Can the courts save Samoa?

On Monday, Samoa's Supreme Court attempted to end the country's ongoing constitutional crisis, ordering parliament to sit within seven days so a government could be elected. The order was backed by an explicit threats that obstruction would be treated as contempt of court and result in the court recognising the FAST Party's outdoor swearing-in ceremony as legal, effectively making them the government. Last night, "caretaker" Prime Minister Tuila'epa Sa'ilele Malielegaoi gave his response: fuck the court:

The caretaker Prime Minister, Tuilaepa Dr. Sailele Malielegaoi, says he will defy court order to convene Parliament, despite the judiciary warning anyone who stood in the way of its ruling could face criminal penalties.

The announcement, made by Tuilaepa on Wednesday evening, also suggests that the nation's long power crisis is far from over as he continued to reject out of hand a decision from the court that the Parliament must convene so that the nation can proceed with the business of Govenment.

A defiant Tuilaepa warned the judiciary was overreaching its powers and seeking to limit his own, saying that one arm of Government should not "like Hitler" seek to assert its authority over another.

Tuilaepa has instead insisted that Parliament can only be "properly constituted" after petitions, by-elections, and the invoking (if necessary) of a requirement that a minimum of six women M.P.s be present in Parliament.

[The Court of Appeal has explicitly ruled that the latter is false, and noted in its most recent ruling that an insistence that all members be present "would allow a minority to prevent meetings of the Assembly". But then, from the HRPP's perspective, that's the whole point, because the moment the Assembly meets, they get voted out and their power and salaries and perks end].

So what happens next? It seems that unless Tuilaepa changes his mind, or the head of state and clerk of parliament simply ignore him and obey the court's order (they are after all the people whose presence is required), there will be an explicit confrontation. The police have so far signalled their obedience to the courts and the rule of law, but its unclear whether that will actually extend to physically dragging Tuilaepa and his recalcitrant ministers from their offices and to jail for contempt. But the HRPP seems to be doing everything possible to back themselves into a corner and force that outcome.

Member's Day

Today is a Member's Day, though it looks to be a boring one again. First up is the third reading of Anahila Kanongata’a-Suisuiki's District Court (Protection of Judgment Debtors with Disabilities) Amendment Bill, which should pass this afternoon. Next is more of the committee stage of Louise Upston's Rights for Victims of Insane Offenders Bill, which was interrupted last member's day for Nick Smith's swansong. If they get through that, then its back to Terisa Ngobi's Holidays (Parent-Teacher Interview Leave) Amendment Bill, and maybe making a start on Erica Stanford's Crimes (Robbery) Amendment Bill. If the latter happens, there will be a ballot tomorrow.

Climate Change: WTF Labour?

Two months ago the International Energy Agency sent a clear message: if we want to have even a 50% chance of avoiding dangerous levels of climate change and making much of the earth uninhabitable, there can be no new fossil fuel development. No new coal. No new oil. No exploitation or development of gas. So naturally, the Labour government is handing out new permits to explore for gas in Taranaki:

Six months after a climate emergency was declared, the government has granted two new fossil fuel exploration permits – a move that energy experts say is at odds with the global goal to limit global warming to 1.5C.

[...]

The Ministry of Business, Innovation and Employment today announced that two New Zealand-owned companies – Greymouth Gas Turangi and Riverside Energy – would be allowed to explore two separate areas in Taranaki, in the hopes of finding oil and gas. The permits allow this work to begin today and will last for 10 years.

The permits resulted from applications made in 2019.

I guess that "nuclear-free moment" was gas-powered or something...

This is pretty obviously inconsistent with our climate change goals, and possibly ripe for a legal challenge if NZPAM failed to properly consider climate change impacts of keeping the gas tap open. But its also just a mistake. This industry needs to end. And with the way the policy ground is shifting, I would expect legislation to do so - guillotining exploration permits and sunsetting mining permits and associated resource consents - within five years. So Greymouth Gas and Riverside Energy have just got themselves some stranded assets. And given the two decades of clear warnings about what needs to happen, they deserve to lose any money they spend trying to develop them.

Another day, another police abuse of power

RNZ reports on some casual police brutality:

A police officer used excessive force when he put an intoxicated woman in a headlock and pulled her to the ground in Invercargill last year, the Independent Police Conduct Authority has found.

The authority said the officer was "retaliating in anger" against the woman, who had been drinking in a liquor ban area.

The full report is here. It finds that the officer used unprofessional language, and that the use of force was unjustified. Of particular concern is the fact that the officer wrenched his victim up off the ground by the handcuffs when her hands were cuffed behind her back - which is getting close to strappado, a torture technique. They also appear to have consistently lied to the IPCA in an effort to excuse their behaviour.

Naturally, they weren't charged, despite the force being serious and unjustified and causing injury. They will supposedly face an employment investigation, but of course that will all be done in secret and result in nothing. We all know the police bend over backwards to protect their bad apples, which is why the whole barrel is rotten.

The end of the legal road for the HRPP

Three months ago Samoa had an election, in which the people voted out the incumbent Human Rights Protection Party and voted in the opposition FAST Party. The HRPP ignored the results, attempted to appoint another MP, then when that was ruled illegal by the courts, simply refused to let Parliament meet, triggering a full-on constitutional crisis. There's been a lot of legal back-and-forth since then, as well as an election petition which has removed any doubt as to FAST's majority, but there have been two significant decisions in the last few days which mean that the HRPP has hit the end of the legal road. In the first, delivered on Friday, the Court of Appeal clarified an earlier ruling to make it clear that parliament could convene before all election petitions and by-elections were resolved. And in the second, delivered today, it ordered parliament to sit within seven days, and that any attempt to interfere with this would constitute contempt of court.

This is the end of the legal road for the HRPP. They've been trying to prevent parliament from meeting because on the current numbers, the "caretaker" Prime Minister Tuilaepa will be voted out and their regime will end (they've even been willing to do this at the cost of creating a budget crisis and government shutdown). But now there's an explicit order, applying to the head of state, the former Speaker, the Clerk, the Attorney-General, and all the other people who have worked for two months to frustrate democracy. And its backed not just by a threat to find people in contempt, but an explicit threat that the court will decide that FAST's swearing-in ceremony was valid and lawful and that they are therefore the legal government if those people don't do their jobs, let parliament meet, and allow them to be sworn in properly ASAP. There seems to be nowhere for the HRPP to hide anymore: they either obey the court, or become criminals. The worry is that, even with that threat, its unclear which option they will choose.

Bring fertiliser into the ETS

Nitrous Oxide is a potent greenhouse gas, 265 times worse per ton than carbon dioxide. Its also long-lived, with a half-life of 121 years in the atmosphere. New Zealand emitted 8.36 million tons CO2-equivalent of it in 2019, almost 10% of our total emissions. And yet, we're doing nothing to limit that. Why not? Because its emitted by farmers, of course.

1.5 million tons CO2-equivalent of those emissions is caused by farmers' (over)use of fertiliser. Stuff's Olivia Wannan points out that we have an easy way to control this: bring it into the ETS:

In its new report, the Climate Change Commission noted fertilisers could be charged the same levy that is already put on every litre of petrol. By pricing fertiliser under the Emissions Trading Scheme (ETS), the country could start making in-roads on the greenhouse gas now.

However, the Government took this option off the table in its deal with the agricultural industry – a 2019 partnership called He Waka Eke Noa, set up to solve the thorny problem of how to measure and price greenhouse gases from sheep and cows.

That solution won’t take effect until 2025, which will give the country just 25 years to get nitrous oxide to net zero.

Which isn't good enough. This is the lowest-hanging of low-hanging fruit, and sticking a carbon price on it would incentivise farmers to use less. And it makes perfect sense to do it at the importer/producer level (as is done for oil, coal, and everything else), not least because its far easier to audit two fertiliser companies to ensure they're not cheating than thousands of farmers. As for how much it would cost, at the current carbon price of $43.35 a ton, we're talking an extra ~$31.60 per ton of fertiliser. According to this article, urea sells for $1290 a ton, so we're talking a roughly 2.5% increase - less than the extra they'll be paying on a new, dirty ute. And of course that cost can be completely avoided just by using less.

Our refusal to bring fertiliser into the ETS is effectively a $65 million a year subsidy to farmers, ot encourage them to pollute not just the global atmosphere, but also our rivers and streams (which is where the nitrogen ends up). Its also a subsidy for dead babies, bowel cancer, and poisoned drinking water. We wouldn't accept it if the government subsidised tobacco companies to cause cancer - but that's effectively what they're doing with farmers. Pretty obviously, I think that needs to stop. Farmers need to pay the full cost of their pollution, as well as facing environmental controls to prevent them from poisoning our waterways. And if the government refuses to do that, we need to get a government who will.

Spy cameras literally are

The Inspector-General of Intelligence and Security (IGIS) has released a report today on the SIS's use of closed circuit television. The report beings with the scary revelation that those spy cameras in our cities are literally just that:

As part of this review, I examined a particular example of the Service’s access to a CCTV network (the CCTV network) which has been provided to the Service by the network’s operator (the CCTV network provider). These cameras cover most of a New Zealand city centre. The Service has round-the-clock access to the CCTV network, which is accessed from a secure room within the Service’s premises.

It is unclear if this is the only system the SIS has access to, or whether it is one of many. As for how it obtained access, it was apparently under an MOU with the network's operator. This "agreement" (if there can ever be a valid agreement with a spy agency, given the power imbalances involved) was of course classified, the owner of the system was not allowed to retain a copy, and only three people there even knew about it. Which, given that the operator is almost certainly a local authority (and lets be honest, its almost certainly the Wellington City Council, based on where the spies are and who has cameras), this raises obvious questions of democratic legitimacy and consent. These are of course not considered by IGIS. But the IGIS does raise serious questions about the SIS's legal basis for access, and recommend they seek the advice of Crown Law on it.

There's other problems. The SIS's policy for use of the system is deficient, and downright wrong on expectations of privacy in public spaces (the "reasonable expectation of privacy" standard means that actually following someone's movements on camera for any prolonged period is a search, as is the use of zoom lenses. A search without a warrant or other legal authority is prima facie unreasonable, and a violation of the BORA right to be free from unreasonable search and seizure). Naturally, they never did a privacy impact assessment. And as usual, their record-keeping is a bit shit. The IGIS recommends that all of these problems be corrected. But despite all of that, they conclude that the SIS's use of this system is lawful, responsible, and proper.

But that's not good enough. When local authorities started putting cameras everywhere to manage traffic and ensure "public safety", they never suggested that they would be used by the SIS to spy on people. And if they had, I suspect public attitudes to these cameras would be very different. Its time for our local authorities (and other bodies such as NZTA) to come clean, and confess whether they allow the SIS to access their camera networks in this way. That would allow the people to judge whether it is acceptable, and hold them accountable if they feel it necessary. But I suspect that that prospect is precisely why the SIS has kept this secret for so long.

The economics of cleaning up Glenbrook

A couple of weeks ago I did a post on the economics of killing Huntly, essentially about how the government's internal carbon price of $150 / ton made a strong economic case for them to fund windfarms to put all coal and gas-fired power plants out of business. At the time, I did some thinking about the Glenbrook steel mill as well, and a new update on green steel production in Europe has prodded me into finally putting it in a post.

The Glenbrook steel mill is one of New Zealand's dirtiest emitters, producing over 1.6 million tons of CO2 a year. The cost to the government is even higher: weirdly, we subsidise it by 2.1 million tons a year. At the government's internal valuation, that's worth $315 million a year.

According to Bluescope Steel's 2020 annual report (p 66), the total value of their New Zealand assets - including Glenbrook, Pacific Steel (which processes some of Glenbrook's output), and the Waikato North Head ironsans mine - is $625 million. Its unclear if this is US or Australian dollars, but we're basicly in the ballpark of being able to buy the entire operation and shut it down for two years worth of subsidy. The mill employs 1400 people, so the effective carbon subsidy we are paying for these jobs is $225,000 per worker per year. We could buy it, kill it, pay everyone involved a quarter of a million dollars to find something else to do, and still be better off within four years. And because Glenbrook is one of the dirtiest steel plants in the world, producing over 2.5 tons of CO2 per ton of steel rather than the usual 2, the world would be better off even if we shut it down and moved to importing steel from overseas (so if BlueScope "threatens" to do so, we should be welcoming the move).

That's a pretty compelling case for shutting it down. But there's an alternative: modernising the plant to use hydrogen and electricity, rather than coal and natural gas. For a ballpark of the costs, the Swedish project is spending US$3 billion (~NZ$4.25 billion) to make a plant producing 5 million tons of clean steel a year. Glenbrook produces ~600,000 tons a year, so assuming the cost downscales (it won't, but its fine for a ballpark calculation), we could do this for around half a billion NZ dollars - or two years carbon subsidy. We'd also need a hydrogen production plant, and ~100MW of renewable generation to power it, but from the Huntly case, that's ~$300 million, or another years subsidy. So for a similar price to the kill price we could clean up the plant, keep the jobs, avoid social disruption, and make the global environment better off by helping to lead the way on clean steel production. And that seems like a pretty good deal to me. The problem is likely to be convincing BlueScope - but then, if they threaten to shut down in response to high carbon prices (which they are), offering cleanup funding in exchange for equity seems like an obvious move.

The government's hate speech proposals

Today the government released its proposals to criminalise hate speech. There's a full discussion document here, but the key change is to replace the current clause in the Human Rights Act with a wider one:

The law would change so that a person who intentionally incites, stirs up, maintains or normalises hatred against any specific group of people based on a characteristic listed in Proposal One, would break the law if they did so by being threatening, abusive or insulting, including by inciting violence

When I first read this in a news story this morning, I was worried by the presence of the word "insulting", because merely insulting people shouldn't be a criminal offence. But the first clause makes all the difference: this isn't about preventing offence, but about preventing hatred and social exclusion. As I noted when discussing the Human Rights Commission's initial report on the issue, laws against hate speech are about protecting people's right to participate in society and be themselves. Public insults and expressions of hatred can interfere with people's use of public space. If you can't go about your everyday business without being insulted and harassed, then that seems to be the sort of interference the law should protect against.

Exactly which characteristics will be protected is still up in the air, but it is going to be wider than the current grounds of "colour, race, or ethnic or national origins", and I'd expect it to at least include religion, sexual orientation, and gender identity. Religion is likely to be the most controversial of these: we don't want to re-establish blasphemous libel by the back door, or give a licence to religious fanatics to silence others (as they have attempted in the past). But I don't think it will be too difficult to craft appropriate legislation if the clear focus on the problem being inciting hatred and discrimination and preventing participation is maintained.

Also in the proposal: explicitly including gender expression and gender identity as prohibited grounds of discrimination in the Human Rights Act. The government already considers these to be covered by the ban on discrimination on the basis of sex, but given the rise in anti-trans bigotry, has now come round to the position that this needs to be stated explicitly. The protection is something we should all welcome, and should make it crystal clear that this bigotry is unacceptable.

No confidence without transparency

On Tuesday, RNZ published a major story about the police killing of Shargin Stephens, which suggested that the police had engaged in a sustained campaign of their harassment against their victim, then lied to the IPCA about it, as well as manipulating evidence of the killing. The allegations are serious and deserve a full investigation. Now the Coroner has banned all future coverage of the story. Why? We're not allowed to know:

[The Coroner] said the reasons for his decision were set out in a separate minute but a Ministry of Justice spokesperson said that document was covered by the prohibition order so could not be released.

So any investigation of this police killing, or any decision on whether there even is an investigation, will be held in secret, with no reasons given. If they wanted to give the impression of a system protecting itself and its agents from scrutiny and accountability, they couldn't have done a better job. The problem is that, as with other secret trials, the public has no reason whatsoever to place any confidence in the verdict, and if the Coroner refuses to investigate, or clears the police in secret, it will just look like a corrupt stitch-up, and the smell will never go away.

We all know the saying: "justice must not only be done, it must be seen to be done". Open justice isn't just about providing easy copy for the media; it is about ensuring public confidence in the outcome. Without transparency, there can be no confidence, and there will always be the suspicion that there was never any justice at all.

Climate Change: Killing coal locally

If we are to avoid dangerous levels of climate change and making huge chunks of the Earth uninhabitable, we need to end fossil fuel use as quickly as possible. The International Energy Agency has recommended an immediate end to fossil fuel development. An obvious way to do this is by national policy, but that doesn't seem to be happening. But a group in Nelson is trying to do it locally as well:

A group of concerned citizens is calling on Nelson City Council and Tasman District Council to work with central government and industry to end coal use in Nelson Tasman by 2025.

[...]

The group calls on Nelson City Council and Tasman District Council to work with central government and industry toward three goals:

1. Prohibit new resource consents for coal use or mining, effectively immediately.

2. End all existing consents for coal use or mining by 2025.

3. Ensure adequate monitoring of all current coal users according to the conditions of the relevant resource consent.

How would they do that? By amending the appropriate RMA planning documents to make mining and burning coal prohibited activities. Ending existing consents will be harder, and may require legislation from central government, but if there is any provision for consents to be reviewed, that may be able to be used. The third is of course something local authorities should be doing anyway; if they're not, they're not doing their jobs properly.

This strategy isn't something that should be limited to Nelson and Tasman, however. All regional councils regulate coal burning through their air quality plans, so all of them can be pressured to shut down pollution at source. Mining is controlled by district councils (and mostly rural ones at that), but they can be pressured to. So, if your local authority is currently reconsidering its plans, get together with friends, and start applying pressure.

We need to fix the ETS again

The Emissions Trading Scheme is one of the government's key tools for driving reduction of greenhouse gas emissions. By putting a price on carbon, businesses face an incentive to reduce emissions, either by cleaning up or shutting down. Or at least, that's the theory. In practice, exemptions, subsidies, persistent low carbon prices, and just the irrationality of our business leaders and their preference for complaining rather than investment prevents it from functioning properly. It has certainly got better since Labour's last round of fixes, which have seen carbon prices rise. But its still broken.

One of the ways it is broken is the "cost containment reserve". Basicly, if the carbon price gets "too high", the government floods the market, rewarding polluters for their failure to keep emissions within the cap by allowing them to pollute more. The justification for this is to prevent social damage from a sudden spike in carbon prices, and you can see that that might apply if current prices, say, tripled over a very short space of time. But the actual price they've set is a mere $50 a ton, barely higher than the current price of $43.50. Worse, based on the results of yesterday's quarterly ETS auction - which saw the government sell carbon at $41.70, over $5 a ton higher than it did in March - it might not be too long before that price is exceeded. If this trend continues, we can expect the cost containment reserve to be triggered in December.

Having this happen would blow the carbon budget. Having it happen in the first year of ETS auctions suggests that the system is (still) a joke, a pretence of action designed to continue to reward polluters.

In its recent advice to the government, the Climate Change Commission had some recommendations on this:

The NZ ETS cost containment reserve trigger price should be set well above expected market prices. An initial step up in value, to mitigate risks that it will be triggered and add to the NZU stockpile, should be followed by annual increases to give a trajectory that allows for prices of at least $140 in 2030.

The government needs to act on this immediately. An immediate increase to $75 or $100 a ton, with scheduled increases of $10 a year, will give space for the market to operate properly and breathing room to see where the price will land. Unfortunately, the government has tied its hands: s30GB(5)(a) says that the Minister can only recommend an increase in the trigger price if it has already been triggered. We should not have to wait for disaster to happen in order to prevent it. Instead, the government should follow the advice of the Commission, and legislate urgently to maintain the integrity of the ETS, and of our environment.

End parliamentary secrecy

The Herald last night revealed that a National MP appears to be a thief:

A National Party MP faced allegations of inappropriate spending of taxpayer money – allegations the MP is refusing to front on and which Parliamentary Service refuses to discuss under the cone of silence that protects MPs.

Sources inside the National Party have told NZME that a staff member of the MP flagged a concern in the last term of Parliament, alleging items of furniture were bought out of the MP's taxpayer funds but did not appear in the office.

The items of furniture are understood to include a television.

The allegation was that the items went to the MP's home rather than their office.

It is also understood the cost of a sofa the MP bought for the office at Parliament was also questioned, and the MP was told to return it.

(The Whanganui Chronicle has since outed the MP as Harete Hipango, who is not popular with her National colleagues. Which explains why they're shanking her through the media...)

It is entirely appropriate that we pay to outfit MPs' offices. It is not acceptable for MPs to abuse this to line their own pockets. But a key problem here seems to be secrecy: Parliamentary Services simply won't talk, and is not covered by the Official Information Act, so can't be forced to. And as we see here, that lack of transparency leads to a lack of accountability and an apparent abuse of public money.

There is an easy fix for this: make Parliament subject to the OIA. That's what they did in the UK, and the result was the exposure of abuse, followed by many of the abusers being driven from office. But maybe that's exactly what our politicians are afraid of?

Pardoned

Four years ago, the Spanish government jailed nine Catalan leaders for the "crime" of advocating peacefully for independence. Now, it has pardoned them:

Spain’s prime minister has called for a new “era of dialogue and understanding” as his Socialist-led government pardoned nine Catalan independence leaders for their roles in the illegal, failed push for regional secession four years ago that plunged the country into its gravest political crisis in decades.

[...]

The beneficiaries of the pardons are: the former regional vice-president, Oriol Junqueras; the former regional government spokesperson, Jordi Turull; the former Catalan foreign affairs minister, Raül Romeva; the former regional territorial minister, Josep Rull; the former employment minister, Dolors Bassa; the former regional interior minister, Joaquim Forn; the former speaker of the Catalan parliament, Carme Forcadell, and the two influential civil society leaders Jordi Sànchez and Jordi Cuixart.

All were found guilty of crimes including sedition and misuse of public funds and sentenced to terms of between nine and 13 years by Spain’s supreme court in October 2019. They were also banned from holding public office for periods matching their prison sentences.

But while the pardon will mean Spain's victims are released from jail, they will still be banned from office, so people will be banned from election for peacefully advocating their political views. The pardons can also be reversed if the victims "reoffend", which suggests that Spain's intention is for ongoing persecution, rather than an actual step forward. As for the recipients, Jordi Cuixart has said straight-out "we will persist". Spain is continuing judicial persecution in Catalonia, and this is so blatant that it has been condemned by the Council of Europe. If they want a new era of dialogue and understanding, then they need to offer more: a complete amnesty, compensation for their victims, and a referendum. And if they don't surrender the first two, their victims will get it from the ECHR instead.

Time to outlaw ecocide

We live in a time of historic ecological crisis, with the Earth on the verge of dangerous levels of anthropogenic climate change, threatening the ecology, food supplies, world peace, and the habitability of some of the most densely-populated parts of the planet. And while this is going on, some people are trying to actually make it worse for their own profit. Now, a group of laywers and diplomats are working to make that a crime in international law:

Legal experts from across the globe have drawn up a “historic” definition of ecocide, intended to be adopted by the international criminal court to prosecute the most egregious offences against the environment.

The draft law, unveiled on Tuesday, defines ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts”.

The Stop Ecocide Foundation initiative comes amid concerns that not enough is being done to tackle the climate and ecological crisis.

If adopted by the ICC’s members, it would become just the fifth offence the court prosecutes – alongside war crimes, crimes against humanity, genocide and the crime of aggression – and the first new international crime since the 1940s when Nazi leaders were prosecuted at the Nuremberg trials.

This is something New Zealand should support. The environment needs protecting, and those who have worked to destroy it need to be punished. And for grave crimes of ecocide, an international venue is appropriate where national governments refuse to act. As for the definition, "wanton acts committed with knowledge" would seem to cover most fossil fuel executives and those profiting from deforestation, which seems entirely appropriate.

But beyond supporting this as a change in international law, New Zealand should also take steps to criminalise it in domestic law as well. Ecocide is a crime even if the international community refuses to recognise it. And it is time we treated it as such.

A slight relaxation of secrecy

The government has introduced a new Crown Minerals (Decommissioning and Other Matters) Amendment Bill. The bill is one of the products of the 2019-20 consultation on the Crown Minerals Act, and mostly addresses the problem of forcing oil companies to clean up their own mess, but it makes a number of other minor changes as well. Sadly, it does not repeal National's corrupt Anadarko Amendment, which attempted to outlaw protests against Big Oil, though it does introduce an infringement regime, so protestors might just get a ticket rather than a criminal conviction (which is still obviously bullshit, but less onerous). But it does make a minor amendment to the Act's secrecy regime, by allowing MBIE to proactively publish permit holder records and reports collected under s90. which given the scheme of the secrecy clause - which includes the usual permission to disclose information in performance of a function under the Act - makes you wonder why information collected under s90 is still included in it. After all, if the chief executive can publish it online whenever that want, what possible justification could there be for shielding it from the OIA?

An attack on parliamentary privilege

Today the Speaker referred the High Court judgement in Staples v Freeman to the Privileges Committee. Its not surprising. The court in its decision finds that a speech by Winston Peters in Parliament was defamatory. That seems to violate s11 of the Parliamentary Privilege Act 2014, which prohibits the courts from questioning or establishing facts on the basis of proceedings in Parliament. While it notes that Peters is protected by parliamentary privilege, it claims that "those who republish these statements outside Parliament, including Mr Peters, are not protected". This seems to ignore s17 and s19 of the Act, which protect broadcasts and fair reporting of parliamentary proceedings. It then assigns damages against the defendant for Peters' speech and a subsequent rebroadcast by Campbell Live, on the basis that the speech was effectively incited by the defendant. Again, this seems to violate the protections of parliamentary privilege. The decision was made after an undefended hearing, so privilege was never argued, but you'd still expect the judge to be aware of and appropriately cautious of it.

Parliamentary privilege exists so MPs can do their jobs. Holding their sources liable for what MP's say in parliament (and for subsequent reporting of those proceedings) seems to pose a pretty direct threat to that. To point out the obvious, no-one is going to expose wrongdoing to an MP if the cost is being bankrupted for doing so. So Parliament is right to be concerned. It is unclear whether they can intervene and appeal this decision; if not, or if it is upheld by the courts, I expect them to legislate immediately to overturn it.

The problem of police dishonesty

RNZ has a major story this morning about the police killing of Shargin Stephens in Rotorua in 2016. The "Independent" Police Conduct Authority of course cleared police of any wrong-doing, and found police actions "reasonable" and the killing justified. The police are now using that finding to prevent a coronial inquest into their actions. But RNZ's investigation has found that the police lied to the IPCA to blacken their victims name and paint him as "uncooperative" with bail checks, while also hiding the past involvement of his killers in what appears to be a sustained campaign of harassment. The investigation also raises questions about edited tasercam footage, where significant moments just before the killing appear to have been deleted. These alone should justify an independent investigation.

The problem of course is that the police, who have been shown already to have lied, may just lie to that as well. Though unlike the derisory penalties for lying to the IPCA, lying to the Coroner is actually perjury, punishable by 7 year's jail.

But I think this is part of a bigger problem: a culture of reflexive dishonesty among police. They lie to the IPCA, they lie to the public, they lie to Parliament, to protect themselves and their "reputation", seeming to think public trust can be maintained by deceit. It has the opposite effect. And yet, they keep doing it. So maybe its time for another inquiry into police culture, aimed at stamping out this culture of dishonesty, so we can have a police force capable of performing its basic functions with integrity, rather than what seems to be little more than a gang with better uniforms.

Against the militarization of space

RocketLab is a cool company. Its right there in the title: "rocket". As someone who loves space exploration and the knowledge it brings, I love the fact that they're launching from New Zealand, and I love the fact that they're planning to send probes to the Moon and Venus (and now Mars) to learn more about those places. But like many kiwis, I'm also deeply uncomfortable with their work for the US military and the use of New Zealand to launch payloads which aren't just for technological research, but which are actively part of the US military intelligence system and part of its kill chain. Fortunately, the Greens are now speaking up for us, and pushing a members bill to ensure that New Zealand isn't used as a launchpad for weaponising space:

The Green Party has drafted a member's bill that would stop companies like Rocket Lab launching "military hardware" into space.

Green Party MP Teanau Tuiono​, the party’s security and intelligence spokesman, announced the proposed legisation and attended a protest outside Rocket Lab’s Auckland headquarters on Monday.

Tuiono said, in a statement, that New Zealand’s space industry should not be “used by military actors to launch weaponry”, and the existing Outer Space and High Altitude Activities Bill had “so many gaps and grey areas”.

“Foreign military powers are literally launching rockets through it ... Launches from Mahia have carried at least 13 payloads for US military or intelligence agencies.

“The Government has a responsibility to make sure technologies sent into orbit from New Zealand soil do not assist other countries' armies to wage war.”

The bill is here, and bans any launch of "military hardware", defined as "weapons, equipment, machinery, or any other thing intended for use for military purposes by any armed force, paramilitary force, police force, or militia". A lot hangs on that term "military purposes", but it would seem to obviously include communications and intelligence collection, not just weapons. Note that there's no exclusion for New Zealand; NZDF is treated the same as the CIA. Which is fair enough: space should be used for peaceful purposes for the benefit of all humanity, not as a military base. And while other countries have based plenty of military hardware in space already, we can refuse to be part of the problem, and encourage other countries to join us in that commitment.

Incompatible regimes

The Official Information Act is our core transparency legislation. But its only covers central government. Local authorities are covered by the parallel Local Government Official Information and Meetings Act 1987, which duplicates most of the OIA's provisions, and adds in some stuff about local authority meetings as well. Since the government has been talking about (but not doing) OIA reform, I asked the Department of Internal Affairs whether there'd been any advice on reforming LGOIMA. Their response is here (released docs are here. The short answer is "not really", but its still interesting.

First there's some advice on changes in the 2015 Statutes Amendment Bill, including a change to the Act's purpose clause from "provide for" to "increase progressively" (as used in the OIA). Interestingly, the advice claims that "increase progressively" includes and is stronger than "provide for". Which is interesting in light of the "provided for" language of some older secrecy clauses.

Second, there's the embarrassing incident of the Local Government Regulatory Systems Amendment Act 2019, which changed the defintiion of "working day" in LGOIMA to make it inconsistent with the OIA. Astonishingly, the Department did not bother to consult the Ombudsman about this, who learned of the changes after the fact and was not happy about it. You could see this as a problem with DIA - who on past evidence just don't seem to think about transparency very much at all - but its also symptomatic of a wider problem within the public service, where each agency works within its own little silo, and doesn't stop to think about whether they should be fiddling with quasi-constitutional legislation. One document on the upcoming Statutes Amendment Bill has been withheld, and I'm wondering if they're planning to fix this, or if there are other alignments they need to make.

Thirdly, as part of the above, Local Government Minister Nanaia Mahuta met with the Chief Ombudsman in July 2019 to discuss the issue. Also on her agenda was the Law Commission's 2012 recommendation to merge the OIA and LGOIMA, which Internal Affairs seemed keen to progress. While they did not provide any notes from the meeting, the cover letter for the request says "no decisions were made on these options and this work was not progressed". Which given that the Ministry of Justice had at the time just finished consulting on whether to have an OIA review and what shoudl be in it, suggests a huge missed opportunity for real reform.