Friday, September 30, 2011

Fiddling while Rome burns

Its been a hell of a week politically. A hugely controversial video surveillance bill which would grant significant powers to police with no oversight, another dead kiwi soldier, and two credit rating downgrades. So what did John Key talk about on his ($43 million) RadioLive show? cats. And how he was going to save Coronation St. Talk about fiddling while Rome burns.

It would be nice to have a Prime Minister who actually addresses the issues of the day. Instead, we've got one focused on trivia and making himself look good.

Ending the lie

One of the central claims of Nicky Hager's Other People's Wars is that the government and NZDF have spun our involvement in Afghanistan, downplaying our involvement and minimising risks in an effort to gain public support. So our Provincial Reconstruction Team wasn't occupying Afghanistan for the US, it was delivering aid. And our SAS weren't engaged in combat, they were "mentoring" Afghan forces.

The deaths of two SAS soldiers in a little over a month has shown that spin to be a lie, and now the government has finally come clean and admitted it: the SAS are in a combat role in Afghanistan and we should expect more of them to die.

It shouldn't have taken two deaths to get them to admit that. Instead, our government should have been honest with us from the start, and told us what it was doing in our name. That's what "the consent of the governed" means. The fact that they lied to us undermines the legitimacy of the policy, and raises serious questions about democratic control of our military.

The question now is whether kiwis are happy with being lied to, and happy that our soldiers are fighting and dying in a losing war to protect a corrupt, misogynistic theocracy. I'm not. And you shouldn't be either.

The consequences of dirty dairying

Dirty dairying means big profits for dairy farmers. But for ordinary people, it means something else: stinky water, and higher rates to clean it up:

Hundreds of thousands of dollars have been spent keeping Invercargill water from smelling and tasting putrid during the past two decades, but the problem appears to be getting worse, according to the city water services manager.

Invercargill City Council water services manager Alister Murray said the city had regular problems with a bad smell and taste in its drinking water during summer months since 1995. Between $15,000 and $25,000 was spent each year addressing those problems but it appeared to be getting worse, he said.


Increases in nitrate levels in Southland rivers was believed to be one of the causes, he said.

And the cause of those nitrates? Dairy farm runoff, AKA cowshit and cowpiss. It makes algae grow, which leas to water that smells so bad you can't drink it. If you live in Invercargill, you need to have a water purifier on your household tap, and I've heard stories of people who don't taking containers into their workplaces so they can fill up on filtered water there.

This is just another way farmers dump their costs on the rest of us, and make us pay for their pollution. Isn't it time they cleaned up their act, and started paying their own way?

Labour folds on rule of law repeal

Having pushed hard for a select committee process, and listened to the evidence which has universally panned it, Labour has released its position on the Video Camera Surveillance (Temporary Measures) Bill. The result? Sadly, they support it. Yes, there's good points: they draw a line in the sand against interfering with cases currently before the courts, and they want a six month rather than 12 month sunset clause, to ensure that Parliament really does pass the Search and Surveillance Bill. But on the big things, its a total fold. They're not demanding the police get warrants for future surveillance, on the grounds that its too hard (which effectively makes our current wiretap laws a dead letter - why jump through hoops and prove necessity, when you can get an ordinary warrant, leave a camera, and get video far easier?) And they want to ensure people already convicted can't have those convictions overturned or even investigated over little things like deliberate police misconduct and unlawfully obtained evidence.

And this, dear reader, is why you can never trust the Labour Party, and why you should not vote for them in November. While there are plenty of good people in Labour, when push comes to shove, they've got no backbone. They won't stick up for you, so why stick up for them?

The best we can hope for at this stage is that this surrender is still not enough for the government, that ACT doesn't offer them easier support, and therefore that the bill is not passed before the election. This won't help in the long term (unless the electoral dice come up "20"), but it will allow cases to be filed and justice to take its course before the new Parliament puts its foot down.


So, to its impressive record of economic achievements - a stagnant economy, 154,000 unemployed, and record high inflation - National can now add a credit rating downgrade. Heckuva job, Bill. You've really earned your $250,000 this year. Do you want a bonus too?

Does it need to be spelled out any clearer? National is a failure at managing the economy. They've treated the country like a small business, tightened its belt, and so driven it into the ground. And contrary to their NeoLiberal dogma, the confidence fairy did not appear and make things better. Instead, the ratings agencies looked at the fundamentals of the economy and the direction National was driving it in, and reacted accordingly.

This will of course push up debt servicing costs. And you can guess what National will respond to this with: more cuts. Which will in turn deepen the death spiral, prolong the recession, and keep more kiwis out of work for longer.

This madness has to end. The only way of ending it is by throwing English and his mates out of office, and voting in someone with a clue. Sadly, this doesn't look likely. So, we'll have another three years of pain and austerity, while the rich get richer and the rest of us get ground further into the mud. Thanks, National!

Sunk cost fallacy

John Key's response to a third combat death in Afghanistan? We must stay the course to honour the dead.

This is the excuse used by every politician who has sent people to die in failed war, and its a perfect example of the sunk cost fallacy. The dead are dead. Nothing can bring them back. We've wasted their lives and they're now irrelevant to the equation. The only questions that matter on the question of whether we should be staying in Afghanistan is whether we think the deployment is worthwhile in the first place, and, if so, whether our help will make a meaningful difference. And the answer to both of those questions is "no". Contrary to the government's spin, we are not fighting for democracy in Afghanistan. All we are doing is propping up a corrupt theocracy which legalises spousal rape and practices unfair trials and the death penalty. It doesn't matter how many people have died so Afghan husbands can starve their wives to death to coerce sex; it was never worth fighting for, and we should come home.

Thursday, September 29, 2011

Against secret treaties

The government has announced that it will be signing up to the Anti-Counterfeiting Trade Agreement this weekend. Over on Red Alert Clare Curran responds by asking what we're signing up for. Its a good question. The treaty has been negotiated in secret, and only a few officials within MFAT (and now presumably Cabinet) are privy to its details. As for the rest of us, we've been excluded, kept in the dark like peasants while the government negotiates significant changes to our laws on copyright, access to goods, and access to medicines.

As I've argued before, this makes a mockery of the claim that the government is acting on our behalf. The foundation of democratic legitimacy is the consent of the governed. But how can the government claim its actions are legitimate, when it refuses to tell us what it is doing? And how can it claim that consent if we are not given a meaningful chance to refuse it?

The current way things are done allows the government to impose these deals on us as a fait accompli. They negotiate in secret, sign it, and then use the fact of that signature to justify ratification (and changes to New Zealand law), on the basis that refusing to do so would be breaking our word. This is an end-run around democracy, a relic of the monarchical era. And we should not tolerate it any longer.

Our government does not have the right to give our word without asking us first. It is that simple. Treaties must be made openly, with full public consultation, and voted on by Parliament before signature. Anything less than this is undemocratic.

Openness is treaty-making would be democratic. It would allow us to see what was being negotiated on our behalf, and make our consent meaningful. It would also allow us to properly judge our politicians and officials, decide whether they are truly representing our interests or selling us out, and allow us to hold them accountable if necessary. And that, I suspect, is precisely why those politicians and officials are so dead set against it.

Frack off, frackers

Hydraulic fracturing, AKA "fracking" is a process for squeezing oil and gas out of rocks. Its a dirty process, which contaminates ground water and has been found to cause earthquakes. In extreme cases, it has led to people being able to light their tapwater.

Oil companies have already used fracking in Taranaki, without resource consent. The Greens want to put a stop to this dirty and dangerous practice, and so they've started a petition calling on Parliament to impose a moratorium while the Parliamentary Commissioner for the Environment investigates its environmental effects. You can download and sign it here [PDF].

The quid pro quo

Last year, in a perfect example of crony capitalism, the government gave a $43 million soft loan to Steven Joyce's old company MediaWorks - despite the fact that according to the government's own advice they didn't need our money. Today, by coincidence I’m sure, MediaWorks has announced that it will be getting the Prime Minister to host a one-hour radio show.

Your taxpayer's dollars at work: buying PR opportunities and de facto advertising for the Prime Minister in the lead-up to the election.

Submitters hate the video surveillance bill

Yesterday the Justice and Electoral Commission began hearing submissions from invited experts, mostly lawyers and legal groups, on the Video Camera Surveillance (Temporary Measures) Bill. Their overwhelming view? They hate it. Here's some examples:

  • The New Zealand law Society says the bill is "objectionable", an interference in the judicial process, and an attack on the rule of law. They think it effectively amends the Bill of Rights Act to nullify the right against search and seizure (because if it allows the police to stick a camera in your bedroom with no real oversight, what doesn't it allow?), and that it systematically misrepresents the legal position around the Supreme Court's judgement.
  • The New Zealand Council for Civil Liberties agrees, and notes that police have an obligation to uphold the law, which they appear to have violated.
  • The Human Rights Commission says that retrospective legislation is unnecessary, and that the bill is contrary to the ICCPR. Enacting it would invite challenges under the First Optional Protocol to the International Covenant on Civil and Political Rights, which would damage our international reputation.
  • The Law Commission says it is overbroad, allowing Customs, Fisheries officers, or any other government agency to stick cameras anywhere they want. They criticise the lack of safeguards in the bill.
  • Former Prime Minister, Law Commissioner, and architect of the BORA Geoffrey Palmer calls the bill "oppressive" and a "constitutional perversion" which would deprive people of a legal defence.
And that's just (some of) the experts. The public have also been having their say, with Labour's Clare Curran personally delivering "about 20" submissions, and an unknown number of people submitting via the online form or other MPs. Which is quite good compared tot he number of submissions bills usually get, especially in the rushed circumstances.

The consensus so far from the experts is that there is no need for retrospectivity, and that the prospective authority needs more safeguards than the government's proposed blank cheque. The question is whether the Select Committee will listen, or whether National will just use it to rubberstamp this bill, then dare ACT and Labour to vote against it. Sadly, I'm expecting the latter.

What our soldiers are dying for in Afghanistan

Yesterday another kiwi soldier was killed in Afghanistan. What did he die for? According to MP's, he died for the usual lies: freedom, democracy, the defence of New Zealand. But this is bullshit. Instead, he died because one family didn't like another family, and so accused them of supporting the Taliban. He died because our government has allowed our military to be used as a weapon in Afghans' family feuds.

This isn't worth anyone's life. Time to bring them home.

Wednesday, September 28, 2011

Thankyou Keith Locke

I've just finished watching Keith Locke's valedictory speech. Keith has been in Parliament for twelve years, and during that time he's been a consistent voice for peace and human rights, for tolerance, secularism and republicanism. While he never had any of his bills passed, he unquestionably drove the debate, and changed things for the better, just by being there and speaking up and making sure that abuses were not allowed to happen in silence and that our government's hypocrisy on human rights did not go unchallenged.

Because of Keith, we don't have a sedition law anymore. Because of Keith, we no longer indefinitely detain refugees. Because of Keith, Ahmed Zaoui and his family are still in New Zealand rather than being deported in secret. These are achievements we should all be grateful for.

But now, after twelve years, he's going (though not far - apparently he'll be back on Parliament's front lawn with a placard whenever it is necessary). People have said the Greens won't be the same without him, and they won't - but at the same time, others will step forward to provide that voice. Kennedy Graham is already doing it in the case of international law. Someone else will no doubt step up to be the critic and conscience of the House on human rights issues and America's "war on terror". But Keith did those jobs while he was there, and he made our country a better place by doing them. And for that, I thank him.

An exercise in disingenuity

I was wondering yesterday whether the Attorney-General had made a section 7 report on his Video Camera Surveillance (Temporary Measures) Bill, because the bill seems so obviously inconsistent with the Bill of Rights Act. He didn't, of course. The reason why is quite surprising: he doesn't think the bill is a justified limitation to ensure the police can do their jobs; he actually believes it is consistent with the BORA because it "does not confer any new power to search".

Yes, really.

This is nonsense upon stilts, the sort of exercise in disingenuity that gives all lawyers a bad name. And it shows that Finlayson is not doing his job properly. As Attorney-General, he is supposed to protect our rights against assaults by the executive, and give honest advice to Parliament. He has failed to do that, instead excusing police misconduct and misleading Parliament. And for that, he should resign.

More blood on their hands

National's toadying to the US in Afghanistan has now cost the life of a second New Zealand soldier. Parliament is right this minute going through the motions, repeating the usual lies: "liberty", "freedom", "honour", "defending New Zealand". But this soldier didn't die for any of that. Like Corporal Doug Grant, he died for John Key's ego, for his desire for a photo of him shaking hands with Barrack Obama. And he died for the national Party's desire for closer relations with the United States, to restore ourselves to the vassal status we had before David Lange said "no".

That desire to suck up to the hegemon has cost us two lives so far. How many more is Key willing to sacrifice? How many more will it take? And how many do you think it is really worth?

Another question

The Video Camera Surveillance (Temporary Measures) Bill is being sold as being about the police, who supposedly need the power to stick a camera in someone's bedroom in order to prevent unspecified Bad People from "getting off" (i.e. being found innocent by a jury of their peers). But if you look at the bill, it doesn't just apply to them. The definition on search now says it applies to "an act done by a person or body referred to in section 3(b) of the New Zealand Bill of Rights Act 1990", which means:

any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
So here's another question: which other government body or bodies has been using unlawful camera surveillance in such a widespread manner that they need retrospective validation? And why doesn't the government want to be honest about it?

(My guess is (of course) SIS, whose intelligence warrant system appears not to include video surveillance, though it does include communications, documents, and electronic tracking).

Member's Day

Today is a Member's Day, the last one of the Parliamentary term. Its also the day Heather Roy's Education (Freedom of Association) Amendment Bill is finally going to pass into law. I do not think the bill is a good idea; student associations (which are better thought of as student government) fill a vital role in interfacing between students and the university, and if they did not exist, it would be necessary to invent them. It also doesn't help that the bill is so obviously motivated by malice on the part of ACT, trying to eliminate something they see as a recruitment centre for their political opponents. But Roy has the numbers, and so its going to be inflicted on us. I'm just glad I am no longer a student to suffer the consequences.

After that, its the committee stage of Tau Henare's Employment Relations (Secret Ballot for Strikes) Amendment Bill, which contrary to its title isn't about promoting democracy, but undermining it, by allowing employers to interfere in democratically-reached decisions which don't suit them. Politicians don't let unions challenge their list-selections (which by law must be made democratically), so why do they think employers should be allowed to challenge a union's internal decision-making? But I guess its one rule for them, and another for the peasants. And then they wonder why we think they're all hypocrites.


The Justice and Electoral Committee has called for submissions on the Video Camera Surveillance (Temporary Measures) Bill. Submissions are due by Wednesday, 28 September 2011, and can be made through the online form here.

This is an important bill and I encourage everyone to have their say on it. It interferes directly in ongoing criminal trials to the benefit of the prosecution by retroactively legalising unlawful police behaviour. It also gives police a blank cheque to conduct video surveillance without proper judicial oversight for the next year. These are not things which should be happening in a democratic society under the rule of law.

If you're not sure how to make a submissions, there's an online guide here [PDF]. If you're not sure what to say, there's plenty of good material from Dean Knight and Andrew Geddis.


Below is the draft of my submission on the Video Camera Surveillance (Temporary Measures) Bill. I have no idea if the committee is actually accepting submisisons from the general public (rather than only from invited experts), but hopefully it will be accepted.

  1. I oppose the Video Camera Surveillance (Temporary Measures) Bill and ask that it not be passed in its present form.
  2. The bill is a response to the ruling in Hamed & Ors v R [2011] NZSC 101, in which the Supreme Court ruled that the police had behaved unlawfully in their use of video surveillance. The ruling obviously requires that Parliament put in place a framework to allow such surveillance to be conducted lawfully and under judicial oversight. But the bill does not do this. Instead it simply declares this surveillance retrospectively lawful, and allows it to continue for a year without any proper checks and balances.
  3. The retrospective component is a constitutional outrage. It has the effect of intervening in ongoing criminal trials for the benefit of the prosecution. This is a blatant violation of the rule of law, and if it was proposed in Fiji we would condemn it. We should not commit such outrages here.
  4. The prospective component is inadequate. Video surveillance is highly invasive. It requires proper checks and balances. The framework in the bill does not include such balances. It allows the police to break into your home on the basis of a warrant to search for something, then stick a camera in your bedroom while they are there. There is no requirement on the police to prove that video surveillance is necessary for the investigation, or that the invasion of privacy is proportionate to the offence. The absence of any need to prove necessity allows the police to go on fishing expeditions, using warrants to plant cameras in the hope that something will turn up. And the lack of any proportionality requirement allows them to use extremely invasive surveillance for minor crimes.
  5. Because of these flaws, I do not wish to see the bill passed in its present form.
  6. As for what should be passed, I recognize that Parliament needs to set in place a framework to allow for future searches. This must involve proper judicial oversight, be limited to serious crimes, and intrude on privacy only where necessary. The framework from the existing Search and Surveillance Bill is one option. The framework used in the Crimes Act and Misuse of Drugs Act to cover audio interception devices is another. The latter has the advantage that police and judges are already familiar with the law, meaning it should not lead to unforeseen consequences or implementation problems. I do not believe that it is beyond the ability of the Committee, Parliamentary Counsel's Office, or Ministry of Justice to draft the necessary amendments in the available time.
  7. As for past searches, I do not believe that retrospective validation is desirable. The police knowingly and deliberately broke the law, and they need to pay the price for that. Parliament should not let a state agency off the hook for flouting the law in this fashion. To point out the obvious, it will simply encourage them to do it again.
  8. I do not wish make an oral submission to the Committee

Tuesday, September 27, 2011

Submitting on the spying bill

The Video Camera Surveillance (Temporary Measures) Bill is finally online. There's been a small change since the draft version, or removing the word "unreasonable", but that's it. The bill still retrospectively legalises unlawful police spying, saying that it was lawful and is not to be treated as improperly obtained. And it lets the police keep doing exactly what they're doing for the next year, without any requirement to change their behaviour.

Interestingly, Chris Finlayson did not issue a section 7 report on the bill. So he thinks that retrospectively legalising improperly obtained evidence and allowing it to be used in criminal trials is perfectly consistent with the Bill of Rights Act. So much for his credibility as Attorney-General.

The bill is still going through its first reading, but Maori Party MP Te Ururoa Flavell says it will be open for public submissions, and he's encouraging everyone to submit on it. Hopefully, the bill will show up on the list here in the near future. Alternatively, Flavell has offered to assist people to make a submission, so if it doesn't, then you can email him at

Reported back

The Standing Orders Committee has reported back [PDF] on its triennial review of Standing Orders. Its recommendations include some fairly significant changes - and a lot of "more of the same".

There are four big changes. On urgency, the Committee is recommending allowing extended sittings. This would basically extend the hours of the House, without any changes in internal procedure or allowing the government to introduce bills out of the blue. Extended sittings would be set by the Business Committee (requiring "near unaniminity"), rather than a vote in the House. This should remove one of the drivers of urgency, which is good - but the core problem remains.

Secondly, BORA scrutiny is being tightened, with a new requirement for the Attorney-General to report on BORA implications of substantive amendments. Human rights concerns will also be given prominence in explanatory notes, and in select committee reports. Its a good first step, but given some of the abuses we've seen, I don't think its really enough for Parliament to claim in good faith that it is properly discharging its obligations under the Act.

Thirdly, Parliament will be publishing all Member's Bills put in the ballot. Score one for transparency.

Finally, there's a recommendation to tighten up on the affirmation of office, to prevent the common practice now of stating allegiance to the Treaty of Waitangi and/or the people of New Zealand before giving the correct legal form. This is predicated on a claim that

The Speaker or the Clerk in administering the oath or affirmation can permit no form of words other than those set out under the Oaths and Declarations Act 1957
Which is true as far as the affirmation itself goes. But no-one is trying to pretend that those preliminary statements are the affirmation or have any legal effect, and everyone goes on to jump through the legal hoop and give their affirmation "properly". And by being anal about not being able to say anything else other than the affirmation when called up, Lockwood Smith is making a rod for his own back. To point out the obvious, this matters significantly to people. And there are far more disruptive ways that MPs can signify their opposition to our current constitutional arrangements than the current way of making a quick statement before being sworn in. Smith is inviting MPs to use those methods, and in the process, to turn the next state opening of Parliament into a nationally televised farce. And I hope they do exactly that - because by doing so they will be serving both our democracy and the people they represent.

On the "no change" front, the Committee's other response to the systematic abuse of urgency was to require the Minister moving it to "inform the House with some particularity of the circumstances that warrant the claim for urgency". That's not really any different from the current requirement to inform the House why the motion is being moved, which in the hands of Gerry Brownlee is little more than a bad joke.

There's no change on the discriminatory prayer, of course. Parliament will continue to open each day by affirming its allegiance to an imaginary entity, in the process excluding the majority of New Zealanders who no longer believe in such a thing.

Finally, they consider the perennial question of the OIA. But while mouthing some sentiments about transparency and openness, they refuse to allow it. They make some comments about a Standing Orders-based regime for Parliamentary transparency, but make no recommendation. And then they wonder why the public thinks they're scum. Again, MPs earn their reputation - and they've earned a little more of it today.

A good question

Over on Elephants and the Law, Dean Knight poses an interesting question regarding the whole police video surveillance scandal:

Given the widespread engagement in unlawful covert surveillance by the police, where is the inquiry in the systemic cause of this problem? Is an investigation by the Independent Police Complaints Authority inevitable? Has a complaint already been lodged? Or is one in the pipeline?
Its a good question. The police have been found to be breaking the law in a deliberate and systematic fashion, potentially putting 50 serious criminal cases in jeopardy due to tainted evidence. We deserve some answers on how that happened - and some accountability. Sadly, I don't think we'll be getting either under the current police minister.

New Fisk

Palestine, yes, but Israelis draw the line at Jerusalem

A possible solution?

The government will introduce its Video Camera Surveillance (Temporary Measures) Bill to the House today and send it to select committee. Meanwhile, Attorney-General Chris Finlayson has rejected the proposal to pass the surveillance measures in the Search and Surveillance Bill because they're too complicated. So, he'd rather hand the police a blank cheque to stick cameras in our bedrooms rather than do his fucking job. Why are we paying him $250,000 a year again?

Fortunately, there's another, easier solution out there. The Crimes Act already includes provisions allowing for the use of interception devices - wiretaps and hidden microphones - to intercept private conversations. These provisions could be modified to allow use of video surveillance, or if that is too complicated, cloned and reinserted.

This has several advantages. The Crimes Act provisions are limited to organised criminal offending, serious violent offences, and terrorism. They require the police to get warrants, and prove that their surveillance is actually necessary, that they can't get evidence in less intrusive ways. And the law is well understood by both police and judges, meaning that it is unlikely to have unforeseen consequences.

I am not a lawyer. But I have drafted legislation before, and it does not seem too difficult to modify those clauses in the desired way. So why doesn't Parliament do this for future surveillance, rather than just giving the police a blank cheque?

Monday, September 26, 2011

The latest on rule of law repeal

The government has announced that its Video Camera Surveillance (Temporary Measures) Bill (AKA Rule of Law Repeal Bill) will be going to select committee. The bill will be given its first reading tomorrow, then sent to the Justice and Electoral Committee for a week of considerations, before being reported back next Monday. This is not an ideal process, but its better than the original plan of ramming it through all three stages without any select committee consideration at all.

Tomorrow I'll post details on how to submit on the bill. If we're lucky, the Parliamentary website will have the usual webform up. Otherwise I'll be looking for an MP to take submissions by email and submit them personally. This bill isn't just of interest to legal academics and constitutional lawyers - its of interest to every single one of us. And we should all have our say on it.

For cannabis decriminalisation

So, over the weekend, ACT leader Don Brash came out in support of cannabis decriminalisation, saying that chasing cannabis users was a waste of police time (and taxpayer's money). This has of course led to angry denunciations from the rest of his party (whose idea of "freedom" starts and ends with the freedom of the rich not to pay taxes) and the Prime Minister, as well as the usual tepid, non-committal response from Phil Goff. But Brash is right: it is a waste of time and money. Quite apart from the fact that the only people cannabis users are harming are themselves, something which is no-one's business but their own, there's the fact that the police seem to spend more on enforcing these drug laws than the actual harm such enforcement averts. And for what? It doesn't actually reduce drug use; all it does is make money for gangs and distract the police from investigating real crimes.

The Law Commission recognises these facts, which is why they recommended a shift in policy away from jailing drug users and towards warning them and pointing them towards addiction services. That would be a start. But we need to go further. From a liberal perspective, the state has no interest in policing what people stick in their bodies for fun. If it causes public health problems, like alcohol and tobacco, then you treat it as a public health issue, like alcohol and tobacco. But you don't go around banning things just because old farts disapprove.

Portugal switched to this approach a decade ago, and it has been successful. Drug harm - addiction, problematic drug use, and associated diseases like HIV - has declined. The police get to spend their time fighting real crime. We could do a lot worse than follow their example.

Sadly, the chances of that happening are probably zilch. Drug-policy in New Zealand is a fact-free zone, dominated by people like Peter Dunne who are not interested in evidence. He's made up his mind, and he's going to inflict his views on us regardless of the harm they cause. And so we'll continue to waste a hundred million dollars a year and ruin countless lives, until he and his generation retire from Parliament.

Enrol to vote

The election is just two months away, and we're getting the usual warnings about large numbers of young people not being enrolled to vote. So, if you're reading this, check your enrolment details - you'd be surprised by how many people think they're enrolled, but aren't. And if you're not enrolled, they'll send you the form.

As for why you should enrol, I could talk about participation and democratic duty, but instead I'll cut to the chase. Voting is a weapon. Voting allows you to defend your interests. You see those old people fucking up your planet, ruining your future, bankrupting the country to support their selfishness while cutting funding to the education and healthcare you need? The ones criminalising your hobbies, banning your recreational chemicals, denying equality to your friends, and generally lording it over you? If you vote, you can stick it to them, hard. Its that simple. And if you don't stand up for your interests, and as a result they walk all over you, you have no-one to blame but yourself.

New Fisk

Prayers, taunts and weary resignation in Jerusalem

The dangers of prisoner disqualification

Last year, the National-ACT government passed the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, which disqualified serving prisoners from voting in elections. At the time, people criticised the law as undemocratic and arbitrary; not only did it strip people of the right to vote, but it did it on an arbitrary basis: not the severity of your crime, but whether you happened to be in prison on election day.

But there are other consequences as well: you need to be a registered elector if you want to stand for Parliament, so the law also prevents anyone who happens to be in prison on nomination day from contesting elections. And there's a good example of this happening at the moment. Earlier in the year, ALCP member Dakta Green was sentenced to eight month's imprisonment for running a cannabis club. Short sentences are automatically halved in practice, so he will be released on October 29. Nomination day is November 1st, so all going well he will be able to take his expected place on the ALCP list. But if his sentencing hearing had been delayed by a few days, he would have been barred from election.

That's a nice demonstration of arbitrariness, and the possible effects of the law on minor crimes, but it gets worse. You see, the Police are appealing Green's sentence, saying it was too short. If it is lengthened, then he will be unable to stand. Which is quite possibly the point of the exercise. The police have made it very clear that they do not like people working democratically for changes to our drug laws, and have been quite willing in the past to abuse their powers to prevent such advocacy. This just looks like more of the same. Except now they're directly interfering in the electoral process.

Other people might not mind too much of Green is barred from standing. After all, he's just a list candidate for a minor party which never gets any votes anyway (though more than the Libertarianz and the Alliance, which some people take seriously). But this is our democracy we're talking about. And in a democracy, the police don't get to veto potential candidates based on whether they like their political position.

The prisoner disqualification law is arbitrary, undemocratic, and now demonstrably dangerous and open to abuse. It has to go.

Friday, September 23, 2011

Rejecting transparency?

The Open Government Partnership is an international initiative to promote greater transparency, accountability and participation in government. It was formally launched in New York on Tuesday, with 46 countries signing on to its declaration of principles.

Strangely, New Zealand wasn't one of them. This isn't an oversight; we've apparently indicated that we won't be joining.

You'd think that transparency, accountability, and participation are values our government would want to promote, especially given our support for democracy and human rights. But apparently not. Internationally, we officially don't give a damn about these things.

Which is I guess what happens when you make Murray McCully Minister of Foreign Affairs.

New Fisk

A President who is helpless in the face of Middle East reality

Accepting two salaries

A couple of weeks ago, former Labour MP Chris Carter announced he would be leaving Parliament to take up a job with the UN in Kabul. He gave his valedictory two weeks ago and lef the country immediately. Last week he was reported as having completed his first day on the job, on the same day as the Taliban launched a series of attacks on the Afghan capital.

When Carter announced he was leaving, Labour leader Phil Goff gave voice to the public's expectation:

Carter must quit before he leaves, he said. "It's common sense. No-one accepts two salaries. If you've got a job and it's a paying job, you resign. I imagine that's what he'll do."
So, guess what Carter hasn't got round to doing yet? Oh, he's finally sent a letter to the Speaker, but his resignation won't take effect until September 30th, 24 days after he gave his valedictory and at least two weeks after he started working for the UN. He's been collecting two salaries for the past two weeks, being paid to work as an MP while not actually performing that role.

This isn't acceptable. But what can we do about it? Departing MPs don't fear the voters, and what other sanction do we have?

A blank cheque

Thanks to the Labour Party, the government's draft Video Camera Surveillance (Temporary Measures) (AKA Rule of Law Repeal) Bill is now available [PDF]. The bill is very short, and is basically a blank cheque for police. Whatever video surveillance they've done, now or in the past, is declared lawful, except in regards to the Urewera 18 case. And they get to keep doing whatever they're doing for the next year, with no requirement for warrants or to prove that such surveillance is necessary.

Its hard to see how such a bill can pass the test of being "demonstrably justified in a free and democratic society" required for consistency with the BORA. Free and democratic societies do not give their police a blank cheque to spy on the general populace whenever and however they want. They require warrants, and for more intrusive surveillance measures (such as using cameras where there is a reasonable expectation of privacy), some test of necessity and proportionality to the crime. The relevant part of the Search and Surveillance Bill contains such safeguards. And that is what the government should be passing, with prospective force. As for their past surveillance activities, the police knowingly broke the law, and they should pay the price - not just in lost cases, but in sackings and resignations. A lawless police force acting under colour of authority is simply a criminal gang by another name, and it must be held to account.

Thursday, September 22, 2011

Troy Davis

One of the most common criticisms of the death penalty is the risk of making mistakes. Even with the best of intentions and all the safeguards, any justice system will be imperfect. Wrongful convictions will happen. And when you have capital punishment, the consequences of those convictions will be fatal and irreversible.

The world has just been delivered a perfect example of this in the form of Troy Davis. In 1989, Davis was convicted of shooting a police officer and sentenced to death. In the years since, seven of the nine witnesses relied upon for that conviction have recanted, saying their testimony was false and had been coerced by police. One of the two remaining witnesses is the primary alternative suspect. This mass recantation and police misconduct raises serious doubts about the conviction. In a fair justice system, it would be cause for a retrial or an acquittal. Sadly, the US does not have a fair justice system in death penalty cases, and so Davis was executed just a few hours ago.

Capital punishment is obscene under any circumstances. But killing someone when there is so much doubt about their case is doubly so. It doesn't look like justice - it looks like murder.

New Fisk

Dreams of a helpful America keep Palestinians hoping


The latest GDP figures were released today, showing economic growth of 0.1%. We're not technically in recession, but we might as well be; the economy is stalled, and we're going nowhere.

For a government elected on promises of superior economic management and "closing the gap" with Australia, this ought to be shameful. Pretty obviously, they haven't delivered. And while they can make excuses about the global financial crisis and the Christchurch earthquakes, these are wearing very thin. The blunt fact is that National has bungled its response to both, by sitting back and letting the market sort it out, rather than intervening. And 154,000 unemployed are now paying the price for their "do nothing" ideology.

We need a change of economic direction. Which means we need a change of government. After three years of sitting on their hands and mouthing NeoLiberal platitudes, it is clear that National isn't going to do anything about this problem. Its time we voted for someone who will.

Labour on rule of law repeal II

Labour has put the final nail in the coffin of the government's plan to oust the rule of law and retrospectively validate unlawful police surveillance under urgency, announcing that having seen the bill, they cannot support it in its present form. They will support it to committee, in the hope of getting it changed - but if it isn't, then National are on their own.

Meanwhile, it seems that the government's real problem is with section 30 of the Evidence Act. This allows evidence obtained by unlawful means - e.g. unlawfully placed video cameras - to be admitted, if its exclusion is disproportionate to the impropriety, taking into account a number of factors including the seriousness of the crime and whether there were alternative means of investigation available. We saw from the Urewera 18 trial that this is perfectly adequate to deal with the problem; its a case by case decision, but on serious crimes, the courts may allow the evidence anyway. Sadly, it seems that that degree of uncertainty is too much for the Attorney-General; anything less than the admission of all evidence, no matter how it was obtained, is insufficient. So, the Cabinet Minister charged with upholding the law and protecting our rights wants to ignore both, simply to protect police from criticism that they behaved unlawfully. And people wonder why I think we need an enforceable Bill of Rights...

Climate change: Insult to injury

Earlier in the week, the government announced that it would let farmers off the hook entirely over climate change, and continue to subsidise their pollution for the forseeable future. Today we learn that they're making record profits. Talk about adding insult to injury.

So much for farmers' claims of poverty. Farmers can clearly afford it, so they should pay. The alternative is that the rest of us - who don't own vast tracts of land, don't drive BMWs, and aren't sharing in a $10 billion annual profit - should pay instead for their pollution. And that is neither fair nor just.

Wednesday, September 21, 2011

A question

On Friday, Palestine is expected to apply for membership of the UN, effectively (re)declaring a Palestinian state. This will kick of a diplomatic shitstorm, highlighting the isolation of Israel and its patron, the United States.

So, here's a question: how will New Zealand vote? Our history as a supporter of human rights and internationalism would suggest that we would vote in favour. But the current government has shown itself to be more than willing to compromise on that where American interests are concerned.

I think its time they were put on the spot about this. Does National support human rights and the right of all peoples to self-determination? Or are they just American toadies? Voting minds want to know.

No majority

ACT has announced its position on National's plans to oust the rule of law and retrospectively validate unlawful police surveillance, saying that they want the bill to go to select committee. So that's that then. The government has no majority for this change, and will not be able to ram it through without public scrutiny.

The question now is what will happen after the select committee. The legal profession, the Human Rights Commission, and likely the courts will all voice serious objections to the proposed retrospective validation (while supporting in principle the right of the police to conduct such surveillance in the future with proper judicial oversight). Hopefully this will mean the retrospective portions of the bill will be removed, and we'll get a quick-fix which is basically unobjectionable. But the government may try to press on anyway, and try and tar other parties as "soft on crime" (rather than "soft on human rights") if they refuse. The question then is whether ACT or Labour will buckle, or whether they will stand up for our constitution in the face of an assault which exceeds anything done by Muldoon.

"Constitutional niceties"

Writing in the Herald, John Armstrong demonstrates why there is no hope for New Zealand political "journalism":

It is no-win for Labour. If the party's MPs back the bill, they will incur the wrath of legal purists who argue the legislation offends constitutional niceties on at least three counts. It has been drafted in haste. It is retrospective. And it is being rushed through Parliament under urgency.
Firstly, there's the misidentification of the problem. Haste and urgency are undesirable (and become more so the more the government makes a habit of them), but just the icing on the cake. And its no so much retrospectivity as what the bill is retrospective about.

I'll put it in really small words so that Armstrong can understand: the government is proposing to intervene in cases before the courts, changing the rules halfway through for the benefit of the prosecution. Both are an affront to the rule of law, the idea that no-one is above the law, no-one can be punished except by law, and that no-one can be convicted except by due process of law (consistency of process - not changing the rules halfway through to stack the deck for one party or another - is part of this). And that's not some "constitutional nicety", but what distinguishes us from arbitrary despotism.

A competent political journalist would be aware of these concepts. Sadly, for Armstrong it seems that they're above his pay-grade. If its not horse-race stuff, then he's just not interested.

Meanwhile, as for his argument about Labour having to give in or face being labelled "soft on crime", the government is planning to let the police off for knowingly and systematically breaking the law. How's that for "soft on crime"? Or is it only "crime" if its done by brown people, rather than the boys in blue?

Something to go to in Auckland

Nicky Hager is giving a talk about his book, Other People's Wars, at Auckland University next week:

When: 17:00, Monday 26 September
Where: Women's Federation Room, 2nd floor, Old Government House, University of Auckland

The book is a fascinating read, and the talk should be well worth going to.

The Green jobs initiative

I've spent the morning reading through the Greens' "Green jobs initiative" [PDF]. The short version is that the Greens are promising to "create 100,000 new green jobs through business incentives and government leadership", specifically through increased investment, building a clean energy sector, and increased support for a green economy. But when you look at it, its not really about jobs at all; rather its about greening our economy, with jobs as a byproduct. Political marketing means that that byproduct is being highlighted, in a way which is at times outright deceitful.

The bulk of the policy is about "big picture" economic issues. Ending ETS subsidies. Water pricing. A capital gains tax. Increased R&D funding. These things don't directly create jobs in the short-term. But they move our economy onto a more sustainable basis, and force innovation on the sclerotic private sector, making us more secure in the long-term. Sadly, such long-term thinking is difficult to sell, and doesn't have an easy marketing tagline, so these policies aren't highlighted. Instead, the focus is on immediate, short-term stuff. But even then, jobs are really a byproduct.

Take home insulation, for example. This is a Good Idea, and one which produces a 300% return on investment through reduced health costs and lower power bills. Its worth doing for that alone. Likewise new state houses - we have a shortage, particularly in Christchurch now, and the ones we have are old and inefficient. Building new ones is an investment in a long-term capital asset which sets standards for the wider building sector and raises the average energy efficiency of the housing stock. Or a paid "conservation corps" to clean rivers and streams - we want clean rivers, which means we need people to clean them. Like the other cases, its something worth doing anyway (even if in this case the benefits are financially unquantifiable). The fact that it creates jobs is being used to sell the idea to people who aren't necessarily convinced by the benefits.

The "big idea" in the policy is government support, through our energy SOEs, for a major new renewable energy industry:

The clean energy sector is booming internationally. Currently, renewables supply only 15% of the world’s primary energy demands but its share is growing rapidly. The global renewable energy market grew by 6.8% in 2010 alone to reach a value of $389 billion. It is forecast to reach an annual value of $590–$800 billion by 2015. By securing just 1% of this market, we’d create a $6–8 billion new export industry here at home, creating 59,000–81,000 new jobs.
Which is a nice dream, and something we should aim for. Our economy is not very diverse (basically, we export butter and bungee jumping), and if it is to grow we need to start doing other things. Exporting wind turbines, geothermal technology, and smartmeters, and the technology, services and IP related to these is a good idea, and something that potentially fits well with what we already do. But a $6 - 8 billion export sector is enormous - bigger than meat; it would be our third-largest export industry after tourism and dairy. And that's not something that's going to happen overnight. Its a good idea, its something we need to do, and its something government needs to help with (after all, pretty obviously the market isn't going to do it if left to itself), it will benefit New Zealand in the long run. But pitching it as an immediate job-creation plan, and implicitly suggesting we'll have those jobs by 2015 (rather than in 20 years time) is deceitful and misleading.

This isn't just wrong, it is a mistake. Quite apart from raising questions of the Greens' honesty and integrity, one of their chief selling points, it undermines the policy itself. This is a perfectly good policy, and it can stand on its merits (hell, even MED agrees that we need active government intervention to build new export industries, up to and including direct investment in growth areas). Fudging things like this hands a gift to detractors, allowing them to dismiss it out of hand: "100,000 new jobs? Yeah, right".

So, a good policy, but very disappointing marketing around it. Deceit is not the green way, and if you use it to sell your policies, then people will start treating you as liars, just like all the rest.

Tuesday, September 20, 2011

The end of "don't ask, don't tell"

Its official: the US military's homophobic "don't ask, don't tell" policy has been repealed. This doesn't just mean the end of more than 230 years of institutionalised homophobia; it also means the US is no longer the only western country to ban gays from serving in the military.

Its a small victory, but a hugely symbolic one. In a militaristic country like the US, ending homophobia in the military is a powerful symbol of social acceptance. Which is precisely why the theocrats fought it tooth and nail for so long. But now they've lost, and hopefully the US will be a better, more accepting place for it.

New Fisk

Why the Middle East will never be the same again

Labour on rule of law repeal

Labour has finally spoken up about National's plans to oust the rule of law and retrospectively validate unlawful police surveillance, saying they will not support the bill until they have seen it, and they will not support the bill being passed under urgency:

Labour wants a select committee to scrutinise retrospective legislation to allow secret filming on private property by police.


''The bottom line is it must go through a select committee process,'' Goff said. ''It needs to have expert opinion, we need to have the Law Commission, we need to have the Law Society, the other players in this game, able to comment.''

He added: ''We haven't seen the law yet, we haven't seen the bill, and I'm not going to support anything I haven't seen.''

This is better than I had expected, but it still leaves the door open to support interfering in ongoing criminal trials to support the prosecution. And that is something no party in our Parliament should support.

Update: And more from Charles Chauvel here.

A breakthrough for the Pirate Party?

Berliners went to the polls on Sunday in state elections, and delivered the usual result for a state election in Germany at the moment: the Free Democrats were annhiliated (they got fewer votes than the Nazis, which shows how popular they are), the Greens went up, and the Social Democrats and Christian Democrats hung on. But they also delivered an unexpected result: the German Pirate Party won 8.9% of the vote, and 15 seats in the state legislature.

This is a big deal for the Pirate Party, not just in Germany, but for the whole movement. So far pirate parties have won a few city council seats, and 2 Euro MPs in Sweden. Now, they're sitting in a state Parliament. While they're unlikely to be participating in coalition negotiations (the SPD has an easy majority with the Greens), they have a bully pulpit to make their arguments on copyright, privacy, and human rights, and to try and convince Berliners (and Germans) of the need for change.

Meanwhile, our local instance can't even get the 500 members it requires for registration. Despite widespread anger over the skynet law, and another abuse of process to allow more surveillance, they're just not able to position themselves as offering solutions even to a niche of voters.

More on rule of law repeal

The government's move to oust the rule of law and retrospectively validate unlawful police surveillance is attracting the expected backlash. Both Andrew Geddis and Dean Knight have excellent pieces explaining why this is so odious. The government isn't just proposing to establish a framework allowing video surveillance in the future (which is OK with proper judicial oversight which balances the intrusiveness of such surveillance against necessity, just as they do for wiretaps) - they're planning to interfere in incomplete criminal trials, changing the rules of evidence in favour of the prosecution so as to secure convictions and protect those which have already been handed down, and do this under all-stages urgency. Grant Illingworth [audio] goes further, saying that it effectively repeals the right to be free of unreasonable search and seizure, a fundamental attack on our constitution.

Of course, the government can only do this if they can get the votes. The bill has already been condemned by the Greens, the Mana and Maori parties, which leaves the government relying on the votes of either ACT or Labour for a majority. In both cases, the move goes against everything the parties stand for, and will not sit well with large portions of their respective support-bases. If these parties hold fast, then the government will not be able to pass this bill, and will be forced to abandon its more odious elements. Sadly, I think one or other of them will betray us.

Monday, September 19, 2011

Pissing on the rule of law

Two weeks ago, the Supreme Court ruled that covert video surveillance evidence against the Urewera 18 was inadmissible, because it had been obtained unlawfully. This was no surprise to the police; they had known that the use of such surveillance was unlawful, but had disgracefully gone ahead and done it anyway. But in the wake of the decision, they whined that the ruling would put other cases at risk. And today, the government gave in to that whining, announcing they would introduce legislation under all-stages urgency to suspend the ruling and retrospectively validate such surveillance.

This is not your usual case justifying all-stages urgency. The police have not been caught by surprise here. They have known for some years, at least since the Law Commission's 2007 report on search and surveillance powers that video surveillance is unlawful. And there's even a bill before Parliament, the Search and Surveillance Bill, which would fix it by providing a framework for such surveillance to be lawful. But the government has sat on that bill for almost a year now, preferring to progress other legislation. Parliament has not been caught by surprise; it has deliberately chosen not to act.

In such circumstances, ramming through a bill under all-stages urgency to retrospectively validate deliberately unlawful behaviour by the Police is a gross assault on the rule of law. The police violated the law, and they should pay the price. If they didn't want to pay that price, then maybe they shouldn't have deliberately conducted unlawful surveillance in the first place.

Update: Updated link. Also, retrospective validation means the police will be able to use the evidence against the Urewera18. So this is actually all-stages urgent legislation to change the outcome of a criminal trial. This is absolutely obscene. We would not accept such behaviour somewhere like Fiji, and we should not accept it here.

Racism fails in Australia

Two weeks ago, the Australian High Court ruled that the Gillard government's proposed "Malaysian solution" to refugees was illegal. There was no power to send refugees to countries which were not parties to the UN Refugee Convention, and no power to transfer any claimant before their claim was determined. On Friday, Gillard released her response to this problem: repudiating the Refugee Convention. Oh, not formally, but in practice, by stripping out any reference to it in Australian law, making it unenforceable and allowing the government to ignore its obligations.

The good news is that this has not gone down well. Gillard's backbench are horrified, and even the Coalition (who don't give a toss for refugees except as punching bags for their racism, but want to see Gillard fail) are refusing to back it. Which means that it has no chance of passing. Which in turn means that Australia will have to grow up, accept its legal obligations, and process claimants who arrive by sea just as it does quietly for those who arrive by air.

Climate change: Subsidising farmers

As expected, National has used its strapped-chicken ETS review to let farmers off the hook entirely for their pollution. This is wrong on so many levels. Farmers are our biggest polluters. Dairy-sector emissions are growing as fast as the transport sector. Excluding them will let those emissions continue to grow, while placing a greater burden on everyone else. And in the long-term, it means we will be unable to meet even National's weak "50% by 2050" target - because agricultural emissions are already more than 50% of our 1990 total.

Farmers already have the technology and management practices to reduce those emissions [PDF]. They would rather not use them, and instead reap higher profits by being dirty. And this dumps their costs on the rest of us. Assuming a carbon price of $20/ton, excluding farmers means an effective subsidy of ~$650 million a year. That's $650 million we won't be able to spend on education, on health, on lifting kids out of poverty. Instead, it will go straight into the pockets of our narrow rural elite.

The core principle of environmental policy should be "polluter pays". By insulating farmers from the true cost of their activities, National are turning that principle on its head. And its not as if they can't afford to pay - farmers are making record profits.

To put it bluntly, it is us or them. Either they pay, or we do. National will make you pay so farmers can keep driving BMWs. If you don't like that, vote accordingly in November.

Fixing Christchurch

Today Labour released its earthquake recovery policy. Where National's "plan" is to basically sit back and let the market fix Christchurch, Labour seems to recognise that the market isn't working. Refusal to provide insurance is preventing rebuilding, while blatant price gouging is preventing Red Zone inhabitants from relocating within the city, basically forcing them to leave. Labour plans to tackle this by threatening to intervene in the insurance market (the AMI bailout gives them an excellent vehicle for doing so), and promising to compulsorily acquire land to provide new sections for affected residents. These are good policies, and while they will cost more in the short-term than the government's present strategy, it will be worth it. Christchurch is too important to do on the cheap.

Meanwhile, one of their other policies - an independent insurance commissioner to resolve disputes - is a great idea, but will probably come too late. Realistically, it will be two more years before such an office could be established and working. Even if it had jurisdiction over past disputes (which it may not), lack of money will have forced a settlement to most disputes long before then. But it will help in the longer term to prevent the insurance industry from reneging on its customers ever again.

New Fisk

German U-boats refuelled in Ireland? Surely not

Suffrage day

Today, September 19, is Suffrage Day. On this day in 1893, women got the vote.

We've come a long way since 1893. A third of our MPs and a quarter of our Cabinet Ministers are now women. At the same time, we've clearly got a long way to go - only a third of our MPs and a quarter of our Cabinet Ministers are women. Australian Prime Minister Julia Gillard was recently told to get on the spouse's bus by some moron who didn't think a woman could be a Prime Minister. Journalists still treat women as political appendages of their partners. And then of course there are the policy problems: a yawning gender-pay gap which shows that women are systematically undervalued, a glass ceiling which still sees them systematically underrepresented in the top jobs, sexual violence and all the victim-blaming and fear that goes with it. More women in Parliament might help solve some of these problems. Unfortunately, thanks to National, we seem to be heading in the opposite direction.

Friday, September 16, 2011

Labour betrays us on climate change as well

When National gutted the ETS, Labour was very clear: they opposed it. In particular, they opposed the massive expansion of subsidies to polluters. They reiterated that opposition in May this year, when they talked about using the money saved from those subsidies - not just agriculture - to fund social policies. So you'd think their position on it was clear, right?

Clear as mud. Today, in responding to National's plans to further gut the ETS, Associate Finance spokesperson David Parker said:

“Although Labour believes National’s approach to industrial emissions is imperfect, we are willing to go along with it due to the desirability of settling across both main parties.
So, for the sake of "unity", of not scaring polluters with the threat of tougher policy in the future, they now support pollution subsidies.

I guess that's another thing Labour can't be trusted over. You can't trust them with your human rights, and you can't trust them with the climate. In fact, about the only thing you can trust them to do is display pig headed arrogance when they fuck up.

Labour betrays us on jury trials

So, just when it looked like the government was backing away from its plan to abolish the right to trial by jury in almost all cases, the Labour Party has stepped in to save them. Its being framed as a compromise, of course - Labour has made the law not as bad as it would have been if National and pushed ahead and passed the bill themselves (under urgency, and with a majority consisting of zombies and crazies; good luck passing that off as legitimate). But its not much of one. Now instead of people being able to be locked away for up to three years on the word of a judge alone, they'll "only" be able to lock you up for two. Given that most jury cases fall below that threshold, we're still looking at a massive infringement of people's rights, and a massive increase in state power. Thanks, Labour!

And this is why I can't vote Labour: because the Labour Party cannot be trusted to guard my human rights. It is that simple. If you take human rights seriously, you can't vote Labour.


The Supreme Court judgement in the case of the Urewera 18 has been unsuppressed. Which means I can now tell you that, contrary to the police spin, the searches the police relied upon to gather their evidence were unlawful and known to be so by police at the time. This wasn't just a legal technicality, a failure to fill out the paperwork properly; police trespassed on privately-owned land without search warrants, and conducted video surveillance with no statutory authority to do so. The Chief Justice was absolutely scathing of the police's conduct in the case:

I regard it as a significantly exacerbating factor that the film surveillance was undertaken deliberately without legal authority, in the knowledge that there was no lawful investigatory technique available to be used... In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.


[T]he breaches of s 21 were not merely technical or inconsequential procedural errors but "flagrant violation of right", deliberately undertaken. The breach of human rights entailed the covert filming of individuals who did not appreciate that they were observed and who were not displaying their behaviour for public observation. Because I take the view that the police filming was unlawful, I consider that rule of law considerations are also engaged.

And she's not the only one. Here's Justice Tipping:
I do not consider there is any escape from the view that the police deliberately breached the appellants’ rights. Detective Sergeant Pascoe acknowledged that he knew there was no legislative authority to install surveillance cameras. This, no doubt, is why he did not seek a warrant to do so. The Detective Sergeant did not profess to have authority from any other source. He repeatedly insisted that he had sought judicial oversight for the installation of the surveillance cameras. This claim comes from his having included statements in his affidavits, when seeking the warrants, setting out that this is what the police intended to do. It is not clear what purpose the police had in informing the issuing Judge of what they intended to do other than being able to say that they had candidly told a judge of their intentions. But that, frankly, gets them nowhere if it was an attempt to treat the Judge as having, by default, implicitly authorised or approved their conduct.

If the breach was not deliberate it was undoubtedly reckless because, at best, the position in law was decidedly unclear and, in the very difficult and unusual circumstances facing them, the police, extraordinary as it may seem, did not obtain any legal advice. It is difficult to resist the inference that formal legal advice was not sought because the police knew or strongly suspected what the advice would be and that it would make it more difficult for them to proceed as they intended.

In view of the conclusion I have reached, it is not necessary to determine whether this state of affairs amounted to bad faith. It is enough to say that I find it impossible to hold that the police honestly believed that the video surveillance was lawfully undertaken.

The court was unanimous that police had knowingly violated the accused’s right to freedom from unreasonable search and seizure under the Bill of Rights Act. They were unanimous that the evidence had been improperly obtained. What they disagreed on was whether that made the evidence inadmissible in all cases. The Evidence Act allows such evidence to be admitted, depending on a number of factors, including the severity of the alleged offence and the nature and severity of the impropriety. The judges balanced these factors in different ways, resulting in overlapping majorities to exclude the unlawfully obtained evidence for those facing only charges under the Arms Act, while allowing it for those facing the more serious charges. But that does not change the fact that the police knowingly and deliberately violated the accuseds' rights. And that is not something we should accept. The Police, of all people, should obey the law. If they don't, they're just a criminal gang with a fancier uniform.

The left wins in Denmark

Denmark went to the polls yesterday in national elections, and from the preliminary results the Social Democrat-led "red bloc" has won a narrow majority, giving the country its first female Prime Minister and ushering in the first left-wing government in a decade.

The "red bloc" (Social Democrats, Social Liberals, Socialists and Red-Greens) ran on a platform of anti-austerity: increases in both taxes and spending. Its a significant difference from the slash and burn policies prevailing in the rest of Europe; hopefully it will lead to better results. They've also promised to roll back racist anti-immigration policies, imposed by the racist, Muslim-bashing, Breivikist Danish People's Party, which has had a lock on government policy for the past decade. The racists and now sidelined, and while the rollback will be gradual, the door to change is now at least open.

Malaysia to repeal the Internal Security Act?

The Internal Security Act is one of Malaysia's most oppressive laws. A relic of British rule (naturally), it allows the government to arrest and detain anyone without trial for an indefinite period. The law has been used against trade unionists, student leaders, academics, NGO activists, and political leaders, usually for little more than criticising the government of the day. Over 10,000 people have been detained in this way, some for decades. But now, the Malaysian government is going to repeal it.

This is good news, but it comes with a bitter aftertaste. The law will be repealed - but it will also be replaced with a similar regime, which will still allow detention without charge or trial (but only of "militants", which, as we've seen, is quite a flexible term which seems to cover anyone the government doesn't like). Any reduction in such detentions is welcome, but if Malaysia really wants to call itself a modern democracy, it needs to eliminate them entirely. Modern democracies do not imprison people without charge or trial, no matter what they have done. Instead, they are arrested, charged, and prosecuted. If the evidence does not support prosecution, then they are allowed to go about their business, because they haven't broken the law. Imprisoning them anyway, just because some politician feels like it, is a fundamental violation of the rule of law. And that's something we see in despotisms, not modern democracies.

Thursday, September 15, 2011


For the past 15 months (and arguably, the past four years), Belgium has been without a government, after elections in 2010 led to a deadlock in coalition talks. This hasn't been all bad, and in fact it may have had some positive effects. As John Lanchester points out, no government has meant no cuts, no austerity, and stunning economic performance compared to neighbouring countries in the grip of slash and burn.

Now it looks that the deadlock is coming to an end. Caretaker Prime Minister Yves Leterme's resignation and move to the OECD seems to have spurred the political parties to reach a deal meaning a formal coalition in the near future. The bad news?

Financial markets and rating agencies are pressing the country to create an effective government capable of carrying out structural reforms and reducing debt.
So, soon the Belgians will be suffering just like the rest of us. Bugger.

[Hat-tip: Crooked Timber, well, the comments at least]

Climate change: National's policy in a nutshell

  1. Pay polluters to pollute
  2. ?
  3. Emissions reduce

And if you think that's a credible policy, I have an emissions trading scheme to sell you.

Climate change: Gutting the ETS again

One of National's first actions after coming to power was to gut the ETS, by granting enormous (and unaffordable) polluter subsidies. The result is a scheme which is massively overallocated, and which provides active incentives for more pollution rather than less. Now, National wants to weaken it further, delaying the full entry of the energy, industrial and transport sectors, and extending pollution subsidies for even longer. This is being spun as reducing the cost on households, but lets be clear: it is about protecting polluters, not us. We'll still be paying for that pollution, but we'll be doing it through higher taxes (or, given that this is National, reduced public health services) rather than higher petrol prices. As for the principle of "polluter pays", it will instead be "pay polluters". And as for our "20% by 2020" target, we'll be statutorily committing to fail to meet it.

This is exactly what I expected would happen when National appointed a bunch of farmers to its strapped-chicken review panel. However, its still disappointing. Climate change is a real problem, and it demands a real solution. Instead, its being used as an excuse to provide pork to National's mates in the pollution industry. And if that's how its going to work, we should just scrap the entire ETS and pursue a regulatory solution instead.

Is the Pope guilty of crimes against humanity?

Over the past two decades, there has been a growing awareness of child sex abuse committed by Catholic priests, and of coverups by the Catholic hierarchy designed to protect the reputation of their institution. These are serious crimes. The coverups constitute an international conspiracy, and arguably a policy of tolerance of such crimes (particularly in light of the way some abusers were moved, allowing them to abuse again and again, or sheltered by the Vatican and protected from extradition to face justice in the countries where they had abused). But is it a crime against humanity?

That's the contention of the US-based Centre for Constitutional Rights, who is trying to take the Pope and other Vatican officials to the International Criminal Court:

The submission, lodged at The Hague on Tuesday, accuses the four men not only of failing to prevent or punish perpetrators of rape and sexual violence but also of engaging in the "systematic and widespread" practice of concealing sexual crimes around the world.

It includes individual cases of abuse where letters and documents between Vatican officials and others show a refusal to co-operate with law enforcement agencies seeking to pursue suspects, according to the Centre for Constitutional Rights (CCR), a US-based organisation that represents the claimants.


According to the document filed by CCR, the pope, as head of the Catholic church, is ultimately responsible for the sexual abuse of children by priests and for the cover-ups of that abuse. The group argues that he and others have "direct and superior responsibility" for the crimes of those ranked below them, similar to a military chain of command.

Its a compelling argument. Rape and sexual violence are defined in the Rome Statute of the International Criminal Court as crimes against humanity if "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". A "widespread or systematic attack" means either "government policy... [or] a wide practice of atrocities tolerated or condoned by a government or a de facto authority". A state which allowed its officials to rape and abuse children, then covered up for them, sheltered them, and generally took every step possible to prevent them being held accountable for those crimes would undoubtedly be considered to have tolerated or condoned those offences and to have committed such an attack. The Catholic Church, which is also a government, and used its government powers in the course of that coverup, should be held to the same standard.

Unfortunately, jurisdictional issues mean that the case will likely never be heard. The Vatican, like the US, is not a party to the ICC, and so a case can only be brought with the consent of the UN Security Council. Which isn't very likely. Once again, that hole in international law is allowing criminals to escape justice.

Another backdown?

On the heels of its backdown over the right to silence, the government looks to be backing down on the right to trial by jury as well:

People accused of child-smacking or domestic violence crimes could keep the right to have their cases heard by a jury, under an eleventh hour proposal to make the Government's criminal justice reforms more palatable.


Mr Power's proposed changes soften the bill by enabling the court to allow jury trials for such charges in "exceptional circumstances", or ones considered to be complex or sensitive. The defendant would have to satisfy the court of such circumstances.

This is better, but still not good enough. The right to trial by jury is fundamental. People shouldn't have to beg for it, like a peasant before a king. Human rights are exactly that, rights, not favours dispensed on whether the powerful think the recipient is "worthy" or "deserving" enough. The reason we have laws in the first place is to ensure our government and criminal justice system don't operate like that.

Power's "compromise" isn't. It would still mean that people could be locked up for substantial periods of time without the vital bullshit detector of having the police's case scrutinised by a jury of their peers. And that is absolutely abhorrent. Our politicians must hold the line, and vote against it. And if they don't, we should hold them and their parties accountable for it at the ballot box.

Wednesday, September 14, 2011

Decriminalising homosexuality one country at a time

The map above, from Wikipedia, shows homophobic laws around the world. In grey and blue countries, homosexuality is legal. In orange and red ones, it is not. Shading shows the strength of protections (for blue) or penalties (for orange). Homosexuality is illegal in around 80 countries; in the worst countries (Sudan, Saudi Arabia, Iran and Afghanistan) you can be killed just for being gay.

Lots of groups are trying to change this, of course. And today the Guardian has an interesting piece on a new one, the Human Dignity Trust. Their goal is to decriminalise homosexuality, one country at a time, by pursuing test cases in local courts. They can do this because the countries involved are either parties to the ICCPR (which protects sexual identity), or have constitutional sovereignty (meaning that laws abhorrent to their constitution can be overturned). Many of those - the big orange band through Africa - are also former British colonies, their laws British relics, with the Privy Council in London their ultimate appeal court (or at least a powerful legal influence). Which gives the Trust the ironic strategy of using one colonial relic to overturn another.

Given the legal similarities between many of these jurisdictions, every positive ruling helps every other case:

"What that means is that when we turn up in the difficult places of Africa and Asia, it's watertight. You can imagine them saying: 'Well, that's South Africa, that's the US supreme court' and trying to distinguish them. But it would be very difficult to distinguish two privy council decisions, one from the South Pacific, one from the Caribbean. If you are that independent judge in Kenya, faced with those authorities, how do you say: 'We're going to retain criminalisation'? You can't."


Cooper, also measured but with the fire of optimism in his eyes, thinks they could have all the decisions they need in five years. "We will have to pay for cases in jurisdictions; I don't see why local lawyers should do it pro bono. We will fundraise, and there is something rather charming that you can say to somebody: 'If you give us £50,000, I can more or less guarantee that you will have decriminalised homosexuality in Tonga.' And actually, you know, that's great."

That is kindof cool, and I think that would be £50,000 well spent.