Public Address

The very public evisceration of David Cunliffe

Ordinarily, when the coup of a party leader is underway, one of two things happens. Either the incumbent simply walks, having seen the writing on the wall, or attempts to stare down their opposition in a closed room. Someone walks out of the room as leader, be they the continuing leader or a fresh face, and the party and public is informed of the result.

The Labour Party, in its collective wisdom, now has a very public election process, which is all very well for the candidates with no leadership history to defend. It’s a very different kettle of fish for David Cunliffe, who will now have to defend leading Labour to its worst result in recent history.

If one wins a resounding victory and credits the team (a la John Key), one is deemed a good winner. If one suffers a resounding loss and runs with the ‘blame everyone but oneself’ approach, the plaudits are somewhat fewer. Therein lies the catch for Cunliffe. If he accepts responsibility, as he’s hitherto failed to do, he’s toast. If he tries to apportion blame elsewhere, he risks a resounding backlash.

The backlash has begun. Cunliffe has remarked that some candidates may have been concentrating on the electorate vote, rather than the party vote. He’s had an excruciatingly scathing open letter from Labour’s Ilam candidate, James Macbeth Dann as a result, published at Public Address. Here are some highlights:

I gave my campaign everything, and I am sure that you did the same. We ran a two ticks campaign in Ilam. All our material had “Party Vote Labour” proudly on it. We delivered tens of thousands of pieces of paper with your face on it. But the reality, the hard truth, is that people in the electorate just didn’t connect with you. I lost count of the number of times I door knocked someone who told me they had voted Labour all their life, but wouldn’t vote for us as long as you were leader. People who would have a Labour sign – but not one with your face on it. While those examples are strictly anecdotal, the result on election night isn’t. It’s unavoidable. It’s practically the worst result in the Party’s history.

And:

The Labour Party isn’t a vehicle for you to indulge your fantasy of being Prime Minister. While you might think that it’s your destiny to be the visionary leader of this country, the country has a very different vision – and it doesn’t involve you.

It’s time for a new generation of leadership in the Labour party, one that is closer in both age and understanding with the people it needs to represent. It’s not just time for Grant, but also for people like me. I think I did a good job in a very difficult electorate, and would like to build on it at the next election.

However, I won’t be part of a party that you lead. Not because I don’t like you, but because I simply don’t want to lose again. That’s the reality David. The people of New Zealand don’t want you to be their leader. The comparisons that you and your supporters have thrown up don’t hold water – you aren’t Norm Kirk and you aren’t Helen Clark. You’re David Cunliffe and you led the Labour Party to it’s most devastating result in modern history.

So I’ll promise you this. If you win, I’ll step aside from the party, to let you and your supporters mould it into the party you want. But in return I ask this: if you lose this primary, you resign from parliament. In your time in opposition, we’ve had you on the front bench, where you let down your leader at the most critical point of the 2011 campaign. You ran for leader and lost, then destabilised the elected leader. Then when you got your chance as leader, you led Labour a party that was polling in the mid-30’s to one that sits firmly in the mid-20’s. There is no place for you in this party anymore.

And of course it’s open season in the media, with so much blood in the water. The NZ Herald had an online article entitled “Cunliffe’s candid comments on the leadership”. Except that it doesn’t go by that title anymore. Instead it’s been renamed “13 bizarre things Cunliffe has said in the past 24 hours“. There was no change in the content of the article, but the title is a spectacular shift in slant.

The new acting leader is David Parker, Cunliffe’s former deputy and finance spokesperson. As someone who performed exceptionally well throughout the campaign, he can’t be accused of attempting to undermine Cunliffe’s leadership. He’s been a loyal deputy, despite once being a contender for the leadership. And he too has now rammed the knife into Cunliffe, explicitly stating that he’s lost confidence in him.

When someone like Parker makes it that clear, in such a public fashion, there’s no way back for Cunliffe, even if he somehow wins the members and union vote with such a margin that he scrapes back in as leader. What do you do when your finance spokesperson has publicly stated he has no confidence in you?

Can Grant Robertson beat John Key in 2017? Who knows. Nonetheless, Cunliffe is a corpse, even if he retains the leadership. Perhaps the best thing for Labour would be for Cunliffe to abandon his tilt for the leadership, and for David Parker to reassess his refusal to stand. Parker v Robertson: a battle that could provide positive headlines? Or is it just me?

 

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The Blomfield v Slater judgment – what does it mean for your average blogger?

So with the finding of the High Court that Cameron Slater is a journalist (see my previous posts here, here and here), and that his Whaleoil blog is a news medium, there’s been some presumption from some on the internet that political bloggers as a class have now been raised to the level of journalists. Lprent at the Standard, for example, says:

I was rather expecting that Justice Asher would make me and other authors here honorary journalists under section 68 of the Evidence Act 2006, and that is what he did.

I’m not entirely certain that lprent is right. There are a few fishhooks spread throughout Asher J’s judgment that seem to indicate that the Courts would consider Cameron Slater to be a bit of a special case among bloggers.

For a start, there’s the definition of a news medium s 68(5) of the Evidence Act: “a medium for the dissemination to the public or a section of the public of news and observations on news”. The key word there – “and” – means that for a political blog to be considered a news medium, that blog must not only disseminate observations on news (which is the general blogging modus operandi), but to also disseminate news. Justice Asher notes at para 54:

Given that the medium must be “for the dissemination to the public of news …” a blog that publishes a single news item would not qualify. The blog must have a purpose of disseminating news. Some regular commitment to the publishing of news must exist before a blog is a news medium.

So what is news? Well, that’s where things get fuzzy. Following reference to the New Zealand Oxford English Dictionary, Asher J states that “[t]he reporting of news involves this element of providing new information to the public about recent events of interest to the public”.

It’s a definition that doesn’t necessarily advance matters. If a radio news bulletin, for example, simply involves the repetition of news broken by others, is the bulletin in fact disseminating news? You’d assume so. So if a blog essentially does the same thing – repeating news stories broken by mainstream news organisations, but providing coverage through the blogger’s voice – is this really any different to a radio news bulletin? Where does the distinction between disseminating news and disseminating comment on news begin and end?

Justice Asher’s judgment, in finding that Whaleoil was a news medium, dwells on Cameron Slater’s investigations and stories that he broke (see paras 58 to 59, and 63 to 64). There’s an implication that a blog must be breaking stories to the public in order to be considered a news medium. Simply reacting to stories already broken, and repeating those stories (with or without additional editorial comment) doesn’t seem to be enough.

At para 62 of the judgment, Asher J states, “In my assessment, Mr Slater’s reports contain genuine new information of interest over a wide range of topics”, while at para 65 it is stated:

It is this element of regularly providing new or recent information of public interest which is in my view determinative. He was not doing this as often as would occur in a newspaper or a television or radio station, but that could not be expected of a single blogger. Such a person would not have the resources to operate on that scale. I do not see it as a pre-requisite that the quantity of stories must be equivalent to that of a substantial corporate news organisation. His motives for reporting are not crucial either. Because Whale Oil at the relevant time with reasonable frequency provided such information, as well as commentary and the opportunity for debate, it was a news medium.

 So are the authors at the Standard, Pundit, The Daily Blog or Public Address journalists? Is Danyl McLauchlan at the Dim-Post a journalist? Or David Farrar at Kiwiblog? Or Pete George at Your NZ? Or yours truly? From the High Court’s judgment, who knows. Most blogs, such as Occasionally Erudite, simply involve commentary on topical news items – the individual blogger’s view on the story or stories of the day – which seems unlikely to reach the threshold of being a news medium or journalism.

But at the Standard, lprent has reported live from the NZ First conference, or attended the Blomfield v Slater High Court hearing and provided a report on what occurred. At Public Address, Russell Brown provides additional background to stories he covers on his Media Take show or provides details of interviews with Patrick Gower, while Graeme Edgeler has exhaustively researched and posted on issues such as the secrecy of the Coroner’s Court.

Are these examples of journalism? One would assume so. Do they occur regularly enough for those particular blogs to be considered news mediums, according to Asher J? Hard to say. The test seems to be on a case by case basis, with regular provision of new information to the public being relative to the individual blogger.

Nonetheless, it seems that most bloggers wouldn’t be considered to be journalists, following Asher J’s reasoning. Repeating stories on a blog and providing comment won’t get you over the threshold. And even if you break stories, it has to happen on a regular basis (whatever “regular” may mean).

Cameron Slater seems to be a special case.

 

 

Was a crime committed when Slater accessed Labour’s computer system?

Following on from my earlier post regarding Nicky Hager’s new book, Dirty Politics, there’s the issue of Cameron Slater and Jason Ede accessing the Labour Party computer system. The Greens have filed a police complaint, but was a crime committed? 

In the NZ Herald, John Armstrong states that:

The allegation that one of John Key’s minions hacked into the Labour Party’s database is – to put it bluntly – the modern-day equivalent of the 1972 burglary of the Democratic Party’s national committee headquarters in the Watergate complex in Washington. 

Well, it’s not really hacking. I remember Cameron Slater blogging about what he’d done, back in 2011. No security was bypassed. No hacking required. Essentially, Labour left their system open to the world.

Over at The Standard, Rocky (in her blog post entitled “But the door was open…“) seems convinced that Slater and Ede would fall foul of s 249 of the Crimes Act – accessing a computer system for dishonest purpose – which reads:

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—

(a) obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

(b) causes loss to any other person.

(2) Every one is liable to imprisonment for a term not exceeding 5 years who, directly or indirectly, accesses any computer system with intent, dishonestly or by deception, and without claim of right,—

(a) to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

(b) to cause loss to any other person.

I’m unconvinced. There’s no “loss” to Labour, and I just don’t see that a court would find that snooping through Labour’s databases can be seen to fall under the ambit of obtaining or having the intent to obtain “any property, privilege, service, pecuniary advantage, benefit, or valuable consideration”. The language is that of obtaining financial advantage, which just doesn’t appear to apply in this situation.

Unfortunately, there’s almost no case law in this area, so it’s difficult to say just what a court’s interpretation might be in this sort of scenario. Could Slater be said to have obtained a “benefit” through accessing the Labour website? It’s conceivable. Labour’s embarrassment and the flow on increase in hits to the Whaleoil website might be considered a “benefit”. However, I don’t believe it’s as open and shut as Rocky posits.

There’s a better argument in favour of a prosecution under s 252 of the Crimes Act – accessing a computer system without authorisation – which reads:

(1) Every one is liable to imprisonment for a term not exceeding 2 years who intentionally accesses, directly or indirectly, any computer system without authorisation, knowing that he or she is not authorised to access that computer system, or being reckless as to whether or not he or she is authorised to access that computer system.

(2) To avoid doubt, subsection (1) does not apply if a person who is authorised to access a computer system accesses that computer system for a purpose other than the one for which that person was given access.

On the face of it, you’d have to assume that Slater and, allegedly, Ede would be toast – they’ve intentionally accessed membership and donations databases without authorisation, knowing they’re not authorised. However, lawyer Graeme Edgeler comments on Dr Nicole Moreham’s blog post at Public Address, providing an interesting counter-argument:

The question then is: does Cameron Slater have authority to access the server that hosts the Labour Party website? Well, it’s a publicly available website, that they put up there so that people can go to their website and download stuff from that server into their cache to read on their browsers. If Cameron doesn’t have authority (because, for example, it’s not express authority), I don’t see how any of us can lawfully look at it.

If Cameron, and you and I have authorisation to access the server that hosts labour.org.nz for the purpose of viewing the Labour Party’s website, then is there any basis on which section 252(2) doesn’t come into play if once we access the server, we do things that it was not intended we should do?

Obviously, if once there, those unauthorised things we are doing on that computer system (which we are authorised to access for other purposes), we do things for other reasons, eg to cause damage to the site, or to do something dishonest etc. other computer crimes may arise (such as section 249, or section 250). These offences can be committed on computer systems you have been authorised to access, because they don’t include something equivalent to section 252(2), but there has been no suggestion to date that Cameron Slater or Jason Ede (or anyone else) accessed the Labour server in a way which might give rise to an offence under s 249 or s 250.

There may still be privacy issues, but I’m tending to the view that what has been alleged is not a breach of section 252, because of subsection 2. I think we all have authorisation to access the computer system which operates as the server hosting the Labour Party website.

Nonetheless, regardless of whether we’ve all got authorisation to access the Labour Party website, Slater’s posts of the time, and Ede’s Facebook/email correspondence with Slater, make it plain that they knew they were accessing something that the Labour Party did not want accessed by the general public.

To me, that clearly brings s 252(2) into play – you’ve got authorisation to surf the Labour Party website, but when you stumble on (or are tipped off about) a publicly accessible backdoor route into membership and donation databases, it should be obvious that you’ve gone beyond the purpose of access, thus negating the right of access you previously had. 

Frankly, I don’t think Graeme Edgeler’s proposed defence would fly.

Which means we now await the outcome of the Police complaint, and see who they agree with…

It isn’t easy being Whyte

Jamie Whyte has a problem. He’s the leader of a party that doesn’t have enough support to get more than one MP into Parliament, assuming ACT wins the Epsom electorate. And given that he’s not the one standing in Epsom, that means that unless something magical happens to ACT’s polling, he’ll be missing out. David Seymour will be ACT’s sole representative in Parliament.

ACT is polling just 0.5% in this site’s Poll of Polls. The highest any major poll has had them this year is 1.1% (the mid-March 3News Reid Research poll), and in the last dozen polls released, they’ve hit 1% just once. Of the last five poll results, they’ve ranged between 0.8% and not registering at all.

Richard Prebble (and, to a certain lesser extent, Rodney Hide) understood that ACT’s natural ideological constituency was relatively small. There really aren’t that many classical liberals floating around. Nonetheless, in the wake of the ever-extending meltdown that was the last gasp of Hide’s leadership, Don Brash’s attempt to make lightening strike twice, and John Banks’ eccentric conservatism, ACT finally went back to its roots. Jamie Whyte was supposed to be the calm voice of rationalism. Voters would be unable to ignore the power of the Professor’s arguments, and ACT would be great again. No more the shrill populism of perk busting! No more the awkward conservative Sensible Sentencing Trust juxtaposition! Nothing but cool, calm classical liberalism…

Unfortunately, such ideological purity still has only a tiny natural support base. Thus, no movement in the polls. So what do you do when nothing you say gets you any traction? Well, after having consulted Richard Prebble, there’s only one way forward – go populist. Expand upon Three Strikes, and go Back to the Future with a One Law For All crusade!

Now, Richard Prebble always understood that when one rabble-rouses, one shouldn’t over-think the rationale. One Law For All and Getting Tough On Crime don’t have the most convincing rationales behind them – either philosophically or statistically. They’re crude slogans, designed to attract support without thought.

That’s not the Whyte way. As a former professor, he doesn’t want to be seen as simply a common Prebble-esque rabble-rouser. He enjoys the role of political philosopher, and therefore needs a philosophical underpinning to his every stance.

One gets the feeling that his impassioned philosophical defence of One Law For All was made up on the fly, a work in progress. It was certainly easily demolished on blog sites such as Pundit, Maui Street and Public Address. And from there, the philosophy-on-the-hoof process has continued, with Whyte attempting to cite coup-plagued Fiji as a model of racial policy. Now he’s tried to cite Sweden as a an example of how to eradicate race from the law, only to be monumentally fisked by Professor Andrew Geddis.

Unfortunately, the populist policy Whyte is pushing already exists (to a greater or lesser degree) within a crowded conservative market place. Whyte is up against Winston Peters and Colin Craig, and Whyte is certainly not a patch on Winston when it comes to selling racism. He’s not even a patch on Colin Craig in those stakes, and that’s certainly saying something.

They say that all publicity is good publicity, and Jamie Whyte must certainly be hoping that’s the case. There’s really little else that seems likely to go his way.