Archive for ‘Public services’ Category
Browse:
Public services »
Subcategories:

The rot at the top (2).

datePosted on 16:14, October 15th, 2019 by Pablo

Thanks to a report from the Acting Inspector General of Intelligence and Security following a complaint by Nicky Hager, we have come to find out that the SIS illegally spied on Mr. Hager on behalf of the NZDF after publication of Hager’s 2011 book, Other People’s Wars. The NZDF justified its request by arguing that it was investigating potential espionage, although it turns out that it was actually looking for the NZDF source of leaks to Mr. Hager. This occurred when John Key was the Minister of Intelligence and Security, Warren Tucker was SIS Director and LTG Rhys Jones was Chief of the NZDF . Did the SIS and NZDF go rogue or were these individuals aware of the spying?

It seems hard to believe that none of these people were unaware of what their subordinates were doing. The NZDF request might have been accepted as a tasking under the partner agency agreement whereby the SIS assists other government agencies when and where needed. But for this to happen the Commissioner of Warrants or the Minister of Intelligence and Security would have to have approved the request. So the question is: did this happen? Was the request, while done through proper channels, truthful in its justification or was the warrant signed under false pretences? Or, did the NZDF and SIS agree to monitor Mr. Hager’s phone records without authorisation from above? If so, who authorised that action? Mr. Tucker and LTG Jones? Some mid level managers in the NZDF and SIS?

It should be noted that this unlawful spying occurred before the Police illegally searched Mr. Hager’s home and accessed his bank and phone records after the publication of his 2014 book, Dirty Politics. Here too we have the question of who, exactly, authorised the intrusion: the Minister of Police? The Police Commissioner? Someone below that rank? A friendly Justice of the Peace? Was the illegal Police access–again, supposedly to find the hacker called Rawshark who leaked to Hager a rightwing attack blogger’s emails and social media communications–a follow up or in any way connected to the previous NZDF/SIS investigation? After all, security agencies share information even after investigations are concluded or cases closed, so it is not inconceivable that the SIS file on Hager was forwarded to the Police once they opened their investigation into Rawshark’s identity. Ironically, the Police ended up with the same result as did the SIS when looking for Hager’s sources: nothing.

After the Acting IGIS issued her report, the Director General of Security (head of the SIS), Rebecca Kitteridge, issued an apology to Mr. Hager, seven years after the fact. But apologies are not enough. Punitive sanction must be meted, however retroactively, on those who ordered the spying in both the NZDF and SIS as well as those in cabinet who may have been aware of it. Will that ever happen? It is for the current Labor-led government to decide, which means that it needs to seriously think about yet another official Inquiry.

This may seem tedious and burdensome on the taxpayer, but it is now pretty clear that there is a systematic pattern of abuse of authority in the NZ security community. In the last ten years the Police, GCSB, NZDF and SIS have all been found to have committed unlawful acts against NZ citizens and residents. Little to nothing has been done to address, much less correct these institutional excesses, so the opportunity is ripe for a calling to account from those involved. Once the inquiries into Operation Burnham and Christchurch terrorist attacks are finalised and their reports submitted, that can be used as a starting point for a fuller inquiry into what I have previously labeled the “culture of impunity” that pervades the repressive apparatus of the NZ State.

As things stand and unless an investigation is launched into the mechanics of these unlawful and illegal acts, those who ordered the spying are likely to go unpunished. The maximum penalty for the SIS breaking the law is a $5000 fine for the agency, not any individuals employed in it. Key, Jones and Tucker are all retired and unlikely to receive any a posteriori punishment. So unless there is an investigation and subsequent law changes that hold people strongly (and retroactively) accountable for ordering or facilitating illegal acts committed by security agencies, impunity will endure and the institutional foundations of NZ democracy continue to be corroded from within.

First a massacre, then the push back.

datePosted on 13:31, April 2nd, 2019 by Pablo

During the first hours and days after the terrorist attack in Christchurch, I tried to be optimistic about what could come out of the event. I saw it as a window of opportunity and teaching moment, a time to grieve, heal and reflect on what New Zealand is as a society. I thought that we could finally confront the elephant in the room: that underneath the veneer of tolerance and egalitarianism there is a dark underbelly in New Zealand. It is called racism.

For the first week it seemed that the opportunity was going to be seized. The government responded with empathy and compassion for the victims and with decisiveness when it came to banning certain types of military-style weapons and parts that can be used to modify hunting weapons into military-style ones. It is pondering how to give the killer a fair trial without turning it into a martyr-making propaganda circus. It is reviewing hate speech laws and has ordered a Royal Commission inquiry into how the attack happened and the intelligence failures that may have contributed to it. The majority of the nation followed its lead and demonstrated that most Kiwis are, in fact, decent people.

However, in the ensuing days the national conversation has been side-tracked. After a period of silence or contrition, rightwing outlets are back to their old enabling games. Outlets like the virulently Islamophobic Whale Oil and slightly more moderate blogs have enforced some degree of moderation when it comes to the language used by authors and commentators, but the hateful tone toward the “Other” remains the same when read between the lines. The rightwing rallying cry is defence of free speech, in which the ruse used is to deliberately conflate protected offensive speech with hate speech in order to demonstrate that “liberal” democratic values are under siege by overzealous Lefties using the tragedy and their control of the state apparatus to impose their will on dissenters. This risable argument is supported by some on the venerable Left who seem to be more concerned about defending the rights of nasty white people rather than consider the fact that it is those people who facilitated and enabled the nasty white guy’s mass murder of a bunch of brown folk whose sole crime was to exist (and who made a point when doing so by gunning them down when they were practicing their faith in their houses of worship).

Diversionary tactics aside, let us be clear. When it comes to free versus hate speech the issue is simple: any speech that incites, encourages, supports, applauds or otherwise instigates or excuses violence against individuals or communities because of who they are (as opposed to anything they have done, although even there the call to violence is debatable), has crossed the line from protected speech into hate speech. Offensive speech remains protected, but the urging of violence is not. The issue is not about causing offence; it is about causing harm.

The gun lobby also has decided that amnesia is the best part of public virtue so now moans and whines about “law-abiding” people losing their gun rights thanks to the government’s legislative reforms, conveniently forgetting that the killer was a law-abiding loser until the moment he stepped out of his car down the street from the Masjid al-Noor on Deans Avenue. Here too, the issue is simple (and I urge readers to look up my blog colleague Lew on Twitter to see his very reasoned explanations of the matters at stake). Tightening of licensing requirements and enforcement of laws governing purchase of semi-automatic weapons and removal of conversion kit and military-style weapons does not infringe on the privileges of the gun-owning majority (note that it is a privilege to own a gun, not a right no matter what the bloody NRA would have us believe). The law changes do not prevent anyone from using guns as tools to target shoot and kill critters. It just helps lower the human body count when a gun owner goes off the rails (do not get me started on the “but then only criminals will have such guns” argument because that is a matter for strict law enforcement, and law enforcement must have the will to, well, strictly enforce the law rather than play nice with gangs and assorted other bad guys).

Then there are the closet racists who have emerged into the light like the Hamilton city councillor and Immigration officer (?!), who besides ranting on Facebook (a prime vector for hate speech in spite of recent bans on white supremacists) about immigrant “scum” in Europe after the Paris terrorist attacks now says without a hint of irony that NZ needs to “move on” from the Christchurch event. He is joined by a-holes like Brian Tamaki, who claimed that the call to prayer on the day of national remembrance a week after the attack was proof the Sharia was being imposed on NZ. He appears to not be the only non-Pakeha religious leader (if you can call a fraudster con artist that) with this sentiment, as I have been told by informed community members that Islamophobia is very much a staple part of sermons in some Pasifika Christian churches.

Assorted talkback hosts and politicians are now in full “whataboutism?” mode, trying to equate the evils of Muslim extremists (and Islam itself) with those of other fanatics (while conveniently avoiding their ideological cause). This follows the denialism of such (perhaps as of yet closeted) politicians as Gerry Brownlee and Lianne Dalziel, who claim (Brownlee in very pointed remarks directed at me) that they were unaware of any white supremacists in Christchurch or anywhere else in NZ. Sensing an opportunity, people with ideological personal and agendas are in full throat, be it as purported experts on gangs and terrorism or pushing lines such as that the 1881 assault on Parihaka is a comparable atrocity (in which no one died).

Let’s not muddy the waters. Arguments about gun control and free speech and the historical grievances that are part of the national story are all diversions from the essence of post 3/15 New Zealand. The core subject is that of racism and the cesspit of bigotry in which it festers, from the enabling head-nodders to the inciting megaphones to the keyboard cowards to the actual perpetrators of physical and psychological (yes, they exist) hate crimes against people who supposedly are “different.”

This is not just a problem with a few skinheads. It is a problem for all. Some Pakeha hate Maori. Some Maori hate Chinese. Some Chinese hate Polynesians and some Polynesians hate Palangi. Some Maori and Pakeha hate Chinese and some Chinese reciprocate the feeling. Some hate Muslims and some hate Jews. Some hate Muslims, Jews and anyone who is brown, black or “yellow.” Some hate gays, lesbians and transgender people. Some hate red heads. Some hate the notion of equality when it usurps patriarchy or heteronormative values. Some hate is individual, some of it is institutional and some is systemic. Some hate involves relationships and asymmetries of power, but not always. Hate comes in multiple cross-cutting dimensions that serve as the foundation for ongoing bigotry and racism. In contemporary Aotearoa it may be a minority sentiment that is fractiously manifest rather than uniformly presented, but it is the wretched garden in which the bitter fruit of bigotry and racism are sown and reaped. And it is endemic in NZ.

THAT is what the national conversation should be about. That is what our children should be taught about. That is what the enablers, accomplices and purveyors of racism must be confronted with. This is no longer a time when we can look the other way, say “she’ll be right” and hope that the unpleasant stuff just goes away.

3/15 changed all that, and it is time to stand up and be counted. And being counted is not to just have academic panel discussions and government inquiries and commemorations. It is about confronting racism and bigotry wherever it rears its nasty head and however it is specifically manifest: on the streets, in buses, in shops, in schools, in sports clubs and volunteer organisations, in churches, in local politics, on-line, on talkback radio and in town halls and community fora–whenever the trolls rise there must be righteous people willing to call them out for what they are: ignorant fearful losers looking for scapegoats for their own failures in life.

It is hard to confront someone, especially if they are bigger or in groups. So strategies must be developed to help the average person perform this important civic duty. That means gaining the support of and involving the authorities so that complaints can be made and charges laid without undue risk to the good people calling out the antisocial misfits. Because if all we do is talk about what a bummer racism is and then go back to our own self-interested lives unwilling to actually walk the walk of daily anti-racist conviction, then we truly are a nation of sheep.

Unions, Parties and the decision to strike.

datePosted on 20:12, July 9th, 2018 by Pablo

For the bulk of my academic career I worked on issues of regime change and interest group intermediation, with a particular interest in Latin America. I wrote a couple of books (one co-authored) about state-labour relations in several South American countries and a fair number of articles that included discussion of how labour engaged in collective action under different regime types. The comparative study of state-labour relations remains an abiding interest of mine.

One of the axioms of comparative democratic labour relations is that unions will engage in more cooperative labour relations strategies and therefore strike less under Left governments than they will under Right governments. The presumption is that since Left governments are working class based or supported, and because they are sympathetic to working class concerns in their policy platforms, there is less incentive for unions to take strong collective action against them, particularly with respect to strikes and  other forms of labour service withdrawal. This is especially so because such direct action could undermine the Left government in question and leave it vulnerable at the next election.

Because unions presumably prefer to have Left governments over Right governments in office, resorting to labour service withdrawals would be a counterproductive union political strategy over the medium term even if economically productive over the short term. That is true of public sector strikes in particular (since strikes, even when focused on economic issues, are inherently political when they involve the state as employer), but private sector strikes are also seen as electorally injurious to Left governments (after all, if a Left government cannot “control” unions then what is the point of having them?).

In terms of so-called political strikes as well as economic strikes, Labour governments are generally thought to offer a better prospect for labour peace.

Conversely, unions supposedly dislike Right governments and therefore engage in more confrontational approaches to labour relations, particularly if there perceive that there has been a rollback of union legal and economic gains under those or previous Right governments. Both economically and politically, unions have reason to adopt more militant strategies under Right governments.

The subtleties embedded in this dichotomy are found in the strategies of public sector versus private sector unions against a backdrop of relative union density and the legal frameworks governing wage-setting. This assumes that union leaders and members share the same ideological orientation and that union leaders accurately transmit the material demands of the rank and file during negotiations with the State and employers (i.e. the principal/agent relationship is tight and coordinated). At that point employer characteristics at the level of the firm as well as productive sector come into play, set against a backdrop of relative business sectorial organisation (both as producers and employers) and the labour relations framework operative at the time. A collective action and strategic interaction is framed by macroeconomic conditions and government budgets, with sectorial growth and Treasury surpluses being determinants of the latitude for negotiation in any particular instance.

For the last three decades all of this occurs in the context of the globalisation of production, consumption and exchange under market-oriented macroeconomic policies developed and implemented by public sector technocrats that seek to outsource public sector service provision and downsize the legal authority and managerial and regulatory functions of the State as part of government mandated, market-oriented ideological agendas.

In the era of market-oriented economic reform, changes in labour relations’ legal frameworks have tended to favour employers and business associations over labour unions under both Left and Right democratic governments, with the degree of favouritism seen in the approaches towards collective bargaining adopted by each. Overall, although Left governments have mitigated much market-oriented labour reform while Right governments have sought to accentuate and exploit them in order to weaken the labour movement and atomise working class representation and collective strength, the trend has seen a weakening of union power across the democratic capitalist world as measured in union density, membership numbers and the collective rights and legal authority governing working class representation in production. This has been acutely felt in the private sector where individual worker rights and contracts predominate over collective rights and representation. With their relative collective strength, public sector unions remain as the diminished core of most contemporary labour movements in capitalist democracies.

A key factor in determining the propensity to strike is wage-setting institutions. Generally speaking, the more centralised the bargaining nexus and more monopolistic the bargaining agents doing the negotiating, the more likely that unions will prosper in their demands without having to resort to strikes. In contrast, the more decentralised the bargaining forum and the more disparate the bargaining agents, the more likely it is that employers will have the upper hand in bilateral negotiations with employees, thereby increasing the possibility of strikes. For example, tripartite (labour, state, capital) wage boards governing wage negotiations in specific economic sectors tend to push compromises that trade incremental wage gains for productivity, job security and reinvestment guarantees. Conversely, enterprise level bargaining between employers and various employee bargaining agents tends to fix or depress wage bills in exchange for non-wage guarantees. In New Zealand collective bargaining is more closely based on the latter model rather than the former and yet overall strike levels have remained low.

The way in which the union movement is incorporated and inserted in the political system matters in this regard. The form of initial incorporation (that is, the way in which unions are initially integrated into the national political system), may be more of historical rather than practical import for well-established unions created in the previous century and whose insertion in the political system today was consolidated some time ago. But initial incorporation matters much to recently organised contemporary unions without long political histories. That is because the terms of their political incorporation and subsequent political insertion in the political system are still being determined and sometimes disputed, including by older or more established unions as well as the State and employers. These may not echo or even resemble the conflicts surrounding initial labour incorporation and political insertion in the past, but they nevertheless condition the way these newer collective agents are allowed to exercise economic and political representation in the present context.

There are three main forms of labour political insertion. In some liberal democracies organised labour is inserted in the political system in Left party dominant fashion, e.g., the party dominates the union in both leadership selection as well as member political affiliation. In other liberal democracies unions dominate or control the party, with union representatives holding key Party positions down to grassroots organising and regularly running for office. In still others unions are independent of Left political parties although nominally sympathetic to them, with union leaders and members displaying a broader range of party affiliations than under the first two types. In illiberal democracies so-called “yellow” unions (factory or business unions and “professional associations”) exist that are independent or affiliate with Right parties. In the main these are not considered to be authentic representatives of working class collective interests because they are created by or at the behest of employers in lieu of them.

This brings up the subject at hand. There currently is the possibility of nurses, public servants and teacher’s strikes in the next few weeks. Conservative commentators have claimed that this is to take advantage of the Labour-led coalition’s “weakness” and to seize the moment of opportunity provided by Labour’s unwillingness to confront the unions in question. That runs against the conventional wisdom about Left governments and unions. So the question is: why are the nurses, public sector and post-primary teacher’s unions threatening to strike?

One answer may lie in that all of these collective agents are public sector unions that are independent of the Labour Party and its coalition partners. Membership density is high but the sociological demographic in each is changing, with younger members being more ethnically diverse and less identified with the traditional class structures of the industrial era (since those under 30 are of the post-industrial, post-modern age). This may have led to a rejigging of agent/principal relations within the respective unions that might make them more prone to challenge the labour relations orthodoxies of the past, to include being more cooperative when Left governments are in power.

Another answer may lie in the fact that Labour, for all of its “progressive” policy pronouncements and initiatives, still clings to market-driven logics of production that, even when cushioned along the margins, reinforce the collective bargaining dominance of capitalists. Seen in labour legislation and the role of national labour administration as an interlocutor between labour and capital, this includes cost-cutting managerial rationales in the public sector, where modern Taylorist principles have been borrowed from the private sector and applied to public sector service provision.

That bureaucratic orientation could be partially due to the fact that most Labour leaders are career politicians with few backgrounds “grounded” in the realities of working class activism, and/or because the party’s focus has recently concentrated more on identity rather than class politics. This has caused Labour to accept market logics in principle and market-oriented solutions to employment relations in fact. The NZ Labour Party is less a working class party than a coalition of post-industrial causes joined by antipathy to conservative (read: Anglo-Saxon Christian capitalist heterosexual and patriarchal) mores. Seeing the situation in this light could well disincline nurses, teachers and bureaucrats from continuing to toe the “cooperative” line, especially if the union demographic traits outlined above prove to be correct.

It is worth noting that the long-established unions affiliated with the Labour Party have not uttered a peep about strikes, to include not offering solidarity with the nurses and teachers. Newly created unions like UNITE in the private sector have engaged in strikes regularly against private employers under the previous Right government and are supportive of the action. But in general the union movement in New Zealand has remained out of the conflict between the State (as manager and employer via the civil service, DHBs and Education Ministry) and the nurses, bureaucrats and teachers unions.

Another question is why did these unions (or most others, for that matter) not strike regularly when the National government was in office? Was it a matter of contracts being in force? Or was it the limits placed on strike action both legally and practically? On the face of it, it seems odd that civil servants, nurses, teachers and other productive groups would wait to strike until Labour was in office if they were out of contract towards the end of the National government. Did they think that striking in an election year would lessen Labour’s chances of winning a plurality and forming a government or, put more appropriately, strengthen National’s arguments that they needed to continue to hold a tight reign on labour market dynamics less the economy lose momentum? This is true for private sector unions but particularly so in the case of public sector unions. Or are the conservative commentators correct and non-Left party affiliated public sector unions simply more willing to exploit Labour’s perceived “weakness” on collective bargaining matters?

If so, then the Labour-led coalition has a problem that is more political than economic.

I am still working through the logics at play because I do not know the internal dynamics of the unions in question nor the Labour-led government’s strategy for handling the strike threat. But if any readers would like to join the discussion and illuminate me on the details of each position, that would be welcome.

On intelligence oversight, a broader perspective.

datePosted on 17:10, April 20th, 2018 by Pablo

The announcement that the Inspector General of Intelligence and Security (IGIS), Cheryl Gwyn, has convened an external Reference Group to discuss issues of intelligence agency oversight (specifically, that of the NZSIS and GCSB, which are the agencies under her purview) has been met with applause and controversy. The applause stems from the fact the Group is a continuation of her efforts to strengthen the oversight mechanisms governing New Zealand’s two most important intelligence collection and analysis agencies. The controversy is due to some of the persons who have accepted invitations to participate in the Group.

The Group is an unpaid, non-partisan collection of people with interest, expertise and/or background in matters broadly related to intelligence and security and their oversight. None are government employees, something that gives them freedom to speak frankly under the Chatham House rules established by the IGIS. The Group is a supplement to and not a rival of or substitute for the IGIS Advisory Panel, made up of two people with security clearances that have access to classified material and who can offer specific assistance on matters of operational concern. However, the Advisory Panel has had no members since October 2016.

The idea behind the Reference Group, which is modelled on a Dutch intelligence oversight counterpart, is to think laterally or “outside of the box” on matters relevant to intelligence oversight. Bringing together people from different backgrounds and perspectives allows Group discussions to gravitate towards areas of common concern, thereby eliminating personal agendas or extreme positions. And because the Group is made up of outsiders, it does not run the risk of becoming slave to the groupthink of agency insiders.

In contrast to the Advisory Panel, the Reference Group does not handle classified material nor discuss operational matters. Access to classified material or operational details is obviated by the fact that the Group’s focus is on the broad themes of accountability, transparency, organizational compliance and the balance between civil liberties (particularly the right to privacy) and the defense of national security as conducted by the lead intelligence agencies. These are matters of legality and propriety rather than operational conduct. And while similarly important, legality and propriety are not synonymous. Often what is legal is not proper and vice versa, and this is acutely the case when it comes to intelligence collection, analysis and usage. Since the IGIS does not oversea the NZDF and smaller intelligence “shops” such as those of the DPMC, Police, Immigration and Customs, the Group will only discuss issues relevant to oversight  of the NZSIS and GCSB.

Who are the members of the Group and why the controversy? The plurality of members are four public interest lawyers, three of them academicians and one an advocate for refugees. Two members are journalists. One is the Issue Manager for Internet NZ, one is the head of the NZ Council for Civil Liberties, one is a former Russian diplomat now serving as the Director of the Massey University Centre for Defense and Strategic Studies (CDSS), one is an economist who chairs Transparency International New Zealand and one is a private sector geopolitical and strategic analysis consultant.

Concern has been voiced about the presence of both journalists as well as the refugee advocate and the loyalties of the former Russian diplomat (although he has held positions at a US security institution as well as the NZDF-funded CDSS). The thrust of the contrary views about these and some of the other participants is that they are untrustworthy due to their personal backgrounds, professional affiliations and/or ideological orientations. An additional reason given for opposing some of the membership is that they have been strong critics of the SIS and GCSB and therefore should be disqualified a priori.

Others believe that the Group is just a whitewashing, window-dressing or co-optation device designed to neuter previous critics by bringing them “into the tent” and subjecting them to “bureaucratic capture” (whereby the logic of the agencies being overseen eventually becomes the logic accepted by the overseers or Reference Group interlocutors).

The best way to allay these concerns is to consider the IGIS Reference Group is as an external focus group akin to a Town Hall meeting convened by policy-makers. Communities are made of people of many persuasions and many viewpoints, and the best way to canvass their opinions on a broad range of subjects is to bring them together in a common forum where they can debate freely the merits of any particular issue.  In the case of the Reference Group the issue of intelligence agency oversight and, more specifically, matters of institutional and individual accountability (both horizontal and vertical, that is, vis a vis other government agencies such as the judiciary and parliament, on the one hand, and vis a vis the government and public on the other); transparency within the limits imposed by national security concerns; and the juggling of what is legal and what is proper, are all set against the backdrop of respect for civil liberties inherent in a liberal democracy. These are complex subjects not taken lightly by those involved, all of whom have track records of involvement in the field and who, given the terms of reference and charter of the Group, are acting out of a sense of civic duty rather than for pecuniary or personal gain.

The IGIS does not need political or agency authorisation to construct such a Group, which has no statutory authority or bureaucratic presence. As a vehicle for interest intermediation on the subject of intelligence oversight, it serves as a sounding board not for the IGIS but for the people on it. In that light, the IGIS has called the Group’s discussion a “one-way street” where participants air their informed opinions about agenda items agreed to in advance and in which the IGIS serves as a discussion moderator and takes from it what she finds useful. Expected to meet two or three times a year over tea and coffee, the Group is not likely to tax the Treasury purse and could well deliver value for dollar in any event.

Critics of this exercise and other forms of interest intermediation or external consultation betray their closet authoritarianism because such concertative vehicles are mainstays of policy-making in advanced liberal democracies. Be it the tripartite wage negotiation structures bringing representatives of the State, labour and capital together (even at the regional or local level), to consultative boards and other social partnership vehicles that connect stakeholders and decision-makers in distinct policy areas, the use of interest intermediation is an integral feature of modern democratic regimes (for an example of the breadth of issues addressed by intermediation vehicles, see Kate Nicholls, Mediating Policy: Greece, Ireland and Portugal before the Eurozone Crisis. London: Routledge, 2015.). To argue against them because of who is represented or because they are seen as inefficient talkfests that are a waste of taxpayer money is just a cloak for a desire to silence broad public input and dissenting views in the formulation of public policy. That may have been the case under the previous government but no longer is the case now.

One of the thorniest problems in a democracy is the question of what system of checks and balances keeps the intelligence community proper as well as legal. As the most intrusive and sensitive of State activities, intelligence collection, analysis and usage must be free from reproach on a number of grounds—conflicts of interest, partisan bias, foreign control, illicit activity or criminal behaviour, etc.—and must be accountable and responsive to the public will. The broadening of consultation intermediators between the NZ intelligence community and the public is therefore a step in the right direction, and for that reason the Reference Group is a welcome contribution to the oversight authority vested in the IGIS.

References: http://www.igis.govt.nz/media-releases/announcements/establishment-of-igis-reference-group/

http://www.igis.govt.nz/media-releases/announcements/reference-group/

Disclosure: The author is a member of the Reference Group. The views expressed are his own.

Careful with that eugene, ACT

datePosted on 20:28, July 15th, 2017 by Lew

Beth Houlbrooke

Eugenics

ACT’s brand new deputy leader, Beth Houlbrooke, is into eugenics.

That’s what’s behind her emergence from the dusty old crypt of “if you can’t afford children, don’t breed” this week. I called it eugenics because when you use welfare to restrict fertility you’re targeting people who are overrepresented among welfare recipients, which in Aotearoa means you’re targeting Māori and Pasifika people. I was not alone.

And what happens when these benefit cuts produce increased rates of hunger, homelessness, sickness, neglect, and abuse among those families? Well, the government’s brand-new Ministry for Vulnerable Children will take them away from their parents. Welcome to your first glimpse of Aotearoa’s next stolen generation, just days after the government refused to consider redress for the last generation of children abused in state care.

Does this all seem a bit of a stretch? Well, we know what government-mandated child welfare agencies do when they decide parents are not doing well enough: they “manage” those parents. This is explicit in the ACT policy:

ACT WILL:

  • Push for a life-time limit of five years for support under the Sole Parent Support programme, and a life-time limit of three years for support under the Jobseekers Benefit, with “income management” being applied to beneficiaries when those limits are reached.
  • Extend income management to any parent who has additional children while on a benefit.

We know what happens when governments micromanage welfare: people find it a bit harder to buy smokes and booze, sure, but they also are forced to shop at a limited range of expensive outlets, they can’t buy cheap healthy produce at markets, they can’t barter or pay cash, and they are incentivised to game the system rather than working within it. The ACT Party hates perverse incentives, but not this one. And in Australia, it costs a fortune to administer. It would literally be cheaper to give each NT recipient an extra $100 per week than to give them a Basics Card. And we know what the ultimate government sanction is for “bad” parents: the removal of children from their custody. Draw your own conclusions.

As to eugenics. ACT leader David Seymour’s press secretary helpfully confirmed this aspect when he compared the ACT policy to abortion, which has the distinction of being the leading eugenic technique currently in use worldwide (largely for sex-selection). I gave him several opportunities to walk it back but he bravely refused them.

Read the whole thread, and draw your own conclusions. (And yes. Louis Houlbrooke appears to be Beth’s son. Rumination on the political wisdom of appointing the leader’s press sec’s mum as deputy leader are left as an exercise for the reader.)

This is not just ACT’s bag. That nice man John Key — himself raised on welfare — spoke in 2002 of women “breeding for a business” under Labour’s DPB rules. Current PM Bill English, while he would surely disavow the abortion analogy, was happy to compare welfare recipients to drug addicts. This kind of thinking goes all the way to the top.

Class eugenics

My response to the policy was the sort of fury that educated white dudes don’t usually get in welfare discussions: that’s me they’re talking about! After my father died my mother brought three young kids up on the benefit, and we will never forget that. Attacks on welfare, and especially on welfare mothers, are attacks on us. I had a wee rant about it that you can read if you can stand the swearing.

Dozens of others on twitter did likewise. Some are a bit famous. One is a Member of Parliament. A list put together by The Spinoff of notable children of welfare recipients includes millionaires, war heroes, All Black legends, and no fewer than three Prime Ministers. I was amazed by how many people had grown up on welfare and yet, somehow, had managed to become productive, decent human beings. I shouldn’t be, but there you go: that’s how deep anti-welfare stigma goes. Few of us in Aotearoa are many generations from being dirt poor, and it would pay us to remember that and not be ashamed of it.

The fact that so many people not only benefited from welfare, but understand its continuing importance in the age of busted unions, stagnant wage growth, casualisation, and the “gig economy” represents a threat to parties like ACT and National. The social purpose of the welfare is to support people out of poverty and into work and prosperity. It is a system that creates and nourishes the working class, and prevents the worst excesses of capitalism from destroying workers. And it works.

So of course the right-wing want rid of it. They can’t erase welfare kids from my generation, but in terms of long-term strategy, preventing today’s generation of poor people from having kids like us probably seems a pretty sound way to destroy class consciousness.

The way this breaks down illustrates how class politics is not distinct from but a necessary adjunct to identity politics in leftwing praxis. On paper I am pretty middle class, but this is temporary. Few of us welfare kids ever forget how little it takes to fall into economic uncertainty, so culturally, I will always be working class. Purists might bridle at this as just another identity, and some will continue to deride me as a bourgeois liberal managerialist, but I know where I came from.

This is how identity politics intersects with class politics. The same factors which make ACT’s intended victims — young, poor, brown women — vulnerable to this policy means they also stand to benefit most from Labour’s Families Package and Best Start policies, which provoked Houlbrooke’s statement in the first place. So bringing class and identity politics together, even if it was inadvertent, is good: it is brave policy, directly targeting people who already suffer from a lack of equitable access to the political and economic system. And those of us who remember what it was like to be brought up on the benefit, who now enjoy the privileges of a middle-class life and access to the political system, can show solidarity. We must show solidarity. Doing otherwise would be a betrayal of our ancestors.

The lack of a robust response to ACT’s latest attack on poor people from Labour is disappointing. It has largely been left to people on social media to fight the fight, and to my knowledge nobody in the party has used the e word. This is perhaps understandable in light of the party’s own history of man-on-the-roof welfare-bashing, and, you know, I grew up on that benefit under Rogernomics. They’re not blameless on this stuff. But let’s not be churlish. While Labour in 2017 might not be ideal, at least they’re not trying to breed poor people out of existence.

Still think it is all about postmodern identity?

datePosted on 15:24, June 18th, 2017 by Pablo

Long term readers may recall something I wrote a few years ago about the issue of Left praxis and the need for a class line above all other strategic perspectives. That post was done in part because of the prevalence of identity politics and other post-modern forms of association within the NZ Left (such as certain “polyamorous” factions present in local progressive circles). This focus on non-class based forms of identification has been eloquently defended at some length by my colleague Lew here at KP, so there is merit in it, at least in some instances.

However, I believe that a major contributing factor to the decline of the Left as an ideological force and political alternative to currently dominant market-supportive ideologies and parties is the turn away from a class line, be it by the 3rd Way Labourites that NZ Labour emulates or the NZ Green Party with its election campaign emphasis on youthful (primarily female Pakeha) candidates over policy substance (which has completed the turn away from “watermelon” politics where class was at the core of its environmental philosophy and grassroots demographic and towards a business-friendly largely urban metrosexual orientation). The fact that many on the Left welcomed the victory of Emmanuel Macron, an investment banker, over Marine Le Pen, a neo-fascist, in France and failed to understand Donald Trump’s populist appeal to white American working class and lumpenproletarians (a sin I was guilty of) demonstrates the intellectual and practical vacuum at the core of what passes for modern progressive politics in some parts of the world, Aetoroa in particular.

It puzzles me that even in the face of Bernie Sanders’ remarkable primary campaign in the 2016 US presidential election and UK Labour’s rise under Jeremy Corbyn’s leadership in the UK snap elections of a fortnight ago, that many in the US, UK and NZ Left still cling to the (false consciousness) notion that centrist policies and identity politics are the way to play the game. The truth is that centrist politics have bottomed out under the polarising conditions produced by Alt-Right provocations and disinformation and the futility of the Left trying to successfully play a “soft” version of the market-oriented election game. The corporate and media Right have been quicker to realise this and seized the opportunity to deepen neoliberal era policies of economic deregulation and public sector cost-cutting by adding to it the politics of cultural conflict, immigration control and other methods by which the underlying bases of class conflict are downplayed in order to harvest the political fruits of cross-class uncertainty and fear.

The effect of three decades of market-driven ideological socialisation and post 9/11 politics of fear has been to prompt vulnerable sectors of liberal democratic societies to revert to primal and centrifugal forms of identification–race, religion, ethnicity, culture, nationality–all of which divert attention from the commonality of wage labour class subservience and its increased precariousness under the rule of a predatory type of post-industrial capitalism. Clearly non-class forms of identification need to be factored into any  discussion of praxis in a given socio-economic and political context, but adding non-class identification into the mix as the main focus of progressive struggles only serves to further dilute the solidarity bonds created by the one commonality workers have in the social division of labour of contemporary advanced capitalism.

And yet, in the face of this much of the Left appears to be suffering a form of post-modern paralysis where it is unwilling or unable to recognise that the advances made on superstructural issues like gender and LBGTI rights have their genesis in (but are not reducible to) the class driven struggles of the industrial and post-industrial eras, many of which persist to this day.

With that in mind, rather than prattle on as an old white male former academic, I defer to a genuine organic intellectual of the Left. The context is the aftermath to the Grenfell Tower fire in London:

https://www.facebook.com/thedeepleft/videos/649061075299366/?pnref=story

Guest Post by Selwyn Manning – Editor of EveningReport.nz.

KP Note: The issue of what the NZSAS did or did not do in Operation Burnham, a 2010 raid in Afghanistan that became the subject of the controversial book Hit and Run by Nicky Hager and Jon Stephenson, must not be buried and forgotten by the next news cycle. The issues at stake go to the core of democratic civil-military relations: issues of accountability, transparency and civilian oversight of the armed forces. In the following guest post veteran journalist Selwyn Manning (formerly of Scoop and among other things co-founder of 36th Parallel Assessments) dissects the NZDF response to the allegations in the book and takes a close look at some important discrepancies in the official version of events. Readers are encouraged to carefully consider what he has uncovered.

There’s an overlooked aspect of the New Zealand Defence Force’s account of Operation Burnham that when scrutinised suggests a possible breach of international humanitarian law and laws relating to war and armed conflict occurred on August 22, 2010 in the Tirgiran Valley, Baghlan province, Afghanistan.

For the purpose of this analysis we examine the statements and claims of the Chief of New Zealand Defence Force (NZDF), Lieutenant General Tim Keating, made before journalists during his press conference on Monday March 27, 2017. We also understand, that the claims put by the Lt. General form the basis of a briefing by NZDF’s top ranking officer to the Prime Minister of New Zealand, Bill English.

It appears the official account , if true, underscores a probable breach of legal obligations – not necessarily placing culpability solely on the New Zealand Special Air Service (NZSAS) commandoes on the ground, but rather on the officers who commanded their actions, ordered their movements, their tasks and priorities prior to, during, and after Operation Burnham.

*******

According to New Zealand Defence Force’s official statements Operation Burnham ‘aimed to detain Taliban insurgent leaders who were threatening the security and stability of Bamyan Province and to disrupt their operational network’. (ref. NZDF rebuttal)

We are to understand Operation Burnham’s objective was to identify, capture, or kill (should this be justified under NZDF rules of engagement), those insurgents who were named on a Joint Prioritized Effects List (JPEL) that NZDF intelligence suggested were responsible for the death of NZDF soldier Lieutenant Tim O’Donnell.

Lieutenant General Tim Keating, Chief of New Zealand Defence Force.

When delivering NZDF’s official account of Operation Burnham before media, Lieutenant General Tim Keating said:

    “After the attack on the New Zealand Provincial Reconstruction Team (NZPRT), which killed Lieutenant Tim O’Donnell, the NZPRT operating in Bamyan Province did everything it could to reduce the target profile of our people operating up the Shakera Valley and into the north-east of Bamyan Province.

“We adjusted our routine, reduced movements to an absolute minimum, maximised night driving, and minimised time on site in threat areas.

“The one thing the PRT [NZPRT] couldn’t do was to have an effect on the individuals that attacked Lieutenant O’Donnell’s patrol. For the first time, the insurgents had a major success — and they were well positioned to do so again.”

For the purpose of a counter-strike, intelligence was sought and Lt. General Keating said: “We knew in a matter of days from local and International Security Assistance Force (ISAF) intelligence who had attacked our patrol [where and when Lt. O’Donnell was killed].”

The intelligence specified the villages where the alleged insurgents were suspected of coming from and Lt. General Keating said: “This group had previously attacked Afghan Security Forces and elements of the German and Hungarian PRTs.”

The New Zealand Government authorised permission for the Kabul-based NZSAS troops to be used in Operation Burnham.

“What followed was 14 days of reliable and corroborated intelligence collection that provided confirmation and justification for subsequent actions. Based on the intelligence, deliberate and detailed planning was conducted,” Lt. General Keating said.

Revenge, Keating said, was never a motivation. Rather, according to him, the concern was for the security of New Zealand’s reconstruction and security efforts in Bamyan province.

As stated above, Operation Burnham’s primary objective was to identify, capture or kill Taliban insurgent leaders named in the intelligence data.

We know, from the New Zealand Defence Force’s own account, Operation Burnham failed to achieve that goal.

Read the rest of this entry »

Foxes in the hen house.

datePosted on 12:44, January 31st, 2017 by Pablo

Here is a thought. Among all the wretched news coming out of the US this past week, two somewhat lesser items struck me. One was that Trump’s son-in-law was granted a high level security clearance, and the other was that former Brietbart boss, white supremacist and pro-Russian provocateur Steve Bannon has been given a Principal’s seat on the National Security Council, displacing both the Director of National Intelligence and the Chairman of the Joint Chefs of Staff (who now attend on an “as needed” basis).

During the time I spent in the US security apparatus I held several levels of clearance, working my way up to the fairly high Top Secret/Secret Compartmentalized Information (TS/SCI) level. The scrutiny I received in order to get that clearance was pretty intrusive and lengthy: polygraph and drug tests, background checks run by the DIA that included interviews with college friends, my former wife, work colleagues at various places and even neighbours, and an FBI background check. The process took about 10-12 months.

Bannon and Jared Kushner will be privy to sensitive information well above my ultimate pay category, and yet the latter was granted a clearance in a month and the former, for all we know, has yet to receive one. I know that elected political officials do not have to undergo the sort of background checks that I did (something that is always troublesome when congressional testimony is given behind closed doors to congresspeople who are known to have serious skeletons in their closets that make them liable to blackmail). But political appointees as well as career civil servants and military personnel must have those checks done before assuming the jobs in which they handle highly sensitive information. Mistakes have recently been made in security vetting due to outsourcing (Edward Snowden) and people can grow disenchanted and violate their oaths (Chelsea Manning), but for the most part the security vetting process allows the government some degree of confidence that the person being scrutinised cannot be blackmailed, is not financially vulnerable, is not addicted, criminally violent, mentally ill, etc.

So my questions are these: Has Steve Bannon undergone any security vetting, particularly given his background and links? Why did Mr. Kushner receive an expedited clearance rather than a thorough one? There are other individuals in the Trump White House who also have access to this type of information without full security vetting (including a Brietbart editor), but for the moment I wonder about those two fellows.

This is more than a matter of personal curiosity. Given Trump’s attacks on the military and intelligence leadership and the ongoing questions about his relationship with Russia in the wake of official claims that Russia sought to influence the US presidential election in his favour, these sort of moves could set the stage for a constitutional crisis in civil-military/intelligence relations. After all, if Bannon is talking to the Russians and Kushner is pillow whispering to Ivanka about policy matters that impact on the family businesses, why would the intelligence community and military brass feel comfortable with them receiving full classified briefs on such matters? Would it not be advisable for the security community to withhold highly sensitive information from them and direct that information to others such as NSC advisor Gen (ret.) Mike Flynn (also of some very suspect ties) on an “Eyes Only” basis? Or should they just give full briefs and let the chips fall where they may?

Neither option is a good choice, but one has potentially catastrophic consequences while the other undermines the foundations of elected civilian supremacy over the military and intelligence communities.

 

There are lessons here for New Zealand. The NZSIS is responsible for security vetting of people who will handle sensitive classified information, but its record is mixed in this regard. In 2010 it was revealed that Stephen Wilce, the head of the Defence Technology Agency (DTA), the scientific arm of the NZDF, was a serial fraudster and liar who among other things claimed to have been a member of the 1988 UK bobsled team and a former Royal marine who had worked for MI5 and MI6 in the UK and who had invented the guidance system for the Polaris (submarine launched and nuclear tipped) missile (you can find the NZDF Court of Inquiry Report on Mr Wilke here).

Mr. Wilce was recruited by Momentum Consulting (which was paid $25,000 for the job), a firm that included among its directors and executives National Party stalwarts Jenny Shipley and Michelle Boag. Momentum was supposed to have confirmed Mr. Wilce’s bonafides and the NZSIS was supposed to do his security vetting before granting him a high level clearance, but none of that happened. It was not until Mr. Wilce had been in the DTA job for five years that a whistleblower outed him.

In recent years the SIS has reported that security vetting takes up more and more of its time and resources, to the detriment of its domestic intelligence, foreign intelligence and counter-espionage activities. Delays in obtaining clearances are commonplace and pressures to expedite them are strong. That was exactly the situation that led to Edward Snowden being granted a high level security clearance. As it turns out, the firm that was contracted to do his security vetting by the NSA simply rubber stamped the clearance authorisation because it was swamped with such work.

Employees of New Zealand’s intelligence community and military personnel certainly undergo serious security vetting before they can be trusted to handle classified information. Perhaps, like the US, elected officials are exempt from the requirement, but what about parliamentary staffers and those employed in the DPMC? Given the revelations in the Dirty Politics book, can we be assured that the likes of Jason Ede and Phil de Joux (or even Roy Ferguson and Sir Maarten Wevers) have been vetted properly? Is everyone who is privy to classified material treated the same as military and intelligence personnel and subjected to a thorough security vetting process? Is outsourcing recruitment of people to sensitive positions still the norm? If so, is that outsourcing going to politically connected firms or is there now in place some objective standard of applicant vetting rigour that needs to be met?

I ask these questions because if anything, New Zealand appears to have a much looser government administrative system that does the US. Shoulder-tapping, “who-you-knows,” nepotism, cronyism, old boy networking–perhaps it is a small country thing but it seems to me that such practices occur fairly frequently when it comes to high level civil service positions (to say nothing of the private sector). If that is so, then it is fair to ask if these practices override the good sense need for security vetting of those involved with intelligence and military matters.

I stand to be corrected if wrong in this appraisal, but the issue still remains as to who with access to sensitive intelligence and security information outside of NZ intelligence and military officers undergo the type of security vetting that I underwent back in the US and which Messrs. Bannon and Kushner managed to avoid.

Put another way and stripped of the US baggage: are there Bannons and Kushner facsimiles in our midst?

Confronting academic Taylorists.

datePosted on 08:03, September 27th, 2016 by Pablo

Although the corporate media has not covered it, choosing instead to focus on the university’s fund-raising efforts, the academic and professional staff at the University of Auckland held a one hour strike last week to protest the lack of progress on negotiations for a fair living wage for all staff, especially for those at the lower end of the wage scale. Among other union proposals was the payment of a flat $2.500 increase to everyone covered by the collective contract in lieu of a cost of living increment. In conjunction with a rise in the minimum wage for lower-salaried workers, this would have the greatest positive effect on those struggling to keep afloat in the Auckland market.

University management refuses to negotiate until the budget is decided next month or in November. This runs contrary to traditional practice where pay for academic and professional staff is negotiated prior to the budget being fixed. It follows on more than a decade of erosion of collective benefits for university personnel and the slow but seemingly inexorable weakening of the Tertiary Education Union (TEU) as a bargaining agent at the University of Auckland.

The one hour lunchtime strike was well attended, although not massive in size. Shortly after 12:45 the director of Human Resources, a despicable cur if there ever was one, sent out a group email to TEU members advising them that their pay would be docked for the one hour they were on strike. He went on to request confirmation from the recipient that s/he was indeed on strike so that their pay could be deducted.

There followed a blizzard of emails in response. I am on the TEU mailing list so I got to read them all. Other than one person, all were critical of the university’s approach to employment relations. What stood out were the dozens of stories about countless overtime hours worked with no pay (the academic standard contract is for 37.5 hours per week), the abysmal lack of morale and trust in management amongst staff, and the psychological, emotional and physical toll the stress of working at the UA was taking on its staff. The stories were sad and many gut-wrenching.

These stories came from professors, lecturers, IT specialists, counsellors, librarians, tutors, administrative support staff–you name it, they had something to say. Some people asked how the deduction would work since they were not on an hourly wage. Others pointed out that they were on  leave but would gladly see their pay deducted in solidarity with those who attended the strike.  Many pointed out that they were at their offices during lunch hour working out of loyalty to students and colleagues but would gladly have their pay docked in solidarity with the strikers. Some suggested that the deducted pay should go to charity, at least until it was pointed out to them that the university is a registered  charity and the “donations” could well go into the VC’s pocket or as bonuses to his management team members (the VC is the highest paid public servant in NZ and the senior management team all make in excess of NZ$150K/year).

What became clear from the responses is that behind the facade of the University of Auckland being a “world class” university there is a deeply dishonest and unethical management that is seeking to destroy the TEU Auckland branch and thereby further subjugate its staff to its academic Taylorist precepts. I have written about this before, so no need here to reiterate what it entails. The bottom line is that the University is being hollowed out at its core, in a workplace where academics and academic support staff are reduced to time card punching and asking permission to use the loo while the ranks of middle and upper management bean counters proliferate like rats.

I have been critical of the TEU in the past for valuing wage increases over workplace control (including in the classroom, where there is increasing interference by middle level managers with no teaching experience). I always through that it was a bad idea to trade off regular wage increases for workplace control, which extends to promotion and research leave policy. But what is done is done and now the university management is in the final stages of its assault on the union.

The time to make a stand is now. Having read the emailed responses I decided to write a letter of support to the Auckland TEU and its members. This is what I wrote:

“Dear All,

As a former TEU member and academic staff member at the University of Auckland, I want to add my support to your efforts to restore the university to its former position as a fair and equitable workplace. Unfortunately, having dealt with Mr. Phipps as well as other management lackeys at close range, I believe that yours will be an uphill battle. Their objective is to break the union so that with a few exceptions you will eventually be subject to precarious individual, often part time contracts and thereby will be more easily exploited. The trend is already apparent and the situation is worse for junior staff and those not considered to be “stars.” Given the tight academic labour market and the already low union density amongst professional and academic staff (particularly the latter), it will be difficult to individually resist this project if the TEU is further undermined as a collective bargaining agent.

Mr. McCutcheon was a successful union-buster in his life before being appointed VC. Nothing in his tenure at UA suggests that he has moderated his views on the utility of collective agents, and the tone of Mr. Phipps’s suspension notice is a reflection of that. It should not be forgotten that this management team at UA is not known for its honesty or fairness when it comes to employment relations. “Good faith” is not part of their vocabulary. Many of you will know of the efforts by the SMT to offer financial incentives to senior academics to either quit or not join the union. You will have seen the replacement of departing permanent full time staff with part time hires. Given that there are academics who support or go along with the VC’s approach for self-serving reasons, the struggle to return civility and fairness to employment relations at the UA will be a tough one.

I would not be surprised if the many tales of unpaid hours owed to staff outlined in the barrage of email replies to Mr. Phipps’s suspension notice will be seen by the VC and his minions as a sign that their Taylorist approach to academia is working just fine. They need to be disabused of that notion.

The key to defeating the academic Taylorists is to assiduously defend and increase union membership and to strictly and unwaveringly adhere to any calls for direct action such as labour service withdrawals (be it strikes, slow downs or work-to-rule). The call for a living wage and fair pay for professional (non-academic) staff is a step in the right direction. However, much ground has already been lost in terms of workplace control, academic freedom, promotion and leave, so the time to regain some measure of balance in the employment relationship is rapidly disappearing. The nature and timing of the direct actions to be taken henceforth in defence of the union and its members will be decisive, and must receive unanimous support..

You should not expect favourable media treatment. Today’s editorial in the Herald about the University’s fundraising is indicative of the pro-management bias of the for-profit news outlets. A concerted PR campaign will be required to counter-balance the view, propagated by the SMT, that all is well at the university and that if anything, academics have things easy when compared to other wage earners.The public needs to hear the stories told in your emails to Mr. Phipps.

There comes a time when people can be pushed only so far. Perhaps that time has come for the TEU Auckland branch and its members. Although I no longer belong to the academic community, I understand your struggle and deeply empathise with it. I wish you the best of luck and success in staving off the managerial offensive.

Kia kaha!”

I can only hope that if the union does make a stand, that it not be its final one.

I was invited to speak at a forum in Wellington on the “Privacy Security Dilemma.” It included a variety of people from government, the private sector, academia and public interest groups. The discussion basically revolved around the issue of whether the quest for security in the current era is increasingly infringing on the right to privacy. There were about 150 people present, a mixture of government servants, students, retirees, academics, foreign officials and a few intelligence officers.

There were some interesting points made, including the view that in order to be free we must be secure in our daily lives (Professor Robert Ayson), that Anglo-Saxon notions of personal identity and privacy do not account for the collective nature of identity and privacy amongst Maori (Professor Karen Coutts), that notions of privacy are contextual rather than universal (Professor Miriam Lips), that in the information age we may know more but are no wiser for it (Professor Ayson), that mass intrusions of privacy in targeted minority groups in the name of security leads to alienation, disaffection and resentment in those groups (Anjum Rahman), and that in the contemporary era physical borders are no impediment to nefarious activities carried out by a variety of state and non-state actors (various).

We also heard from Michael Cullen and Chris Finlayson. Cullen chaired the recent Intelligence Review and Finlayson is the current Minister of Security and Intelligence. Cullen summarised the main points of the recommendations in the Review and was kind enough to stay for questions after his panel. Finlayson arrived two hours late, failed to acknowledge any of the speakers other than Privacy Commissioner John Edwards (who gave an encouraging talk), read a standard stump speech from notes, and bolted from the room as soon as as he stopped speaking.

Thomas Beagle gave a strong presentation that was almost Nicky Hageresque in its denouncement of government powers of surveillance and control. His most important point, and one that I found compelling, was that the issue is not about the tradeoff between security and privacy but between security and power. He noted that expanded government security authority was more about wielding power over subjects than about simply infringing on privacy. If I understand him correctly, privacy is a commodity in a larger ethical game.

Note that I say commodity rather than prize. “Prize” is largely construed as a reward, gain, victory or the achievement of some other coveted objective, especially in the face of underhanded, dishonest, unscrupulous and often murderous opposition.  However, here privacy is used as a pawn in a larger struggle between the state and its subjects. Although I disagree with his assessment that corporations do not wield power over clients when they amass data on them, his point that the government can and does wield (often retaliatory) power over people through the (mis) use of data collection is sobering at the very least.

When I agreed to join the forum I was not sure exactly what was expected from me. I decided to go for some food for thought about three basic phrases used in the information gathering business, and how the notion of consent is applied to them.

The first phrase is “bulk collection.” Bulk collection is the wholesale acquisition and storage of data for the purposes of subsequent trawling and mining in pursuit of more specific “nuggets” of actionable information. Although signals intelligence agencies such as the GCSB are known for doing this, many private entities such as social media platforms and internet service providers also do so. Whereas signals intelligence agencies may be looking for terrorists and spies in their use of filters such as PRISM and XKEYSCORE, private entities use data mining algorithms for marketing purposes (hence the targeted advertisements on social media).

“Mass surveillance” is the ongoing and undifferentiated monitoring of collective behaviour for the purposes of identifying, targeting and analysing the behaviour of specific individuals or groups. It is not the same thing as bulk collection, if for no other reason than it has a more immediate, real-time application. Mass surveillance is done by a host of public agencies, be it the Police via CCTV coverage of public spaces, transportation authorities’ coverage of roadways, railroads and airports,  local council coverage of recreational facilities and areas, district health board monitoring of hospitals, etc. It is not only public agencies that engage in mass surveillance. Private retail outlets, shopping centres and malls, carparks, stadiums, entertainment venues, clubs, pubs, firms and gated communities all use mass surveillance. We know why they do so, just as we know why public agencies do so (crime prevention being the most common reason), but the salient fact is that they all do it.

“Targeted spying” is the covert or surreptitious observation and monitoring of targeted individuals and groups in order to identify specific activities and behaviours. It can be physical or electronic (i.e. via direct human observation or video/computer/telephone intercepts). Most of this is done by the Police and government intelligence agencies such as the SIS, and most often it is done under warrant (although the restrictions on warrantless spying have been loosened in the post 9/11 era). Yet, it is not only government security and intelligence agencies that undertake targeted spying. Private investigators, credit card agencies, debt collectors, background checking firms and others all use this as a tool of their trades.

What is evident on the face of things is that all of the information gathering activities mentioned here violate not only the right to privacy but also the presumption of innocence, particularly the first two. Information is gathered on a mass scale regardless of whether people are violating the law or, in the case of targeted spying, on the suspicion that they are.

The way governments have addressed concerns about this basic violation of democratic principles is through the warrant system. But what about wholesale data-gathering by private as well as public entities? Who gives them permission to do so, and how?

That is where informed consent comes in. Informed consent of the electorate is considered to be a hallmark of robust or mature democracies. The voting public are aware of and have institutional channels of expression and decision-making influence when it comes to the laws and regulations that govern their communal relations.

But how is that given? As it turns out, in the private sphere it is given by the phrase “terms and conditions.” Be it when we sign up to a social media platform or internet service, or when we park our cars, or when we enter a mall and engage in some retail therapy, or when we take a cab, ride the bus or board a train, there are public notices governing the terms and conditions of use of these services that include giving up the right to privacy in that particular context. It may be hidden in the fine print of an internet provider service agreement, or on a small sticker in the corner of a mall or shop entry, or on the back of a ticket, but in this day and age the use of a service comes attached with it the forfeiture of at least some degree of privacy. As soon as we tick on a box agreeing to the terms or make use of a given service, we consent to that exchange.

One can rightly argue that many people do not read the terms or conditions of service contracts. But that is the point: just as ignorance is no excuse for violation of the law, ignorance of the terms of service does not mean that consent has not been given. But here again, the question is how can this be informed consent? Well, it is not.

That takes us to the public sphere and issues of governance. The reality is that many people are not informed and do not even think that their consent is required for governments to go about their business. This brings up the issue of “implicit,” “implied” or inferred” consent. In Latin American societies the view is that if you do not say no then you implicitly mean yes. In Anglophone cultures the reverse is true: if you do not explicitly say yes than you mean no. But in contemporary Aotearoa, it seems that the Latin view prevails, as the electorate is often uninformed, disinterested, ignorant of and certainly not explicitly consenting to many government policy initiatives, including those in the security field and with regards to basic civil liberties such as the right to privacy and presumption of innocence.

One can argue that in representative democracy consent is given indirectly via electoral processes whereby politicians are elected to exercise the will of the people. Politicians make the laws that govern us all and the people can challenge them in neutral courts. Consent is given indirectly and is contingent on the courts upholding the legality if not legitimacy of policy decisions.

But is that really informed contingent consent? Do we abdicate any say about discrete policy decisions and legislative changes once we elect a government? Or do we broadly do so at regular intervals, say every three years, and then just forget about having another say until the next election cycle? I would think and hope not. And yet, that appears to be the practice in New Zealand.

Therein lies the rub. When it comes to consenting to intrusions on our privacy be they in the private or public sphere, we are more often doing so in implicit rather than informed fashion. Moreover, we tend to give broad consent to governments of the day rather than offer it on a discrete, case by case, policy by policy, law by law basis. And because we do so, both public authorities and private agencies can collect, store, manipulate and exchange our private information at their discretion rather than ours.

12345Next