Cullen on Judges

Michael Cullen made a speech about the Judiciary to the Legal Research Foundation in his capacity of Attorney-General (the speech itself is online here). Despite the Herald's reporting, most of the speech is about the history and role of the Attorney-General in New Zealand. Only in the last third of the speech does he start talking about Judges and how he thinks they should behave.

He begins the last third:

Undoubtedly the most closely observed aspect of my role as Attorney-General has been my relationship with the judiciary. Expectations that sparks would fly across Molesworth Street have so far been disappointed.

This is a reference to the period over a year ago when the Government and the Chief Justice were hissing and spitting at each other. Although Cullen was a leading critic of the Chief Justice in that period, I didn't expect relations with the judiciary to worsen when he became Attorney-General because only the Chief Justice was at fault and she has since learned the virtues of prudence and discretion. After stressing that he intends to uphold the independence of the Judiciary, Cullen then fires a shot across the bow:

However, such a role does not limit the ability of the Attorney-General to engage in discussion with the judiciary on constitutional principles. Regarding the issue of parliamentary sovereignty, I am happy for the public exchange of views that occurred in the last couple of years to continue if that is necessary.

Although the Government was already angry at the Judiciary over the Foreshore and Seabed appeal (which overturned fifty years of legal precedent to create a massive headache for the government), public friction with the Chief Justice had begun after she made a remarkably unwise speech that declared that the sovereignity of parliament was a doctrine that had not been "authoritatively determined".

He then explains his view of the independence of judiciary:

As I have said, I believe very strongly in the need for an independent judiciary. In the New Zealand context, however, that is independence to apply the law to particular fact situations and to make decisions accordingly. It is not independence in the sense of an American-style separation of powers, whereby the Courts can scrutinise legislation in the light of some higher law and strike it down, or alter it, if it is found wanting.

I'm a bit disturbed by Cullen's explanation as it conflates two concepts. The American-style ability of the Courts to strike down unconstitutional law does not arise from the concept of independence of the judiciary but from the concept of judicial review. Although Cullen might be forgiven for blurring the two, surely his Parliamentary Private Secretary Russell Fairbrother, Barrister and Solicitor, must have known the difference?

Cullen then admits that Parliament was partly to blame for origins of Judicial Activism that he had been attacking the Chief Justice for promoting.

Where I think the recent debate has been helpful is that it has highlighted the duty of legislators to pass law that is unambiguous in its intent and clear in its expression.

There is something to be said for the view, articulated by the Solicitor-General previously and in a forthcoming law journal article, that successive New Zealand governments have been responsible for promoting legislation which effectively requires the courts to be “judicially active”, or at least to see themselves as involved with Parliament in what some have called a 'collaborative enterprise', involving, at least in some cases, the development of over arching principles, capable of being applied in individual cases.

The Solicitor-General traced these attitudes to passing of legislation in 1977 and 1979 - this helpfully enables Cullen in a discussion of the 1987 Lands case to avoid blaming his colleague in the Fourth Labour Government, one Geoffrey Palmer, for the mess given that Palmer placed all the references to the undefined Treaty of Waitangi principles in the legislation. Instead Cullen blames parliament (like society) for asking the courts to take up the role of identifying these treaty principles.

After making the concession that some judicial activism is good, Cullen goes onto state:

However, nor is it a sign that Parliament intends the courts to undertake the same task [as it did for the Lands Case] of for all legislation.

In the scheme of things, these instances are relatively few. Parliament does not, as a rule, deliberately leave loose ends in legislation for the courts to tidy up.

I have to admire that "deliberately. Parliament did not deliberately leave a loose end in the legislation of the Lands case for the courts to tidy up. Instead the leading lawmaker of that period negligently allowed the loose end to appear in his legislation. But this then raises the question - what should the courts do when they uncover a deficiency in future legislation? Cullen's answer is that they "point those deficiencies out" but not to fix them as it's Parliament's job to remedy the flaws in its legislation.

Cullen then finishes a summary from an article that he wrote about the parliament's relationship with the courts. All-in-all, its a pretty moderate summary that's generally in line with what most people believe our system of government should operate. Cullen rather spoils the effect by quoting himself - he would have been far wiser quoting some learned authority as lawyers respect precedence far more than they respect genius.

Government spins an own goal

Things are getting serious for the Government when it's not only late in getting its side of the story out but that its story gets shot down. Helen finally addressed the negative reaction to last Thursday's budget by claiming that it was a media beat-up and that Mike Williams, the alleged source, had never said what the papers claimed. Unfortunately for her, the Herald had kept the tapes of the conversation and used it to refute her allegations (Nota Bene: correct usage of refute). In addition to this, the new NBR blog revealed that Mike Williams had been making similar noises to them before the Budget.

About this fiasco, two questions arise. Why did it take the government so long to respond? On Sunday and Monday there was the Bay of Plenty Floods to attend to but critical commentary about the Budget had been appearing in the news media as early as Friday. Why, once it appreciated the scale of the PR disaster, did the Government come out with a story that collapsed at the slightest scrutiny? After all, Helen knows from the Doone affair that the media are taping everything that she and her minions are saying to them and are not afraid to use the tapes.

My guess, building upon what I've speculated about before, is that Helen initially mistook the negative media reaction as a discomfiture of Mike Williams with whom she has fallen out with for reasons unknown. Once she had understood that the reaction posed a threat to the credibility of her government, she thrashed out a story with Mike Williams to put forward to the media. But Mike, furious at being made to look a fool, lied to Helen about what he had said so that she would be put in the same position as he was. Although totally guesswork, it makes more sense to me than the possibilities that a) the Government suffered an attack of idiocy or b) the Government is trying to throw the upcoming election.

Fixed Election Terms?

David Farrar approves of a NZ Herald article that argues for fixed election terms as happens in the US and Germany. There is a slight hiccup with the article's facts in that Germany can have shorter parliamentary terms as Gerhard Schroeder has recently proposed, it's just that the decision to do so rests in the Bundestag rather than the Chancellor. However the US parallel is still sound.

While the benefits of the move have been highlighted, nobody in the comments seems to have discussed what impact it will have on the way the government does business. It's an important convention of our government that it must always be in supply - failure to secure parliamentary funding is grounds for an early election. Now if you have a minority government that has just lost confidence of the House and the opposition is fragmented among several parties that cannot agree upon an alternative government, then there will be a period of stalemate in which the government will shut down (as has happened in the US during the Clinton administration). What should the solution be? Should the government resort to maple syrup republic portfolio patronage in order to regain confidence?

Revenge of the Sith

I saw this yesterday and thought it the best of the Star Wars prequels (which admittedly is saying much). The nature and motivations behind Anakin's fall is well-handled and the Dark Side is made more attractive not by appearing to be good but by placing serious doubt on the Light Side's claims to virtue. When Anakin kills a helpless opponent, he was hesitant before the fact and realizes immediately afterwards that it is something he should not have done. When Mace Windu is on the verge of killing a helpless opponent, he has no doubt. When Obi-wan utters his now notorious statement that "only a Sith deals in Absolutes", where does his nuances ultimately lead him? He ends up lying to Luke about what happened to Anakin. That's not to say that there are no bits that are not thought out well or just plain dumb.

Anakin: still shows flashes of the petulant loser that he was in Attack of the Clones. When he's appointed to the Jedi Council and is told that he won't be a Master, he whines in response to the snub that:

"This is sooo unfaaaiiir!!"

Arguably we all know people like Anakin but rarely do they make blatantly self-interested complaints in front of others. One would have thought that Anakin, close to the political Palpatine, would have known how to cloak his motives and utter something like:

"What?!? I am shocked, shocked! that this Council would show such contempt for the Chancellor faithfully executing the laws of the Senate, to which you are responsible!"

In this way, Anakin is not only concealing the reason for his outrage, he still succumbs to the Dark Side in being passionate and he also puts the Council in a spot.

Obi-Wan:Twice Obi-wan utters quips for comic effect. This rang false with me as he was not known for such quips in the Attack of the Clones or in a New Hope. At the very least, he should have uttered some Jedi platitude.

The Jedi Council: come across as a bunch of morons. They fail to notice Anakin's prominent habit of wearing black and they do nothing about his embarassing displays of passion. At the very least, they should have had a program for smacking errant Jedi with a cluebat to stop them going red. Another lapse is when Obi-wan discovers that Anakin has been having serious whoopsie on the side - he does absolutely nothing whatsoever. One would have thought that the millennia-old Jedi Council would have established procedures by now to handle this all-too-human failing.

Politics: The political controversy in the republic is poorly developed. We have the Seperatists, the Chancellor and the Opposition. Now the half the Opposition seem to be opposed to the Chancellor's subversion of the Republican Constitution while the other half are against any war. The motives of the anti-Chancellors are difficult to make out as Palpatine has given no evidence of bad faith that any of them can point to. The ideals of the peace party is simply bizarre: Padme urges dialogue as a way of resolving differences. Has she really forgotten the experiences of Naboo at the hands of the Trade Federation? Not only did the Trade Federation blockade the planet in order to get a treaty signed but she herself resorted to bad-faith tactics to avoid signing the treaty. When she realized that the Senate wasn't going to do anything productive, she resorted to violence to get her way. How could she reasonably expect dialogue to resolve the grievances of the Seperatists? But then again, since Padme has fallen in love with one Anakin "Life is sooo unfaaaiiir!!" Skywalker, people should not be surprised to find that her political beliefs are grounded in the same wellspring of delusion as her love-life.

Darth Vader: The worst for me was what Darth Vader says when he realizes that he has lost Padme. A far more spectacular display of force pyrotechnics than what actually takes place followed by an emotionally dead "What is my master's wish?" would have conveyed better his reaction to the enormity of his loss. But then again I suspect that George Lucas settled on what he actually put in because the only alternative that he could think of was to have Darth utter the far worse Anakinesque "Life is sooo unfaaaiiir!!".

Trivial observation #1Some have wondered why it takes eighteen years to build the first Death Star but only two and a half to build its much larger successor. Some have suspected union trouble but I believe the answer lies in the Imperial Senate. When it possessed budget control and oversight, Emperor Palpatine had to resort to numerous accounting fudges to get the funds he needed for construction. When the Death Star is built, he not only feels strong enough to dissolve the Senate but also revenges himself on the leader of those that delayed the construction of the Death Star.

Trivial observation #2I would be far more wary of the new teachings discovered near the end of Revenge of the Sith with the knowledge of what happens to Obi-Wan in A New Hope and Yoda in The Empire Strikes Back. Clearly these new teachings cause advanced ageing and senile dementia.

Trivial observation #3: I don't know why the Emperor persists in having his red bodyguards in Return of the Jedi considering how quickly Yoda dealt with them in this movie. He may have been the best Jedi in the galaxy but one expects the Dark Lord's bodyguards to put up more of a fight.

Trivial observation #4: George really screwed up by failing to give Grand Moff Tarkin (Peter Cushing) a confrontation of some sort with Count Dooku (Christopher Lee). See here, here and here for reasons why.

Budgetary musings

The major media and much of the blogosphere has rightly poured scorn on the limpid tax relief announced in yesterday's budget. To think the people earning between $10,000 and $40,000 are going to be impressed with an extra $35 a year(!) in three years time(!!) demonstrates that Michael Cullen dwells in a hitherto unimaginable state of delusion.

Matters were made worse for the government by the Labour Party President, Mike Williams, going around to the papers beforehand and gossiping about tax cuts. If he had actually known the size and proposed date of the tax cuts, I daresay that he would have kept his mouth shut. So why did he do it?

My guess is that some members of the government considered the arguments for tax relief had considerable merit (for example, when Labour was elected in 1999 it promised that the top tax bracket would only catch about 5% of taxpayers - the figure is now 13%) and put pressure on Cullen in the days before the Budget to implement this. They then sent out Mike Williams on a media tour to ensure that Cullen wouldn't renege on any commitment that he had made (something which John Tamihere had practically accused him of doing so in the infamous Investigate interview). Unfortunately having obtained such a commitment, the government members neglected to obtain any information about the size of the tax relief or its implementation date. They simply assumed that Cullen would offer meaningful tax cuts and so sent out Williams to make a fool of himself. I'm also suspecting as a result of all this that quite some distance has come between Mike Williams and Helen Clark. Clark is practically the only person with the authority to send Williams on a media tour and she would have also known what Cullen was intending to do about any intended tax relief.

However despite all their political machinations, Cullen and Clark have made a big mistake. By failing to offer credible tax relief, they have left the door wide open for National to do so even without touching the government's other spending initiatives. I have no doubt that, if elected, National will touch the government's spending initiatives but they can credibly claim to make savings by attacking government waste (for example, a quarter of a billion can be saved right up by letting Te Wanaga go belly-up) rather than propose spending cuts that Labour can attack.

One last thing that I find interesting about the budget is what Colin Espiner writes about the Budget speech:

If budgets can in any way be judged by the reaction accorded them in the House, then 2005 will go down as one big yawn.

Not even the Government benches were full for Cullen's big speech, and the public gallery was half empty.

Government whip Jill Pettis had to orchestrate what little applause greeted Cullen's spending announcements, which were thinly spread through a 40-minute address.

Even if the Budget were itself boring, the fact that some Labour MPs didn't turn up for it and that applause for it was sparse appears to me a rather telling sign of morale within the Labour Caucus.

Come again?

The Press ran a front page article about David Benson-Pope's reaction to the Solicitor-General's decision that the police will investigate allegations against him. It's a rehash of this NZPA article but contains additional reporting, the origin of which is not given. In particular after the third paragraph in which David is quoted as saying:

"These are really serious accusations and allegations which I want sorted, and the sooner the better for everyone's sake," he said.

The Press then adds [emphasis mine]:

He had been asking for the police to handle the allegations "for some weeks".

What?!? Rodney only raised them in the house last week! If David knew of the allegations to the extent that he was talking to the police some weeks ago then it makes his responses in the house even more foolish. Instead of the original impression that an ambushed David reflexively (and stupidly) denying sordid allegations, it now appears that he knew of them beforehand but he still answered in such a way to warrant his ministerial suspension? If ministers could be ousted from cabinet due to monumental stupidity, David Benson-Pope's handling of these allegations would be more sufficient to warrant his immediate dismissal.

UPDATE: Rodney finds the online version of the Press's comments here and suggests that no action was taken because David called 111.

Ministerial misbehaviour: Helen's View

In the House today, Helen was asked about her standards for ministerial behaviour in question eleven. She responded:

Rt Hon HELEN CLARK: Had the same standards been applied to Denis Marshall, Murray McCully, John Banks, Tau Henare, and numerous others, the tally would have been even bigger under previous Governments.

Since I've just looked at this topic, her examples bear closer examination. Denis Marshal did resign his portfolio of Conservation Minister some months after the cave creek tragedy, having spent the intervening weeks correcting his department's culture.

Murray McCully's wrongdoing was to be privy to secret Golden Handshake deals for Tourism Board executives. Given that the present government is in a similar position with respect to the erstwhile chief executive of the Families Commission among others, it's doubtful whether she would have sacked anybody then.

Banksie's misdeed was using a cellphone on an airplane while in flight. Helen, on the other hand, isn't resigning for being an assesory in a speeding scandal for which several police officers are facing charges for. Hence it's doubtful that Helen would have required Banksie's ministerial resignation.

Tau Henare didn't do anything wrong as far as I can remember. Helen has apparently confused him with either Tuariki John Delamere, who was dismissed, or Tuku Morgan, who wasn't a minister.

So Helen's examples do not persuade me that her standards of ministerial behaviour are far higher than that of Jim Bolger or Jenny Shipley. Moreover if she had included competence as one of the criteria by which she judged her ministers, she would lose even more ministers.

How to prevent a potential scandal

Helen Clark this morning on Morning Report was accusing TV3 of running a "sting operation". Considering that she knew about the allegations long before they were raised in the House, she only has herself to blame for allowing David Benson-Pope to be caught.

What could have Helen done to prevent the scandal? Get the government's story out first. When David Benson-Pope became Minister of Education, all he had to do was to give an interview to a tame hack and say something like "As a teacher, I used to be in favour of corporal punishment until I realized that I was getting off on beating little boys". That, instead of stupidly "refuting" the allegations, would have taking the heat out of any explicit accusation and allowed for some closure.

Ministerial resignations and suspension

In the light of Benson-Pope's suspension, I thought I might take the trouble to list the ministerial sackings and suspensions over the years.

Robert Muldoon's Government

Derek Quigley: Forced to resign from Cabinet in 1982 after criticizing the style of Muldoon's government. That was practically the only thing that could get a minister ousted in those days as neither Keith Allen nor the Ministers in the Marginal Land scandal were suspended or dismissed. Keith Allen was extremely unwell from diabetes during the last years of Muldoon's government and died shortly after the 1984 elections. The Marginal Land scandal involved the reclassification of some land for the benefit of a Minister's son-in-law - although I don't recall their names, an inquiry found that one minister acted "unwisely" and another "extremely unwisely".

David Lange's Government

A serious scandal during Lange's first term was the Maori Loan Affair. This could have claimed the scalp of the then Maori Affairs Minister, Koro Wetere, except that it was found he was not responsible for any wrongdoing because he didn't know what was going on. Although being clueless in charge of a ministry would be legitimate grounds for sacking nowadays (exception: George Hawkins), blame was successfully deflected onto the Permanent Secretary but for some strange reason, he was not asked to resign.

Kerry Burke: Not recognized as a sacking by the general public at the time but Kerry accepted a demotion from Cabinet to become Speaker of the House. Although the grounds was that he publicly recognized that he didn't have the support in caucus to be re-elected into Cabinet, nobody would actually say why. The reason was that he became unpopular due to the treatment of his first wife during the breakup of their marriage - she found out the marriage was on the rocks when she went to buy air tickets using the perks of being a minister's wife only to find that the perk had been transferred to Kerry's mistress).

Richard Prebble: Actually two sackings in one day. Firstly Lange sacked Prebble as Minister for State-owned Enterprises but allowed him to retain his other portfolios and cabinet posting. Then Prebble went on Eye Witness news to accuse Lange of being deranged among other things which prompted Lange to fire him from the rest of his portfolios. Given what is known now of Lange's state of mind at the time, Richard's only crime was to be unsparing with the truth.

Roger Douglas: Douglas went out in a much less dramatic fashion. After some public sparring as a result of a breakdown in relations between him and Lange (Lange tried to take his press secretary, one Bevan Burgess, away from him), Roger Douglas issued a public leadership challenge. Lange interpreted that challenge as a request to be dismissed and had him sacked from cabinet. This also brought about the resignation of Trevor de Cleene, Minister outside Cabinet and Douglas henchman, in sympathy.

David Lange: David supposedly resigned on the grounds of ill-health. In reality, things were much different. As part of a peace-making deal, a caucus election was held to fill vacancies in cabinet. Lange decided to use his personal authority in caucus to prevent Roger Douglas and Richard Prebble being voted back in. He failed and resigned realizing that his prime ministership was now mortally wounded.

Jim Bolger's Government

Winston Peters: No surprises here for the first ministerial casualty of Jim Bolger's Government. He had not gotten along well with Bolger and had been dismissed from the Opposition Front Bench for publicly refusing to endorse Jim Bolger as Party Leader. After the elections, Jim Bolger allowed him into Cabinet as a peace gesture but Winston was sacked within the year for "not being a team player".

Ruth Richardson and Graeme Lee: These two were asked to resign after the 1993 elections as part of a cabinet reshuffle (I vaguely recall a third who refused to write out a resignation letter and so was sacked). Ruth was dismissed because Jim Bolger wanting a kinder, gentler second term felt strong enough to shift her from the Finance Portfolio and she refused to take any other job. I think the other two were dismissed because they were next-to-useless.

Dennis Marshall resigned from the Conservation portfolio at his own request several months after the Cave Creek tragedy.

Neil Kirton resigned as associate minister for health after a row with his superior, Bill English. He resigned primarily because he failed to get Winston Peters to support him.

Christine Fletcher Resigned because of "concerns" about Jim Bolger's leadership. Since she was not reappointed to Cabinet after Jenny Shipley took power indicates that she didn't have a clue.

Jim Bolger Forced to resign after failing to make sure that he had enough votes in his caucus to head off any leadership coups while he was overseas.

Jenny Shipley's Government

Paul East Dumped when Jenny took power because he was a Bolger loyalist. Lockwood Smith also suffered some portfolio demotions at the same time, which was the subject of an untrue rumour.

Winston Peters was sacked as minister for the second time. He tried to walk out of the coalition after the resignation of Jim Bolger but did not have the support in the the NZ First Caucus to do so. He then got into an argument with Jenny Shipley about the sale of an airport. After a bitter row, he agreed to the sale only to be fired by Jenny once his signature was on the paper. A furious Winston tried again to take his party out of the coalition but ended up splintering it instead.

Deborah Morris resigned from Cabinet after the sacking of Winston Peters. She could have remained in Cabinet as she had refused to join Winston's walkout but probably couldn't hack the pressure.

Brian Donnelly and Robyn McDonald were dismissed from their portfolios for remaining loyal to Winston Peters during the NZ first caucus split.

Tuariki John Delamere was dismissed as immigration minister after some blatant pork-barrelling of his portfolio shortly before the 99 election.

Helen Clark's Government

Dover Samuels was suspended as Maori Affairs Minister because of underage sex abuse allegations. When his failure to declare criminal convictions on his labour party candidature form was found, he was asked to resign his portfolios but refused. As a result, Helen sacked him. When none of the serious allegations were proven, he remained outside Cabinet but was eventually re-appointed as Minister outside Cabinet as part of a peace-making deal with the ninth floor.

Philida Bunkle and Marion Hobbs were suspended for claiming out-of-town expenses while being Wellington MPs. Marion Hobbs admitted wrongdoing and was allowed back into Cabinet after a report blamed easy abusable guidelines. Philida Bunkle was dismissed for not admitting wrongdoing and because Jim Anderton didn't like her. When the Alliance split later in the term, they expelled her for good measure.

Ruth Dyson was sacked for driving while intoxicated. She was reappointed when her period as a disqualified driver expired.

John Tamihere was asked to step down while investigations into financial shennigans at the Waipareira Trust were conducted. After the dismissal of the most serious allegation, that he evaded tax on a golden handshake, John wasn't allowed back into Cabinet because of a number of other issues which he refused to recognize. Eventually this lead to his crashing and burning during the Investigate Magazine interview.

Margaret Wilson stood down from Cabinet to become Speaker of the House. The reasons for doing are currently unknown and may not involve matters of personal incompetence or political differences. But I doubt it.

David Benson-Pope is currently standing down due to credible allegations of student abuse and the possibility that he might have lied in Parliament.

Trevor Mallard and George Hawkins both have good reasons to be dismissed from Cabinet. Trevor for the Te Wanaga Debacle which occured under his supervision and George because of general incompetence.

Undoubtedly this list is incomplete but on the general numbers, Helen's cabinet is about as scandal-ridden as the last National cabinet.

David Benson-Pope suspended

David Benson-Pope has been suspended from cabinet following allegations of student abuse when he was a Teacher at Bayfield High in Dunedin. These allegations were raised in the House last Thursday by Rodney Hide and immediately denied (although Benson-Pope prefers to say that he has "rebutted" "refuted" them instead). On Friday, a ex-student came forth and alleged that a laughing David had caned him drawing blood. Helen Clark's reaction on Monday was to declare her support for David and accuse National and ACT of muck-racking. She felt she was on safe ground as one complainant can be dismissed as a loom.

Unfortunately for her, four other complainants went public on TV3 news (no links as yet). The allegation that David Benson-Pope stuffed a tennis ball into a student's mouth and tied his hands together not only has a complainant but also a witness as well. David Benson-Pope had no option but to be suspended "at his own request" (in other words, the nineth floor demanded that he made the request or be fired) while an independent investigation is carried out.

As things stand, this does not look good for David. It is difficult to see how all five complainants could be concocting a pack of lies. If the investigation supports these allegations, then David has misled parliament and should resign. Although Colin Moyle managed to find his way back into cabinet after a similar offense, I find it difficult to see how David Benson-Pope could entertain any expectation of doing so given the nature of these allegations, let alone becoming Helen Clark's successor. Marion Hobbs and Ruth Dyson at least admitted their transgressions when the allegations of their wrongdoing first surfaced which is why their cases are not applicable.

An additional problem for the Government is that these allegations were known to it (as evidenced by Jill Pettris the senior Government Whip shrieking "you sat on that for months" when the allegations were first raised in the house) and yet they did nothing. At the very least, Helen can expect more agony during question time tomorrow.

UPDATE: "Rebutted" corrected to "Refuted". I hate it when I quote what David Benson-Pope should have said and not what he did say.

*scrittle* *scrittle* *SPLASH!* *paddle* *paddle*

Helen Clark was absent from Parliament today. Normally Michael Cullen stands in for her during Question Time but he was also absent today which I can't recall happening before. As a result Parliament was treated to the rare spectacle of Phil Goff answering questions on behalf of the Prime Minister. If Michael is refusing to stick around for Helen anymore then this state of affairs will become more common in the near future.

A side-effect of Phil's pathetic eagerness to hog the parliamentary limelight was that George Hawkins persuaded him to answer questions on his behalf while George could avoid exposing his ineptitude about the police 111 review. Consequently Phil answered questions on behalf of Helen about her "confidence" in George Hawkins (whatever the confidence is for, it certainly isn't for competence in the job) and also answered questions for George about his confidence in the Police Commissioner!

Another curious absence during Question Time was Annette King; answering questions on her behalf was the obscure Mita Ririnui. Why Annette didn't front up is also a mystery as the questions asked didn't seem to be very tough. I suspect NZ First has a physiotherapy scandal up its sleeve.

On the other hand, David Benson-Pope is probably regretting his decision not to follow George's example after he was ambushed with lurid allegations that he abused secondary school students with tennis balls. Throwing tennis balls at students talking in class is bad enough but sticking balls in student's mouths while tying their hands together is, if true, grounds for resignation and prosecution. However the allegations have apparently been floating around parliament for months (according to a semi-coherent Jill Pettis, senior government whip). In such circumstances, a good test of the veracity of the allegations would be whether more than one student makes them.

Signs of a sinking ship?

I may be reading too much into things but a couple of exchanges in the House today made me thing that Clark's cabinet colleagues are preparing to abandon ship. The first indication was during question three:

Hon Richard Prebble: Does the Prime Minister recall accusing in February 1999 the then Prime Minister, Mrs Shipley, of “prevarication and evasion” regarding a private dinner between Mrs Shipley and Kevin Roberts; further, does she recall demanding that all documents be tabled, and issuing an election statement on 23 November in which she said: “Labour will drive a culture of change, starting at the top.”; if so, as she has admitted that she leaked confidential documents—for which any member of her administration who leaked them would instantly be fired—and as she has admitted that she anonymously confirmed a false statement, then allowed the newspaper to print a false statement on which she had “declined to comment”, is this what she meant by “a culture of change, starting at the top”; if not, will she take the advice she gave Mrs Shipley and resign?

Rt Hon HELEN CLARK: I lost count after about eight questions there—

Helen is right to comment on the excessive number of questions (actually four, not eight). When Jonathon Hunt was Speaker, he would say something like "there were X questions in there, the Minister can answer two". So what does Margaret Wilson, hitherto known as Helen's dependable dogsbody, say?

Madam SPEAKER: I am sure the Prime Minister can address those questions

Ouch.

The second exchange is Michael Cullen complaining about "perverse incentives" in question eleven. What I found curious was not that he interjected here but that he was silent while Helen was being grilled extensively. Normally when Ministers are being given a severe drubbing (such as George Hawkins during question times passim), Cullen is usually there to help out. Instead his silence seems sullen.

But then again, I could just be reading too much into the transcript.

Winston peters out over the Ba'athists

Judging by what was said in the House today, Winston has used up all the ammunition that he had over secret Ba'athists immigrants. He has only named one person, Al- Khashali, that the government didn't know about. The other Iraqi told to leave was a diplomat that the government, not Winston, found and whom Winston described as a "rabbit". The remaining Iraqis that he has named are known refugees who arrived before Saddam's fall. He didn't name any more Iraqis in the House but his mention of Asha Ali Abdille caused TVNZ's reporter to witlessly believe that he had yet named another Iraqi. However Asha is a Somali refugee who has been the subject of media attention before (for numerous criminal convictions) which makes the reporter's error even more glaring.

Helen feels the heat

The last couple of days have been interesting ones for the Doone affair. First Rodney Hide released copies of the witness briefs of Helen Clark, the Reporter and the Editor (the links are here but smaller copies are available at Sir Humphrey's). The events described by these briefs is at variance with Helen's statements to the House, which is an offense far greater than she sacked Lianne Dalziel for.

Secondly the Press this morning published an article which added at the end:

The Press can confirm that the conversations between Clark and the Sunday Star-Times were taped, and that transcripts do exist. It is understood that in the transcript, Clark is warned by the newspaper that it faced almost certain litigation from Doone if it was wrong.

I suspect this was an editorial insertion as the writer, Colin Espiner, was ripping into National and ACT last week for continuing to stick with this supposedly dead story when Winston Peters had landed a kinghit.

So how did Helen handle this? Badly.

She decided to go on the attack by accusing the Doones of playing politics in a legal matter. She appears to have forgotten that she stands accused of having done exactly that back in 1999 when she verified false information during investigations into Peter Doone's conduct.

Helen then continued the attack by claiming in the House that National was bankrolling the Doones and that in return, the Doones' laywers were helping National with their questions in the house. If she hopes to deflect questions about her conduct by floating bizarre conspiracy theories, she is in dire need of a period of "extended stress leave".

But this was not enough. Helen also defended her conduct in leaking the contents of the inquiries into the Doone case by claiming:

By definition, I cannot leak.

Someone needs to tell Helen that she is not the Head of State and cannot claim sovereign immunity for all her actions.

Te Wanaga o Aoteoroa: Te Sinking Waka

In the news about a twenty million dollar "loan" to Te Wanaga (apparently despite having been given $239 million this year from the government, the Wanaga is now on the brink of insolvency), Trevor Mallard said:

Today I reported to Cabinet that the situation at the wananga is more serious than we had envisaged and they are in immediate danger of not being able to pay their payroll and also a substantial amount of their creditors.

Wow. When the fuss about Te Wanaga first broke out in February, public concensus was that it was a complete and utter balls-up. Now it's much more serious than that which has to take some doing.

Developments on our Ba'athist Haven

The diplomat has now been identified as Zohair Muhammed Al-Omar (making my earlier guess wrong). He was serving as Ambassador to South Africa at the time of the US-led invasion, which makes me suspect that the earlier description of him as the Ambassador to Cuba was chaff thrown out by the government. According to the Dominion Post, his son claims that he was a career diplomat and that his service started in 1964 during the non-Ba'athist Arif regime.

The minister, Al-Khashali, is being described as a murderous thug by the President of the Auckland Refugee Council, Dr Munjid Umara. He was allegedly a leader of the Ba'athist militia during the 1963 coup and was involved in purging enemies of the regime. After the Ba'athists returned to power in 1968 (they were overthrown in 1963), Al-Khashali was made minister in the 70s as a reward for services rendered. With a record like this, he would have been ideal as a delegate to the UN Human Rights Commission.

There is also some murky business about the UN passports. Although Al-Khashali's arrived on an Iraqi passport, he had used a UN passport to support his visa application and that his wife entered on a current UN passport. So what are UN passports? They seem to be issued to UN employees and some types of stateless peoples. In light of Al-Khashali's service to the FAO and UNESCO, he would seem to qualify for one which would mean that he served with the UN within the last ten years.

UPDATE: I forgot to mention that another one of Winston's allegations seems to be true. In an article in the Press (but not online at stuff), McLeod and associates refused to confirm or deny that Al-Khashali had sought legal advice from them. Richard McLeod, a principal at the firm, did state that it was "ludicrous" to suggest that a migrant or refugee would be attracted here on the basis of how Zaoui was treated. Although McLeod will have sound reasons for thinking this, it is far less clear whether a migrant would actually see things his way. Al-Khashali arrived in New Zealand a month after Zaoui was released on bail by the Supreme Court. His impression, if he had heard of the Zaoui case, is likely to be based on that event alone rather than an accurate picture of Zaoui's legal travails since arriving in this country.

The Donne Affair: Questions in the House

Today was also the first day that Helen Clark answered parliamentary questions about her off-the-record briefings during the Doone Affair. To put it simply, she stonewalled. A new element in her defence (other than a) she wasn't the original source for the false allegation and b) she can't remember having confirmed the false allegation) was that the evidence was "contested" and that she had informed the Sunday Star Times of that.

This, quite frankly, is total bollocks. If the evidence was contested, then the standard practice is to include it in the report, note its disputed nature and draw (or avoid drawing) conclusions from it. What is not done is to delete the evidence so that it does not appear in the report. If the words "that won't be necessary" didn't appear in the report, it's because they don't appear in the statements of Peter Doone, his wife and the rookie Police Officer about the incident. Since Helen had a draft report at hand, she must have known that what she was confirming was not true at the time even if she can't remember it later.

There were two of them!

Last week, Winston alleged that a minister in Saddam Hussein's government was residing here. At first the government denied it, but does a thorough search of its records to make sure. As a result, a retired Iraqi diplomat, not a minister, was found and asked to leave the country. A slightly embarrassed government then announced that procedures would be changed and hoped that was the end of the matter.

Unfortunately it wasn't. The Immigration Department's "thorough search" did not extend to offshore applications. As a result, the government failed to find the person that Winston was actually referring to. A matter that was thought to be a minor balls-up now turns out to be a complete and utter train wreck.

The diplomat is said to have been Ambassador to both Bangladesh and Cuba. A quick google gives the name as one Muhammed Majmoud K. Al-Amili as the Iraqi Ambassador to Cuba that was appointed in 1999. The government won't give out his name on the spurious grounds that it could add weight to any claim for refugee status; this ignores the fact that the diplomat was seeking permanent residency not refugee status and the grounds for granting refugee status is justifiable fear of persecution in the home country, not having one's name bandied about in the news media of the intended host country. This may have been a feeble attempt at damage control but it's too late now. In any case, the diplomat was open about his country and former profession when applying for a visitor's permit but the immigration staff that processed his application did not consult their superiors about it.

The minister is said to be Amer Mahdi Alkhashali (aka Amer Mahdi Saleh Khashaly, the Minister for Agriculture and Agrarian Reform and a former delegate to the FAO and UNESCO (Baghdad). Winston claimed that he arrived a month ago on a UN passport which might be a garbled reference to his having been part of the FAO and UNESCO. Exactly when he was minister is yet unknown. Some people assume that since he was FAO delegate in the early 80s, that his ministerial career was over then. This seems unlikely to me as it assumes that third world politicians follow the European pattern taking up UN (or EU) careers after their own political career is dead and buried. Paul Swain says that he arrived on an Iraqi passport but his visitor's application was lodged offshore in the Bangkok Embassy (which has had a problem with corruption). Winston also states that the minister was seeking refugee status upon hearing about the Zaoui case but was given the brush-off by Zaoui's lawyers.

Neither of these men are thought to pose security risks (although that would mean hoping that the SIS would have its own methods of gathering information instead of relying on information provided by the Immigration service) and a search through the Duelfer report does not turn up their names but for the government to be blissfully unaware of such people with notorious associations being in the country does rather demolish my confidence in Helen's recent assurance that we are not a "soft touch" for terrorists.

As a result, the government is changing procedures for the second time in two days and conducting a search of all applications from high-risk countries over the past two years. I daresay a search ever further back might be profitable as Ayman Al-Zawahiri, Osama Bin Laden's Number Two (in both senses of the phrase), was rumoured to have visited New Zealand during the nineties.

Helen 'fronts up' over Doonebrook

Helen Clark, now back in the country, is being asked questions about the Doone affair that resurfaced in her absence.

She said the Government had followed a proper process in its discussions with Mr Doone over the incident, and she was comfortable with her personal involvement in that process and her conversations with the Sunday Star-Times.

To confirm a false statement during an employment dispute is not proper. If anything, it's indicative that one is not negotiating in the "good faith" that Margaret Wilson, Helen's friend and erstwhile Attorney-general, required for labour negotiations. But why is Helen "comfortable" with her converstations?

But on NewstalkZB the Prime Minister said she could not recall "what was said in conversations five and a quarter years ago".

In Australia, this would be known as the Carmen Lawrence defence. The problem is for Helen that claiming that you can't remember may get you off a charge of lying about what you have done, it will not get you off the consequences of your original actions.