Thursday, April 19, 2018



When extension becomes effective refusal

I've had a lot of bad OIA experiences, and my fair share of Ministers and officials playing games with extensions to delay access to documents until an issue is out of the media. However, I've never had anything as bad as this Canadian requester, who had an agency give itself an 80 year extension on an Access to Information Act request:

A federal institution has given itself what may be the longest-ever time extension to respond to a citizen's request under the Access to Information Act — at least 80 years, which will delay the delivery of documents to 2098 or beyond.

"I may get those records in my next lifetime," 70-year-old Michael Dagg, the requester and longtime user of the act, said in an interview.

Dagg asked Library and Archives Canada (LAC) for files from Project Anecdote, an RCMP investigation into money laundering and public corruption that was launched in May 1993.

No charges were ever laid in the massive probe, which concluded in 2003. The voluminous Mountie files were eventually turned over to the government archives.

"You will note the extensive list of responsive records … and we will need up to an 80-year minimum (bringing the due date to the year 2098)," LAC advised Dagg in writing last week, warning that consulting other departments would add more time.


This seems to be the longest AIA extension in Canadian history, and it effectively amounts to a refusal. There's good reason - the file is 780,000 pages, so there's a lot to go through and redact - and in New Zealand it is likely that it would simply be refused as requiring substantial collation and research. That at least would be honest; instead Library and Archives Canada is pretending that they're going to grant the request, while pretty obviously having no intention of doing so in practice - the files will be released when they would be required to be made public under public records law, and not before. Which means this "extension" is simply an official exercise in deceit.

Less than open II

Back in March, I received some OIA'd documents from Clare Curran, the Minister of Open Government. Among other things, they showed that SSC had presented her with an draft open government strategy in November. Naturally, it was kept secret. I was curious about this, so sent in a followup request seeking information about this strategy. Today I received the response. Despite at least four months having passed since it was given to the Minister, the strategy is still being kept secret, supposedly because it is under "active consideration" (as opposed to under a desk somewhere being ignored). One thing that is clear however is that SSC's proposal that the strategy be consulted on at the same time as the Open Government Partnership action plan was rejected - that consultation is currently underway, and there's no mention of the strategy at all.

SSC did release some pretty powerpoint slides, including one of "actions taking place in the open government system". Naturally, this includes something secret. But it also mentions under international actions the idea of "New Zealand taking a leadership role in the Open Government Partnership". Of course, to do that, we'd have to start by developing an action plan which actually displayed some ambition, rather than just being a grab-bag of unambitious business-as-usual policies. And they'd need to walk the talk on consultation, rather than treating it as a box to be ticked. Whether they're actually doing that is left as an exercise for the reader.

Wednesday, April 18, 2018



A convenient purge

At the moment the UK government is persecuting the "Windrush generation". People who legally migrated to the UK and have a legal right to remain are being thrown out of their jobs and threatened with deportation unless they can prove that fact. But it turns out that before they started this persecution, the UK government destroyed all the evidence that they were legal migrants:

Proof that could have spared members of the Windrush generation from the threat of deportation was destroyed by the Home Office under Theresa May, it has been revealed.

Thousands of landing cards – recording dates of arrival in the UK – were thrown away, despite staff warnings that it would be harder for Caribbean-born residents to establish their right to be in the UK.

The files were discarded in October 2010, when the current prime minister was home secretary, a former Home Office employee revealed.


Having destroyed that evidence, May then established a "hostile environment for illegal immigrants", requiring people to arbitrarily prove their residency in order to do pretty much anything. Naturally, this has provided cover for racists to discriminate against anyone who looks or sounds "foreign" because they might be an illegal immigrant. As for what it means in practice, here's a UK immigration lawyer's take on what would happen to Paddington Bear under May - and its not pretty.

While supposedly justified under data protection laws, retaining the information was obviously necessary, since people were regularly requesting it to prove their migration status. But I'm sure its just a complete coincidence that it was all destroyed right before a crackdown, and not part of a plan to engage in the mass deportation of people the Tories have always hated and think "don't belong" in the UK.

A good idea

In the wake of Tony Blair's illegal war in Iraq, the UK had been developing a constitutional convention which saw Parliament vote on waging war, and this had prevented the UK from bombing Syria in 2013. But over the weekend, Theresa May violated that convention, joining the US in bombing Syria. And now, UK Labour Leader Jeremy Corbyn is calling for legislation to prevent it from happening again:

Jeremy Corbyn has called for a war powers act that would stop Theresa May from launching bombing raids without first consulting MPs.

The Labour leader said the prime minister should have strived for parliamentary approval before instigating UK involvement in yesterday's air strikes on Syrian targets.

And he called for a proper debate in parliament on Monday, concluding with a vote on action in Syria.

[...]

The MP for Islington North, who also called for a war powers act in 2016, continued: "I think what we need in this country is something more robust like a war powers act so governments do get held to account by parliament for what they do in our name".


Its a good idea, both on principled and pragmatic grounds. Foreign military operations are exactly the sort of thing which should require democratic approval by elected representatives, to ensure that there is a mandate. And such a requirement would help deter a warmongering executive and allow the UK people to take back control of their foreign policy from America.

But its not just a good idea for the UK, but a good one for New Zealand. In 2012, Labour promoted a Defence (Overseas Deployments) Amendment Bill which would have required explicit parliamentary consent for any deployment of more than 20 people. They should make that formal government policy, and commit to letting Parliament vote before kiwi troops are sent anywhere. And if future governments don't like that, they can always make it a question of confidence, and stand or fall on the result.

Climate change: Making farmers pay

Yesterday the government announced its interim climate change committee - a group of experts to advise it on climate change policy. The group is intended to eventually become a permanent independent climate change commission once the government's Zero Carbon Act is passed, but they need advice now, so an interim body has been set up in the meantime. And their first order of business is working out how to make farmers pay for the pollution they cause:

A new climate change group has been immediately tasked with working out how New Zealand farmers can pay for their climate pollution.

And the highly controversial decision about whether and when the agricultural industry is charged for its greenhouse gases could fall close to the next election.

[...]

The commission won't be set up until May, and Shaw said that in the meantime work needed to get underway on two key issues – agriculture's inclusion in the Emissions Trading Scheme and the goal of moving to 100 per cent renewable electricity by 2035.

Any changes to the Emissions Trading Scheme will be finalised in late 2019, meaning if they are delayed they could be decided in the heat of the 2020 general election.


Agriculture is responsible for ~50% of our total greenhouse gas emissions, so working out how and when to bring it into the ETS and set it on a downward pathway is vital if we are to have any hope of reducing our emissions and doing our bit to reduce the damage caused by climate change. The current situation, where the rest of New Zealand effectively subsidises farmers to polluter, is neither fair nor effective, and provides farmers with no incentive at all to clean up their act. While any transition will need to take into account the technology and methods available to limit emissions, its important that we establish the principle of farmers paying their way, as well as providing an incentive to prevent further growth of their polluting industry. Neither the climate nor our rivers can afford more cows, and bringing farms into the ETS will help prevent that.

Naturally, the farmers are squealing at the prospect of being made to pay their own bills. We should resist that self-interested whining. We pay for our pollution now; they should too. Urban New Zealand should not be expected to support the polluting and environmentally destructive lifestyle of rural New Zealand.

Tuesday, April 17, 2018



National opposes oversight of our spies

Yesterday, the Inspector-General of Intelligence and security announced the creation of a civil society reference group to provide advice on her work programme. The group includes lawyers, intelligence policy experts, journalists and civil libertarians, and many have been strong critics of New Zealand's intelligence agencies in the past. Journalist Nicky Hager is the most prominent of these, but the group also includes Deborah Manning (who represented Ahmed Zaoui in his battle for freedom), journalist David Fisher, and Thomas Beagle of the NZ Council for Civil Liberties. Together, they'll help bring a more critical eye to the IGIS' work, and raise issues of concern which the IGIS may not have thought of. And if we want robust oversight of the spies to stop them getting out of control, that's a Good Thing.

Naturally, though, National is outraged at the thought that anyone who isn't part of the spy-club getting to have an opinion on spying. And its clear from Brownlee's press release that he doesn't actually want robust oversight at all. Instead, he wants an Inspector-General who meekly accepts whatever the spies tell them, and doesn't ask awkward questions - just like in the "good old days" before Zaoui. But as we say in the Zaoui case, that sort of chummy relationship does not serve the public, and allows the spies to get away with mayhem. And in a democracy committed to the rule of law, that simply isn't acceptable.

I am concerned about the reference group, but only insofar as it is used to silence critics. The rules around what they are and are not allowed to say will have to be closely examined. But I have confidence that if there is any attempt to silence them (e.g. by forcing them to get security clearances, making them subject to s78AA of the Crimes Act and unable to read Wikileaks for the rest of their lives), then they will simply pull the plug and resign.

New Fisk

The search for truth in the rubble of Douma - and one doctor’s doubts over the chemical attack

The cost of victory

Only a week ago, the government took a stand against climate change and banned offshore oil exploration - the first step on the long pathway to decarbonising New Zealand. But as the Herald notes, Russel Norman and Sara May Howell are still facing trial at the end of the month for protesting against the very activity the government has banned back in 2017:

Prosecution against two Greenpeace activists who were charged with jumping into the water in front of an oil exploration ship will go ahead despite the Government announcing a ban on offshore oil exploration last week.

Greenpeace executive director and former politician Russel Norman and volunteer Sara May Howell are set to stand trial in the Napier District Court at the end of this month for their roles in a deep-sea oil protest last year.

The pair allegedly jumped into the water in front of oil exploration ship Amazon Warrior, off the Wairarapa coast, forcing it to stop its seismic work on April 10.

They were both charged with interfering in the operation of the 125m ship and pleaded not guilty at a joint appearance last October.


It would obviously be inappropriate for Ministers to direct that the case be dropped. At the same time, its also obviously a pointless prosecution, a mean-spirited act of revenge against those who turned the tide of public opinion and pushed the government into banning this toxic industry (and in the process, probably laying off some MBIE staff). But then, that's exactly what you'd expect from a vindictive organisation which seems totally in thrall to the industry it is supposed to regulate (and their nasty little spies).

The prosecution then is the cost of victory. Hopefully it won't be too high for Norman and Howell. Though with them gearing up to mount a necessity defence against the overwhelming threat of climate change, and effectively putting MBIE and the previous government's policies on trial, they're going to impose some pretty serious political costs on the government too.

Meanwhile, the law they are being prosecuted under - National's "Anadarko amendment" - is still on the books. I'm quite surprised that the government hasn't taken the opportunity to repeal it in their Crown Minerals Amendment Bill. Though I guess that's something we can all demand when it gets to select committee.

Monday, April 16, 2018



New Fisk

Trump's 'mission accomplished' tweet may come back to haunt him as another battle looms around Damascus

This is just wrong

Imagine living somewhere for your entire life, and then being jailed as an overstayer pending deportation "back" to a foreign country. That's what's happening to Mark Middleton:

Mark Middleton was once a popular choice to become Whanganui's Member of Parliament ... now he is facing deportation.

The stepfather of murdered schoolgirl Karla Cardno has been ordered to leave New Zealand after overstaying for more than 30 years.

Middleton, who came to live in New Zealand with his British parents as a 4-year-old in 1962, said immigration officials stormed his workplace on Tuesday, accusing him of living in the country illegally.

He was arrested and put in a cell at a Wellington police station until Wednesday afternoon.


There's an obvious parallel with the UK's current persecution of the "windrush generation", who are being told they are illegal migrants despite having arrived in the UK legally and having a legal right to remain. Over there, the problem is poor government record-keeping and a guilty-until-proven-innocent attitude in immigration cases. Here, its a poorly-drafted transition clause in the Immigration Act 1987, which required pre-1974 migrants to have never left New Zealand (except to go to Australia) in order to have their residency survive the law change. Which when you're talking about people who came here as children and are likely unaware that they are not citizens, seems guaranteed to result in injustice. And oddly, that doesn't seem to have been a problem at the time, or subsequently - despite having supposedly ignored an immigration direction to normalise his status, Middleton was allowed to continue his life without being bothered, and was even able to run for Parliament in 1999 (something you'd think Immigration would notice if they were actually concerned about his citizenship status). Instead, it only seems to have become an issue now he's getting old and in line to be paid superannuation - or, in immigration-speak, become "high risk".

Middleton has lived here all his life. He is a kiwi in fact, if not in law. Deporting him is simply wrong. Charging him money for the status he is entitled to is simply wrong. The Minister should issue him with citizenship or permanent residency, and let him get on with his life.

Friday, April 13, 2018



Homophobia loses in Trinidad

The High Court of Trinidad and Tobago has struck down the country's colonial sodomy law:

A judge in Trinidad and Tobago has declared the nation’s laws banning sodomy and consensual homosexual acts are unconstitutional, a ruling that could potentially lead to the complete decriminalization of homosexuality.

Judge Devindra Rampersand of the High Court of Trinidad and Tobago ruled on Thursday that Sections 13 and 16 of the Sexual Offenses Act are unconstitutional as applied to acts between consenting adults.

The court will meet again in July to determine whether the sections of the law should be struck down in their entirety or just in part.

LGBTQ activist Jason Jones challenged the colonial-era sodomy law in February 2017 by suing the nation’s attorney general, claiming that the prohibitions on “buggery” and “acts of serious indecency” between two men violate his — and, by extension, other LGBTQ people’s — right to privacy and freedom of expression.


Ironicly, it was the T&T legislature's own homophobia which allowed this. They had successively rewritten the law to increase the penalty to 25 years imprisonment - an act which removed the law from the protection of a "savings clause" preventing judicial review of colonial laws, and placing it squarely under the jurisdiction of the courts.

There's still a long way to go. Trinidad and Tobago is still a homophobic society which permits discrimination and employment and has a legal ban on homosexuals entering the country. But hopefully this ruling is the first step towards making it a better place.

New Fisk

As Theresa May gears up for war in Syria, we should remember what hypocrites we are about chemical warfare in the Middle East

We should tell Trump to take a hike

Last month, New Zealand formally signed the successor to the TPPA, the Comprehensive and Progressive Trans-Pacific Partnership. The deal had few benefits for New Zealand, and the primary one seems to be MFAT negotiators not feeling left out, but it had one saving virtue: America wasn't involved. And that meant that it was merely a bit shit, rather than being actively toxic due to US IP bullshit. But now, having pulled out of the TPP and left the other countries to negotiate amongst themselves, Donald Trump wants back in:

US President Donald Trump told top administration officials Thursday to look at rejoining the Trans-Pacific Partnership, the multination trade agreement he pulled the United States out of shortly after taking office.

Rejoining the pact - now also known as the CPTPP - would be a major reversal as Trump escalates a trade conflict with China. The Pacific Rim trade deal was intended by the Obama administration as a way to counter China's influence, but Trump criticised the pact as a candidate and pulled the United States out of the pact in early 2017.

Trump gave the new orders to US Trade Representative Robert Lighthizer and National Economic Council Director Larry Kudlow during a meeting with lawmakers and governors on trade issues, according to two GOP senators in attendance.

Senator John Thune said that he and others at the table raised the point that "if you really want to get China's attention, one way to do it is start doing business with all the people they're doing business with in the region: their competitors."

Trump then told Lighthizer and Kudlow to "take a look at getting us back into that agreement, on our terms of course," Thune said. "He was very I would say bullish about that."


"On our terms" means taking the negotiated position (currently suspended) as a baseline, and then demanding even more regulatory subsidies for US businesses. Which means making the deal even worse for New Zealand (and presumably everybody else as well).

The good news is that the US's re-entry requires the unanimous consent of all CPTPP parties. We can - and should - tell Donald Trump to take a hike.

Thursday, April 12, 2018



Climate Change: The latest inventory

The annual inventory report [PDF] of New Zealand's greenhouse gas emissions has been released, showing a welcome small decrease in pollution in 2016:
NZEmissions2016

2016 was a good hydro year, so less coal and gas were burned. There were also fewer sheep. But its not all good news. The drop from last year was about 2.4%, but this was offset by a rise in forestry emissions as trees planted in the early 1990's were harvested. And that's going to become a bigger effect over the next decade: the cushion of forests we used to soak up carbon and reduce our net emissions are going to be cut down, meaning we will have nowhere to hide from our long-term failure to reduce gross emissions. Hence why the government is so keen to plant a billion trees: to buy us some time. The good news is that they seem to be willing to make the tough decisions required to decarbonise the economy and set us on a greener path. Hopefully that work won't be undone by a future National government desperate to curry favour with the provinces at the expense of drowning our cities.

A formal finding of deceit

The Chief Ombudsman released their decision on the release and withholding of information around Operation Burnham the other day. At the time, I focused on the surprising news that a foreign country was deciding who kiwi soldiers were allowed to shoot - something which now seems to be part of the formal inquiry. But there was also another surprise in the report: a formal finding that NZDF had lied to the New Zealand public. Here's what the Ombudsman had to say about the release of information about Operation Burnham's location:

[A] key plank of NZDF’s rebuttal of Hit & Run was that the authors were wrong about the location of the operation, and appeared ‘to have confused interviews, stories and anecdotes from locals’ from one operation with another operation. NZDF’s rebuttal suggested that there was no connection between the account of events in the book and the operation that did take place.

Having reviewed information about the location of the Operation, I formed the provisional opinion that the information NZDF had publicly released did not fully reflect the information NZDF held on this issue, particularly in relation to the photos of buildings in
Hit & Run. NZDF agreed to consider releasing some more information on this topic.

[Emphasis added]

Or to put it another way, they were telling the public that Hager and Stephenson were wrong, while they held and kept secret information showing that they were in fact right. No wonder the Chief of Defence Force resigned. This sort of systematic, calculated deceit is absolutely unacceptable in a public agency in a democratic state, and it makes you wonder whether NZDF thinks they are at war with us, their bosses. But while Lt General Keating fronted the briefings which deceived the public, other defence staff must have been involved in designing these lies. They need to be held to account for their actions too.

Climate change: Decarbonising New Zealand

Today the government has taken the first real step towards decarbonising the New Zealand economy, by banning all future offshore oil exploration:

The New Zealand government will issue no new exploration permits for offshore oil and gas fields in a historic move to support its commitment to action on climate change.

While some 22 existing offshore oil and gas exploration permits remain in place, with rights to explore and potentially develop any commercial discovery unaffected, the decision signals the endgame for decades of attempts to find major new oil and gas deposits outside the Taranaki Basin, where the offshore Maui, Kupe, Maari, Pohokura, and Tui fields are all producing oil and gas today.

"The coalition government is taking an important step to address climate change and create a clean, green and sustainable future for New Zealand," said Prime Minister Jacinda Ardern in a statement issued at 5am in coordination with other Ministers and environmental groups.


Good. Humanity is pushing up against the edge of its safe carbon budget, and we can't afford to burn even half the carbon we know about. Under those circumstances, looking for more carbon is both pointless, and creates pressure to destroy the planet for the profit of a few. This is an industry we need to wind down, phase out, and replace. Which means the second part of this will be to gradually start revoking existing permits, and close the pipeline so that any new discoveries will not be developed. The market does most of the latter part for us - bringing new oil and gas fields into production is hugely expensive, and most discoveries are uneconomic to develop, meaning they just get recorded as an asset inflating the value of fossil fuel companies. Systematically devaluing those assets is the way to force those companies out of business.

Naturally, the Mayor of New Plymouth is unhappy. Like the West Coast, his local economy is dependent on a destructive and irresponsible industry, and that industry has been told it is no longer welcome. Won't someone think of the jobs! But those jobs and that illusory prosperity are bought at the cost of destroying the planet, and the homes and livelihoods of other New Zealanders. That tornado in Taranaki, those cyclones we've been having this summer, the droughts we've had which have made life difficult for farmers - that's what New Plymouth's fossil economy costs us. And the blunt truth is that if the rest of us are to survive and prosper, that economy has to die. The quicker it does so, the better.

Wednesday, April 11, 2018



Finally

The government will hold an inquiry into Operation Burnham, the SAS revenge raid in Afghanistan in which six civilians were killed and 15 injured. But that's not all - according to the livestream, it will also be investigating prisoner transfers by NZDF, the truthfulness of NZDF's briefings to Ministers, and whether NZDF's foreign-written rules of engagement authorised assassinations. The latter is a new and unpleasant issue, and highlights the dangers of letting foreigners decide when and in what circumstances NZ soldiers are allowed to kill: we know that many of NZDF's allies (including the USA, UK and Australia) are not moral countries and their moral values around military action and assassination are deeply at odds with those of the New Zealand public (and with international law). Its not clear whether there's any allegation that NZDF soldiers have been involved in assassinations, but if they have, then they may have committed crimes under New Zealand and international law, for which they will need to be prosecuted. "Only following orders" is not an excuse we can accept from those who kill in our name.

Does Labour support social services or austerity?

Our country currently has decrepit schools, underpaid nurses, and hospitals with sewage in the walls. To fix this massive social and infrastructure deficit, the government needs to spend more money - which means eventually collecting more money. The new government's tax working group, which is looking at taxing the land, wealth and capital gains of the rich, is an obvious way of solving this problem, and there's public support for doing so. Instead, Labour seems to be forgoing this opportunity and suggesting that any changes will be "fiscally neutral":

Prime Minister Jacinda Ardern says it is "entirely plausible" that any tax changes stemming from the tax working group could be balanced by tax relief elsewhere.

In a video with Stuff political editor Tracy Watkins, Ardern not only repeated that there would be no tax changes in the first term of Government, any changes which came as a result of the tax working group could well be "neutral".

"We've ruled out any changes to, you know, significant new tax changes in this first term. It was a big issue during the election and it was one that we very openly worked through," Ardern said.

"We've said we'd set up a tax working group, we have, it'll report this term, but anything it suggests wouldn't take effect until a new term and people will have a chance to vote on it, but it could be entirely plausible that it could be fiscally neutral."


Because you can always rely on chickenshit Labour to ignore a golden opportunity to do the right thing. They're so scared of National criticising them - something that will happen regardless of what they do - that they are pre-emptively taking major policies off the table, and effectively pledging to continue right-wing austerity forever.

Labour needs to decide what it stands for: social services, or austerity. And if its the latter, then they might as well not be in government. All they'll really be standing for is a different bunch of arseholes getting the big salaries, while ordinary kiwis keep on getting fucked over.

Not acceptable

Democracy in New Zealand is predicated on the fundamental rule that the executive and its agencies are accountable to Parliament, and through them to the people of New Zealand. We expect public servants and heads of public agencies to cooperate fully with Parliamentary oversight and investigations, and not attempt to mislead them or refuse to provide evidence. But that's exactly what RNZ Chair Richard Griffin is doing over his communications with his Minister Clare Curran:

RNZ chairman Richard Griffin says he has no intention of handing over a voice message left on his mobile phone by Broadcasting Minister Clare Curran.

"No, I have no intention of handing it over, so I'm in breach of the select committee directive," he told the Herald.

He declined to comment further, saying a letter outlining the reasons why had been sent to the Economic Development, Science and Innovation Select Committee.


This simply is not acceptable. The information the committee has requested is official information, received and held in Griffin's official capacity as RNZ chair. By refusing to provide it, he is effectively saying that he does not work for Parliament, or the people of New Zealand. And if that's his attitude, then terminating his employment and getting his successor to provide the records seems appropriate.

(Meanwhile the voicemail has been the subject of numerous OIA requests as well, and there seems no real reason to refuse them. Its an official document sent and received in an official capacity in which there is no privacy interest. But given Griffin's attitude here, it is likely that he will try and unlawfully refuse them. All this will do is delay release until the Ombudsman has ordered it).

Spain is a tyranny

Charging peaceful protesters with "terrorism" is one of the hallmarks of tyranny. But that's exactly what Spain is now doing in Catalonia:

Spanish police have arrested the organiser of a Catalan separatist protest group on suspicion of terrorism after she blocked motorways and high-speed railway lines.

The woman, who has not been named, was detained in a dawn raid yesterday by the Civil Guard in the town of Viladecans, east of Barcelona.

It is the first time since the illegal Catalan independence vote last October that any separatist has been charged with terrorism, which carries a maximum sentence of 30 years in prison.


"Terrorism" is supposed to require a significant element of violence. Here it is being used against peaceful protesters. And as the Spanish judiciary is not independent, there's no real hope of a fair trial or the charges being thrown out as ridiculous. Instead, Catalans will have to rely on the European courts for justice.