Mueller inquiry highlights lack of trust in US Government

The Robert Mueller inquiry into Russian interference in the 2016 US election has driven growing division in the United States, and has highlighted the lack of trust in the US government.

Neither side of the political divide looks good, not looks likely of addressing the dismal decay of democracy in the US.

Frank Miele (RealClear Politics): Mueller Report Is Litmus Test for a Divided Society

What the litmus test of the Mueller report reveals is whether or not we as individuals, as political parties and as Americans have faith in our government.

According to a recent poll, 84 percent of Americans want the entire report by Special Counsel Robert Mueller released to the public.

They aren’t satisfied just knowing that the investigation into President Trump’s alleged collusion with Russia is over after two years.

They aren’t satisfied with the attorney general, a distinguished public servant, explaining the results of the investigation as he is mandated to do by law. No, they want to see the report for themselves … they want to go over it with the proverbial fine-tooth comb and hunt down every inconsistency, every missing comma, every hidden clue that what they already know to be true is indeed true — that they can’t trust the government, that the wool is being pulled over our eyes, that the system serves some ulterior purpose and works on behalf of someone or some group that is not us.

That is a horrid condition for the body politic to find itself in. It suggests a complete lack of confidence in our leaders, in our institutions, even in our Constitution.

What the demand for transparency means at its core, however, is that we don’t trust government.

That distrust has been earned over many years and many governments and presidents.

What undermines our Constitution and our government is people like Nancy Pelosi questioning the motives and honor of good people who have chosen public service as a higher calling while at the same time she tirelessly defends James Comey, John Brennan and James Clapper, who appear to have used their plenary powers to intervene in 2016 and either prevent or subvert the election of Donald Trump.

I think that Trump has probably done more than anyone at trying to undermine the motives and honour of people, especially those involved with the Mueller inquiry – including Robert Mueller. He repeatedly called what Mueller was doing a witch hunt and a virtual coup attempt – until the Barr summary suggested there was no evidence of wrong doing by Trump.

The only way we can make the litmus test for trust in government the same for all Americans is if we test that trust through fair investigation. Don’t just tell us that Mueller can be trusted, but Barr can’t. Subject both of them — and all of our public servants — to the same rigorous examination. Find out where the truth leads. We’ve had two years of investigation of President Trump based on salacious allegations funded by the Hillary Clinton campaign. Now let’s apply the same level of scrutiny to the Democrats who have assured us without evidence for two years that the president colluded with Russia.

Miele is not helping the state of division in US politics here.  The Democrats certainly should be held to account,

The release of the Mueller report – that is expected soon – is likely to reignite an already volatile political situation. Unfortunately, expected redactions are unlikely to quell the inflammatory rhetoric and accusations flying in all political directions.

The shining beacon on the hill is a flaming inferno of dysfunction of democracy.

Police re-investigating home invasion assault after complaint by Blomfield

Police are re-investigating a 2014 home invasion in which Matthew Blomfield was seriously assaulted, including being shot at in front of his family. The assailant was caught through  a DNA match, convicted and imprisoned, but the motive was never disclosed. Blomfield has complained to the police that others may have been involved, but until recently they have not done much to investigate.

This is detailed in David Fisher’s latest Big Read:  The blogger and the businessman – how the police failed, and new inquiries into a vicious home invasion

I’m familiar with a lot of the history covered in this. I have posted here about the attacks against Blomfield on Whale Oil, the long defamation case that resulted in Cameron Slater being found in October 2018 by a judge to have no defence (Slater recently withdrew an appeal), the illegal use of private data when a hard drive was supplied to Blomfield, and a number of other related things.

I have also posted about the assault on Blomfield. What is new are the claims of police inaction in investigating, and the current re-investigating.

Remember how quickly the police investigated Nicky Hager after a complaint by Slater that he had been hacked? The police overstepped in their raid on Hager’s home and obtaining bank information, for which they have since apologised for and paid compensation.

Remember how the police investigated and prosecuted Ben Rachinger after a complaint by Slater? And how, when Slater was prosecuted for trying procure a hack of The Standard, the police gave him diversion after Slater accepted guilt (but soon after posted that his contrition was not genuine).

Blomfield seems to have had a lot more difficulty getting the police to investigate for him, on complicity in the assault, and in how Slater got thehard drive. This has ended up resulting in a complaint to Independent Police Conduct Authority, and the re-opening of an investigation.

Blomfield’s complaints to police began in April 2012 when he told police Slater had obtained a hard drive with his personal and business information. Slater used the material as the basis of a series of blog posts over the next six months which led to the seven-year defamation action.

Blomfield’s interaction with police over the next four years included complaints about the hard drive, being interviewed as the victim of a home invasion which took place in April 2014 and a further complaint after his computer was hacked – possibly on more than one occasion.

Blomfield complained to the Independent Police Conduct Authority over police handling of complaints, leading to a review of police files identified areas that “warrant further police investigation”.

Detective Inspector Hayden Mander followed with a letter in December 2017 in which he said there had been multiple failures by police investigating a range of complaints.

On the hard drive:

He said there was “little comprehension” the first complaint about the hard drive could be seen as a possible crime involving the use of the data.

“Having reviewed the file, I believe there was a failure from the outset in comprehending the complexity of this investigation; in that it might be something other than a theft or burglary.

“Once computer crime was considered, there are gaps in the investigation and there was a lack of comprehensive assessment of the criminal culpability of the persons of interest that were identified during the inquiry.”

Mander, who has since left the police, said a specific complaint of “computer crime” had been made by Blomfield at the time. He said there was no evidence it had been investigated and no victim statement had been taken.

He said there needed to be a new investigation into the use of the hard drive and whether it was a “computer crime”.

There is an irony over Slater using the hard drive data to post a series of attacks on Blomfield on Whale Oil – Slater has long claimed bitterly about being hacked and data obtained being used to discredit him.

Mander also said police had not properly investigated a complaint by Blomfield made in 2014 after emails of his post-dating the hard drive were published online. The emails were from a password-protected cloud service, leading Blomfield to complain his information had been hacked.

On the assault:

Mander’s letter said there were further failures by police, including around a terrifying assault on Blomfield at his Greenhithe home in April 2014.

The incident saw Ned Tehuru Paraha, now 41, enter the home where Blomfield and his family live, face covered with a Spiderman mask and carrying a shotgun.

During the assault which followed, Paraha fired a shotgun at Blomfield on at least two occasions. One of Blomfield’s young daughters hid inside while the other saw her father – and for a period, her mother – fight back against the invader until he was forced to flee.

Blomfield was left seriously injured as a result of the assault, and has since testified as to the lasting damage the attack had on his and his family’s feeling of safety and security in their own home.

Paraha was caught a month later and pleaded guilty to wounding with intent to injure, aggravated burglary and assault with intent to injure. He was sentenced to 5 years and 10 months in prison.

Mander said the “front end” of the investigation – Paraha’s identification through DNA and conviction – was carried out properly.

No reason or motive was disclosed.

“However, it was acknowledged from those conducting the police investigation and from yourself that others were likely responsible for the planning of this offending.

“To date, no-one else has been held to account for this offending.

“Despite you advising police of your suspicions that specific people were involved in the planning of this offending, these avenues of inquiry have never been followed up. Further, you have provided police with other lines of inquiry that remain on the file but have not been completed.”

Mander said there was a “clear need” to investigate parts of the incident.

He states that the police did obtain phone records that at least indicated others had prior knowledge of the home invasion, but didn’t act on this information.

In the recording, Mander said a production order had been used during the earlier investigation to access an individual’s phone records.

He told Blomfield police “didn’t really do a very good job of examining the data it produced”.

Mander said he had examined the phone traffic and seen contact the days before, the day of and the day after the assault which needed further investigation.

Blomfield claims that Slater knew about the attack and thinks the police should have south information from him (he doesn’t allege that Slater was directly involved).

Blomfield said he believed there was reason for police to speak with Slater in relation to the attack and had previously provided information which should have been acted on.

He said a comment made by Slater in the High Court precinct at Auckland, prior to a June 2016 judicial settlement conference, suggested Slater had knowledge as to where Paraha had obtained the shotgun used in the attack.

Blomfield said it was confirmation Slater had received information about the attack and the email was passed to police. He received a response saying: “Your email is noted and has been added to the file.”

A file that seems to have had more cobwebs than police attention.

Blomfield said he since received information anonymously from someone describing themselves as the hacker Rawshark, the identity used by the person who hacked Slater’s computer in 2014 then passed the contents to journalist Nicky Hager. The hacked material was used as the basis for the book Dirty Politics.

He said the information provided to him – which matches information supplied to and printed by the Herald in 2014 – gave him cause for concern over Slater’s attitude towards him.

The Rawshark files included social media correspondence between Slater and contacts developed through the blog. Some of the content from late 2013 reflected the defamation action was placing Slater under increased pressure.

In other messages in November 2013, Slater told the contact he believed gang members were looking for Blomfield in relation to money owed on behalf of a family member. It is unknown if there was any basis for this belief.

In the message, Slater says: “they are now looking for him … I know where he is and where he works if they want to find him … name is Matthew Blomfield”.

In another message, previously unreported, Slater tells the same contact: “Can you find out who wants to bash blomfield … I can help them find him.”

Slater has testified since he embellished claims made in conversations obtained by Rawshark. There is no evidence in the Rawshark material Slater’s conversation turned into actions in the real world.

The month after the messages, on December 14 2013, Slater posted to his blog a copy of a district court decision from the defamation case which included a cover letter with Blomfield’s home address.

In a blog post which has since been deleted, the blog’s administrator wrote: “I wouldn’t want to be Mr Blomfield for the next 10 years. The other side of Karma is coming.”

It seems that Karma has been catching up on Slater, with a series of losses in defamation proceedings, bankruptcy and a stroke (a common cause being stress).

Blomfield has said he believed the attack was somehow connected to the Whaleoil blog posts, although is definite in saying there is no evidence directly linking it to Slater.

On the Whaleoil blog, Slater has rejected any connection between his website and the attack. In a post, since deleted, he pointed to Paraha’s gang connections and said he doubted any of his readers mixed in such circles.

It was claimed in a comment here on Your NZ last October that gang members were present outside the court on the day of a hearing  on the Blomfield v Slater defamation. A name other than Slater’s (but in his circle) was associated with this.

Blomfield told the Herald there were lines of inquiry police should have pursue in relation to most complaints, yet did not.

He said the home invasion in 2014, during which he was shot at least two times, was never properly investigated.

“Someone sent this guy to do this.” Blomfield said the delay in the investigation meant evidence would have decayed. “It now seems that (information) is going to be lost.”

He said there was no sensible reason for a Tribesman-affiliated gang member from Manukau, to whom he had no links or connection, to come to his Greenhithe home firing a loaded shotgun.

“It would be totally reasonable to ask the Police why it is taking so long and when that investigation will be completed.”

But Blomfield and his lawyer claims that the police have continued to do little to investigate.

Barrister Felix Geiringer, who was Blomfield’s lawyer in the defamation case, said the lack of action by police was shocking yet even more so given the police review appeared to show an officer had acted in a way which prevented a proper investigation taking place.

He said the home invasion offending was criminal behaviour at the most serious end of the scale and it was “terrifying” police could “so easily decide not to take basic investigative steps”.

Geiringer said there was a clear lack of urgency which included delays with the fresh investigation.

“Six months after informing Matt that they had never properly investigated the attempt on his life, a newly appointed investigator informed Matt that he had not yet read the file.

“Over 18 months later, and the Police have still not decided what further action, if any, they intend to take.

“Matt and his family have never felt safe since the attack. They don’t feel that the New Zealand police have any interest in protecting them. Who could blame them?”

I for one can’t blame them. I was dragged into this long running feud and attacks via blog posts and the courts.

I have had what could be construed as implied death threats. I have had my address and photo of my home posted on a website that ran a series of attacks on me, and incorrectly linked me with Blomfield. I believe that people in Slater’s circle of associates were involved (they and Slater were definitely involved in vexatious legal actions against me).

Emails on the court file show the meeting, with former business associates of Blomfield, saw discussion focused on targeting Blomfield in a scheme called “Operation Bumslide”.

In the chain of emails between the conspirators, there was a joke about Blomfield being raped and one in which an associate of Slater’s made disparaging sexual remarks about Blomfield’s wife.

So far Slater has borne the brunt of Blomfield’s fight back via the defamation, and he is the only one named in Fisher’s article.

The impression I get from this latest ‘big read’ from Fisher is that Slater may be able to help the police with their inquiries, if they ever make proper inquiries. Perhaps ‘an associate of Slater’s’ (or more) could also warrant some investigation. So far they have managed to leave Slater to cop most of the fallout. It looks to me like Slater may have been used as a ‘useful idiot’ in what started as a business feud against Blomfield.

Things can hardly get much worse for Slater, but others who have so far escaped being held to account may find things getting awkward for them if the police start doing their job properly.

‘Serious misconduct’ alleged, security firm investigation widens

Concerns over the use of security firm Thompson and Clark by Government departments has escalated into an SIS investigation  after claims of serious misconduct at the at the Ministry for Primary Industries.

RNZ:  Thompson and Clark used SIS contact to seek govt contracts

The Security Intelligence Service has launched an internal investigation into concerns of biased and unprofessional dealings with controversial security firm Thompson and Clark.

The announcement of the investigation comes on the same day the State Services Commissioner widened his inquiry into the use of Thompson and Clark to cover all government agencies, with Commissioner Peter Hughes saying there is evidence of serious staff misconduct at the Ministry for Primary Industries.

Emails from an unnamed SIS staff member to either Gavin Clark or Nick Thompson “raise questions in relation to [unprofessional] conduct and possible bias in favour of Thompson and Clark,” SIS director general Rebecca Kitteridge said in response to an Official Information Act request.

“In light of this correspondence, I have asked for several matters to be looked into… These questions are the subject of an internal investigation,” Ms Kitteridge said.

“I have also asked for our internal processes, policies and guidance to be reviewed to ensure that our engagement with private sector providers is professional, appropriate and even-handed.”

The emails appear to show the SIS staff member helping Thompson and Clark book contracts with government agencies around their Protective Security Requirements – “the policy, protocols and guidelines that help agencies identify what they must do to protect their people, information and assets”.

The emails also show Thompson and Clark secured its contract to develop the Department of Conservation’s Protective Security Requirements after checking in with the SIS staffer.

State Services Minister Chris Hipkins, told Checkpoint Thompson and Clark’s relationships with government agencies “certainly looks like it has been inappropriate”.

“The cosiness of the relationship between Thompson and Clark and some parts of the public service is concerning and that is one of the things that the investigation is going to get to the bottom of,” Mr Hipkins said.

It looks like a thorough investigation may be warranted here.

Electoral Commission investigating pro-NZ First advertising

The Electoral Commission is investigating pro-NZ First advertising during the election that was not declared by the party in their returns.

RNZ: Electoral Commission looking into ad in horse racing mag

The Electoral Commission is looking into an ad placed by the horse racing stalwart Sir Patrick Hogan during last year’s election campaign.

The ad, in the racing industry publication The Informant last Septemberurged people to party vote New Zealand First because of its leader Winston Peters’ support for the racing industry.

The Electoral Act requires people who take out ads promoting a political party during an election campaign to have the party’s permission.

New Zealand First said its party secretary did not authorise any third party advertisements.

And NZ First did not declare this advertising in their electoral return.

Otago University public law professor Andrew Geddis said if Sir Patrick did not have the necessary authorisation he may have committed an illegal practice and could be fined up to $10,000.

The Commission has not had a great record trying to enforce electoral law so I wouldn’t expect much from this.

But Hogan and the racing industry got what they may have expected from Peters – a special tax break for horse breeders. Last week’s budget allocate $5 million on tax deductions “for the costs of high quality horses acquired with the intention to breed” if it is a stand out yearling “that commands attention by virtue of its bloodlines, looks and racing potential”.

It wasn’t made clear whether the Minister for Racing would personally judge the quality and looks of yearlings.

See  Peters and a handsome horse called Neoliberalism.

UN Human Rights Council votes for investigation into Israel’s killing of Palestinians

The UN Human Rights Council has voted strongly in favour of an investigation into Israel’s killing of Palestinians during protests on the Gaza border this week.

  • For – 29 votes
  • Against – 2 votes (USA and Australia)
  • Abstained – 14

A television screen at the UN Human Rights Council shows how countries voted on a resolution approving an investigation into Israel's handling of deadly clashes on the Gaza border, on May 18, 2018. (Foreign Ministry)

New Zealand must not be on the Human Rights Council.

The Times of Israel: UN Human Rights Council votes to investigate Israel for Gaza protest deaths

The UN Human Rights Council on Friday voted to establish an investigation into Israel’s killing of Palestinians during protests along the Gaza border, in a move Israel rejected as being an attempt to undermine Israel’s right to self-defense.

The council voted 29 in favor and two against with 14 countries abstaining. Australia and the US were the two countries to oppose the decision. The council also condemned “the disproportionate and indiscriminate use of force by the Israeli occupying forces against Palestinian civilians.”

The “independent, international commission of inquiry” mandated by the council will be asked to produce a final report next March.

Prime Minister Benjamin Netanyahu slammed the vote and the council as “irrelevant.”

It’s not irrelevant if there is good cause to investigate indiscriminate violence and killing – this applies to both the Palestinians and the Israelis. The investigation should look at whether either or both sides acted illegally. If Human Rights may have been breached then it is appropriate to investigate.

Next March is a long to wait for a result. A lot is likely to have happened in Gaza and Israel by then.

 

Russell McVeagh appoints investigator into sexual misconduct claims and admissions

Russell McVeagh have appointed Dame Margaret Bazley to investigate allegations of sexual misconduct within the law firm. Newsroom are continuing to put pressure on the issue.

RNZ: Dame Margaret Bazley to head Russell McVeagh review

Dame Margaret Bazley will lead the external review of allegations of sexual misconduct at law firm Russell McVeagh.

The firm – which provides legal services to the government – is in the spotlight over serious allegations of sexual misconduct levelled at two senior lawyers at its Wellington office, and separate revelations of alcohol-fuelled sex in a boardroom.

Those allegations and the firm’s response will be reviewed, as well as any other claims, and its culture and policies regarding sexual harassment.

Russell McVeagh chair Malcolm Crotty said women subjected to sexual harassment, as well as current staff and partners, wanted to be assured the review would be thorough.

“We think that Dame Margaret’s significant review into police conduct and culture resulting from the Louise Nicholas case will provide that assurance,” he said.

She will be assisted by a woman lawyer whose appointment will be announced shortly.

Pip Greenwood, a senior partner at Russell McVeagh, said the firm was “truly sorry and horrified” that the sexual harassment had occurred.

They admit that harassment has occurred.

“We are committed to ensuring that such incidents do not happen again. We are extremely grateful to Dame Margaret for agreeing to conduct this review. We have been conscious, in making this appointment, to appoint a person who is truly independent as well as who has experience in such work.”

Newsroom is continuing their pressure: Bazley to head inquiry into ‘sexual harassment’

The allegations are far from what is commonly understood as sexual harassment. They include complaints of sexual violation, including rape.

The firm’s announcement also reveals Dame Margaret’s report on the firm’s handling of the 2015/16 scandal and other “improper conduct” will not be made public. It will instead be shared with “stakeholders”, the Law Society and the law schools of the country’s universities.

So how will the public know that this isn’t another sweeping under the legal rug?

Russell McVeagh not only has a responsibility to deal properly with any proven harassment and sexual assault, they have a responsibility to the (presumed) majority of lawyers who are not involved and not guilty.

Otherwise the firm and the profession will retain a general taint.

Newsroom has been told Russell McVeagh’s portrayal today of the assaults and misconduct during the summer clerk programme as “sexual harassment” has gone down poorly among women closely connected to the case.

One former Russell McVeagh lawyer said: “This review is getting off on the wrong foot because it is minimising, from the outset, the gravity and nature of the alleged offending against the summer clerks. It confirms my scepticism that this review is just another window-dressing exercise.”

If it is kept secret then it will easily be construed as window-dressing.

Russell McVeagh lawyers who knew of complaints from the summer clerks of sexual assaults did not refer the matter to the Law Society, as required under its rules. The Society only learned of the accusations against two male lawyers from the firm when a woman concerned raised them with it between eight and nine months after the incidents.

If they broke Law Society rules that at least should be addressed properly and openly.

The firm conducted its own inquiry, let the two men leave its Wellington office with at least one continuing on Russell McVeagh client work, and changed its summer clerk programme with new rules over alcohol and treatment of women.

So they took some action, but under cover. Should they have referred any incidents to the police? Or did they improperly protect perpetrators and the company’s reputation?  The public should have confidence that things were done properly, or will be done properly to correct past cover-ups.

In the course of inquiries into Russell McVeagh’s handling of the summer clerk programme allegations, Newsroom has been informed of incidents involving eight male staffers accused of sexual misconduct, harassment or inappropriate behaviour to staff. Some have left the firm.

The incidents date from 2000, and some involve senior lawyers. Five allegations date from the past five years. The incidents, by year, are in the graphic above.

While the firm’s terms of reference – or scope – for Dame Margaret specify the incidents in 2015/16 and its aftermath, she should have scope to inquire into these further incidents under its second term “any other improper conduct that may be brought to the attention of the external reviewer and the firm’s response to those claims.”

Her inquiry into the sexual assaults by police against Rotorua woman Louise Nicholas took three years from 2004 to complete and report.

A proper investigation will take time, but time can defuse the public glare.

Dame Margaret is regarded as a thorough and exacting inquisitor. She will be helped on this Russell McVeagh review by an un-named woman lawyer.

She is a good choice, but will the public know she has investigated well and covered this thoroughly?

It is likely to be proper that some information remain private/secret, there may be very personal revelations, and also differences of claims and perceptions between accusers and accused, so due process is important.

But Russell McVeagh has admitted “the incidents of sexual harassment that have occurred at our firm have had a profound effect on the women involved and we are all truly sorry and horrified that they occurred.”

Unless this is public clarified and properly addressed the law firm reputation and all their lawyers will remain under a cloud of suspicion. The company has:

  • 36 partners
  • 8 special counsels
  • 20 senior associates
  • 6 company managers plus a Chief Executive Officer
  • junior lawyers and staff.

They owe it to victims, to the public, and to all of those staff who are not involved in any harassment or law breaking, and to the legal profession, to come clean.

 

No charges after Todd Barclay re-investigation

The police say they have no new evidence of that justifies re-opening the case against ex-MP Todd Barclay so no charges will be laid.

A number of news reports implied that this decision was because Barclay again refused to talk to the police, but as for anyone else that’s his right and a right that is commonly claimed on legal advice.

It wasn’t the reason for no charges being laid, as with any case police have to find sufficient evidence to justify a prosecution and they say they have not been able to do that. New information given to them and new interviews did not make a viable case.

Stuff:  No charges from Todd Barclay re-investigation – police

Police reopened an investigation into allegations Barclay, the former MP for Clutha-Southland, illegally recorded a staff-member after it emerged in June that former prime minister Bill English had been a key witness in the case.

Police have now closed the case as they have insufficient evidence.

“After a thorough review of all information available to us, including legal advice both internal and from Crown Law, plus consideration of the Solicitor General’s prosecution guidelines, Police has (sic) determined that there is no change to the outcome of the original investigation,” Assistant Commissioner (Investigations) Richard Chambers said.

Police rejected criticisms of the initial investigation and any claim that witnesses had been coerced.

“We are aware that the original investigation has been subject to some criticism,” Chambers said.

“While we recognise the strong interest in this matter, the foundation of any decision to seek warrants or to prosecute is always the evidence available to us.”

“Speculation, hearsay and third party information does not in itself constitute such evidence.”

Neither do concerted attempts to score political hits with no evidence.

Stuff details the whole shemozzle:  How the Todd Barclay story got here

 

Inland Revenue “could not have been the source” of Super leak

Inland Revenue says that the leak of Winston Peters’ super overpayment can’t have come from them because they never had the information.

Peters was reported by RNZ as saying “he believed Inland Revenue was to blame for the privacy breach”:  Investigations over pension leak as Peters plans complaint

Mr Peters has confirmed his fortnightly pension had been overpaid for several years and when he was notified in July he repaid it within 24 hours. He has not disclosed the sum but said it was less than the $18,000 reported in some media.

Both the Ministry of Social Development (MSD) and Inland Revenue (IRD) are trying to find the source of the leak and Mr Peters plans to lay a complaint with the Privacy Commissioner.

Mr Peters has told RNZ that he believed Inland Revenue was to blame for the privacy breach. Pension entitlements are calculated by Work and Income but payments are administered by the IRD.

Peters went on to blame MSD and the National Party, but Inland Revenue went ahead with an investigation. They have now reported on that.

IR completes investigation into leak allegation

Following information regarding Mr Winston Peters’ National Superannuation payments entering the public arena, Inland Revenue (IR) carried out an investigation to determine whether an IR staff member was the source of the information. The allegation that Inland Revenue had been the source of the information had been made and subsequently withdrawn by a journalist while interviewing Mr Peters.

New Zealanders trust IR with their personal financial information. It is essential that we can assure New Zealanders their personal information is respected and protected at all times.

Our investigation has found that IR does not hold the information that became public in relation to Mr Peters’ National Superannuation payments, and therefore could not have been the source.

If further information relating to this matter comes to light, IR will make further investigations as necessary.

 

IPCA clear Police on Barclay investigation

At least one complaint was made to the Independent Police Complaints Authority about the police investigation into Todd Barclay in Clutha-Southland. The IPCA has cleared the police.

RNZ: IPCA won’t pursue Barclay investigation complaint

The police watchdog has decided not to pursue a complaint about the handling of last year’s investigation into embattled Clutha-Southland MP Todd Barclay.

No charges were laid after several months of inquiries into a recording Mr Barclay was alleged to have made of a staffer in the Gore electorate office.

The Independent Police Conduct Authority (IPCA) received a complaint in June, but said it was satisfied there was no misconduct or neglect by police investigating the case.

It has notified the complainant and the Police Commissioner, and has closed its file.

At the time Mr Barclay declined to co-operate with the police investigation, and it has since been reopened.

The investigation was reopened after Barclay and Bill English made public statements about what happened.

Some people will never have been happy with an outcome like this. Winston Peters has already had a grizzle about it.

Stuff: IPCA clear police of any wrong doing in the handling of the Todd Barclay secret recording investigation

“In my view, the police haven’t satisfactorily answered why they didn’t pursue the case. They had complaints of a recording, they had a complainant and to the best of my knowledge we have not been told who they talked to or didn’t talk to,” Peters said.

“But to say they’re satisfied there was no misconduct is an extraordinary statement to make.”

It’s not extraordinary if they investigated thoroughly and that was the conclusion they came to.

Law on audio and video recordings

The Todd Barclay saga, in which the Police decided not to prosecute Barclay for making audio recordings of an employee in his electorate office in Gore (the Police are currently reviewing that decision) has raised the issue of what can and can’t be legally recorded.

Video recordings are legal:

Surveillance video is common in public and in work places.

The Privacy Commission website states that it is “usually unfair to record someone without telling them”.

Can I record someone without telling them?

Whether making an audio or visual recording of someone without telling them will breach the Privacy Act will depend on the circumstances in each case. In particular, it will depend on who is making the recording and why they are making it.

If you are an individual and you are making a recording in relation to you own personal, domestic or household affairs (for instance you’re recording a personal conversation with a friend), there is an exception which says that, generally, the Privacy Act won’t apply to what you do.

However, if you collect, use or disclose personal information in a way which would be highly offensive to a reasonable person, this exception will not apply. In other words, someone could make a complaint about you.

If you are making the recording for any reason, other than your own domestic, personal or household affairs, the general rules about collection of personal information will apply. In particular, it’s usually unfair to record someone without telling them.

You should also keep in mind that there may be other laws which apply apart from the Privacy Act – for instance, recording a private conversation that you’re not involved in will often be a crime.

That seems to be what Barclay was investigated for.

On usually unfair to record someone without telling them:

Can an agency make a video or audio recording of me without telling me?

Generally speaking, an agency must tell you if it is collecting your personal information.

However, there are some cases where an agency could collect your information without telling you. For instance, it might not have to tell you it was collecting your information if this would undermine the agency’s purpose for collecting the information in the first place, or if it would endanger the safety of any individual.

If you believe an agency has collected your information without telling you, we suggest that you contact the agency and ask to speak to their privacy officer to see if you can resolve any concerns you have about this directly.

If you’re not able to resolve your concerns, and you believe you have suffered some sort of harm as a result of the collection of your information, you can make a complaint to us.

Or make a complaint to the Police, as Glenys Dickson did in the Barclay case.

Andrew Geddis comments on this in It’s not the crime, it’s the coverup

…it’s not an offence to record yourself in conversation with others, even if they don’t know you are doing so. Nor is it an offence to record other people without their knowledge if they are not engaged in a “private communication”.

But the allegation against Barclay is that he left a dictaphone running when he wasn’t in his office so as to record what Dickson was saying in conversations with constituents.

Also in Police take another look at Barclay secret recording investigation

Geddis said the alleged breach in law on which Barclay was investigated needed to tick three boxes to be proved.

The first was there needed to be a recording with an “interception device”, as the law phrased. In this case, he said, the “device” was alleged to be a dictaphone.

Then it needed to be proved it was a private conversation – in this case, said to be the electorate office where Dickson worked.

The third element was proving that the recording was made intentionally, he said.

“If you could prove all three elements, the offence carries a jailable offence of up to two years.”

Conviction to the two-year point is the trigger which forces MPs to resign from Parliament.

Steven Price at Media Law Journal (in reference to the Bradley Ambrose case):

It’s a crime to intentionally intercept a private communication using an interception device. A private communication is one that is made under circumstances that may reasonably taken to indicate that any party to it desires it remain private, but:

does not include such a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.

Although a battalion of journalists were about a metre away behind a window, let’s assume that Key and Banks couldn’t reasonably expect it to be overheard, and that the circumstances indicate that both desired their conversation to remain private.

In an electorate office if the conversation was in an open office where others were present and could hear it then it may not be private. But if Dickson was the only person present then it could be private.

The only issue, then, is whether the interception was intentional. On the paper’s account, it was inadvertent. In fact, it says, the cameraman tried to retrieve his recorder before the conversation but was stopped by Key’s security folk, and didn’t know that the recording was even happening. Now, I don’t know anything more than has been reported. But I wonder whether there is room for doubt about whether the cameraman genuinely didn’t know that the conversation was being recorded.

If it could be established that he did know, then he has committed an offence.

Bill English has said (in the now public police statement) “I had a conversation with him regarding Glenys Dickson leaving his office and he said to me that he had recordings of her criticising him”.

Barclay has said “I have read and Mr English’s statement to the police and accept it.”

“Recordings” is plural. It could be difficult claiming that more than one recording was accidental.

We will find out next week what the Police decide to do and whether they re-open the case or not.