National: American lickspittles

Yesterday we learned that America had murdered a New Zealand citizen in a drone strike in Yemen. Today, the government was closely quizzed about its views on this in Parliament. Steven Joyce (standing in for the PM) was very clear: he "neither supported nor condemned" the murder. Meanwhile, his backbenchers tittered and joked over the murder of a New Zealand citizen.

But Joyce went further: the government would not ask its "ally" about the reasons for or circumstances of the murder, and it was inappropriate to ask them to express an opinion on it. Whether the murder was ethical was "a matter for those countries which do carry out drone strikes... New Zealand is not one of them" [rush transcript; apologies for any errors].

This is absolutely appalling. The government has made it clear that our "allies" can murder us overseas, and it will not even make basic inquiries about it. In other words, they're perfectly OK with any of us being murdered, anywhere, by the US, on the basis of our political views.

They're nothing but American lickspittles. Throw them out and get a government which will protect the rights and lives of new Zealanders, rather than collaborate in their murder.

A $130 million gift to the rich

When the government announced that it was selling off Genesis Energy, it deliberately underpriced it, with a discounted price, generous bonus scheme, and huge dividend. And today that has had the expected result, with Genesis shares leaping almost 20% on their debut, an increase in value of $130 million. Rather than being retained by the government, that $130 million has gone straight into the pockets of the donors and cronies who bought into Genesis.

This is nothing but a corrupt, government-enabled theft by the rich of public wealth. It must be reversed, and the thieves and those who enabled them punished.

Meanwhile, in the next few months, we'll no doubt see some of that $130 million make its way back to the party which handed it out, in the form of political donations (and possibly with honours corruptly given in exchange). Its a nasty little circle which enables further corruption, and we need to stamp it out too, with public funding to drive corrupt wealth out of our political system.

New Fisk

A History of the First World War in 100 moments: A forgotten naval victory in which even Nature played a part

Against secret "justice" in NZ

Last year, in response to a series of court cases challenging its control orders or claiming compensation for human rights abuses by its intelligence services, the UK passed the Justice and Security Act 2013. The Act introduces a "Closed Material Procedure" into civil cases in the UK government, allowing the government to shield "sensitive" information from disclosure. Effectively, it means that if you sue the government for torturing you, it gets to hide all the evidence from you. Instead of your day in court, you get one-sided, secret "justice".

Now the Law Commission is considering introducing such a system in New Zealand:

The Law Commission has released A New Crown Civil Proceedings Act for New Zealand, its Issues Paper on reforming the Crown Proceedings Act 1950. The Issues Paper proposes a new statute to replace the Crown Proceedings Act 1950.

[...]

An important topic covered in the Issues Paper is the Crown’s ability to refuse to disclose certain information during litigation because of reasons of national security. The Commission is raising a number of options, including the possibility of court hearings in which material might be relied on by the Crown but not fully disclosed to the other side.

Sir Grant says “The Commission seeks views as to the appropriate way to balance the needs of justice that require all relevant material be revealed on the one hand, and on the other the legitimate national security concern that some things simply cannot be revealed.”

The issues paper is here; chapter 7 is the relevant section. While they present five options, ranging from repeal of s27 Crown Proceedings Act (which would give a consistent, though imperfect, regime under the Evidence Act), to full-on UK-style secret "justice", its clear that they're pushing for a solution more towards the latter end. At minimum they seem to favour an absolute, unreviewable ability for the crown to withhold documents on national security, defence, and international relations grounds - a privilege which overseas has been used to cover up government wrongdoing and deny justice to victims of torture.

We need to protect our courts from this toxic foreign invasion of secrecy, and prevent America's "war on terror" from fundamentally corrupting our justice system. Submissions on the issues paper are due by 1 August 2014; you can submit by email here.

Submission

Below is my draft submission on the Environmental Reporting Bill. I'm primarily interested in the freedom of information issues; I expect other groups to be focused on the reporting itself.

1. I support the aims of the Environmental Reporting Bill of giving us regular, independent reporting on the state of our environment. Such reporting is vital as a mechanism to assess the success of government policy, as well as to identifying potential environmental problems.
   
   
2. I have serious misgivings about some sections of the bill, particularly those relating to the selection of topics and the disclosure of information. I therefore ask that the bill be amended to address those concerns.
   
3. I do not wish to appear before the Committee.
   
   Selection of topics
   
   
4. Section 18 of the Bill provides for the Minister to specify the topics to be covered within synthesis and domain reports by Order in Council. Before prescribing such topics, the Minister must consult the Government Statistician and the Commissioner. This is a useful safeguard; however consultation is not the same as listening, and it still permits a perception that topics may be selected (or not selected) on political grounds. For example, a Minister under pressure from the dairy industry could select topics in such a way as to gloss over problems such as "dirty dairying". This perception undermines the purposes of the bill.
   
   
5. There are two obvious solutions. One is to have the topics specified in law, for example as a schedule to the Bill. A second would be to allow the Government Statistician and the Commissioner to jointly select topics. Either would remove the perception of political interference (or, in the case of a schedule, require that it be exercised so publicly as to dissuade politicians from doing so). On balance, I would prefer specification in law.
   
   Disclosure of information
   
   
6. Section 16 of the Bill allows the Secretary of MfE and the Government Statistician to veto the release of "information or analysis that will be, or has been, used in an environmental report". The veto power "applies despite any other enactment". From the departmental disclosure statement and the policy background to the Bill, the purpose of the veto power is to ensure that reporting is independent of the government of the day. However, the power goes well beyond that, restricting the right of access to information not just of government Ministers, but of the general public, and not just before a report is published, but also after.
   
   
7. The Official Information Act 1982 is "a constitutional statute of major importance".¹ It is a fundamental means of ensuring the public accountability of Ministers and public sector agencies. Overriding it requires extremely strong justification. Such justification does not appear to exist.
   
   
8. In assessing the justification for overriding the OIA, the comparable scheme for overriding the New Zealand Bill of Rights Act 1990 is helpful. In order to be justified, a limitation must serve an important public purpose, be rationally connected to that purpose, be proportionate to that purpose, and the least drastic means of achieving it.²
   
   
9. Ensuring the independence of environmental reporting is an important public purpose. However, restricting public access to information about such reports runs contrary to that purpose. Rather than being a threat to independence, transparency is a means of protecting it. The best way to ensure that Ministers do not interfere in the production of an independent report is for their communications to be subject to the OIA and to be released on request. The best way to ensure that the conclusions of a report are seen to be robust and independent is to pro-actively release all drafts and working material at the same time as the report, so the public can see that that is the case.
   
   
10. The veto power is also disproportionate. Quite apart from questions of scope or the fact it applies both before and after publication, the OIA already contains a legislative scheme allowing information to be withheld where release would cause identifiable harm and would not be outweighed by the public interest. That scheme was developed by a Royal Commission, has been the subject of thirty years of jurisprudence and interpretation by the Ombudsman, is well understood and has been repeatedly reviewed. In the most recent review, the Law Commission did not identify any need for new withholding grounds. To the extent that "information or analysis that will be, or has been, used in an environmental report" can already be withheld under the Act, the new veto power is unnecessary. To the extent that it cannot, it is unjustified.
    
    
11. As noted above, the veto power "applies despite any other enactment". This does not just override the OIA, but also the information-gathering powers of Officers of Parliament contained in the Public Audit Act 2001, Environment Act 1986, and Ombudsmen Act 1975, the commission of inquiry powers of the Waitangi Tribunal exercised under the Treaty of Waitangi Act 1975, the statutory powers of the judiciary, the privileges of Parliament, and indeed the protections of the New Zealand Bill of Rights Act 1990.³ The idea that such a broad-reaching power which trumps all other legislation (including fundamental constitutional Acts) is a least drastic means is simply absurd.
    
    
12. I recommend that section 16 be removed from the Bill. The existing structure of the OIA is perfectly capable of coping with environmental reporting information, and ensuring that it is covered would lend credibility to the independence of reporting.
    
    
13. Concerns about Ministerial interference are already credibly covered by section 14 of the Bill, requiring the Secretary of MfE and the Government Statistician to act independently in preparing reports.
    

¹ Philip Joseph, Constitutional and Administrative Law in New Zealand (2nd ed), Brookers (2001), p. 148.
² Moonen v Film and Literature Board of Review (No 2) [2002] 2 NZLR 754 (CA)
³ The full submission suggests several possible scenarios where such conflicts could emerge.

The cost of tax cheats

How much do corporate tax cheats cost? In the US, over US$180 billion a year:

US taxpayers would need to pay an average of $1,259 more a year to make up the federal and state taxes lost to corporations and individuals sheltering money in overseas tax havens, according to a report.

"Tax haven abusers benefit from America's markets, public infrastructure, educated workforce, security and rule of law - all supported in one way or another by tax dollars - but they avoid paying for these benefits," US Public Interest Research Group said in the report released today, the deadline for filing 2013 taxes.

"Instead, ordinary taxpayers end up picking up the tab, either in the form of higher taxes, cuts to public spending priorities, or increases to the federal debt," it said.

In total, the United States loses $150 billion in federal revenue and another $34 billion in state revenue annually because of money parked in tax havens, the Boston-based consumer advocacy group concluded.

Tax cheats are simply social parasites. Its time we ended the practice, shut down the tax havens and the loopholes they depend on, and made them pay their fair share.

Needlessly shitty

Parliament has been rejecting select committee submissions for not being written in English or Maori:

The Health Select Committee is rejecting 60 submissions against plain packaging legislation because they were made in neither English nor Maori.

[...]

Committee chairman, National MP Paul Hutchison, said 60 submissions were made in languages other than English or Maori.

Fairfax Media understands that most of all of the submissions were made by retailers who submitted against the legislation.

Hutchison said the submissions were rejected on the grounds that they used unparliamentary language. If the submissions were re-entered in English or Maori, they would be accepted as late submissions.

This seems needlessly shitty - not to mention undemocratic. Parliament is supposed to represent all New Zealanders, not just those who write their submissions in one of our official languages. And while it would have been extra hassle to gain translations, I would expect parliament of all places to have access to the resources to do so, and to bend over backwards to make it happen to enable people to have their say.

Fiji: Hoist by his own petard?

Last year Fijian dictator Voreqe Bainimarama tried to ban political parties in an effort to limit opposition in the lead-up to promised elections. A key part of the crackdown was a ban on political campaigning by anyone who wasn't a registered political party. Now, it looks like he's fallen foul of his own law:

The Fiji police say they are investigating the prime minister, Rear Admiral Frank Bainimarama, for being in breach of a regime decree and a law pertaining to the election promised for September.

If convicted for any of the breaches, he could face up to 10 years in jail.

The complaints were lodged by Mick Beddoes of the United Front for a Democratic Fiji.

The police say Rear Admiral Bainimarama is being investigated for campaigning without having his party registered, in contravention of the Political Parties Decree.

They say he is also being investigated for allegedly displaying Fiji's coat of arms on his campaign bus, in breach of the Coat of Arms of Fiji Act.

This being Fiji, of course, the complaints will probably be buried (they've buried worse from the regime). But wouldn't it be nice if Bainimarama was hoist by his own petard?

Touting for the donors

Judith Collins has been coming under renewed pressure in Parliament over her endorsement of (and secret meetings with Chinese customs officials on behalf of) her husband's company Oravida. Meanwhile, John Key says he's perfectly comfortable with it. No wonder - it turns out that he's touting for them too:

Prime Minister John Key says Oravida's scampi is "tasty" but the company's use of his photo in advertising does not constitute an endorsement of the product and does not breach any rules.

Oravida, which is owned by Stone Shi, a substantial National Party donor and close personal friend to Justice Minister Judith Collins, is using a picture of Mr Key in an ad in a Chinese magazine.

[...]

However, advice received by his office on Oravida's use of his picture in its advertising was, "it wasn't promoting or endorsing the product".

"It was in an ad, companies from time to time do do that, if it breaches the rules we tell them to stop doing that."

I guess Key can hardly sack one of his Ministers for something he is doing himself (and by refusing to tell them to stop, he's made it clear that Oravida has his implicit permission to use his image to implicitly endorse their product with the message "as eaten by the Prime Minister of NZ"). But it does raise some serious questions about just how close the links are between Oravida and the National Party - and exactly what they're getting for their money.

Why Labour will lose the election

[Image stolen from David Cunliffe]

Seriously? With the country facing unemployment, inequality, a housing crisis and climate change, and Labour is relentlessly talking about regulatory subsidies for the caravan-rental industry.

So much for "talking about the real issues".

The PCE on the Environmental Reporting Bill

Submissions on the Environmental Reporting Bill are due on Thursday, but the Parliamentary Commissioner for the Environment has released theirs, calling for major changes to the bill. The full submission is here, and the key areas of concern are the purpose, the criteria for selecting indicators, and the process for selecting topics (which opens the report to Ministerial manipulation). But they also raise serious concerns about section 16, the secrecy clause, highlighting the fact that it goes far beyond its stated purpose of preventing Ministerial interference and provides for perpetual secrecy of a wide range of information. One aspect they highlight is that this restricts the information-gathering powers of Officers of Parliament, and that this raises constitutional questions. And its worth noting that this isn't just the PCE, but also the Auditor-General, or the Ombudsman. These are not bodies which should be statutorily blinded in this fashion.

There's also an interesting footnote (11) about the process of "consultation" on this section:

During the drafting of the Bill, I was consulted on only one clause, namely the description of the role of the Parliamentary Commissioner’s role in Clause 17. In a meeting with the Minister for the Environment on 30 September, she asked if I wished to see drafts of environmental reports. I replied that I would not, (before publication) because any commentary I would make would be on the final publicly released reports. Unfortunately, this seems to have been misinterpreted as my agreement to the disclosure clause which I did not see until shortly before the Bill was introduced. Letter from James Palmer, Deputy Secretary – Sector Strategy, Ministry for the Environment, dated 4 February 2014

[Emphasis added]

That's a pretty shocking indictment on the way this clause was formulated. What are the odds that they didn't consult the Ombudsman about it either?

[Meanwhile, I should really write my submission...]

Update: The Ombudsman doesn't like the secrecy clause either...

New Fisk

Has Recep Tayyip Erdogan gone from model Middle East 'strongman' to tin-pot dictator?

Climate change: Action is affordable

Last month, the Intergovernmental Panel on Climate Change released the second part of its Fifth Assessment report, showing the dire future we faced if we did not act to reduce emissions. Over the weekend, the IPCC released the third part of the report, showing that such action would be perfectly affordable:

Catastrophic climate change can be averted without sacrificing living standards according to a UN report, which concludes that the transformation required to a world of clean energy is eminently affordable.

“It doesn’t cost the world to save the planet,” said economist Professor Ottmar Edenhofer, who led the Intergovernmental Panel on Climate Change (IPCC) team.

The cheapest and least risky route to dealing with global warming is to abandon all dirty fossil fuels in coming decades, the report found. Gas – including that from the global fracking boom – could be important during the transition, Edenhofer said, but only if it replaced coal burning.

[...]

Diverting hundred of billions of dollars from fossil fuels into renewable energy and cutting energy waste would shave just 0.06% off expected annual economic growth rates of 1.3%-3%, the IPCC report concluded.

(And that's ignoring the benefits of cutting emissions, for example in reduced deaths from air pollution).

To put that in context: it would mean that the average cost of adapting to climate change next year(calculated by comparing per-capita GDP with a growth rate of 1.5 vs 1.44%) is less than $30. Remember that next time Bill English stands up in Parliament threatening economic Armageddon if we try and do anything about it.

Of course, the costs will not be equally distributed. They will be substantially higher if you are a shareholder in Genesis Energy (which runs on fossil fuels), or in English's case, a dairy farmer. Which makes it clear what arguments against emissions reduction have always been about: protecting dirty established industries. But the price of protecting those industries and the wealth of those who have invested in them is to dump enormous costs on our children. Bill English, John Key, and numerous other government Ministers have kids; I really wonder how they can look them in the eye over this.

Places to go, people to be

Nothing from me today - I'm off to attend Hydra, Wellington's multiheaded larp convention.

Normal bloggage will resume Monday, or possibly Tuesday, depending on post-con caffeine consumption.

Descending to absurdity

The English campaign to frighten the Scots into voting for continued subjugation has descended to absurd levels:

George Robertson, the formerly UK defence secretary and Nato chief, has claimed Scottish independence would have a "cataclysmic" effect on European and global stability by undermining the UK on the world stage.

[...]

A breakup of the UK would weaken its global status and a yes vote would leave the UK government embroiled in a complex internal dispute about the terms of Scottish independence just as "solidity and cool nerves" were needed on the world stage. The "loudest cheers" after a yes vote would come from the west's enemies and other "forces of darkness".

"What could possibly justify giving the dictators, the persecutors, the oppressors, the annexers, the aggressors and the adventurers across the planet the biggest pre-Christmas present of their lives by tearing the United Kingdom apart?" Robertson said at the Brookings Institution on Monday.

Yes, if you vote for Scottish independence, you're supporting Kim Jong-il, Vladimir Putin, and Al Qaeda.

But it also makes it clear what this is really about for London: English prestige. And I'm not sure the Scots really care about that.

Unsurprising

So, Labour has rejected an offer of a formal pre-election coalition and joint campaign from the Greens. Sadly, I'm not surprised. In the past, they've shown a preference for going right rather than left, and Labour's second-raters (who will lose out under any proportional Cabinet) have a strong reason to oppose formal power-sharing. But on any realistic numbers, its unthinkable for a future Labour government not to include the Greens, and as Gordon Campbell points out, by refusing to define their relationship themselves, Labour has given National a free hand to do it for them - and in undoubtedly negative terms. That won't do the Greens any harm: every time National says "the Greens will make Labour ban mining" or "the Greens will make Labour stop irrigation", its free advertising for them. But its unlikely to be good for Labour.

The NSA spied on human rights groups

Speaking of Snowden, he gave evidence to the Council of Europe yesterday, during which he claimed that the NSA had been spying on human rights groups:

The US has spied on the staff of prominent human rights organisations, Edward Snowden has told the Council of Europe in Strasbourg, Europe's top human rights body.

Giving evidence via a videolink from Moscow, Snowden said the National Security Agency – for which he worked as a contractor – had deliberately snooped on bodies like Amnesty International and Human Rights Watch.

He told council members: "The NSA has specifically targeted either leaders or staff members in a number of civil and non-governmental organisations … including domestically within the borders of the United States." Snowden did not reveal which groups the NSA had bugged.

The assembly asked Snowden if the US spied on the "highly sensitive and confidential communications" of major rights bodies such as Amnesty and Human Rights Watch, as well as on similar smaller regional and national groups. He replied: "The answer is, without question, yes. Absolutely."

Because obviously, supporting human rights is terrorism and a threat to US national security. So much for the US being on the side of global human rights.

A victory for privacy in the EU

Since 2006, EU member states have been required to store their citizen's telecommunications and internet metadata - the source and destination of every email, phone call and text message sent or received - for up to two years under the Data Retention Directive. The direction, an explicit version of the NSA/GCHQ spying programs, exists to provide access to police and security agencies to fight crime and terrorism. And now, the European Court of Justice has overturned it:

The EU's top court has declared "invalid" an EU law requiring telecoms firms to store citizens' communications data for up to two years.

The EU Data Retention Directive was adopted in 2006. The European Court of Justice says it violates two basic rights - respect for private life and protection of personal data.

[...]

The ECJ ruling says the 2006 directive allows storage of data on a person's identity, the time of that person's communication, the place from which the communication took place and the frequency of that person's communications.

"By requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data," the court in Luxembourg ruled.

The full ruling is here. The core problem is one of proportionality - while law enforcement access to this data is justified in some cases, capturing and storing everyone's metadata is utterly disproportionate. The court also raised questions about access safeguards and the period of storage. But key to the case was a greater appreciation for the privacy impacts of metadata analysis and how much can be learned from it. And we have Edward Snowden to thank for that.

Is the Minister of Energy a muppet?

Last week Minister of Energy Simon Bridges opened up vast areas of New Zealand for oil exploration. But it came with a nasty surprise: the area includes our biggest forest park:

3 News can reveal the Government is opening up the Department of Conservation's (DOC) biggest forest park for oil and gas exploration.

That came as news even to the minister who signed it off, with Simon Bridges admitting today he had never heard of the park.

Victoria Forest Park is 200,000 hectares - DOC's biggest forest park, and is described by the department as "pristine" and "untouched".

For the Minister to approve this without even knowing it raises serious questions about his competence and that of his Ministry. Was he advised about it? If so, and he ignored it, then he's a total muppet. OTOH, if he wasn't, it suggests serious problems with MoBIE's economic development unit, which the Minister is ultimately responsible for. And either way, its crystal clear that National has no commitment whatsoever to conservation or our environment; if it can be bulldozed for profit, they'll sign off on it.

Member's Day

Today is a Member's Day, but like the last few it will be a boring one. The government is filibustering in an effort to prevent debate on Sue Moroney's Parental Leave and Employment Protection (Six Months' Paid Leave) Amendment Bill until after the election. So, expect a lot of pointless discussion on the private and local bills up today, and a long, dragged out committee stage for Paul Goldsmith's Electronic Transactions (Contract Formation) Amendment Bill.

On the plus side: the Sullivan Birth Certificate Bill will almost certainly pass today. It's a worthy bill which corrects one incident of a historical injustice; its just a shame that this was the only avenue available to do so.