Open Government – Evening Report

Bryce Edwards’ Political Roundup: Reasons to mistrust our spies (and their masters) in 2017

Bryce Edwards — Wed, 13 Dec 2017 04:14:13 +0000

Bryce Edwards’ Political Roundup: Reasons to mistrust our spies (and their masters) in 2017

[caption id="attachment_13635" align="alignright" width="150"] Dr Bryce Edwards.[/caption] On the surface, it’s been a good year for New Zealand’s state surveillance agencies. Compared to previous years they’ve garnered less negative media coverage and political examination. Yet appearances can be deceiving, and looking back over the year, there are plenty of reasons to suggest the spies deserve much greater scrutiny and questioning. Likewise, the politicians responsible for them don’t come out of the year very well. The Latest criticisms of the SIS Perhaps the brightest note in the spy sector this year has been intelligence watchdog Cheryl Gwyn. As Inspector-General of Intelligence and Security, she has just released her annual report. And the good news is that it applies some serious heat to the NZ Security Intelligence Service (SIS), indicating that Gwyn and her revamped office is playing a robust role in overseeing the spies. That’s why today’s Dominion Post editorial gives her fulsome praise: “In effect she is the public’s only real watchdog over the spies. Parliament’s Intelligence Committee lacks her power; the politicians who act as the ministerial overseers of the services habitually become captive to them and have never told the public anything of use. Democratic society owes Gwyn a debt of gratitude” – see: Watchdog bites the SIS for acting illegally. The editorial refers to Gwyn’s criticism of the SIS for first illegally accessing private information gathered by Customs, and then for being uncooperative in her investigation into the matter. The story is covered well by David Fisher in his article yesterday, Spies ‘unlawfully’ accessed data then refused to talk about it properly – oversight body. Fisher explains that “Our spies have broken the law accessing Customs and Immigration data and have resisted explaining to the intelligence oversight body why they have done so.” He quotes Gwyn complaining that “I found the agency was reluctant to engage with my office on the substantive issues”, and that the SIS had shown “some reluctance about disclosing its own internal legal advice” on the illegal spying, which was “contrary to the clear words of the legislation and longstanding practice”. Tracy Watkins also covers the issue and points out that “This is not the first time the country’s spy agencies have been under the spotlight over the lawfulness of their monitoring of systems” – see: SIS criticised by government watchdog over ‘unlawfully accessing’ information. Watkins’ article also details the number of interception warrants the SIS used during the last year, and it highlights the various reports on contentious spying issues Gwyn is expected to release in the near future. Not much comment has been published on these latest revelations. But today’s Dominion Post editorial says the “result is that another shadow has fallen over the reputation of the SIS.” The newspaper characterises the report as “a clear rebuke by the Inspector-General of Intelligence and Security and raises a number of concerns”. It says “Gwyn is right to call the spies out on this matter and to alert the public to their unlawful activities and their apparent reluctance to face the music.” It expresses concern that the spy agencies are inevitably drawn towards breaking the rules. Such law-breaking is untenable in a democracy, according to long-time spy critic No Right Turn who calls for the politicians to bring them into line, because otherwise “it is simply not safe for our society to have spies. Parliament needs to put its foot down: either SIS cooperates completely with IGIS, or they get defunded and eliminated. Because their legitimacy depends on being seen to uphold our rights against the spies, by ensuring that the latter follow the law” – see: The SIS breaks the law again. The blogger suggests that oversight mechanisms to keep the spies honest, simply aren’t working. Spy agency briefings to the Government Last week’s Briefings to the Incoming Ministers, included documents from the spy agencies, and David Fisher reported on how initially the Government Communications Security Bureau (GCSB) report contained a mysterious redaction, that was later removed – see: A little less danger? Deadly threats to New Zealand fall. Fisher says: “The briefing initially mentioned only three threats and blocked out the concern around regional stability. The intelligence agencies lifted the redaction after it was pointed out they had already made that secret public.” According to blogger Martyn Bradbury, the initially-redacted “instability in the south Pacific” threat, is actually code for the threat of China – see: What the censored GCSB report said and why they tried to hide it. Bradbury’s point is backed up by the fact that the GCSB report also warns that New Zealand has been the victim over the past year of “attempts to access sensitive government and private sector information, and attempts to unduly influence expatriate communities”. On a related topic, there are new revelations out today about our security agencies and their role in dealing with apparent threats from the Chinese state – see Matt Nippert’s GCSB and SIS table China’s influence at Five Eyes meeting. Another part of last week’s briefing report that caught the eye of the No Right Turn blogger was the statement that the agencies didn’t want to give their regular briefings in ministers in the Beehive, due to the lack of security there: “The GCSB and SIS want Ministers to trek down to Pipitea House for classified briefings, rather than giving them in the Beehive. Who goes to who shows who works for who, so basicly they’re saying they’re more important than our elected government. The inconvenience will also deter such briefings, potentially impacting on oversight of both our spy agencies and the intelligence warrant system. The alternative – appropriate secure facilities in the Beehive – is never suggested” – see: Merry BIM-mas! Edward Snowden vindicated; John Key caught out The most important surveillance politics story of the year was the one that received the least attention. Two weeks ago, David Fisher reported an important update on the allegations made by Edward Snowden back in 2014 about the New Zealand Government developing a “mass surveillance” programme with the codename “Speargun”. At the time this was revealed in Kim Dotcom’s “Moment of Truth” meeting, the then Prime Minister, John Key, responded by saying that the programme never went ahead as he personally had it cancelled because it was “too broad” in its surveillance of the population. Fisher continued to pursue the story, and was finally given more details about the Speargun programme’s development, which showed that John Key had only cancelled it when officials informed him that Snowden knew about it – see: John Key, mass surveillance and what really happened when Edward Snowden accused him of spying. Fisher reports: “new documents show development of Speargun continued after the time he had said he ordered a halt – apparently because the scheme was “too broad”. Instead, they show Speargun wasn’t actually stopped until after Key was told in a secret briefing that details were likely to become public because they could be in the trove of secrets taken by NSA whistleblower Edward Snowden.” The whole article is worth reading, because it raises plenty of important questions. Unfortunately, there was very little media coverage of these revelations. Along with the Herald, Newshub was one of the few media outlets to give it much attention – see: Edward Snowden alleges ‘cover up’ over mass surveillance in New Zealand. The Spinoff’s Toby Manhire was aghast at the lack of interest in what he says should be a “bombshell”: “On the face of it – and Key has not yet responded to Fisher’s request for comment – this is dynamite. If the then prime minister, who had promised to resign if he were found to have presided over mass surveillance of New Zealanders, did indeed only kibosh the project after he got wind that it could be exposed in Snowden leaks, he has gravely misled the New Zealand public” – see: Today’s big NZ story that you probably missed, aka a victory for bullshit and delay. Manhire believes the lack of media coverage is not only an indictment of the media and public’s short attention span, but can also be explained by the lack of interest in the political parties in pursuing the topic: “Nor is there an opposition for this. The government minister now responsible, Andrew Little, hasn’t replied to Fisher’s requests for comment. It’s less straightforward, of course, to assail the security agencies when you’re at their helm. The National opposition are hardly going to start interrogating the government over whether the former PM Sir John Key was bullshitting New Zealand.” The No Right Turn blogger shares some similar concerns, and on the issue of political accountability, says: “Andrew Little is refusing to comment. In a situation where the previous government has been conclusively shown to have deceived us about spying, I think he owes us a little more than that” – see: Key lied about mass-surveillance. Other leftwing bloggers have also been quick to celebrate the revelation, and to condemn the lack of media coverage of the issue – see Martyn Bradbury’s Revisiting the Moment of Truth and the realisation we were lied to and Steven Cowan’s Letting John Key get away with it. For a contrary view, see David Farrar’s The Speargun beatup. Finally, the biggest spy conspiracy looks to remain under wraps – see Matt Burrow’s news report, GCSB refuses to provide proof Bill English is not a rock.]]>

Bryce Edwards’ Political Roundup: Join the Campaign for Open Government

Bryce Edwards — Mon, 27 Nov 2017 02:35:51 +0000

Bryce Edwards’ Political Roundup: Join the Campaign for Open Government

[caption id="attachment_13635" align="alignright" width="150"] Dr Bryce Edwards.[/caption] One of the worst things about the last National Government was its lack of transparency. This was especially true when it came to the Official Information Act. There are high hopes that the new coalition government will not only operate in a much more transparent way, but also reform how the Official Information Act works. How transparent will the new government be? [caption id="attachment_8074" align="aligncenter" width="480"] Bryce Edwards writes: “One of the worst things about the last National Government was its lack of transparency. This was especially true when it came to the Official Information Act.” Pictured is former prime minister and National Party leader John Key attacking the then Labour opposition party for criticising a deployment of Kiwi troops to Iraq.[/caption] There are, however, already some worrying signs about how open the new government is going to be. Today, Newsroom’s Sam Sachdeva reports that “The Government is refusing to release a secret document with directives for new ministers, despite Deputy Prime Minister Winston Peters promising it would be made public” – see: Kiwis left in dark over ministers’ directives. This goes back to the coalition announcement, which was accompanied by the release of an 8-page coalition agreement between Labour and New Zealand First. At the time, Winston Peters mentioned they had also created a 38-page document which he described as containing “directives to ministers with accountability and media strategies to ensure that the coalition works”. However, it seems that the Prime Minister’s Office is refusing to release it, based on the idea that the document isn’t covered by the Official Information Act (OIA). And in today’s Dominion Post, Stacey Kirk reports that “Labour is getting off to a poor start on transparency”, because ministers “have so far refused to release much detail, if any, about their first actions in office. In a 100-day programme, where major reform is being pushed through at break-neck speed, that is cause for concern” – see: Labour promised transparency in Government, but they seem to be buckling on that early. The bulk of the problem is that the Prime Minister’s Office is refusing to allow government departments to release their official reports. Kirk explains: “Labour is also yet to release what’s known as the ‘Briefings to Incoming Ministers’ – or BIMs. They are the documents prepared by the experts and officials, delivered to ministers in their first week to give them a crash course on the portfolio they’ve just been handed – in some cases rendering them responsible overnight for the spending of public funds totalling billions.” Government ministers have had copies of the reports for more than a month, and the suspicion is the government is delaying the release of these reports, and intends to dump them on the public all the same day, making it harder for the public and media to deal with all the information at once. Join the Campaign for Open Government Today I’ve written a column for the Newsroom website, calling for a coalition of activists, journalists, academics, and the public, to join together to encourage the new government to fix the OIA system – see: It’s time to open up the Closed Government Act. I argue that now is the perfect time to push for reform, because new governments tend to be keener to improve democracy than older ones: “The window of opportunity on OIA reform is particularly narrow because, by its very nature, the Act is generally much more useful to opposition parties than governments. Even the most democratically-minded MPs, who come into government with a fresh memory of how damaging OIA abuse is to democracy, quickly find themselves less keen on a properly-observed OIA and more comfortable with the advantages that such abuse now affords them.” There has been a good response to this column. No Right Turn has also blogged to express their interest – see: Time to stand up for open government. And a number of institutions and individuals have made contact to indicate their interest in being involved – including Victoria University’s Institute for Governance and Policy Studies, Herald journalist David Fisher, activist Mark Hanna, TVNZ journalist Luke Appleby, and political commentator Matthew Hooton. On Friday, Matthew Hooton wrote a column in the NBR on OIA reform in which he highlighted the fact that Clare Curran – the new minister with responsibility for Open Government – has expressed a willingness to reform the OIA regime, and saying she needs support. This is urgent, he argues, because without reform, history suggests that this government could end up being worse than the last one – see: Curran needs support on OIA reform (paywalled). Here’s Hooton’s main point: “In the absence of an Upper House, it is one of the few checks New Zealanders have on our overpowerful executive and, once ensconced in power, most ministers soon come to see it as an intolerable irritant. While the Muldoon regime is said to have administered the OIA well, the Lange government did so only adequately, the Bolger-Shipley government reluctantly, the Clark government disgracefully and the Key-English government abused it shamelessly. Ms Ardern cannot feel smug: The trendline over 35 years suggests her government will soon be the worst of them all”. Clare Curran’s statements on OIA reform were made recently in an interview with the Otago Daily Times’ Eileen Goodwin – see: Breaking new ground and ready to serve. According to this, Curran “wants to improve the Official Information Act and provide much better protection for whistleblowers.” But it also reports that “She is not promising to overhaul the Official Information Act, but said she would dust off a 2012 Law Commission review whose findings were not picked up by the previous government.” Curran promises the new government will be more open than the last: “Openness and transparency and doing things differently is important, so we’ve got to practise what we preach and actually do it”. But Goodwin questions how enthusiastic Curran will be to fix the problems: “Critics have said the OIA no longer functions properly and is widely manipulated to control information for political purposes. Ms Curran was somewhat half-hearted when asked if she agreed with that, saying oversight of the Act had improved under new Chief Ombudsman Judge Peter Boshier.” In reply, Curran has tweeted: “Not half hearted. Am seriously looking at reform. It will be done properly.” Matthew Hooton made some similar observations recently about how improvements in the OIA have already occurred under the new Chief Ombudsman. Commenting just before the election about the Ombudsman’s Office forcing Mfat to finally release documents relating to the Saudi sheep scandal, Hooton declared that Judge Peter Boshier and the Office are “doing a far superior job to his predecessor; there is genuine independence now … I congratulate them for putting pressure on the Ministry of Foreign Affairs to finally come clean” – see Nick Grant’s NBR article, Mfat reply proves McCully ‘should have been hounded out’ of office (paywalled). The article reports that “Hooton expresses the hope that, with the appointment of an ombudsman of demonstrable backbone, the next government to be sworn in may have ‘higher standards than the current government – although I wouldn’t hold your breath on that’.” Hooton also argues that the OIA had been “made a complete mockery of by the Key government.” And in terms of the Saudi sheep scandal information that was held back from the public for two years, Hooton says: “the Beehive has leaned upon the Ministry of Foreign Affairs to prevent the truth from coming out – because there are all sorts of senior National Party people involved in this matter… So they did the best they could to delay the issuing of this statement from the Ministry of Foreign Affairs because they did not want it known before the election”. Clearly all governments face a difficult choice on issues like freedom of information. In making progressive reforms, they may actually make life more difficult for themselves as politicians. So, the new coalition government faces that stark choice –whether to leave the OIA system in place, as it might help them stay in power, or make reforms because they actually want to change politics for the better. The experts on the need for this government to reform A number of OIA experts have recently published very good pieces on the need for reform. Straight after the formation of the new government, David Fisher wrote an opinion piece in the Herald celebrating the OIA, and pleading with new ministers to adopt the spirit of the legislation in the way they will govern: “on this day, as a new Government is sworn in, it’s worth remembering that the OIA is one of the brightest lights in our democracy. It’s a pilot light that guides the public through the arcane workings of government, taking our place in decision-making, questioning and seeking accountability. As the Washington Post put on its masthead this year, ‘democracy dies in darkness’.” – see: Our new Government needs to live by the spirit of the Official Information Act. For Fisher, the OIA is not just vital for encouraging accountability, but also public participation in politics: “If nothing else, it explains clearly that we, the people, have a role in our government beyond casting a vote every three years. The legislation actually says it exists so that all of us can be more involved in our democracy. It says this is so we can encourage accountability in those who are elected and in those public servants hired to carry out the Government’s work.” Newsroom’s Shane Cowlishaw has written an article explaining why we should all be concerned about OIA reform, because “It may sound boring but – trust me here – the OIA is profoundly important”, and “Without the OIA countless important stories would have likely remained buried or unseen” – see: The OIA is broken, can it be fixed? He also draws attention to the related problem of governments insisting that public servants co-ordinate their responses to OIA requests: “Under the Jim Bolger/Jenny Shipley Government of the 1990s, the ‘no surprises’ policy was introduced, aimed at making Ministers aware when information was about to be released that they may be questioned on. In principle, that’s fair enough. Minister’s should know what is happening in their areas. But over the decades the essence of this policy has warped and morphed into something corrosive. It has led to a country today where public servants quake in their boots whenever a journalist calls without first going through the communications team, no matter how innocuous the question.” Former PM and constitutional specialist, Geoffrey Palmer, has also written plenty about the need for reform. A few months ago he wrote a damning blog post, Toothless Official Information Act needs overhaul and constitutional backing. This was based on his research, along with constitutional lawyer Andrew Butler, in producing their book, A Constitution for Aotearoa New Zealand. You can read Chapter 9: Safeguards online, which deals with the OIA amongst other things. Here’s their key point: “The conclusion to be reached after more than 30 years of the law in action is that the present policy settings are inadequate and do not serve the interests of transparency in government as well as they should. Change is needed and the Constitution requires that the Ombudsmen no longer be the sole resolvers of disputes with regard to the release of official information. The time has come for an independent Information Authority to be established, one with the power to make binding decisions upon questions relating to the release or withholding of official information.” OIA expert Mark Hanna has just published an incredibly useful Official Information Act Guide, which is mandatory reading for anyone who uses the OIA, or wants to start. He has also just written a blog post about some of the ways that government departments are thwarting people’s access to information through less than useful responses to requests – see: OIA Accessibility. And today, on the slightly different topic of parliamentary questions being asked of the new government, Graeme Edgeler blogs about some suggested reforms that he thinks Clare Curran could take up – see: Questions, but no answers, with thanks to David Simon for opening my eyes. Finally, just before the election, the anti-corruption organisation Transparency International New Zealand carried out a survey of political parties on their attitude and policies on corruption and ways to prevent it. For the parties’ answers, including a question on how they would strengthen the Official Information Act, see: Transparency questionnaire: 2017 general election.]]>