Scoop Election 08: edited by Gordon Campbell

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Gordon Campbell on the US election outcome

November 10th, 2016

Well um.. on the bright side, there (probably) won’t be a TPP. In fact, you could argue that the cheerleaders of free trade have now succeeded in delivering the planet into the hands of someone who believes in the unlimited use of American military power, and who has called climate change a fraud invented by the Chinese.

Thanks, guys. Ultimately, voters in the Rust Belt states didn’t accept that the destruction of their jobs and communities really was the inevitable price of progress. Mind you, as Jonathan Freedland has noted, not all of the people who voted for Trump were the victims of free trade. Read the rest of this entry »

Gordon Campbell on the US election home stretch

November 8th, 2016

First published on Werewolf

Once again at the business end of a US election, the result will hinge on the same old bits of geography as always: the Five Crucial Counties in Ohio, the Two Crucial Counties in Pennsylvania and the I-4 Interstate Corridor in Florida that runs from Tampa Bay through Orlando to Daytona Beach. Back in 2004, I’d spent the last two weeks of that campaign frantically zigzagging around north eastern Ohio and along the I-4 from Orlando, simply because those bits of real estate were the decisive battle zones. They’re still where it matters. Come to think of it… 2004 was also a contest between a Republican widely seen by the outside world as a dangerous idiot, and a deeply unattractive Democratic candidate. Nothing new there, either.

As tomorrow’s results come in, keep an eye on those 5 key counties in Ohio: Cuyahoga (this Democratic stronghold around Cleveland will be a litmus test nationally of whether Hillary Rodham Clinton can mobilise the black urban vote) Franklin County (central city : Columbus) Hamilton County ( the suburbs around Cincinnati are always taken to be a significant national bellwether) Montgomery County ( central city : Dayton) and most interesting of all, Stark County ( central city : Canton). In 2012, Barack Obama won Stark by a handful of votes. Basically, if Donald Trump can’t win Stark County this time, he’s probably toast everywhere else. Incidentally, the likes of Hamilton County in recent months have illustrated just how poor Trump’s grass roots machine looks like being, compared to HRC’s well oiled ‘get out the vote” organization – and that’s the case even compared to Republican efforts in Ohio during recent elections.

This is all part of what makes Ohio such a useful microcosm : the whole range of urban/suburban/rural and Rust Belt issues are present there. On election day tomorrow, its worth keeping in mind that the Ohio state government website offers a really good, up to the minute running tally of how those 7.8 million registered voters in Ohio are casting their choices. You can find it here.

For similar reasons, the two key Pennsylvania counties to watch are Bucks County (north of Philadelphia) and Alleghany county out to the west. Theoretically, HRC can still win in the Electoral College even after losing Ohio and Florida – whereas Trump needs them both, given the red state/blue state configurations elsewhere. Yet in reality, if she loses both those big states – Florida has a healthy 29 Electoral College votes, and Ohio’s declining population still offers 18 votes, down from 26 votes in 1964 – the tide is likely to be out for HRC all round the country.

If that happens, the FBI will have played a significant role in giving independent voters a final, conclusive reason to vote Republican. Historically, the FBI has been a highly politicized bureau since the days of J. Edgar Hoover. It certainly has acted in a highly partisan fashion this time, too. After all…any emails held by Anthony Weiner could only have dated from a considerable time in the past via his former spouse Huma Abedin, and were thus virtually certain to be copies of the HRC emails that the FBI had already cleared of criminal liability back in July. The FBI could have couched its letter to Congress in those dismissive terms. It didn’t. If HRC wins, she should be demanding FBI director James Comey’s head on a plate, forthwith.

For many people, voting has become an act of hostility. In a poll run last week by the Columbus Dispatch in Ohio, a significant number of respondents were voting not for their candidate, but in order to stop the other candidate from gaining power.

A third of Clinton voters say they’re mainly voting against Trump, while more than 4 in 10 Trump voters say their ballot is really aimed at keeping Clinton out of the White House.
Top prize for their weirdest story of the campaign? That would probably have to be last week’s conspiracy theory about a Satanic child trafficking cabal linked to HRC’s chief of staff John Podesta, and allegedly operating out of the Comet Ping Pong Pizza Parlour in Washington DC. The story is here. And if you’re up for some deep diving in the wingnut mindset, you could also check out the Twitter account of Pizza Party Ben (the chief theorist behind the pizza–is-code-for-child-trafficking story) right here. PPB’s pizza evidence cache can be found here.

Suppressing the Vote

After months of stories about voters being deliberately disenfranchised, North Carolina – which will be a tight contest – offers good news & some bad news. Last Friday, a Federal judge called Loretta Biggs slammed and halted local government attempts to deny North Carolina blacks the right to vote.

Biggs said the three counties must restore voter registrations cancelled in the 90 days preceding the election because of a federal law prohibiting blanket removals that close to Election Day. She concluded that Cumberland, Beaufort and Moore counties had gone about “systematically purging between 3,500 and 4,000 voters from registration rolls” since August.

Good. (Outrageously, the de-registrations had been on the basis of one piece of mail being returned from a residential address.) Clearly though, it hasn’t made voting in North Carolina any easier.

Across the US, systematic attempts have been made to suppress voting by blacks, Latinos and the young (all of whom trend Democrat) by a combo of stricter ID requirements, fewer voting sites and reduced funding for election purposes. For years, the Brennan Center has been an invaluable source of research and advocacy on voting rights, and one of its recent summary articles makes these points:

Brennan Center research from three states with some of the longest lines in 2012 (Florida, Maryland, and South Carolina) showed precincts with the longest lines had fewer machines, poll workers, or both. Areas with higher percentages of minority voters tended to have fewer machines, we found, and voters in precincts with more minorities experienced longer waits……

Preliminary data from the 2016 presidential primary election shows similar trends. When Arizona held its primary in March, there were reports that some voters waited as long as five hours to cast a ballot. At the time, the lengthy wait times sparked outrage from state officials and made national headlines.

The long waits were concentrated in Maricopa County, which contains Phoenix. With a population of about 4 million, Maricopa is not only the most populous county in Arizona, it is the fourth-most populous county in the United States. Press accounts at the time suggested that a dramatic reduction in polling places was the culprit. In the 2012 primary, for example, there were more than 200 polling locations. In 2016, there were 60 vote centers. Voters could cast a ballot at any vote center in the county – regardless of address. The drastic reduction in voting locations followed cuts to state election funding. Nonetheless, contemporary accounts suggested that the fewer places to vote may have disproportionately affected Latinos.

Add all of this to the Operation Red Map effort launched in 2010 by Republicans, in order to gerrymander the drawing of electoral boundaries, and you have a US voting process that is systematically being rigged by Republicans at state level and beyond, in favour of the Republican Party. With the blessing of a partisan Supreme Court, which has done its best to gut the 1964 Voting Rights Act, that was one of the main legislative accomplishments of the US civil rights movement.

IF HRC wins despite all of this, she will still face gridlock in the House, which will be almost certainly remain under Republican control. If it proves to be a landslide tomorrow for HRC, she has some hope of the Democrats gaining control of the Senate. Here are the key contests to watch on that important front.

And yet….even if HRC does win the White House and the Dems do win the Senate, they will be looking down the barrel of an awful line-up of factors in 2018 during the mid-terms, where several Obama-era victories in red states are up for re-election, and are likely to be lost. Meaning: if HRC is going to derive any legislative benefit from having at least one tier of Congressional power (at best) on her side, she better hit the ground running.

Sisterhood, on other fronts

Hillary Clinton has had royalty – Jay Z and Queen Be – by her side during this past week. Meanwhile, Solange Knowles, Beyonce’s kid sister, has been upstaging her sibling musically, with the highly positive critical reaction to her A Seat At The Table album even exceeding the response to Beyonce’s Lemonade album. Here’s one of the prime tracks from the Solange album…

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Gordon Campbell on news from the US election eve

November 4th, 2016

Here’s a somewhat scary headline from October 30 on Nate Silver’s 538 site, which summed up the statistical factors in play at that point :

“The Cubs Have A Smaller Chance Of Winning Than Trump Does”

Yet as we now know…yesterday, the Chicago Cubs concluded their incredible World Series comeback run with an 8-7 victory in the extra (tenth) innings of the decisive rain-interrupted nailbiting final against the Cleveland Indians. As one commenter on the Chicago Tribune website said, if the World Series is this rough on the nerves, how am I ever gonna survive election night ? Especially when…. statistically, it is easier for Donald Trump to win on Tuesday (Wednesday our time) that it was for the Cubs.

Journalism, Trumped

And The Awl website has just published a terrific parody of how journalism has covered Trump and his zealous supporters out in Heartland USA. Here’s a sample :

…..What’s become painfully clear this election cycle is that there’s a fundamental disconnect between national journalists — most of them based in New York City or Washington D.C. — and the white working-class Americans who are Trump’s most ardent supporters. But, except for roughly 7,200 articles on the subject, there has been scant effort made by the mainstream media to understand the kind of voters who say Trump speaks for them….

Bleaksville, Kentucky (or maybe it’s in Ohio or West Virginia, I can’t remember) has seen better days. From the 1950s through the 1970s, it was home to two of the largest pillowcase factories in America, singlehandedly exporting 15% of high-quality American pillowcases all over the world. But beginning in the 1980s, many factory jobs began to be shipped abroad, mostly to China’s “Pillowcase Belt.” And when those silky ladders to the middle class vanished, so did the town’s social fabric….. Bleaksville’s Main Street was once a thriving hub of commerce; now it’s dotted with used-condom stores, with the husk of an old abandoned monorail looming in the background. There used to be fourteen bars along this stretch, where workers would congregate after a long day producing and assembling pillowcases. Now there’s only one, O’Briens, and it only sells opioids.

I spoke with Freddy O’Brien, a fifth-generation Bleaksviller who operates the bar. He told me he’d already talked about his support for Donald Trump to reporters from The New York Times, The Washington Post, USA Today, The Daily Mail, The Hindustan Times, and Stormfront so far that day, but that he’d be willing to do one more interview ….I asked him why he disliked Hillary Clinton so much, given that her tax and health care policies would directly benefit his family, whereas Trump had personally pledged to take away his father’s oxygen tank and burn it for sport. “People around here are tired of getting spit on, and Trump gets that,” O’Brien said. “I’m angry. We’re all angry.”

“What are you angry about?” I asked. “Everything,” he replied. I couldn’t help but notice that people in Bleaksville are angry….

Etc etc. You can read the whole article here.

Swinging And Missing

On Tuesday morning, I’ll try to make sense of the final polling on the US election, but for now…the anxiety about Trump’s resurgence, which began before the FBI memo, shouldn’t be taken to mean all is lost. Yet. As this Slate article indicates, the Clinton firewall remains largely intact and Trump will have to win all – or virtually all – of those major state contests to get to the 270 Electoral College votes he needs for victory. Also keep in mind : Clinton has a better ‘get out the vote’ machine. Many people had voted before the latest Trump groundswell began. Also : the Trump resurgence should serve to dispel any over-confidence among Clinton supporters that seemed a threat a week ago, and will re-motivate them to vote. These ‘early ballot’ numbers from Nevada are also good news for Clinton even if these figures aren’t so good.

On these very early signs, Clinton is polling above expectations among Hispanics, and below previous Obama levels among black voters and young voters. More on that, come Tuesday. In the meantime, the teenager who was the target of Anthony Weiner’s sexting – and who then got swept up in the subsequent FBI re-investigation of the Clinton emails– has just written an angry open letter to FBI director James Comey. Sample extract :

……I thought your job as FBI Director was to protect me. I thought if I cooperated with your investigation, my identity as a minor would be kept secret. That is no longer the case. My family and I are barraged by reporters’ phone calls and emails. I have been even been blamed in a newspaper for causing Donald Trump to now be leading in some polls and costing Hillary the election.

Anthony Weiner is the abuser. Your letter helped that abuse to continue. How can I rebuild my life when you have made finding out my “story” the goal of every reporter?

The entire letter is available here.

At this stage…

In the light of the Clinton victory that’s still the most likely outcome on Wednesday (NZ time)….this number, by 1940s r&b singer and pianist, Cecil Gant seems appropriate :

Gordon Campbell on the latest McCully fiasco

November 3rd, 2016

It is 2008. A victorious John Key finds he’s inherited from the Clark government the vexing problem of a well-connected Saudi called Sheikh Hmood Al Ali Al Khalaf who seems utterly enraged that New Zealand has curtailed (for humanitarian reasons!) the live sheep trade that he’d invested in, and which had been shaping up as a good little earner for him. What to do? Thank goodness that someone in Cabinet has put their hand up. Hmmm. The solution on offer seems to be a black ops exercise run by Murray McCully, without most of his Cabinet colleagues or the public having the foggiest idea about what he might be up to. What could possibly go wrong?

Well, as Auditor-General Lynn Provost has just found in her long-awaited report into the Saudi sheep deal: plenty.

True, she found no evidence of bribery or corruption – and to be fair to McCully, there doesn’t seem to be any evidence in Provost’s report of copyright infringement or grand theft auto, either. What there does seem to be is evidence of what the A-G delicately calls “unacceptable” behaviours –whereby for instance, the process of placating this particular Saudi (while plumping up the cushions for a free trade deal with the Saudi kingdom in general) was deliberately disguised as a contract for services rendered. Here’s a sampling of McCully’s shortcomings in briefing Cabinet about his gambit :

The Minister of Foreign Affairs put a paper to Cabinet outlining the proposed arrangement with the Al Khalaf Group in February 2013…… I found some significant shortcomings in the Cabinet paper, including that it:

did not clearly explain that the Al Khalaf Group would own the goods and services costing the New Zealand Government $6 million;

did not identify how the $10 million figure was arrived at (a figure that has since risen to $11.5 million);

signalled the risk of a claim against the Government based only on the $20-$30 million figure that the Cabinet paper said was suggested by the Al Khalaf Group (there was no assessment by Ministry officials of the substance of that legal risk);

did not include any analysis about whether there were any other potential obstacles to the signing or ratification of the free trade agreement, apart from the concerns of the Al Khalaf Group about the export of live sheep or the assertion by the Gulf Cooperation Council that this was the only obstacle to the free trade agreement; and

identified that New Zealand exports could double to $3 billion in five years if a free trade agreement was signed with the Gulf Cooperation Council, without including any analysis.

Based on these significant shortcomings, I am concerned at the lack of robust analysis and the quality of information that was provided to Cabinet on this matter.

Clearly, no blame to the Minister for gaining Cabinet approval on dubious terms, nothing to see, lets move on. As we now know, the Saudi sheikh got a sizeable cash payment and a “model” sheep farm gifted to him by the New Zealand taxpayer, and the sheep involved promptly died in the desert. (So our humanitarian-motivated ban on live sheep exports turned out well, didn’t it?)

In her report, Provost makes a distinction between this payoff for “services” (not good, not well flagged, but legal) and a “bribe “(bad) or a “facilitation” payment (also bad) whereby money changes hands to get quicker access to a nominated service. In this case, the relatively diffuse goal was a free trade deal, which apparently – if you’re a Jesuit used to making these sort of fine distinctions – did not quite put McCully’s gambit into the category of being a bribe, or a facilitation payment. Ultimately then…has the noble end (a free trade deal with Riyadh!) justified the goofy, costly and somewhat dodgy means that were deployed? Well, Provost has asked the Ministry of Foreign Affairs to provide a totting up of the current state of the cost/benefit ratio, over the next few months.

For now though….McCully appears to have survived another round of mishaps, mismanagement and shoddy practices. Once again it will be his officials who will have to (somehow) rationalize what has been made/allowed to happen on his watch. There is now quite a roster of such events, stretching back to the Tourism Board scandal of the late 1990s and including – more recently – the bungled reforms at MFAT, the Malaysian diplomat immunity scandal, and now this. Clearly, any problem where the answer is ‘Better Call Murray’ is never going to be anxiety free, is likely to end badly, and will probably inflict collateral damage among any officials caught standing too close to this Minister when the explosion eventually, inevitably, happens.

If I can mix my TV and film analogies, MFAT under McCully is less like Better Call Saul and probably more akin to The Hurt Locker…in that the Ministry seems to have become a place where bombs (many of the Minister’s making) are always going to be in need of being defused, in conditions where only the MFAT officials caught in the immediate blast area will suffer any career harm.

Theme song

And here’s Nat Cole, with what could be this Minister’s theme song…in that there’s always going to be room to blame someone else, or something else, for landing him in another fine mess.

Which segues fairly well into this compendium of ordinary life at MFAT….with subtitles, too.

Gordon Campbell on the last rites for the TPP

November 2nd, 2016

Sorry. I know that the TPP is the reggae of political issues…in that it can be endlessly boring, samey sounding and obsessed with the same things ( Jah, ganja and investor state disputes) but believe me, there are some fascinating bassline variations if you can really get into it. Most of the time, Prime Minister John Key tends to bet on the boredom factor canceling out any need for him to touch base with reality when he talks about the TPP. Who cares? Who’s listening? Is it dead yet ?

Here’s this morning’s latest take on the TPP’s chances of survival. They’re not good. Not even the Peterson Institute, hitherto the source of the most rosy estimates of the TPP’s likely economic gains, thinks the TPP has much chance in the short term.

“The TPP is probably dead for the rest of the Obama administration, but that doesn’t mean it can’t rise again in one or two years, with a little goading from the other countries that are members of the pact, says Gary Hufbauer, a senior fellow at the Peterson Institute for International Economics.

“The path for resurrection is ratification by New Zealand, Malaysia, Australia, Mexico, Canada and conceivably by Japan,” Hufbauer said during a recent panel discussion at American University, looking well past the election. “The U.S. is out of the party while President Clinton devotes her time to other issues. Then in 2018, 2019, she rediscovers the global security imperative for going with TPP and she gives it a new name. New coloration, new name, and the U.S. comes in. That’s the path to resurrection.”

If that prognosis is accurate, then New Zealand’s ongoing ratification of the deal in Parliament still matters a lot. At the same link, US Trade Representative Michael Froman was gamely talking up the chances of the TPP passing Congress during the ‘lame duck’ sitting period that will be held after next Tuesday’s US election. Key’s comments in the TPP at Monday’s post Cabinet press conference showed similar optimism. According to Key (a) the TPP has a 50/50 chance of passage during the lame-duck session (b) keeping the TPP alive depends on the Republicans and on House Speaker Paul Ryan in particular and (c) Tim Kaine, Hillary Clinton’s running mate is a TPP supporter.

None of this is very credible. No one else watching the TPP process is rating its survival chances as high as 50/50. Slim chance at best, or no chance at all is the general consensus. Moreover – and I hope this is a little bit interesting –the only way the White House can even get close to cutting an acceptable deal with the Republicans over the many issues to which the GOP objects (eg data localization, pharmaceutical patent terms, tobacco regulations, currency manipulation etc etc) is by conceding to a 12 year market exclusivity term for biologic medicines.

BTW the key player here isn’t Paul Ryan, but veteran Senate Finance Committee chairman Orrin Hatch, who has been pressuring Us President Barack Obama for months to insert a 12 year patent term into the TPP, instead of the 5 year TPP patent term that New Zealand and Australia thought they’d signed in Auckland in February. Reportedly, Obama has been edging closer to total capitulation on this issue.

Which is where (I promise) this latest slice of TPP reggae starts to get interesting. In essence, the Republicans won’t sign a TPP that doesn’t contain a 12 year patent exclusivity term for biologics. Yet at his September 12, 2016 post-Cabinet press conference, John Key ruled out accepting that provision when I asked him about it. If you’ll bear with me, here’s how the exchange went.

Me : During his recent visit did vice-President Joe Biden raise the question of whether New Zealand might be amenable to increasing the market exclusivity term for certain pharmaceuticals ?

Key : No. I mean, look, well and truly, we’re in a debate about the preferences of the United States for that period to be eight years, and not five. New Zealand, as we’ve made the case when the negotiations were taking place, is very confident that our law – the way its set [at five years] – achieves what, actually, the parties would want, is fair and balanced, in consideration, on the whole package. So he didn’t lobby for that and we’re not –

Me : So twelve years is completely out of the question for New Zealand ?

Key : Sorry ? Eight years, did you say ?

Me : No, Twelve.

Key : Oh, twelve. No. Yeah. [ie. Yeah, it is out of the question.]

So….the only way the TPP is going to win a successful Congressional lameduck vote is if Obama and Hatch agree that a 12 year patent term for biologics will be inserted into the TPP. Yet John Key has already explicitly rejected New Zealand accepting that option. Will Key now commit to our Parliament voting down any such proposal ?

Even more strangely, if Hatch gets his way and that 12 year exclusivity term does become part of a TPP package passed during the lameduck period, this would reportedly lay the US open to being sued under the investor-state dispute mechanisms if a President Hillary Clinton ever tried in future to vary the exclusivity period in an effort to reduce high drug prices. This is a live, and quite bi-partisan issue. On the campaign trail, Clinton has proposed a seven-year patent exclusivity period. Legislation has also been introduced by Senators Sherrod Brown (Democrat of Ohio), John McCain (Republican-Arizona) and Rep. Jan Schakowsky (Democrat, Illinois) to cut biologics exclusivity back to seven years. Given these circumstances, it would be very hard to imagine a stampede by Republicans and Democrats to hot weld Orrin Hatch’s 12 year proposal into the TPP.

But wait, there’s more

In passing, lets dispense with the two other TPP points that Key made on Monday : (a) that the lame-duck passage depends on Paul Ryan and (b) that Tim Kaine can be counted as some kind of closet TPP supporter. Since August, Ryan has been saying that the TPP shouldn’t be put before the Congressional lame duck session and that it would fail if it was brought to a House vote. Ryan repeated that position on October 7, in an interview with right wing media personality Laura Ingraham.

Paul Ryan said Friday there would be no lame duck attempt to foist the Trans-Pacific Partnership on the American people.“We’re not going to bring this up in [the] lame-duck [session],” Ryan said Friday morning during an appearance on “The Laura Ingraham Show.” I can say that safely because even if we wanted to … we don’t have the votes,” Ryan added. Ryan stressed that he and the House GOP do not want to resurrect the TPP in its current form. “We think it’s not where it needs to be,” Ryan said. Obama has “got to fix this deal,” said Ryan. “There’s real problems with it.”

Not much wiggle room there. So, what part of Ryan’s categorical “No” does Key not understand? As for Kaine, his opposition to the TPP was a pre-condition for him securing the vice-presidential slot, and his prior enthusiasm for free trade became irrelevant at that point. At the time of his change of tack, Kaine explained it as being based on his problems with the investor state dispute resolution provisions contained in the pact.

I see much in the TPP draft — which has now been public and apparent to everybody for quite a while — that I like,” Kaine said then [in July] . “There’s one piece that I’m still really digging into is the dispute resolution.”[Later] Kaine stressed that he still had a “lot of concerns” about ISDS.

In October, Kaine repeated his belief that a new Clinton administration would be open to revisiting free trade issues. But back at the Peterson Institute – where this column started – they’re pretty sure that any revisiting won’t be done under the banner of the TPP.

Jeffrey Schott, a trade analyst at the Peterson Institute for International Economics, said he expected a Clinton administration would try to convince TPP nations to add provisions barring the manipulation of currency and drop dispute resolution panels, which critics say give corporations a way to avoid local courts. “From what Tim Kaine said, it sounds like they’re open to a trade deal but it would have to be restructured and rebranded.”

We’ll soon find out the TPP’s fate. In the lame-duck period it would take about a month to get a TPP vote on the rails and passed through all of its necessary stages in the House and Senate – so the deadline for the Obama administration to signal whether it has sufficient votes in its camp to risk proceeding to a vote at all, has been estimated (by the Wall Street Journal) to be November 18. See you again around then.

Lambchop Return

Kurt Wagner’s veteran Nashville indie band Lambchop has taken on an electronic incarnation this time, on their new album FLOTUS. Not many bands would publicise their new work with an 18 minute long single, but Wagner has done just that. Here’s “The Hustle” – the album finale, and the first FLOTUS track to see daylight :

Gordon Campbell on Britain’s landmark court ruling against Uber

October 31st, 2016

The shockwaves from Uber’s defeat last week in a British court have reportedly already begun to wash up here in New Zealand with some local drivers thinking of taking a similar class action.

In its ruling, the British tribunal struck a blow for common sense – and for the rights of all the workers toiling away within other parts of the so called ‘gig economy’ beyond Uber, but which happen to use the same ‘independent contractor’ fiction. Uber drivers have been found to be employees – and not independent contractors who all just happen co-incidentally to use the same phone app under the same work conditions, and for the same share of the income they generate. Uber is bound to appeal, but for now…the ruling means that Uber may finally have to front up with the kind of work conditions that employees can normally expect from the boss that sets their wages, and conditions of work. For example : sick pay, holiday pay and minimum wage rates may now have to be factored into the Uber model. It is a landmark decision, available here.

The tribunal’s findings against Uber are on five points, but as the Tech Crunch site points out, the core is probably this :

Uber’s counsel had tried to argue that the company merely supplies ‘partner’ drivers with “business opportunities” but the tribunal disagreed, taking a sceptical and ultimately dim view of its arguments — including dubbing Uber’s “supposed driver/passenger contract” as “a pure fiction which bears no relation to the real dealings and relationships between the parties”.

Setting out its conclusion, the tribunal writes:

We have reached the conclusion that any driver who (a) has the App switched on, (b) is within the territory in which he is authorised to work, and (c) is able and willing to accept assignments, is, for so long as those conditions are satisfied, working for Uber under a ‘worker’ contract and a contract within each of the extended definitions.

And furthermore :

[The tribunal] goes on to say it was struck by “the remarkable lengths” to which Uber has gone to try to compel agreement with its own definition of its company and the legal relationships between the various parties involved — describing it as “resorting in its documentations to fictions, twisted language and even brand new terminology” to try to advance its arguments.

“It is, in our opinion, unreal to deny that Uber is in the business as a supplier of transportation services,” it adds. “Simple common sense argues to the contrary.”

And also :

…..Uber’s counsel had tried to argue that the company merely supplies ‘partner’ drivers with “business opportunities” but the tribunal disagreed, taking a sceptical and ultimately dim view of its arguments — including dubbing Uber’s “supposed driver/passenger contract” as “a pure fiction which bears no relation to the real dealings and relationships between the parties”.

The tribunal ruling also contained fascinating insights into how Uber dictates the terms of the relationship with its drivers : eg Uber’s control of fare levels and surge pricing, its creaming off of one quarter of the fare for itself ( a rising ratio) its discouragement of drivers being able to solicit tips, the contractual demand that drivers do not speak negatively of Uber…etc etc. The British court is right. It doesn’t sound much like an ‘independent’ relationship between equals.

Wider implications

As Scoop has been reporting for some months, the British ruling will be of interest to the court in northern California which has, for some time, been wrestling with exactly the same implications of deciding whether Uber drivers are employees or independent contractors.

For New Zealanders, the issue will have a familiar ring, given that our Supreme Court reached the same conclusion in 2005 as the British tribunal has just done, on a case brought by a worker alleged to be an independent contractor in our film industry. The Supreme Court found that he was an employee. Famously, the Key government then caved into Hollywood pressure over The Hobbit production, and passed a law that overturned the Supreme Court ruling, thereby stripping workers in our film industry of the rights and protections they would otherwise enjoy.

Fitting then that the news of the British ruling on Uber should have come through just after the public had bid its farewells to trade unionist Helen Kelly. In Britain, the parties to the Uber case have until December 2 to come up with ways on how they plan to proceed. But for now…as one leading British labour academic has said in a written statement :

“The Uber ruling will demystify much rhetoric on the ‘gig economy’ being inherently liberating, and stimulate the debate on the opportunities, limits, challenges and ways of addressing the new forms of contracting work and activities that do not fit into the traditional categories of work.

“As many rights and obligations are based on these categories — from social protection rights (such as working time or minimum wage coverage) and contributions, to taxes and representativeness — it is of paramount importance to clarify how digitalised activities will align with the more established labour market models. While these are redefined, the safer default option may be to consider these forms of work as employment rather than self-employment.”

Exactly. Hopefully, the Uber drivers here will take a class action case, and eventually re-instate the law as it was before The Hobbit cave-in.


And here’s Nina Simone, doing her version of Oscar Brown Jnr’ 1960 jazz classic “ Work Song” …which was something of an urban civil rights anthem at the time. And we’ve still got so terribly far to go.

Gordon Campbell on the Police (and MSD) abuses of power

October 27th, 2016

It has been a rough week for anyone who believes in civil liberties. Apparently, the Police have deliberately abused the powers of detention they possess under the Land Transport Act (ie to promote road safety) in order to set up a bogus breath test traffic stop to gain the personal details of people attending a perfectly legal public meeting about euthanasia.Read the rest of this entry »

Gordon Campbell on holidays, Hekia Parata and Badlands

October 25th, 2016

First published on Werewolf

At this time of year, a lot of New Zealanders tend to bemoan the increasing popularity of Hallowe’en. They regard it as an alien, commercialized American import with no real connection to this country – even though, thank goodness, Hallowe’en seems to be replacing an equally alien, commercialised British import called Guy Fawkes Day, which also has no genuine connection to this country. At least the American import offers more dressing up options for children, and doesn’t involve the terrorising of animals via fireworks. Such is social progress.

Otherwise, one of the peculiar aspects of the holidays and celebrations on our public calendar is the virtual meaninglessness (and/or divisiveness) of most of them. Easter and Queens Birthday for instance, have retained virtually none of their original meaning. Nor do the anniversary holidays that celebrate the joys of provincial identity. By contrast, Anzac Day has regained a good deal of meaning after decades of steadily losing relevance. Waitangi Day ( which is the closest thing we have to a national day) still polarizes the nation as much as it unites it. Arguably, that’s a good thing – in that it signifies how much work still needs to be done before there are grounds for outright celebration, for everyone. Read the rest of this entry »

Gordon Campbell on plastic bag activism, and street harassment

October 18th, 2016

First published on Werewolf

Amusing to see the Act Party experiencing another outbreak of young fogey-ism. What has aroused the ire of Act Leader David Seymour this time is the introduction of a Greens private members bill to the ballot process, calling for a 15 cents levy on plastic bags to reduce pollution.

Clearly, one of the dastardly things about this measure is that elsewhere it seems to work, brilliantly. Reportedly, figures from Wales show that single journey plastic bag use dropped by around three-quarters after the introduction of a 5p charge in 2011.

Ireland’s €0.15 (11p) levy on bags reportedly led to a 90% reduction in consumption. Scotland introduced a similar measure in late 2014, and it seems to be having a similar impact. In England, the plastic bag levy has reduced the incidence of one trip plastic bag use by 85%. Read the rest of this entry »

Gordon Campbell on the Surplus, And Bob Dylan

October 14th, 2016

First published on Werewolf

To quote the distinguished Nobel laureate, ‘Something is happening here, and you don’t know what it is, do you Mr Jones?” True, Bob Dylan didn’t have Finance Minister Bill English or Labour leader Andrew Little exactly in mind when he wrote those lines, but they definitely fit. It’s been a weird old morning when the country wakes up to a $1.8 billion surplus and yet the strongest advocate for social justice is the guy from the Salvation Army.

No surprise that English should continue his Mr Magoo act in the face of – to take a few examples – a crumbling health system, the plight of the homeless and the underfunding of special needs education and mental health services. But hooray! The surplus this deliberate starvation has made possible means there could still be tax cuts in election year. Such a safe pair of hands we have in the good Mr English. If only he wouldn’t keep them so tightly wrapped around the nation’s throat.

The real disappointment is Labour who apparently (a) would spend the surplus on more police, and are (b) reportedly intent on portraying Election Year 2017 as a choice between Tax Cuts or Safer Streets. Read the rest of this entry »