The return of dirty politics

At the 2005 election campaign, the National Party colluded with a weirdo cult, the Exclusive Brethren, to run a secret hate campaign against the Greens. It was the first really big example of the rich using dark money to interfere in our democracy. And unfortunately, it seems that they're trying again, with the Sensible Sentencing Trust running deceptive billboards purporting to be Green party ads advocating for the defunding of the police.

[Photos by Johnny Cans]

While the ads carry an authorization statement, the use of Green Party branding in this way is clearly deceptive and intended to mislead people into thinking it is a real Green Party ad. It is likely a violation of rule 2(b) of the advertising standards code. More importantly, insofar as it might reasonably be regarded as encouraging or persuading voters to actually vote for the party - and there are people for whom it will - then running it without the permission of the party is an actual crime. Which is kindof ironic, given what the SST supposedly stands for.

(Of course, given its support of Bruce Emery for stabbing and killing Pihema Cameron, we know that the SST really only opposes some crimes: crimes committed by poor or brown people. Crimes by richwhites, especially against poor brown people, are OK.)

There are deep links between the SST and government parties. Winston Peter's current chief of staff, Darroch Ball, led the SST when he was kicked out of parliament. And former ACT politician and stealer of a dead baby's identity David Garrett was a lawyer for the SST before entering parliament. So you have to wonder about the level of coordination here (especially with the government also running a hate campaign against the Greens in question time), and whether we are once again seeing astroturf groups being used by the parties of the right to wage dirty politics campaigns and circumvent political spending limits.

Winston does dirty politics

Winston Peters and NZ First have come under pressure in the past few months, after leaks about their secret money laundering foundation led to them being investigated by the Serious Fraud Office. And so they've retaliated, by stalking the journalists reporting on the case, and smearing them on a sewerblog:

NZ First Leader Winston Peters says he was involved in having photographs taken of RNZ journalist Guyon Espiner, Stuff reporter Matt Shand and former NZ First president Lester Gray.

The photographs were posted on The BFD, a Whale Oil-linked website which has been running stories defending New Zealand First and trying to belittle reporting about the NZ First Foundation donations.

The photos ran with an article criticising the reporting, which Espiner and Shand have both been involved in.

This is simply dirty politics, and its unacceptable. Its also clearly unethical, and a violation of the Cabinet Manual requirement for Ministers to "behave in a way that upholds, and is seen to uphold, the highest ethical standards". And for that, Winston should be sacked.

Who'd have thunk it?

So, it turns out that the New Zealand Taxpayer's Union are simply a paid front for the cancer industry:

A right-wing lobbying group which has railed against cigarette tax increases and plain packaging laws in New Zealand counts a tobacco giant among its corporate funders.

The NZ Taxpayers’ Union has not disclosed its financial support from tobacco companies in its reports or press releases, with one public health academic calling on it to be more transparent about its donors.

The Guardian identified the relationship between the Taxpayers’ Union and British American Tobacco as part of its series on “the huge damage of the tobacco epidemic ... and the industry behind it”.

In an investigation into the ties between “free-market thinktanks” and the tobacco industry, the Taxpayers’ Union was identified as being supported by multinational firm British American Tobacco.

A British American Tobacco spokesman told Newsroom the company had been financially supporting the Taxpayers’ Union for three years, paying “a standard annual corporate membership fee”.

This is a basic conflict of interest, which could have been resolved by simply saying where their money was coming from. But that would have defeated the purpose: what British American Tobacco is paying for is "independence", the illusion that people who aren't paid by them advocate for their interests. And of course if they'd said "we take money from the cancer industry" on the bottom of a piece defending that industry's interests, everyone would have dismissed it for the hackery it is.

Meanwhile, I'm wondering: now that they've been exposed as intellectual mercenaries, will the New Zealand media continue to print the Taxpayer's Onion's PR? It will be an important test of whether they have even basic journalistic standards.

Justice for Nicky Hager

In October 2014, as part of a political investigation into the book Dirty Politics, police raided and searched the home of journalist Nicky Hager. The raid has spawned a series of ongoing court cases which have in turn exposed illegal behaviour by the police: they deliberately misled the judge to get the search warrant, and unlawfully obtained 10 months of Hager's banking records. And now, finally, they've admitted the entire thing was wrong and paid damages:

Investigative journalist Nicky Hager has accepted a police apology and payment of "substantial damages" after the unlawful search of his home during the investigation into the hacking that led to the Dirty Politics book.

The settlement revealed police had sought information claiming Hager was suspected of criminal behaviour, including fraud.

"Police accept that they had no basis for such allegations," the settlement document read.

"Police apologise unreservedly for these breaches of his rights and have agreed to pay Mr Hager substantial damages and a contribution towards his legal costs."

The settlement also included police making a key admission around accessing Hager's banking data - a police practice used to get people's personal financial information without any legal order.

The full police apology is here.

Its good that they've settled and admitted their wrongdoing. But the real question is whether it will lead to any change of behaviour, or whether the police will continue raiding journalists whenever one offends the government of the day. And as no individual police officer seems to have been held to account, despite lying to a judge and systematically abusing their powers, I think we all know the answer to that.

An unbelievable denial

Paula Bennett has denied leaking Winston Peters' pension information to the media:

There was "absolutely no benefit" for National to leak the details of NZ First leader Winston Peters' pension problems, says deputy leader Paula Bennett.

She has rubbished suggestions National might have seen gains if Peters' party dropped in the polls, telling TVNZ's Breakfast the theory made no sense.

"It just doesn't make sense that it was. Why would we leak something on the day of our campaign launch, which we want to be all about us quite frankly.

All of which is just a little bit unbelievable. Firstly, because there is obvious motive for leaking against Winston: National's entire election strategy depends on taking him down by a few points, while benefiting from the "wasted vote". And secondly of course because Bennett has form on this. In case anyone has forgotten, she leaked the information of two beneficiaries who spoke up about government policy - then refused to apologise or rule out doing it again. Then she leaked against Te Puea Marae chairman Hurimoana Dennis after he showed the inadequacy of government housing policy last winter. In both cases, private personal information which she should never even have seen was abused for political purposes - its her favourite weapon. And of course, she was briefed on Peters' private business, in apparent violation of the Privacy Act.

In short, Bennett had motive, means and opportunity. If you believe her denials, I have a bridge to sell you.

No sunlight, no disinfectant

Newstalk ZB's Felix Marwick writes about the failure of his efforts to uncover the details of John Key's "briefings to bloggers" using the Official Information Act:

The Office of the Prime Minister has consistently refused to release any of the details I have sought. Its position, via Chief of Staff Wayne Eagleson, has been the information sought fell under the Prime Minister’s position as Leader of the National Party so the information was not subject to the Official Information Act. Mr Eagleson’s position has also been that to provide the information, in the case of interactions with blogger and party pollster David Farrar, it would require the searching of a large volume of correspondence. In a nutshell, any information the Prime Minister’s office held, it was not willing to disclose.

On this point the Ombudsmen have accepted the view of the Prime Minister’s Office with Chief Ombudsman Peter Boshier’s view that the threshold for him to check the communications in question has not been met.

Matters have also been further complicated by John Key’s departure from the office of Prime Minister. The Chief Ombudsman did approach Mr English’s office last December to see if he adopted the position of his predecessor. Mr English, via his chief of staff Wayne Eagleson, backed the position of his predecessor and also made the point that given Mr Key’s departure, and that of many of his staff, he couldn’t be certain in what capacity Mr Key made the communications and whether they were official information or not.

Add to this the fact that when a Minister or official ceases office, information that they alone hold stops being official information at that point, and it becomes immediately apparent any formal attempt to use the OIA to elicit details is a lost cause.

I'd made the same request, with the same results. If you're curious about the details, the Ombudsman's most recent letter is here. The core problem with the process though is simply how long it took: the requests were filed in July 2014, and yet the Ombudsman's Office didn't bother to act on them until 1 September 2016, two years after the complaints were received. If they'd acted sooner, then it would have happened before Key resigned, he would not have been able to play the hat game (because information is official by default), and there likely would have been some form of answer. Instead, the slow action on the complain has let him get away with it.

Marwick's conclusions are clear: firstly, that the OIA is fundamentally useless for getting information which politicians don't want to give you, and that real stories are going to come from leaks. And secondly: "the most senior politician in the land probably had something to hide".

Even more expensive

The police's illegal raid on Nicky Hager's home has got even more expensive:

Nicky Hager’s home was raided by Police in October 2014. The raid was part of an investigation into the source of Nicky Hager’s book, Dirty Politics. In December of last year, the High Court ruled that the warrant that was used for the raid was “fundamentally unlawful”. The Police are not appealing that decision.

Nicky Hager’s daughter was the only one home when the Police turned up to raid the house. She had to stay and watch the 10-hour raid of her home. The Police search included a search of her bedroom and private belongings. The Police seized and cloned her phone and laptop. The laptop was kept by the Police for over four months. This all happened two weeks before she was due to submit her end-of-degree University papers.

The Police have agreed to pay Nicky Hager’s daughter damages and her costs. They have also agreed to destroy all copies of her information taken during the raid and copied. On that basis, his daughter has agreed to discontinue her proceedings against the Police.

This is on top of quarter of a million dollars in interim costs, and the main suit is still ongoing. When you factor in the cost of the police's lawyers, we're already well over a million dollars, and that's without even thinking about final damages.

But again, this isn't real money, its taxpayer's money. Those actually responsible for this abuse of power, from the police officers who authorised it and carried it up to John Key, who was ultimately responsible, won't be paying a cent. And given past police practices, it is unlikely they will ever be held to account, despite abusing their powers and costing us a large amount of money.

A costly abuse of power

In October 2014 the police raided the home of political journalist Nicky Hager. The search was later ruled illegal, and now the police have been ordered to pay nearly a quarter of a million dollars as an interim payment of court costs:

Investigative journalist Nicky Hager has been awarded interim legal costs towards $475,082 spent suing police.

[...]

The High Court has yet to hear Hager's claim for damages from police for breaching his rights. In the meantime, his lawyers asked for police to pay Hager's legal costs of $475,082.78.

Alternatively, they asked for costs on a reduced scale of $232,672.78.

Justice Denis Clifford awarded the lower level of costs, further reduced to pay for two lawyers but not for the third who appeared in court for Hager. The judge did not put a figure on the amount of the reduction.

He said that questions of how police obtained the warrant, searched Hager's home and responded to the court case, would all affect the final costs decision.

The police's abuse of power and political favour to the National Party is now getting very expensive. And again, you have to wonder if the police officers who made the decision, lied to the judge, and violated Hager's human rights - and our trust in them - will be held accountable in any way for their abusive behaviour. But I think we all know what the answer to that will be...

Investigating Key's dirt machine

Back in 2014, John Key admitted that his staff were "briefing the bloggers" and using them as a backchannel to plant stories in the media. A number of people (including myself) were interested in this and lodged OIA requests for the details. The PM rejected these requests by playing the "hat game": the information was held in his capacity as the leader of the National Party, not his capacity as a Minister. But now, two years after my complaint was lodged, the Ombudsman is finally investigating it, along with an earlier request from NewstalkZB:

The Chief Ombudsman will investigate the Prime Minister over his refusal to release details regarding his, and his office's contact with right-wing bloggers David Farrar and Cameron Slater.

Back in early 2014 Newstalk ZB requested records of all such contacts that had occurred over a two year period.

John Key's office declined to release details, saying to do so would require substantial research and collation and also that some communications may have been made in Mr Key's capacity as an MP and leader of the National Party.

(I'd requested communications from a specific month, precisely to avoid "substantial research and collation").

When I originally complained, I had argued that the PM had not established that the briefings were not given in an official capacity:

While the PM's office is correct that he wears multiple hats, and information held in the capacity as leader of the National party or as an MP is not "official information" under the Act, he has not established that the information is held in such a capacity. One of the key allegations of Nicky Hager's "Dirty Politics" (which given your investigation into OIA processes I'm sure you're aware of) is that bloggers were being briefed by staff employed by Ministerial Services - that is, paid by the public. If that is the case, then that would make them definitively official information. In the case of the Prime Minister personally, the status of any briefing would have to be judged from the context in which it was given e.g. whether it was given on a day normally reserved for constituency or personal business, or during his "normal" office hours as Prime Minister. It can also be judged from the content e.g. if it is regarding official information or any OIA request then it must clearly be given in the capacity as Prime Minister, because the leader of the National Party or John Key MP do not "hold" such information and do not process such requests.

In the two years since, the OIA ground has shifted. Information held by the PM is now official by default, and he has to show it is held in another capacity. Whether that is actually the case will depend on the facts, but I think there's a good chance that they won't support a private capacity in every case, and that we'll see an official view of the heart of the PM's dirt machine.

The obvious question

John Key, Post Cabinet Press Conference, May 18, 2015 (referring to Rachel Glucina's Herald smear of the victim of his serial sexual harrassment):

Yeah no I had nothing to do with that...

Text message from Rachel Glucina to John Key, April 22, 2015:

just interviewed the waitress. Piece of work! Massive political agenda

So, if John Key had "nothing to do" with it, why was Glucina sending him status updates on the smear? It'd be great to see some journalists ask him this at his next standup.

National erodes democracy

Another sign of the erosion of democracy under National: people who protest visibly and effectively against government policy have journalists asking their employers why they haven't been sacked yet:

The employer of a woman who threw a dildo at Economic Development Minister Steven Joyce refuses to say if she will be disciplined.

Josie Butler, a nurse at Hillmorton Hospital in Christchurch, leapt to international fame after flinging the toy in the face of Joyce at Waitangi

[...]

Canterbury District Health Board general manager of people and capability Michael Frampton said the DHB would not comment on whether Butler faced any disciplinary measures.

As if expressing your political views on your own time is something people should (or can) be sacked for.

And remember, you're probably paying for this Muldoonism, through taxpayer funding of National's dirty politics machine.

Of course, National could end this in an instant, by saying publicly that they respect the right of all New Zealanders to express their political opinions, and that political discrimination in employment is a crime. But their silence is deafening.

Illegal

That's apparently the High Court's ruling on the police raid on Nicky Hager:

The judge found that the search was illegal. He said that the Police had failed to disclose relevant information to the Judge who issued the warrant. As a result, he formally declared that the warrant was “fundamentally unlawful”. He also found that the search was therefore unlawful. Justice Clifford also expressed concerns about other aspects of the Police’s actions.

I'm waiting to read the full judgement, but this is good news. Meanwhile, I'm wondering if the police officers who lied to the judge to get that warrant will keep their jobs, or whether they will face prosecution under s175 of the Search and Surveillance Act. Sadly, I think we all know the answers to these questions. The police think the law only applies to other people, not themselves.

Exposing dirty politics

Back in April it was revealed that Prime Minister John Key had systematically and repeatedly assaulted and sexually harassed a cafe waitress (while his police bodyguards stood around and did nothing). Shortly afterwards, dirty politics operative and sewer-columnist Rachel Glucina ran a smear-job on the victim. When he was asked under the OIA whether he had had any communications with her about it, Key refused to respond. That refusal was one of the worst I've ever seen, and so naturally enough the requester took it to the Ombudsman. On Wednesday we learned that the Ombudsman was investigating the refusal. Key response to this has been to stand by his stonewalling [audio], citing a "long-standing view" and a "convention" that his interactions with the media shouldn't be released. The problem? None of that is in the law. The OIA specifies a number of conclusive and non-conclusive reasons for withholding official information - and the Prime Minister having a "long-standing view" that he should be above the law isn't one of them. And the grounds he does cite - "privacy" (his own) and "confidentiality" (offered for his own convenience) - are simply not applicable. If the system works as it should, Key should be forced to reveal whatever information he holds (subject to legitimate redactions for privacy - things like names and phone numbers, not whether he or his minions talked to a journalist).

As for the supposed consequences, I'm perfectly comfortable with them. As I noted earlier, if Key is so ashamed of his contact with Rachel Glucina that he is blatantly ignoring the law to avoid admitting it, maybe he shouldn't have contacted her in the first place. And if the threat of exposure deters him from making such contacts in future, then that would a victory for the OIA.

[Disclosure: I'm a party to this complaint, having complained about the refusal of my request for information regarding the existence of information]

What is the Prime Minister trying to hide?

Last month, I highlighted a very dubious OIA response from the Prime Minister's office regarding his contacts with journalist Rachel Glucina, who had just outed and smeared the victim of his pony-tail pulling. Following that post, I sent an OIA request of my own, seeking to learn:

whether the Prime Minister or his office holds information on contacts with Rachel Glucina about the pony-tail pulling incident;

whether the Prime Minister or his office holds information on contacts with Rachel Glucina about the pony-tail pulling victim

Last night I received the response: more of the same stonewalling. According to the Prime Minister's office, "the position I have outlined in responding to a request on the FYI website regarding the releasing of any details of communications from the Prime Minister or the media team to Rachel Glucina still stands". The request was refused under section 9(2)(a) and 9(2)(ba)(i). The problem? They can't actually do that. The request was very specifically a request for information concerning existence of certain information. And as section 10 of the OIA makes clear, the grounds for refusal are extremely limited. Neither of the cited grounds is a legal reason for refusal under section 10. Naturally, I've complained to the Ombudsman, so maybe I'll have a response in three years. But I'm left wondering: what is the Prime Minister trying to hide? Would it kill him to say "yes" to either of those questions? And if he's so ashamed of his contact with Rachel Glucina that he is blatantly ignoring the law to avoid admitting it, maybe he shouldn't have contacted her in the first place?

A whitewash

The Auditor-General is supposed to be our watchdog against corruption and conflicts of interest in government. But today, they threw their integrity and reputation on the bonfire to protect National's Katherine Rich:

Conflict of interest claims against former National MP Katherine Rich will not be investigated by the Office of the Auditor-General.

[...]

"We are satisfied that there are no matters we need to investigate further. We have not identified problems with the management of conflicts of interest by the HPA.

"We consider it would be too simplistic to assume that the aims and activities of the HPA and FGC are incontrovertibly opposed and utterly incompatible, such that a person who was associated with one organisation was impossibly compromised from any association with the other.

"Similarly, it would be too vague and indirect to conclude that it is impermissible for Mrs Rich to participate in any matter relating to a broad general subject-matter, such as alcohol or tobacco."

The OAG said that its review of HPA's minutes had not identified any matters or decisions that might raise serious concerns about its management of conflicts of interest.

Right. So Rich can decide on alcohol, tobacco and sugar, despite being a lobbyist for those very industries. And there was no conflict, despite the fact that she actually did make such decisions. As for the concerns about her hiring Carrick Graham to subcontract sewerbloggers to run PR hits on health researchers, that's dismissed as "not relat[ing] to Mrs Rich's conduct on the HPA", despite it being a serious conflict in and of itself.

And the kicker? They didn't even bother to interview her. Some fucking watchdog. Instead of protecting the public interest, the Auditor-General is just whitewashing for the powerful.

More dirty politics

One of the "stars" of Dirty Politics was Jason Ede, John Key's "black ops" man. While Ede has officially quit, it looks like Key found a replacement. And he's up to the same dirty tricks and online bullying as his predecessor:

Following a short exchange about a tweet sent out by the National Party about animal testing, Compton, whose Twitter account does not show he is linked to Key's office, implied he knew who was behind the @johnkeymustgo account.

"You think you're so clever. But you're not that good at hiding your online fingerprints. Have a nice day:)".

[...]

Later the @johnkeymustgo account revealed that Compton was behind the www.changetheflag.nz website. In doing so, some personal details of Compton were also revealed.

Compton has now made his Twitter account private, and forced hundreds of followers from his list.

A spokesman for the National Party leader's office confirmed Compton was a senior adviser on social media, whose role involved "assisting the National Party and its MPs, including the leader, with their Facebook and Twitter accounts".

Threatening the Prime Minister's critics, running "grassroots" campaigns right out of the PM's office - looks like National is still in the business of dirty politics.

Abuse of power: The OIA / public records dimension

One of the things to emerge from the "dirty politics" report is that the SIS pissed all over the OIA:

The NZSIS also made a significant error in considering information requests by the news media. Such requests were, from 25 July to 5 August, not treated as OIA requests but simply denied.

Meanwhile, they were bending over backwards to accommodate Slater's request. But despite the fact that they'd gone to the same email address and it was the same staff handling them, the IGIS finds no politicisation; instead the SIS suffered from doublethink, an imagined distinction between "media inquiries" and OIA requests. There is no such distinction. As the law makes clear, any request to a Department, a Minister, or an agency, is legally an OIA request, and has to be answered. And every time a Minister says "no comment" to a duly particular media inquiry about information they hold in their capacity as a Minister, they are breaking the OIA and could become the subject of an Ombudsman's complaint.

And then there's this bit:

I issued a production order to Mr Ede in respect of his personal email accounts after it became apparent from evidence, including evidence provided directly by Mr Ede, that some of the correspondence pertinent to this inquiry was conducted from non-official email accounts. Upon receipt of the production order, Mr Ede provided a supplementary written statement to the inquiry in which he advised that the emails had been permanently deleted prior to the commencement of the inquiry and could not be recovered. I made my own enquiries and confirmed this was the case.

The IGIS is primarily concerned about the security implications of this, but there's another one. Insofar as they deal with official Ministerial business - and if it deals in any way with official information its Ministerial business, as Ministers do not hold such information in their political capacity as MPs - then this appears to violate the Public Records Act, putting Ede on the hook for a $5,000 fine per email. Its small potatoes, but in the absence of a crime of "crimes against democracy", it will have to do. Meanwhile, we have to wonder how many other Ministerial staff are doing this in an effort to evade the OIA. Its time for the Chief Archivist to do an audit.

An abuse of power

The Inspector-General of Intelligence and Security has released her report into the release of information to Cameron Slater by the SIS. Its a lot to digest, but it looks like the core allegation of Dirty Politics - that the Prime Minister's office colluded in releasing SIS information to their pet sewerblogger - has been upheld. But while the report highlights unprofessional and partisan conduct by then-SIS Director Warren Tucker, and dirty politics by the PM's staffers Phil de Joux and Jason Ede, Key is treating it as exonerating him. At this stage, its worth remembdering that Key's conduct was not part of the terms of reference, so of course the report draws no conclusions about him. But there's both a credibility question - do we really think Key was unaware of the smear machine in his office - and a responsibility one. This was his office. These were his staff. They were acting in his name. He's responsible for this.

As for what that should mean, the use of spies against domestic political opponents is well beyond democratic norms. It is Nixon territory. And there is only one appropriate response to this abuse of power: the Prime Minister should resign.

An unmanaged conflict

Katherine Rich is a member of the government-appointed Health Promotion Agency, responsible for (as it says on its website) "inspiring all New Zealanders to lead healthier lives".

Katherine Rich is also Chief Executive of the New Zealand Food and Grocery Council, a lobby group for the food, sugar, tobacco and alcohol industries. As part of this role, she subcontract lobbyist Carrick Graham to run dirty politics hits on health researchers via Cameron Slater's sewerblog.

Rich's two roles appear to be in direct conflict. But the government says that that conflict is managed appropriately. Bullshit. While it has been declared, as Kevin hague pointed out in Question Time today, Rich has never recused herself from a single discussion or decision of the HPA, despite a clear requirement in the Crown Entities Act that she does so on any matter in which she has an interest.

There are two possibilities here. Firstly, despite its name, function, and the extensive contents of its website, the Health Promotion Agency has never in the time that Rich has been a member dealt with any issue related to sugar, alcohol, tobacco, or any of the other unhealthy products she peddles.

The second is that the chair of the HPA is a muppet and Rich's conflict is effectively unmanaged, contrary to the law.

Which seems more likely?

The obvious question

John Key says he knows who the hacker Rawshark is. So, will the police be raiding his home for ten hours and taking all his data, or is that something they only do to enemies of the National Party?