Robertson slams Brash, praises Government

Opposition MPs and parties, especially Labour, have been copping a lot of flak for being relentlessly negative, for barking at every passing car.

But they deserve credit when they give credit where it’s due to opponents.

Like most people Grant Robertson has slammed Don Brash’s latest stunt, and in doing so praised the Government’s handling of Treaty issues.

Newshub: National Party better than ‘irrelevant bigot’ Don Brash, says Grant Robertson

Labour’s Grant Robertson has labelled Don Brash an “irrelevant bigot” over his latest effort to make race a hot-button issue.

“This notion of Maori privilege is ridiculous. He tried it a decade ago, the climate was a bit different, he got a bit of traction – we’ve all moved on.”

National boosted it’s popularity after Brash’s Orewa speech in 2004, but under John Key’s leadership the Government has dealt properly with ongoing treaty settlements. Robertson acknowledges this.

In contrast, Mr Robertson says National under John Key has “been really good and responsible in Treaty settlement legislation”.

“[Treaty Negotiations Minister ] Chris Finlayson’s done a really good job. It’s taken a lot of the political heat out of the issue.”

It’s good to see Robertson giving praise where it’s due. Oppositions need to pick their battles  wisely, and being on the same side of Government on this and united against the Brash campaign is a positive sign.

Moko’s killers get 17 years

Tania Shailer and David Haerewa, the two people responsible for killing Moko Rangitoheriri, were sentenced to 17 years in prison with non-parole periods of 9 years. This is the longest sentence given to people guilty of manslaughter of a child.

Over a period of two months, the pair kicked Moko, threw him, dropped him face first on the floor, bit and stomped on him and denied him medical treatment. He arrived at hospital with swelling to his face so bad it was impossible to open his eyes.

His abdomen was distended, he had bruising on his front and back, multiple abrasions and wounds that appeared to be human bite marks were found on his face and arms.

– Stuff EXPLAINER: Moko’s killers got manslaughter to eliminate ‘substantial risk’ of either walking free

This sounds like a fair sentence (as fair as you can be to child torturers). It’s as long as some murderers get. If they were given an unusually long sentence it would have raised the risks of the sentence being appealed and overturned or reduced.

The Police statement in reaction to Moko sentencing:

Police want to again extend their condolences and sympathy to the family of Moko Rangitoheriri, following the sentencing of Tania Shailer and David Haerewa this morning.  

Police also want to acknowledge the officers who worked on the investigation into Moko’s death. 

Any case involving a young and vulnerable victim like Moko is extremely difficult for all involved, and I would like to commend the officers involved for their diligence and professionalism.

Finally, Police ask that media continue to respect the privacy of Moko’s extended family.  We appreciate the ongoing public interest in this case, but attempts by media to contact the extended family, particularly vulnerable younger members, have caused a significant amount of distress to the family. 

And Attorney General Chris Finlayson explained the reasoning behind settling for manslaughter charges and not trying for murder – to make sure they got a conviction.

Statement on Moko case

Attorney-General Christopher Finlayson today set out the reasons for the Crown’s decision to accept the manslaughter pleas of Tania Shailer and David Haerewa in substitution of murder charges for the killing of Moko Rangitoheriri.

Ms Shailer and Mr Haerewa were today both sentenced to 17 years in prison, with a minimum non-parole period of nine years. Until that sentencing took place, the Attorney-General and Solicitor-General were unable to comment on the specifics of the case, as the sentencing was a matter for the courts.

“The Crown’s decisions in this case, including the decision to accept the manslaughter pleas, were motivated by the need to secure convictions for this horrendous killing and to avoid the significant risk that either of the defendants could escape such a conviction because of evidential issues,” Mr Finlayson said.

“The guilty pleas and admitted facts enabled the Crown to argue for a sentence which reflected the nature of the crimes committed. Without the guilty pleas, the full details of the facts set out in the Statement of Facts may not have otherwise come to light.

“The decision to accept a plea of manslaughter in substitution of a murder charge is never taken lightly. A robust process is followed which ultimately requires the approval of the Solicitor-General.

“The overarching consideration is whether the interests of justice are met in accepting the plea and in particular, whether the charge can adequately reflect the criminal nature of the conduct as well as allow sufficient scope for sentencing.

“Based on the evidence available for trial, there was a substantial risk that one or both of the defendants would not be convicted of the legal charge of murder or manslaughter.

“To prove the legal charge of murder in this case, the Crown was required to prove beyond a reasonable doubt that Moko’s fatal injuries were inflicted with murderous intent.

“The Crown was confident that Ms Shailer was the principal offender and most likely directly responsible for Moko’s most serious injuries. The nature of Mr Haerewa’s involvement in Moko’s fatal injuries was less clear on the evidence available for trial.

“It was relevant to the likelihood of securing a murder conviction that the injuries Moko suffered were not inevitably fatal. With reasonably prompt medical treatment, he could have been saved.

“Let me be clear, this in no way reduces the seriousness of the abuse Moko suffered. It is, however, something the jury would have had to take into account when deciding if Ms Shailer had murderous intent at the time she inflicted the fatal injuries.

“If the jury was not satisfied beyond a reasonable doubt that Ms Shailer had murderous intent at the time she inflicted the fatal injuries, then neither she nor Mr Haerewa could have been convicted of murder.

“Of course, the defendants also had a responsibility to obtain the medical treatment which would have saved Moko’s life. By failing to discharge this duty, they contributed to his death in addition to causing his fatal injuries.

“But the failure to discharge this duty could not in itself lead to a murder conviction for both defendants nor would a conviction for manslaughter based solely on this failure have adequately reflected the defendants’ role in inflicting the injuries which killed Moko.

“The Solicitor-General considered that accepting guilty pleas for manslaughter in substitution of murder charges meant that both Ms Shailer and Mr Haerewa:

  1. admitted responsibility for inflicting the injuries which killed Moko and their failure to obtain him lifesaving medical treatment; and
  2. could be given a sentence which reflected the serious nature of their crimes.

“Mr Haerewa admitted he had contributed to Moko’s death by encouraging and supporting Ms Shailer’s physical abuse. In the absence of his guilty plea, Mr Haerewa’s role in the violence that killed Moko may not have been adequately recognised in the ultimate outcome of a trial.

“The guilty pleas in this case also avoided exposing young and vulnerable children to the trauma of giving evidence including, for some, evidence against their parents.

“There has been significant public interest in this case and numerous statements have been made in the media about the charging of Tania Shailer and David Haerewa.

“The cost of prosecuting this trial was not a factor taken into account in approving the manslaughter charge. The public interest in prosecuting such serious crime would never take into account the financial cost of bringing a defendant to trial.

“Nor is plea bargaining a feature of the New Zealand justice system. Prosecutors cannot agree to a guilty plea based on the premise they will support a specific sentence.”

Notes for the editor:

The Attorney-General has overall responsibility to the citizens of New Zealand for prosecutions carried out by or on behalf of the Crown through Parliament.

In practice, however, the Attorney-General is not involved in individual criminal cases. These matters are formally delegated to the Solicitor-General to avoid any political interference, or appearance of political interference, in our criminal justice system.

As set out in section 185 of the Criminal Procedure Act 2011, the Solicitor-General is responsible for maintaining general oversight of the conduct of public prosecutions. As part of that role the Solicitor-General provides prosecution guidelines that all Crown Solicitors must adhere to.

In accordance with clause 18 of the guidelines, the Solicitor-General must approve all plea arrangements in relation to murder charges. Where a defendant indicates they will plead guilty to a charge of manslaughter, the Crown Solicitor is required to refer that offered plea to the Solicitor-General to approve the withdrawal of the murder charge in substitution for that of manslaughter.

The Crown Solicitor prepares a letter of advice for the Solicitor-General and forwards all relevant material from the trial file. Counsel within Crown Law prepare an initial opinion, which is then reviewed by senior Crown Counsel before final referral to the ultimate decision maker. The decision maker can be the Deputy Solicitor-General (Criminal) exercising the powers of the Solicitor-General, or the Solicitor-General her or himself.

Approval is only given after careful consideration of the factors detailed in the prosecution guidelines. The overarching consideration is whether the interests of justice are met and in particular:

  • whether the charge adequately reflects the essential criminality of the conduct; and
  • whether the charge provides sufficient scope for sentencing to reflect that criminality.

If a plea is accepted it is only on the basis that the factual basis for sentencing must outline in full the extent of the injury or damage suffered by the victim to ensure this can be reflected in sentencing.


Serious Jihadi bride concerns

Serious concerns have justifiably been raised over John Key’s ‘jihadi bride’ claims alongside SIS boss Rebecca Kitteridge’s comments late last year.

From Below the beltway: The week in politics:

During an Intelligence and Security Committee session, SIS boss Rebecca Kitteridge​ spoke of radicalised “Jihadi brides” lured from New Zealand. The claim was repeated by John Key. Only it was not exactly true. Reports this week revealed that no so-called “Jihadi brides” left from New Zealand. Details, who needs them? Many think the local Muslim community is owed an apology.

I think all of us are owed an apology, plus an assurance this sort of (at best) misleading won’t happen again.

Today’s Dominion Post editorial: The public were misled by the fiction about Kiwi jihadi brides:

The jihadi brides affair is extremely damaging for the Government. It raises serious questions about the accuracy of claims made by John Key, SIS boss Rebecca Kitteridge and Security Intelligence Minister Chris Finlayson.

Kitteridge told MPs in December that there had been a rise in the number of New Zealand women travelling to Syria and Iraq. Key referred to them as “jihadi brides”.

This clearly left the impression that the women were leaving from this country. Now it has become clear that they left from Australia.

But Key and Kitteridge did nothing to correct the false impression they left. It is nonsense to say, as Finlayson does, that the women’s point of departure is “irrelevant”.

In this case Kitteridge is hoist by her own petard. She has championed accountability – but failed to set the record straight on a serious issue of national security.

The matter is so serious, in fact, that the new Inspector-General, Cheryl Gwyn, should  investigate.

Chris Finlayson, finally, has shown he is not fit to be an intelligence minister. He says what matters is that the jihadi brides are New Zealanders and they might return to this country. It certainly matters that they might come back here.

But misleading the public about where they come from matters just as much.

If we are going to be able to trust our security and intelligence services then we have to be assured that we can believe what they and their associated politicians say on matters of security.

Public confidence in the spy services has been badly shaken by the scandals and shambles of the last few years. Finlayson’s arrogance compounds the problem, rather than solving it.

He shows politicians will use misleading and inflammatory language about security and then refuse to do anything when caught out. This affair comes just as the Government is about to take up Sir Michael Cullen’s recommendations giving great new powers to the spies.

Why should we trust those new powers to the likes of Key, Kitteridge and Finlayson?

With what has happened over the jihadi brides we shouldn’t trust them. They have to repair the damage and earn our trust, but instead this week they made things worse.

Key said he wanted Labour to join the Government in improving our security and intelligence services.

He must also get on the right side of us, the public. He has failed to do so. That’s a serious problem that needs to be rectified.

Stuff:  ‘It doesn’t matter where they leave from’ Jihadi brides were still New Zealanders – Government

Minister responsible for the SIS and GCSB Christopher Finlayson said the departure point of the women was irrelevant.

Asked if he thought the comments were misleading he said he would not go through it again, “otherwise I’ll just die of boredom”.

Finlayson said he would meet with “anyone, anytime” to allay fears.

“Because I’m very cognisant of the fact that they were all a bit nervy after the legislative review, in 2013.”

Apologies had to be reserved for justifiable situations, he said.

“You just don’t go around handing out apologies willy nilly.

“I regret nothing, because I think what I read is that people haven’t got their facts right, and have decided to fixate on where these people left from, rather than on the critical issue of were they New Zealand citizens.”

That sounds more like an irresponsible Minister for the SIS and GCSB to me. Very poor from Finlayson.

Tainui told to get mandate

Treaty Negotiations Minister Chris Finlayson has told Waikato-Tainui to get a mandate and to specify their claims after King Tuheitia followed up by Tukoroirangi Morgan indicated they would make claims reaching up to Auckland.

Can different Iwi make claims over the same area?  And why now? Waikato-Tainui settled some claims at least in 1995.

NZ Herald reports in Tainui told get mandate and spell out claims.

Mr Morgan, the spokesman for King Tuheitia, has been elaborating on a reference to Auckland claims that the king made in a speech on Friday at coronation anniversary celebrations at Turangawaewae.

King Tuheitia talked about a new era of rights and claims and of defending the stature of the Kingitanga – the Maori King movement established in the 1850s to prevent more land confiscations.

“We will start with the Kingitanga claims in Tamaki.”

He also wanted further to address “the question of sovereignty of the Kingitanga with the Government and the Crown.”

King Tuheitia talked about his struggle with health – he has diabetes – and said he wanted to “leave a legacy for the next one to continue.”

The Kingitanga seems to be striving for relevancy. How important is the King in Waikato-Tainui?

Mr Morgan told the Herald that Tainui had a claim over the Auckland area which had been filed in 1993 by Huakina on behalf of Tainui.

The first Maori King, Potatau Te Wherowhero, had lived in Mangere, and had other houses at Howick and a summer home in what is now the domain, and he had mana over the Auckland area.

Mr Morgan said the Huakina claim covered a region from the upper reaches of Waikato across to the Firth of Thames, up as far as Mahurangi, across to Piha and down to the Manukau Harbour.

Finlayson has responded and disputed some claims.

Mr Morgan said that at a meeting about five weeks ago between himself and Mr Finlayson and Housing Minister Nick Smith, Mr Finlayson had agreed they could begin to draw up terms of negotiation.

Mr Finlayson disputes that – and said he was not aware of a Huakina claim.

He also cited a letter dated August 15, 2013, to Tom Roa, interim negotiator for Waikato-Tainui, stating: “I have previously invited Waikato-Tainui to clarify the nature of any outstanding claims it considers it may have in [Auckland] and urge you to do so.

Finlayson has one message for Waikato-Tainui if it wants to begin negotiating a claim over parts of Auckland – get a mandate and specify your claims.

He said he had given Tukoroirangi Morgan the same message about five times in the past.

“He nods and then nothing happens,” Mr Finlayson told the Herald.

“Mandates don’t last forever.”

Mr Finlayson said he had also formally written to Waikato-Tainui two years ago setting out what needed to be done if it had a claim to parts of Auckland.

So the King needs to demonstrate he has a mandate amongst Waikato-Tainui.

And then show that they can make claims over territory north of the Waikato.

Winston ‘Donald Trump’ Peters?

Winston Peters has complained about the amount of money that has been paid to Treaty claim negotiators. NZ Herald reports:

A total of $7.8 million has been paid to 13 negotiators, among whom are five former Labour and National MPs: Labour’s Rick Barker, Paul Swain and Fran Wilde, and National’s Paul East and Sir Douglas Graham.

Mr Peters then described the payments as “colossal and unjustified” to media.

That sounds like a lot of money – but there are billions of dollars involved in the Treaty claims and they can’t be settled without negotiating. Peters doesn’t seem to be suggesting any alternatives, he’s just making headlines targeting what he knows some people will be annoyed about. He’s Treaty bashing for political gain.

Treaty Negotiations Minister Chris Finlayson took offence at Peters’ comments.

Speaking in Parliament last night, Mr Finlayson said the comments were unfair, disgusting, vulgar and crude, and accused him of an “intemperate attack” on the negotiators.

“These external negotiators are very good value for money, providing excellent service and are achieving results,” Mr Finlayson said.

“I say to New Zealand First that their tendency to personalise things and attack the individuals as they have done with my treaty negotiators is something I resent and something I think is quite simply disgusting.

“These people are good people and I am very proud of the work they are doing regardless of party or regardless of background.”

Mr Finlayson said John Wood, chancellor at Canterbury University, had done “phenomenally well” in two difficult treaty negotiations: Tuhoe and the Whanganui River.

“Mr Peters is nothing more than the Donald Trump of New Zealand politics who wants nothing more than a cheap headline.”

Always looking for opportunities for cheap headlines Peters responded.

Mr Peters lashed out himself saying Mr Finlayson needed to “get a grip and stop reverting to hissy fits every time some truth is told about his organisational spending”.

“Reverting to diversions and straw men in some vain attempt to avert attention from gross expenditure items to individual treaty settlement negotiators simply won’t do,” Mr Peters said.

“The public will want to know just what sort of complexity justifies those extraordinary costs and Mr Finlayson needs to know that puerile attacks on me are going to have no effect at all.”

Peters uses some interesting phrases:

  • “get a grip”
  • “hissy fits”
  • “reverting to diversions”
  • “straw men
  • “vain” and “attempt”
  • “puerile attacks”
  • “have no effect at all”

There could be some projection amongst that.

The Herald headline is Finlayson dubs Winston Peters ‘Donald Trump of NZ politics’.

For every Donald Trump or Winston Peters attention seeker there are a number of willing media attention givers.

Finlayson’s speech in Parliament yesterday:

Draft transcript:

Maori, Other Populations, and Cultural Sector

Speech – Hon CHRISTOPHER FINLAYSON (Minister for Treaty of Waitangi Negotiations)

Hon CHRISTOPHER FINLAYSON (Minister for Treaty of Waitangi Negotiations): I want to take a call on Vote Treaty Negotiations and thank the previous speaker for her helpful comments on the Post Settlement Commitments Unit.

She raises some very interesting issues, and I agree with her that early engagement, particularly with local government, provides opportunities and also enables issues to be clarified at an early stage, and that is exactly what I want to do on the harbours negotiations, which are coming up.

I also want to pay tribute to the Office of Treaty Settlements for their excellent work over the past 12 months. They are a very dedicated bunch of people, and I am very proud to work with them. Some of them also act as Treaty negotiators. So, for example, Ngāti Hauā and Heretaunga Tamatea were negotiated in-house, and that is my plan with Ngāpuhi as well.

But I do want to say something about the money expended on external Treaty negotiators, because of what I think was a vulgar, crude, and intemperate attack on them by the right honourable Mr Peters earlier in the day, where he said that the fees were colossal and somewhat bizarrely said that I was giving jobs to my mates.

I am very fond of both Paul Swain and Rick Barker, but I do not know that they would want to be called my mates. Unlike that honourable member, I do have great respect for them.

I asked Mr Swain some years ago whether he would like to work with me on the Ngati Porou matter, and he did such a very good job that I asked him whether he would work on some others. So in recent times Paul Swain has negotiated the Taranaki settlement, which will, hopefully, be signed in September; Mana Ahuriri ; Ngāti Hineuru, which we are going to debate for the first time tomorrow; and Maungaharuru-Tangitū . Mr Swain is an excellent negotiator, and if anything I do not think he charges enough. I have huge respect for him.

The second person that Mr Peters insulted was Mr Barker. I approached him after he left Parliament in 2011 and asked whether he would like to do a few negotiations for me, and he is doing a great job—for example, Te Atiawa; Ngā Ruahine , which we are debating for the first time tomorrow—so I am very happy to say that these external negotiators are very good value for money, are providing excellent service, and are achieving results.

I say to New Zealand First members that their tendency to personalise things and attack the individual, as they have done with my Treaty negotiators, is something I resent and something I think is quite simply disgusting.

As I said this afternoon to a journalist, Mr Peters is nothing more than the Donald Trump of New Zealand politics, who wants nothing more than a cheap headline.

These people are good people, and I am very proud of the work they are doing, regardless of party and regardless of background.

Another person that the right honourable member attacked this afternoon was John Wood, who is the chancellor of Canterbury University and has been doing an excellent job there. He was twice our ambassador in Washington, and he is an outstanding public servant who has negotiated two extremely difficult Treaty negotiations and done phenomenally well. I refer to his negotiation with Tūhoe and his landmark negotiation in respect of the Whanganui river.

These are the sorts of people I have had working with me over the years, regardless of party and regardless of background, and they are dedicated to achieving just and durable settlements for the benefit of New Zealand.

If the New Zealand First speaker who obviously wants to stand up next for his penny’s worth has any decency he will apologise to those people, because his leader’s statements were unfair and were simply disgusting.

The final point I want to make is in relation to reform of Te Ture Whenua Maori Act , because I do think that the Hon Nanaia Mahuta was a little unfair on that issue. This is the first comprehensive rewrite of Te Ture Whenua Maori Act for well over a generation.

The 1993 Act was never really fit for purpose, and so what we are seeking to do is take a fresh look at it. There has been an exposure draft put out to enable proper discussion, and there are lots of issues, and we make no apologies for the fact that there is a lot of work to be done there, polishing the jewel so that everyone benefits from the reform.

Lecretia Seales assisted dying case versus pressure group inteference

Lecretia Seales has a brain tumour and has taken her case to court to clarify whether her doctor can assist her death so she can avoid extended suffering. Stuff reports:

Terminally ill Wellington lawyer Lecretia Seales…, 42, has an inoperable brain tumour and has begun a court case in which she wants to test the law.

In the High Court at Wellington on Tuesday, her lawyer, Andrew Butler, said the case was about clarifying the criminal law, not changing it or trying to “lift a ban”.

It was only about Seales, and raised quite narrow issues that would not have any application to the elderly or disabled, for instance.

Seales was not interested in having a big debate about euthanasia, he said.

Seales wants to make sure her GP would not face charges under the Crimes Act if or when Seales was helped to die. The doctor’s name is suppressed.

Sounds sad, and sounds like a sensible test for the law.

It’s fairly well known that doctors and others able to administer drugs already ease peoples’ deaths. I’ve seen this happen with someone whose death I was closely associated with.

So it makes sense to clarify the law around this. Otherwise some people are lucky enough to get help to ease suffering, while others don’t have the choice.

And because it happens in a grey area of the law and of medical ethics it is easier for misuse or mistakes to happen.

If the law was clarified people who are suffering and dying wouldn’t have to deal with ambiguity and secrecy. It would also make it easier for families – the example I was associated with was bloody difficult to deal with until I understood what was happening.

But ‘special interest groups’ are trying to interfere with Seales’ case.

Seales faces attempts by special interest groups to have a say on her legal plea to be allowed the option of a medically assisted death.

Three parties are asking to be allowed to “intervene” in the case.

For the Human Rights Commission, Matthew Palmer, QC, said it was not a normal “adversarial” case. The orders being sought would seem to offer assisted dying in certain circumstances, and that had wide implications for society.

“If ever there was a case of widespread public importance, this is it.”

The commission would offer independent submissions and would not take a position on the ultimate question in the case, he said.

At least they are trying to be balanced and neutral on the emotional aspects.

The defendant in Seales’ case is the attorney-general, who is currently National MP Chris Finlayson. His lawyer, Paul Rishworth, QC, said it plainly raised issues of significant public importance, and the parties that wanted to intervene might be able to help the court.

But the Crown could gather evidence from palliative care specialists and others to cover the issues the case raised.

That’s up to the crown, but other groups seem intent on using Seales’ case to push their own.

The Care Alliance represents groups opposed to physician-assisted suicide and physician-assisted euthanasia. Its lawyer, Victoria Casey, said palliative care professionals and some groups representing the disabled were directly affected, and their views should be heard.

Seales is opposing them being allowed to take part in the case, but Casey said members of the alliance were best placed to give evidence and analysis of relevant issues.

The Voluntary Euthanasia Society is also seeking to intervene.

Kathryn Davenport, QC, for the Voluntary Euthanasia Society, said Seales was asking for a personal decision, but the case could not be seen in isolation.

If Seales was happy for this to happen then fair enough. But it sounds like she doesn’t want any interference.

Both sides of the euthanasia debate want to hijack Seales’ case to promote their own interests. It’s not their case. They can take their own legal action if they want to.

Seales’ case could easily be seen in isolation. Sure it would affect other cases, that’s how our legal system works.

3 News reported:

Care Alliance says if Ms Seales gets her wish it would set a dangerous precedent and could be applied to anyone with a terminal illness.

That sounds like scaremongering. It could be applied to anyone, whether ill or not. But that’s a stupid exaggeration.

The whole point of Seale’s case is she is requesting the option of an assisted death.She is prepared to test it in court.

The courts are never going to start ‘applying law’ to people who don’t want it applied to them.

Obviously time is important for Seales

Justice David Collins said he would give his decision as soon as possible on whether the three interveners were allowed to be part of the case. The full hearing is due to start on May 25.

3 News: in a blog post, Ms Seales’ husband Matt said: “If Lecretia were to commit suicide, she would need to do it alone, as anyone else present would risk a criminal conviction. The act would be extremely traumatic for her and her family. It’s not an option.”

Sadly now she has publicised her situation the risk of scrutiny and criminal conviction is much greater.

The court should do what it can to make a fair legal ruling. Special interest groups should stop pushing their own interests.

Seales is making brave moves, by openly her facing options as she dies, and by doing something that attracts publicity.

The law may or may not benefit her. But the special interest groups should back off unless their input is asked for.

Finlayson versus the Law Society

The Law Society has campaigned strongly against the GCSB Bill. Yesterday the Society released a statement saying GCSB Bill remains flawed despite proposed changes.

Proposed changes to the GCSB Bill represent minor improvements but do not address the fundamental flaws in the bill and the legislation should not proceed, the New Zealand Law Society says.

Austin Forbes QC, convenor of the New Zealand Law Society’s Rule of Law Committee, says the Law Society has looked at the amendments proposed by the majority of the Intelligence and Security Committee, and has a number of concerns about the wording and scope of the changes.

The concerns the Law Society expressed in its submission on the bill have not been significantly mitigated by the proposed changes.

But some of the most significant changes have been proposed by Peter Dunne and the Prime Minister.

Further changes by way of a proposed Supplementary Order Paper have been announced by the Prime Minister and the Hon Peter Dunne, but that SOP has only just been made publicly available.

“The proposed use of the SOP procedure to make still further changes, but without making the detail of those changes available to the public, reflects the unnecessary urgency which has accompanied the GCSB Bill itself.

The Law Society is also concerned about the use of the SOP procedure to introduce significant amendments to bills after completion of the select committee process.

There’s a valid complaint about the SOP amendments not being made public in time to examine then thoroughly, they were only posted online about midday yesterday, and the bill was due for it’s committee debate later in the afternoon (delays put the start time back to 7.30 pm).

But headlining GCSB Bill remains flawed despite proposed changes without giving consideration to all the proposed changes implies their mind is made up regardless of the amendments.

And it should be noted that Peter Dunne’s amendments were publicly notified two weeks ago, the SOP was the legal version of something that was already known. It would have been better for the SOP to have been available sooner, but what Dunne was proposing was well signalled.

In a speech during the debate last night Attorney General Chris Finlayson criticised how the Law Society had handled their input.

I am sorry but the New Zealand Law Society is wrong—the Law Society is wrong.

What is more, more than a few members of the profession—more than a few members—have expressed their concerns to me about the way their submissions were given, by someone who then went to the Mount Albert Memorial Hall and was making all sorts of extravagant comments—someone who used to act for Mr Zaoui—and at the same time was purporting to represent the Law Society.

The thing about the Law Society, to quote a former United States judge, is that it is the bar that makes the statutes, and it is a very important function the Law Society fulfils, to come down to this place to give Governments of all persuasion a good swift kick from time to time, but do so in an impartial and professional way.

Regrettably, the standards were not applied in the case of the submissions on this legislation. There will be more about that later.

If ‘later’ means during further debate speeches we may have to wait until next week to hear more on this.

We may also hear more from the Law Society.

Finlayson practised law before becoming a list MP. From his party biography:

Chris was born in Wellington in 1956 and attended Victoria University, graduating with a Bachelor of Arts in French and Latin and a Masters of Law. He practised law in Wellington for 25 years, where he was a partner at Bell Gully from 1990 – 2002 and thereafter a barrister sole.


GCSB Bill 2nd reading – Chris Finlayson


Second Reading

Hon CHRISTOPHER FINLAYSON (Attorney-General) on behalf of the Minister responsible for the GCSB:

I move, That the Government Communications Security Bureau and Related Legislation Amendment Bill be now read a second time. There has been a great deal of scrutiny and debate over this Government Communications Security Bureau and Related Legislation Amendment Bill. There has been a lot of uninformed commentary.

There have been a number of examples of the great and the good, the well meaning but impressionable being misled by ill-founded fearmongering.

So, at the outset, let me make it quite clear: this legislation is not a revolution in the way New Zealand conducts its intelligence operations and national security. It is not a case of expanding the borders of some intelligence empire. This is about fixing legislation that at its best is not fit for purpose and, at worst, is broken.

Under this bill, New Zealanders can be confident that our intelligence agencies are acting in accordance with the rule of law.

The bill sets out definitively what it is our intelligence agency can and cannot do under the law. There are no grey areas. There are no loopholes. This is very important because of the status of national security in a democratic society. National security is vital for maintaining the freedoms and the way of life that we hold dear.

It is vital for keeping us safe and free from harm. But national security tools, if turned inwards and not subject to strict controls, can erode that way of life and threaten the freedom of individuals. National security legislation must not have loopholes that can be exploited by those who would threaten our security, who would threaten loss of life through terrorism or criminal activity.

But, equally, national security legislation must not have grey areas of uncertainty or doubtful interpretation that allow the State gradually to extend its activities and creep into ordinary people’s private lives like some kind of growing shadow.

The bill strikes the right balance. It makes amendments to three Acts, with the three main objectives being to clarify what the Government Communications Security Bureau (GCSB) can and cannot do, to update the legal framework in response to the changing security environment, and to strengthen the oversight of our intelligence agencies.

Labour’s 2003 Government Communications Security Bureau Act sought to codify and make transparent existing practices of the then Government Communications Security Bureau. It failed. The Kitteridge report found that the 2003 legislation is not, and probably never was, fit for purpose.

The bureau currently has three core functions: cyber-security and information assurance, foreign intelligence, and cooperation and assistance to other entities. Those three functions are retained under this legislation.

For an organisation possessing the powers the GCSB does, an unclear legal framework is simply unacceptable, so the relationship between these three functions has been set out in much more explicit terms than in the existing legislation. Between 2003 and 2011 there were 88 instances of surveillance that highlighted difficulties of interpretation.

There is a grey area in the current law, and it arises because of a lack of clarity over the legitimate activities of the GCSB of those three different functions. That grey area disappears under this legislation.

On the matter of assistance and cooperation, Labour’s 2003 Act said that the GCSB could assist other public agencies in New Zealand in the performance of their functions and also to prevent and detect serious crime.

It authorised explicitly the surveillance of foreign organisations and individuals to obtain foreign intelligence—organisations and individuals who in some cases may make contact with New Zealand citizens and residents.

But the law also said, in apparent contradiction, that the GCSB must not intercept the communications of New Zealand citizens or permanent residents. In hindsight, this was a recipe for confusion.

Parliament had intended something straightforward, that the GCSB should target foreign nationals only when gathering intelligence under its second function, and, in addition, the GCSB should also be available to assist agencies such as the police and the SIS in their legitimate and warranted domestic activities.

But the wording was contradictory and unclear. The GCSB acted according to its internal advice, to fill this grey area. That advice was in keeping with the intention of those who passed the Government Communications Security Bureau Act in 2003, but it may or may not have been justified by the words of the statute itself.

Ambiguous law that leads to secluded decision-making on a case by case basis is unsatisfactory, so we are taking these steps to overhaul the legislation and make it fit for its original purpose.

The responsible thing for this Parliament to do is to clarify the Act to specify which agencies the GCSB may assist, and to what extent, and to remove ambiguity and increase oversight from outside the agency.

The question of oversight is a very important one generally, not only in relation to the GCSB. Former GCSB head Sir Bruce Ferguson recently implied that he wished there had been greater oversight of orders he issued as head of the Defence Force, classifying some journalists as subversives.

This week he acknowledged that he had never thought of journalists as the enemy, and expressed his disappointment that no one had since overturned the orders he could not remember making. It is a reminder that memory can fail us.

Some commentators, including Sir Bruce, have opined that the questions around the GCSB represent something new about the way intelligence operates in this country. That is simply untrue.

The problems of drafting and legislative interpretation date back to the passage of Helen Clark’s 2003 legislation.

This bill is not revolutionary. It is not an aggressive expansion of State powers. Its purpose is to provide concrete rules that leave less room for uncertainty. This is evident from the treatment of metadata in the bill. There has been much talk of metadata recently. It has become something of a buzzword.

Rt Hon Winston Peters: This is quite sad. This is quite sad.

Hon CHRISTOPHER FINLAYSON: But there is no magic in metadata, I say to Mr Peters. In this bill, metadata is treated as any other communication.

This bill authorises the interception of certain communications. Communication does not differentiate between data and metadata for the reason pointed out by a number of submitters: we do not have a clear definition of metadata.

The type and number of ways in which data can be described and indexed—that is, the categories of metadata—are growing all the time. If we included a definition, then we would risk leaving loopholes as new technologies emerge or new business systems are developed.

We do not want loopholes that expose New Zealanders to unnecessary risks because our legislation cannot keep up with technology. Nor do we want amorphous gaps in the legislation that could allow agencies to exceed the powers intended for them, by incrementally extending definitions by analogy.

This bill takes into account national security and privacy. The issue is not national security or privacy; it is both. National security is about protecting our citizens and the rights and the freedoms we value. The legislation is sensitive to those rights and freedoms.

In conclusion, the bill has been subject to extensive discussion and debate, which on occasion have obscured this very important issue.

The bill before us today incorporates 19 recommendations endorsed by the Intelligence and Security Committee—and it is important to say that they reflect public submissions—and there will be further changes, which have been flagged publicly, in a Supplementary Order Paper.

As I say, this bill does not represent an extension of powers but a clarification. I commend the bill to the House.