Labour and National tag team on the MASC

I’m disappointed. RNZ reports:

The Maori Party is staggered at Labour and National's decision to put a stop to a proposed inquiry into how the 2007 Urewera raids affected local communities. 

Waiariki MP Te Ururoa Flavell says the parties gave no explanation about why they don't want an inquiry into the aftermath of Operation Eight.

Shane Jones offered an explanation to Waatea:

Labour’s Māori Affairs spokesperson, Shane Jones, says getting the commissioner of police in front of the Māori Affairs Select Committee will be more useful than an all out inquiry into the Operation Eight Urewera raids.

A Maori Affairs Select Committee inquiry would reflect poorly on the last Labour government (and taint the current Labour opposition). An inquiry would reveal the human cost of the raids and the trials. Labour has to oppose the inquiry out of self-interest.

National’s motives aren't noble either. An inquiry is an opportunity to “terrorise [their] political opponents”, but an inquiry that revealed the extent of the suffering and injustice would strengthen the moral and legal claim to compensation. Compensation – if it happens – must be given on the government’s terms.

Te Ururoa has taken a principled stand. Credit where it’s due. Labour’s solution - an interrogation of the Police Commissioner - is not the same as investigating the effects the raids and trials had on the affected communities. It's a weak excuse. The Independent Police Conduct Authority released a damning report into the legality of the raids, but if the Police are to be held properly accountable against their actions the extend of the human suffering must be revealed.

Rights come with remedies: on the Urewera raids

Police acted ‘unlawfully, unjustifiably and unreasonably”. Translating the bureaucratic-speak: the Police fucked up.

The Independent Police Conduct Authority has released a critical report into Police actions during the Urewera raids. Sir David Curruthers found that, although action itself was reasonable and justified, many aspects of the raids were “unlawful, unjustified and unreasonable”. Curruthers recommends that the Police “re-engage with Tuhoe”.

Fat chance. The report is welcome – if small – vindication. The Police were in the wrong. The hurt isn’t easily mended, though. Re-engagement must happen on Tuhoe terms and a remedy must be given.

The corollary of a right is that it comes with a remedy. In the Urewera raids the Police illegally stopped, searched and detained drivers and their vehicles. Personal information was requested and collected. School buses were stopped and, according to Tuhoe, searched with children on board. The Police illegally detained women and children in their homes – in some cases for hours. The Ruatoki Valley was left humiliated, wounded and intimidated.

The vicious symbolism of setting up road blocks on the historic confiscation line was lost on no one. Militarising the Ruatoki Valley was not only unreasonable and disproportionate, it invoked the ghosts of history. The parallel to armed raids of Maungapohatu was lost on no one too.

But where to from here? The Police actions don’t appear to be criminal (in a legal sense at least, whether their actions were morally criminal is another question). A further problem is that there are several statutory bars preventing claims against the Crown or the Police in tort. The Limitation Act might also be relevant too.

However, a Bill of Rights claim is open. The victims can sue the Crown directly for public law damages. Depending on the circumstances of the claimant s18, s21, s22 and s23 could be relied on. Compensation isn’t the primary focus of public law remedies, but in this situation compensation is necessary to vindicate the rights that were breached, deter the Police and express society's disapproval. Punishment needs to happen too.

Rights must come with remedies. Here, there were clear breaches. The report acknowledges as much (if not in those words). It’s banana republic stuff. Bainimarama stuff. New Zealand has serious issues of Police (and intelligence community) competence. The Police not only regularly disregard the law, but evidence continues to suggest that they have a base disrespect for Maori. They shut down, degrade and intimidate a Maori community. A community with a deep history of Police oppression. They prosecute Maori at a rate wholly disproportionate to other ethnic groups. Don’t start on the anecdotes about Police harassment of Maori who look dodgy. The Police must be held accountable.

Post script: Full credit to Te Ururoa Flavell who has been strong on this from the day of the raids to today. His latest press release is here. I've been critical of his electorate work in the past, but not here. Good stuff. 

Native Affairs on the Urewera "terrorists"

If you didn’t catch Native Affairs on Monday night, drop what you’re doing and view it here. Native Affairs sets the standard for current affairs in New Zealand and on Monday night the show raised the standard – again.

In an unorthodox move, well unorthodox for the MSM, Native Affairs dedicated an entire hour to the Urewera ‘terror’ issue. The show spoke to the Urewera four – Tame Iti, Te Rangikaiwhiria Kemara, Urs Signer and Emily Bailey – and then Greg O’Connor. A panel discussion followed with Matt McCarten, Annette Sykes, Stephen Franks and Russell Brown. The quality of discussion was excellent and Julian Wilcox further cements his place as the best television journalist in New Zealand. Although most viewers would have applauded the exclusion of O’Connor and Franks, the fact that the two were included is a testament to the Native Affairs crew and their commitment to balance.

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Interview with the Urewera four

The show opened with a discussion with the Urewera four. Julian asked Tame Iti, and quite rightly too, what he and the Urewera suspects were up to in the Urewera. It’s a legitimate question, but one without an adequate answer. Tame responded saying that they were “doing what Tuhoe do”. This is vague, but it suggests nothing sinister. Similar to most Tuhoe, Tame is very guarded about Tuhoe affairs. Although Tame acknowledged that he and others were engaging in “activities”, he disputed the Police interpretation and construction of those events. The activities were, it’s increasingly accepted, innocent in intention.

Emily Bailey described the activities as “wananga” which, to me at least, makes perfect sense. Bravado and silly buggers aside, what the suspects were engaging in is and was common practise in the Ureweras. Bailey also commented on the criminal group charge arguing that it was merely a tool to elevate the gun charges to something more sinister in the minds of the jury.

On the question of proof Kemara made the point that it's incumbent on those making the accusations to “make something of it”. In other words, the burden of proof falls on the Crown and those accused aren’t obligated to negate those allegations. Ultimately, and not unexpectedly, the Crown failed to prove their allegations, other than the relatively minor and strict liability firearms offences. The offences the four remaining defendants were convicted of fell well, well short of the original and outrageous terrorism allegations.

Urs Signer also made a number of insightful comments. Most interestingly for Maori, Signer labelled the terror raids and what followed another step in the colonial project. I read this as meaning it was a step to suppress tino rangatiratanga. As an aside, when will New Zealand accept that tino rangatiratanga is a legitimate and harmless political ideology? Anyway, Signer also claimed that it’s the intention of the Crown to seek a prison sentence despite a report from the probation service recommending community service.

In all, it was an outstanding interview with the four.

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Response from Greg O’Connor

Following the four was Police Association President Greg O’Connor. Julians asked whether or not the Police owe Tuhoe, or more specifically the Ruatoki community, an apology. O’Connor didn’t think so, instead he claimed that the Urewera four owe the community an apology. This is silly for a number of reasons. Firstly, the Urewera four were not responsible for Police actions. After all, the Urewera four did not compel the Police to act as they did, for example illegally detaining community members and boarding a school bus. The Police made that decision – the Urewera four didn’t compel them to do that. Secondly, what the Police thought the Urewera suspects were engaging in did not justify nor invite action against the Ruatoki community, merely the suspects themselves. Thirdly, and as I alluded to, the Police acted illegally. Given they will face no judicial consequences, isn’t there a moral obligation for them to apologise?

O’Connor went on to say that the claims that Police acted illegally were “allegations” and not facts. Of course he would say that, it’s his job as the union spokesperson to defend Police actions. However, why would the community lie about the Police actions? There is no reason for the community to do so. In the school bus claim, the bus driver, and the school children for that matter, had no reason to fabricate the claims that Police boarded their school bus. On the other hand, the Police have every reason to deny it.

In another erroneous call, O’Connor stated that the Police acted in accordance with the law citing that fact that the Police had obtained warrants. This, however, goes against the Supreme Courts contention that the Police acted illegally in obtaining evidence. O’Connor pressed on in an attempt to discredit the Supreme Court’s decision citing the fact that it was a split decision and contrary to the decisions of lower courts. This is hardly a convincing argument – some of the most notable judicial decisions are split and the Supreme Court’s decisions are just that, Supreme.

Towards the end of the interview O’Connor seemed to advocate a trial by media. If only New Zealanders were privy to all the evidence gathered he implied. This, as Urs Signer later pointed out, is silly as the Court, and by extension the public, in the Urewera four trial were privy to all the evidence as the Supreme Court had ruled it admissible in that case. Even in the event where all the evidence was available to the Court, the jury still could not decide on the criminal group charge. Given this, what makes O’Connor think the public would reach a different and more serious conclusion? Meaning why would the public find evidence of terrorism when the jury couldn’t even decide on a much lesser criminal group charge.

In a stupid and ill-advised move O’Connor also pulled a Don Brash and held aloft a still from the Police evidence showing some of the suspects in camo gear. It didn’t contribute anything other than to erode O’Connor’s argument. You know you’re in trouble when you need to resort to props to further your arguments.

Ultimately, O’Connor could not refute the fact that the Police allegations came to nothing but a few firearms convictions. A far, far cry from the terrorism absurdities. To be fair, I didn’t agree with anything O’Connor said, but the show was better for having his perspective and kudos for to O’Connor for fronting.

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Cross to Parihaka

O’Connor’s interview was followed by a cross back to Urs Signer and Emily Bailey in Parihaka for the right of reply. Both labelled O’Connor an angry man and this is how he came across. Emily closed by saying that it was the Police who did the terrorist acts.

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The Panel

Matt McCarten, Annette Sykes, Stephen Franks and Russell Brown joined the panel. A very good mix and all four had useful and insightful contributions.

Stephen Franks opened the discussion commenting that he was shocked with the scale of the, for want of a better term, ring. On the evidence that was supressed Franks believes that the four are terrorists, however this ignores the fact no terrorists acts were committed and in the trial of the four the jury could not even reach a decision on the lesser criminal group charge despite having access to all the evidence. Strangely Franks advocated for a trial by media too, despite his earlier comments indicating he is a man of legal principle. Franks also said the process should have been more open, but this ignores the fact that the suspects deserved to have their privacy and reputations protected until the Police could prove something. Furthermore, Franks claimed that all the evidence should have been heard, but it was in the trial of the Urewera four (as I mentioned how many times).

Matt McCarten’s comments were, as expected, excellent. Enough said there.

Annette Sykes was, true to form, fired up and made the point that the raids were used as a training ground for the SIS. This I agree with. It has been said often that the investigation, raids and so on were merely used to justify the existence of New Zealand’s anti-terror units. Annette also said the law has not been applied fairly to Maori. Again, I agree. Why are groups like the National Front still running around with guns in the South, but Maoris running around with guns in the North are targeted with force?

Russell Brown’s assessment that the Urewera suspects were just “dickheads” is a good assessment. Brown also labelled the media coverage as a mixed bag singling out the Dom Post for their poor coverage and James Ihaka from the Herald for his good coverage. The coverage was, according to Brown, fed by leaks. In this situation the initial coverage was bound to favour the sensational and bolster the Police claims. However, it was also pointed out that the defence had ample time to present their story and they did, for example through Operation 8.

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Conclusion

In all, the show was outstanding. Some of the best current affairs I’ve ever seen. Julian Wilcox did brilliantly steering the discussions and, in my opinion, for keeping it together when interviewing O’Connor. The panel was excellent too. The show cemented my belief that the Police allegations were unfounded and unjustified. You can watch the show here if you missed it. The show was also trending on Twitter alongside Desperate Housewives and Game of Thrones. That, I think, is pretty significant and well deserved coverage.

Lastly, just a reminder that I’m on Twitter now. You can follow me here, but don’t expect anything great, unless you want to be disappointed.   

No retrial for the Urewera 4 (updated)

The mainstream media isn't reporting it yet, but apparently there will be no retrial of the Urewera 4. The decision was due to be announced tomorrow.

UPDATE: Apparently this is conjecture. Apologies.

UPDATE 2: I was right in the first place. There will be no retrial.

The Urewera failure

So the Urewera verdict is in and it’s a fizzer. The case, triggered by the 2007 terror raids, has come to an anticlimactic end with the jury finding the remaining defendants guilty on some firearms charges – which were largely minor – and failing to reach a verdict on whether or not the four were part of an organised criminal group. An organised criminal group is a group of 3 or more people who have as their objective(s) obtaining material benefit from the commission of crime(s) punishable by four years or more. This charge, the supposedly serious charge, is so far removed from what the Police and the government of the day were alleging in 2007.

Casting our minds back to 2007, the Police were claiming that they foiled a paramilitary plot and hijacked plans to, among others things, assassinate the Prime Minister. Terrorism charges were laid, but the Solicitor-General decided that terrorism charges would not hold. The Police and Crown Law, however, charged ahead. Failure after failure followed and charges against the majority of the defendants proved unsustainable and, as we know, the only serious charge the Police and Crown Law had against the remaining defendants resulted in a hung jury. Whatever way you look at it, this is an epic defeat for the Crown. Thousands of man hours, millions of dollars and the might of the New Zealand Government could not bring down a bunch of pohara Maori and Pakeha activists. Tame Iti is now further entrenched in Maori mythology and rightly so.

The government and the Police owe Tuhoe an apology. Ruatoki was attacked, and I deliberately use the word attacked, as school buses were searched by armed police, kaumatua and kuia were illegally detained, men and women were man handled and mistreated all for a few firearm charges. Charges that are so remote from what the Police were alleging. It’s a sorry affair.

Finally, I think the Maori Party must be acknowledged for the work they did in the wake of the raids and what they continue to do. Pita Sharples was right, at least in respect of Tuhoe, when he said the raids set race relations back 100 years.

National shows contempt for our democracy

The National Government acts not according to principle, but according to what is pragmatic and favourable for those with power. From Stuff.co.nz:

The government will introduce legislation suspending the effect of the Supreme Court Urewera judgement after legal advice rendered nearly all police video surveillance footage unlawful. 

Prime Minister John Key today revealed legal advice that almost all use of covert video surveillance by police had been rendered unlawful by the Supreme Court ruling - a decision with potentially significant implications for law and order in New Zealand.

"To give you an idea of the scale of the impact this has, ministers have received advice up to 40 current trials may be affected by this decision and over 50 police operations will be impacted. 

"We therefore have the immediate and pressing concern that police are currently left in a position where they are unable to investigate some serious criminal proceeding." 

Key confirmed that police had been forced to suspend all video surveillance, including major operations, because of the Supreme Court ruling. 

Cabinet had decided today to take legislation to Parliament temporarily suspending the effect of the decision and it intended to pass it next week under urgency. It was seeking cross-party support to do so.

It appears from the Prime Minister’s statement that the Police were employing unlawful investigation methods across numerous cases. Investigation methods that the Chief Justice described as “deliberately unlawful”.

If the Police were aware in the Urewera investigation, which occurred years ago, that they were employing illegal investigatory methods, yet continued to do so in the years following the completion of the Urewera investigation, then the Police must be held to account. The law should not be bent to accommodate law breakers (i.e. the Police), the law should be used against those who break it intentionally.  

Of course we are going to receive no such thing from this Government, in fact, we will receive the opposite. The Prime Minister has indicated his intention to enact retrospective legislation under urgency. This is a gross assault on the rule of law, but on par for a National Government.   

Retrospective legislation is often associated with despots and, in New Zealand, Tories. Laws should apply prospectively and never retrospectively. The enactment of retrospective legislation destroys certainty in the law and is absolutely arbitrary.

A fundamental tenant of the rule of law is freedom from arbitrariness i.e. freedom from the random enactment and application of laws. The government’s actions in this instance represent arbitrariness at its most bitter. It is worth noting that the Search and Surveillance Bill, which is currently before the House, will fix the so called problem that the Police face. Meaning the bill will legalise the currently illegal practises the Police are employing, but the government would rather arbitrariness and ram through new legislation as opposed to pushing the Search and Surveillance Bill up the order paper.    

The Police are not above the law. One of the most basic conceptions of the rule of law is that nobody is above the law. The Police must obey the law and when a transgression occurs the criminal justice system must be invoked against the offender. This applies as much to a law breaking constable as it does to me.

The Police actions in the Urewera investigation represented a blatant breach of our constitution, of which the rule of law is a cornerstone, and a blatant breach of human rights which, therefore, offends s8(d) of the Police Act 2008.

In reality, the Government can legislate how it wants. However, any decent government should carefully balance their right to enact laws against fundamental social and constitutional values. Government’s right to govern is often limited by what is basic and decent in our society as well as the Treaty of Waitangi and the principles of the Treaty, constitutional conventions and, quite importantly, the rule of law. In my opinion the government’s actions represent a form of double jeopardy and will undermine our confidence in democracy. The government’s legislation will validate the evidence the Police illegally obtained meaning charges can be brought against the former accused. This is, as I said, a form of double jeopardy and an affront to notions of democracy, justice and our egalitarian values. No doubt such legislation will violate a host of international laws as well as domestic law.

The government is also sending a big fuck you to the Courts. The government’s actions, or intentions I guess, in this instance illustrate how authoritarian this government is. This is the daddy state. A government that rules for those in power. As a Maori, I have no confidence in this government. They do not govern in my interests. This government undermines Maori confidence in our democracy. The sooner we turf these pig-headed losers out the better. 

See also: NRT, Imperator Fish, Political Dumpground, Robert Winter, Tumeke, The Dim Post and Gordon Campbell. But for the best analysis see this piece from Dean Kinight of Vic Law School and Andrew Geddis of Otago. 

Flavell swings behind Tuhoe

The Maori Party are coming down strong on the, for want of a better term, Urewera issue. From RNZ:

The Maori MP for Bay of Plenty is talking to the Tuhoe tribe about taking a new claim to the Waitangi Tribunal, arguing the police 2007 raids in Ruatoki breached the Treaty of Waitangi.

The member for Waiariki, Te Ururoa Flavell, says the Crown should be answerable, particularly for the way people were innocently caught up in the actions - and for those who've now had charges against them dropped.

The Maori Party MP says his caucus and Tuhoe are looking for more than an apology.
He says he and his colleagues have talked about compensation, given some people have had to bear the brunt of criticism and the stigma associated with the raids.

Mr Flavell says the issue is so big his party is looking into asking for a commission of inquiry of some kind.

At the conclusion of this saga a commission of inquiry will be mandatory – whether the remaining defendants are found guilty or not. I think the option of civil suits is closed in this instance, I certainly don’t say that with certainty though. Te Ururoa has highlighted two options for some kind of relief/accountability (a commission of inquiry and the Waitangi Tribunal) and other options exist as well including the Independent Police Conduct Authority. On another note it amazes me that Helen Clark, Michael Cullen and the then Police Minister (Annette King I think it was) have managed to escape criticism for their role in approving the raids and subsequent legal battle. Surely the buck stops at the top, and this went straight to the Prime Ministers Office.

I expect to see Hone Harawira dive all over this issue. Tuhoe is one of Maoridom’s staunchest Iwi, if not the staunchest, and is Mana’s for the taking. However, if Hone remains quiet and leaves the issue to Te Ururoa Tuhoe may not tag along with Mana so willing. Tuhoe people have long memories. This is where Mana needs someone like Annette Sykes and her skills as a lawyer and as a wahine toa.