Thursday, December 20, 2018

No freedom of speech in India

Criticising the prime Minister is considered the duty of the press in New Zealand. But in "democratic" India, it's a "threat to national security":

An Indian journalist has been jailed for a year after he criticised Prime Minister Narendra Modi on Facebook, in the latest example of what critics claim is a clampdown on free speech.

Kishorechandra Wangkhem was arrested last month in the remote northeastern state of Manipur under a draconian law that allows authorities to detain anyone for up to a year without trial.

The 39-year-old television journalist is accused of posting an "inflammatory" social media video in November, in which he accused Modi and state chief minister Biren Singh's government of promoting rightwing Hindu ideology in the region.

Local media said he called Singh a "puppet" of Modi and of the Rashtriya Swayamsevak Sangh (RSS), a hardline Hindu group and ideological mentor of Modi's ruling party.

Authorities said the arrest was made to "prevent him from acting in any matter prejudicial to the security of the state".

And he's not the only one. Call the Prime Minister a dog, get arrested. Call him a thief, get charged with sedition. Neither would be considered a criminal matter in New Zealand.

if the "world's largest democracy" wants to keep that name, it needs to recognise basic political rights, including freedom of the press and the right to free speech. Until it does that, its just a shitty despotism in democratic fancy dress.

Justice for Nisour Square

In September 2007, mercenaries employed by Blackwater Security murdered 17 iraqis in Nisour Square. Now, one of them has finally been convicted for it:

A former security guard for the US firm Blackwater has been found guilty of murder for his role in a notorious massacre of unarmed civilians in downtown Baghdad in 2007.

Nicholas Slatten, 35, was convicted of first-degree murder by a federal jury in Washington on Wednesday after five days of deliberations.

Slatten was convicted of killing Ahmed Haithem Ahmed Al Rubia’y, 19, an aspiring doctor who was one of more than a dozen civilians killed by Blackwater guards in Baghdad’s Nisour square on 16 September 2007.

This is the third attempt to obtain justice against this murder: his first conviction (in 2014) was thrown out, and a jury was unable to reach a verdict in a second trial. Hopefully this time it will stick.

Wally Haumaha should be fired

The Independent Police Conduct Authority has released its report on allegations of bullying against Deputy Commissioner Wally Haumaha. While they don't uphold the core complaint of bullying, due to a lack of (evidence demonstrating) persistence, they do find that he repeatedly behaved in an inappropriate, unprofessional, and intimidating manner, and that he improperly approached police staff in an effort to solicit support for himself and discredit his victims when the allegations came out.

Reading the report, there are a number of things which stand out. First, Haumaha is a shit manager who should never be put in charge of other people. There's an obvious culture clash between hierarchical police and consensus-based public servants, but this was exacerbated by his utter lack of people-management skills. Second, Haumaha systematically "fails to remember" his bad behaviour. Either he sees it as normal, or he simply lies his way out of trouble. Second, that other police officers report agreeing to his demands "out of fear" - phrasing which tells us everything we need to know about him. This is not a person who should ever be put in charge of other human beings. Simply on professionalism alone he is unfit for office.

Wally Haumaha should be fired. The question is whether the Prime Minister will exercise her powers under the Policing Act to make that happen, or whether she will continue to let an unprofessional thug undermine the police and its public reputation.

Update: Apparently, its the latter. Its amazing how tolerant the government is of poor behaviour if it wears a uniform.

Wednesday, December 19, 2018


When Labour became the government, they promised (as part of their confidence and supply agreement with the Greens) to raise the minimum wage to $20 an hour by April 2021. And they're delivering:

More than 200,000 people will benefit from an extra $48 a week next year in the biggest boost to the minimum wage in its history.

The minimum wage rate will rise from $16.50 an hour to $17.70, taking effect on April 1 next year, Workplace Relations Minister Iain Lees-Galloway and NZ First employment relations spokesman Clayton Mitchell announced today.

"For a fulltime worker, this will mean an extra $48 a week before tax – enough to make a real difference for working people," Lees-Galloway said.

"The increase will benefit approximately 209,200 workers and their families, lifting wages throughout the economy by $231 million per year and making a big difference for families.

It's a great step, which will make a huge difference to a lot of people. But Lees-Galloway also laid out his expected increases over the next few years, to give employers certainty: $18.90 an hour in 2020, and $20 an hour in 2021. Which means that they will have delivered a 27% increase to the living standards of the working poor by the end of their term. Now that's what I call progress.

Banning the private stasi

Yesterday's revelations about government use of Thompson and Clark Investigations as a private stasi to spy on and infiltrate activist groups were disturbing, and they raise serious questions about government surveillance. But this isn't just an issue for the government. The use of this sort of spying and surveillance has a chilling effect on our democracy, whether it is conduct by government agencies or private corporations. In it's Review of the Search and Surveillance Act 2012, the Law Commission made a compelling point:

The free expression of opinions and exchange of information is one of the fundamental underpinnings of a democratic society. If members of the public feel their communications and activities are being monitored... they may feel constrained in expressing potentially controversial political, religious or ideological views.

The Law Commission was primarily concerned about state surveillance, but the chilling effect it is concerned about is a result of surveillance itself, not of who is doing it. The Law Commission called for tighter regulation of (state) public surveillance - that is, "public visual surveillance" (monitoring who is coming and going in public places), social media monitoring (both of publicly accessible and semi-private, friends-only material), and "directed surveillance" (targeting people in public places). They justified this on the grounds that "We do not consider the principles in the Privacy Act provide sufficient protection against unjustified public surveillance". But again, the same logic applies to surveillance by private agencies, suggesting that they are in need of regulation too. As for how much regulation, it is axiomatic that private agencies should have far greater limits on their intrusion into people's rights, as they do not serve any public interest. And we already apply this principle: the police can get a warrant for use of surveillance devices, while for private investigators, their use without consent is a crime.

As for what we need to regulate, there are three main areas of concern: public surveillance (as defined above), infiltration and the use of covert information sources, and spying on civil society groups. Infiltration is actually the easy one: because of the deceit, intrusion, and potential for false evidence, the Law Commission recommended state agencies obtain warrants. Applying the principle that private agencies should be subject to tighter constraints than the state on intrusive actions, that suggests it should simply be banned. As for how to do it, the Law Commission suggested a definition of a covert operation (borrowed from the UK Regulation of Investigatory Powers Act) as one where someone "establishes, maintains or uses a relationship with any other person for the covert purpose of obtaining information or providing another person with access to information". It would be relatively simple (regulatory speaking) to establish a Code of Conduct under the Private Security Personnel and Private Investigators Act 2010, saying "a private investigator or private investigator employee shall not..."

Such a prohibition would also forbid using fake profiles to monitor or infiltrate non-public social media information (something the Law Commission also thinks is in need of tighter regulation). But they're also concerned about the potential for monitoring of public information to chill freedom of expression and associated rights, and again, that applies to the private sector. Unfortunately, the Law Commission doesn't make any specific recommendations about where the balance lies, instead recommending a "policy statement" regime setting out rules in the future. But that means that whatever rules are applied, we should apply tighter ones to the private security industry.

The Law Commission is similarly unhelpful about public visual surveillance. But the example of Thompson and Clark's spying on Greenpeace HQ and compiling a map of Greenpeace staff and volunteers with names, addresses and phone numbers, violating the privacy of hundreds of people, suggests we need to do something about it. At present, private investigators have carte blanche to conduct surveillance and use surveillance devices in public places. That needs to change. It is one thing for them to stake out a place as a part of directed surveillance against a particular person, but this is quite different. But it seems difficult to come up with an easy rule to cover this which doesn't also interfere with the functions that we want such companies to be able to perform.

I'm less concerned about directed surveillance because its both less intrusive and also what PIs are frequently employed for. But directed political surveillance is downright creepy and chilling. Which is why we need to ban private investigators from spying on civil society groups. We'd need a definition of such groups, including political parties and unions as well as public protests, and simply prohibit the conducting of surveillance or gathering of information on such bodies or events. That ought to fix it.

Private investigators perform useful functions in uncovering fraud, finding missing people, or gathering evidence on criminal activity. But there's no public benefit whatsoever in allowing them to disrupt our democracy and persecute people for their political views. We can and should protect ourselves from them.

Tuesday, December 18, 2018

Big Brother wants your DNA

The Law Commission is currently reviewing the law around the use of DNA in criminal investigations, and one of the issues they are looking at is whether to create a universal DNA databank holding the DNA of every kiwi:

A review of the law which governs how DNA is used in criminal investigations has raised the possibility of a databank which would hold every New Zealander's DNA.


The possibility of a universal databank which would contain the DNA profiles of everyone in New Zealand has been raised by the commission because it is being discussed around the world, although no country has one.

However, Ms Buckingham said that this was not an attractive option, but the commission felt it could not ignore the possibility of it.

She said it would not be a proportionate response and it would have enormous implications, potentially breaching individual and collective privacy rights as well as being difficult to establish.

"We felt we needed to talk about it rather than simply say we think it's not perhaps the best way to approach the issues of privacy."

What is there to fucking talk about? Its grossly intrusive, capable of handing the government vitally personal information not just about people's identities, but also their medical conditions - information they would find it very hard to get a warrant for even with individualised suspicion. We haven't let them create a universal fingerprint database, despite the obvious convenience for law enforcement, and this is so much worse. Throw in the potential for any databank to be corruptly privatised by a future National government, and its an idea that we shouldn't touch with a barge pole.

(If you're at all worried about this, the most likely target for a DNA datagrab is people's Guthrie Cards, which contain blood samples taken at birth from pretty much everyone, which are retained for no medical purpose in violation of basic privacy principles, and which police already use. But the samples are your property, and you can get them back: simply fill out section D of this form and post it away with a copy of photo ID. It doesn't even cost anything, because its your data, not theirs)

The problem isn't that we hold too little DNA data - but that we hold too much. The police can take it from anyone they arrest, regardless of the crime or whether a conviction eventually results, and they retain it indefinitely, in violation of basic standards around proportionality and unreasonable searches (they can also take DNA by consent, but given those data storage standards, you should never consent to it). According to the stats in the latest police annual report (p 147), they currently hold samples on 186,000 New Zealanders, and added about 15,000 samples this year. Statistics on whether these samples help gain convictions are "not captured nationally", in violation of statute. But regardless, they're retained for people who are never charged or convicted, and for far longer than they need to be on those convicted of minor offences. The DNA databank needs a purge, not an expansion.

A referendum on the green

Last week Parliament legislated for a medicinal cannabis regime. And today, the government has followed it up by announcing a referendum on recreational cannabis at the 2020 election:

A binding referendum on legalising cannabis for personal use will be held at the 2020 general election.

The referendum is part of Labour's confidence and supply agreement with the Green Party, but wording of the question is yet to be confirmed.

Justice Minister Andrew Little says the Electoral Commission will now get on and start planning for it.

A lot will depend on the exact question (and hopefully it will be an MMP-style one with the legislation already passed and waiting for a referendum to come into effect). But the current law is an ass, is widely ignored, and infringes fundamental liberties. Its really not the state's business how adults choose to get high, and their role is rightly limited to product safety and public impairment. So, unless its obvious bullshit designed to give legalisation in name only, I'll be voting yes.

Nothing to see here, move along

The police have also reported back on their inquiry into the use of external security consultants, and (as expected) concluded that there has been no systematicly inappropriate behaviour, though a few police officers may have behaved inappropriately. In particular, the report explicitly clears police of involvement in hiring spy Rob Gilchrist to infiltrate the animal rights movement:

Allegations that Police were collaborating with Thompson and Clark to monitor animal rights activists first surfaced in the media in the early 2000s, including a report that Police and Thompson and Clark shared a paid informant. The investigation found no evidence that this had in fact occurred, or that Police has released information to Thompson and Clark about activists involved in animal rights issues.
Except that it is in the public record that Gilchrist's reports went to two Christchurch Special Investigation Group detectives, and that police subsequently settled with him and paid him for the mental damage had had suffered spying for them. If this is the quality of their "inquiry", then the suspicions about it seem absolutely justified.

More generally, the inquiry's methods and the police's poor record keeping give cause to doubt the conclusions. Their method for determining whether police had behaved unlawfully or inappropriately was to simply ask them - not a method likely to result in truthful answers. Meanwhile, the inquiry had no access to financial records more than seven years old, no access to pre-2015 emails until "near the end of the investigation period", some documents simply could not be found, and the inquiry itself expresses doubts that it could identify all relevant documents within the IT system. It really does boil down to police asking themselves whether they'd broken the law, giving themselves the obvious answer, and not looked terribly hard for evidence to the contrary.

Once again, we've seen that the police cannot be trusted to investigate themselves. This issue needed a genuinely independent inquiry. We used one for their coverups of rapes by police officers; we should use one for anti-democratic spying as well.

A private Stasi

The State Services Commission has released its report into the use of "external security consultants" (aka Thompson and Clark Investigations) by government agencies, and it has revealed some very disturbing behaviour. Various agencies used Thompson and Clark as a private Stasi, to spy on earthquake victims, sexual abuse victims, and most disturbingly, activists and political parties (including both the Greens and the Mana Movement). And Thompson and Clark had a disturbing habit of hiring public servants in key agencies for secondary jobs, creating serious conflicts of interest with their public sector duties. Several criminal investigations have now been launched, including one into Thompson and Clark's infiltration and recording of a private meeting of earthquake victims (potentially breaching both the Crimes Act 1961 and the Private Security Personnel and Private Investigators Act 2010), and one into MPI staff's secondary employment as Thompson and Clark "intelligence analysts" (and their abuse of MPI resources to perform that job). All state sector agencies have also been issued formal guidance on information gathering and the public trust which outlaws anti-democratic surveillance - something you think they would have got the message on in 2008. Agencies have also been reminded that they can not sidestep legal safeguards (e.g. requirements for search warrants) by outsourcing. None of that seems to be coming back on Thompson and Clark themselves, but they are being removed from the government procurement list (meaning no more government contracts for them), they've had their access to the NZTA database revoked, and their name is effectively mud.

All of which is good. The question is whether government agencies get the message this time, since they clearly didn't in 2008. But more importantly, given the depth of the surveillance Thompson and Clark has been found to be conducting against Greenpeace for its private-sector clients (including details of hundreds of people, places and vehicles supposedly connected to the organisation, gained by infiltration, deceit, and in some cases abuse of government resources), there's a clear and compelling case that the entire industry needs tighter regulation. This sort of surveillance, whether conducted by the government or the private sector, undermines democracy. It corrodes people's trust in one another and impedes their exercise of their political rights (which is the point). We wouldn't let the government do it. So why should we let the oil industry do it through a private Stasi? Businesses like Thompson and Clark, whose service is explicitly anti-democratic, need to be made illegal and put out of business.

Meanwhile, there's some interesting information buried in the subsidiary correspondence. First, that in April the police denied using external security consultants at all. When that lie was exposed, SSC recommended that the Independent Police Conduct Authority investigate (pages 15 onwards). It is unclear why this didn't happen, and why the police launched their own (non-independent) inquiry instead. And sadly, there's no mention of it at all in the internal correspondence police have released. But maybe there'll be more context when they release their report, which should hopefully be soon.

Monday, December 17, 2018

New Fisk

What the tactics of Middle East dictators can tell us about Theresa May's political situation today

Climate Change: Unfit for office

National Party leader Simon Bridges was interviewed this morning on climate change. And in the process, he revealed that National are still deeply in denial about the the threat we face:

  • He still thinks New Zealand should act "proportionately" to the rest of the world - which when National was in government, meant dragging their feet and doing as little as possible.
  • He supports the oil and gas industries and will immediately restore oil and gas exploration if National gains power.
  • He does not believe climate change "is an existential issue".
Bridges' preferred word is "nuance". But there is no nuance here. Climate change is an existential threat to human civilisation. It is a direct threat to the homes and livelihoods of hundreds of thousands of New Zealanders. And Bridges' response to that is to say "fuck you", and espouse policies which would see the homes of those people flooded. This is not leadership. Instead, it is the opposite: a desperate attempt to cling to the past and pretend that there isn't really a problem, and certainly nothing that threatens the status quo or the interests of National's polluting donors. To pretend that nothing has to change. And when we have only twelve years to save the world, that's not just deeply stupid - its openly promoting crisis.

The upshot is that National is unfit for office. Face with the biggest crisis in the history of humanity, their response is to stick their fingers in their ears and pretend it doesn't exist. No-one should vote for such a party. As for how they can ever demonstrate a change of heart, given their dirty history of climate change denial and foot-dragging, I'm not sure. But dumping Bridges would be a good start.

Farmers pollute, we pay

Animal shit from farms has made three Whanganui district streams toxic and unsafe for swimming. Horizons' "solution" for this? Subsidise the people who poisoned them:

Faecal coliform bacteria from sheep and cattle are the main pollutants of three coastal Whanganui streams that now have permanent signs warning against swimming.


The main remedy for the pollution is fencing to keep stock out of the water, Horizons natural resources manager Jon Roygard said. An eight-wire fence suitable for keeping sheep out and protecting riparian planting costs $18 a metre.

He wondered whether the council might subsidise at a higher rate than usual, and said it would be best to work the fencing inland from the beaches.

But why should we subsidise it at all? Farmers are causing this problem, and farmers should bear the whole cost of mitigating it. That's what "polluter pays" means. And if they refuse or drag their feet, they should be prosecuted. Its that simple.

Friday, December 14, 2018

Torches and pitchforks time

Appalling news from the UK today, with a report from the TUC showing that the average worker is earning a third less in real terms than they did in 2008:

Research by the Trades Union Congress (TUC) found that the average worker has lost £11,800 in real earnings since 2008.

The UK has suffered the worst real wage slump among leading economies, said the union organisation.

The biggest losses have been in areas including the London borough of Redbridge, Epsom and Waverley in Surrey, Selby in North Yorkshire and Anglesey in north Wales, the studyfound.

Workers have suffered real wage losses ranging from just under £5,000 in the north-east to more than £20,000 in London, said the report.

(In most other rich countries, wages rose. NZ isn't on that, but playing around with NZ.Stat and the Reserve Bank's inflation calculator shows they rose by 17 - 19%, depending on which column you prefer)

And to make the obvious comparison: its worse than Greece, which suffered a decade-long economic crisis exacerbated by EU-imposed austerity. There, wages have only fallen by ~15% (see second-to-last graph). But in Greece, GDP collapsed. In the UK, it has risen (by ~5% per-capita over that period). So where did the money go? Straight into the pockets of the rich, who are doing very well, thankyouverymuch, while impoverishing everybody else.

This is simply naked theft, and UKanians should be marching on parliament with torches and pitchforks demanding their money back. Sadly, they're unlikely to actually stand up for themselves, and so they'll continue being looted by their bloodsucking upper classes.

Little lays down the law to the GCSB

Yesterday we learned from the Inspector-General of Intelligence and Security that the GCSB appeared to be breaking the law, by using Type 2 warrants (which have a lower level of oversight and scrutiny) to illegally scoop up New Zealanders' private communications. Today, Intelligence Minister Andrew Little made it clear that that was unacceptable:

Minister of spies Andrew Little has backed the intelligence agencies' oversight body as it raised questions about the legal basis relied on by the GCSB to carry out electronic surveillance operations which captured New Zealanders' communications.


Little said he had personally pushed back on "Type 2" warrants to ensure it was the most appropriate form of authorisation. "Part of my role is to probe and question."

"If New Zealanders are going to have their privacy interfered with in more than an incidental way, or there is a possibility New Zealanders are going to be caught up in an area of activity they are going to go after, there would have to be a Type 1 warrant."

Gwyn's report said the GCSB should be seeking a Type 1 warrant when it knew it was likely to incidentally pick up New Zealanders' communications.

Little has also made it clear that in the absence of formal advice from the Solicitor General, spy agencies should defer to the legal interpretation of the Inspector-General. Which should help enormously in bringing these rogue agencies under control.

But this isn't just an abstract legal argument: people's privacy has been invaded, their private communications are likely to have been unlawfully intercepted, snooped through and stored. All of which is likely to constitute an unlawful search under s21 BORA. Will those responsible be held accountable? Will they be prosecuted or fired? I think we all know that the answer to those questions is "no". Which means there's no incentive for the spies not to engage in similar abuses in future.

The SIS conducted unlawful searches

Two years ago, we had a series of rulings about police access to banking records, which found that their practice of asking banks to "voluntarily" disclose information on their customers violated people's privacy and constituted an unreasonable (and thus unlawful) search under s21 BORA. Of course, it wasn't just the police asking for banking records: the SIS also did it. And somewhat predictably, the Inspector-General of Intelligence and Security has found that they too violated the law.

The full report is here. It summarises the caselaw and SIS practices, and there's some fascinating suggestions of how widespread this practice was: the IGIS studied requests from a 3-month period in 2016, and selected 13 cases for examination in greater detail. Assuming they selected half or fewer of the cases, and that volume in that period was not unusually high, that suggests the SIS were making at least a hundred "voluntary" demands for people's private banking information a year, some of which were for 12 or 24 months worth of data and thus highly intrusive. The IGIS's conclusion:

Service policies and procedures provided some effective guidance for NZSIS staff and enabled a degree of record-keeping, but did not adequately ensure compliance with all relevant legal obligations. I did not make formal individual assessments of the legality or propriety of particular case requests, but, based on my review of the sample of cases, although over a short period, it is likely that some of the past collection constituted unreasonable searches contrary to s 21 BORA.

Which raises the obvious question: will the SIS apologise to and compensate their victims, as the police did to Nicky Hager? And will those responsible be held accountable? Or will unlawful behaviour by the government be allowed to pass unpunished?

The good news is that the Intelligence and Security Act 2017 created a statutory regime for requesting such information, which is subject to full IGIS oversight. There are a number of recommendations about future practice under this regime, aimed at ensuring the SIS obeys the BORA and the Privacy Act, and the IGIS will be keeping a close eye on it in future. But there's also a disturbing hint that this regime may already be being abused:
The framework should expressly recognise that the business records regime was not intended to allow access to “bulk” or “class-based” requests for information. In my view Parliament envisaged that if large volumes of personal information, or non-specific information, is needed that should be obtained under a warrant.

I don't think the IGIS would give such a warning unless agencies were already abusing the law in this fashion. So what bulk or class-based business records are the spy agencies demanding? All financial transactions to particular countries would be one obvious answer. But there's a more disturbing possibility: telecommunications and internet metadata. Unfortunately, because everything these agencies do is secret, we'll never know, unless someone leaks it, or when the inevitable report about unlawful behaviour lands in ten years' time.

ECan votes to poison people

Industrial dairy on the Canterbury plains is poisoning Christchurch's water and turning it into a carcinogen. So what is ECan doing about this crisis? Raising the legal limit for nitrate so they can pretend it doesn't exist!

Christchurch drinking water will be able to contain more nitrates from pollution for the next 50 to 100 years, Environment Canterbury (ECan) has decided.

The elevated level of 3.8 milligrams of nitrates per litre of water was proposed by the Waimakariri Water Zone Committee, due to polluted water flowing into aquifers from North Canterbury dairy farms.

ECan councillors Lan Pham​ and Iaean Cranwell voted against the proposal at Thursday afternoon's meeting.

Because nothing can be allowed to interfere with the sacred cow of industrial dairy - not even the health of one of our major cities.

This decision needs to be reversed, and industrial dairying regulated down to a level consistent with human and environmental health. As for how to do that, local body elections are next year, and for the first time in 9 years Cantabrians will be able to vote for a fully elected council. While ECan is currently trying to gerrymander itself to silence the city and ensure a majority of farmers and polluters - including an undemocratic proposal for dairy polluters Ngai Tahu to appoint two members to the council - people still have to get elected. So, if you live in Canterbury, vote for clean water, and against any candidate who is a farmer or dairy apologist.

Thursday, December 13, 2018

New Fisk

Making ‘the Guardians’ Time person of the year is courageous – but it ignores America’s relationship with power

Australia finally acts on corruption

After years of dismissing federal corruption as a "fringe issue" and complaining about state-level corruption investigations "persecuting" people, the Australian government is finally going to establish a federal anti-corruption agency:

Prime Minister Scott Morrison has announced a new anti-corruption commission, having come under sustained pressure from crossbench MPs with the balance of power.

Labor, the Greens and minor parties have long campaigned for a corruption watchdog, arguing current systems are woefully inadequate.

During the final sitting weeks of the parliamentary year, Mr Morrison had said his Government was not against a national anti-corruption watchdog but described it as a "fringe issue" being pushed by the Opposition.

Speaking today, Mr Morrison said it was crucial the public had confidence in Commonwealth employees and agencies.

But most importantly, it will have jurisdiction over federal politicians, who are currently ignored. And with widespread corruption among political parties, that seems vitally important. No democracy should tolerate corrupt behaviour by politicians and officials, and it is long past time Australia solved its corruption problem.

The GCSB appear to be breaking the law again

When Parliament passed the Intelligence and Security Act 2017, one of the aims was ostensibly to give Ministers greater clarity over the spying activities they were being asked to authorise, so they could properly judge the necessity and proportionality of the breaches of human rights they were being asked to approve. As part of this, warrant applications were required to include greater detail. But are the spy agencies actually meeting those requirements? The Inspector-General of Intelligence and Security has reviewed the first 9 months of warrants under the new Act, and the conclusion is only "maybe".

Obviously there are teething problems when a new law is introduced, in this case compounded by the refusal of spy agencies to cooperate with IGIS beforehand on how it would be interpreted. The good news is that the SIS seems to have got with the programme, taken the IGIS' recommendations on board, and are now complying with the law. The story is different for the GCSB, and the IGIS identifies several major issues:

  • Seeking Type 2 warrants (which only authorise actions against foreigners) rather than Type 1 warrants (required for anything targeting a New Zelaander) for activities which they expect to result in the incidental collection of the private communications of New Zealanders. This means they are subject to a lower level of scrutiny, require only the approval of the rubberstamp Minister, and the "incidental intelligence" can be retained and used if they "incidentally" turn up anything interesting.
  • Using extremely broadly-defined classes of targets, where it is not entirely clear who might be a lawful target and who might not be (in at least one case, anyone who the GCSB had a "reasonable suspicion" that they might have a reasonable suspicion of).
  • Using tortured definitional games and reference to other warrants (in some cases, forward-looking references to future warrants that have not yet been authorised or even applied for) to obscure exactly who they are targeting and what they are doing, frustrating the goal of clarity and impeding the Minister's ability to assess the necessity of the warrant.

The IGIS's overall assessment: "I am unable yet to say that the authorisation of Bureau activities has achieved the expectations raised by the ISA". Which is a polite way of saying "I think they are breaking the law". The Act requires clarity so that Ministers can make an informed decision. GCSB seems to be deliberately impeding that. But as usual, the chances of anyone ever being held accountable for that are nil.

Climate Change: Ignoring the cow in the room

Earlier in the year the government ran a consultation on improvements to the Emissions Trading Scheme, aimed at making it actually work. Yesterday, they announced their decisions. Most importantly, the total number of units available to the ETS will be capped, with future caps announced five years in advance to give the market certainty about how much they can pollute. The implication is that the cap will shrink towards our targets. Secondly, units will be auctioned by the government. Which is broadly what we needed to do in the first place, before the scheme became a polluter support scheme loaded with free allocations and exemptions to subsidise incumbents. Speaking of those free allocations, they will continue for the moment, but there will apparently be a decision on them next year. And for the system to actually function, they need to be eliminated as quickly as possible (a five year transition period seems more than fair IMHO).

The other big change is the price cap. At the moment, polluters can simply bank their units and pay $25 / ton - a strategy which makes sense when carbon prices are higher than that (as they are ATM). The government will replace this with a "cost containment reserve", which will auction a set number of new units into the system if prices rise too high. These units will be backed by an equivalent tonne of removals, so in theory it means no net pollution. But it both undermines the ability of the scheme to actually reduce pollution, and creates a pool of credits future governments will be tempted to sell or give away to their donors. Obviously, price spikes are bad for polluters, but that's the point. If the carbon price is "too high" for a polluter, the market is sending a signal that what they do is no longer viable, and that they should either pollute less or shut down. We accept this logic for every other business input: wood, petrol, electricity, wages. We should treat carbon - which threatens our fucking lives - no differently.

These are useful changes, but still just tinkering around the edges. The core decision - what to do about agriculture - has again been put off, left hanging while the Zero Carbon Act consultation considers whether we even have a target for agricultural emissions, let alone whether we should make farmers pay their way. And until we do the latter, our ETS will ignore our biggest source of pollution, and be fundamentally broken and unfit for purpose.

Wednesday, December 12, 2018

A win for democracy

For the past few elections, local authorities have been obsessed with online voting as a way to cut costs. They were planning a trial at next year's local body elections. But now its been cancelled:

The proposed trial of online voting in next year’s local body elections will not proceed after the working party comprised of nine councils made the reluctant decision to halt the trial. Although the working party had recently selected a provider that satisfied all of the security and delivery requirements, the cost burden for the councils involved ultimately forced the decision.

This is the second election in a row this has happened, but its still good riddance. Online voting is fundamentally insecure, and no election conducted online can be trusted. We need our democracy to be more reliable than Microsoft Windows, and that means keeping it offline, where it can't be fucked with by two-bit script kiddies, political parties, and foreign governments. The bad news is that rather than accepting this, the local government working party still wants to press one and try again in three year's time. It would be better if they simply buried the idea for good.

WINZ undermines KiwiSaver

The idea of KiwiSaver was to encourage new Zealanders to save for their retirement. But WINZ is undermining the scheme by demanding that people use their retirement savings rather than giving them benefits:

The number of people looking to dip into their KiwiSaver funds for hardship reasons is rising sharply.

One of the scheme's default providers Fisher Funds said how to access the funds because of financial problems is now the most common query received from savers, with some savers being told to withdraw funds by the Ministry of Social Development.

Fisher chief executive Bruce McLachlan said it is an unfortunate state of affairs.

"We do have very established [social welfare] mechanisms in New Zealand already... I would like to think that is dealing with the real hardship cases, rather than people getting access to KiwiSaver."

KiwiSaver savings are not treated as "cash assets" for the purposes of the accommodation supplement, or (it seems) for the purposes of receiving temporary additional support. So WINZ's response to someone going to them and asking for help is to demand they make themselves ineligible. Its both a terrible incentive, and simply illegal, and the Minister should be telling them to stop immediately.

Member's Day

Today is the last Member's Day of the year, but it looks like it will be taken up with local business. First off, the government is ramming through its Muldoonist Tasman District Council (Waimea Water Augmentation Scheme) Bill, designed to steal part of a conservation area to enrich farmers. As if that's not controversial enough, they then plan to do the same with the New Plymouth District Council (Waitara Lands) Bill to effectively impose a Treaty settlement against the wishes of local hapu (in other words, to breach the Treaty of Waitangi).

Finally, there's the Canterbury Regional Council (Ngāi Tahu Representation) Bill, which would bypass the usual process for creating Maori wards and electing members and allow Ngāi Tahu to directly appoint two members to the Canterbury Regional Council. Which is both undemocratic - they should be elected, not appointed - and creates serious conflict of interest problems. We'd be horrified at the thought of Fonterra being allowed to appoint members to a council responsible for setting policy around water and pollution, but Ngāi Tahu's dairy investments and ongoing conversions put it in the same boat. I support guaranteed Maori representation on councils, but they should be democraticly elected and proportionate to population. This proposal does not meet either criteria, and it should either be amended so that it does, or rejected.

Climate Change: Forfeiting the profits of fraud

Since 2008, the New Zealand government has pursued a climate change policy based on fraud, using dodgy or outright fraudulent Russian and Ukranian "credits" to "offset" our ever increasing domestic emissions. And we've banked the "surplus" from that fraud, and are still using it to "offset" our (still increasing) emissions until 2020. But at COP24 in Katowice, Climate Change Minister James Shaw has apparently ruled out using these credits in future:

New Zealand's Climate Change Minister James Shaw has ruled out his nation using carryover credits to count against its Paris climate target, saying such a move would make it challenging for the world to meet the important goal of reducing emissions.

Mr Shaw made the comments to Australasian journalists in a conference call on Tuesday after meeting his Australian counterpart Melissa Price during the climate talks in Katowice, Poland.


Mr Shaw declined to detail his talks with Ms Price. He said, however, it was his government's view no nation should resort to a prior period "surplus" to count against Paris goals. New Zealand would not do so "if we have any units left over".

"Paris is a completely new legal construct," Mr Shaw said, adding it was "never intended" for Kyoto credits to be carried over.

"We would discourage any country from using [them]," he said.

Which sounds good. But the devil is in the details. Shaw could be ruling out using our fraudulent "surplus" entirely, or he could simply be ruling out using it to meet Paris commitments. The former would be good, the latter would effectively be continuing the scam and continuing to profit from it until Paris kicks in. On current projections, we're expecting to use more than 30 million tons of CP1 "credit" to meet our (self-imposed) CP2 obligations - almost half a year's emissions. OTOH, at the least Shaw is committing to erasing ~90 million tons of fake credits, and that is significant. If we are to meet our Paris target, we're actually going to have to reduce emissions, rather than rely on the profits of fraud.

Tuesday, December 11, 2018

If this is "terrorism", we should all be terrorists

Yesterday, December 10, was human rights day. And the UK celebrated it by convicting 15 human rights protesters of "terrorism":

In a prosecution that has been condemned by human rights groups, Alistair Tamlit and Benjamin Smoke and the other members of the so-called Stansted 15 were convicted on Monday of endangering the safety of the airport in March 2017.

The court had heard how they used lock-on devices to secure themselves around a Titan Airways Boeing 767 chartered by the Home Office, as the aircraft waited on the asphalt at the airport in Essex to remove undocumented immigrants to Nigeria, Ghana and Sierra Leone.

After nearly three days of deliberations, following a nine-week trial, a jury at Chelmsford crown court found the defendants, all members of campaign group End Deportations, guilty of intentional disruption of services at an aerodrome. They were found guilty under the 1990 Aviation and Maritime Security Act, a law passed in response to the 1988 Lockerbie bombing.

The refugees they saved had their cases reviewed, and most had their deportation orders overturned (because it turns out that the Home Office are bigots who either refuse to believe people are gay, or ignore real threats to their lives so they can meet an arbitrary deportation quota). But the jury weren't allowed to consider that, after the judge effectively directed them to convict.

And that's British "justice" for you: protesting for human rights is now "terrorism", with a penalty of life imprisonment. But if that's the case, we have a moral duty to be "terrorists", and defend human rights against an unjust, tyrannical government.


Over the past months we've learned of a crisis in NZTA's oversight of vehicle warrants of fitness, with garages allowed to issue thousands of dodgy warrants to unsafe vehicles and the work of truck inspectors not checked. People have died as a result of this slackness. And now, NZTA's CEO has finally accepted responsibility and resigned:

New Zealand Transport Agency chief executive Fergus Gammie has resigned.

He announced his resignation today after months of mounting pressure over the agency's failure to enforce road safety regulations.

Good. While Gammie was only CEO since 2016, he was part of this problem and he needed to go. As chief executive, the failings of the agency are his responsibility, and he has to carry the can for it. But we should also consider the role of the politicians whose penny-pinching cuts ultimately caused this problem by starving NZTA of the resources necessary to do its job. Gerry Brownlee and Simon Bridges should be being held responsible for this as well. A man died because of their cuts and their ideology. But I suspect that that doesn't impinge on their consciences at all.

A convenient failure

How many children in state care have mental health issues or have attempted suicide? Conveniently, CYFS doesn't know:

A psychiatrist says it's a "failing of the system" that Oranga Tamariki, the Ministry for Children, does not know how many children in state care have mental health issues or have attempted suicide.

RNZ asked for the figures and was told the ministry did not collate that information, and that it would not provide the data as it would be too much work.

They do record the information on people's individual files, but they don't bother keeping aggregate statistics. Which seems like a basic failure of both their core duty to care for children, and of their legal duties under the Public Records Act. On the first, you can't manage what you don't measure, and refusing to compile statistics prevents them from seeing trends and big picture problems and solutions. On the second, every government agency has a legal duty to create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice. Any competent agency dealing with children in care would collect statistics on their mental health. CYFS' refusal to do so is thus a mark of incompetence, and also a criminal offence. But when are government agencies ever held to account for those?

Protest works

For the past month France has been brought to a standstill, as members of the yellow vest movement have protested against inequality, the cost of living, and president Emmanuel Macron. And today, a week after serious riots in Paris, Macron has made concessions:

Emmanuel Macron has bowed to pressure from the street to announce a catalogue of emergency measures aimed at pacifying the gilets jaunes after weeks of civil unrest in France.

In a long-awaited address on primetime television, the president tried to talk the protesters out of further action, promising a rise in the minimum wage and tax concessions.

In a mea culpa, Macron said he had heard and understood protesters’ anger and indignation, which he said was “deep and in many ways legitimate”.


To help struggling workers, he said the government had been ordered to introduce “concrete measures” from 1 January, including increasing the minimum wage by €100 (£90) a month. Overtime would be exempt from tax and social charges, and a planned tax on pensions under €2,000 a month would be cancelled. All employers “who can” were asked to give workers a tax-free bonus at the end of the year.

The question is whether he has offered enough. Macron pointedly refused to roll back his tax cuts for the rich, and that was one of the key issues people have been protesting over. But it will also be interesting to see if the yellow vests listen. They're a leaderless movement, which means both no leaders to sell them out, and no-one who can negotiate on their behalf, so it really is going to be a matter of whether the people protesting decide to keep going in the hope of getting something better. Or just taking revenge on the political system which ignores them.

Monday, December 10, 2018

Climate Change: Punching above our weight

New Zealanders are usually proud when New Zealand ranks highly at something when measured per capita. But one measurement of that nature which we shouldn't be proud of: we're one of the worst countries in the world for per-capita greenhouse gas emissions:

New Zealand accounts for a fraction of the world's greenhouse gas emissions, about 0.17 per cent in 2014.

But, on a per capita basis we have an out-sized carbon footprint, emitting 18 tonnes of greenhouse gasses per person, every year.

That makes New Zealand the 21st biggest per capita contributor to climate change in the world. Amongst the OECD (other rich nations which we benchmark ourselves against) we have the fifth highest per capita emissions.

The primary reason for this? Our outsized agricultural sector, which produces roughly half of our emissions (46% directly, plus a fair whack of transport and energy sector emissions for processing). But 95% of that is for export, so if it was scaled back to cater for only our domestic needs, our emissions would roughly halve - putting us somewhere in the middle of the EU pack.

we can also look at it as an internal distribution issue. Those agricultural emissions are produced by and for the benefit of the ~5% of kiwis who work in agriculture. And that tiny portion of the population emits as much as all the rest of us combined. At the moment, they don't pay a cent for that - we in the 95% carry the cost of their pollution. At the very least, they should pay their own way, rather than destroying the planet at our expense.

Climate Change: Fingers in their ears

Back in October the Intergovernmental Panel on Climate Change warned that we have to limit global warming to less than 1.5 degrees above pre-industrial temperatures, and that we had only 12 years left to do so. The stark description of the disaster we are heading for has focused minds around the world and created a push for urgent action to avoid it. Unfortunately, the denier states simply don't want to hear it:

The US and Russia have thrown climate talks into disarray by allying with Saudi Arabia and Kuwait to water down approval of a landmark report on the need to keep global warming below 1.5C.

After a heated two-and-a-half-hour debate on Saturday night, the backwards step by the four major oil producers shocked delegates at the UN climate conference in Katowice as ministers flew in for the final week of high-level discussions.

It has also raised fears among scientists that the US president, Donald Trump, is going from passively withdrawing from climate talks to actively undermining them alongside a coalition of climate deniers.


when it was submitted to the UN Framework Convention on Climate Change on Saturday, the four oil allies – with Saudi Arabia as the most obdurate – rejected a motion to “welcome” the study. Instead, they said it should merely be “noted”, which would make it much easier for governments to ignore. The motion has not yet been able to pass as a result of the lack of consensus.

The diplomatic language game hides the reality that this is about preventing the conference from using the report as the basis for future action. It is about pretending the problem does not exist, and watering down the response, so these countries can keep on burning and polluting and destroying the world. But given the consequences, the actions of these states are now a threat to global security. And the answer must be a global campaign to boycott and blockade them.

The British establishment's propaganda problem

From 1948 to 1978, the UK Foreign Office ran a secret domestic propaganda operation, the Information Research Department, which targeted UK trade unions and left politics under the guide of "countering communism". Forty years after that operation was shut down, it looks like they're at it again:

A secret UK Government-funded infowars unit based in Scotland sent out social media posts attacking Jeremy Corbyn and the Labour Party.

On the surface, the cryptically named Institute for Statecraft is a small charity operating from an old Victorian mill in Fife.

But explosive leaked documents passed to the Sunday Mail reveal the organisation’s Integrity Initiative is funded with £2million of Foreign Office cash and run by military intelligence specialists.

The “think tank” is supposed to counter Russian online propaganda by forming “clusters” of friendly journalists and “key influencers” throughout Europe who use social media to hit back against disinformation.

But our investigation has found worrying evidence the shadowy programme’s official Twitter account has been used to attack Corbyn, the Labour Party and their officials.

Now there's a surprise. Because when the establishment funds propaganda ostensibly against a foreign target, it always seems to turn into propping up the establishment and the government-of-the-day at home.

Obviously, this is completely contrary to both public service neutrality and democratic values. The Foreign office needs to shut this operation down. But more than that, it needs to be open about what other propaganda it is funding, and shut that down too. Government officials simply should not be engaging in propaganda against the political opponents of the government-of-the-day.

A victory for transparency

This morning the government announced that it will be proactively releasing ministerial diaries from January next year:

Government ministers are trying to shake the image of shady politicians holding secret meetings by opening up their diaries.

The State Services Minister will announce today that for the first time all government ministers will publicly release details of their internal and external meetings from early next year.


The details released will include the date, start and finish time, a brief description, location, who the meeting was with and the ministerial portfolio involved.

It will all be published on the Beehive website within 15 business days of the end of each month.

There's some exceptions, including of course the hat game, so ministers can pretend they're meeting with people in a "personal" or "party" capacity rather than a ministerial one. I would hope that there's some external scrutiny on this, because there are strong incentives for politicians to lie to us to cover up their dodgier meetings. The presumption should be the same as for Ministers' information in general: that everything is official by default, and that not being a ministerial meeting is something that must be proved for each case.

One other gap is that the subject of the meeting is not automatically disclosed. Meeting topics are a significant target of OIA requests and parliamentary written questions, and the failure to disclose them will mean that those requests will have to continue (the way to force disclosure is for people to file regular, standardised OIA requests after each proactive disclosure seeking meeting topics, until they decide that it is just less work to include them in the first place).

But while there are holes, this is still a lot better than the status quo, and a victory for transparency. Now we just need to see if Ministers will follow the spirit of the thing, or try and circumvent it.

Friday, December 07, 2018

New Fisk

Spare me America's tears for Jamal Khashoggi – this excuse for Trump-bashing ignores the CIA's past crimes

Same old same old

A couple of years ago, in response to a report showing pervasive criminality within the fishing industry, the Ministry of Primary Industries finally started talking about doing something about it, via remotely-monitored cameras on fishing boats. After much foot-dragging that system is now in the trial phase. But despite detecting over 130 crimes, not a single fisher has been prosecuted:

Official figures show the trial of cameras on commercial boats has identified more than 130 compliance issues - but so far, no one has been prosecuted.


From what has been viewed, the offences have been stacking up.

Of the 133 cases of suspected non-compliance, six cases of fish coded as recreational catch when they were caught with commercial nets has been found.

Also not recorded were 44 cases of non-quota species being discarded, 14 cases of seafloor material being dredged up, four cases of seabird catches and 15 catches of undersized fish.

Although five compliance investigations were launched and two are still underway, no fishing company or individual has been prosecuted.

And these are serious crimes. Making a false catch statement is punishable by up to five years in jail; the rest is worth a $250,000 fine for each offence. But its the same problem we've seen again and again and again. MPI doesn't seem to have a problem detecting these offences. What it has is a total unwillingness to prosecute them. The agency has been completely captured by the criminals it is supposed to regulate. As for what should be done about it, MPI is completely unsalvageable. It should be split up and replaced with new, enforcement-focused agencies to actually enforce the law. And when establishing those agencies, the primary rule should be not to hire anyone who has ever worked for MPI. Their internal culture is corrupt and compromised, and no-one who works in them is fit in any way to serve in the public service.

Thursday, December 06, 2018

Australia: racism beats "national security"

Today the Australian house of representatives is debating the government's super-important encryption backdoor legislation, which would require services like Signal to put a government backdoor in their software. Meanwhile, the Senate is debating an amendment which would require the government to approve medical transfers of refugees held in its Pacific concentration camps. Which given the level of mental illness in those gulags, will mean most of the victims being brought to Australia. The government doesn't want this to pass, firstly because they're racists, and secondly because it will mean a vote in the House which they will lose. And that won't just be humiliating for them - it may also mean an election.

The government has spent all week talking about how vital the encryption legislation is, and how it Must Be Passed By Christmas to deal with some nameless threat to the holidays (despite it not actually coming into force until next year). But when push comes to shove, it seems that knee-jerk authoritarianism has lost out to their desire to deny basic medical care to the people they've tortured: rather than risk having to listen to doctors, they've sent the house home early for christmas, sacrificing their encryption legislation in the process. I guess it just wasn't that important after all - or at least, not as important as being irredeemable racist arseholes, and being seen to be so by the Australian electorate.

Update: Except of course you can always rely on the chickenshittedness of the Australian Labor Party. The moment the house rose, they pulled their amendments to the encryption backdoor bill, allowing it to pass without challenge. So, Australia gets to be racist and a tyranny. 'Straya!


Last night Parliament passed the Employment Relations Amendment Act. The Act is disappointing, in that it only eliminates 90 day trials for large employers and restricts union access to workplaces. At the best, it returns the law to where it was before National's 2015 assaults on workers' rights. National is acting like that is the end of the world - in other words, that they presided over some left-wing hellzone for their first seven years of government - and that in itself is a reason to pass it. But I'd be lying if I said I was happy. A Labour government can and should do so much more than this on workers' rights. The realities of coalition and NZ First's reactionary nature meant that it could not, but that simply means that the law will be revisited if Labour is ever free of their shackles. Meanwhile, this has hopefully been a lesson to them about the value of potential coalition partners. In the past, they have chosen to partner with the reactionary NZ First party, and we can see where it has got them. If in the future they have such a choice again, then I hope they would do right by their supporters and choose a partner who won't kneecap them on this fundamental issue.

Climate Change: A threat to our security

If we don't stop it, climate change threatens to cause famine, migration, war, and death. and now NZDF has recognised the obvious: that all of this is a threat to New Zealand's security:

Climate change has been identified as one of the "most significant security threats of our time," according to a new report by the Ministry of Defence.

It said climate change was "already having adverse impacts both at home and in New Zealand's neighbourhood".

The assessment identified the particular security impacts which may arise as a result of climate change.

These included vulnerable populations losing their economic livelihoods, increased food and water scarcity, malnutrition, climate migration, health-related crises, competition for resources, land disputes and the potential for increased violence from mismanaged adaptation or migration.

The Stuff report on this has a lot more detail, but it basicly means NZDF is going to have to do a lot more disaster relief, both here and in the Pacific, as well as potential "stability operations" if climate change causes severe disruption to Pacific societies. And that's going to mean changes to how we equip them. Unstated is that the best way to deal with this security threat is to prevent climate change, by supporting strong global action to reduce emissions, and taking such action ourselves. But that bit isn't really defence policy...

Wednesday, December 05, 2018

Climate Change: Helping the market

The government today announced a $100 million green investment fund to help new Zealand transition to a green economy:

The Government has bankrolled a $100 million green investment fund which aims to invest with businesses to reduce emissions while also helping them make a profit.

Climate Minister James Shaw said an increasing number of investors were looking to fund clean, sustainable ventures. The Government's $100 million start-up capital injection will help achieve this, he said.

"New Zealand faces a big job in upgrading our economy and infrastructure. New Zealand Green Investment Finance will help deliver financial backing to help ensure that the upgrade is fit for purpose," Mr Shaw said.

This is something the Greens have been advocating for years, and its a good idea. Financial markets have trouble supporting clean energy projects due to short-term thinking or a lack of long-term data, and so there's an obvious case for government to step in and fill the gap. Australia, the UK, and various US states have such institutions, and they've been useful in pushing their economies in a greener direction. Hopefully the NZ one will do a similar job (and be funded in future years to do it properly).

NZ should sign the UN Global Compact on Migration

One of the foundations of New Zealand foreign policy has been support for international institutions and international law. Now, the National Party is opposing that foundation over the UN Global Compact on Migration, saying that "it's not for the UN to tell NZ what to do", and threatening to withdraw from it if the government signs it. So what does this evil UN compact do?

having read the final draft version, the answer seems to be "what we're doing anyway". The Global Compact is a non-binding agreement - an aspiration statement more than anything - written in pure business quack-speak rather than the legal language of UN treaties. It basicly says that orderly migration is good, and better when migrants are welcomed by the societies they move to. It sets out some broad principles which should govern it - including human rights and national sovereignty - along with a series of objectives and "actions to be considered" in achieving them. Most of these objectives and actions are completely unobjectionable, and things New Zealand does anyway. So there's stuff like making it easy for migrants to know whether they'd actually meet the legal requirements to move to your country (duh), opposing people smuggling, and reducing the scope for migrants to be exploited. Plus boring things like working towards portable social security, mutual recognition of skills, and making it easy for migrants to send money back to their families. Through this, there's a constant focus on human rights, gender, and the rights of children, but this echoes actually-binding treaties NZ is a party to, like the International Covenant on Civil and Political Rights, Convention on the Elimination of All Forms of Discrimination Against Women, and Convention on the Rights of the Child.

So what's controversial? National says it "treats legal and illegal migration in the same way". This doesn't seem to be the case. The principles section makes it clear that states may distinguish between regular and irregular migration status, including in the implementation of their commitments. And this is made clear in the section on providing basic services to migrants:

We commit to ensure that all migrants, regardless of their migration status, can exercise their human rights through safe access to basic services. We further commit to strengthen migrant-inclusive service delivery systems, notwithstanding that nationals and regular migrants may be entitled to more comprehensive service provision, while ensuring that any differential treatment must be based on law, proportionate, pursue a legitimate aim, in accordance with international human rights law.
What is a "basic service" is undefined, but New Zealand is already a party to the International Covenant on Economic, Social and Cultural Rights, which requires us to recognise the right of all persons, without discrimination, to social security, health, education, housing, and an adequate standard of living (developing countries get to decide the extent to which they implement these rights for non-nationals. Developed countries like NZ don't). So, to the extent that we see this as an obligation, its one we signed up for fifty years ago. As for what it actually means, I'd interpret it as ruling out UK-style "hostile environment" policies (under which illegal migrants - or people who have forgotten their papers - cannot even rent homes or open bank accounts, let alone get jobs, go to school, use the hospitals, or receive benefits, in an explicit attempt to starve them out). We can't leave illegal migrants to starve in the street, or punish their children, but under that provision it seems lawful to treat them in the same manner as tourists or make them subject to the same residency requirements for services as citizens - or at least, no more unlawful than it is at present.

Iain Lees-Galloway says there's some areas of concern, such as "having identity cards for migrants, and what could be viewed as regulation of free speech". The former is an objective to implement the right to a legal identity by ensuring that both nationals have proof of nationality and migrants are issued adequate documentation at all stages of migration. The specific actions make it clear that this is largely an obligation on source countries to make it easy for people to get passports, birth and marriage certificates etc, rather than some Orwellian requirement to give migrants ID cards to mark them out from the rest of the population. As for the free speech stuff, suggested actions include enacting or maintaining anti-hate crime legislation and to cease public funding for media outlets that systematically promote xenophobia, racism and intolerance. We already have obligations to do both under the International Convention on the Elimination of All Forms of Racial Discrimination, so its hard to see any problem here.

So what's the real problem with this compact? Simple: it says immigration detention should only be used as a measure of last resort and outlaws leaving migrants to drown at sea. Racist countries such as Australia and much of Southern Europe hate this. And their racist discourse has been picked up and used locally by the National Party. Its kindof disturbing that they have those sorts of friends, but that's National for you. And so now they've become a party which explicitly opposes a rules-based international order. Except for trade in dairy products, of course.

Après moi, le déluge

Consequences of National's austerity, part 287: the public service forgot how to deal with (and was not funded for) a change of government:

Public servants responsible for the transition between governments failed to support new ministers as no-one had planned for a full scale, new administration.

Officials were caught on the hop after last year's general election, having planned for change no greater than a Cabinet reshuffle - that caused problems like being unable to supply laptops and mobile phones and a lack of experienced staff for incoming ministers.

State Services Minister Chris Hipkins ordered the review after frustration about the level of staffing and administration support ministers received from Ministerial and Secretarial Support Services (MaSS) upon taking office.

The KPMG report, obtained by RNZ under the Official Information Act, found there was a shortage of skilled ministerial staff and IT support, which "affected some ministers' ability to get their offices up and running in a timely way".

There's a problem of institutional decay here - restructuring got rid of experienced staff who knew how to handle a change of government, meaning the organisation as a whole didn't really know what to do. But the core problem seems to be underfunding: National decided that the 2017 election would lead to no more than a reshuffle, and funded accordingly. I'm not sure whether that's just arrogance or not giving a fuck, but either way it is not acceptable. Like elections, changes of government are fundamental to a democracy, and its a core capability that needs to be retained. And the obvious answer is to fund and prepare for a full change of government each election, just in case. If it doesn't happen, then some of that money will be saved - but the institution will retain the skills, and that seems to be important here. Except, of course, to penny-pinching austerity-freaks who don't care what happens if they're not elected.

Legal advice and freedom of information

The UK government was found to have committed contempt of parliament today, and will be publishing its full Brexit legal advice as a result (and as a desperate attempt to keep government ministers out of the clock tower). Meanwhile, human rights lawyer Geoffrey Robertson argues that legal advice to the government should be published as a matter of course:

There is no political “convention” more misguided and less examined than the supposed rule that legal advice to ministers must remain confidential. This is the basis for the government’s refusal to publish the attorney general’s advice on Brexit, instead releasing a summary. The refusal relied on the theory of attorney-client privilege – namely that counsel’s advice to a client is confidential to that client who has the sole discretion over whether to publish it. Ministers, however, are no ordinary clients.

Ministers expend taxpayers’ money when instructing counsel to provide an opinion on the law – a law that everyone is entitled (and indeed presumed) to know. In so doing they act not for their personal interest but on behalf of the people whose interest they are bound to represent. In any true democracy, the public should be able to see that advice, to discuss and debate it, and since it is not infrequently proved, later in court, to have been wrong, to expose its errors before the government acts unlawfully or mistakenly.

And he's got a point. Fundamentally, its our advice after all: ministers work for us, we have paid for it, so we have a right to see it. Publishing it or making it available under freedom of information laws will mean we will know what Ministers think the law means, whether it accords with public understanding, and whether they have been warned they might be breaking it. It will increase both public understanding and the accountability of ministers and officials. But Robertson goes further: as a lawyer, he knows lawyers will argue whatever the client wants them to, so he suggests that the instructions for legal advice also be published. That way, people can know whether ministers are asking whether an action is legal, or whether it is "arguably" legal (or as John Key would have put it, "pretty legal") - and there is a world of difference between the two. We expect a higher standard from government than mere "arguable" legality, particularly where human rights are concerned.

I don't think this is a good idea in the context of litigation (at least until it is finally resolved), but should apply absolutely in the case of ministers and officials seeking advice on the lawfulness of a particular policy. What harm could arise? They won't stop doing that, especially if its legally required as part of the policy process. The only foreseeable "harm" is to limit the ability of government to play fast and loose with the law. And IMHO that is not a "harm" at all.

Tuesday, December 04, 2018

Redacting their dirty laundry

Earlier in the year, in response to a litany of abuse by EQC, MBIE, and others, the government initiated an inquiry into the government's use of Thompson and Clark Investigations, New Zealand's private anti-left-wing spy agency. In September, after Stuff exposed how the Police also used Thompson and Clark, they announced their own inquiry. As I understand it, the inquiry is now completed, but the report has not yet been released publicly. But the police have released their internal correspondence about it under the OIA.

The first interesting point: while there's some talk of cooperation with the SSC's inquiry (even though they are not covered by it), the police's own internal inquiry only happened when they are kicked into it by DPMC after direct questions were asked to the Prime Minister about the Stuff story. Which suggests a lack of willingness to be proactive on the issue.

As for the rest, there's a lot of redactions in there, ostensibly under s6(c) to prevent prejudice to the maintenance of the law because of the inquiries underway by the SSC and Police. I've blogged about that particular issue here, and I will be taking the opportunity to challenge those redactions. Hopefully a clear ombudsman's ruling will end that bullshit forever. Some of the redactions are supposedly under s9(2)(h) to protect legal privilege, which is interesting, given that the participant who is obviously a lawyer - Sarah Baddeley - is acting for SSC, not the police, so there's no solicitor/client privilege. And because the police haven't followed good practice and identified the reasons for each redaction, it means that everything has to be challenged (and if they haven't documented the reason for each patch of black, well, I doubt the Ombudsman will be very impressed).

But what's interesting is what they redact. Because there are repeated mentions of areas where police have worked with TCIL, "known areas", and potential areas the inquiry could touch on. These are all redacted. It is clear the police are aware of issues, and are simply trying to keep them secret.

Lock them in the clock tower!

Three weeks ago, the UK parliament voted unanimously to order the government to release its full legal advice on Brexit, so that it would be available to them ahead of their "meaningful vote". The government subsequently refused to obey, providing only a summary and a Q&A session with the attorney-general. And so parliament is now moving to punish them for contempt:

A cabinet minister is at risk of being suspended from parliament and missing next week’s crunch Commons vote after Labour and the DUP accused ministers of holding parliament in contempt for failing to publish the full Brexit legal advice on Monday.

The fate of the minister – likely to be either David Lidington or Geoffrey Cox – will be in the hands of MPs after John Bercow, the Speaker, declared there was “an arguable case that a contempt has been committed”.

Bercow said he would accept a contempt motion from Labour, the Democratic Unionist party and four other opposition parties, allowing MPs to debate the matter on Tuesday before the beginning of the five-day debate on whether to endorse the Brexit deal.

But suspension isn't enough. This is a deliberate and pre-meditated refusal to deliver information in response to a parliamentary command. The obedience of the executive to the legislature is the fundamental bedrock of the Westminster system, and the government's refusal to obey is a direct attack on the UK's constitution. The Minister should be imprisoned until they produce the information, just like any other person guilty of a similar contempt of court. Lock them in the clock tower!

Climate Change: National are still dragging their feet

The terrible news on the climate recently - the IPCC report, the UN report on rising greenhouse gas concentrations, and the background drumbeat of places burning, flooding, or otherwise being struck by climate-induced disaster - has caused some to hope that the National Party might finally get it and vote to save humanity when the government's Zero Carbon Bill comes before the House. But if a speech climate change spokesman Todd Muller and regional economic development spokesman Paul Goldsmith gave in New Plymouth last week is anything to go by, National are still foot-draggers:

National are supporting a steady approach to climate change policy based on broad science, technology and a clear understanding of what other countries are doing, as opposed to ideology, climate change spokesman Todd Muller has said.


[National] wanted to ensure deliberations were informed by broad science, and available technology was recognised when sectors transition away from current activity, as well as having a clear line of sight on what the rest of the world are doing, particularly NZ's trading partners, he said.

And then we have the usual excuse-making: NZ's emissions are just 0.17% of the global total, strong action will undermine the economy, we shouldn't do anything until everyone else has. They specifically oppose acting against the gas industry, and they specifically oppose reducing cow numbers.

This is the same old mantra we heard when National was in office. The world is literally burning down, and rather than joining the fight, they're worried about how saving it might upset the status quo and put their donors and cronies out of business. Which means their policy is literally to let it burn.

In the current situation, this is simply not a credible position. And if the government is thinking of compromising with them for the appearance of unity, they should think again. "Compromise" with foot-draggers is actively dangerous to the climate, in that it locks in failure for the long run. Rather than making a deal which is not worth making and which cannot responsibly be kept, the government should legislate a strong target, and defend it at the next election.

NZTA, ANPR and privacy

Earlier in the month, we learned that NZTA would be trialling point-to-point speed cameras in the Waterview Tunnel. The cameras are a good road-safety tool to detect speeding, but they use automatic number-plate recognition (ANPR), and depending on how long the number plates are stored for and what is done with them, risks creating a UK-style database of people's public movements. So, I sent an OIA request to NZTA asking them for information about the system and any privacy policy or privacy assessment they had done for it.

The response is here. While they haven't completed the privacy work yet, there is some very good news about data retention:

In regard to the third part of your request, the system is being designed to hold an image of vehicles for the period of time it takes to travel between cameras. A second image will then be taken and only images of vehicles that have an average speed above the speed limit as well as being above the operating threshold (same as static cameras) will be retained by the system, all other images will be discarded. Infringement notices for speeding offences which are recorded by the cameras will be issued by the New Zealand Police.

Which seems pretty good: no storage, no database, so no huge privacy issue. We still need to keep an eye on it to ensure that it isn't subsequently modified to do those things, but if this is NZTA's default implementation of ANPR speed cameras and traffic counting, then we should be safe.