Abusing language to avoid the BORA

When is a punishment not a punishment? When its convenient for the government, of course! That's the take-home message of Attorney-General Chris Finlayson's Bill of Rights advice on National's Returning Offenders (Management and Information) Bill. The bill subjects people deported to New Zealand after serving a criminal sentence to a period of parole, involving restrictions on freedom of association, movement, and assembly. It does so explicitly because they have been convicted of a crime in a foreign court. But according to Finlayson, "none of the standard or special conditions have a punitive character". Bullshit. People's freedoms will be restricted as a result of criminal offending. That's a punishment. Pretending otherwise is simply an abuse of language. And by imposing such restrictions, the government will be either punishing people without trial, in contravention of basic norms of justice, or punishing them again for the same offence, in violation of s26 BORA.

Sadly this is part of a growing tradition of pretending things aren't punishments in order to evade the BORA in New Zealand. Asset forfeiture without conviction? "Not a punishment". Civil detention for high profile criminals the government doesn't want bad "high profile criminal released" headlines from? "Not a punishment". But they are, and no amount of pretending will change that, or change the real feeling of those victimised by such regimes that they are being punished by the state for their behaviour. And if we subjected politicians to the same regimes - took their stuff without trial because they were "bad", locked them up because we didn't like them, or subjected them to parole on their departure from parliament to assist their re-integration into society after their political institutionalisation - I have no doubt that they would agree.

We should be very, very worried

Parliament has just gone into urgency to pass the Key / Kitteridge Countering Terrorist Fighters Legislation Bill. In his second reading speech, Spy Minister Chris Finlayson attempted to address the concerns about the application of the bill to those who travel overseas to e.g. join the Kurdish Peshmerga in defending the Kurds from ISIS. His response to these concerns? Basically to say that these people are terrorists.

We should be very, very worried at this. Why? Because clearly, in law, they're not. The new law applies only to those travelling to commit a "terrorist act". What's a "terrorist act"? The definition in the Terrorism Suppression Act 2002 is phrased awkwardly, but its basically killing people or blowing shit up to either "induce terror in a civilian population" or "unduly" compel a government or international organisation. There's an avoidance of doubt clause to ensure that it doesn't apply to regular military action (and another one for protests and strikes).

Its difficult to see how that definition applies to the Kurdish defence forces. And if Finlayson thinks it does, it raises serious questions about both his ability to be spy minister (and Attorney-General), and about whether the spies he supposedly oversees are targeting the wrong people. And that's something which threatens all of us.

A cop-out on the BORA

The Bill of Rights Act is a core part of our constitution, and its requirement to report inconsistencies to Parliament a key constitutional safeguard. Unfortunately, the Attorney-General doesn't appear to be taking it seriously.

That's the only conclusion that can be drawn from this ridiculous BORA vet of the government's Royal Succession Bill. Rather than addressing the serious human rights implications of the Bill in permitting continuing religious discrimination against "Papists" in New Zealand law, it dodges the issue entirely, declaring

The rules that govern succession are historically and politically complex. They are inapt for detailed Bill of Rights Act scrutiny.

Which is... interesting. I see no "except for the monarchy" clause in s3 BORA, and similarly there is no "its too complex" clause in the definition of justified limitations. Legal academic Dean Knight compares it to a student answering an exam question with "This question hurts my brain and is just too hard. Sorry." And he's right. It's just a cop-out.

We pay Crown Law $2.7 million a year for this advice. The lawyer providing it is likely to be paid more than $100,000 a year. The Attorney-General, who is ultimately responsible to Parliament for it, is paid more than quarter of a million. We deserve more for our money than this contemptuous bullshit.

Unseemly

Last month, the government finally passed legislation restoring the outdated title of "Queen's Council" to the legal profession. The first person it rewards with this title? Their own Attorney-General, Chris Finlayson.

While Finlayson is a long-standing lawyer, its more than a little unseemly. In the status-conscious world of the law, this title is worth hundreds of thousands of dollars a year. Putting your Ministers first in line to receive such a gift makes it look like you are abusing your public office to reward your mates - and that such appointments are going to be made on cronyism, not merit.

A serious question

What's the point of Section 7 of the Bill of Rights Act if politicians simply subvert it for their own political ends?

Section 7 BORA requires the Attorney-General to

bring to the attention of the House of Representatives any provision in [a] Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

The assumption here is that a) the Attorney-General will report honestly; and b) Parliament will pay attention. We've already seen substantial doubts raised about (b) (notably in the case of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010). And now we have (further) good reason to doubt (a) as well.

On September 19, the government introduced the Public Safety (Public Protection Orders) Bill to Parliament. The bill would allow unpopular (technically serious and violent, but in practice it translates into "anyone the Sensible Sentencing Trust can whip up hysteria about") prisoners to be further detained at the end of their sentence, potentially indefinitely. The bill is a fairly explicit breach of the BORA provisions against retroactive penalties, double jeopardy, and arbitrary detention. Despite this, yesterday the Attorney-General finally released his advice declaring it consistent with the BORA.

As Andrew Geddis notes, there are a number of odd things about the advice. It is dated October 4 - two weeks after the bill was introduced into the House. And for only the second time - the other being the notorious Foreshore and Seabed Act - it is the personal view of the Attorney-General himself, rather than that of a named official from Crown Law or Ministry of Justice. But the oddest thing about it is the conclusion. Back in 2009, when considering the Parole (Extended Supervision Orders) Amendment Act 2009, which allowed similarly unpopular prisoners to be subjected to home detention at the end of their sentence, the Attorney-General declared the bill to be inconsistent. In doing so, he essentially used a duck test for determining whether something constituted "detention": if it looked like penal detention, it was. In that case, the law allowed the Parole Board to "impose what is in effect electronically monitored home detention for anything less than 24 hours a day". He was also very clear on detaining people based solely on the risk of future offending: that it was detention without charge or trial.

Fast-forward three years, and the Attorney-General has apparently reversed his position. The far harsher conditions imposed by the Public Protection Orders Bill (24 hour home detention within prison grounds, with censored mail, bugged phone calls, and guards) apparently is not penal, but a civil regime. And detention based on the risk of future offending is now OK.

This inconsistency raises grave doubts about whether the Attorney-General is consistently and conscientiously performing his statutory duties under the Bill of Rights Act. Those doubts could be mollified if he released all the legal advice he had received from his department on the bill, so we could see whether he really has changed his mind, or whether he had ignored the considered advice of Crown law to rubberstamp a bill to further Judith Collins' reputation as "the crusher". Sadly, I don't expect that: such release would be contrary to longstanding precedent, the Minister will not release anything that makes him look bad, and he is basically immune to the OIA on this.

But that secrecy has a cost, in that it raises doubts about the sustainability of the BORA regime itself. If Attorney-Generals can't be trusted to properly warn Parliament about bills that may contravene the BORA, there is only one alternative: to strengthen post-facto review by the judiciary by allowing laws to be struck down. Finlayson has a choice: he can either do his job properly (and be open about it), or see more power flow from an institution the public don't trust - Parliament - to one they do: the Supreme Court.

More lies to Parliament

Another Question Time, and more lies to Parliament, this time from Chris Finlayson. Here's the exchange:

Hon PHIL GOFF (Labour—Mt Roskill) to the Minister of Foreign Affairs: Why is the Government requiring the Ministry of Foreign Affairs and Trade to find operating savings and make cuts of $40 million a year?

Hon CHRISTOPHER FINLAYSON (Minister for Treaty of Waitangi Negotiations) on behalf of the Minister of Foreign Affairs: It is not.

That's a straight question, and Goff got a straight answer. Unfortunately, it contradicted MFAT's Briefing to the Incoming Minister (an unredacted copy of which has made its way into labour's hands), which shows clearly that the government is demanding $40 million of cuts.

Again, this was a primary question, a "statement of some formality". Getting truthful answers to those questions is the key to the government's accountability to Parliament - which is why lying on them is a contempt of the House. The question is how long Lockwood Smith is going to put up with these lies from the government, and how much further he will allow them to erode Parliament's credibility.

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.

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?

Speaking out of both sides of our mouth

Yesterday, I noted that the New Zealand government had endorsed the report of the UN Special Rapporteur on the right to freedom of expression which found that disconnection from the internet is grossly disproportionate and a violation of international law. Today, Labour's foreign affairs spokesperson Maryan Street asked in parliament whether this meant that they would be repealing the disconnection provision. The government gave a surprising response, denying that we had endorsed the statement.

Except that we have. Here's the statement, and here's the preamble to it:

I have the honor of addressing the Human Rights Council on behalf of

Austria, Bosnia, Botswana, Brazil, Canada, Chile, Costa Rica, Croatia, the Czech Republic, Denmark, Djibouti, Guatemala, India, Indonesia, Israel, Japan, Jordan, Lithuania, fmr Yugoslav Rep of Macedonia, Maldives, Mauritius, Mexico, Moldova, Montenegro, Morocco, the Netherlands, New Zealand, Norway, Palestine, Peru, Poland, Senegal, South Africa, Serbia, Sweden, Switzerland, Tunisia, Turkey, Ukraine, the United States, Uruguay

Our name did not get on that list by accident. New Zealand diplomats will have formally agreed to be on it, and formally agreed to the exact text of the statement being made in our name. And MFAT will have the documents to prove it (though our chances of extracting them via the OIA are about zero, given MFAT's dislike of democratic oversight).

Finlayson has now put those diplomats in a difficult position. Because of his wriggling to avoid domestic political embarrassment, their word can no longer be trusted. And, by extension, neither can ours. On the international stage, we are now speaking out of both sides of our mouth, not practicing what we preach. And quite apart from being dishonest, this undermines our entire mana-based foreign policy.

"Parliamentary noise"

That's what Attorney-General Chris Finlayson thinks of concerns about the process used to ram through the government's Marine and Coastal Area (Takutai Moana) Bill. By extension, its also what he thinks of our democracy. Parliamentary process isn't just a formality which can be dispensed with - it exists to legitimise lawmaking. The outcomes of Parliamentary debates may be predetermined by the numbers, but the debate itself is important as a signifier of public consent. Abusing that process, by denying debate, ignoring submissions, preventing proper select committee consideration, and using urgency, undermines that consent - and in the process our democracy. That's why I make a fuss when a government, no matter what stripe, abuses the process. That's why we all should. Because that process is one of the things that separates us from a dictatorship. And parties which abuse it are little better than dictators.

Movement on judicial transparency?

Earlier in the year, Green MP Kennedy Graham put his Register of Pecuniary Interests of Judges Bill [PDF], which would force members of the judiciary to disclose their interests and hence their potential conflicts of interest, into the ballot. Now, thanks to the demise of former Justice Wilson, it looks like the government may adopt the idea.

This is a good move. Like politicians, judges are in a position of power and subject to potential conflicts of interest. And like politicians, we can't just trust them to behave honourably. While I have a lot more confidence in our judges than I do in our MPs, the integrity of our justice system is not something we should have to take on faith. We should be able to know that everything is above-board. And that means being able to scrutinise the interests of judges to ensure they do not behave in a corrupt fashion.

OTOH, I'm not sure how far we can trust Attorney-General Chris Finlayson on this. He's pointed at the Law Commission's review of the Judicature Act (which governs the structure and operation of the courts) as a vehicle for advancing this, but the Law Commission explicitly states that

It is not intended that the review will revisit major matters of policy underlying the present legislation.

So, either that intention has changed, or Finlayson is just giving us the brush off and continuing to protect the powerful from democratic scrutiny. Which is it?

Rolling back transparency

So, National has responded to Chris Finlayson's contemptuous refusal to fully disclose his pecuniary interests by calling for the rules to be reviewed to allow more opportunities for MPs to hide their interests. In other words, change the rules to make it legal. Why am I not surprised? National's pretext is that the rules are "confusing". I think not. Here for example is the clause Finlayson fell afoul of:

1) Every return of pecuniary interests must contain the following information as at the effective date of the return:

(a) the name of each company of which the member is a director or holds or controls more than 5 percent of the voting rights and a description of the main business activities of each of those companies, and...

As I noted earlier, only a lawyer with a desire to hide things could convince themselves to ignore the plain reading of the words for a perverse, self-serving interpretation that it allowed some directorships to not be declared. And only a lawyer with a desire to hide things would think that the appropriate way of resolving such "confusion" was to pay another lawyer to say what you wanted them to say give an "independent" opinion, rather than ask the registrar directly.

The agenda here is clearly more secrecy around MP's business interests. And that runs directly counter to clean government and open democracy. These rules are the first line of defence against corruption. The fact that MPs must declare their interests helps prevent them from attempting to enrich themselves while in office. If anything, the rules need to be strengthened (by e.g. busting trusts and forcing MPs to declare everything), not weakened. But National has always opposed this sort of transparency, and they are taking the opportunity to roll it back. And we will all be the losers if we allow them to get away with it.

Chris Finlayson is in contempt of Parliament

The Registrar of Pecuniary Interests, Margaret Bazley, has ruled that Chris Finlayson broke the rules when he repeatedly failed to declare his directorship of a company in his annual return of pecuniary interests. Which is pretty obvious. The rules are crystal clear, stating:

(1) Every return of pecuniary interests must contain the following information as at the effective date of the return:

(a) the name of each company of which the member is a director or holds or controls more than 5 percent of the voting rights and a description of the main business activities of each of those companies, and...

Note: "each company of which the member is a director" - not "each company of which the member is a director which makes money". Only a lawyer could convince themselves to ignore the plain reading of the words for a perverse, self-serving interpretation.

So, what happens next? At this stage its worth remembering Standing order 401(h):

Without limiting the generality of Standing Order 400, the House may treat as a contempt any of the following:

[...]

(h) as a member, knowingly providing false or misleading information in a return of pecuniary interests

There's no question the information was false, and Finlayson has admitted he did it knowingly. He has therefore committed a clear contempt of Parliament (and, I might add, the public, who the pecuniary interest rules are designed to protect). This is unacceptable for an MP; it is even more unacceptable in a Minister, who must, in the words of the Cabinet Manual, "act lawfully and... behave in a way that upholds, and is seen to uphold, the highest ethical standards". And the Attorney-General needs to be held to an even higher standard than that - the lawfulness of their behaviour must be beyond any doubt.

The question is whether Parliament will act on this, or whether Lockwood will find a way (again) to ignore a clear breach of the rules by one of his mates.

Oh dear

So, it turns out that Attorney-General Chris Finalyson has been lying to Parliament for four years, having filed repeated false pecuniary interest declarations, which omitted to state his position as a director of a company named Te Puhi Trustee (2) Limited. This is unlikely to be a matter of oversight - Finlayson established the company in 2006, after he became an MP.

This is unacceptable. The register of pecuniary interests is a vital defence against political corruption. We can not tolerate any MP evading its (and our) scrutiny. Oversights happen, but where the omission appears to be deliberate, it cannot be taken as anything other than a declaration of intent to behave corruptly. And that is something we should not accept.

Labour is drawing comparisons with the case of David Parker, who resigned as Attorney-General after being accused of filing false company declarations (a charge on which he was later completely exonerated). Given the nature of the position, it was widely regarded as the honourable thing to do. Finlayson can do no less. Parker's crime was inadvertent; Finlayson has knowingly lied to Parliament four times in a matter which strikes at the heart of his integrity. And that makes him unsuitable to be Attorney-General.

As with Parker, this is a shame; Finlayson is a competent Minister who has done an excellent job. But the position of Attorney-General requires someone of unblemished integrity. People who repeatedly lie to Parliament simply do not make the grade.