Monday, February 20, 2017

The Dotcom extradition decision

The High Court has ruled that Kim Dotcom can be extradited to the USA. But not for copyright infringement. Instead, he'll be extradited for conspiracy and money laundering:

After five months of deliberation, Gilbert found that Dotcom remained eligible for extradition to the US - but not on copyright charges.

The judge found in favour of arguments put by Dotcom's legal team, led by Ron Mansfield, that there was no equivalent "copyright" crime in New Zealand that would activate the extradition treaty.

However, the ruling also saw Justice Gilbert finding in favour of the US argument that Dotcom - and his three co-accused - could be extradited because it was at essence a "fraud" case and there was such a crime in the extradition treaty.

Except that what the US is calling "fraud" relies fundamentally on the idea that Dotcom's copyright infringement was criminal (likewise, "money laundering" requires that the money being laundered be criminally obtained). So we have a situation where a man can't be extradited for one "offence", because its not illegal here, but can be extradited for subsidiary offences which depend on the illegality of the first. Which doesn't really make sense. He could never be charged with those things in New Zealand, so why are we extraditing on them?

And it raises an obvious question: if we can't extradite on copyright infringement, will we require the US to drop those charges before extradition? If not, then isn't what is forbidden in law effectively allowed in practice, provided a foreign state can find another charge to stick on the docket?

The judgement is being appealed, of course. So hopefully we'll get some more clarity on this. Meanwhile, given the US government's role as the enforcement arm of the copyright mafia, I think its time we revisited our extradition laws, to make it clear that we will not under any circumstances extradite for such pretend "crimes". If Hollywood thinks Dotcom cost them money, they can sue. But if its not an offence in New Zealand law, our courts shouldn't collude in allowing a foreign state to jail a New Zealand citizen resident.

Correction: Kim Dotcom is an NZ resident, not a citizen.

Unwarranted and unreasonable

Back in 2015, we learned that the police had demanded (and received) Nicky Hager's bank records from Westpac bank during their political investigation of an embarrassing anti-government leak. They had done this without a warrant, production order, or any statutory grounds at all.

Today, the Privacy Commissioner ruled that Westpac had breached Hager's privacy by complying with the police request:

Nicky Hager’s complaint against Westpac has been upheld by the Privacy Commissioner. The Privacy Commissioner found that Westpac had breached Mr Hager’s privacy by releasing his personal information to the Police without a warrant. This is part of the continuing fallout from the Police’s unlawful raid on Mr Hager’s home in 2014.


Under the Privacy Act, Westpac may release personal information if it reasonably believes it is necessary to assist the Police investigation. When releasing this information, the Police and Westpac asserted that this exception applied. However, the Police provided Westpac with no information to support the claim that this information was needed and Westpac did not ask for any. Westpac conducted no inquiry of its own.


Westpac tried to argue that its terms and conditions allowed it to release Mr Hager’s personal information. This relied on a different exception to the Privacy Act than the one asserted at the time of release.

The Privacy Commissioner rejected Westpac’s arguments. He found that a reasonable person would not have understood those terms to have authorised this release. He also rejected an argument that the Police investigation exception applied.

While the case was about Westpac, it affects a hell of a lot more. The police make thousands of warrantless requests for information a year to banks alone, and major companies - banks and phone providers among them - have cut secret deals with police to turn over your private personal information on request, no questions asked. The Privacy Commissioner has basicly just said that those deals are illegal. Absent actual evidence from police, companies can not rely on the law enforcement exception when providing data. The result is that companies will have to start demanding production orders. And that's a good thing - because police shouldn't just be able to get your private information just by "asking". As shown in this case, that simply invites them to abuse their power.

But the ruling isn't enough. The big problem with both warrantless "requests" and production orders is that they happen in total secrecy. Companies aren't required to report on them, and neither are police. This has to change. For companies, we've seen how annual transparency reports improve privacy outcomes by creating customer pressure against disclosure, and it would be a simple matter to legislate to require them to publish. As for the police, they're required to publish annual statistics on search and interception warrants and how effective they are as a way of providing oversight. Production orders should also be included in this. That way we'll at least be able to see whether this really is a vital investigative tool, or a giant fishing expedition.

As for Westpac, hopefully Hager will take them to the Human Rights Review Tribunal and extract damages for their abuse of his privacy. And doing so should hopefully encourage other companies to be more careful about complying with police requests in future.

This bill should not proceed

Over the past week the Maori Affairs select committee has been hearing submissions on the New Plymouth District Council (Waitara Lands) Bill. The bill is supposedly an attempt to heal the oozing sore of the theft and confiscation of land at Waitara, the nexus of the land wars. It does this by effectively legitimising and making permanent those confiscations by giving stolen land to leaseholders. Te Atiawa, the iwi the land was stolen from, initially supported the bill, but after opposition from its grassroots has now rejected it. So we have a bill which would ostensibly settle a Treaty grievance being opposed by the people it is purportedly settling with. In fact, the only people who benefit from this bill are the descendent of land thieves, who would get to keep what was stolen (as opposed to merely paying peppercorn rents for it).

Fuck that. Its not just wrong, its a constitutional outrage, a one-sided, unilaterally imposed "settlement" that the iwi don't want. Rather than healing a Treaty breach, it instead perpetuates it and creates a new one. This bill should not proceed. The select committee should dump it.

New Fisk

Donald Trump's abandonment of the two-state solution descended into dark comedy very quickly
How will we get over the Trump addiction?

Two ideas to get rid of electorate deals

Last week, the Greens announced they were standing aside for (spit) Greg O'Connor in Ohariu. Today, the Maori Party cut a deal with Mana to split the Maori seats. And sometime in the next six months we will no doubt see National cut a similar deal in Epsom to ensure David Seymour continues to receive a Parliamentary salary.

These deals are incentivised by the rules of MMP, as the one electorate rule magnifies the effect of certain seats by making full representation of smaller parties dependent on them - thus encouraging parties to either step aside to allow an ally to be represented, or gang up to prevent the representation of an enemy. Lots of (mostly older) voters hate them, seeing them as a perversion of democracy (apparently all parties are obligated to run in all seats or something, regardless of whether its in their interests or they can afford it or not). Their response is to remove the incentive by revoking the one-electorate rule. But this would have a negative effect on proportionality, by arbitarirly denying parties their full representation. Fortunately, there are other ways of doing it.

The first, and most obvious, is to completely remove the 5% threshold. Its an arbitrary limit, put in place by the big parties to limit competition, under the guise of "Keeping extremists out". Except New Zealand has no extremists, and in the historic case it is supposedly there to prevent - Nazi Germany - those extremists won 30% of the vote. The 5% threshold undermines proportionality for no good purpose. What it does do is incentivise electorate deals in order to sidestep it. So, remove the threshold, give every party its full allocation of seats according to the modified Sainte-Lague formula, and electorate deals (and indeed electorates) simply cease to be relevant. Problem solved.

Another solution is to introduce preferential voting in electorate seats. This is something we should be doing anyway to ensure that every electorate candidate has majority support, but it would have the bonus of removing any incentive for the sorts of deals we are seeing in Ohariu or the Maori seats, by removing "vote splitting" from the electoral calculus. Parties would be free to stand (and compete for the party vote) without fear that by doing so they might be advantaging or disadvantaging some other party. Instead, the preferences can flow where they may.

Either of these would remove, or strongly reduce the incentives for electorate deals. Either would be a far better change to our electorate system than removing the one-electorate rule, in that they would improve proportionality and/or return power to the voters rather than the parties. The question is whether the big parties will support them, rather than trying to distort the system to their own advantage. Sadly, given their response to the Law Commission review, I suspect it will be the latter.

Thursday, February 16, 2017

Drug-testing trigger-happy cops is a good idea

The police are now requiring every officer who fires a shot on duty to undergo mandatory drug and alcohol testing. Good. Its such an obvious safeguard against police misbehaviour that I'm surprised they didn't start doing it decades ago. In fact, its so obvious that even the Police Association agrees with it (though they're not happy with the method, and they're right - blood testing is invasive and requires serious probable cause; urine testing should be enough).

So naturally, Labour's Stuart Nash is opposing it:

Labour police spokesman Stuart Nash said the approach was "very heavy handed".

"It almost seems as if they don't trust the police to use good judgement.

Well no, we don't - not when they're killing people. That's simply not something we can take on trust - every time the police use lethal force against someone, they need to prove to the public that it was justified, otherwise we will take their toys away. We do this with drivers: drug and alcohol testing after car accidents is utterly routine, and rightly so. We damn well should do it when someone points a firearm at another human being. An MP who opposes this is basicly saying that the police should be allowed to kill with impunity, no questions asked. And if that's their view, I really don't want them anywhere near the levers of power.

Wednesday, February 15, 2017

Justice for Canada's stolen generations

Between 1965 and 1984, Canadian authorities stole thousands of First Nations children from their parents in an attempt to eradicate their culture. Today, the victims of that attempted genocide finally won the right to compensation:

After a bitter legal battle that has lasted nearly a decade, a Canadian judge has ruled that the government is liable for the harm inflicted on thousands of First Nations children who were forcibly removed from their families and adopted by non-indigenous families.

Between 1965 and 1984, around 16,000 indigenous children were fostered or put up for adoption in an episode which became known as the “Sixties Scoop”.

Ontario superior court justice Edward Belobaba’s ruling Tuesday found in favour of survivors of the operation and their families, who argued that the forced removal robbed the children of their cultural identity and caused emotional damage that has resonated for generations.

“There is … no dispute that great harm was done,” Belobaba wrote. “The ‘scooped’ children lost contact with their families. They lost their aboriginal language, culture and identity. Neither the children nor their foster or adoptive parents were given information about the children’s aboriginal heritage or about the various educational and other benefits that they were entitled to receive. The removed children vanished ‘scarcely without a trace’.”

The victims are aiming for C$1.3 billion in compensation. Hopefully they get it. But that's not enough. There's a name for "forcibly transferring the children of a group to another group in order to destroy it, in whole or in part": genocide. Canada is a party to the Convention on the Prevention and Punishment of the Crime of Genocide, and the surviving architects and footsoldiers of this policy need to be prosecuted for it.

Climate change: Ignoring the elephant in the room

Minister for Climate Change Paula Bennett is celebrating polluters being on the way to paying their full costs:

Emitters are now on their way to paying the full cost of their carbon emissions in New Zealand, says Climate Change Minister Paula Bennett.

“As part of our ongoing work programme to reduce domestic emissions we have started the three-year phase out of the one-for-two emissions trading scheme subsidy,” says Mrs Bennett.

“This subsidy allowed some businesses to pay one emissions unit for every two tonnes of pollution they emit. Last year the Government announced we are phasing the measure out over three years to give businesses time to plan and adjust.”

Which is better than nothing, as far as National's weak climate change policy goes. But it ignores the elephant in the room: that not all polluters are covered. In particular, farmers, our largest source of climate pollution, are completely exempted. Which means that their pollution is effectively subsidised by the rest of us, to the tune of over $700 million a year (39.6 MT x a current carbon price of $18).

When polluting farmers start paying their way, then the Minister can start talking about polluters paying their full costs.

A ludicrous law

Stuff, covering the select committee hearings into the Outer Space and High-altitude Activities Bill, has finally called attention to the violence it does to our freedom of expression:

New Zealand is one step closer to entering the space race, but a proposed new law to regulate rocket launches could spell a leap backward for freedom of information, opponents say.

A clause in the Outer Space and High-altitude Activities Bill would makes it an offence to take a photo or make any record of a space craft that crashes. Government approval would be needed to take photos or record what happened.

Head of Journalism at Massey University James Hollings said: "It's a completely ludicrous clause because what it means is, if some company screws up and is careless and drops something on a city, we're not allowed to talk about it. It's just silly."

I called attention to this "feature" of the law back when the consultation draft of the bill was released last year, and its much worse than Hollings suggests. This odious clause doesn't just prevent taking photos of rocket debris, but of anything in a debris recovery area. So, if a rocket (or just a US satellite) happens to fall nearby, and your house is part of the "debris recovery area", then you can go to jail if you take photos of yourself. Or your cat. You could even go to jail for making a video call. Which is simply absurd.

(At this stage I think its worth pointing out that debris recovery areas are likely to be large. The debris field for the Columbia disaster was 240 miles long. So people are going to be in these areas, and their rights are going to be infringed).

Rocket Lab says this clause is required to protect their intellectual property rights. That's bullshit. As I pointed out last year, we don't assign this level of legal protection to the government: it is not a crime as such merely to photograph things inside the heart of the Waihopai spy base (it may be a crime if you do so with intent to harm "national security", but the mere act of taking a photo is not in itself criminal). And that's the way it should be. There may be harms which can come from photographing rocket debris after an accident - but they need a tighter law than this. And protecting the intellectual property interests of a foreign company (or the "national security" interests of a hostile foreign power) is an insufficient justification for this level of infringement.

National gives up on energy efficiency II

Back in December the government released its draft New Zealand Energy Efficiency and Conservation Strategy 2017 - 2022 for consultation. The draft was an ambitionless document practically devoid of targets (and hence accountability). So how did it end up that way?

Today I received the background policy advice on the development of the NZEECS. It shows that the strategy was weak from the start, with an aversion to specifics on which the government might be held accountable. The scary thing is that it got even weaker during its development. Most notably, the version circulated for stakeholder consultation last year included a climate change objective that:

Activities promoted through this strategy contribute to New Zealand meeting its international commitments to reduce emissions while supporting economic growth.

Despite support from stakeholders, this vanished from the final draft. There is no record of why, but the obvious reason is National's strong tendency towards climate change denial.

Its not just climate change which was removed. From Cabinet documents the early versions proposed a range of actions on passenger transport and separating out the polluting and inefficient road freight transport system out for special action. None of this happened. Instead we got a business-as-usual electric vehicle target, no action on general car fuel efficiency, and nothing specific for freight. I guess the Road Transport Forum and Mainfreight are getting value for money for their donations.

What's disappointing is that it could have been so much better. The release includes a report prepared by MBIE on National energy efficiency policies: a global context, which examines policies is places like Japan, California, Germany, Finland, Norway, Italy, Iceland and Quebec. Its basicly a shopping list of all the stuff we could be doing, but aren't: higher road-user charges for dirty trucks, solar subsidies to promote distributed renewable generation, fuel diversification, and feed-in tariffs for wind. Instead, we're committed to electric vehicles because the Minister has one (sorry, two) and a vague business-as-usual target for industrial heat with no specific policies to bring it about. Heckuva job, National! That'll really help us quickly decarbonise the energy system to prevent climate change!

Tuesday, February 14, 2017

Judith Collins is to blame for this rape

When Judith Collins introduced double-bunking into New Zealand prisons, she was warned that it would lead to more rapes. She didn't care. The news today reports that a prisoner has been raped due to double-bunking - a rape made possible by the policy Collins introduced. I don't think that it was a desired outcome of the policy, but it was a likely one, and Collins has showed depraved indifference to it. And that makes her criminally culpable. She should be in the dock too.

This is just wrong

New Zealand has a housing crisis. Thousands of people are on waiting lists for state houses, forced to sleep in cars or put up at horrific expense by WINZ while they wait. Meanwhile, National is letting state houses lie empty because it wants to sell them:

Despite the housing shortage, more than 250 state houses have been sitting empty for over a year as Bill English tries to sell them, says Leader of the Opposition Andrew Little.

Housing New Zealand documents obtained under the Official Information Act show that there are nearly 2,500 empty state houses, more than 500 of which have been empty for over a year. Of those long-term vacant state houses, 254 are empty pending sale. Others are in need of repairs or upgrades.

“In the middle of a housing shortage, why on Earth is Bill English leaving state houses empty why he tries to sell them? We should be building houses, not leaving the ones we do have vacant.

Houses empty pending repair is one thing. But empty pending sale? It's not just waste, its conscious neglect of HNZC's function. But clearly National isn't interested in making sure every kiwi has a roof over their heads - otherwise they'd be building state houses, not selling them.

Australia reported to the ICC over refugees

Australia runs concentration camps on remote Pacific islands where refugees are systematically brutalised and tortured (and sometimes murdered by neglect) in order to discourage others from claiming refugee status. And now they've been formally reported to the International Criminal Court over it:

Australia’s offshore immigration detention regime could constitute a crime against humanity, a petition before the International Criminal Court from a coalition of legal experts has alleged.

On Monday morning, GMT, a 108-page legal submission from the Global Legal Action Network (Glan) and the Stanford International Human Rights Clinic was submitted to the court, detailing what the network describes as the “harrowing practices of the Australian state and corporations towards asylum seekers”. The petition submits the office of the prosecutor of the ICC should open an investigation into possible “crimes against humanity committed by individuals and corporate actors”.

“As recent leaks reveal, these privatised facilities entail long-term detention in inhumane conditions, often including physical and sexual abuse of adults and children,” Glan said in a statement.

“The conditions and resulting hopelessness have caused what experts describe as ‘epidemic levels’ of self-harm among those held on these islands. Based on original research, the communication is the most comprehensive submission on crimes against humanity perpetrated outside of context of war.”

Its hard to see how the ICC can reject this - Australia is running concentration camps to explicitly torture people, FFS. If they get away with it, it will effectively be a death knell for international justice.

As for who might be subject to prosecution, the list is long: every Australian Prime Minister since John Howard, ever Immigration Minister over the same period, their departmental heads of immigration and border control who actually enacted the policies, and the CEOS and senior officials of the various private companies (Broadspectrum, Wilson Security and Ferrovial) who actually carried them out. I can't imagine Australia ever agreeing to turn over any of these people to The Hague. But none of them will be visiting New Zealand (or anywhere else civilised) ever again.

New Fisk

There's a reason why not a single Arab dictator has called out Donald Trump so far

Cowardice from the Greens

On Sunday Labour selected former Police Association president Greg O'Connor as their candidate for Ohariu. Today the Greens have announced that they will not contest the seat to give him a clear run at unseating Peter Dunne:

The Green Party has decided not to run a candidate in Ohariu to give Labour a better chance at unseating United Future leader Peter Dunne.

That is despite the Green Party previously expressing concerns about the Labour candidate Greg O'Connor's position on several issues.

Green co-leader James Shaw said his party's national executive decided against running a candidate in Ohariu "because it increases our chances of changing the Government".

Dunne won the seat by just 710 votes in 2014, while the Green Party candidate Tane Woodley received 2764 votes.

News hub's Patrick Gower is doing his usual frothing about "dirty deals", showing that he doesn't understand MMP. But its not the idea of a deal that offends me but rather this particular one. O'Connor is a jackbooted fascist who is one of the biggest dangers to New Zealand's civil liberties. Obviously, the Greens can't control who Labour selects as candidates. But they can control whether they approve of them. And faced with a candidate like O'Connor, their response should be to say "not on my watch". This is a man who should not be in Parliament, and the Greens should do their bit to keeping him out. Instead, they've rolled over in the name of good relations with Labour under the spurious guise of "changing the government". So instead of having a National constrained by Dunne, they'd rather have a Labour with Greg O'Connor as police Minister and able to arm the police at will.

Yeah, fuck that shit.

If you're a Green voter in Ohariu, it looks very much as if Dunne is the lesser evil. At least he doesn't support the "right" of police to beat or even shoot you with utter impunity. At least he's not a rape apologist (in fact, on civil liberties, including intelligence oversight, Dunne is pretty good. Certainly better than the average National MP). If I still lived in Ohariu, he'd be getting my electorate vote. Because civil liberties are more important than whether Andrew Little gets a bigger salary.

Monday, February 13, 2017

Britain to criminalise journalism

The British government is reviewing the Official Secrets Act. Naturally, they're using this to criminalise journalism:

Campaigners have expressed outrage at new proposals that could lead to journalists being jailed for up to 14 years for obtaining leaked official documents.

The major overhaul of the Official Secrets Act – to be replaced by an updated Espionage Act – would give courts the power to increase jail terms against journalists receiving official material.

The new law, should it get approval, would see documents containing “sensitive information” about the economy fall foul of national security laws for the first time.

In theory a journalist leaked Brexit documents deemed harmful to the UK economy could be jailed as a consequence.

One legal expert said the new changes would see the maximum jail sentence increase from two years to 14 years; make it an offence to “obtain or gather” rather than simply share official secrets; and to extend the scope of the law to cover information that damages “economic well-being”.

These are the sorts of laws you expect in a C19th despotism, or Putin's Russia - not in a supposedly modern democracy. But the UK has been moving away from democracy for a long time, to the extent that they're now basicly a tyranny. Putinesque secrecy laws criminalising journalists, whistleblowers and those who expose government deceit simply makes that overt.

Another river destroyed

Intensive dairy farming is sucking the Canterbury plains dry. The cost of that? Coes Ford:

A dying Canterbury swimming hole has almost dried up after its flow plummeted to the lowest point in its recorded history.

Coes Ford on the Selwyn River, a once popular camping spot now too polluted for swimming, has hit rock bottom.

The river's flow has dropped by 90 per cent in two months, falling to 9 litres per second on February 6, according to Environment Canterbury (ECan) data.

ECan confirmed it was the lowest flow recorded at the site since records began in 1987.

Canterbury is in a drought at the moment, but it has also had vast quantities of ground water (which the lower Selwyn relies on) sucked out by greedy farmers. Coes Ford shows the cost of that. As for what to do about it, its the Regional Council's job to protect the rivers. But last time they tried, National dissolved them and replaced them with unelected dictators. Now they have a sham democracy with an inbuilt government-appointed farmer majority explicitly designed to prevent any action. And again, the only way of changing that is to change the government...

60,000 houses

That's the size of National's housing market failure:

New Zealand is up to 60,000 houses short, with Auckland needing as many as 35,000 homes, estimates in a Treasury document suggest.

The figures are part of housing supply and demand forecast produced in September of 2016 and released in January as part of an Official Information Act request.

Using their own metrics, Treasury estimate that the "cumulative shortfall" houses in Auckland was at between 30,000 and 35,000 in June of 2016.

That figure is estimated to get slightly worse in 2018, as the population continues to increase, before improving.

According to free market ideology, the market always provides just the right amount of goods. Clearly in the cases of homes it doesn't. Land-hoarding by developers, capital constraints - whatever the cause, the market has failed.

There is an obvious solution to this market failure: a massive, government-run home-building program like we had in the 1930's. But National won't do it, because they are ideologically opposed to government doing anything (except for handing out free money to foreign billionaires). Which means that people will keep on sleeping in cars and garages because there just aren't enough houses to go round.

As with climate change, water quality and child poverty, if we want any chance of fixing this we need to change the government. Fortunately we'll have a chance to do that in September.

Friday, February 10, 2017

Whitewashing Australian torture

Last year, horrific footage emerged of the systematic brutalisation and torture of children in Australia's youth detention centres. As a result, Australia has been forced to act by ratifying the Optional Protocol to the Convention Against Torture (OPCAT), which provides for regular independent inspection of places of detention. But in a nasty surprise, it won't be applied to Australia's offshore concentration camps:

Australia has promised to ratify an international treaty that will bring all its detention sites – including juvenile justice centres such as Don Dale and its onshore immigration detention centres – under independent scrutiny to stop abuses.

However, Australia’s offshore detention islands of Manus and Nauru – blighted by systemic human rights abuses – will be outside the remit of Australia’s independent oversight body because they are not on Australian territory.

Which is convenient, because those concentration camps constitute torture under international law. It's as if Assad invited the UN to inspect his prisons, but not his torture chambers. While it'll obviously help, refusing to allow oversight of the biggest abuses allows them to continue, and creates the perception that the UN is being used to whitewash Australian crimes against humanity.

New Fisk

Despite appearances, Israel is in for a rough ride under Donald Trump