Scoop Election 08: edited by Gordon Campbell

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Gordon Campbell on the Immigration Bill, striking health workers, and the Obama Veepstakes

July 15th, 2008

Great to see that the various players in the blogosphere – from the usual great stuff by No Right Turn, to the new website started by T-Rex to oppose the Bill and the Standard, to name a few– are coming together to campaign against Labour’s Immigration Bill. I’ll be posting a full analysis of the Bill once it is reported back in a few days time, from select committee.

A lot of people have picked up that the Bill enshrines in law some of the worst features of the process used against Ahmed Zaoui. So it does. And not only in the use of classified information, special advocates and the like…bad as those facets are.

IMHO, a blatant example of this ’ Zaoui effect’ can be found in clause 216 ( 4) which sets boundaries on the summary of the classified information that can be made available to the appellant. The summary is supposed to go some way to meeting the appellant’s right to natural justice – namely, to know the substance of what they are being accused.

However, this subclause states that nothing requires the summary to ( a) list any of the documents or other source material concerning the classified information or (b) detail the contents of any documents or other source material containing classified information or (c) specify the source of any documents or other source material containing classified information.”

Such provisions pretty much absolve the government of any meaningful summary of the relevant information. All that the appellant will have is a précis of the deductions that the government has drawn from the evidence, and will have no clue as to the origins, volume, age, reliability or any other contextual feature of the classified information. This goes well beyond the need to protect sources, and into the realm of obstruction.

Other jurisdictions overseas manage to present large and comprehensive summaries of information without jeopardizing security, and in contexts where the threat from terrorism is far more immediate to them than it is in New Zealand. ( See for instance the size of the summaries available to Zundel and to Harkat in Canada, in two separate cases I referred to in one of the my earlier posts)

If the Zaoui legal team had faced such a hurdle, I doubt they would have been able to piece together the SIS case – much less provide the compelling alternative narrative of Zaoui’s life in rebuttal, that eventually compelled the SIS to thrown in the towel. They would also been unable to brief the special advocate Stuart Grieve QC adequately, by being so thoroughly denied the origins and dimensions of the classified information.

Ultimately, that seems to be the real purpose of this subclause It is not about being as open as possible within the security parameters in order to get at the truth. Rather, it is about how far the authorities can go to hide their arguments from proper scrutiny, while still giving a token recognition to the issues of natural justice that the use of classified information inevitably raises.

What this subclause helps do. is to lower the quality of the information available to the appellant. Our higher courts, over the course of the Zaoui cases had ruled that the summary of classified information had to meet quite a high standard, in the quality of the information that it contained. It was a standard that the authorities proved that they could meet – however grudgingly – and without divulging the secret information. There is no reason why the summary of information standards set by the courts in the Zaoui case should not be carried over intact into the Bill. Instead, the Bill sets out to systematically subvert that standard.

In the Zaoui case, the courts required that the Crown should summarise the information – not just the allegations, but the gist of the information itself, and for each file. This not only enabled the special advocate to be briefed properly beforehand. It similarly enabled the witnesses from overseas to be adequately briefed, so that their testimony was relevant to the classified information central to the review. By contrast, under the regime set out in the Bill, the appellant – and their special advocate – will be left flyng in the dark, with precious little ability to grasp the gist of the case they will face.

Contrast that again, with Zaoui. The quality of the information eventually winkled out of the system enabled Zaoui’s lawyers to work out the case they faced in reasonable detail – thus, it was possible to deduce at one point, that of the 55 classified information files then being relied on by the SIS, fully 30 of them did not even mention Zaoui by name. That level of relative transparency has been rendered impossible, by this Bill.

This Bill turns back the clock, and it deos so by clauses working in tandem. Clause 216 (4) deliberately blocks the paper trail available to the appellant. Yet the true intent of the legislation becomes apparent when you put this subclause together with clause 235 (2) which forbids the special advocate from launching proceedings on behalf of his or her ‘client’ if the special advocate discovers that a miscarriage of justice is taking place via the secret information. Personally, I think tying the special advocate’s hands in the way envisaged by clause 235(2) violates the legal profession’s code of practice, and the ethical responsibility that lawyers have to their clients.

Typical, though. The real purpose of the Immigration Bill is to protect the spies and the bureaucrats from the exposure of their mistakes – and to narrow the channels of justice available to the vulnerable. Once the select committee reports back, the fight against the Bill will shift onto the floor of Parliament.

Health workers

So the surgeons want to make strikes by health workers in essential health services illegal.

According to the New Zealand Orthopaedics Association – a professional body comprised of some 185 orthopaedic surgeons – strikes by essential health workers should be replaced by compulsory arbitration.

The not so subtle subtext of their press release: blame the unions. “The past and present Minister of Health and union leaders have rejected our plea for this approach,” says NZOA president John Matheson.” They must believe the rights of the public with serious needs are less important than the rights of health workers to strike.”

Frankly, if this idea is anything other than union bashing in drag, it needs to contain some inkling of which health workers the NZOA has in its sights, and what the principles that would underly this ‘compulsory arbitration’ would contain in practice. Otherwise, in the current climate, such a proposal could readily become an incentive for DHBs not to negotiate in earnest at all, but to take a punt instead on receiving a sympathetic ear at arbitration.

So far, the United Kingdom has not resorted to banning strikes in the NHS. As this story indicates there will be a widespread day of protest in the UK this Friday by health workers, who will be protesting the less-than- inflation pay ‘rise’ of 2 % a year (for the next three years) that is being offered by the Gordon Brown government. Strike action is likely to follow the July 18 action, given the 95 % rejection rate of the pay offer already recorded among union members. The health sector pay offer – it’s really a pay cut, when less than inflation – is being put on the table at a time when in the UK :

Energy tariffs [are] going up by 15%, petrol costs by 18%, public transport fares by 4.5% and food bills by an average of almost 7%.

These increases mean that the average household needs to find an extra £1,500 in 2008 in comparison with 2007, just to cover the same basic items.

Obviously, the situation is similar here now, and going forwards. There is little reason to believe that compulsory arbitration would achieve a better resolution. Moreover, the damage that low pay and poor work conditions do to morale, recruitment and retention also impact on the care provided to patients, and the effects last far longer than the disruption caused by a strike.

The Obama Veepstakes

Okay, over on the other election front, its been pretty quiet since we last checked out the Barack Obama vice president sweepstakes. Scoop’s initial pick – Virginia senator Jim Webb – has pulled out, to the surprise of all and sundry. Hillary Clinton’s big problem, aka her husband Bill – also seems to be slowly taking her out of the picture. According to a conversation Obama had with Democratic donor Jill Iscol, Hillary was still nominally in the running but the vetting process was proving… problematic.

Decoded, that probably means she’s semi-officially out. If Hillary’s ambivalent stance towards Obama wasn’t problem enough, Bill Clinton represents several kinds of headache. So far, he has refused to specify the donors to his personal slush fund – I mean presidential library – or said much about his business dealings with countries like Kazakhstan. Then there is the obvious antipathy he has shown towards Obama in recent months and oh…the girlfriend watch that would be bound to become a tabloid staple, if Bill was ever again let within range of the White House.

Other women V.P. candidates besides Hillary? Kansas governor Kathleen Sebellius is still being mentioned. So is Missouri governor Claire McCaskill, an early Obama supporter and kedy adviser, who has done a lot to influence his strategy of running hard in Republican states ( eg Georgia) to force McCain to spend money defensively, and thus siphon Republican spending out of the more typical battleground states ( such as Ohio, Florida, Pennsylvania)

A recent Clarus Research poll showed that Democratic voters were looking for experience ( both in foreign policy and on the economy ) to balance Obama’s perceived weaknesses. Why such alleged ‘weaknesses’ can’t be fixed later by his Cabinet appointments ( of say, Georgia’s Sam Nunn to a major National Security/State Department role) remains unclear. Personally. I think any of the Democratic Party’s old reliables ( Nunn, Joseph Biden, Richard Gephardt) would bring so much unwanted baggage, they would burden Obama’s message of change. But then again, the pragmatic Mr Obama may feel that if a party hack is required to win the election, he’ll pick one.

What we also learned this week is that Obama doesn’t own a pet and that (b) he doesn’t like ice cream. John McCain , on the other hand owns….. Sam the springer spaniel, Coco the mutt, two turtles called Cuff and Link (awww!) three parakeets, a ferret (ewww!) Oreo the cat, and a number of saltwater fish. Perhaps not surprisingly, McCain currently leads Obama 42 -37% among pet owners, while Obama has a 48-34 % edge among people who don’t have pets. Anyone yet tried this pet-o-meter measure out on Helen Clark and John Key ?

One further sign that the US election may not even be close. This story a couple of days ago in the Orlando Sun-Sentinel newspaper reports that in the perennial battleground state of Florida, the Democrats registered 106,508 voters between January and May, compared with 16,686 new enrollments for the Republicans. On the surface, such figures should be boosting the chances of Scoop’s other early pick – Florida Governor Charlie Crist – as McCain’s likely running mate. Crist has added a glamorous ( and reportedly, free-spending) New York socialite called Carole Rome as his girlfriend, but… Monday’s edition of the Sun-Sentinel also carried this particularly snarky item :

Crist went to California last month to give a speech at a big Republican dinner. One attendee, Orange County Register columnist Frank Mickadeit, wasn’t impressed. He wrote that Crist’s nine-minute speech showed “unequivocally he would be a complete disaster for the GOP — the worst running mate since Dan Quayle. Mr Crist looks great…. It’s when he uses his facial musculature to try and form cogent sound that he falls apart.”.

Finally, Obamaphiles everywhere should be checking out this interview that he gave back in December 1995 to the Chicago Reader alternative press. The article shows Obama has been remarkably consistent – much the same guy, then as now – about the things he stands for. I liked this 1995 observation in particular :

What makes Obama different from other progressive politicians is that he doesn’t just want to create and support progressive programs; he wants to mobilize the people to create their own. He wants to stand politics on its head, empowering citizens by bringing together the churches and businesses and banks, scornful grandmothers and angry young. Mostly he’s running to fill a political and moral vacuum. He says he’s tired of seeing the moral fervor of black folks whipped up–at the speaker’s rostrum and from the pulpit–and then allowed to dissipate because there’s no agenda, no concrete program for change..


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