Murder accused, name suppression and international media

The Grace Millane case has raised the issue of the ineffectiveness of name suppression (non-publication orders) when it only applies to New Zealand media. It has been simple online to find out the name of the person accused of the English tourist’s murder, even without trying.

To clarify the situation – at the first court appearance on Monday the accused person’s lawyer asked for name suppression based on fair trial rights, this was declined by the judge, but the lawyer immediately appealed as he is legally able to do. Under current law this gives the accused 20 days automatic suppression, and the judge will make another decision after arguments for and against have been made.

The police have made it clear what the current situation is:

It would be stupid (as well as illegal) to name the accused, or to aid identification of him in any way. Technically, saying ‘you can find it with Google’ could be deemed an aid to finding out, but it is so obvious a way of discovery that it would be ridiculous to take action.

Lawyer Graeme Edgeler tried to do something practical regarding the law: Name suppression appeals

I have long thought that the 20 working days allowed to appeal a refusal to make a suppression order is too long, when the law requires the court appealed from to make an interim suppression order for that period.

The law did not used to require this. There was no automatic right for interim suppression, which used to be a matter of discretion. A defence lawyer could tell a judge of the intention to appeal, and ask for interim suppression.

The judge might ask: will two days (a week/whatever) be enough to appeal? The lawyer might respond: I’ve a trial tomorrow and Thursday, I’d appreciate if I could have until Friday. And the judge could agree. It didn’t always work. But it also didn’t meant an automatic 20 days.

The new law treats an appeal from a refusal to make a suppression order the same as any other appeal – allowing 20 working days to file the notice of appeal, and automatically extending an interim suppression order.

Usually, delaying filing an appeal will be bad for a defendant (if you wait 20 days to appeal a refusal of bail, that means you’ve spent 4 weeks extra in prison), but this is one time where it doesn’t.

It also unreasonably affects the public and news media who wish to report on matters of public importance, and which a judge has ruled it is unreasonable to prohibit them from doing so. In light of this 20 working days is excessive.

So I have drafted a bill, the Criminal Procedure (Interim Suppression Pending Appeal) Amendment Bill, which would reduce the 20 working days allowed to appeal a refusal to make a suppression order to 5 working days.

If anyone knows an MP whom they think would like to propose it as a member’s bill, feel free to direct them to it, over at the Progressive Bills Wiki.

However the Prime Minister has used Labourese for ‘not interested in addressing this’ by saying “At this time, it’s not part of our agenda.”

NZ Herald:  Name suppression laws not about to change

Prime Minister Jacinda Ardern says the Government has no plans to change name suppression laws, even though international media have named the man accused of murdering Grace Millane.

This morning Justice Minister Andrew Little criticised British media for naming the accused, who has interim name suppression.

Little said it was potentially jeopardising a fair trial, which could heap more misery on the grieving Millane family.

I think that there is potential for ‘jeopardising a fair trial’ it is unlikely – I think that trials found to have been unfairly  jeopardised are rare (I think Edgeler has said that).

Ardern said she agreed with Little and that name suppression should be adhered to.

Asked if name suppression laws were out of date with global connectivity, Ardern said: “There’s no doubt the environment has changed.”

But the Government was not looking at doing any work on name suppression laws, she said.

“At this time, it’s not part of our agenda.”

So Ardern doesn’t want to fix something that is clearly not working.

If it is something obviously needing modernising because it has become a farce I would have hoped the Government would put it on their agenda.

This is more evidence that the current Ardern led Government can be quite conservative at times, despite claims by Ardern and others that they are ‘progressive’.

The ‘grey area’ of political and non-political work done by parliamentary staffers

When politicians talk about ‘grey areas’ in separation political from non political work done by the staff of MPs they to an extent are correct – much of what an MP does has political connotations. But I think that MPs and parties have also used ‘grey areas’ as a way of excusing pushing boundaries on what work staffers can do. I know that at times these boundaries have been deliberately exceeded.

This can get tricky for parliamentary staff, whose jobs caan be reliant on the political success of the MPs they work for.

Misuse of parliamentary staff is one of the issues raised in the allegations of bullying and inappropriate use of staff made against National MP Maggie Barrie.

NZ Herald: Bridges says Barry management was no cause for concern, welcomes advice on definition of ‘political work’

National Party leader Simon Bridges said there is “an area of grey” in terms of what constitutes political and non-political work by parliamentary staffers and he welcomed scrutiny by the review into bullying at Parliament.

“Where there is a parliamentary purpose, it is clearly acceptable,” Bridges told the Herald.

“But it is really important the Parliamentary Service ensure that MPs and staff know where the line is so that the rules are followed.

“That does require Parliamentary Service to make sure they are educating and showing us the way.”

That’s putting the responsibility on staff. They should be clear about what sort of work they are required to do, and what sort of work is outside their job description.

He was commenting in the light of claims by a former staff member of North Shore MP Maggie Barry, that staff were expected to conduct party-political work such as writing the MP’s regular column including on the Northcote by-election and pamphlet for a National Party conference for over 60-year-olds.

Electoral law expert Andrew Geddis…

…says that MPs pressing their staff into doing political work gave them a far greater advantage in elections than non-MPs and the situation may need closer scrutiny.

“Taxpayer funding to hire MPs’ staff is given so that they can do their jobs as elected representatives, not to help them win re-election,” said Geddis, a professor of law at Otago University.

“If it gets misused for party purposes, sitting MPs get a massive advantage against their unfunded challengers.”

This is one of many financial and logistical advantages for sitting MPs and established parties. Free travel is another.

This can get tricky. Bridges was criticised for clocking up a big travel bill in his tour of the country earlier this year. It is important for the Leader of the Opposition communicate and connect with people around the country, but this is also a form of preliminary election campaigning. And their staff are involved in this.

Another electoral law specialist, Graeme Edgeler, said staff were allowed to be political to quite a large extent and it would boil down to what been in their employment contract.

A press secretary working for the National Party would be writing political press statements attacking the Government and calling for, say, Minister Iain Lees-Galloway to be sacked.

A primary role of an opposition MP is to criticise and attack Ministers, so staff helping with this are an integral part of the political process.

That would be a parliamentary staffer paid by Parliamentary Service doing a clearly political job.

“You are allowed to employ people to be highly partisan…according to parliamentary rules, the employees that you have can be expected to be highly partisan.”

He said there would be limits about how partisan a staffer could be and that assisting an MP for a parliamentary purpose would exclude seeking votes for the MP or fundraising.

Being political is what politicians do, so their staff can’t be disconnected entirely from it.

As Edgeler points out, the biggest issue here may not be that staff do political work, but the imbalance of power and the advantage this gives incumbent politicians over candidates who wish to challenge them – another very important part of our democratic process.

And incumbent MPs are the ones who are involved in making the employment rues for their staff.

A plea to consider amendments to the Electoral (Integrity) Bill

The Winston Peters Electoral (Integrity) Bill has been very contentious. The Green Party has been strongly and widely criticised for opposing the bill (very strongly opposing similar legislation historically) but deciding to vote for it ‘for the good of the Government’.

Minister of Justice Andrew Little has also been criticised for refusing to budge on amending the Bill, leading to justified suggestions that Labour as well as the Greens are being dictated to by Peters on this.

There has been a lot of criticism of the Bill beyond Parliament, including from a significant number or academics with expertise in constitutional law, but it looks like it will pass. So attention is now shifting to amendments to improve the flaws in the bill.

Graeme Edgeler: Last call on the Electoral (Integrity) Bill: A plea for Labour, New Zealand First and Green MPs to consider some minor amendments

The Electoral (Integrity) Amendment Bill is going through it’s final stages, and will likely pass this week.

It is going to pass, and amendments – such as a sunset clause – or the exclusion of electorate MPs from its scope – or a delayed start – are not going to be agreed to by a parliamentary majority either.

But it is not too late for Parliament to make some minor changes to the bill to make a slightly better, and to slightly better protect principled opposition within Parliamentary parties.

The point of this blog post is pretty simple: it is to ask Labour MPs, New Zealand First MPs and Green MPs to consider supporting three particular amendments proposed by National.

…the three amendments I seek support for are not “wrecking amendments”. They are very limited amendments, designed to ensure that the process for removing an MP from Parliament is fair, and identifiable.

These are:

  • Chris Penk’s proposed amendment in supplementary order paper 69. It would require registered parties to have rules around the process they would use to seek to expel an MP from Parliament.
  • Tim Macindoe’s proposed amendment in supplementary order paper 71. This would require that those rules would have to be provided to the Electoral Commission and available for public inspection.
  • Simeon Brown’s amendment in supplementary order paper 64. This proposes that the caucus vote to declare than an MP has distorted Parliament should occur by secret ballot.

Little has been unusually cranky about criticism of the Bill.

Justice Minister Andrew Little has accused bill opponents of failing to engage with various safeguards he says are in the bill that would prevent it being abused – in particular the requirement that two-thirds of the caucus must support the leader.

I think this is an unfair criticism…

Edgeler also said he would like serious consideration given to a suggestion in his submission on the Bill:

At present, the bill requires a two-thirds majority vote of a party caucus to expel and MP from Parliament. If an MP is really threatening the proportionality of Parliament, one would expect much greater unanimity from a party caucus as to that fact, than a mere two-thirds.

Under the current proposal, National could eject an MP even if 18 of their MPs considered the MP had not threatened the proportionality of the House, and Labour, could eject an MP with 15 MPs opposed. If the vote had anywhere near that many opposed, I think it must be seriously disputed whether proportionality would have been threatened.

When you are talking about ejecting an MP from Parliament, a much higher vote should be required, perhaps even near unanimity of the party caucus (ie unanimous, but the for the MP in question). An MP who has the support of even two or three of their party colleagues represents a significant party position likely to have been supported by at least some of that party’s voters, whose voice should not be silenced by other party factions. An MP with that level of support from the party Caucus should not be forcibly expelled from Parliament.

Chris Bishop (@cjsbishop) has responded on Twitter:

I have an amendment re “near unanimity” and a schedule that outlines what that means.

This is not online yet.

Also from Chris Penk (@ChrisPenknz):

Thanks for suggestion re near unanimity (and analysis of those already-tabled SOPs). Initial reactions:

(1) All-but-one would be preferable to a percentage basis, given distortions possible in latter where caucus small in number.

(2) Principled objection remains.

However, I acknowledge in relation to item (2) above you’re aiming for amendments that may be palatable to NZF-Lab-Green (esp last-named) given overall nature of bill and inevitability of it passing.

Edgeler asked Little, Peters and Tracey Martin for suport, and also the Greens.

I can’t find responses from any of them.

National MPs seem to be actively trying to constructively address flaws in the Bill.

Labour, NZ First and Green MPs seem to be avoiding fronting up on this.

The Greens in particular could at least restore a little of their tattered credibility by supporting amendments that will make the Bill less bad.

How a cannabis referendum might look

With the possibility of a referendum on personal use of cannabis, perhaps as soon as next year, there has been discussion on how a legislation followed by referendum approach might work.

In January Graeme Edgeler posted:

There is a good way to conduct government-initiated referendum, and there are bad ways to conduct them.

Yesterday he tweeted suggested wording for a cannabis referendum adapted the language used in the 1993 MMP referendum.

I think that would be a good approach on cannabis, and similar on euthanasia.

Parliament debate and vote on legislation, to be approved by a binding referendum  – binding in so far as a commitment by MPs and parties to abide by the result and allow the legislation to come into effect.

This wouldn’t stop later changes in law, as can happen with any law.

ODT editorial on secrecy and the OIA

Journalists use the Official Information Act extensively to try and get information out of national and local government sources, so know as well as anyone about the problems with the way the OIA is being abused by politicians.

Today’s ODT editorial looks at The perils of secrecy

Keeping secrets from the public — or as those guilty of that action would prefer to put it, withholding information for various, sometimes tenuous, reasons — is one of the first worrying steps towards that scourge of modern-day life: “fake news”.

Not so many years ago, reporters at this newspaper and other media outlets could simply pick up a phone and ask a burning question of the appropriate person at city hall, or the hospital or the university.

That is now happening less and less frequently. Instead, questions, submitted in writing, are vetted and — perhaps the same day but often a day or two later — an anodyne response is issued. That is the best-case scenario.

Politicians now often protect themselves from scrutiny by employing ex-journalists as a barrier.

In the worst-case, either the organisation leaves it a few days before saying it will not comment, or it plays fast and loose with the Official Information Act and cynically uses up the entire 20 working-day period allowed for in the Act before replying.

In a democratic nation like New Zealand — one widely vaunted overseas for its lack of institutional corruption — such pettiness and refusal to engage on matters of public interest is disgraceful. Where the public is paying, through rates or taxes, the salaries of those in the organisation doing the concealing, their actions are completely abhorrent.

These people who are actively working against transparency, who enjoy blocking the media, acting after all as the public’s advocates, are effectively walking roughshod over democracy.

Yes, and New Zealand’s democracy is much the poorer for it.

People are paid more to keep secrets than to uncover information.

Late last week there were several examples of flagrant obfuscation and obstruction from the Dunedin City Council.

In one case, the council is choosing not to answer questions which have been put to it by this newspaper for nearly a year about alleged bullying and other problems in its city property department. Despite Official Information Act requests, it is withholding a Deloitte report, saying it needs to protect privacy and also citing commercial sensitivity. Elected representatives and council staff all ran for cover when asked for comment. The ODT has now referred the matter to the Office of the Ombudsman.

On the same page of Friday’s newspaper, the city council refused to say what assets valued at $63 million it was planning to sell, again specifying commercial sensitivity as the reason. This also has been referred to the Ombudsman.

This sounds particularly stupid – how are they going to sell assets without saying what they are going to sell?

It is disgraceful that the ODT has to go to the Ombudsman on a regular basis in order to get information that should be the public’s as of right.

This refusal to engage is a very troubling development. Stalling, fudging and engaging in sophistry make any organisation look bad.

Of course, it is not just the DCC that plays these games — even the most simple public information can sometimes be very difficult to receive in a timely fashion from other Otago councils, the Southern District Health Board, the police, the University of Otago and, especially, the Government.

Especially the Government – or more accurately, Governments present and past, who have set a very poor example of refusing to engage and inform.

We need to stop this slide into secrecy before we have a New Zealand filled with nepotism and favouritism, undeserved privilege and injustice, one in which corruption is able to breed in dark, secret corners.

Lawyer Graeme Edgeler writes at Public Address: A Small Official Information Act Fix

A few days ago, TVNZ journalist Andrea Vance tweeted an Official Information Act response she had received from David Parker, the Attorney-General. Vance had sought information about workload and funding pressures on Crown Solicitors, something he had apparently taken an interest in while in opposition.

The response received advised that “the Attorney-General is not subject to the OIA in the performance of their Law Officer functions.” This is footnoted to an Ombudsman opinion that does not appear to be online. I’ve no reason to doubt it exists, although I think the argument is weak. I’m aware of another Ombudsman’s opinion (that is publicly available) that says that the Solicitor-General in performing her Law Officer functions is outside the OIA because the Office of Solicitor-General is not listed in the Ombudsman Act, or in the OIA, which I can accept. I’m not sure that it’s as clear for the Attorney-General. Ministers of the Crown are subject to the OIA in the performance of their ministerial functions, and I would have said that Attorney-General was exercising a ministerial function when acting as a Law Officer of the Crown.

That said, even the exclusion of the Solicitor-General for the OIA is a pretty big oversight.

I can’t imagine it was a conscious decision, but even if it was, it was wrong. The Solicitor-General is the Executive’s chief legal officer, and exercises all sorts of government power. There’s probably a lot of information that the Solicitor-General has that shouldn’t be made public, but that can be protected by the other grounds in the OIA, like legal professional privilege. There is no reason for a blanket exclusion.

So, with that in mind, I have drafted a short bill. It adds a short subparagraph to the definition of official information to provide that information held by the Attorney-General and Solicitor-General in the exercise of their function as Law Officers of the Crown is official information.

The problem here is that it requires a majority of politicians to force better compliance with the OIA.

Both Labour and the Greens have promised better transparency, but Labour seems to be doing the opposite.

Good ways and bad ways to conduct referendums

Our binding referenda on constitutional issues like MMP have followed good process.

There were some valid questions about how the two referendums on the New Zealand flag were conducted, but the main problem with that process was political interference with attempts to discredit the process by some because they didn’t want flag change, and by others because while they supported flag change they opposed it being initiated by John Key – in other words, the process was trashed by petty politics.

The smacking referendum was a waste of time, it was non-binding so was toothless, and the question asked was vague and therefore futile.

We will have at least one referendum during or at the end of this term, could have two and may have more.

Graeme Edgeler has posted about good ways and bad ways to do referendums in How not to waste millions of taxpayer dollars

There is a good way to conduct government-initiated referendum, and there are bad ways to conduct them.

During the course of this Parliament, New Zealand will conduct one or perhaps two, referendums – one of the legalisation of cannabis use (a result of the Green Party’s confidence and supply agreement with the Labour Party), and perhaps another on euthanasia. Unfortunately, indications are not promising that the process for either these referendums will be good.

During September, October and November last year Australia conducted a referendum. We should learn from its mistake. Australia’s nationwide “plebiscite” on the legalisation of same sex marriage, in an exceedingly useful example of how not to conduct a public referendum.

How it went is no longer breaking news: a sizeable majority of the voting public indicated support, and then the Federal Parliament passed a law providing for it.

The marriage vote asked Australia voters to give a yes or no answer to the question:

“Should the law be changed to allow same-sex couples to marry?”

This is a perfectly reasonable question to ask to get a general sense of public feeling about a general issue, but is a stupid question to ask when wanting guidance on what a law should say.

So it’s better if a law change is defined then voted on.

How should you vote if you wanted politicians yet-to-consider a same-sex marriage bill to know that you would support changing the law to allow people of the same sex to marry, but would object to a law which might require churches to marry people in breach of church doctrine?

How should you vote if you wanted politicians to know that you thought people of the same sex should be able to marry, but would find offensive a system where a whole new law was created, setting up a separate same-sex marriage register, with separate same-sex marriage celebrants wholly separate from marriage celebrants?

You couldn’t. Holding a vote in advance of a bill being written makes that impossible.

This is a trap we should aim to avoid in both the cannabis referendum, and the potential referendum on euthanasia that New Zealand First is pushing for (and which David Seymour, the sponsor of the euthanasia bill, says he supports holding).

I hope the Government avoids these traps. They are fairly fundamental.

Will it be legal to sell cannabis, or just to possess and use it? Will people be able to grow their own, or will they have to buy it from specific government licenced dealers? Will you be able to smoke it outside in public places, like tobacco, or will that be prohibited, like the public consumption of alcohol often is? How will it be taxed? Will cannabis advertising and sponsorship be banned? Will councils have a role in regulating where it can be sold, or used? Will they be able to set up enforceable non-cannabis zones (like they can with alcohol), or only unenforced zones (like non-smoking areas)?

Will euthanasia be limited to the terminally ill? Will it need a judge to sign off a decision to offer aid in dying? What will a doctor who refuses to take part have to do, if anything? Will advance directives be able to be enforced, or will applications have to be made by people who are conscious?

Unfortunately, while the legislative process underway for the euthanasia legislation should work through the detail of the scheme, any referendum seems likely to be an afterthought.

I hope that Parliament (MPs) will have the fortitude to make a decision on medical cannabis without the need to then delay it by going to a referendum.

I think that in our system of representative democracy MPs can also decide on what is best for the minority that may want to consider euthanasia.

Fortunately, it’s not too late. The euthanasia law is still early in its early legislative process, and the cannabis referendum isn’t set up yet. Hopefully, we can avoid not only the mistakes Australia made, but also new ones of our own.

It may be a mistake to even have a referendum on euthanasia, but at least it won’t happen prior to legislation being debated and voted on in Parliament.

As Edgeler says, there are good ways and bad ways of having referenda – and there are also times when they aren’t appropriate, especially if used as a way for MPs to cop out of their responsibilities as representatives.

Parliamentary question spat

Labour Ministers are effectively refusing to answer written questions submitted by the National Opposition.

National MPs are submitting many more questions in response, and Labour are crying foul.

Last Friday:

Other media picked up on this.

NZH: National denies questions are ‘Parliamentary spam mail’

Labour has called it the Parliamentary equivalent of spam mail but National is unrepentant about lodging more than 6000 written questions to ministers in the past month.

Opposition MPs can lodge written questions to ministers, with the answers then published online. Since Labour came to power National has lodged thousands, with many asking what meetings a minister held on a specific date.

National’s Leader of the House, Simon Bridges…

…acknowledged a “side effect” of that approach would be to test the new Government and its staff.

“Is part of this around testing the Government more broadly and is that a side effect of what we are doing? Okay, maybe. But the primary reason for doing this is to get substantive answers on what they are doing at this stage of their Government so we can understand their priorities.

“We are not getting answers inside or outside of Parliament. That necessitates us asking more detailed and specific questions. If we were getting answers to what we feel are reasonable questions, we wouldn’t have to ask so many.”

Labour Leader of the House, Chris Hipkins…

…said the tactic was the parliamentary equivalent of spam mail, and would not lead to much useful information.

“All New Zealanders, regardless of whether they voted for us or not, want the Government to be effective. I don’t think they want a Government that’s bogged down with trivialities and time-wasting. If the Opposition want to focus their energies on that, we’ll just get on with the job of delivering for New Zealanders,” Hipkins told Newshub.

“At the end of the day, questions like this don’t really serve the public interest. They simply soak up huge amounts of time, and that’s time and money and energy that could be put into serving the public.”

Bridges…

…said his party would continue to ask questions, but numbers would drop if “good, basic” answers were provided.

New Zealand Parliament (August 2016): Hundreds of written questions asked every week, even when Parliament isn’t meeting

Written questions, and especially their answers, provide a huge amount of information of interest to New Zealanders. Even during the recent month-long recess, the questions kept flowing in and being answered.

Written questions are a key tool to help Parliament hold the Government to account. During the July recess, 1159 written questions were asked.

MPs can direct a written question to any Minister about a subject that the Minister is responsible for. There is no limit to how many questions an MP may ask. The total number asked in 2015 was 16,180.

Ministers have six working days to provide a written answer to each question. Each answer is first sent to the MP who asked the question. Three days later, the answers are published on Parliament’s website.

What is the aim of Parliamentary questions?

Both written and oral questions are used by MPs to get information from Ministers.

Written questions usually seek information that may be used in an upcoming debate or question time in the House, or through the news media.

Oral questions are asked and answered on days that Parliament is sitting. An answer is required from the Minister during that day’s question time. That answer can be tested during question time with supplementary questions.

This process keeps Ministers and the organisations for which they are responsible on notice that their activities can always be under scrutiny.

So it’s an important part of our Parliamentary process. Asking written questions is an important job for an Opposition.

Graeme Edgeler gives some examples of non-answers at Public Address: Questions, but no answers

To NZ First Minister Ron Mark:

8560 (2017). Hon Mark Mitchell to the Defence (Minister – Ron Mark) (16 Nov 2017): What meetings, if any, has the Minister attended between 26 October 2017 and 15 November 2017, including subject, attendees, and agenda items?

Hon Ron Mark (Defence (Minister – Ron Mark)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

To Labour Associate Minister Kris Faafoi:

8449 (2017). Hon Simon Bridges to the Immigration (Associate Minister – Kris Faafoi) (16 Nov 2017): What meetings, if any, did the Minister attend between 26 October and 29 October inclusive, including subject, attendees and agenda items?

8448 (2017). Hon Simon Bridges to the Immigration (Associate Minister – Kris Faafoi) (16 Nov 2017): What meetings, if any, did the Minister attend between 30 October and 05 November inclusive, including subject, attendees and agenda items?

(to 8449) Hon Kris Faafoi (Immigration (Associate Minister – Kris Faafoi)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

(to 8448) Hon Kris Faafoi (Immigration (Associate Minister – Kris Faafoi)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

A narrower question to Labour Minister Stuart Nash:

8393 (2017). Chris Bishop to the Police (Minister – Stuart Nash) (16 Nov 2017): Did the Minister have any meetings in his capacity as Minister of Police on October 27, if so, what people and organisations did he meet with on that day, where were the meetings held and what were the main items of business?

Hon Stuart Nash (Police (Minister – Stuart Nash)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

Same fobbing off response. That both Labour and NZ First Ministers are using the same non-reply suggests a coordinated tactic from the Government.

Bishop has followed up:

11778 (2017). Chris Bishop to the Minister of Police (22 Nov 2017): Did the Minister have any meetings in his capacity as Minister of Police on October 27 between 8 and 9am, if so, what people and organisations did he meet with at that time; where were the meetings held and what were the main items of business?

11779 (2017). Chris Bishop to the Minister of Police (22 Nov 2017): Did the Minister have any meetings in his capacity as Minister of Police on October 27 between 9 and 10am, if so, what people and organisations did he meet with at that time; where were the meetings held and what were the main items of business?

That’s why the number of questions is so high.

Edgeler, a stickler for proper Parliamentary process, commented:

The replies are due by Thursday. Hopefully Bishop, and the other MPs (all of whom seem to have been specifically invited by Ministers to ask more granular question) will have the answers to which they are entitled.

So far, Bishop’s hour-by-hour requests only cover the first two days the Minister of Police was in office, although the essentially rejected day-by-day requests covered several weeks. The Minister should consider himself lucky. Far from being aghast that National MPs have asked “a whopping 6254 written questions”, I am instead surprised by their forbearance. They are being denied information they ought to have. By rights, they should have asked more.

Ministers seem indifferent (at best) to their responsibilities.

National has escalated things and has now got some publicity. This will put pressure on the Government and it’s Ministers to comply sensibly.

Ghahraman versus Finlayson

Since joining Twitter recently Green candidate Golriz Ghahraman is learning how fraught

mixing politics with quick fire tweeting can be. She has been given a lot of attention, and in some cases has given as good as she has got.

She seems to have come unstuck over a swipe and Attorney General Chris Finlayson.

She tweeted…

Remember Finlayson changed the rules so QCs don’t need to be barristers, then gave himself the honour? Classic Nats

https://twitter.com/golrizghahraman/status/873708400923693056

…in response to Guy Williams: Arise, Sir John

It reminded me of National MP and solicitor Chris Finlayson who, after becoming National’s Attorney General, changed the rules so that solicitors could become Queen’s Counsel, and then proceeded to become a QC! It’s insane.

She virtually repeated what Williams said. This has attracted attention, including:

And:

And:

Graeme Edgeler has stepped in to put the record straight.

1. It was Parliament (at the behest of *Margaret Wilson*) who changed the rules to allow non-barristers to become SCs.

2. and then Parliament (at the behest of Finlayson) who *reversed* Wilson’s change, so that you had to be a barrister.

3. any change to allow non-barristers to be QCs is irrelevant to Finlayson anyway, because most importantly, Finlayson is still a barrister!

I figured the error was from ‘s column. And assumed he’d just mis-remembered what happened as the opposite of what happened.

In politics it’s easy for ambitions and agendas to live by the tweet, die by the tweet.

 

Operation Burnham update

Mote from Operation Burnham (the Afghan SAS attack allegations) today.

Whale Oil waded in to it with a number posts today. He led with an attack on Nicky Hager and Wayne Mapp in Another lie exposed by one of Nicky Hager’s own sources:

As for Wayne Mapp, this man is a traitor, along with Nicky Hager and Jon Stephenson. They are aiding and abetting the enemy, demanding inquiries and smearing our soldiers based on flimsy hearsay evidence from villages in a Taliban-controlled area and just wrong information like the location of the villages.

Nicky Hager stated categorically that it was “impossible” for him to be wrong.

The media keep on buying his stories, they take everything he says as gospel and yet here are two glaring lies or errors.

Wayne Mapp is an utter disgrace. He oversaw the operation, he was in Afghanistan at the time, he personally approved the mission, and all that is from his own words.

He was the minister at the time, he authorised the mission, he knew there were other casualties, and yet he did nothing. Worse he waited some seven years to then become a dirty little weasel and ratfink by becoming a source to Nicky Hager and Jon Stephenson.

Now he has the audacity to demand an inquiry based on nothing more than hearsay and a rehash of information he has held onto for seven years.

But Slater has made a fundamental error. Mapp didn’t authorise the mission. In his post at Pundit yesterday he said:

I had been fully briefed on the plan on the morning before it took place. Based on the briefing, and on the advice of the military professionals, I recommended that it proceed.

That seems fairly clearly not authorisation the mission, and Mapp clarifies in a comment:

But one point of clarification (it arises on another blogsite). The use of words “recommended that it proceed” is suppossed to indicate that I referred the matter up, though with a recommendation.

Hager and Stephenson’s book says that the Prime Minister had the final say and that fits with what Mapp has said. The PM is likely to have based his decision on the advice of Mapp and the Defence Force but had may well have signed off on it.

Hager makes some point by point rebuttals of NZDF claims, also at Pundit in Operation Burnham: the cover-up continues

The New Zealand Defence Force claims that it has replied fully to the allegations raised in Hit and Run. It hasn’t – and what it has said just continues its cover-up of what happened in Afghanistan.

The Chief of Defence Force Lieutenant General Tim Keating presented the NZDF response to the book Hit and Run at a press conference on Monday 27 March 2017. For 45 minutes he and his colleagues suggested that everything in the book was incorrect.

Jon Stephenson and I, the authors of Hit and Run, have now had time to study the defence chief’s statements. Our conclusion is that the NZDF criticisms are wrong – with one exception – and that they have failed to address almost everything of substance in the book. This is what a cover up looks like.

He details a number of points, here are the headings:

1. The raid described in the book “is not an operation the NZSAS conducted”:  INCORRECT

2. The SAS raid was in a different village with a different name: INCORRECT

3. The SAS raid was about two kilometres from the position we gave in the book: CORRECT, BUT DOES NOT CHANGE THE STORY IN ANY SIGNIFICANT WAY

A major part of the confusion over where the attack took place and the differing claims was due to the book giving an incorrect location. It may not change things in a significant way but it caused significant disputes until this was all clarified.

4. The NZDF has now replied to the allegations in the book: INCORRECT

5. An ISAF investigation has already occurred, there is no need for another inquiry: A WEAK SELF-SERVING ARGUMENT

6. Keating said the insurgents may have used civilians as human shields; aircraft video showed insurgents were killed; the conduct of the New Zealand ground forces was “exemplary”; and so on: UNSUBSTANTIATED CLAIMS AND SELECTIVE INFORMATION

7.  Lieutenant General Tim Keating told the press conference: “The ground force commander was an NZSAS Officer who controlled both the ground activities and provided clearance, after the appropriate criteria had been met, for any involvement of the aircraft. These elements were co-ordinated by an air controller in his location.” CORRECT AND IMPORTANT INFORMATION

His last point and commentary:

8. Finally, Keating told the press  that there were legal complications for having an inquiry: INCORRECT

This is not correct. We are not proposing an inquiry by the defence force about itself. The  government has the power to launch a full and independent inquiry at any time. We believe the NZDF is trying to avoid a full and independent inquiry precisely because some officers are scared of what it will show. But the issue will continue to fester, as it has for years, until that happens.

Graeme Edgeler responded to that in comments:

This is selective. I understood LTGEN Keating to be saying that there would be difficulties in requiring people to give evidence. An inquiry under the Inquiries Act could require people to attend and give evidence (subject to rights of silence, etc.), but it would not be able to, for example, require Afghan military personnel, or US military personnel to give evidence, which may be necessary to provide a full picture.

In addition it is likely to be difficult getting legally admissible witness statements from people from the attack area that can be cross examined. The area is now apparently in Taliban hands and Jon Stephenson didn’t visit the actual attack site because of the dangers involved.

It will be difficult determining who actually died in the attack, how they died and who was responsible for their deaths.

And other evidence will be difficult to tie to the attack. For example I think the photo of the cartridges that circulated this morning (it also had drink bottles in the whole photo in the book) was taken a long tome after the attack – it appears to be a collection of things that had been gathered purportedly from the attack scene but there is no evidence substantiating that, just claims from people from the area.

I really think it is unlikely anything substantial will be able to be determined seven years after the attack that occurred in an area still occupied by the Taliban.

It is important to hold military forces to account, but there are hints that obsessions may be more prevalent than balanced investigations on the part of Stephenson and Hager, and the NZDF will be reluctant to reveal any more than they have to to help their arguments.

There’s also a question of why Stephenson and Hager are trying so hard to ensure the Afghan, US and New Zealand military adhere to strict terms of engagement (fair enough for that) but seem to be taking the word of people from a Taliban controlled area, some of whom may be Taliban supporters or even combatants.

The Taliban has been notorious for their military tactics, and also for the abuses of human rights, especially of females and people who won’t comply with their extremely strict religious diktats.

‘Geopolitical analyst’ Paul Buchanan has added to the commentary at The Spinoff with An inquiry into the Hit and Run claims is now essential. And there is an obvious person to lead it

The bottom line is this: as a public institution in a liberal democracy, the NZDF is accountable for its actions to the New Zealand public. It can do so without compromising operational security. It must do so because now its professionalism and integrity are in question.

It has been suggested that the New Zealand Police conduct an investigation of the events that fateful August night. I disagree.

Instead, it seems reasonable to convene a Board of Inquiry chaired by the Inspector General of Intelligence and Security (IGIS). Although not usually focused on military operations, the IGIS has authority to look into all security-related matters and is the key oversight mechanism on matters of intelligence and security. With the widely respected inspector general, Cheryl Gwyn, as chair, a panel could be convened that involves a senior military judge, a retired High Court justice and perhaps an international jurist of some reputation and experience in such matters. They should have powers of compulsion under oath and be given access to all evidentiary material as warranted (beginning with the account and sources in the book as well as the NZDF response).

There should be plenty of evidence to sift through. Modern military operations involve the use of helmet and body cameras on soldiers as well as gun sight and other cameras on aircraft. Audio recordings of communications between ground and air forces likewise serve as real-time referents on how things unfolded from the vantage point of the participants.

But this would require the full cooperation of the US and Afghan militaries.

 

More depth to ‘Hit & Run’ reports now

Some pundits and journalists were excitedly demanding immediate action after a quick look at Nicky Hager’s and Jon Stephenson’s ‘Hit & Run’, launched on Tuesday evening.

There are far better reports coming out now that people interested in looking at the issue in more depth are publishing their views.

More investigation from David Fisher: Exclusive interview: NZSAS says civilians were killed in fatal raid, including two by Kiwi sniper fire

What he has found out supports some of the book’s claims but disagrees with some, in particular the claim that it was a revenge raid.

But the soldier’s account also conflicted with claims in the book that the NZSAS were motivated by “revenge” over the death of O’Donnell.

He said the NZSAS soldiers would have been “angry” over the death but “revenge” had no part to play in how they did their jobs.

The soldier said: “SAS boys are a different breed. Everything is a lot more calculated.”

Rather than “revenge”, the Herald was told by the former Governor of the neighbouring province, the raid was to target insurgents who threatened the New Zealand base at Bamyan, about 50km away.

So those who claim that Hager never gets anything wrong may want to reassess that view.

Toby Manhire: Books damning claims demand inquiry

Hager and his co-author, Jon Stephenson, have stressed both these points.

The then prime minister did sign off the raid, which apparently killed six civilians and injured at least 15 more, but there is no claim that he masterminded any coverup.

“I suspect we know far more about what happened than John Key was told,” said Hager.

Some of the conclusion jumpers commenting at The Standard have missed that bit.

Hit and Run is an important book. Whether you admire or viscerally loathe its authors is immaterial to the evidence it documents.

Not all of the allegations are new, but the depth of research and detail are compelling.

Any journalism that heavily depends on unnamed sources should, of course, be subject to scrutiny, even if, as here, they are numerous and corroborated.

Critically, many of the sources would be willing to speak to an appropriate, independent investigation, says Stephenson.

For their sake, for the sake of the NZ Defence Force, whether to censure or vindicate, for the sake of the government, for the sake of respecting international law, for the sake of the dead, and in the public interest, that investigation needs to happen.

Not to do so for fear of creating difficulty for our military bosses or politicians or, even, the Americans, would be wrong.

“We’re not going to be rushed into an inquiry,” was an early response from the prime minister, and that is fair enough, but the case is now urgent and overwhelming.

I prefer time is spent doing things properly rather than jumping to the demands of journalists and activists.

Peter Dunne joins Labour, Greens and NZ First in asking for an inquiry.

Afghanistan Inquiry Now Inevitable – Dunne

UnitedFuture leader Hon Peter Dunne says an inquiry into allegations New Zealand SAS forces were involved in an incident that led to civilian deaths in Afghanistan now seems inevitable.

“In the wake of the comments in the Hagar book ‘Hit and Run’ there has been a rising fog of confusion, about what may or may not have happened.

“Recollections now seem to vary sharply, and I think it is inevitable some form of inquiry will be necessary to clarify and resolve these.

“New Zealanders are rightly proud of the reputation of our SAS and Armed Forces generally, and do not wish to see that diminished, so they deserve open reassurance that our forces have not behaved inappropriately.

“The current saga of claim and counter-claim will not provide that, therefore some form of independent inquiry is appropriate,” Mr Dunne says.

Some meaningful response from the Government seems inevitable, bit according to Legal Beagle Graeme Edgeler it should be an investigation instead. It’s worth reading his whole detailed post – A war crimes inquiry; or why Nicky Hager is wrong.

He concludes:

There is nothing to stop the Government starting an inquiry. There will be some aspects of what has happened that will be able to inquired into without risking prejudice to a Police investigation, but, as is generally the case with coronial inquests, we will need to recognise that not every question of importance can be answered while questions of whether there will be criminal charges remain unanswered.

In New Zealand, such investigations are a matter for the Police, and decisions over whether to prosecute (in the High Court) are ultimately for the Solicitor-General or Crown Prosecutors. Alternatively, allegations against soldiers may be a matter for the Military Police, leading the possibility of trial at a Court Martial. Neither will have much experience investigating war crimes. In the circumstances, I think the Police are better placed in the case.

There are sometimes reasons to prefer a Court Martial. For example, if the result of the investigation is that there is insufficient evidence to file war crimes charges, but that charges under the Armed Forces Discipline Act for failure to comply with the rules of engagement could be laid against some involved, this could only be done at a Court Martial. However, that is not possible here. There is a time limit for such charges to be brought to Court Martial, and it has well passed. A Police investigation would likely involve assistance from Military Police, and Crown Lawyers in any event.

Nicky Hager and Jon Stephenson have authored a book alleging war crimes; they’re not necessarily certain who, but the describe events that could amount to war crimes committed by New Zealanders. This has consequences.

When confronted with allegations of war crimes, New Zealand is obliged not just to find out what happened, but to investigate, and if appropriate, prosecute. But it would be wrong to pursue an inquiry that may prejudice the rights of those now under suspicion of committing war crimes. Commissions of inquiry do not investigate crimes. This is the job of the Police.

Where Police fail to investigate an alleged war crime, New Zealand has agreed, with the approval of Parliament, that the Prosecutor of the International Criminal Court can step in instead. We should not let that happen.