Climate Change: Putting polluters above the law

That's the only way to describe the regime's plans to outlaw civil climate suits against polluting companies:

The government announced on Tuesday it would amend climate laws to prevent companies from being sued over damage caused by greenhouse gas emissions.

The change will prevent findings of liability in torts - a type of civil case where one person or entity claims another has caused them harm.

Justice Minister Paul Goldsmith said it would apply to current and future cases - stopping a landmark case against Fonterra and five other major emitters in its tracks.

The actual policy is an ACT party member's bill, which has been hanging around on the ballot for a while. I guess they just got sick of waiting.

If this passes, polluters will be able to lobby the government to prevent action on climate change, pollute with abandon, destroy the global climate, inflicting harm on people all over the world - including in Aotearoa - and face no consequences whatsoever. The courts will be specifically forbidden from doing what the government refuses to do. And this, despite well-established legal principles around public nuisance and negligence.

If someone nearby starts a fire which burns your house down, there's a legal remedy. If they build a shitty dam, collect a pile of water, then deliberately or by negligence release it and flood your neighbourhood, there's a legal remedy. But the regime is saying that there will be no legal remedy for climate change. Someone can literally burn the world, and there will be nothing legal you are allowed to do about it.

This is a naked case of regime corruption, of them serving the interests of big donors and polluters. And its just another example of the need for the next government to pass an Omnibus Repeal Bill, to revoke everything this corrupt, tyrannical regime has done.

If the government wants to avoid private suits over climate change, the solution is simple: have a robust climate change regime which actually reduce emissions. If they don't, then they only have themselves to blame if people pursue other strategies to do the job for them.

Another attack on the rule of law

Over the past few years New Zealand fisheries ministers have been repeatedly found to have acted illegally in their quota decisions, ignoring the Fisheries Act's environmental and information principles and setting quota at unlawfully high levels to pander to the fishing industry. But current fisheries minister Shame Jones has a solution: ban court cases:

But a “frustrated” Jones is signalling a dramatic response: he’s considering changing the law to limit such court action altogether.

In an interview with The Post, Jones said he had asked officials to review the Fisheries Act to determine whether it had become “weaponised” by environmental groups.

[...]

“The frequency of this litigious activity has caused me to explore with the officials as to whether or not the law is fit for purpose,” he said.

“We cannot have a situation where we’re outsourcing to litigants and the judiciary the statutory role of resource management on behalf of the citizens of New Zealand.”

But of course that wouldn't be happening if ministers were obeying the law in the first place. The problem here is not the courts - it is consistently unlawful behaviour by ministers, who seem to regard the whims of their fishing industry donors as being more important than the law.

More generally, interpreting the law and ensuring that the government actually follows it are key duties of the courts. When you remove that, you don't have legal government in any real sense. Instead you have the arbitrary whims of a dictator. That may suit Jones very well - he's made no secret of his authoritarian and autocratic inclinations. But I don't think it suits kiwis at all. But if Jones goes ahead and pushes this through in his narrowing time window before the election, it will simply be another piece of bad law to be nuked in the next government's Omnibus Repeal Bill.

Fiame stares down her corrupt party

Back in January, Samoan cabinet minister La’auli Leuatea Schmidt was charged with attempting to pervert the course of justice. When he refused to resign, samoan prime minister Fiame Naomi Mata'afa sacked him - triggering a political crisis. Because a majority of her political party felt that she should have not just kept him in office, but protected him from being charged in the first place - and felt so strongly about it that they voted to throw her out of the party and then attempted to have her thrown out parliament and removed as prime minister under anti-party-hopping legislation. Since then Fiame has sacked half her cabinet for disloyalty, and there has been speculation that her government would collapse, forcing early elections.

But it seems that FAST has blinked. Because when a confidence vote was finally held in parliament, they voted for Fiame, rather than rolling her. I guess they were really afraid of elections after all (Samoa's constitution explicitly permits a PM toppled in a confidence vote to call an election, unlike Aotearoa, where calling an early election requires the confidence of the House).

Meanwhile, you have to wonder what went wrong when a party which ran on an explicit platform of ending HRPP abuses and corruption now wants to behave in exactly the same way. You can now see which MPs actually believe that: the ones who have stayed loayl to Fiame. As for the rest, I guess we just have to hope that Samoans will throw those corrupt arseholes in the trash where they belong.

United States of corruption

The US Foreign Corrupt Practices Act has been a vital tool in combatting international corruption. It forbids US companies and citizens from bribing foreign public officials anywhere in the world. And its actually enforced: some of the world's biggest companies - Siemens, Hewlett Packard, and Bristol Myers Squibb - have paid huge fines after being convicted or settled cases brought under the law. But not anymore, because Donald Trump has decided that it's "bad for business":

Donald Trump has ordered the Department of Justice to halt the enforcement of a US anti-corruption law that bars Americans from bribing foreign government officials to win business.

“It’s going to mean a lot more business for America,” the president said in the Oval Office after signing an executive order on Monday directing Pam Bondi, the US attorney-general, to pause enforcement of the 1977 Foreign Corrupt Practices Act.

A White House official said: “American national security depends on America and its companies gaining strategic commercial advantages around the world, and President Trump is stopping excessive, unpredictable FCPA enforcement that makes American companies less competitive.”

This is of course nakedly corrupt, and it puts the US in violation of the OECD anti-bribery convention, to which it is a party (it may also put it in violation of the United Nations Convention Against Corruption). But as withdrawl from the Paris Convention or Trumps ignoring of trade-agreements shows, the US will no longer keep its word on the international stage. Which means there is no point ever negotiating any agreement with them, because they can't be trusted to keep it.

It also seems a bit weird that congress can pass a law, and then a future president can just say "actually, we're not going to enforce that". It seems contrary to both the rule of law and the separation of powers, allowing the president to arbitrarily rewrite the law to suit their whims. But I guess arbitrary executive power is just another way in which America is "exceptional".

The Supreme Court stands up for fairness

National is planning to breach te Tiriti o Waitangi by amending the Marine and Coastal Area Act to effectively make it impossible for the courts to recognise Māori rights over the foreshore and seabed. But its also been playing dirty in other ways. Earlier in the year it announced changes to the funding regime for Marine and Coastal Area Act cases, cutting their funding in an obvious attempt to limit both claims and their success. A side-effect of this change - a total coincidence, I'm sure - was to cut funding for the claimants in the Edwards case (which had made it easier to recognise rights over the foreshore), who were attempting to defend their victory against the government in the Supreme Court. This is obviously an unjust abuse of power to strap the legal chicken - and now the Supreme Court has recognised it as such, issuing a rare prospective costs order against the government:

In a rare decision, heavy with judicial and political implications, the country’s top court has told the Crown it must give advance financial support to a group of hapū challenging it over the Marine and Coastal Areas Act.

[...]

The five-judge panel of the Supreme Court observed the Crown had previously been an interested party in the case.

Now it had become a direct party by appealing the Court of Appeal’s findings on customary marine title, raising the prospect of one party to the argument taking funding away from the other.

“This alteration represents a substantial disadvantage in effect now imposed by one litigant upon another, at the final stage of proceedings,” the Supreme Court found, “despite that litigant having previously recognised the responsibility to ensure all sides of the argument before the courts could be advanced with full and adequate funding.”

Effectively this restores the status quo ante of government funding for the case, undoing the harm of the government's cuts and allowing the case to be decided on its merits, rather than who has the biggest wallet. And despite the Court's disclaimers, its difficult to see this as anything other than a strong criticism of unfair behaviour and abuse of power by the government.

National has of course already pledged to overturn the judgement no matter what the court decides. Which shows what they really think of Māori rights and the rule of law. They may very well pass such legislation. But if they do, the next government will simply undo it. Which raise the obvious question: wouldn't it be better to avoid all that civil disorder and damage to both the Crown-Māori relationship and the legitimacy of the state, and simply let the court decide the case on its merits? Or would they rather destroy our society in order to cling to an outdated colonial mindset for a few more years?

A licence for tyranny

That's the only way to describe today's US Supreme Court ruling that the US president is above the law. Oh, it officially applies only to "official acts", but reading the fine-print, that basically means everything - even apparently inciting a mob to storm Congress in an effort to disrupt the certification of a federal election and hang the Speaker and Vice-President. And they were quite explicit that any order given to any part of the executive is inherently official. So, the US President can legally order the FBI to round up members of opposition political parties and put them in camps, the Secret Service to assassinate rival politicians (or judges), the army to machine-gun protestors, and the air force to bomb Congress or the Supreme Court. Nixon's famous assertion - rejected by the Supreme Court in 1974 - that "when the president does it, that means that it is not illegal" - is now the law of the land. The President really is "as powerful a monarch as Louis XIV, only four years at a time". And if they use that absolute power to murder their political enemies and subvert the constitution to remove the second bit, well, the Supreme Court is apparently fine with that.

The underlying idea here is that apparently a President can't President without doing crimes. That government is inherently criminal. Anarchists would agree. But its hardly a position you'd expect from self-proclaimed "conservatives" (until you remember that the essence of conservativism is hierarchy and unaccountable power - "laws that protect but do not bind"). The Supreme Court may also have sold it to themselves as protecting past presidents from legal persecution by their successors. But with this ruling, a president doesn't need to prosecute their predecessors. They can simply have them murdered instead.

While the ruling permits Biden to order the immediate murder of Trump - or of the Republican majority on the Supreme Court - I don't for a moment expect that to happen. Like most elected politicians in other democratic states, Biden seems to be a relatively normal, non-murdery person, who sees the criminal law as a proper constraint on power, rather than as some obstacle, and his voters would never support such action even if he did. Instead, this ruling effectively authorises a future criminal president - Donald Trump, if he wins or seizes power after November, or the president after him, or the one after them - to act on their worst impulses, without constraint. And given the ideology of violence and power floating around on the American right at the moment, those impulses look like they will be very ugly indeed.

If allowed to stand this ruling effectively signals the end of the rule of law and of democracy in America. Unfortunately Biden's post-ruling speech gives no confidence he will try to build a movement to overturn it.

"Comity" versus the rule of law

In 1974, the US Supreme Court issued its decision in United States v. Nixon, finding that the President was not a King, but was subject to the law and was required to turn over the evidence of his wrongdoing to the courts. It was a landmark decision for the rule of law, both in the US and internationally, and helped cement the view in democratic countries that the government, whatever shape it may take, is subject to the law.

Today, in the case of Minister for Children v Waitangi Tribunal, the New Zealand High Court said "nah, fuck that":

The High Court has overturned a summons by the Waitangi Tribunal to Minister for Children Karen Chhour.

The minister was due to give evidence at the tribunal on Friday regarding the government's plans to repeal section 7AA of the Oranga Tamariki Act - but that will no longer go ahead.

So unlike the US, in New Zealand ministers are literally above the law. They don't have to front up to explain government policy to a standing constitutional commission of inquiry. We're a monarchy in practice as well as in name.

Reading the judgement, its a very odd decision. The court finds that the minister could provide relevant evidence which would assist the Tribunal's inquiries. It found that she should have provided it voluntarily, and that she was a dick not to. It found that the Tribunal has a statutory power to summons witnesses, which applies to ministers, so they could make her provide it. But not in this case, because of "comity" - that is, deference between the three branches of government.

Which probably sounds great in theory. The different bits of our government should be respectful of and not interfere in each other's roles? Sure. But its a bit of a problem when the literal job of the body the executive is demanding deference from is to perpetually inquire into them. And its clear how, both in general and in this case, demands for "comity" serve to frustrate that job, undermining the purpose of comity in the first place.

Its also weird because in Aotearoa's political system, the executive is the most powerful branch, and so the least deserving of any deference. And fundamentally, I just don't see comity towards to ministers as having any value at all. Comity from ministers is important - they shouldn't be telling the courts what to do, or frustrating their work by refusing to provide evidence (for example), and they should be accountable in Parliament for their and the government's actions. Similarly, I see the value in comity between Parliament and the courts, because of privilege and independence. But deference of either towards ministers? Fuck that shit. Because demands for "deference" from the executive basically boil down to inherited claims that the king is above the law, and the other two branches resolved that pretty decisively in 1649.

As for the specific case: apparently there's good grounds for an appeal (here's hoping). Or maybe the minister will just stop being a dick, and provide the evidence she was asked to. Alternatively, if she wants to keep being a racist dick (this whole thing being apparently due to hostility to the idea of having to comply with te Tiriti), and keep arguing that the decision to repeal section 7AA was determined by the coalition agreement, maybe the Waitangi Tribunal could take that argument seriously, and summons the people the government claims are actually responsible for that decision: the coalition negotiators. Not being ministers (in their coalition role, at least), there's no duty of "comity", and I'm sure they could explain their reasoning to the Tribunal. They're a commission of inquiry, after all. So maybe they should... inquire?

A giant Henry VIII clause

National introduced its corrupt Muldoonist resource-consent fast-track legislation to the House on Thursday, and rammed it through its first reading. Having read the bill, it is every bid as bad as signalled, taking selected resource consent decisions away from independent panels and putting them directly in the hands of Ministers. Its the sort of thing we haven't seen since Muldoon, and with good reason: it throws any pretence of merits-based assessment out the window, replacing it with a contest to see who can bribe or lobby the Minister the most to get their pet project through. Which is not how decisions in this country are meant to work.

So who benefits from this corrupt steamroller process? Who needs it? Who is it for? We can start with who doesn't need it: renewable energy projects. Because with very few exceptions, they find it very easy to get resource consent, give or take a few conditions about noise setbacks and monitoring (and solar projects don't even need that). Ditto roads: they get resource consent very easily as well. And normal housing projects. Or indeed, any normal project whatsoever. The RMA is really about mitigating adverse effects, which means restricting or imposing conditions on projects which do that. A project has to be truly terrible or just outright illegal to have an application actually declined.

And that's who this process is for: projects which cannot get resource consent under the current system. Coal mines in reserves. Polluting fish farms in pristine natural environments. Water schemes which would flood conservation land. Waste dumps which make people sick. Offshore mining schemes found to be illegal by the Supreme Court.

A common theme linking these projects is that they blatantly violate the law. They are terrible projects, with significant, unmitigable effects on key environmental values. But rather than fix them so they comply with our environmental standards, the companies pushing them have decided to lobby Ministers instead. And rather than respecting the law, or using a democratic process to change it, National's solution is to give Ministers the power to overturn it on a case-by-case basis for their donors and cronies. And that's the real horror here: once you unpack it, the entire law is just one giant Henry VIII clause, allowing Shane Jones to effectively rewrite and overturn statute on a whim, for the benefit of whoever gave him the most money.

That is not democratic. It is not consistent with the rule of law, or with our values as a country. Instead, it is corrupt, authoritarian, and arbitrary. But I guess that's what the National Party stands for now.

A rejection of the rule of law

As if we didn't have enough reasons to hate National's corrupt, Muldoonist RMA fast-track legislation, now we have another: it will be used to overturn the decisions of independent panels - and potentially the courts - to forcibly "consent" projects which have been rejected under existing law.

If this sounds familiar, its exactly what Muldoon did with the Clutha Development (Clyde Dam) Empowering Act 1982, only potentially on a much broader scale. Its not just a rejection of established principles of community consultation and independent, merits-based assessment - its also an outright rejection of the rule of law from the National Party and their corrupt business backers. Instead, it seems they prefer a model where those who can buy the ear of Ministers get what they want, and those who can't, don't.

Australia shows us what happens under such models: universal, wide-scale corruption, and regular prosecutions of Ministers. And to clean it up, we'll need an Independent Commission Against Corruption, empowered to continuously investigate Ministers, officials, consent applicants and lobbyists for any hint of bribery or undue influence. If National passes this legislation, Labour should announce such a body as an immediate priority.

Challenging ANPR

RNZ reports that the police's use of automated number plate recognition (ANPR) is finally being challenged in court:

Police use of footage from high-tech automated number plate recognition cameras is being challenged in court by defendants.

At least 5000 cameras in two private networks provide footage of vehicle licence plates that police use to prosecute people.

At the heart of the unprecedented legal challenges is that this amounts to use of a tracking device without a warrant, in breach of search and surveillance laws. Another challenge is that it is in breach of the Privacy Act and the Bill of Rights.

There are at least two court cases, but suppressions mean details cannot be reported.

This seems pretty open and shut. On BORA grounds, using ANPR to locate someone or track their movements clearly interferes with a reasonable expectation of privacy (in that we do not expect our movements to be thus tracked without justification), and thus constitutes a "search". As for a tracking device, the definition is very broad: it means "a device that may be used to help ascertain, by electronic or other means... the location of a thing or a person [but] does not include a vehicle or other means of transport, such as a boat or helicopter". The fact that following someone with a car needed to be excluded tells you that the definition covers everything else which serves this function, irrespective of technological specifics. And there's a clear parallel here with interception devices, which means "any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication (including a telecommunication)". While this covers physical bugs, it also covers phone and internet taps, which are done at the exchange or ISP, using computers and software. The upshot: an ANPR camera is a "device", as are the computers and databases which store the information and allow police to search it. Which makes ANPR a "tracking device", which in turn makes it a "surveillance device", which in turn means its use by police requires a surveillance warrant. And that does not seem unreasonable at all: police get such warrants all the time, and it means they need to convince a judge that there are actual grounds and an actual offence, rather than just snooping for the sake of it. The police already accept this for "real-time" tracking; they just pretend that a time lag of a few seconds makes it "historic".

Of course, the police are not going to accept being told what to do by mere judges. They'll fight this all the way to the supreme Court, and if they lose there, get the government to change the law and legalise everything they've done. Because that's how things actually work in this country. The rule of law? Not when it comes to the police.

Laughing at the Ombudsman

Back in June, the Ombudsman issued a formal opinion to Police criticising their consistent delay of OIA responses to allow Ministers to be informed under the "no surprises" policy. The Ombudsman found that this was unlawfully and unnecessarily delaying responses, and the police responded by stopping the practice. Which should be a success story: complaint made, practice improved, issue resolved. Except it isn't, because it turns out that having told the Ombudsman they'd stopped doing it, the police simply started delaying responses to please the Minister again:

Police told Stuff and Boshier that they had amended their practices and most requests were now notified to the minister at the same time as they are communicated to the requester.

[...]

However, information released to Stuff shows this is not the case. We requested the work logs for the last 50 requests to the agency (between June and August this year).

Just three were sent to the requester and Police Minister Chris Hipkins on the same day. There was a four-day gap in most instances (23), and a one-day delay in many others (12 requests). Six requests were stalled for three days, and four for two days.

In two instances, there was a five and six day hold-up.

And when we asked police, and the government, about the delays it appears they don’t agree with Boshier.

A spokesperson said: “In response to the Ombudsman’s advice, police initially changed its approach, but found that new approach inconsistent with the no surprises convention as more of the OIAs were considered as matters of significance to the Minister of Police than initially expected.

This is simply treating the Ombudsman and the law with contempt. The entire OIA enforcement regime is predicated on agencies following Ombudsman's recommendations (or, less formally, changing their practices so formal recommendations don't need to be made). Instead, we have an agency which just flat-out lies about what it is doing, and shows no shame about it. And we have a Minister who enables it, by making control-freak demands to be kept "informed" of (AKA to exercise an unlawful veto power over) every release, no matter how trivial. Together with today's story about the Ombudsman again telling Corrections that they can't video kids when they're in the shower - having made exactly the same "recommendation" to the same prison previously in 2016 and 2019 - it calls the entire chummy "good chap" model of oversight and enforcement into question.

So how can it be improved? Well, the Health and Safety at Work Act (and various other laws) let regulators accept "enforceable undertakings" to improve practice, which can later be enforced by a court. And the Privacy Act enables the Privacy Commissioner to issue formal compliance notices requiring specific remedial action where the Act has been breached, violation of which is a criminal offence. The primary reason the Ombudsman does not have these powers, in the OIA jurisdiction or any other, is that they are relatively recent innovations, and the Ombudsman's core legislation and mindset is from the 1970's and 1980's. It would not be especially difficult to splice them into the OIA or Ombudsmen Act, and it can be done without reopening cans of worms that we would rather keep closed. And in the face of consistent government non-compliance and outright contempt of its own oversight bodies, if the government refuses to do this, then someone should put up a private member's bill to do it.

A law we should adopt

In Aotearoa, Ministers are supposed to be accountable for their Ministerial conduct, both to the Prime Minister and to Parliament. Once upon a time this meant that in cases of clear failure by themselves or their agency, a Minister would resign. Now, it simply means endless obfuscation and coverups while dumping the blame on public servants. This lack of accountability leads to poor decision-making, because there's no incentive not to (to put it in simple terms: they're never going to get fired, no matter what they do, so they have no reason to do their jobs properly).

Meanwhile, Denmark shows that things can be done differently: they actually jail Ministers who violate their Ministerial duties:

Denmark’s former immigration minister has been sentenced to two months in prison after a special court found her guilty of illegally separating several couples of asylum seekers where the woman was under 18.

Inger Støjberg was sentenced on Monday to 60 days in jail over accusations that she violated the European convention on human rights by ordering the separation of couples, some of whom had children.

“Inger Støjberg is found guilty of a deliberate violation of the Ministerial Responsibility Act,” Denmark’s court of impeachment of the realm said in a statement.

The Ministerial Responsibility Act is a fairly simple law. It makes it a crime for a Minister to (bad Google translation):

intentionally or through gross negligence neglects the duties incumbent on him under the constitution or legislation in general or according to the nature of his position.

It also makes it a crime to mislead or conceal significant information from Parliament. Here's how the Danish civil servant's code describes it:

Ministers are not only politically accountable to the Folketing. Denmark is a country based on the rule of law where ministers have a legal responsibility for complying with the Ministerial Responsibility Act (Ministeransvarlighedsloven) and other legislation. The Ministerial Responsibility Act establishes among other things that ministers must not give the Folketing incorrect or misleading information and that during the Folketing’s consideration of a case they must not withhold information of essential importance to the Folketing’s assessment of the matter in hand.

This is a law we should adopt here. After all, aren't we meant to be a country based on the rule of law? And given the scale of the decisions they make, shouldn't Ministers be more accountable for them than simply having a sneering competition with their peers in the House? An NZ Ministerial Responsibility Act would provide an actual incentive, an extra reminder to Ministers that their decisions must be lawful at all times, as well as a useful tool should the worst happen. It seems worth having that backstop.

Still the same question

The Independent Police Conduct authority has found another case where police used excessive force in making an arrest:

A police officer broke a woman’s arm with a baton before dragging her out of her car by the hair following a chase.

The Independent Police Conduct Authority has found the officer’s use of force was “excessive” and his actions were “unnecessary”.

Naturally, the police deny everything and claim the use of force was appropriate. But if anyone else had done it, they'd be slapping them with charges of assault with a weapon and injuring with intent. And so we're left asking the same question: why does the law apply to us and not to them? And how can a body which purports to be above the law have any credibility in enforcing it?

This is not what accountability looks like

When someone commits trespass, assault with a weapon, and kidnapping, you'd expect them to be prosecuted, right? But apparently the rules are different if you wear a blue uniform:

A police investigation has found officers in Northland trespassed on a man's property, then unlawfully pepper sprayed him and arrested him.

"Police found that the use of OC spray against the complainant was unlawful, because the officer was trespassing at the time; he should have left the property immediately instead of using force against the complainant."

The officers then left and came back with their supervising officer and unlawfully arrested the man for assaulting police.

"The arrest was found to be unlawful because officers were trespassing when the alleged assault occurred, and were therefore not acting in the lawful execution of their duty at the time.

The fact that these purported uses of power were unlawful makes each of them a criminal offence. But rather than being publicly prosecuted, the officers involved were dealt with by a "confidential employment process". So we have no idea if they were charged, or even fired. They could still be with the police, waiting to trespass, assault, and kidnap someone else.

This is deeply unsatisfactory. Public confidence in the police requires public accountability for their actions. And that means we have a right to know what the police did about this, so we can judge whether it was sufficient, or whether the institution itself needs to be held accountable for inaction. Of course, the latter is precisely what the police wish to avoid. But by covering this up, they have once again undermined the public trust they depend on to do their work, and encouraged people to view them as just another gang with a fancier uniform.

A necessary challenge

Today a full bench of the High Court is hearing Andrew Borrowdale's challenge to the legality of the COVID-19 lockdown. That lockdown ended two months ago, so the point seems moot - but it was never about ending it. Instead, as Andrew Geddis points out, its about a key principle of our system of government: the rule of law. Our government must at all times obey the law and only exercise its powers within that framework. While it is happening after the fact, this challenge is a way of ensuring that that was done, an important check and balance. If it succeeds, there's no practical relief that can be granted (except to those actually convicted of breaking lockdown, who would have their convictions reversed and fines repaid). But we would still benefit from seeing better laws and processes in future. And if it fails, we get reassurance, which is worth something in itself.

So far, some of what the government has argued - that its orders were just "advice" - has been the sort of thing you expect to see on a Tui billboard. But the actual key point I think is going to be whether the Health Act actually allowed what was ordered. And on that front, the passage of the COVID-19 Public Health Response Act suggests the government doesn't really believe that it did. But I guess we'll find out in three days - or however long it takes the court to make a considered decision.

The blue wall of silence

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

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

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

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

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

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

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

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

The IGIS annual report: Dead letters and secret law

The Inspector-General of Intelligence and Security released their annual report today, and I've been busy reading through it. In amongst the usual review of what they've been doing all year, there's a few interesting bits. For example, a discussion on "agency retention and disposal of information", which points out that the clause of the Intelligence and Security Act which requires the destruction of "irrelevant" information is basicly a dead letter:

The application of s103 is more problematic, because judging when information collected for intelligence purposes is no longer relevant is not straightforward. If s103 means that information may only be retained so long as it is necessary, rather than merely desirable, to keep it, that is still a difficult test to apply in practice. The practical effect of s103 remains under discussion between our office and the agencies.

Reading between the lines, it appears that the current test for keeping irrelevant information - that is, information about people of no interest to the spies whatsoever, with no justification for retantion - seems to be whether it is "desirable" (that is, whether the spies feel like it, or feel they may be able to use it, somehow, in the future, despite no apparent use today). Which is a long way from what we were told when the law was passed, and basicly renders the clause meaningless. And that in turn creates an incentive for over-collection and mass-storage, just in case information becomes useful in future.

There's worse. One of the key safeguards in the Act is that any collection of intelligence about a New Zealander requires a Type 1 warrant, with enhanced safeguards. But (as mentioned in the IGIS's earlier report on warrants) the spies have been playing language games over anticipated "incidental" collection of New Zealanders' communications under less stringent, foreign intelligence Type 2 warrants - and they now have a legal opinion from the Solicitor-General backing up their view that this is OK. Which is part of the legal process and the back and forth of oversight, but as the IGIS points out, government agencies are bound to follow such opinions, so where they are issued, they are for all practical purposes the law. Which then raises a significant issue of there being a body of effectively secret law, shielded by legal professional privilege, which may differ significantly from the public understanding. Even more disturbingly, the spy agencies have "come close" to trying to use legal privilege to prevent the Inspector-General from stating their position on the law - effectively trying to keep it completely secret from the public.

But in a democratic society, the very idea of "secret law" is a nonsense. The law is, by definition, public. The government has to tell you what it is. And they should do exactly that with their interpretations of the spy laws. Otherwise, there will always be public suspicion that they mean one thing to the public, and something very different to the spies. And that is simply not sustainable in a democracy.

(If someone has the appetite for an OIA shitfight, there's a past Ombudsman's opinion supporting openness for such internal interpretive advice, so it may be worth trying to request it.

UK spies are not above the law

In a major decision, the UK Supreme Court has ruled that that country's spies are not above the law:

Government security decisions will in future be open to challenge in the courts after judges ruled that a secretive intelligence tribunal could not be exempt from legal action.

By a 4-3 majority, supreme court justices declared that the extent of GCHQ’s powers to hack into internet services should be subject to judicial review.

The judgment, in effect integrating the investigatory powers tribunal (IPT) into the existing hierarchy of court appeals, was welcomed by human rights groups as a victory for the rule of law.

The UK parliament had put a purported ouster clause in the law forbidding judicial review, but the court found that “[i]t is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.” Given the powers in question and the implications for human rights, they read down the purported ouster clause and effectively voided it.

Of course, that still leaves the main problem that in order to review a decision, you need to know about it in the first place. Which highlights the importance of leaks in ensuring intelligence agencies behave lawfully. But now at least the decisions of the IPT will not be final, preventing it from colluding with or being captured by the spy agencies it is supposed to oversee.

(Meanwhile, in New Zealand, decisions by the Inspector-General of Intelligence and security cannot be challenged in court. But its is effectively a parallel jurisdiction, with a clause stating explicitly that IGIS looking at a case does not affect the jurisdiction of the courts or the police. Meaning that if you don't get justice from IGIS, you can always seek judicial review of a spy agency's decision directly).

Above the law

A big myth in this country is that we are all equal under the law. If someone commits a crime, they get prosecuted, regardless of who they are. We already know that that's a myth when it comes to race and to class - if you are poor and brown you are far more likely to be prosecuted than if you are rich and white, even when the underlying offence is exactly the same. But there's another group who also get special treatment: police officers:

An officer who sped through an 80km/h zone after a fleeing driver should have been charged, the police watchdog says.

The Independent Police Conduct Authority (IPCA) investigated the manner of driving by an officer after the pursuit was abandoned in Auckland in August 2017.

Its decision said the officer drove at more than 160km/h, despite the police helicopter being able to monitor the pursuit.

An employment investigation disciplined the officer for continuing the pursuit when the risk was too high.

The authority disagreed with a police decision and said a criminal investigation was warranted in the circumstances.

This is the second time this month this has happened, and it paints a picture of the police thinking they are above the law. But apart from being inherently wrong and outright corrupt, this refusal of the police to prosecute their own also incentivises illegal behaviour by police officers. And that is something we simply should not tolerate.

As for what to do about it, letting the IPCA bring prosecutions against police would be a good start. That way there's at least some chance of the public getting justice when the gang in blue violates the trust we place in them.

Shouldn't there be prosecutions?

Yesterday we learned that the Department of Corrections had agreed to compensate 15 women for illegal internal searches carried out at Auckland Region Women's Corrections Facility between 2006 and 2016. Corrections had been "suspecting" people of internally concealing contraband (none was ever found), locking them in solitary confinement in a "dry room" to allow material to pass, then proposing they "consent" to an internal search - clearly outlawed by the Corrections Act - in order to be released. There can be no consent of any kind in a prison, and the prisoners are being compensated for torture and degrading treatment, which is appropriate. But as the article points out, the searches "constitute[d] the offence of sexual violation under the Crimes Act". So shouldn't the staff who arranged and conducted them be prosecuted for that offence? Or are we happy for guards to sexually violate prisoners in our prisons?