Wednesday, March 21, 2018

Replacing the Privacy Act

Yesterday the government introduced a new Privacy Bill to the House. The bill is a wholesale replacement for the existing Privacy Act, which re-enacts existing law with a few tweaks. Most importantly, there are
restrictions on overseas use of information, mandatory reporting of data breaches, and new powers for the Privacy Commissioner to issue compliance notices. Unfortunately, it doesn't go far enough: prosecutions for breaches must still be brought by the (grossly underfunded) Director of Human Rights proceedings, and the penalties for ignoring the Privacy Commissioner's notices are derisory. There's also no move to correct the hole which renders journalists subject to the Act depending on whether they write books or articles - a nonsensical provision which significantly threatens media freedom. But all of this can be fixed by select committee, and hopefully it will be.

Meanwhile, its worth noting that this bill has been seven years in the making, stemming from a law Commission report way back in 2011. But despite agreeing the broad shape of the reforms back in 2014, the previous National government never bothered to enact them - protecting our privacy from abusive foreign corporations just not being a priority for them. The new government has made it a priority, and if the commencement date in the Bill - 1 July 2019 - is anything to go by, intends to enact it quickly.

Pointed criticism

How deceitful has NZDF been over Operation Burnham? Keigh Ng has put together a lovely data visualisation on the Herald, which challenges you to identify the villages and buildings from Hit and Run on commercially-sourced satellite photos. For most people, its a matter of ten or twenty seconds - a trivial amount of time compared to the 352 days NZDF took. And when you consider that they have rooms full of professional staff trained specifically in examining and analysing satellite imagery, it looks even worse. Almost as if they didn't want to do it, because that would mean admitting that their initial PR response was wrong...

When a government agency lies to the public like this, it needs to be held accountable. And when it lies to the public about murdering innocent people in our name, there is an even stronger case. We need an inquiry into NZDF's handling of this. But we also need a criminal investigation into their war crimes and apparent attempts to pervert the course of justice. As for its head, Lt General Tim Keating, who oversaw all this: he needs to be fired. Not allowed to retire quietly in three months as scheduled, but fired. But knowing the way NZDF operates, they'll probably recommend him for a knighthood.

Member's Day

Today is a Member's Day, and one of wall-to-wall first readings. First up is Simeon Brown's Psychoactive Substances (Increasing Penalty for Supply and Distribution) Amendment Bill, a piece of classic law-and-order bullshit about filling prisons. Second is Kieran McAnulty's Employment Relations (Triangular Employment) Amendment Bill, which would improve the rights of contract workers in the "gig economy". It's a bill which has been a long time coming and which seems well justified in the modern employment market. Next there's Melissa Lee's Accident Compensation (Recent Migrants and Returning New Zealanders) Amendment Bill, which plugs a small hole in ACC coverage (a whole which NZ First is trying to make bigger). And finally there's Barbara Kuriger's Oranga Tamariki (Parent’s and Guardian’s Responsibility) Amendment Bill, which is yet more law and order bullshit from the party of pedophobes. If the House moves quickly, it could make a start on Denise Lee's utterly misnamed Employment (Pay Equity and Equal Pay) Bill, which is designed to make equal pay claims more difficult.

Angie Warren-Clark's Crimes (Offence of Blasphemous Libel) Amendment Bill has been withdrawn, since now ther's a government bill.

There should be a ballot for three or four new bills tomorrow, depending on how many they get through today.

Tuesday, March 20, 2018

Repealing Blasphemous Libel

Last month, Angie Warren-Clark's Crimes (Offence of Blasphemous Libel) Amendment Bill was drawn from the ballot, and the bill is likely to have its second reading tomorrow. But that apparently isn't fast enough for Andrew little - he's included a provision to repeal blasphemous libel in the government's new Crimes Amendment Bill, which he introduced to the House yesterday:

New Zealand's archaic anti-blasphemy law is to be scrapped under the new government.

Justice Minister Andrew Little introduced legislation on Monday to repeal the decades-old law.

Blasphemous libel is listed in the Crimes Act and comes with a punishment of up to a year in prison but has not been prosecuted since 1922 - and even then was unsuccessful.

Labour sought to repeal the law when in opposition last year, but National blocked its attempt, saying the public should first have a say.

The government's Crimes Amendment Bill will be considered by MPs later this year and people will have a chance to make submissions when it goes before a select committee.

The repeal is part of an omnibus to repeal old and outdated laws, including the year-and-a-day rule for homicide. Using a government bill generally means faster progress, though it can't have a first reading until Thursday.

Its unclear yet whether Warren-Clark will pull her bill, or let it proceed in parallel as a spur to government action. But either way, its good to see politicians falling all over themselves to do this, after years of inaction.

Climate change: The necessary transition

If New Zealand is to meet its long-term emissions goal of net zero emissions by 2050, we need to drive an enormous technological shift towards a decarbonised economy. Banning pointless oil exploration is a necessary part of that on the production end. What about the consumption end? Writing in Stuff, Thomas Anderson and Jonathan Boston suggest an obvious measure: banning fossil fuelled cars:

Of such measures, perhaps the most effective would be a ban on the sale of all new or imported used vehicles with internal combustion engines. Such a ban could take effect, say, from 2030. Many developed and developing countries have already introduced or are seriously contemplating such bans (see the accompanying table). New Zealand should follow suit.

As it stands, our transport sector accounts for around 18 per cent of annual gross greenhouse gas emissions and over a third of carbon-dioxide emissions. Emissions from road vehicles make up over 90 per cent of our total transport emissions. Hence, a ban on the sale of new petrol or diesel vehicles would, in due course, considerably reduce our greenhouse gas emissions.

Moreover, New Zealand is ideally placed to accelerate the switch to a low-carbon transportation system. Given current technologies, this implies relying heavily on electric vehicles (EVs).

About 85 per cent of our stationary energy comes from renewable sources and this percentage continues to increase. Accordingly, EVs can be recharged in New Zealand with a very low carbon footprint.

Several other countries have already adopted such bans, with varying target dates, and its easy to see why: if you want to drive technological change, then putting a use-by date on outdated technology is an easy way to do it. That's what we did with analog TV and cellphone networks. Of course, cars are more expensive than those, but that's just a question of lead-in time. And on that front, twelve years before an import ban seems like plenty of time to adapt. It'll take longer for the tail of existing fossil-fuelled cars to shrink, and they'll never completely disappear - there will always be antiques and museum pieces, just like the old Model T Fords or 50's gas-guzzlers you still sometimes see on the roads. But it will push the shift we need to make, and with enough time for infrastructure networks to prepare and adapt. And by having a long lead time, it uses the usual upgrade cycle to our advantage, minimising the costs of the transition.

I don't expect the government to announce this sort of measure in a hurry - it needs serious policy work on the implementation details. But I'm hoping they'll announce it in a year or two. The longer they wait, the further back it pushes the necessary transition, and the more we pollute. And that's something we can't afford to do.

Digging her own hole

Yesterday, while accepting a petition from 45,000 people calling for an end to oil exploration, Prime Minister Jacinda Ardern said her government was "actively considering" the issue. Then, faced with criticism from National and its oil industry backers, she tried to roll back the comments. And so this morning on Morning Report she's "refining" them and making it clear that she was talking about the annual block offer of exploration permits.

Which, when you think about it, is how you end oil gradually: you cut off new exploration, and simply refuse to grant new mining permits for it (or rather, introduce a clause into the Crown Minerals Act requiring the impact on climate change and New Zealand's emissions to be the overriding factor in decision-making, which would have the same effect). Existing emissions gradually taper off as fields are exhausted, problem solved. At the same time, by trying to be all things to all people, Ardern is just digging her own hole. It's the same problem Labour has always had: a refusal to actually say where it stands. But when you're going to talk big about climate change being this generation's nuclear free moment, you need to follow that up by actually picking a fucking side. And you certainly don't wibble around talking about how to accommodate the fuckers who are literally trying to turn a profit by destroying the global climate and ruining the lives of future generations.

Fundamentally, climate change means it is us or the oil industry. We know whose side the Greens are on. But people are doubting Labour, and they only have themselves to blame for it.

Monday, March 19, 2018

Tories kill

For the past seven years, the Tories have been turning the screw on the NHS and demanding that it do more with less. Now it turns out that those cuts have consequences:
Health cuts have consequences.

In the first seven weeks of 2018, over 10,000 (12.4 per cent) more people died in England and Wales than was usual for the time of year. No official explanation from government health officials for this sharp rise in mortality has been forthcoming.

It became crystal clear in early 2018 that the health and social care system was not coping with the demands being placed upon it. On 2 January, in an unprecedented step by the NHS, thousands of non-urgent operations were cancelled. Many hospitals were already at, or beyond, their safe working levels, even though the weather was warmer than normal so any surge in demand was not due to unusually cold conditions. Another suggestion has been that the main reason for there being so much demand was a rise in influenza.

Our analysis of the first available data finds that flu only accounted for a very small part of the overall rise in mortality in early 2018. The past five years have been extremely challenging in terms of health outcomes and what is happening in 2018 is likely to be a continuation of many of these challenges. For instance, year-on-year spending on health and social care has increased at a much slower rate than in previous years.

Improvements in life expectancy have slowed down significantly, while infant mortality has risen. There's a 30 year difference in life expectancy between the UK's poorest and most affluent areas. And this all began with the latest round of austerity. In other words, those 10,000 dead - this year - can be directly attributed to cuts. And the politicians who advocated for them, oversaw them, and voted them through should all be charged with murder.

Holding the government to account

Over the weekend, the Greens announced they would be turning their primary questions in Question Time over to the National Party:

The Green Party has today announced that, from this week, most of its allocation of questions for Question Time will be handed over to the Leader of the Opposition to use, in order to limit the prevalence of “patsy questions” in Parliament and to strengthen the ability of Parliament to hold the Government of the day to account.

The only exception is if the Green Party wishes to use a question to hold the Government to account on a particular issue, consistent with the party’s Confidence and Supply agreement with Labour, which acknowledges the ability for the parties to agree to disagree on certain issues.

Good. The purpose of Question Time is not for the government to praise itself or attack the opposition through patsy questions, but to hold the government to account. And that's a necessary task, whether you like the current government or not. Governments which are not held to account get lazy and incompetent, which is bad for everybody.

While National won't be asking the sorts of questions the Greens would ask, and will ignore establishment issues, they will at least be approaching things from the outside and a position as a critic - which is something the Greens simply cannot do any more as a support party with Ministers outside Cabinet.

The value of metaOIA's

Radio New Zealand has another story of OIA abusethis morning, this time from the Auckland Council:

Auckland Council senior executives stalled the release of a major report, for political convenience in a possible breach of official information law.

The study on the impact of moving the imported car trade away from Auckland was withheld from RNZ by the council for five months, and released only after intervention by the Ombudsman's office.

Email exchanges released by the council to RNZ include a discussion on how the report could be withheld to allow the council to better "manage" its release.

Another executive observed that it "might not be useful" having the report in the public domain during last year's general election campaign.

Almost all of the exchanges over how to handle RNZ's five-month long effort to get the report, include senior staff in the office of mayor Phil Goff.

Particularly telling is the way they concocted a plan for future release in response to the request, simply so they could refuse it. Which is a perfect example of bad faith and an abuse of power right there. The behaviour uncovered shows us how officials game the system, and why we need criminal penalties for doing so. Because without such penalties, there's simply no incentive to obey the law.

All of this information was uncovered by a metaOIA - a request for information about the processing of a request. Officials are required by the Public Records Act to document their decisions, and those records and the inevitable emails around them can be requested. Such requests have become an increasingly useful tool over the past few years for exposing poor OIA practice and naming and shaming abusive officials (here's another example). Officials who make poor or contentious decisions should expect to have those decisions scrutinised - not just by the Ombudsman, but by the public.

Friday, March 16, 2018

New Fisk

Al Jazeera did a hard-hitting investigation into US and Israeli lobbying – so why won't they air it?

MBIE conspires with spies

The State Services Commissioner has just appointed former Deputy SSC Doug Martin to investigate Southern Respones use of Thompson & Clark Investigations to spy on earthquake victims. Meanwhile, it emerges that despite being banned from hiring them, MBIE has an unhealthily cosy relationship with TCIL, and for some reason routinely gets sent intel on anti-mining groups and protests:

Documents obtained under the Official Information Act show a close relationship between Thompson and Clark and MBIE going back five years.

"When you read these emails, it's amazing how friendly it all is. 'Let's go for a beer. Let's go for a coffee.' There's discussion of skiing together," Mr Norman said.

In 2015, Thompson and Clark began supplying MBIE with weekly intelligence reports it was pulling together for the oil and gas industry on protest groups.

Thompson and Clark then started using MBIE to drum up more work with foreign oil and mining companies.

Which is guess was the payoff for all the work they were doing: being sent customers. But none of this is ethical,and it all falls well below the standards we expect from a government agency. The SSC inquiry will apparently have discretion on whether to include MBIE's use of TCIL in their terms of reference; hopefully they will. Otherwise, it will effectively be saying that the standards it seeks to apply to Southern Response don't apply to a core government department, which is simply nonsensical.

Ministerial briefings: Energy & resources

What's the Minister for Energy and Resources been up to? I submitted an OIA request for their weekly ministerial briefings. They responded by claiming they were "confidential advice" and refusing to release them. I complained to the Ombudsman, and the Minister has issued a partial release. But she is still withholding all briefings from December as "confidential", even though a quick glance at the released material makes it clear that much of it (e.g. lists of meetings, lists of briefings received, lists of mining permits approved) is not advice and is not covered by that section. So I guess its not just a matter of waiting for the Ombudsman to educate the Minister about the law and the requirement to assess everything line by line on its merits and weigh the interest in withholding against the public interest in release, rather than trying to pretend that there's a class-based exemption allowing Ministers to keep secret anything they've seen for three months.

Meanwhile, while we wait for that, here's the Minister's briefings for November 2017:

Again, its an interesting look at what's happening in the portfolio, but there's also some real news buried there, in that Oceana Gold has apparently applied to extend some of its existing exploration permits in the Coromandel to cover Schedule 4 land. I don't recall seeing anything about this in the media, and unfortunately the briefings which would presumably contain further information have been withheld. I guess that's what the Minister didn't want us to see then.

The flip side of new taxes

The government's Tax Working Group is currently considering a range of new taxes, including taxing capital gains, land, pollution or wealth. The mouthpieces of the rich are outraged of course, and trying to present it as an attack on ordinary kiwis savings (instead of their hoarded wealth), but there's a flip side as well: taxing these new things opens up space to other taxes such as GST:

GST could fall if the Tax Working Group recommends new environmental taxes, its chairman Sir Michael Cullen has suggested.

The working group is considering changes to the tax system that could apply after the 2020 election.

Although the group will consider a variety of possible new taxes, Cullen has maintained its focus will be on changing the balance of taxation rather than increasing it.

There could be a case for reducing GST if the working group recommended new resources taxes to improve people's environmental behaviour, he said.

Good - because GST is effectively a regressive tax, which falls far more heavily on the poor (who have to spend their money) than the rich (who don't). At the same time, you'd need a significant tax to be able to reduce GST noticeably. Treasury's Revenue Effect of Changes to Key Tax Rates, Bases and Thresholds for 2017/18 estimates that a 1% change in GST costs about $1.5 billion. So in order to reduce GST by 1%, you'd need something like a fully functioning carbon tax capturing all emissions sources at a rate of at least $25 a ton. Or an annual land tax of ~0.2%. The first would really just swap one consumption tax for another (though I guess as ~50% of emissions are exported as milk powder, kiwis would be better off). The second would be a double-whammy against inequality. And of course, there's always the option of doing both...

The first thing John Key did in government was rejig the tax system to benefit rich people like himself. Its long past time we rolled that back.

Thursday, March 15, 2018

Unlawful and unaccountable

The Independent Police Conduct Authority report on the police's use of a fake breath-testing checkpoint to collect the names and addresses of members of political group Exit International has been released, and it makes the expected finding that the checkpoint was an unlawful use of police power, and interfered with the right to freedom of movement. Oddly, though, it concludes that the police's subsequent visits to Exit International members - which the Privacy Commissioner considered to be an unlawful use of personal information - were justified as they were consistent with police policy. In other words, the IPCA thinks that it is just fine for the police to act on unlawfully obtained information.

And then we wonder why the police keep violating the law. The answer is right in front of us: because the IPCA consistently refuses to hold them to account for it.

Meanwhile, there's further disturbing information in the full report: the police didn't just spy on the meeting from outside and use a fake checkpoint to identify people - they also obtained a surveillance warrant to listen in on the meeting itself. That's right - they bugged a political meeting. The police are now directly intervening in politics.

The officers involved justified their subsequent actions on the basis that they believed attendees of the meeting were more likely to commit suicide afterwards. But suicide is not a crime, and has not been for over a century. The police were well outside their bounds here, and had moved from investigating and preventing crime to interfering in people's lives. And that's simply not acceptable.

There's no mention in the police's press release that the officers involved have been subjected to any disciplinary action whatsoever, despite abusing their powers and exposing the police to significant costs for BORA violations. Until individual police officers are held to account, this sort of abuse of power is going to continue.

Planning to fail

Two years ago, Environment Canterbury introduced Plan Change 5, which introduced restrictions on nutrient runoff and set ambitious targets for cleaning up the region's rivers. But it turns out that just like central government on climate change, they've set targets without any effective policies to reach them:

Massey University freshwater ecologist Mike Joy says Environment Canterbury's proposals to clean up Canterbury's rivers lack teeth and won't stop the ongoing decline.

Dr Joy's comments come in the wake of ECan's plan to make 92 per cent of all rivers in the region swimmable by 2030.

He was sceptical that ECan's approach would achieve the goals, particularly with its apparent reliance on farm environment plans.

"The plans are nothing if they're not adhered to and properly monitored. It's like saying having a crash plan will stop drivers from crashing."

Joy said the levels of nitrate allowed in ECan's plan would simply lead to more degradation.


ECan declined to give specific information as to how much meeting those targets will cost the ratepayers, and what specific projects it will undertake to ensure it meets the targets.

And he's right. Restrictions mean nothing unless they're monitored and enforced, and targets are just hot air if they're combined with allowable levels of pollution which will result in them not being met. While any improvement in Canterbury's water is welcome, this is just the council failing to do its job of protecting the rivers for everyone.

The scary thing is that even these weak, unmonitored restrictions are too much for farmers - Federated Farmers and a host of irrigators are challenging the new rules in court. And if they get their way, they'll get to keep on destroying Canterbury's rivers and turning them into toxic sewers for their private profit.

"Unlawful and unfair"

That's the view of the Privacy Commissioner on the police setting up a fake breath-testing checkpoint to collect the names and addresses of members of political group Exit International:

In June 2017, OPC completed their investigation and advised the parties of its final view. It found the collection of personal information at the checkpoint to be both unlawful and unfair. The way information was collected breached principle 4 of the Privacy Act 1993.

“Police used an unlawful checkpoint to take advantage of the public’s trust in them and collect information from people who were not legally required to provide it,” Mr Edwards said.

“The primary function of Police is to maintain the law and there is an expectation that they will follow the law and their own policies at all times. This is especially the case when they engage with members of the public or use their powers to investigate offences.”

Some complainants said the visits from Police made them feel uncertain about their ability to speak freely and anxious that more visits would follow.

“Police approached them after unlawfully collecting their information, and questioned them about a socially and politically sensitive subject. It is fair to say that the actions by the Police officers caused those complainants harm,” Mr Edwards said.

The police have said they will delete the information they collected, though whether they really have is an open question. The only way we'll know is if Exit International is exposed to further persecution in future.

Meanwhile there was also an Independent Police Conduct authority investigation into the police's actions and use of the information. Hopefully we'll be seeing the results of that soon.

Wednesday, March 14, 2018

The United States of torture

When he was running for election, Donald Trump said openly that he wanted to torture suspected terrorists as revenge for terrorist atrocities. Now, he wants to appoint a torturer as his new CIA director:

Donald Trump’s pick for head of the Central Intelligence Agency, Gina Haspel, reportedly oversaw a black site prison in Thailand where terrorism suspects were tortured. She briefly ran the prison in 2002, anonymous officials told the Associated Press.

If the US Senate confirms Haspel, she would be the first female director of the agency, but the historic significance of her nomination was immediately overshadowed by her reported link to the black site, where two suspected al-Qaida members were waterboarded.

“The fact that she’s been able to stay in the agency, rise in the agency and now is in line to be director should be deeply troubling,” Larry Siems, author of the Torture Report, a book analysing government documents relating to Bush-era torture released in 2014, told the Guardian.

Haspel also drafted a cable ordering the destruction of CIA interrogation videos in 2005.

Haspel should have been prosecuted and sacked for her crimes. Instead, she's been repeatedly promoted. And now, a torturer is going to be positioned to implement Trump's psychotic dream. And the price will be paid by the entire world - because if there's one thing we know about torture, its that it produces more terrorists.

So much for lese majeste in Spain

In 2007, two Catalans set fire to a life-sized portrait of Spain's monarch to protest a royal visit to their town. For this, they were charged with "insulting the monarchy" and sentenced to 15 months imprisonment - though this was later reduced to a 2,700 Euro fine. But the European Court of Human Rights has just ruled that they should never have been prosecuted:

The European Court of Human Rights said on Tuesday that Spain had wrongfully condemned two Catalans for publicly burning a photograph of the king and queen, saying that the act was justifiable political criticism.

In their unanimous ruling, the judges said they were “not convinced” that the burning “could reasonably be construed as incitement to hatred or violence.”


In its ruling, the court said that the photo burning “had not been a personal attack on the king of Spain geared to insulting and vilifying his person, but a denunciation of what the king represented as the head and the symbol of the state apparatus and the forces which, according to the applicants, had occupied Catalonia.”

And just like that, Spain's archaic lese majeste law is dust. Spanish courts are bound to obey the ECHR, and its effectively just ruled out any prosecution for political criticism. Hopefully this will lead to a review of the cases of those currently jailed (including rapper Valtonyc) and compensation for the victims of this unjust law.

Tuesday, March 13, 2018

NZDF admits they lied

In 2017, Nicky Hager and Jon Stephenson published Hit & Run, an investigation into an SAS raid in Afghanistan which suggested that NZDF troops had committed war crimes. NZDF's response was crystal clear: the entire book was wrong, and the SAS were in a completely different village than the one Hager and Stephenson suggested:

He said he is not aware of any other attacks on the other two villages that could have been confused with Operation Burnham. Lt Gen Keating insisted that “it is irrefutable that we operated in a different place” than what was described in Hit and Run.

And now, thanks to an Ombudsman's investigation, they've been forced to admit that they were lying:
The New Zealand Defence Force has admitted that the photographs of an Afghan village shown in the book Hit and Run – the site where six civilians were killed and 15 civilians seriously injured during an NZSAS raid – are indeed the same place where the SAS conducted a raid that night.


Now, a year later, the Ombudsman has ordered the Defence Force to release more information, including on the subject of whether the photos in the book were the same location where the NZSAS was operating that night (22 August 2010). The Defence Force has finally admitted that the “three photographs in the book are of Tirgiran Village”, the NZDF's name for the place where the SAS conducted the raid.

This looks like a deliberate attempt by NZDF to mislead the public about the location and actions of our troops. The only question is whether Lt Gen Keating did it knowingly, or whether he was passing on lies crafted by his subordinates. Either way, someone has lied to us, and they need to be fired. And even if it wasn't Keating himself, he bears command responsibility for that lie and fostering an environment where soldiers felt it was acceptable - so he needs to go as well.

More on ministerial briefings

A couple of weeks ago I blogged about weekly Ministerial briefings as a really good target for OIA requests. Since then there's been another release, from Climate Change Minister James Shaw. And as with the Conservation briefings released earlier, its a treasure-trove of what's happening in the portfolio and what direction the government is taking. Progress on getting the Zero Carbon Act out for consultation, significant actions by other countries, international meetings - the latter with significant redactions for "negotiations" whenever carbon trading seems to come up, because MFAT wants to get us back into international carbon markets. They're well worth reading, and may suggest followup requests if you're interested in climate change.

Several people have got in on requesting these through FYI (example), but there's also been some pushback from Labour Ministers trying to withhold everything as "confidential". I've had a similar response to one of my own requests. But such responses don't seem consistent with the Ombudsman's guidance, and hopefully I'll get a formal ruling on that to wave at uncooperative Ministers in future.

And again, given how informative these are, they seem like a prime candidate for proactive release. Shouldn't the Minister for Open Government be doing something about that...?