged its feet for two years before announcing something that would happen too late. So once again we're left with the basic climate change policy cycle:

Though with the arrival of the Zero Carbon Act and Climate Change Commission, hopefully this will be the last time it happens.

Meanwhile, there's a dirty little secret in the article about how the target was set, which explains how we got into this mess:

The target was set according to "base case" projections, meaning it was thought in 2016 that New Zealand would reach 64,000 EVs by the end of 2021 without any policy intervention.

In other words, this was a business-as-usual "target", something which National thought was going to happen anyway (and that they could claim the credit for without doing any actual work). But the prediction was very sensitive to the growth rate chosen, and they got the maths wrong, so they failed. Or rather, Labour did, because the other half of this is choosing a target sufficiently distant that someone else can be blamed for failing to meet it (see also: every emissions reduction target ever). Again, the Zero Carbon Act will hopefully change this, by allowing governments to be continuously held to account for both the ambition and delivery of the targets they set. But still, at its core: the government had a soft target, they did nothing to achieve it (National because they didn't want to, Labour because they were apparently incapable). And that's something we should hold them to account for.

Wednesday, February 26, 2020

Spies, whistleblowers, and oversight

This morning the Inspector-General of Intelligence and Security (IGIS) pointed people at an article on "Playing Hide and Speak: Analyzing the Protected Disclosures Framework of the New Zealand Intelligence Community" by Caitlin Macdonald, Rhys Ball & William James Hoverd. The authors were trying to look at how the whistleblowing framework (set by the Protected Disclosures Act) works for spy agencies, backed by an OIA request for policies and interviews with the two spy agency directors and the IGIS. Its an interesting read, but there's several disturbing points. First, the spy agencies' internal protected disclosure policies mislead employees about their rights, placing an emphasis on internal disclosure to management and downplaying the ability to take issues directly to the Inspector-General. Which is problematic, because the Inspector-General is quoted as saying that internal disclosers can face retaliation:

if you go internally then they think you’re about to leak externally and they do certain things.

It is unclear whether this has actually happened, or whether the IGIS is simply reporting on an institutional mindset, but it doesn't encourage disclosure or reporting of problems (which is perhaps the point). Related to this is that there is no institutional reporting to the Inspector-General of such internal disclosures, and so no monitoring of whether they are properly investigated or whether staff suffer retaliation. Which seems like an excellent subject for an own-motion IGIS inquiry...

But most disturbing is the GCSB Director's claim that "IGIS’s recently established reference group of uncleared and harsh critics of the intelligence community may harm the legitimacy of the IGIS among agency staff". If there is such a perception, then it is something that could be countered by strong leadership from the Director about the role of the reference group, and the importance of oversight and how it builds public legitimacy for the agency. The fact that he is instead spewing this suggests that this is, if not his view, then at the very least tacitly supported by him, and that he is attempting to actively or tacitly delegitimise his primary oversight agency and encourage staff to view it as the enemy. And that is simply not an acceptable approach from a public servant responsible for an agency with hugely intrusive powers.

Mass surveillance was a waste of money

From 2015 to 2019 the NSA ran a program of mass surveillance of Americans' domestic communications. It was intrusive, totalitarian, and a collosal waste of money:

A National Security Agency system that analyzed logs of Americans’ domestic phone calls and text messages cost $100 million from 2015 to 2019, but yielded only a single significant investigation, according to a newly declassified study.

Moreover, only twice during that four-year period did the program generate unique information that the F.B.I. did not already possess, said the study, which was produced by the Privacy and Civil Liberties Oversight Board and briefed to Congress on Tuesday.


The information surfaced as Congress was weighing whether to allow the law that authorizes the agency to operate the system — the USA Freedom Act of 2015 — to expire on March 15, or whether to accede to the Trump administration’s request that lawmakers extend the statute, so the agency could choose to turn the system back on in the future.

The entire system produced only 15 intelligence reports over the four years it ran - 14 of which were redundant. And it did that at the cost of spying on every single American. America's political elite is unlikely to care about the latter - they're fully committed to shitting on fundamental human rights in the name of an endless war against an abstraction. But they do care about money. And on that measure alone, this programme was pure waste. But I guess the real question is who that waste went to, and who they donate to, rather than any assessment of actual merit.

Repealing the prisoner voting ban

Last year, the government bowed to the supreme Court, and promised that it would restore (some) prisoner voting rights. Yesterday, it finally introduced the bill to do so: the Electoral (Registration of Sentenced Prisoners) Amendment Bill. As promised, the bill restores the status quo before National's execrable (and unconstitutional) member's bill, allowing prisoners serving sentences of less than three years to vote. However, it goes a little further, imposing positive legal duties on prison managers to assist with re-enrolment. It also makes a slight change to the unpublished roll rules to allow any former prisoner on to it in order to reduce barriers to re-enrolment.

These are all good changes, but because the government has dragged its feet on this, it is going to have to rush the process if it wants to get it passed before the election as promised. And of course there's always the risk of NZ First throwing a spanner in the works. And if that happens, it will be a further example of Parliament's failure to protect our human rights, and why we need to grant the courts explicit power to do so, by overturning BORA-inconsistent legislation.

A secret trial

The media is reporting that an Auckland man has been charged with terrorism. Unfortunately, that's all we know, because all details have been suppressed. Who are they? What are they alleged to have done? Its all secret.

There may be good reason for some of this (e.g. protection of the right to a fair trial, as occurred in the Police rape cases). But we can't judge, because that's secret too. So, we're left with the fact that an unnamed man has been charged with unspecified offences over unpublishable allegations, with no reason for any of it. And that seems a long, long way from the open justice we have a right to in New Zealand. Such secrecy is corrosive of the justice system, and corrosive of public trust. And given the nature of the charges, that is not something we can afford.

Tuesday, February 25, 2020

More NZ First corruption

Oh look! NZ First's secret slush fund was laundering donations from Talley's:

One of the country's biggest fishing companies, Talley's, and its managing director donated nearly $27,000 to the New Zealand First Foundation, which has been bankrolling the New Zealand First Party.

The foundation received $26,950 from seafood giant Talley's and from managing director Sir Peter Talley between 2017 and 2019, according to records viewed by RNZ.

It received the money from Talley's in four amounts - all of which were below the threshold for public disclosure and so have not been publicly revealed until now.

Meanwhile, NZ First has been blocking a fisheries review, as well as monitoring cameras on boats and other tighter regulation. Which obviously is a complete coincidence, right?

As with their secret donations from the racing industry, this creates a stench of corruption around all government fisheries policy decisions. Its a perfect example of why we need total transparency in party funding, and why we need to keep money out of politics.

Greedy universities want to kill us

Coronavirus is now a pandemic in all but name. If it spreads, it could infect two thirds of the world's population. The fatality rate is somewhere between one and three percent. And in the face of this, New Zealand universities are pleading for border controls to be lifted to allow foreign students into the country from infected areas:

Universities are scrambling to convince officials they can safely manage an influx of students from China if the Covid-19 travel ban is relaxed - and they insist a full-scale quarantine is not required. New Zealand's borders are currently closed to all foreign travellers coming from mainland China, but universities want an exemption for tertiary students.


Speaking to RNZ, Victoria University vice-chancellor Grant Guilford said he had "no doubt" the universities could manage the risk.

"We are very confident we've got this one. We've got the protocols in place and can manage it all."

Guilford - who spearheads the Universities NZ committee on international policy - said the sector was proposing that foreign students be treated in the same way as returning New Zealand citizens and be required to self-isolate for 14 days after arrival.

These are the same universities who let Mason Pendrous rot in his room for a month, and they say they can get thousands of people to observe a strict quarantine. Yeah, right. What they're really proposing is that we should potentially let this disease into New Zealand and allow it to spread. As for why, they're refreshingly honest: "hundreds of millions of dollars [are] on the line for the country" (and particularly for universities, who rely on foreign students as a cash-cow). But what's also on the line is tens of thousands of lives: between 30K and 90K dead in New Zealand, depending on where that fatality rate falls. To pick a random example, VUW has ~2300 staff and ~21,000 students. And Guilford is willing to risk the lives of 15 - 45 of his staff, and 140 - 420 students so his institution doesn't suffer financial stress.

That's sociopathic. And I am struggling to see how it can possibly be consistent with his personal duty of care for his staff, students and the public under the Health and Safety at Work Act 2015. But it is perhaps a very good illustration of the ethics of our management class: that they're willing to risk this sort of devastation - a March 15 for the staff, and eight more for the students, just to avoid the balance sheet looking bad.

Monday, February 24, 2020

More solar

Genesis Energy is planning to build the country's biggest PV solar farm:

Power generator and retailer Genesis Energy says it is in advanced discussions to build New Zealand's biggest solar farm in northern Waikato.

The company, which earlier reported a 15 per cent decline in operating earnings to $167.2 million, said its "future-gen" programme was aimed at transitioning it away from baseload thermal generation and delivering on its commitment to ditch coal by 2025.

The 300 megawatt solar farm will dwarf Refining NZ's 27 megawatt solar development, which is aimed satisfying 10 per cent of the Marsden Point refinery's requirement.

For context, this is about the equivalent of one of its dirty coal-fired units at Huntly. And hopefully by providing cheap energy during the day, it will reduce the need for fossil fuel generation and accelerate its shutdown. At the moment we have the ridiculous situation that we burn fossil fuels while the sun is shining; the sooner we engineer our way out of that dirty waste, the better.

Climate Change: Counterproductive

Transport is our second largest source of greenhouse gas emissions. Any credible effort to reduce emissions to net-zero has to target it. So what is the government doing? Subsidising some of the dirtiest, most inefficient vehicles on the roads:

New Zealand's favourite cars - double cab utes - are largely exempt from a tax on employer-provided benefits like company cars. Even when they would be subject to the Fringe Benefit Tax, the fee is rarely paid, tax policy experts say.

This means New Zealand is effectively subsidising the purchase of high-emitting passenger vehicles by companies, even after the Government scrapped a plan to exempt electric vehicles from the same tax. Now, environmental advocates are calling for the Government to reconsider an FBT exemption for the purchase of electric vehicles and the provision of public transport services.

This is counterproductive, to say the least. Policy should be pushing people towards EVs or more fuel efficient options. Instead, we've done the opposite, and as a result made these gas-guzzling tanks the most popular vehicles on our roads. And meanwhile, NZ First has just shitcanned the EV feebate which would have helped change that. So much for "my generation's nuclear-free moment"...

Friday, February 21, 2020

Another environmental crime

The recent floods in Southland have highlighted the issue of Rio Tinto's illegal toxic waste dump in Mataura. But according to Newsroom, there's an even worse mess in Ruakaka near Whangarei:

A Northland property stockpiled one million litres of flammable and toxic chemicals. Almost two years since the situation came to the attention of authorities, the poorly stored solvents remain a fire and environmental risk.

While Government agencies struggled to get a polluter to clean up his mess, up to one million litres of flammable and toxic solvents in corroding drums has sat next door to key infrastructure.

The solvents were illegally accumulated by a Ruakaka solvent recycling plant in breach of its consent to store 50,000 litres of solvent. Poorly stored, they were thought to pose a fire danger to the Marsden Point oil refinery pipeline and its electricity supply.

Last week two grass fires occurred nearby. One was approximately 700 metres away from the property.

Locals are largely unaware of the scale of the issue on their doorstep.

As well as liquid solvents stored outdoors in rusting drums and plastic containers, it's thought 150 to 200 tonnes of contaminated material was buried illegally. Tests on groundwater showed levels of contamination 1200 times higher than drinking water standards allow.

Reading the whole thing, I'm appalled, and left with the overwhelming question: why is this person not in jail? Because I'm seeing serious breaches of the RMA (including violation of enforcement orders), which is punishable by two years imprisonment, and probably breaches of the Hazardous Substances and New Organisms Act as well in relation to storage of hazardous substances (which is probably worth 3 months in jail, a $500,000 fine, plus $50,000 a day if non-compliance continues). This is a serious, ongoing environmental crime, which endangers key infrastructure as well as people's health. and it needs to be treated as such.

A dry hole

OMV's exploratory drilling in the Great South Basin has failed to find oil. Good. Firstly, because we can't afford to burn the oil and gas we've already found, so there's just no point looking for more. And secondly, because offshore, deep-water drilling poses a risk of an environmental catastrophe, which we're better off avoiding. But since they've failed to find anything, those risks will not eventuate.

Now if only they'd surrender their permits and fuck off back to Austria, rather than coming here to destroy our environment...

Strengthening whistleblower protection

The government has announced it will strengthen whistleblower protections. The major change is "allowing people to report serious wrongdoing direct to an external authority if they wish", which fixes one of the big flaws in the Act. At present, whistleblowers must generally make their disclosure direct to the body they are blowing the whistle on - a requirement which disincentives disclosures (because of obvious and justified mistrust) while enabling institutional coverups. If "external authority" means MPs and the media, then that removes that barrier, while setting a strong incentive for organisations to have effective and trustworthy internal processes (because otherwise people will just go to the media instead).

Unfortunately, the rest of the changes are mostly technical. On the other big problem with the Act - the lack of real protection for retaliation - the government proposes "strengthening" protections by making requirements clear. Which simply isn't enough, because it still relies on private enforcement for a breach, and will only impose civil penalties (which will usually be borne by someone else). Australia meanwhile has made retaliation against whistleblowers a criminal offence, which means there is a real incentive not to do it. And as for the decriminalisation of intelligence whistleblowing - shamefully made a criminal offence by National, despite clear evidence of its public value and of unlawful behaviour by spy agencies - that doesn't even get a look in. So, while these are welcome changes, they simply don't go far enough.

(Meanwhile, I guess this will be proudly announced as an Open Government Partnership commitment in our next action plan, despite being a business-as-usual policy which has been in the works for years. It is neither ambitious nor additional. But that's the typical scale of New Zealand's OGP "commitments")

An unjustified policy

On Monday, we learned that the Marlborough District Council wanted to charge more for LGOIMA requests. The proposed polcy violates OIA charging guidelines, so I asked them for the advice justifying it. MDC provided a rapid response pointing me at the relevant committee agenda item [p38 - 39]. According to that,

Requests for information received are increasing on a daily basis. Often, for example, requesters will go on a ‘fishing expedition’ against an expectation that the ratepayers should fund the costs involved in retrieval of information thought to be of interest by the media or others.

Sadly, they did not provide any statistics to back up those claims, so I asked them for those. I received the response by email yesterday:
The formal requests received through January to November 2019 are as follows:
  • January – 7
  • February – 7
  • March – 2
  • April – 13
  • May – 20
  • June – 8
  • July – 39
  • August – 48
  • September – 32
  • October – 28
  • November 20
We note that a separate history of media requests only started from July 2019 and this accounts for the difference between January/June and July/November.
Older statistics "would require compilation which would take considerable time and could trigger the application of our Costs Policy." So looking at this, it appears that the claim that "Requests for information received are increasing on a daily basis" - the justification for increased charges - is because they started counting requests which they had been handling all along. But its not actually clear that anything has really changed, or that higher charges are needed. As for the claim about "fishing expeditions", MDC sadly does not publish a disclosure log, so we can't easily tell how many of their requests would fall into this somewhat nebulous category. So, I'll just have to request some (and along the way make a judgement about how often is "often"). Because otherwise the natural conclusion is that they're objecting to this:
In the last six months, media requests in Marlborough have uncovered council representatives went a decade without a pay rise, 7000 plastic cups were purchased by the council last financial year, and $2.1 million was spent on councillor wages over the last three years.

None of these questions are very exciting, but its the ordinary business of media oversight. And it is exactly what the LGOIMA is supposed to enable. Marlborough District Council's charging regime should not be altered to discourage it.

Thursday, February 20, 2020

The blue wall of silence

Another day, another IPCA report on criminal conduct by policy. This time they kicked a child in the head when he was handcuffed:

Police chased him and yelled out for him to stop. When he turned to face the police, he threatened them with a hammer.

That's when the officers tasered and restrained the boy but once they had him on the ground, he said they kicked him in the head.

A nearby witness also saw the boy being kicked and reported it because he was "disturbed" by what he saw.

The Independent Police Conduct Authority found that the use of a taser was appropriate, as the boy confronted the officers with a hammer.

But Judge Colin Doherty said that threat diminished once the boy was restrained and there was no reason to kick him.

"This was an excessive use of force," he said.

There's more in the report: they also attempted to intimidate a witness filming the arrest on a phone, suggesting they knew their behaviour was criminal. But the IPCA was unable to determine which police officer delivered the kick. In other words, two of these three police officers covered for their criminal colleague and perverted the course of justice. And that is simply not acceptable. The police must be accountable under the law, and prosecuted when they break it. When they cover for each other, they are acting like a gang with fancy uniforms, not a police force under the rule of law.

Time for public funding of our political parties

The investigation of two of the five parties in Parliament for fraud around their election donations has pushed the issue of party funding back into the spotlight. And while there are obvious things we can do to tighten up the donations regime - a much lower declaration threshold, realtime disclosure of all donations, statutory intrusive audits to make sure the rules are complied with - none of these address the obvious problem: that there is money in our political system. And where there is money, there is influence and corruption. Regulation might help things a little, but fundamentally if we want clean politics, we need to take the money out. Which means publicly-funding our parties rather than forcing them to rely on bribes from millionaires and shady foreign-linked businessmen.

Cat MacLennan, pointing out that public funding is common overseas. 58% of countries, including Canada, Sweden, Germany, and the Netherlands, provide direct funding to political parties. These are countries which we think of as democratic leading lights, and which don't have a problem with corruption. So that seems worth emulating. Clint Smith also address the issue in Stuff, and makes the simple point:

If we don't want anonymous wealthy people trying to buy our democracy, maybe we should pay for it ourselves.

And that's really what it comes down to, isn't it? Should politicians work for voters, or donors? I think almost all of us prefer the former, and that means gritting our teeth, putting aside our justified dislike of politicians, and giving them public money to work on the public's behalf. Because our democracy is worth it.

But there's also the corollary: if politicians defend the current system, or drag their feet on making these changes, then its clear that they think they should be working for donors, not us. And we should vote them out.

Wednesday, February 19, 2020

How unsurprising

Former National Party chief whip Jami-Lee Ross is one of the four people charged over National's multiple fraudulent donations. How unsurprising. Meanwhile, just days ago National leader Simon Bridges was trying to pretend the charges were nothing to do with his party. Yeah, right. When your chief whip effectively publicly confesses to money laundering for the party, and tells you about it, its hard to look clean. Sure, Bridges hasn't been charged, because he has no legal responsibility for donations. But its clear that his party was a knowing party to these dealings, and voters should hold them responsible for that.

An unlawful policy

If you've been watching FYI for a while, you'll have noticed that the police have a bad habit of demanding ID from requesters. They have apparently been repeatedly told to stop doing this by the Ombudsman, but we all know what law enforcement thinks of the law, so thye keep doing it. Now someone has actually asked them for their policies about this, and its pretty eye-opening. For OIA requests, police guidance is that:

It is not necessary to verify the identity of an OIA () requester (unless they are a NZ body corporate requesting personal information about the requester (s25)) and they do not have to provide personal details. However, if you have concerns about the nature of the information sought and whether they meet the section 12 requirements of a person entitled to make a request (i.e. NZ citizen/permanent resident/in NZ), you may ask for a reasonable level of evidence, e.g. a NZ address or phone number, but you cannot demand proof of identity.

[Emphasis added]

The Ombudsman has said it is fine for agencies to ask for proof of eligibility where they have real concerns about it, and the police guidance on that seems OK (what's not OK is that they repeatedly ignore it, demanding photo ID rather than just an address or phone number). But the first bit, which purports to permit an ID check based on what is requested, is flat-out unlawful. That is simply not something permitted under the Act, and it makes it clear that the true purpose of such demands is almost always to discourage requests the police don't like.

The Ombudsman should stomp on this, and a law-abiding agency would obey them and change their behaviour. But we've seen repeatedly that the police care as little for the Ombudsman's legally binding "recommendations" as they do for the IPCA's. Which highlights firstly, a need for criminal penalties for non-compliance with the Act, and more importantly, a need to get rid of the eligibility requirement entirely (as recommended by the Law Commission) to prevent this sort of abuse. And if any MP wants to take some steps on the latter, there's a bill you can put in the ballot here.