“This government is very clear, we won’t let cowboys operate here in New Zealand.” – Prime Minister John Key, addressing the NZ Petroleum industry annual conference in Auckland, April 29, 2013

If all goes well for the Texas oil company Anadarko, it will be operating in fresh locations here by December, after it has picked up its new ultra-deepwater drilling ship ( called the Noble Bob Douglas) from a South Korean shipyard. However, any New Zealander who might have wanted to protest against this next phase of Anadarko’s activities off our coastline have just had their right to do so severely restricted by Energy Minister Simon Bridges, and without the regulations involved being subjected to parliamentary scrutiny, or vetted for compatability with our Bill of Rights. From June of this year, those who damage or ‘interfere’ with offshore oil and mining operations will face a year in jail or a $50,000 fine, while fines of $10,000 will apply to those individuals who come within a 500 metre ‘no go’ zone, and fines of up to $100,000 will be levied on organisations that support such actions.

Anadarko is the main corporate beneficiary of these regulations. Company spokesmen indicated last year that Anadarko would be drilling in November or December 2013 off the Oamaru coast and later off the coast of Taranaki. Moreover, out of 12 offshore blocks located in deep sea conditions ( ie, at greater than 200 meters depth) that the Government put up for tender in its last bidding round, only four were awarded. Two of these, the PEG1 and PEG2 permits in the Pegasus Basin – whiuch is an area that stretches from off the Wairarapa coastline to east of Marlborough – were awarded to Anadarko New Zealand, a wholly-owned subsidiary of Anadarko Petroleum Corporation, whose corporate headquarters are located just north of Houston, Texas.

This will not be the first time that Anadarko has enjoyed special treatment. Barely a week before our last general election in November 2011, Prime Minister John Key found time to divert from his busy campaign schedule for a meeting back in Wellington – purpose unknown – with Anadarko’s then-CEO, James Hackett. The notables who have expressed concern about the government’s curtailment of the civil rights to protest include former Prime Minister Sir Geoffrey Palmer QC, and Dame Anne Salmond. Those who feel a particular concern about Anadarko’s track record as a corporate citizen point to Anadarko’s 25% stake in the Deepwater Horizon well in the Gulf of Mexico, which exploded in flames in 2010 and killed 11 workers, before leaking hundreds of tons of oil into the Gulf, damaging the marine and coastal environment.

Mindful of these concerns, Anadarko sought to re-assure the NZ public last December in these terms:

John Gordon, Anadarko exploration manager, Asia Pacific, said the company had been a passive investor in the BP [Deepwater Horizon] well. “At no time did Anadarko have any input or say in the operation of the well in the planning or execution.” It settled with BP by paying it US$4b, though there was no legal ruling which forced that. Asked what assurance it could give about drilling in deep water, Mr Gordon said: “Anadarko has been doing the same for 20 years. We have done so with a very successful safety record and without a major incident in that time. “

As this article will document, almost everything in that statement of re-assurance would seem to be false.

The credibility of of Anadarko’s assurances to New Zealanders – rests largely (but not entirely) on the express claim that the company was only a ‘passive investor’ in the Deepwater Horizon rig, and that it didn’t have ‘any input or say in the operation of the well in the planning or execution.’ An investigation by Werewolf indicates otherwise. For starters, Anadarko’s claim (above) that it has had 20 years of experience in deep water drilling, appears to more than double the relevant figure, judging by this authoritative report by FMC Technologies of Houston, Texas that shows the contracts for “Anadarko’s first [ my emphasis] deepwater development project” were awarded between 2002 and 2004, and this project came online only in July 2004, according to this Anadarko press release.

In other words, Anadarko seems to have fewer than ten years experience at the business end of deep sea drilling, not the 20 years it claims.

Moving to the main point: well before Anadarko gave that public assurance last December, it was in receipt of a court order filed on February 22nd 2012 in the US District Court, Eastern District of Louisiana, in which the company had sought summary judgement to dismiss its share of liability for the Deepwater Horizon disaster. The US federal government and state governments in Louisiana and Mississippi have consistently alleged that Anadarko caused and/or contributed to the Deepwater Horizon spill by among other things, failing to assure that control was maintained by proper and adequate (a) cementing, (b) inspection and maintenance of the blowout preventer stack, and (c) adequate well monitoring. In that February 2012 judgement, Judge Carl Barbier concluded that Anadarko was indeed liable, as a co-owner :

“Liability for OPA [Oil Pollution Act] removal costs and damages is joint and several, vis-à-vis BP and Anadarko and the subsurface discharge. Furthermore, because it is undisputed that BP and Anadarko were owners of the offshore facility, BP and Anadarko are liable for civil penalties [under the Clean Water Act]”.

More to the point, the evidence indicates they were not ‘passive’ investors. As will be explained in detail later in this article, Anadarko was intimately involved in approving and funding the details of the well’s operations before the blowout – and in approving the response plan devised to cope an emergency. That’s one reason why Judge Barbier’s summary judgement is merely the tip of the iceberg when it comes to Anadarko’s legal battles over its saferty and environmental record. In the past year, there have been are at least three major actions before ( or pending within) the US courts directly relevant to Anadarko’s reputation as a good corporate citizen and steward of the environment. Two are related to the Deepwater Horizon affair, and a third has to do with the bankruptcy of a firm called Tronox, a former subsidiary of the Kerr-McGee company which was bought for $18 billion by Anadarko three months after Kerr-McGee had cut Tronox loose.

The reason Tronox went under is alleged to have been – in large part – the legacy costs of environmental cleanups and the health claims for compensation after decades of Kerr-McGee’s site contaminations, for which both Kerr- McGee and its new parent (Anadarko) have sought to avoid liability. The US government (acting on behalf of its Environmental Protection Agency) has sued Anadarko for its role with regard to Kerr-McGee’s shedding of those cleanup costs, as a prelude to the purchase of the company’s valuable oil and gas assets by Anadarko. That case has gone before the US courts, and a judgement is expected by mid year. (More on Tronox below).

The over-riding issue at stake here is whether Anadarko’s history as a corporate citizen in any way justifies the welcome mat being put out for it by the Key government. Not to mention the insulation from protest action that is being extended to it at the expense of the civil rights of ordinary New Zealanders, and with the related risk to our environment. As mentioned, and on the FMC Technologies evidence, the company’s December 2012 claim to 20 years experience in deep sea drilling seems false. Anadarko’s further claim to being only a “passive” investor in Deepwater Horizon ( and by implication, not really responsible for the lack of adequate safety provisions to prevent the disaster ) also appears false. At the very least, Anadarko was a central part of the decision making process (together with BP) via a Joint Operating Agreement, that led to safety breaches and cost cutting, which directly resulted in the disaster.

The isolation of New Zealand is one major reason why our governments should be exercising a correspondingly greater degree of caution before embarking on oil and gas exploration – in that the kind of safeguards now mandatory in the US remain notably absent in New Zealand, largely because of our remote location and the relatively small value of the operations here. As a consequence, our isolation leaves us highly vulnerable in the event of a spill, given that the well capping gear (ready access to which is now a pre-requisite in the US) will take an extremely long time to arrive here, as both these media reports indicate :

“New Zealand’s isolation makes it particularly vulnerable to a Gulf of Mexico-style oil spill, marine pollution experts say…..In the Gulf of Mexico, where there are more than 3800 oil and gas platforms, towing in a relief operation was relatively easy….In New Zealand…help could take longer to arrive with potential rescue platforms a long distance off…A similar leak [to Deepwater Horizon] at Montara oil field, in the Timor Sea, took 79 days to shut off.” – Dominion –Post, 23 June 2010

Access to well containment gear – capping stacks – was compulsory in the United States and they were deployed around the world in industry centres, the closest of which [to New Zealand] is in Singapore – New Zealand Herald, April 30, 2010

Regardless, the Key government has announced this week that it intends to open up vast new areas – both onshore and offshore – for oil and gas exploration in New Zealand. As RNZ has reported, the bidding for the second round, covering 189,000 square kilometres offshore and more than 1500 onshore, is due to start on 24 May. There will be three onshore blocks on offer in Taranaki, two on the East Coast of the North Island, and three offshore areas in the Reinga-Northland Basins, the Taranaki Basin and Great South Canterbury Basins. This makes it all the more pressing – if one truly wants to weigh the potential benefits against the actual risks in what is an inherently risky line of business – to examine the safety credentials of the likely contenders.

As mentioned, Werewolf has identified at least three major US court proceedings against Anadarko, all of them relevant to whether the company deserves to be invited here to operate, unhindered, off our coastline. These are:

(a) the summary judgement of February 2012, and the related and pending Clean Water Act prosecution by the US government .

(b) the separate class action court proceedings brought by a group of Anadarko’s shareholders alleging violations of Federal securities law for the way the company allegedly misled investors to the extent of the company’s involvement in the disaster and its exposure to losses and damages. On several occasions the company has sought dismissal of this suit, so far unsuccessfully.

(c) the Tronox case. Market insiders are expecting that when the court delivers its findings mid-year, Anadarko will be held to some degree accountable for Kerr-McGee’s evasion of environmental cleanup costs on the sites it owned and – according to the analyst cited here – the market is factoring into the Anadarko share price a likely fine in the region of $4 billion, which is considered “manageable” given the company’s current financial strengths and its future outlook. ( On the upside for the company, Anadarko has already reported two significant finds this year in its Gulf of Mexico deepwater fields.)

On this point of Anadarko’s ability to sustain any fines imposed on it, one should note in passing that the maximum penalty under the new New Zealand legislation is $NZ10 million – if and when an environmental disaster is deemed to result from the culpable actions of an offshore oil or mining operation. One has to ask – what, exactly, does the Key government think is the deterrent value of a $NZ10 million fine ( even if the maximum culpability could be proved ) to a company that can evidently ride out a $US4 billion fine (at least) on Tronox ? (In 2011, Anadarko also paid out a further $4 billion in full settlement of its liabilities to BP over the Deepwater Horizon spill.) By comparison, New Zealand’s fines seem to be little more than coffee money.

Moreover, the deterrent aspect of any spill liability is severely diminished when – as was pointed out in a previous Werewolf article – many of the costs from oil spills are tax deductible for the company involved.

Courts can impose punitive damages against a company when its actions cause harm. The [US] tax code, however, lets companies write off their payment, which produces an after-tax savings worth about 40 percent. Take the case of the Exxon Valdez, a tanker ship that ran aground and released nearly 11 million gallons of oil into Alaska’s Prince William Sound in 1989. Following this spill a court set punitive damages at $5 billion. Exxon litigated the decision for nearly 20 years until 2005 when the Supreme Court slashed the company’s punitive damages to $500 million. Of that, Exxon paid about $300 million after taking its tax deduction for punitive damages. Exxon’s profits that same year totaled $36.1 billion.

Leaving aside punitive damages, the costs to oil companies of the actual clean up after an oil spill are also tax deductible. via the federal government’s so-called Brownfields Tax Incentive:

The incentive allows a taxpayer to fully deduct the costs of environmental cleanups in the year the costs were incurred rather than spreading them over a period of years. Its purpose is to spur the cleanup and redevelopment of brownfields. In December 2006, the Brownfields Tax Incentive was….expanded to allow the deduction of expenses for the cleanup of petroleum products (e.g., crude oil, crude oil condensates, and natural gasoline), which had previously been ineligible.

In other words, not only would Anadarko incur a trifling fine if its activities caused lasting damage to our coastal and marine environment – but such fines would be likely to be tax deductible, and it would also be entitled to deduct any cleanup costs. Routinely, such cleanups cannot and do not restore the environment to its former pristine state. The companies involved tend to do a basic cleanup, then cut and run. Thus, any Great South Basin spill that might occur if and when Exxon-Mobil pursues drilling in the Great South Basin could well wipe out the livelihood of the Bluff fishing fleet and its oyster industry, with only minimal levels of compensation on offer by way of compensation. Risk is a one way street for oil companies:

In the case of the massive pollution in Ecuador, Chevron/Texaco….paid for a basic cleanup, then cut and ran. Ecuador is still chasing Chevron for $27 billion in compensation. In Alaska, small communities were left to bear the enduring cost….The herring industry of the town of Cordova was destroyed. The basic Exxon-Mobil compensation package left the Cordova fishers with an amount equal to about one year’s salary, for the lifelong loss of their previous source of income.

In the Tronox case, the reasoning involved is hardly re-assuring either, for a New Zealander. Does the following summary sound like a good corporate citizen that we should be inviting here, and for whom we should curtail our civil freedoms as a sign of our good intentions?

Kerr McGee spun off Tronox prior to Anadarko’s acquisition, in part to make it an easier, more palatable deal for Anadarko. Tronox was spun off with significant environmental liabilities, and Anadarko is being sued for what amounts to fraudulent conveyance. While Anadarko has fought these charges, it seems to be generally accepted on the Street that the company will be held liable. The question is for how much. Nobody seems to think that the maximum amount (which is north of $20 billion) is in play, but there are definitely risks that it could exceed the $4 billion or so that seems to be the average Street expectation.

According to the company, “a safety-first culture is a way of life at Anadarko.” Routinely in its publicity material, Anadarko stresses the extensive due diligence that it supposedly undertakes to ensure that each of its new business ventures adheres to the company’s purportedly rigorous “Environment, Health & Safety” standards. For example :

Whenever we undertake a new project, we work to understand the environmental issues and cultural considerations of an area. Then we create a balanced plan that couples new energy development with often times innovative techniques to protect the locations in which we operate. Fundamental to our operating philosophy is a commitment to adhere to the stricter of two standards: our own policies and principles or an individual country’s regulations.

Ironically, such statements are now being used against Anadarko in that class action suit being brought against the company in the Texas courts, by aggrieved Anadarko investors and shareholders. After citing ( in court filed documents ) many similar statements by Anadarko on its website and in company press releases, prospectuses etc, the claimants get down to what lies at the heart of their grievance:

The statements set forth above were materially false and misleading when made because, among other things, Anadarko was not managing its projects, including the Macondo well, in a manner that was safe or designed to ensure environmental safety. Nor did Anadarko have disciplined and rigorous risk management practices. For instance, when partnering with BP on the Macondo well, Anadarko deliberately or recklessly approved and adopted the materially false and misleading Oil Spill Response Plan and Exploration Plan. Anadarko also failed to properly investigate BP’s safety record and practices. Further, Anadarko approved dangerous and high-risk operational decisions for the Macondo well, failed to properly monitor operations on the Macondo well, risked the lives of the workers on the well, endangered wildlife, the environment and commercial interests along the Gulf coast, jeopardized the Company’s multi- million dollar investment in the Macondo well project and exposed the Company to billions of dollars in potential civil and environmental liability. Moreover, Anadarko completely failed to exercise any oversight over BP despite being alerted to BP’s egregious safety record.

On that last point, page four of the main brief makes this observation :

Anadarko also willfully or recklessly disregarded BP’s abysmal safety record, which was notorious within the oil and gas industry. For instance, between June 2007 and February 2010, BP received an astonishing ninety-seven percent of all egregious willful violations issued to all oil producers during that time. This shocking safety record put Anadarko on notice of a heightened need to closely review the contingency plans in place at the Macondo well….

To all apparent evidence, there was no sign of that added vigilance. On the contrary, Anadarko approved and funded how the well was being operated, on the basis of a Joint Operating Agreement, which included the agreed plans for the well infrastructure, and the approval of the related costs. As the shareholders further state at page 10 of their main brief :

BP proposed a series of reckless and dangerous actions on the Deepwater Horizon rig – which Anadarko approved and funded. Almost from the outset, the Macondo well earned a reputation as a “nightmare well,” and encountered numerous difficulties. As the project fell significantly behind schedule and became tens of millions of dollars over- budget, BP and Anadarko made a series of increasingly reckless decisions that deliberately sacrificed safety in order to save time and money. As discussed below…. Anadarko knowingly and expressly approved BP’s riskiest cost-cutting and time saving proposals. These decisions were contrary to the initial plans on the well and were made despite open acknowledgement of the safety risks they imposed. For instance, when BP and Anadarko agreed to depart from the original plans and use only six “centralizers” to secure the well (described in more detail below at pages 89-96), as opposed to the sixteen that the original plans called for, an internal email among BP personnel noted the risks but declared “who cares, it’s done, end of story, [it] will probably be fine.”

Lest anyone conclude that these criticisms are solely the views of a group of disgruntled investors, several official investigations also found that not only was this tragedy preventable, but due to a series of dangerous decisions made in drilling the well, most of them expressly approved by Anadarko. For example : the Energy and Commerce Committee appointed by Congress to investigate the causes of the Deepwater Horizon disaster described the Macondo Spill Response Plan (that BP and Anadarko jointly signed off to cover an emergency) as being “tragically flawed” and “embarrassing.”

In September 2010, the same Committee found that the numerous technical and operational breakdowns that contributed to the explosion on the Deepwater Horizon, and the resulting oil spill, were due to the “lack of a suitable approach for anticipating and managing the inherent risks, uncertainties, and dangers associated with deepwater drilling operations and a failure to learn from previous near misses.”

In findings congruent with the shareholder allegations, the Congressional Energy Committee’s Interim Report criticized the decisions taken by the co-owners’ [ie BP and Anadarko] to use the risky long string casing design on the Macondo well, as well as decisions to use only six centralizers, to conduct only a partial circulation of the drilling mud, and to not run a cement bond log. The Interim Report concluded that of particular concern was the “lack of a systems approach that would integrate the multiplicity of factors potentially affecting the safety of the well, monitor the overall margins of safety, and assess the various decisions from perspectives of well integrity and safety.”

Repeatedly, Anadarko has sought to pin the entire blame on BP for such failures. Yet this is not what the Congressional Energy Committee found in its Final Report. They found joint responsibility existed :

“A series of questionable decisions in the days preceding the blowout . . . had the effect of reducing the margins of safety and . . . evidenced a lack of safety-driven decision making,…The actions, policies, and procedures of the corporations involved did not provide an effective system safety approach commensurate with the risks of the Macondo well. The lack of a strong safety culture resulting from a deficient overall systems approach to safety is evident in the multiple flawed decisions that led to the blowout. Industrial management involved with the Macondo well/Deepwater Horizon disaster failed to appreciate or plan for the safety challenges presented by the Macondo well.”

Again, blame was attached to both BP and Anadarko :

“Neither [of] the companies involved . . . made effective use of real-time data analysis, information on precursor incidents or near misses, or lessons learned in the Gulf of Mexico and worldwide to adjust practices and standards appropriate..”

In similar vein, the National Commission report prepared for the US President Barack Obama concluded that “systematic failures in risk management” had been evident. Finally, sworn testimony by Michael Beirne, (the main liaison between BP and Anadarko over the Macondo Well) showed that in the summer of 2009, Anadarko had been provided with the well design plan and the well permit applications, and Anadarko had expressly approved them for use. Throughout the drilling process, Anadarko has been given immediate and continuous access to detailed information concerning all operations on the Deepwater Horizon oil rig.

Given the above evidence, the assurances that Anadarko has given to New Zealand that it was only a “passive investor” seem deliberately misleading and disturbing, in the light of their intended activities here. Much of the public opposition to Andarko’s presence – let alone the concern about the extraordinary steps taken by the government to penalise and deter protest action – is not based on any anti-corporate, anti-oil exploration mindset. It is based on a simple reading of Anadarko’s track record, on the nature of the litigation it is facing in US courts and on the patent inability of New Zealand to cope with a large spill created by deepwater drilling activities that involve an inherent degree of risk.

In many respects, the false assurances given to New Zealanders by Anadarko last December resemble the following exchange, cited at pages 87-88 of the Class Action main brief. This material relates to a May 4, 2010 conference call conducted barely two weeks after the explosion at the Deepwater Horizon rig. An analyst at RBC Capital Markets asked Anadarko executives : “How passive typically are you, when you are a non-operator? Were you a part of … the well’s design on Macondo?” In response, Robert Daniels, Anadarko’s senior vice-president for International and Deepwater Exploration [pictured left], sought to put daylight between the disaster and any responsibility that could conceivably be pinned on Anadarko. According to Daniels:

You actually do know what targets you’re going after and remembering we had farmed into this after the well had already spud. So the well design and it’s
procedures, operating procedures were all done before we actually farmed in.

When you typically approve these as a non-operator, you basically approve just the capital spending level in the targeted zones from a geological perspective, as opposed to looking at the detail, well design or procedures. We were not involved in that at all on this well.

The Anadarko shareholders have begged to differ. At page 87 of their Class Action brief they say:

Defendant Daniels’ May 4 statements that Anadarko and the individual defendants were “were not involved” in “looking at the detail, well design or procedures” with respect to the Macondo well were blatantly false when made. As described herein, Anadarko was intimately involved in and had full access to all “detail, well design [and] procedures” at the Macondo well. As confirmed by the testimony of [Michael] Beirne and expressly bargained for by Anadarko in the Joint Operating Agreement, Anadarko received and/or had unfettered access to copies of the well design, the Oil Spill Response Plan, the Exploration Plan…and other important documentation related to the well and the decisions made onboard the Deepwater Horizon, including all government filings and communications concerning the Macondo well, real-time data of wellsite drilling and operations from two separate databases that showed such specifics as drilling depth, torque and rate of RPM, as well as daily reports and mud logs. Further, as described above, Anadarko approved and funded four separate AFEs [Authorisations For Expenditure], including giving its express authorization to use the riskier long string casing, and acknowledging its awareness of the decision to run an inadequate number of centralizers.

And as already mentioned, other expert investigations have tended to agree with the shareholders. In September 2010, the Congressional Energy Committee found the numerous technical and operational breakdowns that contributed to the explosion on the Deepwater Horizon, and the resulting oil spill, were due to the “lack of a suitable approach for anticipating and managing the inherent risks, uncertainties, and dangers associated with deepwater drilling operations and a failure to learn from previous near misses.”

In the light of such findings, concern about Anadarko’s activities off the New Zealand coast seems utterly reasonable. Similar concerns seem appropriate about New Zealand’s ability to monitor Anadarko’s operations here, and to respond adequately should a major spill occur off our coastline. Much is being taken on trust, with crossed fingers that it won’t happen here. And that’s before mentioning our capacity to reliably monitor any subsequent uptake from the wells drilled, and our ability to negotiate a fair royalties rate truly commensurate with the value of the deposits, and the risks being undertaken. On all such counts, there are serious grounds for objecting to Anadarko’s activities off our coastline – and given the troubling aspects of the company’s recent environmental record, there is no valid reason for criminalizing those who might wish to protest its presence here.

2. The Clean Water Act prosecution.

Turning to the liability of Anadarko to proceedings by the US government under the Clean Water Act, Judge Barbier of the Louisiana District Court – outlined the basic situation at page 20 of the order filed in February 2012 :

Anadarko and BP were the ones directly engaged in the enterprise which caused the spill. They were the mineral lessees, they owned the well, and they stood to profit directly from the oil it produced. Thus, Congress intended that the cost of pollution would be borne by these parties.

Anadarko had tried to evade liability in this court action, via a tissue of extremely fine legal distinctions. For a New Zealand reader, the interesting point being that these arguments indicate what standards of proof – and what definitional niceties – would be necessary if this company was ever to be held liable for an environmental disaster off the New Zealand coast. Justice Barbier [pictured left] explained the Anadarko position in this fashion:

The United States contends that oil discharged from both the Macondo Well and the Deepwater Horizon; therefore, BP, Anadarko, and Transocean are each liable for per barrel civil penalties….However, Anadarko relies on the phrase “other than a vessel” in the definition of “offshore facility,” as meaning that “vessel” and “offshore facility” are mutually exclusive terms. Thus, Anadarko contends that oil could not discharge from both the vessel and the offshore facility. Furthermore, Anadarko interprets the phrase “from which oil . . . discharged,” as meaning the point where oil actually entered the marine environment. Because oil passed through the BOP [blowout preventer] and broken riser immediately before entering the Gulf, Anadarko contends that oil discharged “from” the Deepwater Horizon, a vessel, and not from the Macondo Well, an offshore facility….

Since its investment was in the well and not in the platform, Anadarko was hoping to escape liability, via these contortions. Judge Barbier wasn’t buying it. Anadarko and BP were the ones directly engaged in the enterprise which caused the spill, he reasoned : “They were the mineral lessees, they owned the well, and they stood to profit directly from the oil it produced. Thus, Congress intended that the cost of pollution would be borne by these parties.” In his partial summary judgement (p.22) Barbier therefore ruled against Anadarko :

The Court holds that, for purposes of [the Clean Water Act] and with respect to the subsurface discharge, oil discharged from the Macondo Well, an offshore facility. Conversely, the Court finds that the subsurface discharge was not from the vessel, the Deepwater Horizon. Furthermore, because it is undisputed that BP and Anadarko were owners of the offshore facility, BP and Anadarko are liable for civil penalties…

As a consequence – and as Bloomberg News reported in this recent and very useful summary of the various court actions alive and pending as of the recent third anniversary of the Deepwater Horizon spill – the US government still has a pending case against Anadarko for violations of the Clean Water Act. As the Bloomberg report also indicates, the state of Mississippi has just mounted actions in both state and federal courts against BP and others – including Anadarko – as a result of BP refusing to make a satisfactory settlement offer. The immediate issue before the courts in that action has to do with establishing whether a level of “gross negligence” by BP and others had been reached. In proceedings on April 24, 2013, Judge Barbier suggested a seven point action programme for the parties to consider before coming back in late June. With unconscious irony, Barbier asked the parties for their opinion whether complying with “industry standards” would preclude him making a finding of gross negligence. ie it may look like negligence to you, me, or the judge, but if that happens to be the industry standard, then can it really be called “gross” and penalized accordingly? Pretty amusing. Keep it in mind next time you hear the Key government rattle on about “best practice” standards being observed.

On April 24 2013, Anadarko made the latest of several attempts to get the class action suit (which contains allegations of securities fraud) dismissed. At time of writing, it was unclear what the fate of that action would be. Dismissal would seems unlikely, given that the same judge – in a similar case last year – presided over proceedings in which BP ultimately agreed to pay $525 million to investors for misleading them by significantly understating the flow rate from the Deepwater Horizon spill in multiple reports that BP filed with the Securities Commission.

Anadarko now faces similar claims from its own shareholders that in its response to the Macondo spill, its chief executives – including John Key’s pre-election guest James Hackett – deliberately understated the extent of the oil spill, overstated the company’s ability to control the repercussions, overstated the extent of its insurance cover relative to its likely liabilities etc etc , All of this presumably, in order to avoid a panicked reaction from shareholders. On current projections, the class action suit is unlikely to reach court until next year.

Of course, some will argue that whatever Anadarko’s sins may have been in the Gulf of Mexico, Deepwater Horizon was an unfortunate departure from Andadarko’s usual modus operandi. Surely, anyone is entitled to share joint responsibility for at least one gazillion dollar social and environmental catastrophe during their corporate lifetime, aren’t they?

Unfortunately, Anadarko’s behaviour in the context of the Tronox case makes it hard to believe that it merely fell in with the wrong crowd in the Gulf of Mexicom and got led astray by BP. To repeat the Tronox tale : Anadarko bought Kerr – McGee for $18 billion in 2006, three months after Kerr-McGee had spun off into its hapless Tronox subsidiary its own costly obligations to do remedial work on an estimated 2,772 sites across the US that it had contaminated during seven decades of producing chemicals, fertilizer and plutonium pellets.

That’s not to mention the cost of adequately compensating the thousands of individuals given serious (and in many cases) terminal illnesses by their mere proximity to Kerr-McGee’s operations. Movie fans who saw the 1983 film Silkwood starring Meryl Streep will recall the film showed Silkwood’s suspicious death in a 1974 car accident, while she was driving to meet a reporter and go public about Kerr-McGee exposing employees to plutonium through their poor safety standards.

In court action that concluded early this year, Anadarko is being sued for $25 billion in a suit originally brought by Tronox creditors and investors and by those with health claims against Kerr-McGee. They were later joined by the US government on behalf of the Environmental Protection Agency, which faces the cost of the clean-ups. One important question being – as Kerr-McGee’s corporate parent, is Anadarko liable only in a technical sense for Kerr-McGee’s past sins, or did it collude with Kerr –McGee in shedding its costly and poisoned liabilities, via stratagems carried out by Lehman Brothers ? To use an analogy – was Anadarko liable as a parent only in the sense that it was its kid who had sometime in the past, crashed the family car? Or did Anadarko actively conspire with the kid in concocting what was, in liability terms, a hit and run violation ?

At the outset of the Tronox proceedings, the US government was certainly alleging that a sham “ two step fraudulent process” had been carried out between Anadarko and Kerr-McGee. Proving such a conspiracy in court however, proved quite another matter. Some sense of the two sides in contention can be gleaned from this summary.

By the time that things got to the sharp end of the court action, the Tronox litigants had dropped the conspiracy theory. As the court papers show, neither the claims of a civil conspiracy or claims of aiding and abetting a breach of fiduciary duty were seen to hold water. Here’s a key paragraph from pages 15 of the court brief :

The Amended Complaint makes it clear that Anadarko had previously balked at acquiring unliquidated liabilities that could potentially reach into the billions of dollars, but the Plaintiffs have not alleged sufficient facts to support the conclusion that Anadarko acted in concert with New Kerr-McGee to structure the spin-off or that Anadarko dictated which assets and liabilities would be retained by New Kerr-McGee.

Even so – and as pointed out above – the market expectation is that Anadarko will be held accountable in the Tronox case, to the tune of $4 billion or more. For New Zealanders, the relevant aspect of this case has been the aggressive stance that Anadarko has taken against the Tronox litigants. Even if its subsidiary did the bad things in a previous corporate lifetime, Anadarko has chosen to fight on Kerr-Gee’s morally dubious behalf right to the bitter end. Within that process, delay can always be a useful substitute for victory. The simple truth is that the longer the delay, more and more claimants afflicted with terminal cancers will die, and drop off the compensation list. This has been occurring ever since the claimants first began chasing a moving ball in the early 2000s as Kerr – McGee went through various corporate formulations, a process that required the claimants to refile their claims against each new incarnation.

New Zealanders can read into the hostile defence being adopted by the defendants in the Tronox case just how badly they might fare if Anadarko should ever be called on to compensate those affected by contamination of our coastal or marine environment. Even if it was Kerr-McGee that was responsible for the original contamination, Anadarko has consistently opposed and sought dismissal of any attempt by those seeking justice and due compensation for the wrongs committed against them by what is now a wholly owned Anadarko subsidiary. A short video from mid 2012 in which local residents in Columbus Mississippi express their grievances about the damage done to them can be seen here.

In the Tronox affair, we are not talking about seals and dolphins. The video, and its following transcript comprise just one chilling example (among thousands) of the people whom Anadarko has been fighting tooth and nail in court:

Reverend Steven Jamison recalls the February day 13 years ago when he was digging ditches to replace culverts at his Maranatha Faith Center in Columbus, Mississippi. As he switched from a shovel to an excavator, an oily black substance began to fill the trench. It smelled like turpentine, and the deeper he dug, the more he saw….“We called the city right away to come and look,” says Jamison, 58, a Pentecostal minister whose speech quickens as he relives the incident. “They told us they thought we’d hit creosote.”

Jamison phoned the Kerr-McGee Corp. plant down the road. The company produced creosote, a toxic wood preservative, and coated railroad ties and telephone poles with it. A manager told him the stuff probably wasn’t creosote and that even if it were, it wouldn’t hurt anyone, Jamison says. So he kept working, immersing himself in sludge and bringing in dirt to absorb it.

After digging for six weeks, Jamison, who says he hadn’t had health problems beforehand, was sick and losing weight. He says his kidneys were functioning at less than a third of their normal level. That April, when Kerr-McGee offered to help remove the old culverts, the crew arrived in hazmat suits, Jamison says.

Wilbur Colom, a local lawyer who has worked on this (and previous) compensation claims explained to Bloomberg News the basic problem involved in continuing to fight :

Colom says he faced a big dilemma when he counseled clients whether to settle around 2002. Some were so sick that he advised them to take a payout sooner rather than endure drawn-out court proceedings. “Ten years later, all of the people who had serious cancers are dead,” Colom says, reviewing thousands of names next to such entries as “sarcoidosis with renal involvement,” “lung and colon cancer” and “dec’d ovarian cancer,” meaning deceased.

Jamison struggled with the temptation to settle too. He says lawyers for Kerr-McGee offered him $3 million to drop the lawsuit he brought on behalf of his church and not tell anyone he thought the tarry substance was harming people and properties around the plant.

A recent account of Reverend Jamison’s ongoing battle to get adequate compensation for what Kerr-McGee has done to him and his congregation can be found here.

It’s a losing hand. Even if Anadarko had to eventually pay the full $25 billion – which no –one is expecting – the individual claimants stand to get only 12% of that figure, or $2 billion gross in total. This would have to be shared among thousands of people, after legal costs had been deducted. The rest (north of 80%) will go to the US government to help pay for the cost of re-mediating the sites that Kerr-McGee has contaminated, lest others should derive cancers, kidney and respiratory failures, skin diseases etc from the toxic residue of its activities. The more likely outcome (which would deliver a 12% slice of circa $4 billion) would seem to be paltry compensation for the lives and communities that have been laid waste by business as usual.

At the close of a major Anadarko public presentation to investors in early March.

Anadarko’s chief financial officer Robert Gwin was asked from the floor for an update on Tronox. He replied :

The case and everything besides, rest. The judge at the end of January got his last briefing and we don’t know any more than anybody else does about when the judge might rule. We’ve estimated just based on historical stuff that we might see a three to six months kind of a window…We remain every bit as confident of our position as we were previously, didn’t change our accrual this last quarter, we think it’s appropriate, we think it’s right, and we’re looking forward to hearing from the judge.

No liability, and no compensation unless forced to by the courts. (“We think its appropriate, we think its right….”) This is the kind of corporate creature that the Key government has invited to exploit our deepwater oil deposits – and with a guarantee that it can do so unhindered by any substantive opposition from New Zealanders.

Alison McCulloch’s new book “Fighting to Choose: The Abortion Rights Struggle in New Zealand” (Victoria University Press) is being released in May. This abridged excerpt from Chapter 4 of the book looks at the opening in 1974 of the Auckland Medical Aid Trust’s abortion clinic, a move that sparked a political firestorm culminating in the passage in 1977 of the Contraception, Sterilisation and Abortion Act and its amendments to the Crimes Act – the laws that govern abortion access today.

On 17 May 1974, in a refitted residential house in the Auckland suburb of Remuera, the non-profit Auckland Medical Aid Trust opened New Zealand’s first abortion clinic. For $80, it provided women who met the legal criteria with counselling and pregnancy termination. The clinic represented a sea change for women, as well as for their doctors, who offered at least tacit support by referring patients there in significant numbers. Yet perhaps nowhere was the change wrought by the clinic more strongly felt than in the corridors of power.

The influence of Spuc (the Society for the Protection of the Unborn Child) in Parliament had been steadily rising – from 13 MPs among its membership in 1971 to 32 by 1974 – and the organisation was confident it had all but achieved its goal of ensuring no law like Britain’s 1967 Abortion Act, which eased the grounds for abortions, would be passed in New Zealand. The opening of the clinic changed all that. Suddenly, the strategy of fighting to retain the status quo didn’t look like such a winner. As for the politicians themselves, they had long known that New Zealand’s abortion legislation was unclear and confusing (at the start of the 1970s, only 35 percent of doctors could correctly state the basis of the law), but that was acceptable to the legislature so long as nothing disturbed the established order. When the clinic opened its doors, lawmakers who had themselves resisted calls for action were stunned to find their role had been usurped by a group of unelected doctors, lawyers, accountants, feminists and other pro-reform supporters.

One of the driving forces behind the establishment of AMAC (the Auckland Medical Aid Centre, as the Trust’s clinic was known) was the doctor who would become its first medical director, Rex Hunton. A warm, energetic man with a lifelong commitment to community health initiatives, Hunton was moved to act by his experiences at the public health clinic he and Felix Donnelly had set up at the Auckland Medical School, which became known as the Pink Cottage. ‘Send us your difficult patients,’ Hunton and Donnelly had told Auckland GPs, and the GPs did.

Photo credit: The Dominion Post / Fairfax

‘Two types of patients came to us in great numbers,’ Hunton [pictured left] said. ‘The first group were those who were unhappily pregnant and the second group were homosexual people that were in trouble in one way or another.’ Acts of a homosexual nature between males was still a criminal offence in New Zealand – this wouldn’t change until 1986 – and gays faced widespread overt and covert hostility. At the Pink Cottage, Donnelly took those patients on, and eventually also their cause, a stance that raised the ire of his church and cost him his teaching ministry and authority to celebrate Mass.

With Donnelly fully occupied, the pregnant women were seen by Hunton – around 500 in the three years to 1974. ‘I heard these horrible stories, one after the other,’ he said. ‘A husband that bashes them, husband they’re not sure they love, a guy that raped them – terrible stories – or financial difficulties. All kinds of stories. Horror.’ Then there were the stories of how, in the absence of a legal option, these women (like those who gave testimony at the 1975 Tribunal on Crimes Against Women event put on by the Women’s National Abortion Action Campaign) tried to self-abort. For the 1975-77 Royal Commission of Inquiry into Contraception, Sterilisation and Abortion, Hunton compiled a list of the methods his patients told him they had used, most of them, he said, unsuccessfully:

Partaking unusual exercise; riding motor cycle on rocky road; horse riding; jumping from a height (a table); falling over (one patient while tied up); falling down stairs; hitting abdomen; inviting boyfriend to hit abdomen; constricting abdomen with belts or ropes; taking quinine tablets; excessive alcohol consumption; overdose of contraceptives (2 packets at once); overdoses of thyroid tablets, sleeping tablets, tranquilizers and anti-depressants; large dosage of purgatives, Epsom salts or castor oil; boiling up fern roots and drinking beverage; hot baths with added medicants (Epsom salts); hot baths with excessive alcohol (gin); douching with very hot water; douching with salt solution; inserting tampon soaked in eucalyptus (or other medicants) into the vagina; using mirror to try and insert foreign body into uterus; inserting foreign body blindly into vagina and uterus; puncturing abdomen with needle.

At the Pink Cottage, Hunton began to refer these women to the local public hospital, National Women’s, for abortions. ‘I spent a long time with the patients and wrote long reports and sent them off and they’d just come back: “abortion denied.”’

The process for getting an abortion at National Women’s was arduous, and involved being questioned by one of the hospital’s ‘medical termination committees’, usually comprising two to three gynecologists, who might also request reports from psychiatrists or social workers ‘concerning the woman’s social background’. At one unidentified major hospital, this cumbersome system meant the waiting period from time of referral until assessment by a committee was one month.

Photo credit: G M Cookson

Other hospitals had equally onerous approval procedures. A Dunedin GP who testified at the November 1975 trial of the AMAC doctor, Jim Woolnough, described the process at his local hospital: ‘The Dunedin Hospital requires four doctors, a letter of recommendation from a specialist and the gynaecologist who would agree to do it. He might not also do it even if recommended. The Medical Superintendent must also agree, and even then he takes advice from the Board of Solicitors.’ Herbert Green, an ob-gyn professor at Auckland University who opposed abortion and also worked at National Women’s, said that the hospital rejected 50 percent of women referred there for abortions, and performed up to 20 terminations a month. (To get an idea of how these numbers compared with demand, in its first 15 weeks of operating, AMAC carried out nearly 450 abortions.)

Wayne Facer of the Abortion Law Reform Association of New Zealand (Alranz) remembers the desperation that marked the years before the clinic opened. Immediately after Alranz was formed in 1971, the group became a kind of ad hoc referral and advice service for distressed women and their families, even though its members had nowhere to send them. Those old moral panics and concerns about ‘race suicide’ had left a hangover of conservatism that kept contraception from women who needed it, then barred them from having abortions when they became pregnant.

Hilary Weeks, a GP and family planning doctor who moved to New Zealand with her physician husband in September 1972, was shocked when she first encountered the contraception restrictions. ‘When I did my first family planning clinic, I was faced by a 15-year-old girl with a 9-month old baby on her lap,’ Weeks said. ‘She wanted to take the Pill so I started to write the prescription, and the Kiwi nurse sort of whispered in my ear, ‘Dr Weeks, I’m afraid that that is illegal in this country. You cannot prescribe to the under 16s’. I just stopped for a second, and continued writing out the prescription because there was no way I, ethically, could deprive her of contraception, and I think that was the first time I ever broke any medical law.’

Weeks, who later became involved in both Alranz and AMAC, said she did that many times before the law changed. ‘I did it for one under-16 year old girl and her father found out. And he was very angry and he wrote an affidavit which was read out in Parliament by somebody who was anti-contraception and anti-abortion, and I was just waiting for the Medical Council to jump on me or for someone to bring a court case, but nobody did,’ she said. ‘Years later he brought his second daughter to me and apologised for having made all this fuss, and by that time it was legal for me to prescribe to the under-16s.’

The more publicity Alranz got about its campaigns, the more letters and calls from desperate women it received. In 1973, president Isabel Stanton said she took at least one phone call a day from a pregnant woman seeking an abortion, and that a GP she knew reported receiving around seven each day. Alranz’s files were stuffed full of pleas, like that of a 40-year-old farmer’s wife with four children: ‘My husband would take me to Australia for a legal? [sic] abortion but we just don’t know where to start. He can’t think of anything but his sheep at the moment anyway. Can you help us?’; or from a single mother: ‘Dear Sir or madam, Having heard about your association has given me new hope. I am a solo parent and have four children and have now missed my period. … I have been to my doctor but he was not of much assistance. I cannot afford another baby’; and the parent of a teenager: ‘I’m writing on behalf of my son (18) who has got his girl (17) pregnant. … I read your article in the Sunday Times and thought you people would be the most likely ones to offer some urgently needed advice.’

Alranz did what it could, explaining the legal situation and outlining the possible options, trying always to stay within what it understood to be the law. ‘The saddest part of the year’s work,’ the association wrote in its first annual report, ‘has been answering the large number of men and women who have come to us for help about an unwanted pregnancy’. It continued:

When we hear of a family selling their house to send the woman back home to England because another pregnancy is intolerable, and then hear of another woman in almost identical circumstances getting an abortion at a Public Hospital at no cost to the family, we realise that education of the doctors as to what is the practice of their fellow practitioners is of prime importance. We are not so naïve as to believe that the law is always strictly fair, but it is impossible to find any other area covered by our criminal code, where the practice is so varied, with such far reaching results in human misery.

At least in its early years, Alranz officially opposed giving direct advice or pointing women in the direction of sympathetic doctors, in large part for fear of prosecution. But there were frequent debates on the question. Facer argued that the information the group was gathering could and should be used positively. He knew, for example, ‘that there were two committees at National Women’s and they met on different days of the week and if the poor person got referred to the A Team on the first day the situation was hopeless but if they got to the B Team that met on a Thursday the probability was good.’

Photo credit: Socialist Action

If the public hospital route failed for women seeking abortions in the years before the clinic opened – and it usually did – there were still private practitioners. They cost around $250 to $300, and used much more intrusive methods than those pioneered at AMAC, including hysterotomy, a procedure akin to abortion by Caesarean section. Although the private hospitals tended to be more liberal than the public ones in interpreting the law, approval was by no means guaranteed and a woman needed a physician willing and able to make a referral. AMAT estimated that private hospitals in New Zealand were carrying out at least 1,500 abortions a year in the early 1970s, sometimes openly, sometimes less so, under the guise of ‘Examination Under General Anaesthetic’ or ‘Diagnostic D&C’.

If turned away by both public and private hospitals, the next safest option was a trip to Australia (or farther afield, to Japan, Britain or the United States), although this was much more costly. Abortion was not a notifiable procedure until 1975, so precise figures on how many New Zealand women were having abortions, and where, are hard to come by. AMAT estimated that before its clinic opened, 5,000 to 9,000 legal abortions a year were performed on New Zealand women – nearly two thirds of them in Australia, just under one third in private hospitals and the remainder in New Zealand’s public hospitals.

The Australian trade was frequently in the news, with Sunday News reporting in November 1970 (below the headline ‘Kiwi Birds Drop Down South’) that New Zealand women travelling to South Australia for abortions had helped to almost triple the numbers there. The article quoted an Adelaide GP, who said that ‘quite a number of female patients who have come to me for abortions have been from New Zealand’.

The conservatism of public hospitals helped push Hunton to start referring women across the Tasman for abortions, specifically to the Arncliffe clinic in Sydney. But he had reservations. ‘It was an unsatisfactory clinic in my mind even though it was doing abortions,’ he said. ‘They had some mattresses on the floor because they were overloaded. Some had to lie down on the floor after the process. The counselling was not always satisfactory.’ For Hunton, AMAC represented the chance to do everything right for the patient – the best counselling, the most up-to-date procedures, and the lowest possible cost.

Although Hunton was not a member of Alranz at the time the clinic was set up, other key players, like Anna Watson and Stanton, were. The association had realised, Facer said, that getting the law changed was going to be a long road. ‘The English model wasn’t going to happen. We weren’t going to get a private member [of Parliament] like David Steel to get a law passed. We also looked at what was going on in Australia where change had happened through the courts rather than through Parliament.’ Spuc seemed to agree: ‘The Abortion Law Reform people, having seen through the horrifying example of the United Kingdom that they cannot win through Parliamentary change, have now forced abortion on demand on New Zealand by opening this clinic in Auckland.’

Photo credt: Dominion Post / Alexander Turnbull Library

The first onslaught against AMAC came quickly. Barely two months after the clinic opened its doors, a high-powered Spuc delegation (including Drs Diana Mason and Keith Drayton, Professor William Liley and Des Dalgety) met for two hours with Prime Minister Norman Kirk and his ministers of justice and health. What Spuc presented to Kirk at that meeting were the results of a legal investigation into what could be done about AMAC. The best action Parliament could take, Spuc believed, was an amendment to the Hospitals Act, restricting all abortions to public hospitals.

The proposal was a shrewd one. It would simply and effectively close the clinic down without giving the perception that Spuc was trying to ban abortions. The case for the change could be built around concern for women’s health; the clinic, because it did not keep patients overnight and so was not considered a hospital, fell outside health department licensing requirements. Spuc could insist that women needed more safeguards, as well as protection from the ‘exploitation’ of fee-charging private operators. These arguments would be supplemented with the carefully expressed moral concern that if private clinics like AMAC were allowed to proliferate, New Zealand would have ‘abortion on demand’ by stealth. The amendment proposal was also consistent with Spuc’s focus on maintaining the status quo – a tacit acknowledgment that it was unlikely to have the political or public support for rollbacks in abortion law. After the meeting, however, Kirk had doubts. Despite his personal opposition to abortion, he was said to have been suspicious of Spuc’s motives, and quietly shelved the matter by asking his health and justice departments to look into it and report back.

When it became clear to Spuc that Kirk was not going to take immediate action on the clinic, it moved to have the amendment implemented through a private member’s bill. The man chosen to lead the charge was the Labour MP (and Spuc member) Dr Gerard Wall. ‘There was no one who stood taller,’ Marilyn Pryor wrote, ‘than the doctor turned politician who first carried the banner into Parliament.’ Wall’s Hospitals Amendment Bill was introduced on 30 August 1974, just a few months after the clinic had opened. Widely referred to as the Wall Bill or, more colourfully by pro-choice physician and activist Erich Geiringer, as ‘the Knitting Needle Bill’ (Geiringer wrote an accompanying ‘Knitting Needle’ song, which he sang on his Radio Windy talkback show), it won strong support at its first reading. The timing, however, turned out to be the worst possible – the day after its introduction, Kirk, who had been ailing for some time, died. The Wall Bill wouldn’t reappear until April 1975.

Curiously, the bill raised hopes in the pro-choice movement by galvanizing opposition to Spuc and support for reform. Along with the usual players – Alranz, Wonaac, women’s groups, students’ associations and civil liberties groups – opposition to the bill also came from the establishment, including the Medical Association, the Council of the New Zealand Obstetrical and Gynaecological Society, the General Practitioners Society and even the New Zealand Herald’s editorial page. Protest meetings were held throughout the country, drawing good crowds – more than 500 people in each of Auckland and Wellington, and at least 200 in Christchurch. Letters and telegrams opposing the bill flooded politicians’ offices, and Alranz’s membership rose. Wonaac and Alranz hastily helped pull together a coalition – Cohab (Committee Opposed to the Hospitals Amendment Bill) – to fight the bill.

But before that campaign could gather speed, AMAC suffered another setback. At 3:40 p.m. on 16 September 1974 – barely two weeks after introduction of the Wall Bill – several plainclothes police officers, led by Det. Sgt. Garry Lambert of Auckland’s Criminal Investigation Branch, headed for the clinic armed with a search warrant. On their arrival, Lambert spoke with the clinic’s administrator Toni Church, then by phone with Hunton, who reached the clinic soon after. ‘The police said they were going to take the files,’ Hunton said. ‘I said “Why?” They said they had a warrant for illegal abortion. I knew that that warrant was not right.’ Lambert later told the court he took possession of 546 medical files and 588 related index cards, and also had the clinic photographed.

Although no one ever came forward to claim responsibility for the complaints on which the police had acted, it was widely known that the seizure of the files was related to two statutory declarations against the clinic that had been supplied by Spuc to Norman Kirk on his deathbed. Spuc’s president at the time, Diana Mason, denied ‘most strongly’ that Spuc had had anything to do with the raid, and the head of the Christchurch branch, Keith Drayton, described the police action as ‘the greatest set-back our cause could have suffered’.

But Drayton also tacitly acknowledged that Spuc had played a role, writing in a newsletter to members that when the National Executive had met with Kirk, who was ‘obviously sympathetic to our submissions’, the prime minister had asked for concrete evidence. ‘In response to the late Prime Minister’s request, several statutory declarations were forwarded to him in support of our allegations … and they were in his briefcase when he died.’ Drayton went on to explain that a copy of the declarations ‘found its way to the Commissioner of Police and was then passed down the line until it reached the Auckland Police’. So, he continued, ‘unwittingly, we have been involved’. (Drayton explained that ‘numerous complaints’ had been made about the clinic from ‘various members of the public’ but until Spuc’s declarations showed up, ‘there had been no evidence’.)

That account was supported by the Minister of Police, Michael Connelly, who told Parliament in response to a question from George Gair that: ‘Four complainants have been responsible for the three written complaints made about the conduct of the Auckland Medical Aid Centre. Two of the complaints have been supported by sworn declarations, and, while only one of the complainants has referred to a specific case, many general complaints have been made to the Auckland police.’

The two statements in question were widely understood to have been from Herbert Green of National Women’s Hospital, and Nina Barry-Martin, a Spuc activist and founder of the Pregnancy Counselling Service. Green’s affidavit, dated 23 August 1974, followed a visit he had made to the clinic, and it included criticism of the clinic’s safety record and medical facilities (the operating table did not tilt, Green said, the premises were overcrowded, there was no confidentiality for patients, no oxygen tank in the recovery room, and the medical director and his staff were ‘naïve’). It also referred to one of the clinic’s patients, but it’s not known what was said about her.

Barry-Martin’s statement was based on telephone conversations she had had with clinic staff, during which she posed as a woman seeking an abortion. She called the clinic twice explaining that she was pregnant and was worried this would ruin a delayed honeymoon she and her husband had planned. According to Spuc’s newsletter, Barry-Martin ‘had been told by a woman believed to be a counsellor: “Well, let’s put it this way, we put through 99.99 percent. The other .01 percent is to make it look right.”’ Barry-Martin denied the telephone stunt had anything to do with the subsequent raid on the clinic. Her husband, Peter, told the New Zealand Herald immediately after the raid that the police action ‘vindicated’ Spuc’s concerns about the clinic. ‘Our stand has always been that the clinic should be closed until the Government decided its fate,’ he said.

As supporters of the clinic feared, the pretext for the raid was flimsy, and led to what was essentially a fishing expedition – or perhaps trawling is more apt – with testimony from the November 1975 Woolnough trial offering yet more details about the role at least one of the declarations had played. Under cross-examination by the defence counsel, L. W. Brown, QC, Det. Sgt. Lambert made the links clear:

Q (Brown): When you obtained your search warrant and later went to the clinic with it, you had knowledge of a declaration from a Dr Green did you not?
A (Lambert): I did yes.
Q: Had Dr Green referred to one particular patient of the clinic now known to be X?
A: He had yes.
Q: Did you know her name at that time?
A: No.
Q: May we take it that you went there without knowing the name of any particular patient?
A: That would be correct, yes.
Q: Having removed the files then, did you personally consider all of them?
A: To some degree yes.

Later in the trial, Lambert explained that of the 590 patient files, he and his colleague, Det. Sgt. John McKenzie, ‘retained those where appeared [sic] the lesser reasons for termination’. Lambert said that investigating the files was left to himself and McKenzie, and had involved interviewing the women concerned, the referring GPs, the counsellors and doctors the patient had seen at the clinic, the nurse present during the procedure, and the doctor who carried it out.

Meanwhile, after closing the clinic’s doors for three days because of the breach of patient confidentiality that the seizure entailed, Hunton and other members of the Trust decided to challenge the legality of the search warrant in court. In January 1975, more than three months after the raid, the Court of Appeal ruled the warrant invalid, stating that the magistrate who had issued it had no evidence ‘on which he could be satisfied that there was reason to believe that all the records should have been taken’.

Hunton described the police action as ‘terrible’ and blamed himself for the range of patient information taken. ‘There was all kinds of confidential stuff in there and part of it was my fault because I was a very full recorder of things,’ he said. ‘There were people who were drug takers and they’d had all kinds of personal information some of it not really to do with the abortion but we took those notes because we might be able to help them in some way. … This information was private but they just took the notes and when it was found that it was an illegal warrant we got our notes back but they had photocopied them which I think was a travesty of justice.’

Photo credit: G M Cookson

And what about the women? Those who later had to testify and, more immediately, those whose appointments were cancelled because of AMAC’s closure? A feature article ran in the Herald the day after the police raid based on interviews with those waiting at the clinic. One was a young woman – 17 or 18 years old – who had driven to Auckland with her mother from Tauranga that morning. ‘I had been going around with this boy for a long time,’ the teenager explained. ‘When this happened, he decided it was all over. His mother gave him the money to go to Australia. I got a letter from him from Australia saying that I should have the child. He’s a Catholic. He would not want me to do this but there’s no alternative.’ Of her own chances of now getting an abortion, she added: ‘We’ll get a motel and try the public hospital – whoever we can get. … I don’t know about going to Australia. I don’t know if Dad’s got enough money. I wouldn’t like to go over there. I don’t know anyone there.’

Others were adamant they’d find a way. ‘I definitely won’t have this child and you can print that,’ said one. ‘I’ve got an appointment with National Women’s,’ said another. ‘I know I won’t have a chance there.’ Still, she said she was determined. ‘My husband wouldn’t want me to go to a back-street abortionist but if it’s a case of having to I would go to one. I don’t care how I get it done but I’m not going to have another baby.’ This was the woman’s fifth pregnancy – and her husband had just had a vasectomy. ‘We thought he’d be clear,’ she said. ‘Apparently he wasn’t.’

Women subsequently interviewed by investigators suffered, too. ‘Women and doctors had been harassed by police,’ Wonaac reported, ‘and [Hunton] cited the case of a young woman in New Plymouth who had been interviewed by police in front of her parents, who knew nothing about the abortion.’

It was at least as much the breach of patient confidentiality as it was the targeting of the clinic that aroused the anger of the wider community. Diana Mason, the Spuc president, acknowledged the damage this had done to the movement and expressed her own disapproval. ‘As a doctor,’ she said, ‘I am personally very distressed and concerned that doctors’ records should be seized and their confidentiality threatened’. Some doctors took extreme steps to protect themselves, including, in the case of a physician in Tokoroa, deliberately not taking patient notes in abortion-related cases. ‘I have kept no written records on abortions since police seized files from another Tokoroa GP earlier this year,’ the doctor wrote in a letter attached to Alranz’s Royal Commission submission.

The Wall Bill, the clinic raid and the subsequent prosecution of one of the clinic’s doctors offer perhaps the starkest examples of the outsize role Spuc played in shaping New Zealand’s abortion laws and related social policy on issues like sex education and contraception. One reason for this influence was the concurrence of Spuc’s moral worldview with that of the generation of men holding political power in New Zealand at that time. The ‘establishment’ had put its head in the sand in response to the sweeping cultural change of the 60s, Wonaac’s Di Cleary wrote in the late 1980s, ‘far more so than in most other Western countries’. There is indeed ample evidence of this in the mass of transcripts from the Royal Commission’s hearings as well as the commission’s report itself and in the public comments of politicians. More concretely, New Zealand lagged behind comparable countries in sex education in schools, the availability of contraception to young people, and even permitting the distribution of information about it.

Again, the party that should have supported abortion law reform – Labour – was at odds with itself on the issue, leaving pro-choice advocates with no base inside the legislature from which to campaign, and gave Spuc and its allies a free hand to wield a moral veto on abortion even in the face of rapidly rising public support for reform. Myriad opinion polls were pointing to this trend, including an extensive survey of voters taken immediately after the 1975 general election by the political scientists Stephen Levine and Alan Robinson. They found a strong majority among all groups except Catholics (and an overall majority) supported a woman’s right ‘to an abortion if she wants one in the first 12 weeks of pregnancy’, and concluded that legislators ‘have been out of touch both with public opinion and with voters for their parties during Parliamentary discussions of the abortion issue’.

Three-quarters of MPs in 1972 through 1977 were aged 40 years and over, meaning they had come of age well before the challenges to traditional mores took hold. That such change was coming simply through the dying out of the ‘old generation’ of male politicians was made strikingly clear in Spuc’s own analysis, in 1981, of what it called its ‘worst-ever’ electoral outlook. ‘This year, eight of our pro-life politicians are retiring from Parliament,’ Marilyn Pryor told Humanity, ‘and five of them are being replaced with candidates who are pro-abortion. So on that score alone we stand to lose our pro-life majority.’

Among the anti-abortion movement’s achievements in the lead-up to the Wall Bill was message control. Spuc and its allies had quite successfully undercut the women’s rights approach to abortion liberalisation by framing ‘abortion on demand’ as radical and extremist, an effort bolstered by the fact that Alranz, too, distanced itself from the Wonaac platform. It became something for which almost no politician – liberal or conservative – dared express support (and neither did the public, when confronted with this wording).

Even though Wonaac took part in lobbying efforts over the Wall Bill and the clinic, politicians still considered them far too radical to take seriously, although the group did succeed in meeting with National’s Minister of Justice, Sir Roy Jack, and his Labour counterpart, Martyn Finlay. For the most part, Wonaac and other pro-choice feminists were confined to the activist arena, penned behind the barricades organising pickets, rallies and meetings. To be sure, those efforts paid dividends in the longer run, pushing the ‘woman’s right to choose’ argument closer to the mainstream. But in the shorter term, there was no stopping the well-organised, well-connected and even better funded anti-abortion juggernaut.

CLICK HERE TO BUY “Fighting to Choose: The Abortion Rights Struggle in New Zealand” (Victoria University Press)

ENDS

A few weeks ago, the great documentary film-maker Les Blank died at his home in Berkeley from bladder cancer, which he attributed to a three-packs-a – day cigarette habit he gave up in his 40s. He was 77. In person, Blank had an almost balefully shy manner. His unblinking quietness could be intimidating, yet it made him usefully invisible. It was sometimes hard to tell if Blank’s subjects consciously developed a tremendous amount of trust in him, or whether they simply forgot he was there.

Whatever the chemistry involved, there was no mistaking a Les Blank film. Some were about music and some were about food, and most were about both at once. He made a point of celebrating not merely the art, but the communal culture that (literally) sustained it, all of it interwoven ( partly thanks to long-time editor Maureen Gosling ) with romanric flair and wry good humour. Yet there was always a serious foundation as well. As an obituary in the New Yorker suggested, it probably wasn’t accidental that the film that first got Blank interested in making movies was Ingmar Bergman’s The Seventh Seal, in which Death plays a leading role. As the New Yorker added, a dancer Blank once interviewed (for his film about women with gaps in their teeth) managed to sum up her own worldview in a way that fitted him equally as well :

I’m two years out from acute in remission from acute leukemia. I read the magazines about people [who say] “I got cancer and then my life fell into place.” Well, that’s a bunch of trash. I mean my life is still in the state that everyone else’s is—searching for what works for you, searching for what really means something to you. And it is a day-to-day struggle. It’s not something that falls into place when you are threatened with death. And I think that just being aware of your own mortality creates a poignant romance in your life. You know? It’s like this could be the last day that I’m around. And there was always, “What if I strained my ankle,” or “What if I get a scar on my stomach?” But hey, that little scar on your stomach? What’s that to death? It frees you up from those things. You get stepped on by a horse? Fine. You got a scar on your leg, oh well. You got a gap between your teeth? Hey, no problem. I started looking at myself as a young person now and thinking of myself as getting older and saying, “Hey, I might get gray hair! I might get arthritis or something. I might have wrinkles. I’ll be old. God, won’t that be neat!” It’s kind of, “Hey, this is going to be great.” Instead of, “Oh my God,” and there’s another one there! You see yourself in the mirror. “Should I get them straightened?” What are you going to do? So you dance and you love life and you do what you need to do to survive, and I think that that’s all there is. That’s really all that there is.

During the early years of the NZ International Film Festival, Les Blank’s films were a regular attraction, and they played a big part in the Festival finding its feet. “He was the first really exciting guest we had in my time at the festival,” says current Festival director Bill Gosden. “Those films helped to define the times, to some degree.” From the outset, Blank focussed on the musicians from the backroads and regional niches of Amertican culture who had managed to escape what he once described to me as the “ big suburban blandout.” He started out making films about the Texas blues singers Lightnin’ Hopkins and Mance Lipscombe, made two terrific films about the ballads and the dance halls of the Texas/Mexican border (Chulas Frontreras and Del Mero Corazon) and three films about the Creole/Cajun people of the Lousiana bayou, the region where he’d done his schooling.

There were more. He shot films about an Appalachian fiddler, about a tattoo attist, about the Polish diaspora that created American polka music, about the Wild Tchipoutalas Indians of New Orleans and its Mardi Gras…There was also a film about the charms of garlic, and the film devoted to women with a gap between their front teeth ( In medieval times, Blank discovered, a gap between the front teeth was believed to allow moonlight to enter the soul.) There was also a virtually unseen rock’n’roll film called A Poem Is A Naked Person about the musician Leon Russell and his entourage, which Russell took legal action to prevent from being shown to the general public.

Most famously of all, Blank made two films about the German film director Weerner Herzog. The short Werner Herzog Eats His Shoe delivered exactly what the title promises, as it filmed the consequences of Herzog losing a bet. The 1982 feature length documentary Burden of Dreams traced Herzog’s journey to the edge of madness in the depths of the Amazonian jungle, as he struggled to finish his film Fitzcarraldo. Blank’s film recorded Herzog’s Peruvian folly in all of its many astonishing and disturbing facets – including the director’s mental disintegration under the weight of his self-inflicted trials. A brilliant key scene, in which Herzog raves about the depravity of nature can be seen here.

A lot of people ended up thinking Blank’s doco was better than the Fitzcarraldo epic that had inspired it. Blank and Herzog were somewhat alike, in that both were attracted to larger than life characters – Herzog to do battle with them overtly onscreen, Blank to package them invisibly for our response. As Blank said to me in the course of a 1980s interview, he refused to judge Herzog, either in the film or outside it. “I don’t make films for grade school children. The context, the issues are all in the film. You have to see both films [Fitzcarraldo and Burden of Dreams] and figure it for yourself. Whether it was worthwhile is up to you, not me.”

Right. But in his Tex-Mex films he’d been upfront about the oppression faced by border people. What about the impact on the jungle Indians from being sucked into the modern cash economy of the film set….? “No one knows that [impact],” Blank replied. Sure, some effect was going to be inevitable. “This stuff has no easy answer,” he insisted. “ What can you do? You either go in and pay normal rates for labour, which would be gross exploitation, or pay more, which gets their values screwed around.” When further pressed, Blank cited the one shot in Burden of Dreams he was most proud of : an ant carrying a red parrot feather five times its size, up, around and back down a piece of wood. “You‘ve seen an Indian kill the parrot and cut off its wings. As the ant goes back and forth, a bird called a wizwinchi makes a very haunting, melodic sound.” This happened, Blank added, “just after Herzog has made his very Richard III soliloquy about the horrors of the jungle, the vileness of nature and lack of order and harmony in creation.”

Was making movies like life? Given his low-key personality, Blank could easily slip in and out of the lives of his subjects with barely a ripple. At a human level though, that privileged access had its painful aspects for him. It is a feeling common to any documentary film -maker, to any journalist – of identification on one hand, alienation on the other. You leave, their lives go on. On the Clifton Chenier film, Blank told me by way of example, he had eaten, slept, walked the fields behind the plough and become one as much as he could. “But finally…That’s one of the most painful things you can think as you’re making a movie, that you might be finally just a distant observer to them, and nothing more.”

If we’re honest, that same ambivalence – are we participants in and champions of this art, or cultural tourists – is something the audience finally has to consider as well. From the Mississippi Delta to the Andes, the poor have made works of beauty out of generations of hardship and oppression. Can you regret the loss of such artistry without wishing an end to the conditions that created it ? It can be a tough call. Near the end of my conversation with him, I mentioned a crack made by a friend who once described Blank as “politically liberal, but with conservative instincts.” How then did he feel about the way social change was sweeping aside the indigenous cultures that he admired in Central and South America – cultures which, despite their riches, were also the response to centuries of colonial oppression ?

“We’re no ones to judge,” Blank replied. “How can you say we’re better off joining the big blandout and having food in your stomach and a nice house, social security? Maybe that is better than a shack with no food to eat, having to hide from the white man, and the Army, but still having great music, and loving friends and family. Its just not for us to say.”

Herzog himself once described Blank as being not so much monosyllabic as “ zero syllabic.” So quiet as to seem hardly there. Looking back, his obvious forerunners were probably people like Alan Lomax and Harry Smith – the collectors who unearthed and anthologised the folk, country and blues heritage that has subsequently inspired so much popular music since the 1960s, right on through to more recent bands like White Stripes and the Black Keys, and performers such as Kurt Vile.

Blank worked much the same territory. Supposedly, the blanding out of America’s musical culture had begun in the 1920s, with the invention of the phonograph and the widespread dissemination of recorded music. Steadily, this served to erode the ‘old weird America’ of regional cultures and idiomatic forms of creativity. All of which have now virtually disappeared into the maw of the great US entertainment industry blender. Cultural expression has become homogenised from coast to coast and increasingly, the whole wide world around.

Luckily, that process has taken a while. As late as the 1970s and 1980s, Les Blank and his contemporary (and occasional collaborator) Chris Strachwitz at Arhoolie Rccords were still finding remnants of that ‘old weird’ culture and the feasts and rituals that sustained them from the Texas cane fields to Mardi Gras. One of the lasting values of Blank’s work is that he caught on film some of the last great performers of America’s traditional musics. It wasn’t a role he entirely embraced. To me, Blank fiercely resisted the notion that this made him some kind of “pastoral romantic.”

“I don’t like that term at all,” Blank told me. “ I show things that I find to be meaningful and valuable, and I don’t want to take that time showing a lot of the other stuff. There are plenty of political film-makers dying to make those sort of films. Let them.” Yet his Australian distributor, I pointed out, had described his film about Mance Lipscomb as being ‘unabashedly romantic.” “Now that’s a load of crap, too. That’s idiotic. Mance tells the camera about the bad times he’s been through, about blacks being exploited by whites. You can tell it just by looking at him. You just have to have a bit of sensitivity to figure it out. I do super-impose the Brazos River one time, across his face as he’s singing and that looks pretty. But he’s singing a song about a man getting his leg blown off with a shot-gun. Its real. Its expressive of some other reality.”

Blank knew first hand, a bit about that other reality. He was born in Tampa, Florida and went to school in New Orleans. Something of an unlikely hellraiser and streetfighter in his teens, Blank took a while to find his true vocation. After a few failed career attempts – including a shot at creative writing and a flirtation with the military – he went to the fateful screening of The Seventh Seal and set his mind on becoming a film-maker. After learning his chops making short educational and industrial films, he made his first major film – a documentary about the jazz trumpeter Dizzy Gillespie – in 1965.

The hell-raising instincts never quite went away, though. Blank once said of the people at the heart of his films, “I become them.” Which as I’ve indicated above, can be just wishful thinking. At times in his life though, it became more than that. A former camera operator on Easy Rider, Blank was part of an early 1970s generation that did a pretty good job of turning self-destruction into an art form. His Leon Russell episode in the early 1970s was part of it.

During the months just before Blank’s death, there were some suggestions that the Russell film A Poem is a Naked Person might finally see the light of day. Blank was plainly proud of the film which – under the terms imposed on him by Russell – could only be shown if Blank was sitting in the audience, screening it himself. Blank stubbornly did what he could to promote the film, regardless. When he showed up in Wellington in the early 1980s to screen Burden of Dreams for instance, Blank just happened to have a 16mm print of A Poem Is a Naked Person in his luggage.

In essence, the Russell film is a fly-on-the-wall account of a music tour by a bunch of degenerates, and it is amusing and disturbing, in equal parts. Back in 1974, Russell’s commercial mashup of blues, gospel and rock’n’roll must have seemed like the ultimate in cultural sacrilege to someone like Blank. Certainly, it isn’t very hard to figure out why Russell found the film so unflattering – at one point, a shot of Russell dissolves into an image of a snake devouring a baby chicken. I also dimly recall a self-destructive hotel room scene involving Russell’s bass player Carl Radle (1942-1980) a beer bottle and his bare chest. Besides the shenanigans among the entourage, Blank filmed some equally bizarre footage of the culture through which the Russell caravan was passing. Like, for instance, elderly couples putting out deck chairs and picnicking as they watched huge old American hotels being blown up with explosives or – in another memorable scene – a man chewing and swallowing an entire beer glass. Clearly, something was not entirely well with Leon Russell. Yet as Blank was also signalling, there was a sickness raging on through heartland America as well. It ended up like a Herzogian film, before there was a Herzog.

At the time, I liked the film a lot and once the lights went up, I approached Blank and asked if I could arrange another screening that night up at Victoria University. He agreed, and went off to meet a friend in the Hutt Valley while I tried to scramble together an audience of friends, and any random people willing at short notice to give up their evening. The 60 or so people who eventually showed up included Labour’s future Arts Minister, Eddie Isbey, who had been dragged along by one of his staff. He seemed gamely bemused by the whole thing. It was a night of drugs, rock’n’roll and Eddie Isbey.

The point of the anecdote being, I didn’t get to deliver the film back to the Courtenay Place hotel where Blank was staying until after midnight. I handed over the canisters, and the small amount of koha the audience had tossed into the hat to cover the costs of the venue. Blank stared at the money, stared at me with a look of absolute, unblinking death and said : “ARE YOU TRYING TO RIP ME OFF?” No way, man. For him, cash in hand was film in the can, so where was his money? Only in his mind, as it turned out. Much as the world in his films was a beautiful place where great music and communal joy could be celebrated, the world was also inhabited by sharks and assholes, many of whom he seemed to regard as being personally out to get him.

Blank’s paranoia may have been in overdrive that night. More commonly, Gosden recalls Blank as a ‘canny’ businessman who personally did all the festival deals involved in screening his films. Long, long before rock bands discovered the value of merch, Blank sold T-shirts enblazoned with images from his films at NZ Film Festival screenings. Similarly, while screening his film Garlic Is As Good As Ten Mothers, he cooked garlicky dishes at the back of the cinema, to create what he jokingly called “smellovision.” For someone so shy, these entrepreneurial efforts must have been a soul-buffeting torture but he saw the hustling as being an essential part of him getting his films made. One of the real ironies of Blank’s career is that – despite the value of his films for future generations blah blah – the political climate for funding changed during the 1980s, and largely to his detriment. Funding agencies began to look sideways at putting money into projects by this white guy who was wanting to make films about non-white cultures.

Through the 1990s and 2000s, his output slowed down to a trickle – partly for funding reasons, and partly as he aged. It was partly due to technology as well. The advent of digital cameras may have made films less expensive to make, but the ability to shoot endless footage at little or no expense ran counter to the careful and necessarily economical way that he’d shot his films before, on 16mm film. The editing process which had always been painstaking, now became nightmarish. For all this bundle of reasons, it took Blank a very long time indeed to finish his last film All In This Tea – about the tea market in China and the efforts of the US tea entrepreneur David Lee Hoffman – that finally saw daylight in 2007.

Around that same time, Blank began to pick up the wider recognition that would have been more useful to him, earlier on. In 2007, he was awarded the Edward MacDowell Medal, an annual award for achievement in the arts which had only twice before been given to film directors, and never before to a documentary film maker. Blank was described as a national treasure by the award panelist and film director Taylor Hackford, who said that “100 years from now” Blank’s films would still be being watched.

That’s probably true, even for people who don’t know they’re watching them. The first Les Blank film that Gosden ever saw, he says, was the New Orleans Mardi Gras film, Always For Pleasure. As one indication of its timeless quality, some footage from that film showed up a couple of years ago as the backdrop to a gorgeous video by the young indie musician who calls himself How to Dress Well, on a track called “ Decisions.” As the New Yorker obituary pointed out. Always For Pleasure also contained yet another street corner philosopher urging us to live life to the full, while we still can. It seems like a fitting farewell note :

You be here today, you’re gone tomorrow, you know. You don’t know what to look for after death. But you can always see what you can see in front of you. But me, you know, I like people to have a nice time, and when I leave the face of this earth, I like a little band behind me, and my friends having a nice time seeing me leave this place. But I’m living now.

ENDS

Testing kids in the classroom sounds like a good idea. Surely that keeps tabs on how they’re doing, and identifies which kids might be falling through the cracks…and that’s all good, right? Well…except that most teachers have always done testing, have always sought to detect kids at risk, and have always managed to strike a healthy balance between teaching and testing. The issue is whether the demands to follow standardised testing procedures (and the practices and attitudes that go with them ) may now be poisoning the whole environment for learning.

As with many other social trends, the United States provides a cautionary vision of how good intentions can come unstuck. A few months ago, the impact of testing, testing, testing in the classroom came under the spotlight when a resignation letter by a veteran US teacher called Jerry Conti went viral. You can read the entire resignation letter here:

Its salient points are here:

With regard to my profession, I have truly attempted to live John Dewey’s famous quotation… that “Education is not preparation for life, education is life itself.” This type of total immersion is what I have always referred to as teaching “heavy,” working hard, spending time, researching, attending to details and never feeling satisfied that I knew enough on any topic. I now find that this approach to my profession is not only devalued, but denigrated and perhaps, in some quarters despised. STEM [Science, Technology, Engineering and Mathematics] rules the day and “data driven” education seeks only conformity, standardization, testing and a zombie-like adherence to the shallow and generic Common Core [Standards] along with a lockstep of oversimplified so-called Essential Learnings. Creativity, academic freedom, teacher autonomy, experimentation and innovation are being stifled in a misguided effort to fix what is not broken in our system of public education….

Conti continues :

…..My profession is being demeaned by a pervasive atmosphere of distrust, dictating that teachers cannot be permitted to develop and administer their own quizzes and tests (now titled as generic “assessments”) or grade their own students’ examinations. The development of plans, choice of lessons and the materials to be employed are increasingly expected to be common to all teachers in a given subject. This approach not only strangles creativity, it smothers the development of critical thinking in our students and assumes a one-size-fits-all mentality more appropriate to the assembly line than to the classroom. Teacher planning time has also now been so greatly eroded by a constant need to “prove up” our worth to the tyranny of APPR [Approved Teacher Practice Rubrics]through the submission of plans, materials and “artifacts” from our teaching, that there is little time for us to carefully critique student work, engage in informal intellectual discussions with our students and colleagues, or conduct research and seek personal improvement through independent study. We have become increasingly evaluation and not knowledge driven. Process has become our most important product, to twist a phrase from corporate America, which seems doubly appropriate to this case.

In the process, Conti says, school administrations have been both uncommunicative and unresponsive to the concerns and needs of staff and students “by establishing testing and evaluation systems that are Byzantine at best and at worst, draconian…” In the light of these developments, Conti could see only one possible conclusion : “After writing all of this I realize that I am not leaving my profession, in truth, it has left me. It no longer exists…”

Lest that be taken as the jaundiced opinion of one disgruntled teacher, Salon magazine recently reported some chilling examples of where the drive for standardised testing has taken some US classrooms : to the dreaded, so-called “ prep rally.” Columnist Mary Elizabeth Williams describes what that entails:

Last week, the principal of my third grader’s progressive, learn-by-doing school sent home a letter about the “overemphasis on assessments and the unintended consequences of using state tests to promote students and evaluate school,” a letter in which she promised the education our students receive there “cannot be measured by a single test score.”[Yet] the next day, the faculty shepherded the entire student body into the gym to cheer for the students to “Do your best” and sing, to the tune of “Ghostbusters,” that they were “test crushers.”

The rally may have been a well-intentioned attempt to defuse students’ pre-test jitters. A school administrator later told me, “It wasn’t to further promote testing. It was just about increasing confidence.” Our principal echoed the sentiment, saying, “We did a very intense test prep this year. We recognize that our kids were saturated and starting to feel overload…. And, she noted, “The idea of bringing a group together to garner enthusiasm is something we do all the time.”

The logic of the test pep rally is described by its enthusiasts in this article from Education World which carries the headline “Big Test Pep Rallies: 2, 4, 6, 8 — Taking Tests And Feeling Great!” Maybe for some. Many others will relate far more readily to Williams’ reaction in Salon:

But the ultimate effect had a strangely “Hunger Games” tang to it – a mood of forced, rah-rah re-assurance to the terrified children going into the arena, cheered on by those too young to yet participate. Unnervingly, it was a scene being played out in other schools all around the country, as they too have prepared their students for a series of tests many have been practicing for since September. The night of the rally, I spoke to my schoolteacher friend Blair in Pennsylvania, who told me they’d done similar events at her school and both of her sons’ schools, complete with near-identical catchy songs and even merchandise giveaways. “They sang ‘I will do my best best best’ to the tune of ‘Dynamite.’ It would have been cute if it wasn’t evil,” she said. “They hang up banners in the schools that say ‘I will do my best on the test.’ We get robocalled from all three schools before the test days. It’s all almost exactly the same wording from each principal. It’s a disgrace.”

As an integral part of this process, up to half of that Pennsylvania teacher’s salary will be tied to how her students performed on their tests. As Williams notes, such a system places those teachers who work with the children of migrants who may have English language difficulties and/or those who teach children with special needs — “who might be great students but not great English language test takers” — at risk of punitive measures.

As the heart of the Salon article is the contention that the emphasis on testing is skewing the learning experience for chidren. According to one teacher quoted : “My honors English curriculum now contains only two books, instead of the 12 I used to teach. And very few short stories. It’s mostly nonfiction, because that’s what will be on the tests. Any books I teach outside of the curriculum will harm my students’ scores on the tests that evaluate them and my performance. Goodbye, ‘Lord of the Flies.’ Goodbye, ‘Macbeth.’ Goodbye, ‘A Separate Peace.’ Most good teachers are demoralized by the test, and horrified by what it is doing to education.”

Another teacher : “This afternoon I was told that I must remove all the student art work hanging in the room, as it ‘will be a distraction to the students taking the tests.’” In the process, such emphases are changing the way that students view the purpose of their education :

“Children are getting the message at a very young age that if you pick the right choice between several options you can be successful. That’s not the way to learn, especially creatively. That’s not experimenting or exploring or creating. We’re telling kids that that life is a series of hoops and that they need to start jumping through them very early.”

At a higher level of impact, schools that score poorly on the tests run the downstream risk of being marked out for closure, or downsizing. The Core Standards system, the Salon article suggests, is perhaps being built to fail. “All the passing ratings are going to go down about 30 percent this year; that’s what they’re predicting,” author, advocate and education historian Diane Ravitch told Salon, “The dark view is that they want everybody to fail and they want people to say the public schools stink, so they can push for more vouchers and more charter [schools]. I can’t describe what’s going on without thinking that we’re in the process of destroying American public education.”

Most New Zealanders may be surprised to discover that the current US testing regime – and the New Zealand system of national standards that mimics it – originated with that paragon of excellence, George W.Bush. On the campaign trail in 2000 it was Bush who cited his so-called “Texas Miracle” whereby standardized testing had allegedly transformed the education system in his home state while he was governor, and this led durectly to the No Child Left Behind programme once he was elected President. It has since inspired similar ( and allegedly even more stringent) classroom testing practices under Barack Obama.

Reportedly, critics such as Ravitch do not oppose all forms of testing, only the way the process has become unduly standardised, and the status it has been given. In her opinion, such tests should be designed by the teachers, and kids should be tested based on what they’ve been taught. “Instead, the testmakers are telling educators what to teach — and that’s backwards. All of this is a terrible distortion of education.”

Absolutely, Mary Elizabeth Williams concludes, there are broken schools and faulty teachers, who are failing the needs of children every day:

But building a better system of public education – an education to which every child in this country is entitled — takes creative and innovative approaches, tailored to individual communities. Learning is not a one size fits all proposition. And our kids and our schools shouldn’t have their whole futures riding on how well children can fill in little circles, to be scored by machines. As Blair says, “We are exchanging authentic, age-appropriate learning – real thinking learning – for test taking. It makes me want to scream.”

Scream as they might, teachers and concerned parents in New Zealand are not being heard – either by the previous Education Minister Anne Tolley, or by her accident-prone successor. This is despite the evidence that far beyond the US, some countries have achieved better outcomes from their state systems by deliberately shunning standardised testing. In this informative Atlantic article, the Finnish journalist Aru Partanen cites the attributes of a Finnish school system that regularly outscores the US ( and New Zealand) in international rankings of student achievement. Among other things, Finland has no standardised testing, and no private schools at all. The key elements in its approach have been summarised as follows:

1. Finland does not give their kids standardized tests.

2. Individual schools have curriculum autonomy; individual teachers have classroom autonomy.

3. It is not mandatory to give students grades until they are in the 8th grade.

4. All teachers are required to have a master’s degree.

5. Finland does not have a culture of negative accountability for their teachers. According to Partanen, “bad” teachers receive more professional development; they are not threatened with being fired.

6. Finland has a culture of collaboration between schools, not competition. Most schools…perform at the same level, so there is no status in attending a particular facility.

7. Finland has no private schools.

8. Education emphasis is “equal opportunity to all.” They value equality over excellence.

9. A much higher percentage of Finland’s educational budget goes directly into the classroom than it does in the US, as administrators make approximately the same salary as teachers. This also makes Finland’s education more affordable than it is in the US.

10. Finnish culture values childhood independence; one example: children mostly get themselves to school on their own, by walking or bicycling, etc. Helicopter parenting isn’t really in their vocabulary.

11. Finnish schools don’t assign homework, because it is assumed that mastery is attained in the classroom.

12. Finnish schools have sports, but no sports teams. Competition is not valued.

13. The focus is on the individual child. If a child is falling behind, the highly trained teaching staff recognizes this need and immediately creates a plan to address the child’s individual needs. Likewise, if a child is soaring ahead and bored, the staff is trained and prepared to appropriately address this as well.

14. Compulsory school in Finland doesn’t begin until children are 7 years old.

Migration to Finland however, is not an option for New Zealand teachers. Although many of them would probably share Jerry Conti’s fears about where the undue emphasis on standardised classroom testing is leading us, and the damage it is doing to children’s creativity.

[Iceland’s experiment in the communal writing of a new Constitution has lessons for New Zealand, as we debate our own constitutional arrangements. As this article shows, only a 49% turnout in a non-binding referendum rendered the result able to be ignored by the political Establishment – and the parties responsible for Iceland’s economic collapse have since won the April 27 election.- Werewolf editor]

In the fall of 2008 the Icelandic financial system collapsed following the bankruptcy of the major Icelandic banks. After people stood up for themselves in a series of vociferous demonstrations, the right-wing Prime Minister resigned and a new left-wing coalition, comprised of the Social Democratic Alliance and the Left-Green Movement won the national elections. But quickly, general disillusion towards traditional politics provoked grassroots political initiatives. Among them, a new draft Constitution was written by an elected Constitutional Council of 25 ordinary citizens using the Internet to gather input from citizens. In 2011 the bill was presented before Althingi, Iceland’s Parliament [building pictured below], which started discussions preceding the vote. The government soon realised that the hostility of the opposition parties could prevent the bill from being approved. It then called for a national referendum, held in October 2012, to show that the Constitution was backed by the whole nation.

Though the referendum was non-binding, the general belief was that if the outcome was positive, the Parliament would feel under far greater pressure to proceed accordingly. With a 49 percent turnout, two thirds of the voters affirmed their wish for the proposal of the Constitutional Council to be used as the basis of a legislative bill for a new Constitution. But contrary to initial expectations, the Parliament then proceeded to disregard the popular will, and has yet to agree on the draft.

It is not that MPs were completely blind to what was happening outside the corridors of power – the issue has actually been debated extensively in parliament… So extensively, indeed, that they were not able to put it to a vote before the end of the current Parliamentary session and elections, which are due on 27 April. [Result : The problem is that the newly-elected parliament will then have to start from scratch.

“I’m disappointed, but I’m not surprised,” says Gudrún Pétursdóttir, chairman of a Committee that helped the Council draft the constitution proposal. The conservative opposition, made up of the Independence Party and the Progressive Party, has never looked kindly upon the work of the Constitutional Council. However, the ruling coalition of the Social Democratic Alliance and Left-Green Movement, which formerly backed the work of the Constitutional Council, have also failed to show unanimous support for the draft. “The motivation to pass the draft Constitution was not high enough. The majority was weak and at the mercy of powerful people who were against it,” says Pétursdóttir. “It’s too revolutionary.”

One of the most disputed clauses in the constitutional draft is the one stating that Iceland's natural resources are the “perpetual property of the nation.” It is no surprise that the Independence Party strongly opposed it, as the fishing industry, a traditional supporter of the conservative party, would be most damaged by this clause. The stalled situation, according to 'The Movement' MP Margrét Tryggvadóttir, happened because the draft introduces changes on how politicians should behave. “But they clearly want the old ways,” she says.

But disagreement over individual provisions is not the only reason for the paralysis. “The powers-to-be are afraid of the new constitution because they don’t get it, they don’t understand it,” says Helgi Hrafn Gunnarsson, a Pirate Party (Píratar) member and parliamentary candidate. “Lawyers dislike the proposed bill because it is nowhere near what they are used to,” he explains, and therefore do not know how it works. "They complain that many good ideas in the draft have no jurisdictional history", Gunnarsson says, underlining the fact that, “the whole idea behind the proposed bill is to change how the government fundamentally works.”

The future of the constitution now depends on the election results. [Won comfortably by the conservative opposition parties, leadership depicted left – editor] As many as 15 parties submitted their lists of candidates. This exceptionally high number seems to reflect people’s disillusionment with old politics. Tryggvadóttir, who is now a candidate for the newly formed Dawn (Dögun) party list, explains: “four years ago everyone was angry and hopeless, but now people feel they can make some changes.” Only a few parties, however, are expected to reach the five per cent threshold necessary to earn seats in Althingi.

Perhaps surprisingly, given the popular wish for political renewal, the long-established Progressive and Independence Party [were] leading the polls. A survey conducted this week by the Social Science Research Institute for the newspaper Morgunbladid reveals that respectively 24.4% and 24.8% of voters favour them. Back in 2008, they were blamed for the financial collapse, but a restyling of leadership faces has enabled them to come back into play again. These are also the parties that have objected most to the work of the Constitutional Council.

However, as Tryggvadóttir asserts, “that doesn’t mean that Icelanders don’t want a new constitution,” but just that “people are struggling with loans” and see in the programme of the Progressive Party a solution to their problems. As home debts are connected with inflation, and inflation is very high, sorting this out is now a priority for Icelanders. By making good use of the citizens’ disappointment with the government, Pétursdóttir affirms, “they’re making populist promises that are impossible to keep.” “That’s why they’re doing so well,” she concludes.

Regardless of the majority Althingi will have next week, parties such as Píratar and Dögun are ready to fight to see the draft constitution approved. “If we don’t manage to replace the whole Constitution, we’ll work to implement at least the clauses that went before the referendum – and that people clearly wanted,” states Gunnarsson. “To do so, however, we need to deal with every single point individually and that’s going to be a long process,” he concludes.

To become law, the new Constitution – or the amendments to the old one – has to be put through a parliamentary vote. Once approved by two thirds of the 63 MPs, new elections are to be called and the newly-elected Althingi has to ratify it again with at least two thirds of votes.

The Council has submitted a proposal, and the nation has expressed itself through a referendum. It is now up to the Icelandic Parliament to take this process seriously. It will certainly take years, but now that citizens know what they themselves are able to do, they will not be content to just stand by and watch.

This article is reprinted from the UK website Open Democracy
http://www.opendemocracy.net/giulia-dessi/when-politics-strike-back-end-of-icelandic-constitutional-experiment
(Creative Commons) Attribution-Non-Commercial 3.0 Unported (CC BY-NC 3.0

At the time of writing, I’m just four episodes into Jane Campion’s television series Top of the Lake. On the one hand, everything I’m about to say might have already been rendered meaningless by outrageous plot developments or sudden lurches in tone or style in the closing episodes. On the other, anyone who hasn’t seen any of the series yet – who is waiting for the DVD, say – can keep on reading without encountering spoilers.

First, the context. Top of the Lake is six episodes or seven, depending on where you are – or whether you watched it by legitimate means or otherwise – co-produced with British and US money, but inaugurated from Australia. Campion co-created it with writer Gerard Lee, who dates back to Sweetie, while her co-director was Australian commercials, television and shorts director Garth Davis. But Campion has been taken to be the central creative force, and we could see the series as coming from a tradition of auteurist film-makers pursuing their visions through television, as an extension of the idea, developed over the decade since The Sopranos and Deadwood, that television is now a better vehicle for extended, grown-up storytelling than mainstream cinema. In this case, we’re talking about the mini-series or short contained series, so the true comparison is with things like Todd Haynes’ Mildred Pierce mini-series or Olivier Assayas’ Carlos, which ran as five and half hours of television (the best way to see it) or two and half hours of cinema. In a way, Campion has been here before – An Angel at My Table was a three-part NZ/UK/Australian-funded television miniseries, as much as it was a movie.

But Top of the Lake is more of a genre piece than the Haynes and Assayas films. In television, everyone is looking for the next Killing. Meaning that the influential Danish series Forbrydelsen/The Killing is the most obvious antecedent and the solemn mood and nearly Nordic setting – all frost and fog and freezing water, everything drained of colour – puts Top of the Lake deep in that bleak Scandinavian crime tradition. This is not your tourist Queenstown, and there is surely some equation that could tell you how many minutes of Top of the Lake it would take to cancel the effect of every last Hobbit dollar. It’s less the landscape with too few lovers than the landscape with too many munters (New Zealand: 100 per cent impure). Beautiful but unwelcoming scenery is populated by creeps, and all distances feel remote. The community is fractured and paranoid, suspicious of outsiders and even of those returning after some time away.

David Lynch and Mark Frost’s Twin Peaks ultimately gave you a horrific – albeit funnier – vision of a remote and insular community in which teenage girls were systematically groomed and abused by the middle-aged men that ran the town, but the power structure and moral order in Top of the Lake is that much murkier. The police don’t seem effective or to command much respect and they seem infected by a culture of misogyny and suspicion that wasn’t present in Twin Peaks’ police force, either. Good and evil is black and white for Lynch; there are more grey areas here. In fact, the only element in Top of the Lake that seems remotely Lynchian, apart from the woodland setting, is Holly Hunter’s cameo as GJ, a kind of oracular being wearing a curtain of grey hair and heading up a community of women living in shipping containers. To us, it looks like Christchurch, but their lakeside camp is called Paradise. So far this plot strand – which also gives us Robyn Malcolm as a nervous, American-accented acolyte – is easily the least satisfying thing about the series, and it looks like an entirely separate idea has been grafted onto the crime story.

If Hunter is the matriarch, then Scottish actor Peter Mullan is the patriarch. He’s grim, long-haired, violent, bearded and named Matt. Bible fans might have noticed that his sons are named Mark, Luke and Johnno. Top of the Lake shows us a clannish community in which the battle of the sexes – a recurring Campion topic – has broken down into a kind of Cold War, with men and women living apart from each other. In other relationships, there are suggestions of domestic violence, rape and subjugation. A 12-year-old girl is pregnant and disappears, and the initial mystery – which by episode four was looking more and more like a McGuffin that might be swiftly solved to satisfy audience expectations, as Lynch was forced to do with Laura Palmer’s killing in Twin Peaks – is who got the girl pregnant and where has she gone?

So far at least, it is an uncompromisingly negative vision. The story spreads in odd ways and gets increasingly Gothic – there is even an Austrian paedo living in a cottage in the woods – and the storytelling could have done with some tightening up and more focus. The plot’s crime elements, which aren’t limited to the girl’s pregnancy, are far from gripping. But maybe it’s impossible for us to watch this series objectively. We aren’t just distracted by the imported actors doing Kiwi accents, and the Kiwis doing offshore accents – and the third, luckier category of actors allowed to speak in their own voices (Mullan, for instance) – we are also distracted by the Campion-ness of the whole thing, by which I mean the recurring symbolism and borderline surrealism that pushes her work into the mythic. How apt that the beautiful opening credit sequence animates a painting by Seraphine Pick.

In surrealism, objects are loaded with dream-like meaning, the “primitive” is valued over the “civilised” and sex imbues everything. So it was in The Piano – and, to varying degrees, in every Campion film up to and including Top of the Lake (and Julia Leigh’s cold, remarkable film Sleeping Beauty, which Campion championed – it ran like Bunuel adapting Angela Carter). The Piano won the Palme d’Or at Cannes almost exactly 20 years ago and Top of the Lake is the first project since to bring Campion back here. It is also her reunion with Hunter, and that would have been even more meaningful had Anna Paquin been cast in the role that eventually went to Elisabeth Moss (reportedly, Paquin turned it down because of her pregnancy). Moss’ character, Robin, is a detective who has been living in Sydney and is back visiting family when 12-year-old Tui disappears; she is drawn into the case. There would have been added resonance with Paquin in the part, playing off her between-ness. Meaning, is Paquin American now or Kiwi? Both or neither? In a similar way, the project itself seems both identifiably local and strangely placeless.

For me, Moss doesn’t quite convince as Robin, who is the latest in Campion’s ongoing series of Antipodean women. I suspect that Campion has put Australian actresses into period films – Nicole Kidman in Portrait of a Lady, Abbie Cornish in Bright Star – because something about their Antipodean, contemporary personalities, their confidence and self-assurance, disrupts the received conventions of period cinema, or at least the polite, “prestigious” form of period cinema that dominates in the English-speaking world. I’m pretty sure that in Bright Star, Kerry Fox, in a supporting role, hardly bothered with a British accent, no matter that the setting was London in the early 19th century, and the rupture it caused in the film’s realism was intentional.

It’s not just about period films, either. Campion also wanted Kidman for In the Cut, in the role Meg Ryan eventually got, which meant an Antipodean woman would have been at the centre of what was otherwise a New York crime story extended into more familiar Campion areas: the relationships between sisters, a woman’s navigation of sexual danger and romantic oppression or confinement (in various ways, and despite it being an adaptation, bits of Sweetie, The Piano and Holy Smoke were in that film).

In Holy Smoke, Kate Winslet was the Antipodean woman as another reverse transplant, an English actress playing Australian (more successfully than Moss plays Kiwi, from memory). In Portrait of a Lady, Kidman’s Isabel Archer negotiated a minefield of potential husbands, but Henry James’ American in old Europe now seemed more like a modern woman testing the boundaries of a 19th century loveless marriage, and that sense of time travel was set up by Campion’s decision – an eccentric one but truly inspired too – to open the film with footage of young, contemporary Australian women talking about their romantic expectations. From that point on, our viewing of the story was framed by both time and distance. And in 2013, Moss is the Antipodean woman, mostly self-possessed but also dependent on men, and not just erotically. Which men can be trusted and which are dangerous? Would she be better off in GJ’s recovery cult? And is it just coincidental that she so resembles Kerry Fox?

The Piano aside, there has never been much of a critical consensus about Jane Campion. For some, Portrait of a Lady was the first great disappointment in her career. For others, it was Holy Smoke. (For me, it was In the Cut, but Bright Star lifted her average again). It’s too early to work out just where Top of the Lake sits, although you can already tell that it isn’t the great achievement that An Angel at My Table was, although much of that – from my half-way point, anyway – is about Top of the Lake’s relative failure as storytelling. The other business – atmosphere, acting, shooting, writing – isn’t quite compensating. The acting is especially variable. But, this far at least, the series has sustained a sense that some awful mystery is waiting to be cracked open yet may never be fully understood. Even the title – Top of the Lake – sounds like a metaphor for Campion’s unconscious processes, and her relationship to surrealism. We can agree on what we see on the surface, but we may never figure what is going on beneath. How deep does it go?

Do you remember the bit at the end of The Great Gatsby where Nick Carraway says that Jay Gatsby got so close to his dream that he could hardly fail to grasp it? Well, soon, thanks to the magic of 3D, that will be you too, reaching out and touching his dream. Talk about literalising metaphors.

Baz Luhrmann’s US $127 million 3D adaptation is the fifth version of a novel that should be easy to film – a straight-forward and cinematic story, economically told – but has kept eluding film-makers’ grasps, like so many green lights at the end of docks. We don’t doubt that Luhrmann is up to delivering the wild party scenes at Gatsby’s West Egg mansion, which, based on the trailers, look like variations on the wild party scenes in Romeo + Juliet and Moulin Rouge, but is there a risk that everything else is just as overblown, as in Luhrmann’s melodramatic disaster, Australia? Again, based on mere seconds in trailers, the famous shirt-throwing scene – Daisy weeps at how beautiful Jay’s shirts are – now looks like it will become another 3D showcase moment, as we get to stroke the linen and silk right along with them.

Cannes will find out for sure when The Great Gatsby opens that festival on May 15, after its New York premiere. All fans of the book will be curious to see what Luhrmann and co-writer Craig Pearce have done with some big artistic decisions. Do you keep Tom Buchanan’s lazy racism? It’s a very quick way of identifying Tom as a thug and an idiot – that rant about “coloured empires” is almost the first thing he says – and his reputation never recovers. We already know that Luhrmann’s soundtrack is anachronistic, as it was in Romeo + Juliet and Moulin Rouge, which reduces the chance that the film will feel as much like an empty museum version as the 1974 version.

And what do you do with all that amazing writing? Do you just serve up big chunks of voice-over? The 1974 film, flatly directed by Jack Clayton from a faithful screenplay by Francis Ford Coppola, did that – but then it put F Scott Fitzgerald’s great lines about how Dutch sailors saw the New World as dialogue in the mouths of Nick (Sam Waterston) and Jay (Robert Redford), which was a much less successful idea. The problem is whether you can ever communicate the profundity of the closing pages without having someone just say the words, over the images or in front of the camera.

But those decisions seem reasonably simple compared to the really big ones: which actors you cast and how they play it. Of the three main characters, Daisy, whose voice sounds like money, should be the easiest but Clayton screwed up in 1974, when he cast Mia Farrow. Fitzgerald’s early description of Daisy speaking for a moment with “tense gaiety” is how Farrow seems to have played the entire thing – she is forever on the verge of falling apart. Unprepared audiences would have wondered what the suave Gatsby impersonated by Redford was thinking, bringing his big romantic dream to life for that flighty woman. If Daisy is this unappealing, how can you believe in Gatsby’s epic longing?

I don’t think Gatsby is necessarily a difficult part to play, either. Redford was right for it in 1974 and Leonardo DiCaprio is probably right for it in 2013, just as Carey Mulligan seems like an alluring enough Daisy, although you might wonder if she seems too intelligent. No, the difficult one is narrator Nick Carraway. Who is he, exactly? Nick is our way into the world that we see, but he is selective in what he tells us – and what he tells others. Fitzgerald leaves us plenty of room in which to speculate.

According to his own account, Nick is passively carried along in the slipstream of rich and careless people he describes as a rotten bunch, while he also “disapproved of [Gatsby] from beginning to end”, yet befriended him. We have to believe that a character who will be so outshone in the film – an observer, a passenger, played by Tobey Maguire – is also capable of the remarkable thoughts that Fitzgerald gives him. Of all the main characters, Nick is the one who is the least straight with both himself and us. Somewhere online, there is a reading that takes Nick as gay and in love with Gatsby – I’m not sure I buy that, but it does say something about how unclear he remains to some readers 90 years later, just as it tells you that any literal filming of the text will never deliver the truth of the story. That’s one of the ways in which the 1974 film fell down. The possible moral of all this: never believe anyone who says they are one of the few honest people they know.

What’s so great about Godard? New Zealand Film Festival director Bill Gosden answers that question in the excellent programme notes that accompany the screenings of three early Godard films – Vivre sa vie, Bande a part and Pierrot le fou – in Auckland and Wellington. The three films are pitched as the artefacts of the relationship – cinematic and romantic, if there’s even a difference – between Godard and Anna Karina, and between Godard and his ambiguous love for Hollywood.

If you’re lucky enough to see them, read the notes, and also look at Richard Brody’s book Everything is Cinema: The Working Life of Jean-Luc Godard. He’s good on just what was revolutionary about Godard, as in this short excerpt on Vivre sa vie, which he calls “Godard’s most classically tragic film”:

Vivre sa vie offered [young directors] a new paradigm altogether: it reoriented mise-en-scene from space to time. Godard did not invent the long take, but in Vivre sa vie he invented the staging of lengthy dialogue scenes in artful framings. The films of Jean Eustache, the later films of Philippe Garrel, the films of Chantal Akerman, the subsequent films of Eric Rohmer, all of the modern verbal American cinema – Martin Scorsese, Woody Allen, Hal Hartley, Quentin Tarantino, Kevin Smith, Spike Lee – and even the flowing dialogue shots of Abbas Kiarostami, are derived from the long and carefully patterned talk-takes of Vivre sa vie.

You could probably add Richard Linklater to that list. If, like me, you first got serious about cinema in the early 1990s, there was a kind of retrospective shock when you finally got around to watching 60s Godard. So that is where so much of this stuff came from? And no discussion of Godard and Tarantino could ever ignore Bande a part, with its famous dance scene that was appropriated in Pulp Fiction, as well as Hartley’s Simple Men. In the Hartley film, the impromptu dance broke out to Sonic Youth’s “Kool Thing”. I remember that as a pretty fantastic moment in a cinema.

But neither of those two appropriations help to answer the opening question about Godard. For that, go to an analysis, again by Richard Brody at his New Yorker blog, of the Bande a part dance sequence, and the way that Godard used it to reveal character. Fifty years on, it remains revolutionary, as Brody writes. If you’re going to the Godard films, read this too.

The death of ridiculously prolific Spanish cult film-maker Jesus Franco on April 2, aged 82, was not covered very widely at all – even the usually reliable Twitter RIPs were minimal. But he left those interested with a formidable challenge, perhaps even an impossible one – to see all of his films. How many are there? Getting a precise number would seem to be the first obstacle, as the usual estimate is that he directed between 180 and 200 films over 55 years, but multiple versions may push that total even higher. Good luck tracking all those down. (Even his name existed in multiple versions.)

Locally, the easiest two Franco films to see would be Venus in Furs (1969) and Vampyros Lesbos (1971). Both cast you back into a lost moment of sexually-charged, loosely bohemian, European pseudo-arthouse – the same world that produced Radley Metzger’s The Lickerish Quartet and Walerian Borowczyk’s Immoral Tales, among others. For the most part, this world was pre-pornographic, although both Franco and Metzger would go hardcore later. One of the best descriptions of what Franco and Borowczyk were up to came from Cathal Tohill and Pete Tombs, who saw their approach as “outsider art” – the language of 60s European cinema was distorted, personalised, exaggerated and sometimes botched. As Tohill and Tombs wrote in their book Immoral Tales, it was too low-brow to be arty but too intelligent and personal to be simply Eurotrash.

Venus in Furs opens in Istanbul amid parties that resemble parodies of Antonioni boredom – La Dolce Vita, Vertigo and Black Orpheus are in the mix too – but the horror moments and general feeling of erotic torment seem fairly persuasive. If anything hampers it, it is a dud of a lead performance by the wooden American James Darren, who can’t even extract humour from so-bad-it’s-good dialogue like this: “She was beautiful even though she was dead. There was a connection between us.” But you see what I mean about Vertigo? As the quote shows, Franco took the necrophile aspects of the Hitchcock film and extended them.

Like Metzger, Borowczyk, the more cynical Russ Meyer and others, Franco was briefly revived by the Incredibly Strange crowd in the 1990s. The soundtrack to Vampyros Lesbos was mined for kitsch appeal, but the film is much more coherent than Venus in Furs, less camp and closer to genuine horror – the original Dracula story was a rough template. Again, we are in Istanbul – Franco had no qualms about recycling footage – where Spanish brunette Soledad Miranda is a vampire countess and German blonde Ewa Stromberg is an insurance agent sent to settle an account. You can see where this is going. Let’s just say that Vampyros Lesbos is a film in which the following dialogue is allowed to occur:
“I didn’t bring my swimsuit.”
“There’s no need to be shy.”

In light of unspecified recent events, we thought it prudent to conduct a thorough review of recent statements to confirm their rigorous factualness.

Not just our statements – although you can imagine my shame when I discovered that nothing I had written for Werewolf during the sample period passed a basic fact check. Even the one about John Key’s cat. Oh, how I blushed.

We were more reviewing statements, generally.

In the interest of accuracy, we present some of our findings.

The “all-powerful Privileges Committee” is not in fact omnipotent. Nor is it “all-knowing” and “all-loving”. We regret any confusion this may have caused.

We have often asserted that New Zealand has no lèse-majesté laws and that offending the dignity of the supreme ruler of the state is permitted. However, since the passage of the Crown Minerals Amendment Bill, protesting against offshore oil and gas company activity is in fact punishable by imprisonment or a fine of up to $100,000. We regret the error.

Turns out “the Government’s Mr Fix-It” Steven Joyce isn’t actually that good at fixing problems that can’t be solved by smugly patronising anybody who offers an actual solution. We regret the error and apologise to Mr Joyce for use of an incorrect title.

Colin Craig’s habit of threatening to sue satirists, thereby massively boosting readership of said satire and provoking indignant storms of further satire, is not the Conservative Party’s new arts policy. But you can see how we might have thought that, right?

In March the Deputy Auditor General confirmed her own report did not ‘vindicate’ ministers over the SkyCity pokies deal. At that time we reported the Prime Minister as responding that, actually, it did vindicate them. We have since discovered that he’s just one Prime Minister and, like lawyers, I can provide you with another one that will give you a counterview.

We have also previously used the term “blind trust” to describe the Prime Minister’s financial arrangements. The phrase should in fact be used to describe the thing you need to think that any of his policies will have the effect he says they will. We regret the error.

When we said “children growing up in poverty are a priority”, it may have been assumed this referred to caring for them. Or to reducing their numbers. We apologise if any readers were misled.

Also, it’s still technically a “brighter future” if it’s on fire.

And speaking of ‘corrections’: isn’t it mostly the Department of Punishments?

We’re going to go out on a bit of a limb and say the only surpluses we are track for in 2013/14 are surpluses of shameless crony appointments, ‘forgetful’ politicians, Internet cat pictures, ministers trumpeting welfare results based on deliberately dropping people through the gaps, buskers who are at it all day but only play Bob Dylan songs, specific state sector targets – many of the a bit ‘aspirational’ (n: made up) – pursued so relentlessly the rest of the system collapses, satirical denunciations of litigious homophobes, “relaxed” Prime Ministers, and feijoas. We are sorry if any other impression has come across.

Turns out most people are on benefits because they need them. The welfare system may need to be radically restructured to take this into account. Our bad.

A secret coalition of New Zealand satirists is not, in fact, going to simultaneously vanish from society to build an idealistic and acutely self-aware utopia in a concealed valley in the Southern Alps. This despite the fact that, if Colin Craig’s approach to literary criticism is taken seriously for even a second it renders the whole business of satire untenable and the fact you would totally miss us when we were gone and who’s going to chastise your follies now, eh?
The author wishes to emphasise that any recent references to “Going Butler“, queries about untraceable remote Internet connections or twitpics of Kathmandu rucksacks full of very sharp HB pencils, were meant entirely in jest. He also wishes to clarify the “IT HAS BEGUN!” thing was just confusion caused by David Slack going for a particularly long bike ride.
The error is regretted.

Ever since white people first began listening to the blues, the Mississippi Delta has held pride of place. The emotional extremes of the singing and playing by the great names from that region – Son House, Robert Johnson, Charley Patton etc – not only saw the Delta treated as the crucible of country blues, but fed on into the respect afforded to the electrified Delta styles later to emerge from the south side of Chicago, via Muddy Waters and Howling Wolf. In the process, those blues singers and guitarists whose music had its rhythmic roots in ragtime or in stride piano stylings ( eg Mississippi John Hurt, Blind Willie McTell, Frank Stokes, Barbecue Bob, Reverend Gary Davis, Brownie McGhee and Sonny Terry, Furry Lewis etc) tended to be treated as pleasant enough, but as being a bit lightweight by comparison.

Over time, a more sensible balance has been struck. So much so that by the time of the neo-folk revival in the 1990s, white guys like Beck found they had more in common with the melancholy beauty of John Hurt’s music than they did with that intense guy with the hellhound on his trail. Even today, the acoustic segment of Kurt Vile’s live set owes a lot to Hurt’s Piedmont style of finger picking, which took its name from the Piedmont plateau on the East Coast. The musically crucial section stretches from Virginia through North Carolina to Atlanta, Georgia.

A few months ago all this came back to mind when Precious Bryant died from the effects of poverty, diabetes, and alcohol. Bryant, 71, came from the Chattahoochee Valley in south Georgia, and was an exponent of the same light–and-limber picking style as Hurt. Although she came late in life to a career as a professional musician – she disliked travelling by plane – Bryant was a gifted writer and performer. When she died in January, the local Ledger-Enquirer newspaper in Columbus, Georgia ran an extremely well written account of her life that you can read here.

A few days later, the Ledger-Enquirer also published a lovely set of photographs from her funeral at the Salem Primitive Baptist Church near Talbotton, Georgia, which you can see here.

I particularly liked this laconic segment of the Ledger- Enquirer ‘s account of her life:
She got married and had a son, Tony, who later would be her constant companion and accompany her on bass. He was just a little boy when his mother killed his abusive father in self-defence. She spent a day or two in jail while authorities sorted it out. Afterward she rarely spoke of it, once referring to it as “that little trouble my husband had.”

For a good introduction to the music of Precious Bryant and her distinctive style of singing and playing, try this clip from the documentary Sing My Troubles By.. Also, her own beautiful composition “The Truth” was probably the closest thing she ever had to a hit.

2. Precious Bryant : “Georgia Buck ” Frank Stokes : “You Shall” Here’s another taste of some of Bryant’s playing, via her version of the instrumental “Georgia Buck.” Some of her most attractive music was in this traditional mode, but she also found new corners to illuminate in Little Willie John’s “Fever” or Jimmy Reed’s back catalogue, or even in a tired old chestnut like “ When The Saints Go Marching In” Unfortunately, her wonderful version of “Saints” is not available on Youtube.

Frank Stokes was another Piedmont style bluesman. He came from Memphis, and did most of his best recording in the late 1920s. His roots were clearly in ragtime and jug band music, but he’s one of the most soulful, modern sounding singers from that period. Other tracks by him (“Take Me Back” and “How Long”) are also worth checking out, but I’ve chosen this tale of an encounter with a lecherous preacher…..

Now when I first moved to Memphis, Tennessee
I was crazy about the preachers as I could be
I went out on my front porch a-walking about
Invite the preacher over to my house
He washed his face, he combed his head
Next thing he want to do was slip in my bed
I caught him by the head, man kicked him out the door
Don’t allow my preacher at my house no more

I don’t like ‘em, they’ll rob you
Steal your daughter, take your wife from you…

3. Mississippi John Hurt : “Blind Man Sit In The Way And Cried”
Frank Hutchison : “The Train That Carried My Girl From Town”

This track by Mississippi John Hurt is a pretty good example of the helium light touch with which he could convey emotion of the deepest kind. As for Frank Hutchison [pictured above, with dog] … decades before anyone thought to ask whether white people could sing the blues, Hutchison just went out and did it, like Jimmie Rodgers before him. He could perform Piedmont style – which basically involves a syncopated rhythm played by the thumb on the bass strings of the instrument, while the fingers pick out a melody on the treble strings. – or he could play slide guitar with equal dexterity, the latter usually with the guitar in his lap. Unfortunately, after ending his recording career in the 1930s ( his versions of “KC Blues” and “Worried Blues” are worth checking out on Youtube ) Hutchison and his wife opened a store that burned down. This sent him into a drinking spiral, which finally killed him at the age of 54.

4. Barbecue Bob : “ Going Up The Country” “I Won’t Be Long”
The Atlanta bluesman Robert Hicks took his name – Barbecue Bob – from a part time job he had as a short order chef. In the few short years before his premature death in 1931, he was an extraordinary popular artist – selling thousands of records during those pre-Depression boom years for blues and gospel music – and its easy to see why. A confident singer and a terrific songwriter, he was always fully in command of the gigantic sound he could wrest from his 12 string. The tracks I’ve chosen here are “ Going Up the Country” later to be a hit for Canned Heat in the 1970s, and “ I Won’t Be Long Now” on which he banters with his brother Charlie Lincoln, before getting down to business. His “ Chocolate to the Bone” (“So glad I’m brown skin, chocolate to the bone”) is another great BB track well worth checking out.

5. Elizabeth Cotton “Vestapol” ; Bayless Rose : “Frisco Blues”
Here are a couple of classic, lovely instrumentals. “Vestapol” is by Bryant’s friend Elizabeth Cotton, the brilliant left-handed guitarist who wrote “ Freight Train.” She was ‘discovered’ after she picked up a guitar in the Seeger household, where she worked as a maid – and she had only got that job as a result of finding Peggy Seeger’s lost child in a department store. (Talk about a fluke career. ) The other track was recorded in 1930, by the mysterious Bayless Rose. No one knows for sure whether Bayless was black or white. Some suggest he may have been a Melungeon, a term for those of tri-racial white, black and Native American origins.

6. Richard ‘Rabbit’ Brown, “James Alley Blues”; “I’m Not Jealous”
Not much is known about Rabbit Brown beyond that he was a New Orleans street singer and singing boatman – on Lake Ponchartrain – with a repetoire of music hall tunes, murder ballads and topical songs on subjects such as the sinking of the Titanic. “James Alley Blues” though, is a masterpiece – and a standout cut even among the competition on Harry Smith’s Anthology of American Folk Music. There’s an eery calm to the early verses that sets the listener up perfectly for the mounting sense of resentment, and the hurled out-of-nowhere violence of the final line of the song.

“I’m Not Jealous” is Rabbit Brown in a lighter mood – almost anything else would be – but it has real bite to its narrative too. Brown died in 1937 and it’s a pity we don’t know more about him, given the psychopathology of his lyrics.

7. 5. Blind Willie McTell “ King Edward Blues” Furry Lewis “ Falling Down Blues
The Blind Willie McTell track dates from a 1940 hotel room session with Alan Lomax and his wife, and was a real heartbreaker. Because you can hear McTell (in the between-song banter) advising the Lomaxes that Blind Willie Johnson was dead, even though he wasn’t at that point. Did McTell truly think so – or was he trying to divert his new meal ticket (the Lomaxes) from following the trail of an even greater artist than himself? It doesn’t bear thinking what might have happened if Lomax had pressed on and found Johnson, and thereby prevented his premature death from poverty-related pneumonia in 1945. Here’s one of the lighter tracks from the 1940 McTell session, and it includes a topical reference to the abdication (for love!) of King Edward. Great lyrics :
I hear church bells ringing,
I see visions clear.
I hear the birdies singing
Even though I know there’s no birdies there.
I don’t like your shirts and ties
They don’t seem to harmonise
They don’t match those big brown eyes,
Baby, and it must be love….Make the preacher lay the Bible down
Make the rabbit hunt the hound
Make King Edward give up his crown
Baby, it must be love
The Furry Lewis track “Falling Down Blues” is from the outset of the Memphis singer/guitarist’s career, back in 1927 – luckily for him and us, this was long before Joni Mitchell came along to patronise him in her “ Furry Sings The Blues” track, 50 years later.

8. Mississippi John Hurt: “The Angels Laid Him Away”
And finally, here is John Hurt again, with a song aka “Louis Collins” that is itself a variation on the well known “Stagolee/Stackerlee” song that became a rowdy US No 1 pop hit in the late 1950s for Lloyd Price. Incredibly, the Price version got banned in New Zealand – apparently, for making light of shooting people as a method of cancelling your debts. In the hands of Hurt, the song comes across as a cautionary tale about how gambling and guns will lead you to sorry outcomes, with angels as the only balm for a mother’s tears. Easy to see why some people call Piedmont the “feminine” side of the blues, but the attempted compliment actually obscures more than it reveals.

A collection of photographs taken in South America during a visit in 2012.

A very common sight of used glass bottles, broken and fixed with cement on top of walls around a property. What I saw in the sun’s reflection on the broken Coca-Cola bottle spiking out of the wall wasn’t the spread of multi-national corporations, but a community’s ingenuity and sustainability.

A house with cactus plants lined up along the top of walls to prevent intrusions.

In El Bolson, a small town on the Andes of Argentina, with a green house made up of used soda bottles stacked up on each other to create the structure of the walls.

In Santiago the capital of Chile, an organisation was collecting used soda bottles filled with plastic bags to do a similar thing, but instead of housing plants, these were to be building blocks to house the homeless.

I’m not too sure what the local council would have to say if we surrounded our homes with home-made security systems or started building our house in the city out of bottles. Do our laws allow us to think further to create sustainably, and with ingenuity?

These photographs provide me with inspiration to use what I have around me, and to create something from what others might think is nothing.

Recently, John Key travelled to the large and very culturally diverse territory that is Latin America. The countries that Key and his delegation chose to visit read like a list of the emerging nations in the region – with the notable omissions being those that had made alliances with the revered, recently deceased leader of Venezuela, Hugo Chavez.

Countries like Ecuador, Bolivia and Argentina whose leaders have strengthening economic ties with the progressive leftist policies of Chavez’s Venezuela were spurned. Some journalists in New Zealand highlighted John Key’s decision not to attend the funeral of Hugo Chavez. But was the exclusion of Argentina in particular (from Key’s travel schedule) something of a missed opportunity? After all, Argentina has a similar agricultural base of beef and dairy farming as its primary economic exports and – according to the MFAT website – New Zealand has over $NZ200 million invested there, and annual trade between the two countries is estimated to be worth $NZ113 million a year.

Argentina left a lasting impression on me after travelling through it for over six weeks. As someone who found so many cultural, social and economic comparisons with New Zealand during my travels there, perhaps the Chavez funeral was not the only thing missed on our Prime Minister’s Latin American travel itinerary. This article will look at some of the redeeming features of Argentina as a place to visit as a tourist, whilst also delving into some of the differing perceptions and views about their current economic path.

The Football Gods of Messi and Maradona. This is the home of Lionel Messi, arguably the best footballer currently playing the game. A country where his predecessor Diego Maradona actually has a church dedicated to him – and in Bariloche, there is an empanada store in his honour, with video highlights of his illustrious career. This passion for football is something that goes far beyond even the obsession with rugby here in New Zealand. And that word “passion” is not only synonymous with Argentineans, but with all of Latin America – from the US-Mexico border down to Ushuaia at the bottom of the world. Yet during my travels, nowhere was it more evident than in Argentina.

To get an idea, one only has to ask an Argentinean what is it they like or dislike about their country? The response will usually come with more fervour and emotion than you would expect from Mel Gibson discussing the finer points of Passion of the Christ. And if you want that passion turned up a notch simply ask an Argentine about Peron (Eva or Juan Domingo) or the ‘86 Football World Cup, and you will be likely to encounter the fire that burns in the belly of this most beautiful of countries. Another example of this rich football history is enshrined in the well-known Buenos Aires suburb of La Boca. To talk of football there is to discuss the essence of life itself. Most peoples’ lives revolve heavily around it – so much so that when La Boca played a pivotal game in the Copa America, the Portenos were swarming around any television they could find, and people flooded onto the street to see their local heroes do battle, in what one local described as “War!”

However, when we crossed the border of Argentina there had been only a peaceful chill in the air. The bus trip from Puerto Varas (Chile) to Bariloche had been a breathtaking ride up into the heights of the Andes. Although it was autumn there was still an abundance of snow at the top of the hills, and the first views of the Lake Nahuelhuapi offered a rich baby blue not dissimilar to the blue of the Argentinean flag. On arrival in Bariloche, this lakeside city with snow capped mountains on the other side of the lake was reminiscent of the views in Queenstown. The infrastructure of the city suggested a more ascetically pleasing European style, with stone cobbled roads and local residents sporting the latest of the winter clothing fashion you’d expect to see from a high end ski shop. Clearly, some Argentineans hadn’t suffered greatly from the economic collapse of 2001.

Buenos Aires and the heart of Argentine culture. For most visitors to Argentina, the main drawcard and epicentre of all things Argentinean is the capital, Buenos Aires. Of the over 40 million Argentines living in the country 13 million live in the greater Buenos Aires region, with the next largest city having fewer than 2 million residents. Plaza de Mayo – situated in the heart of the city – is where you’ll find the best in colonial architecture, and a city layout that makes it easy to orientate yourself from the inside-out. Casa Rosada, which is situated in the middle of this mega-city has been a setting for some of the most gripping political theatre of the 20th century. It was from here in the 1950s that former President Juan Domingo Peron made a speech declaring the building open to all Argentines, in front of a huge crowd of supporters at Plaza de Mayo, thereby igniting hope for greater transparency in a government that had previously been a military dictatorship during WWII.

In a country that has experienced much political turmoil in the past – including numerous military dictatorships, the Falklands War (1982), and a large financial crisis in 2001 – the last decade has seen a notable shift in the direction of the political and economic policies that are being implemented.

2001 collapse and economic isolationism While there has been no collapse of the economy on the scale of what occurred in 2001, there are worrying signs to some that Argentina’s current trend towards a more ‘insulated economic policy’ is reducing inflows of foreign capital.

According to the IMF, the official inflation statistics being released by the Argentinean government are much lower than is truly the case. Furthermore, the limits placed by the government on the exchange of Argentinean dollars to US currency has increased the use of the black market US dollar.

But are these examples of economic bravado on the part of the government (and all those ‘falsified statistics’) just part of a self-fulfilling confidence trick, akin to those routinely practiced on Wall Street, where markets fall and rise in response to the smallest moves from the US Federal Reserve. (More than anything, Argentina has been engaged in trying to stem the extent of capital flight.) It would be easy to call the policies regressive, protectionist and many other words that conjure up thoughts of the U.S.S.R, but when the global economic situation is in so much turmoil is it not also logical reaction to protect local jobs, manufacturing, and production?

One noticeable thing about this attempt at economic self-determinism in Argentina is that products such as kitchen utensils, small plastic goods and various household items are usually made in Argentina. Even more surprising was that one gentleman in the southern town of Rio Gallagos bragged to me about the fact that the laptop he was holding was made entirely from this manufacturing town on the Atlantic Coast. A 2011 article in the Economist alludes to this growth in the manufacturing sector, one that has been encouraged by the Kirchner /Fernandez governments (husband and wife) since 2001. Unsurprisingly, such measures are not being seen in a very positive light by the more conventional analysts at the Economist:

“Argentine manufacturers have been booming ever since the 2001 crash. Over most of that period, a cheap peso has ensured their competitiveness. But since 2005 inflation has been in double digits. As the trade surplus has dwindled, Cristina Fernández, the president, has beefed up her industrial policy. According to Global Trade Alert, a database of restrictions on international commerce, Argentina now imposes more trade limitations deemed “harmful” than any country save Russia.”

As a result, there is a sense that Argentina may be developing into a new economic pariah. Yet the question has to be asked whether focussing on manufacturing and industry in your own country (as opposed to outsourcing these jobs) can fairly be depicted as ‘regressive’? In Argentina, this is where the confidence and bravado synonymous with their culture seems to have been spilling over into the economic realm. The economic path being taken there is most definitely against the grain of the policy hegemony that we have come to expect from US and EU policy – but after travelling through that country for the best part of six weeks I’d hesitate to contend that the same ingenuity that sees them succeed on the football field can’t work in the economic realm as well.

Their economic future may be uncertain, but it is one they will chart for themselves, regardless. What is definite about Argentina is the almost suffocating warmth and hospitality of the people. During a stay in Cafayate in the northern altiplano for example, we were welcomed like family and ate bbq roasted chicken, plentiful supplies of roast veggies and salad sufficient to constitute a small banquet. Argentina also abounds with natural attractions such as Iguazu Falls, Perito Merino Glacier, the ski slopes of the Andes….And although mine was a holiday and not a diplomatic visit, I think John Key and our government could benefit from strengthening ties with a country that is also a sporting overachiever, and a quality beef and dairy exporter.

Next time for instance that our Prime Minister is travelling to that part of the world he could learn something from a country that recently managed to buy back its traditionally state-owned petrol company YPF, and that has managed to wipe its debt with the IMF. By the severing of ties between Argentina and such organisations as the IMF, the country is clearly intent on avoiding the threat of more pressure being exerted externally and internally, to cut taxes and social spending. While obviously on a different scale, a visit by a New Zealand PM to Argentina could have been seen in a similar way to Richard Nixon’s visit to China in the 1970s – where bridging ideological differences can trump economic pragmatism and opportunism.

Whether Argentina’s current economic experiment sinks or swims is anyone’s guess, but – to use a sporting analogy – they have taken the ball back into their own court. If that looks more like an intervening Hand of God in violation of the IMF rulebook that prefers to worship the invisible hand of the market, then Argentineans will ask only to be judged by the results.

ENDS

The world used to be a simpler, black and white place. The fugitives being sought for extradition used to be alleged bank robbers or murderers or fraudsters where – once the false moustache and dyed hair had been done away with – it was obvious that their activities had been criminal in nature. Back then, extradition was just a matter of filling in the forms properly, and sending the miscreants home to face the music.

The extradition of the Internet entrepreneur Kim Dotcom is a sign of how much has – or should have – changed. The realities of global commerce and political asylum now routinely call into question whether certain activities really do constitute criminal behaviour, as claimed by the requesting country. At the same time, the failings of security and enforcement agencies since 9/11 should preclude their claims from being taken at face value any longer. In the case of Dotcom and his colleagues, there is considerable room for doubt as to whether his alleged copyright infringements involve behaviour that is truly criminal in nature, even under US law.

As a result, the extent of evidence that can reasonably be expected from the US authorities to support their Dotcom extradition request is being fought out bitterly in our courts, at great expense. Our District Court and High Court had agreed that – in their reading of the relevant treaties and statutes – Dotcom’s rights to natural justice and the judge’s ability to make informed judgements about the extradition request require the US to disclose a good deal of the supportive evidence. Given the current tools of electronic discovery, it would not have been particularly difficult to sift through the evidence accordingly.

On March 1st 2013 however, the Court of Appeal disagreed, for reasons this article will try to summarise. According to the Court of Appeal, the same set of treaties and statutes require the US to offer New Zealand and the Dotcom defence team little more than a “ record of the case” summary of what the US says it intends to bring to any eventual trial. The US has to be assumed to be acting in good faith and with candour. As the Court of Appeal ruling puts it at para 106 -108:

Subject to that [ good faith and candour] it is for the requesting state to decide what information it wishes to put before the requested state in support of its request…The suspect is entitled to challenge the reliability of the record, whether by argument or leading evidence.

Where such a challenge occurs though, the Court of Appeal reasoned [para 106] an extradition court in New Zealand can only undertake a limited weighing of the evidence. Just how limited the role it envisages becomes clear at para 108 :

“A challenge which does not go the reliability of material in record but to its interpretation – that is, to the inferences that should be taken from it – is more appropriate to a trial than to an extradition hearing.

Astonishing, really. ‘Trust your friends’ is apparently not just an option under the Court of Appeal ruling, but part of our binding international obligations – unless the defendant can somehow prove otherwise, while labouring under significant constraints in doing so. One thing we do know is that all parties agree the case against Dotcom is a circumstantial one. Yet if one accepts the Court of Appeal’s reasoning, any meaningful challenge would be virtually impossible to mount at the extradition hearing. Mainly because the Dotcom legal team are being denied access to the relevant evidence, but also because the Court of Appeal believes it would not be appropriate for any substantive test of the evidence to occur at the extradition hearing phase. Very hard to test the logic that the US is using to tie its circumstantial case together, under those conditions.

Not surprisingly then, the Dotcom defence team are seeking leave to appeal to the New Zealand Supreme Court in a bid to overturn the Court of Appeal decision. If leave to appeal is granted, the time required for a substantive hearing and judgment make it very unlikely that Dotcom’s extradition hearing can take place in August, as is currently planned. After all, the Court of Appeal took six months to reach and write up its decision on the same issue. Given the complex elements involved and the far reaching consequences, the Supreme Court would hardly want to rush its deliberations to fit an arbitrary timetable.

Why should the Supreme Court agree to hear the extradition case? For one thing, the appropriate test of evidence for extradition purposes hasn’t been fully decided before, not by our highest court. Also, the criminal copyright offences facing Dotcom and Co have never been tried before, not even in a US courtroom – so what would constitute a prima facie case in the Dotcom proceedings is not self evident. Extradition requests involve matters of policy. They involve the meaning of statutes. They involve the relationship between the statutes and international treaties. All up, that’s why one legal authority spoken to for this article said they would be ‘ astonished” if the Supreme Court refused to hear the case. “This is what the Supreme Court is there for. We need to have some definitive, authoritative rulings from the highest court in the system to clarify the law for the future, because rest assured, [Dotcom] is not going to be the last extradition case.”

At base, extradition hearings are about striking a balance. On the one hand, the public has an interest in having a speedy and efficient extradition process to enable the prosecution of crime. Yet by the same token, you would expect that before anyone gets uprooted from their home and family life to face court action in another country, something more than a rubber stamp on the paperwork should be required. The argument over Dotcom’s extradition is about how much evidence needs to be presented to the hearing before he gets removed to the US to face trial. Or gets removed to face indefinite detention in a US Supermax prison while the US decides whether or not it will actually put him on trial.

The main problem for Dotcom? As it is currently being interpreted, extradition law has not caught up with the post 9/11 frailties and uncertainties of legal process. The relevant rules, as interpreted by the Court of Appeal anyway, belong to a bygone era of relative innocence. As currently construed, an extradition hearing is not a normal adversarial arena where the evidence can be tested, or inferences drawn about likely guilt or innocence. It is less than a trial, yet supposedly, something more than just an administrative procedure. In nature, it is part prosecutorial, part judicial, and part political. This hopelessly fuzzy identity helps to explain why so much room exists for dissent over what level of disclosure should be treated as sufficient for an extradition hearing, according to our current laws and treaties.

Before looking at where the Court of Appeal drew the line and why, it may be useful to recap just what the US is accusing Dotcom and his colleagues of doing. As the Court of Appeal says, Megaupload offered storage facilities for electronic files that users of the site could share, and where financial incentives existed for uploading popular files, based on the number of downloads. Paragraph 8 of the Court of Appeal judgment gives a basic outline of the US reasoning :

From an analysis of databases found on Megaupload’s servers, the United States alleges that a small proportion (slightly over one per cent) of Megaupload subscribers were premium subscribers, the remainder it says did not have significant capability to store content long term. Further it says that less than nine per cent of Megaupload’s subscribers had ever uploaded material. It argues that this data indicates that most users accessed Megaupload in order to view and download content. It says that most of the uploaded rules were infringing copies of copyrighted works and alleges that Megaupload’s “ purposefully made their rapid and repeated distribution a primary focus of their infrastructure.”

Even if this were so, that gets the US only halfway there. Copyright infringement if proven, tends to be a civil offence liable only to civil remedies, not criminal ones. You can’t be extradited for civil offences. Moreover, Megaupload can also point to the protections offered by the Digital Millennium Copyright Act (DMCA) which offers internet service providers – such as itself, Youtube and many others – a ‘ safe harbour’ from copyright suits that are based on how their customers happen to use the services they provide.

This ‘safe harbour’ refuge however, depends on certain criteria being met. The US is arguing that Megaupload was deliberately ineffectual in its use of the takedown procedures it had in place. Which finally gets us to what’s entirely novel about the Dotcom case. In the past, the likes of Napster were pursued – like Dotcom – for “contributory” copyright infringement via the actions, services and assistance they provide to the customers who do the actual infringing. Yet even Napster was still a civil case. What’s unique here is that Dotcom is being charged with contributory copyright infringement construed as a criminal conspiracy. That offence doesn’t exist under NZ law. Our only criminal copyright conspiracy provisions – in section 135 of the Copyright Act – are to do with users, not contributories.

Dotcom is also the first criminal copyright infringement case by a contributory party to be brought under US law as well. Almost certainly, the only way that Dotcom can be hauled into extradition hearings in New Zealand is via something called the UN Convention on Transnational Organised Crime (2000) – which seeks to crack down on organized criminal gangs operating across national borders. This UN Convention doesn’t feature at all in the Court of Appeal extradition ruling. So, we are currently none the wiser about how this crucial lynchpin in the Dotcom case is supposed to interact with our existing laws and treaties at his extradition hearing. Further food for thought for the Supreme Court, perhaps.

So to recap : the offences for which Dotcom and Co are being pursued do not appear in our 1999 Extradition Act. These offences don’t fall within the US/NZ extradition treaty of 1970, either. This matters because of a basic concept enshrined at section 4 of our Extradition Act called “dual criminality” – which holds that an extraditable offence has to be a crime in the country requesting the extradition, and also be a crime in New Zealand as well. In Dotcom’s case the type of copyright offences alleged, and all the downstream RICO racketeering and money laundering charges that follow in its wake are all peculiar to American law. Only the UN Convention mentioned would seem to get the case across the ‘dual criminality’ threshold.

It is still a stretch, though. As an offence, ‘criminal contributory copyright infringement’ sounds like trying to prosecute the president of a gun club for ‘contributory bank robbery’ because some club members used their pistols to rob Wells Fargo. You need to be able to prove that the founders of the gun club always had bank robbery in mind. In Dotcom’s case, some of the supportive evidence of the mega-conspiracy that has emerged to date – such as an email along the lines of “Ho ho ho, we’re pirates” – isn’t very convincing. It could be taken literally, as a heartfelt criminal confession. It could also be a joke, or a boast along the lines of “ What a merry bunch of buccaneering entrepreneurs we are.” But that would be to make an inference about the evidence. Something the Court of Appeal ruling resolutely forbids.

In other words, evil can exist merely in the eye of the beholder. (ie. Dotcom’s mega-conspiracy may itself be only a US conspiracy theory.) As the Court of Appeal says (para 10) “ the United States case against Megaupload and Mr Dotcom is largely circumstantial. Moreover it is strongly contested.“ You bet.

As mentioned, the Court of Appeal thinks that the US needs only to provide a “record of the case” summary of the evidence it plans to bring to trial. This still has to meet the level of a prima facie case, but – in the Court of Appeal’s opinion at least – the extradition hearing has little or no role in assessing the reliability of the case being presented by the US. That’s partly because the Court of Appeal believes in fostering a speedy and efficient extradition system. Significantly, the Court of Appeal notes (para 11) “ There is no affidavit material before us explaining what particular difficulty Mr Dotcom says he will face if extensive disclosure is not provided.” In the Court of Appeal’s judgment :

If suspects were entitled to extensive disclosure of documents on the basis that they wished to challenge the evidence at the extradition hearing, the procedure would lose much if not most of its efficacy. The Court stated that Parliament did not intend that to be the case. In the absence of cogent evidence to the contrary, an extradition court is entitled to expect that a requesting state will have met its obligations of candour and good faith when compiling the record of the case.

As mentioned then, it is up to Dotcom to somehow prove that things are not as they are said to be, even while being denied the means of doing so. If this sounds familiar, it could be because New Zealand has been here before. Putting the onus onto a defendant to disprove allegations in a situation where they are being simultaneously being prevented from knowing key aspects of the circumstantial case being made against then, and have little more than a summary of assertions to go on is, of course, exactly what happened here in the Ahmed Zaoui case.

How can Dotcom definitively state in an affidavit what “ particular difficulty” the evidence kept secret from him might cause? As former US Defense Secretary Donald Rumsfeld would say, the extent and the nature of the current difficulty Dotcom faces going into his extradition hearing is an unknown unknown. In Rumsfeld’s immortal formulation : :

There are known knowns; there are things we know we know. We also know there are known unknowns; that is to say, we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know.

Well, exactly. Beyond the mandatory genuflection to Dotcom and Co’s rights to due process, the Human Rights Act dimension is virtually invisible in the Court of Appeal ruling, at least when it comes down to any perceived balance in the disclosures essential for a fair hearing to take place. It is perhaps worth noting that the Court of Appeal judgement was written by Justice Terence Arnold [pictured left] who, as Solicitor General, prosecuted (and lost) most of the cases against Ahmed Zaoui. Stuart Grieve QC – who was the special advocate appointed in the Zaoui inquiry – has been appointed as special advocate in this case as well, and will argue on Dotcom’s behalf about the admissibility of the secret evidence illegally gathered by the GCSB.

There are three main legal elements to the Dotcom extradition case – four if you count the New Zealand Bill of Rights. These are our Extradition Act 1999 available here the NZ/US Extradition Treaty of 1970 available here, and the UN Convention Against Transnational Organised Crime that is the main source of the stuff about criminal conspiracy is available here.

We are likely to hear a lot more about this Convention as the Dotcom case progresses.

To be brutally brief, the District Court /High Court reasoning went like this. Section 27 of our Bill of Rights gives Dotcom and Co a right to natural justice. Section 25 of the our Extradition Act says :

A record of the case must be prepared by an investigating authority or a prosecutor in an exempted country and must contain (a) a summary of the evidence acquired to support the request for the surrender of the person; and (b) other relevant documents, including photographs and copies of documents.

Note that “must contain…other relevant documents“ bit. That’s the trigger mechanism for Dotcom to expect ample disclosure as of right. Also relevant is the test at s 24 (2)(d) which says that the person is eligible for surrender to extradition only “ if the court is satisfied that the evidence produced or given at the hearing would….justify the person’s trial if the conduct constituting the offence had occurred within the jurisdiction of New Zealand.” This reflects the same position stated at article four of the US/NZ treaty, which recognises the requesting state needs to make a prima facie case against the defendant, such as would enable him or her to be committed for trial if the alleged offence had been committed here. Shorn of the trimmings, that’s the basis for why the District Court/High Court ruled that the US need to produce reasonably extensive evidence.

In taking a contrary line, the Court of Appeal argued that the evidence disclosure required to meet such a test in this case should not be so extensive as to jeopardise the “ efficacy” of the extradition process – which in its view, is based on this being a timely, efficient process that respects the competence, good faith and candour of the requesting state and the limited role of the presiding judge. ( It seems that Court of Appeal hasn’t much of a clue about modern electronic discovery tools, which would make disclosure a walk in the park that would jeopardize neither timeliness or efficacy.) In addition, the Court of Appeal initially made much of article 12 of the US/NZ Extradition Treaty 1970 ( see paras 51-53, 62 and 64 of the ruling) as a counterweight to the need to provide extensive evidence, given that article 12 allows the extradition judge to seek more information from the US. Meaning : if this isn’t enough, Dotcom can always – like Oliver – ask for more.

Well, that didn’t work out for Oliver, either. Having cited article 12 to satisfy any qualms about the adequacy of the initial evidence, the Court of Appeal then promptly slammed that door shut again (para 54) by noting that the US would be under no obligation to comply with such requests and would be breaking US law if it did so – because under US law, full disclosure occurs only within 30 days of a trial. In similar vein, the Court of Appeal cited a precedent where any request for further information should arguably be limited to clarifying an unintelligible document, or only after evidence had already emerged that there had been an abuse of process by the requesting state.

Having fitted out Dotcom with this evidential straitjacket, it is hard to see how the Court of Appeal ruling enables his due process rights to be adequately protected at an extradition hearing – especially when, in his case, the mere existence of criminality act relies on some very novel readings by the US authorities of a complex web of evidence. The token treatment of the defendants rights is pretty clear from para 91 of the Court of Appeal judgement, which concedes that yes, the suspect is free to challenge the reliability of the case, but hey, hold on : “ That does not mean that a suspect is entitled to full or extensive disclosure from the requesting state before doing so.” In effect the Court of Appeal has interpreted the level of disclosure of relevant documents in a way that encourages the defendant to go fishing, while ensuring he does so almost entirely in the dark.

Even despite the Court of Appeal’s best efforts, there could still be some mileage left in the bad faith & candour argument. As mentioned, one of the challenges Dotcom can make to the “ record of the case’ summary is that there has been bad faith involved, and a lack of candour. It isn’t really clear from the Court of Appeal ruling what amounts to bad faith. Yet what we have with Dotcom is first of all, unlawful surveillance by the GSCB. There is some evidence to suggest that this surveillance became known to be unlawful, but continued regardless.

Then there was an unlawful search and under New Zealand law, which could end up meaning that the fruits of the January 20 search are inadmissible. ( Warning : under Sec 30 of the Evidence Act the court can choose to validate an illegal search. And there is nothing to stop the US from taking the GCSB evidence and using it in a US courtroom. ) Moving right along, the sequestering of Dotcom’s assets was also unlawful, with some suggestion this unlawfulness was also advised beforehand. As for candour…the fact of the known-to- be – unlawful GCSB surveillance was kept a secret from February 2012, until September 2012.

This sequence of illegality/bad faith etc of could be said to have tainted the process – ort at least should put the extradition judge on their mettle, and asking for validation. While these acts of commission and omission were not by the US directly, they were done by agents of the US acting on its behalf and at its request. Are those grounds sufficient for a judge to consider that enough evidence of bad faith exists as to make the extradition request seem unsafe ? Probably not, but the attempt may be worth making. Put it this way : repeated illegalities are not usually taken as a sign of good faith. And hiding a prime example of such illegality for six months is not usually taken to be a sign of candour.

For all the fine talk about the ‘comity of nations’ and our international obligations in the Court of Appeal ruling, many countries only spasmodically recognize the Golden Rule when it comes to extradition. ( Routinely, countries don’t do for others what they seek for themselves.) France does not extradite its citizens, although it regularly makes extradition requests from other countries, even for acts against French citizens that were not committed on French soil.

In the midst of rejecting the UK’s request to extradite Andrei Lugovoi, Russian President Dmitri Medvedev [pictured left] reminded the Brits : ”You have to learn to respect our legal framework. I would like to remind you article 65 of the Russian Constitution says a Russian citizen can’t be extradited for legal proceedings.” That hasn’t stopped the Russians from making extradition requests to Britain. The US is also a dab hand at the double standard. Try extraditing a US soldier for rape in Okinawa, or for criminal acts in Germany : the US tends to demand that it handle such matters itself, within its legal system, on its terms.

In Europe, the pendulum is be swinging back towards national autonomy on extradition, now that much of the heat has gone out of the post 9/11 climate. Serious human rights flaws are now being recognized in the European Arrest Warrant system that was passed in the shadow of 9/11 hysteria, in order to increase the speed and ease of extradition. Last month, the UK finally tabled a set of major amendments to its extradition laws aimed at restoring some balance to the UK system in the wake of several very high profile cases of injustice.

Andrew Symeou for instance, was extradited to Greece on flimsy evidence via a fast track process that exposed him to three years of maltreatment before he was found innocent. The UK computer hacker Gary McKinnon became another extradition cause celebre. In fact, the US request for his extradition incited such public anger in Britain that the Cameron government finally backed down late last year refused to extradite him, ostensibly on health grounds. Ireland has been particularly stubborn about refusing extradition. For instance last year, it rejected a request from France for the extradition of the chief suspect Ian Bailey, in a celebrated murder involving a French film-maker. The Ian Bailey case may be of special interest to the Dotcom defence team. Good faith and candour were an issue here too. Not only was the extradition request by France rejected by the Irish, but an ongoing discovery process continues to uncover false witness statements and undue influence on the evidence by the Irish police. The extradition was also being sought without any firm commitment by the French to put Bailey on trial.

What these and other examples indicate is that the narrow and traditional approach to extradition taken by the Court of Appeal may no longer do. Such a ruling could have been made 30 years ago, given how it ignores what we have since learned about the frailties and the unreliability of prosecuting agencies, and the ease with which the human rights of the defendant can be swept to one side in the name of brisk expediency.

Finally, here is an example of where a clinically detached argument on extradition can end up. Fittingly, it is from Canada. Justice Arnold’s prior experience as a legal academic in Canada may explain why so many Canadian examples crop up in the Court of Appeal judgment to support the conclusion that the scope of an extradition hearing should be kept narrow, and that the record of the case should not, and need not be supported by an extensive amount of evidence. His examples do not include the 2011 Canadian extradition case involving Hassan Diab [pictured left] – even though the presiding judge considered many of the Canadian precedents mentioned in the Court of Appeal ruling ( eg the Shephard, Ferras, and Michaelov cases)

The reason why Diab is interesting is that it envisages a more extensive role for the extradition hearing – before concluding that even though the subsequent evidence divulged is unreliable, Diab should be extradited to France, anyway. Lets consider the rationale given for a more active, analytical role for the extradition judge, at paras 141-142 :

In an extradition case involving circumstantial evidence the judge must weigh the evidence in the sense of assessing whether it is reasonably capable of supporting the inferences that the requesting state is asking the court to draw.

Before reaching that point though, the Diab court felt obliged to sift through the evidence presented in the case summary as to whether there was enough reliable evidence left in the basket to justify extraditing Diab for trial in another country. At para 139, we find this :

It contemplates a two-stage process. The court determines firstly whether or not evidence in the ROC is available for trial [eg in the Dotcom case, what, if any of the illegally gained GCSB evidence is admissible at trial] or is manifestly unreliable, then considers the remainder of the evidence in determining whether or not to commit the person sought.

Clearly, an active two step process of this sort isn’t putting the onus on the defendant to prove the evidence is unreliable or that there has been incompetence or bad faith by the requesting state. Yet incredibly, Justice Maranger found that even though his investigations revealed that much of the evidence against Diab was unreliable, the rules governing extradition left him no room to do anything other than send Diab back to France. Here’s how he concluded at para 191 :

The fact that I was allowed to scrutinize the report to the degree that I did, together with the lack of other cogent evidence in the ROC, allows me to say that the case presented by the Republic of France against Mr. Diab is a weak case; the prospects of conviction in the context of a fair trial, seem unlikely. However, it matters not that I hold this view. The law is clear that in such circumstances a committal order [for extradition] is mandated .:

Do we really want the Dotcom case to end up with this same kind of travesty? One where, in line with the Court of Appeal argument, the judge at the extradition hearing feels that his role is so necessarily limited that he must send the defendant back to face trial, even on the basis of dodgy evidence? As it happens, France still hasn’t decided whether to put Diab on trial anyway. One wonders what guarantees the US has given – or needs to give – to New Zealand as to whether the US will ultimately put Dotcom on trial. Not that our extradition hearing here could hope to get any meaningful commitment on that point anyway. The US may be intending to let Dotcom and his colleagues cool their heels in a US maximum security jail for years, while its prosecutors decide whether the evidence really is strong enough to take them to trial. Our extradition hearing – at least in the form envisaged by the Court of Appeal – seems unable to prevent New Zealand from being an accomplice in that kind of charade.

In striking a better balance, our Supreme Court would have to devise a formula whereby the extradition hearing remains something less than a trial, but is something a good deal more than an administrative rubber stamp – and where all the assumptions about efficiency, good faith and candour (or lack of same ) are not tossed over to one side of the fence. Globally, the trend appears to be towards more substantive extradition hearings. In late March, I interviewed Lord Nicholas Phillips of Worth Matravers, the recently retired Chief Justice of the UK Supreme Court about where the trends in extradition law are headed. ( One of Phillips’ rulings features prominently in the Court of Appeal’s judgment on Dotcom’s extradition. ) Given that the criminality of some kinds of commercial fraud, copyright abuse etc. are no longer clearcut, did Lord Phillips think it inevitable that extradition hearings will need to become more substantive ?

“I think they certainly have become more substantive,” Phillips replied. “Extradition has always been a difficult area. In the old days, you could challenge the case being made against you by the country seeking to extradite you and say there’s no primary facts to justify the charges they are making and in England, there would then be an investigation of that, before an English court. That’s all changed now and the English court is really required to take on trust the fact that there is a case against the defendant. To that extent, the exercise has become less complex. But that has been balanced now by attacks on human rights grounds…”

In the Bow St Magistrates Court case cited by our Court of Appeal, Lord Phillips likened extradition to a criminal procedure, but one of a very special kind. So how did he think it differed? “ Criminal proceedings fundamentally involve proving the facts that will demonstrate guilt beyond reasonable doubt. In an extradition hearing, that exercise is not done at all. The extradition hearing is really involving public law, not criminal law. So you have to look at the relevant Convention under which extradition is being sought, see what its requirements are, and see that they are satisfied.” At the same time, he said, there’s an added requirement to acknowledge the defendant’s right to family life – before uprooting them – as is guaranteed them under sec 8 of the European Convention on Human Rights.

Right. And before people are uprooted from their families, surely there has to be proven substance to the extradition request, since it isn’t just a matter of seeing the paperwork is in order and giving it a rubber stamp, is it? “No, it isn’t. Although that’s part of it.” So what’s the test that the infringement of liberty has been balanced sufficiently against an evidential requirement? Again though, Phillips was unwilling to let the extradition hearing go very far down that road. “The evidential requirement that goes to the case being made against the individual is not re-investigated in the country that has received the request for extradition. We under European law have to accept that if country A is seeking extradition on a particular charge, that there is case on the facts against that individual, barring bad faith..”

That doesn’t meet the human rights of the defendant though, does it? Phillips agrees, but accepts it is the current situation. “The country from which extradition is requested is to some extent, ticking boxes. Because the fundamental principle is “ Trust your neighbour. Trust your neighbour to have done their homework properly in deciding whether there is a case that justifies extradition. You don’t review that. “

Oh really? Given the failings of security and enforcement agencies since 9/11, doesn’t the “Trust us, we know what we’re doing“ approach now totally lack public credibility? “Well you’re right,” Phillips replies. “And not everyone is convinced that all our neighbours justify the faith that we’re putting in them in this respect. But that really, ultimately, is a matter for a government to decide when signing up to a treaty. Once they’ve done so, the international obligations are there.”

That – unfortunately – is the hook on which Dotcom is currently being hung. His rights to freedom and family life and to reside here aren’t very well protected by our current extradition law and practice. Somehow, he has to convince the Supreme Court that in this day and age, putting more meat on the skeletal evidence currently available to him will far more accurately satisfy the needs of justice.

ENDS

by Alison McCulloch
Photo images courtesy “The Green Chain”/Scottie Productions.

It’s the shocking workplace tragedies like Pike River that get the big headlines – and Royal Commissions – as of course they should. But year after year, decade after decade, a drip, drip, drip of unnecessary injury, illness and death goes on, each case treated as an outlier, an individual tragedy, not something representative of a wider systemic failing. The same, too, can be said of environmental disasters, like the wreck of the Rena, the Ivon Watkins Dow dioxin legacy in Taranaki, pollution in Lake Horowhenua, Te Aroha’s toxic Tui mine. That list, too, could go on.

And while each does spring from its own time and circumstance, one thing they tend to share is a built-in power imbalance. One that too frequently leaves the belated fight for recognition and clean-up largely to individuals and small communities – who find themselves facing determined businesses, reluctant governments and fellow citizens worried that doing the right thing by worker safety and the environment will come at the expense of their jobs.

The fear of job losses is no surprise. It’s the primary and most effective argument made by those in Government and industry who oppose any increases in protections that might impact the bottom line. It was there again just last week as debate continued in Parliament on two legislative initiatives aimed at speeding the way for fresh mineral and energy exploitation projects – projects just like the mine at Pike River.

“This is part of the Government Business Growth Agenda to grow the economy,” National’s Sam Lotu-Iiga told the House on 21 March. “It is something that this country, our fellow countrymen and women, are in agreement with and support.” Lotu-Iiga was speaking in support of the new Energy Minister Simon Bridges and the Crown Minerals (Permitting and Crown Land) Bill he inherited from his predecessor Gerry Brownlee, which was up for its second reading. That bill is designed to promote minerals and energy exploration and extraction by, among other things, giving the Energy and Resources Minister a bigger hand in mining decisions at the expense of the Conservation Minister, based on an expanded “economic benefit” test. (In the wake of the Pike River report, the legislation was amended to include some tougher language on health and safety issues.)

The second “Growth Agenda” initiative currently under discussion is the Government’s long-awaited reform of the Resource Management Act, which will fast-track some resource decisions, and give ministers more power to weigh in on projects they consider economically important. That legislation is now before a select committee where, also on 21 March, the Law Society weighed in with concerns that the proposed changes could harm the quality of local decision-making and breach “the rules of natural justice”.

As this political debate over growth, jobs, “red tape” and regulation continue in Wellington, the view from the regions is often quite different. At any one time in most parts of the country outside the main centres, numerous front-line struggles over just these kinds of issues are being waged. They are complicated and impassioned, not conducive to the sound-bite, take forever and usually have little impact on city dwellers.

In the Bay of Plenty region alone, there are concerns about deaths and injuries in forests and on the Tauranga wharves; there’s the on-going Rena clean-up and a looming battle over disposal of the wreck (a full RMA process is promised even as the RMA itself is on the chopping block); and, despite that maritime disaster, the Port of Tauranga has just won over its objectors and been given the green light to dredge and expand the port and its narrow entranceway to accommodate super-sized container vessels more than 100 metres longer than the 236 metre Rena; out on East Cape, meanwhile, members of Te Whānau ā Apanui and others recently took to the ocean in boats to oppose off-shore exploration plans by the Brazilian oil company Petrobras (shelved for now); while last year, the region came off pretty badly in the Environment Ministry’s survey of freshwater beaches with around 40 per cent of its 44 monitored freshwater recreation spots being rated unsuitable for swimming; on the good news front, progress has been made toward cleaning up Lake Rotorua; but, just next door to the Bay of Plenty, several groups of Waihi residents are in the midst of their own RMA fight over plans to mine underneath the eastern side of town, while those farther up the Coromandel Peninsula watch as mining permits continue to be granted, including on conservation land.

Then there’s Joe Harawira (Ngāti Awa, Ngai te Rangi), the face of one of the biggest health and environmental struggles the Bay of Plenty – if not New Zealand – has seen. One that is both inspiring in pointing to a community success story, and sobering in how long the struggle has lasted and the toll it continues to take on those involved. It’s a case that says a lot about the yawning gap between legislative and political rhetoric promising health and environmental protections, and the reality on the ground, and it highlights the sometimes insurmountable obstacles community-level advocates face – whatever the regulations say.

It took Harawira and his group Sawmill Workers Against Poisons (SWAP) more than two decades to win recognition of their claim that the many years spent working with toxic chemicals (particularly Pentachlorophenol, or PCP) were the cause of their myriad and debilitating health problems, and that the mill waste that was dumped in sites around their hometown of Whakatane (often as landfill at marae) posed a threat to the health of the community.

Harawira first realised all was not well in 1982. He was a fit guy, a rugby fanatic who spent half his life in gyms. He even used to run to work at the mill and run home again in his big hobnail boots. “I was running to work one morning and I just collapsed on the road, I just dropped on the road for no reason at all and then I went to haul myself up with a whole lot of difficulty and what I didn’t realise was my hip had jumped out for some reason,” Harawira says. “Then I knew I was in trouble, so I turned around to hobble back home and the blimmin thing come into place again.”

Harawira marks that incident as the beginning of his journey. The twists and turns and obstacles that followed are quite simply too numerous to count, and there are surely more ahead. (One excellent telling of the story is the 2011 award-winning documentary, The Green Chain [or extract here]; another can be found in a research paper by Dannielle Moewai Jaram.)

When he hung up his boots in 1992, Harawira had been working for 29 years in the mills where, from the 1950s to 80s, PCP was used as an anti-sap stain fungicide timber treatment. It has nearly killed him twice, he says, and left him with an array of health problems. “Half my body is shot now. My pancreas is shot, my kidneys are shot, I have one dead arm, everybody thinks I’ve had a stroke. And all my joints, my whole body up to here, up to my neck is shot.” He’s also been diagnosed with type 2 diabetes. But Harawira, who is 67, considers himself fortunate. “Last year was the highest of our mortality stats per year,” he says of his fellow sufferers. “We lost 27 people last year. When I first started on this little journey here over 30 years ago, we were averaging about 1 or 2 a year. At the turn of the century, the year 2000, it climbed to 12 to 18, and just last year 27.”

Harawira says here he’s counting only those deaths linked to PCP exposure. And while the extent to which the current death rate is higher than average remains the subject of on-going research, a 2005 study did show elevated mortality among exposed sawmill workers. That study, carried out by Massey University and released in 2008, looked at around 4,000 people who worked in the industry from 1970 to 1990 and found higher death rates among exposed workers from respiratory disease than the general population. The researchers also compared mortality within the industry, between sawmill workers exposed to PCP and those who were not, and found a 40 percent higher risk of death from cancer, and a nearly 300 percent higher risk of death from respiratory disease.

Why did it take so long for a problem so severe to be recognised? Harawira believes it was in large part because of who was affected: a blue-collar workforce comprising high numbers of Māori and Pasifika workers. “In the timber industry it was easy to get jobs at that time, and people like me with no educational background, blimmin hopeless at school, sort of stuff, managed to get jobs there,” he says. These were the workers who wound up facing officials, politicians and specialist academics. The reaction could be dismissive, or, as Harawira puts it: “Who are you people to know about this, that and the other?”

Harawira emphasises he and the other members of SWAP came at their campaign from a life experience perspective – not an academic or “desk-top” one. For him, it was also important to be recognised as tangata whenua, as someone who was of and knew the land. When confronted with experts and politicians who wanted hard scientific proof, that counted, he says, for “probably zero”. But of course he did know the land.
“I think my generation would be the last generation back home where we actually lived off the land, truly lived off the land. Where we grew our own stuff, milked our own cows and all that sort of thing. I guess to put it even more precisely really, I believe my generation was also the transitional period between the draft horses and the Massey Fergusons and the David Brown’s and all that – the tractors. Because when I was growing up my whole family, we used horses to plough up our fields and weed the acres and acres of gardens and maize.”

It took time, but Harawira’s approach did gain ground and is now paying dividends. Since 2008, when the government officially recognised the workers’ concerns, a health facilitation service has been established, and clean-up efforts are under way both of which combine Western science with Mātauranga Māori. “They’ve still got us jumping through hoops,” Harawira says of the authorities, “but we are progressing”. What the facilitation service offers is our own doctor, we’ve got our own coordinator, we’ve got our own administrator and we’ve got nurses that are attached to this whole set up as well. Our doctor has been tasked to substantiate the health issues – or the causes, if you like, of our health issues so he’s been with us now just over a year and I guess it’s fair to say now that what he’s collated over that first year is, there’s a definite trend there.”

And the effort has moved well beyond Whakatane. “My group, along with the attachments that the government has given to us, we look after the whole of the Bay of Plenty, South Waikato and we’re just moving into Taupo now. The Ministry of Health looks after the rest of the country, so this is a national thing – workers exposed to chemicals within the industry.” (Harawira says there were around 900 sawmills across New Zealand using PCPs, with potentially similar problems to those caused by operations at the Whakatane mill.)

Hearing him tell it, it almost seems as if the regulatory environment was irrelevant to the struggles of SWAP. “This was all hinged on building up trust, building up respect, building up relations with the appropriate personnel, if you like, hence my little statement that it was, for us, it was about bringing together the Mātauranga Māori element, Western science, medicine and people to determine the diagnosis of chemical sensitivity, whether it be for the health of the people or whether it be for the health of the environment. They needed to remain together. Basically they’ve actually recognised that, too. That’s the good part now. I don’t mind jumping through hoops as long as we’re progressing. Inch by inch, yard by yard. It’s better than taking two steps backward, to take one step forward.”

There was no blast that suddenly took the health of sawmill workers like Joe Harawira and their families. They’ve suffered, and in some cases died, slowly and quietly, behind the scenes. There’s been no Royal Commission of Inquiry into what happened to them. And the same can also be said of so many other unnamed and unknown health and environmental problems, the ones that creep up on people, and are nigh on impossible for individuals or communities to document and prove.

Whatever regulatory regime emerges from the current Parliament – and the post-Pike River health and safety task force, whose report is due in April – the case of Joe Harawira and SWAP shows that it takes much more than rules on the books and promises on the floor of the House to keep workers and the environment safe from harm, or to fix them when the harm has already been done.

END

by Peter Dyer

We were lost. Ten years ago on a night in Dunedin, Louise and I were tourists from California. I asked two men walking toward us how to get back to Carroll St. The one on the left had a question of his own: “American?”
“Yes”, I answered. To New Zealanders, my whakapapa was clear as soon as I started talking. Just as clear that night–this man was drunk. “I hate you”, he said. “Um…”“No, I don’t hate you–I hate your government. I wish somebody would drop a neutron bomb on fucking Washington, DC.”

It was 11 March 2003. Though I was startled by this man’s bile, it wasn’t a complete surprise. Back home powerful people had been preparing for over a year to wreak havoc in Iraq. Very soon they would get on with it. In fact, the killing had already started–American and British air strikes had been “softening up” Iraq for a couple of weeks–though the brunt of the massive US-led assault would begin nine days later, on 20 March.

I didn’t like it, either. Though I knew better than to engage a drunk, I made a foolish and feeble attempt. I was unhappy about the situation myself, I tried to explain, before the man’s partner said “Sorry, mate” and pulled him away. Louise led me in the other direction, properly berating me for my poor judgment. Better to focus ahead–we would spend tomorrow on the Otago Peninsula, tramping down to the beach, watching royal albatross and yellow-eyed penguins and touring Larnach Castle.

Sure enough, 12 March 2003 was glorious. Another wonderful day, 3½ weeks into a four-week tour. That month there was the constant joy of discovery. Underneath it, though, lay the shocking, deadly madness of the impending war. The duality mirrored and gave rise to our dual purpose: we were touring as well as looking for a new home. In the States we’d studied New Zealand maps and guidebooks, talked to the New Zealand consulate, watched New Zealand movies that had reached the States: Utu, The Piano, Whale Rider, Lord of the Rings.

Not much of an education, but we knew at least this: New Zealand was far away; it was a beautiful English-speaking country; and, most impressive, the New Zealand government and people had thus far resisted enormous pressure from the world’s most powerful country to participate in the upcoming carnage. It was time to learn more.
So we paid close attention from the moment we stepped off the “Gateway to Middle Earth” into the warm, moist air of a late summer Auckland dawn on Monday, 17 February. First impression: boats. Enormous, flash, extravagantly beautiful yachts–an opulent display of nautical mad money berthed along Viaduct Basin. It was the America’s Cup. Team New Zealand NZL 82 had lost the first two races to Alinghi SUI 64 but the general mood was still reasonably good. There was unease, but it was not grim. Not yet.

Auckland was lively that weekend. Not long before we arrived, we learned, 8000-10,000 people had marched down Queen St in concert with 6-10 million worldwide against the upcoming war. The next day my most immediate concern was more mundane: how to drive on the left side of the road through downtown Auckland, onto the motorway and all the way to Rotorua without injuring anyone or damaging the car. She’ll Be Right Auto Rental (not their real name but it might as well have been) had checked my licence, taken our $NZ and turned us loose with not a word of instruction.

They could have at least told us about the left-turning-traffic-give-way-to-oncoming right-turning traffic rule. Who knew? Not us.

Tuesday, 18 February—Rotorua. Rotorua was our first exposure to tikanga Māori. It immediately made a lasting impression, especially the drama of the karanga and the wero (challenge) and the dazzling audacity and passion of kapa haka. The next day there was another Kiwi challenge 14,000 kilometres to the northeast in New York City. New Zealand and a group of 32 other countries challenged the United States and United Kingdom to respect international law.

Three weeks earlier in Washington DC, President George W. Bush had once again falsely conflated Saddam Hussein with 9/11. A standing ovation, one of many during his annual State of the Union address to Congress, greeted his threat to invade Iraq with or without UN approval: ”Before September the 11th, many in the world believed that Saddam Hussein could be contained…. We will consult. But let there be no misunderstanding: If Saddam Hussein does not fully disarm, for the safety of our people and for the peace of the world, we will lead a coalition to disarm him.”

In New York, at an open UN Security Council meeting, New Zealand’s ambassador to the UN Don MacKay affirmed that (as phrased in the Security Council press release) “New Zealand did not support military action against Iraq without a mandate from the Security Council, and did not believe the Council would be justified in giving such a mandate at the current time.” Mr MacKay was well and faithfully representing his country. The day before, the New Zealand Herald reported a Colmar Brunton poll that asked: “Do you personally believe that the United States has presented sufficient evidence that Iraq possesses weapons of mass destruction to justify a US-led war in Iraq?” 71% said no, 19% said yes and 10% didn’t know.

Back in the Hauraki Gulf: more drama, increasing gloom: Team New Zealand was beaten by 23 seconds in race # 3. In a blog from the time, “Possump” wrote: “Much slashing of wrists. Supplies of blades and knives at a premium…Pretty dire situation but there are still races to go. I need a cup of tea and a lie down”.

Saturday-Sunday 22-23 February—Wellington. A headline in the Business Section of that weekend’s Dominion Post read: “Kiwi hits a new high against US.” The story began: “The New Zealand dollar is at levels not seen for nearly four years against the United States dollar. The Kiwi closed at US55.96c yesterday, its highest since May 1999…” We rode the cable car and wandered along the waterfront and through Te Papa. One thing was quickly clear: in this beautiful and compact city we were much better off on foot than in a car.

I think we brought a Dominion Post back to the hotel room. If we did, we might have seen the headline: “We can afford to go to war–Howard.”
Australian Prime Minister John Howard was willing to spill blood in a country that was not threatening the United States, much less Australia. That day he was offering the bloodless perspective of an accountant.

“Low debt will allow interest rates to stay low for longer and the budget will be able to manage the extra expense of a possible war in Iraq,” [Mr] Howard said yesterday….”The main thing is that our government debt to our annual wealth generation–that’s our gdp–is phenomenally low, and it’s going to be 3 per cent by the end of this year.’”

Monday-Tuesday 24-25 February
Two nights in Nelson were sandwiched around a day floating in a kayak above golden sand in the crystal water of Abel Tasman. Our guide apologised–the water wasn’t as clear as usual, since there’d been some wind recently that had stirred things up a bit. I was beginning to get the idea that Kiwis apologise a lot. Talking with this self-effacing gentleman in the ute on the way back to Nelson, the subject of the war came up. I used the word “arrogance”. The man, looking down at the floor, softly said, “That’s it, isn’t it? Arrogance”.

An editorial in the local paper, the Nelson Mail, printed a few days before we landed in NZ, read:

“US President George W Bush has failed to convince the United Nations that a war is justified. His case is flimsy and that is why so much of world opinion opposes him. If he cannot strengthen it, New Zealand must stand firm.”

Wednesday 26 February–West Coast. As we drove down the West Coast, the locals seemed no happier with the war than did the rest of New Zealand. The Greymouth Evening Star 19 March editorial read: “By serving his 48-hour ultimatum on Saddam and his sons President Bush effectively spelled out the death of the United Nations as we have known it for more than half a century.” The day after, in an article in the 20 March Westport News, Buller Mayor Pat O’Dea’s language was more colourful: “[T]he conflict should be between the politicians and the leaders. They should stand up and face each other at 10 paces and shoot each other. Dropping bombs on men, women and children is not my idea of fair play or human decency”.

On Thursday 27 February we crunched around Fox Glacier in crampons. On the same day, half a world away in Westminster, 198 MPs (including 121 Labour MPs) voted against Labour Prime Minister Tony Blair’s war strategy. The Guardian described the scale of the revolt as “the biggest within a governing party for more than a century”. One senior minister said, “Tony now knows he has to go along the UN route…” The senior minister had it wrong.

Friday 28 February was the day of the Collapse. Not the collapse of the peace process, though that was clearly imminent. Nor was there a collapse in New Zealand’s determination to abide by international law. Far more dismaying to a host of New Zealanders was the Collapse of the Mast. At 57 minutes into the fourth race, NZL 82 plunged into two large waves in succession. The mast snapped, collapsed, and the race was over.
Possump: “Bugger [weep] [weep] [weep] [weep] [weep] [weep]…[banghead] [banghead] [banghead] [banghead] [banghead]”

Saturday, 1 March was mostly spent preparing, in Queenstown, for the four-night Milford Track walk. The next afternoon, Sunday 2 March, we were part of group of 44 that boarded the bus for Te Anau. There were Asians (mostly Japanese), Australians, Brits, Canadians, Americans and Kiwis. At six, we Yanks comprised one of the smaller nationality groups.
The smallest group consisted of three Kiwis. They were the youngest, strongest and clearly most fit of the lot. This was good–they were the guides. For four nights we were 100% out of touch with the rest of the world. Our last bit of news before beginning our tramp up the Clinton River Valley was what by then seemed inevitable: Team New Zealand had sailed and lost the final race of the America’s Cup.

The mixture of Kiwis and Aussies in the Milford Sound group gave us our first glimpse into the cross-Tasman relationship. On the second night, as he did every evening, the lead guide Hamish outlined the following day’s (Monday, 3 March) schedule: at 7:30 AM sharp (“Not 7:35. Not 7:31”) we would exit the lodge and backtrack about 100 metres to a signed “T” junction. We would turn right at that junction, otherwise we would be following yesterday’s trail in reverse. Then, to make sure everyone got it, Hamish helpfully added, “For the Australians, the sign has big red arrows and small words with big letters”. After the laugh, one of the Aussies quietly asked, “Mate, how’d that last race go?”

We’d read about the Milford Track in books, seen the photos and heard people speak in near-reverent tones about the world-class vistas. We would have to take their word for it. Instead of gazing at miles of still-life sunlit bush and river valley, we were immersed (almost literally) in a dynamic, flowing, thundering display of what happens in a steep, undisturbed canyon in a rain forest when it rains.
We were never dry.

As the rain picked up and turned into a deluge, dozens of enormous cataracts appeared, plummeting out of the cliff walls and into the roaring Clinton and Arthur Rivers. As the rain lightened or stopped, they would slow–some to a trickle. Some even disappeared. It wasn’t much of a photo-op. What we could see was usually a hundred shades of moving grey, obscuring and then revealing silver and black waterfalls and cliffs. More than light, it was movement, sound, smell and chill. This may have been the only time in my life I’ve been cold, wet and happy. For the time being we were in another universe.

Being in another universe was a good thing. Here’s some of what was happening outside the canyon walls: on our second day, the US and UK bombed the Iraqi port city of Basra. Iraq claimed this “softening up” operation killed 6 civilians and wounded 15. On the third day, Tuesday 4 March, Coen Lammers, editor of the Ashburton Guardian, wrote: “
The Australians and Americans claim they are fighting for freedom and against terrorism. With that philosophy they should respect the right of a free and democratic nation to make up its own mind. Even if that does not suit Mr Bush’s international agenda.”

Though the polls indicated a large majority of New Zealanders was opposed to military action in Iraq without United Nations approval, it was not unanimous. The Taranaki Daily News that day disagreed with Mr Lammers: “Saddam is staring down the barrels of the most lethal fighting machine in history — with war’s conclusion inevitable — solely because he has defied and mocked the United Nations for 12 years. If this organisation is to continue to function, primarily, as the world’s police force, the time is far overdue for a conclusion to this sad and dreary saga.”

On the fourth day (Wednesday, 5 March) the Taranaki Daily News was likely to have been unimpressed with this report from the Guardian:

“France, Russia and Germany…raised the stakes in their defiance of Washington’s war plans against Iraq, vowing jointly ’not to allow’ a resolution authorising war to be passed by the United Nations security council.”

We retreated again–this time on Friday, 7 March–for a long weekend on Stewart Island. Retreat was in order: earlier that day, President Bush had given a rare prime-time television address indicating war was very close: “It’s now time for this issue to come to a head at the Security Council, and it will…Saddam Hussein and his weapons are a direct threat to this country, to our people and to all free people.”We enjoyed the peace and beauty of Stewart Island those three nights. It was literally the farthest we were going to get from the approaching American-made nightmare.

Tuesday, 11 March. We were in the final few days of our tour. After a walk along the coast near Kaka to Nugget Point, we turned north towards Dunedin. Somewhere in that city a New Zealander who was furious with the American government may well have already begun drinking…

Wednesday, 12 March. While we were touring the peninsula on our second day in Otago, US Defence Secretary Donald Rumsfeld wasn’t making things any easier for Yanks touring an anti-war country. The Guardian reported Mr Rumsfeld’s assertion that, because of UK Prime Minister Tony Blair’s “internal political problems”, the US was contemplating going to war alone.
That day, the Otago Daily Times published its “Letter of the Month”. In the letter, Mr Charles Pigden of Burkes compared US National Security Advisor Dr Condoleezza Rice to a “she-ogre”, urging her to withdraw the threat of an American attack on Iraq. “That way”, he wrote, “people might stop thinking of her and her government as a collection of ogres”.
I decided not to write a letter in reply, identifying myself as an American and saying I was as unhappy about it as Mr Pigden.

That evening in our rental car, “She’ll Be Right” caught up with us. In my ignorance, I made a left turn, asserting a right-of-way in front of an oncoming right-turner. The driver was, to use an Americanism, seriously pissed. His horn blared loud and long at us clueless scofflaws. We were baffled. Though we thoroughly enjoyed Dunedin, we had inadvertently managed to enrage at least two locals. The next morning, without further insult or injury (that I’m aware of), we continued north for our last stop–Christchurch.

The Super 12 was on. That Friday 14 March, the Crusaders were hosting the Chiefs. Finishing up our tea in a cafe on Cathedral Square we pondered a visit to Jade Stadium. It was only about 20 minutes into the game. Rugby was completely new to us. It was fascinating–so much more fluid and faster moving than gridiron. The lineouts were particularly impressive. Never before had we seen human beings jump so high…

We lazily opted for Plan B, walked back to the motel, turned on the TV and watched Waikato put up a good fight but lose 36-29. Concerning the upcoming fight in Iraq, the Press was probably the most prominent NZ newspaper to hold the minority view. In the 19 March edition, the editorial accepted President Bush’s “…comparison of the United Nation’s long tolerance of Saddam’s flouting of its resolutions with the appeasement of dangerous tyrants in the 1930s which produced global war.” Mr Bush, the editorial asserted, “…was correct to argue that the question at issue in his war call is not one of authority but one of the will to act.”

On the other hand, on the day of the Super 12 match, the Horowhenua-Kapiti Chronicle contrasted the imminent invasion with the 2001 US invasion of Afghanistan. Now, in 2003, a “…crisis of confidence has occurred because this time the US is so clearly the aggressor through failing to furnish proof that Iraq represents a clear and imminent threat.”

The next day, Saturday 15 March, we flew home to California. The war was coming–our government was responsible, and we were sick at heart.
Sunday 16 March. We picked up our dog at Louise’s sister’s house. The family was deeply split politically and the in-laws were aware of New Zealand’s stance on war with Iraq. Conversation was superficial. There was little doubt, though, that these rellies approved of the ultimatum to the world President Bush delivered that day from a press conference in the Azores: “[T]omorrow is a moment of truth for the world. Many nations have voiced a commitment to peace and security. And now they must demonstrate that commitment to peace and security in the only effective way, by supporting the immediate and unconditional disarmament of Saddam Hussein. In other words, the “only effective way” to demonstrate the commitment to peace and security was to start a war.

Back in New Zealand, Lower Hutt Mayor John Terris was of a like mind to President Bush, though he put it more bluntly. The 17 March Ashburton Guardian reported: “…Terris stands on the other side of the fence and has declared the UN “a bunch of useless wallies”.The next day, Tuesday, 18 March, Parliament debated, for the first and only time, the merits of the Government’s position.

Prime Minister Helen Clark opened: “New Zealand’s position on this crisis has at all times been based on our strong support for multilateralism and the rule of law, and for upholding the authority of the Security Council…. It is a matter of profound regret to us that some of our closest friends have chosen to stand outside the Security Council at this point, for a new and dangerous precedent is being set. It may be possible to justify one’s friends taking such action, but where then is our moral authority when other nations use the precedent that is now being set?”

National’s Bill English then spoke, echoing President Bush’s statement two days previous: “The National Party will be supporting a coalition of the willing. We believe that it is in the interests of global peace and the long-term interests of New Zealand to see Saddam decisively disarmed”.
Winston Peters, of NZ First, complained bitterly about the ‘high-handed tactics’ of the Prime Minister and asked why it had taken until the very last days before war for Parliament to have the opportunity to debate this critical issue.

He then lined up with the Government: “[W]hat we cannot support, and we have made it clear from day one, is a unilateral decision by one group of countries to invade another, for the terrible precedent that it might set.
Richard Prebble, of ACT, then sought leave for a motion of support for the war: that “…this House disassociates itself from the New Zealand Government’s position at the United Nations…and calls on the New Zealand Government to offer all practical support to the “coalition of the willing”. The motion was supported by National and ACT. Labour, NZ First, the Green Party, United Future and the Progressive Party joined to defeat the motion, 84 to 35.

On the day before the invasion, 19 March 2003, the Timaru Herald was passionate and acerbic: “Why not just cut out the middle man and start preparing for a march on Pyongyang, Teheran, Damascus, Tripoli . . . Anything goes when the policeman starts setting his own rules.”

Ten years ago, on Thursday, 20 March 2003, “Operation Iraqi Freedom” began. The dismal statistics are well-known: in the coming years the war would, by conservative estimates, kill over 100,000 Iraqi civilians (and over 4400 American soldiers) and create over 2,000,000 Iraqi refugees.
No weapons of mass destruction were found, nor was there ever any evidence of a pre-invasion Al Qaeda presence in Iraq. On the day of the invasion the Otago Daily Times wrote: “Peace was America’s gift to the 20th century. Fear risks being its legacy to the 21st.”

Footnote : Louise and I settled in New Zealand nine months after the invasion, in January 2004. We chose to shift to New Zealand primarily because of New Zealand’s honourable and remarkable refusal to join “Operation Enduring Freedom”. Part of the draw, as well, was a beautiful country with a small and friendly English-speaking population.

The war divided our families. Ten years later we are on good terms with all of our US friends and with most of our relatives. However, a few of our nearest and dearest, even some who opposed the war, have never come to terms with our decision to leave. There is anger that may never be resolved. We have had dual citizenship since July 2007. Though our primary focus is here, we still watch the US headlines.

Living outside of the US has highlighted for us the impact that decisions made there have on the rest of the world. Thus, we’re aware of the privilege and feel the responsibility of voting in US national elections perhaps even more keenly than before. We continue to pay US federal income taxes. We miss our good friends and loved ones in the States, and visit them when we can. We have no plans to return permanently. New Zealand is now our home.

Tremaine’s View–Editorial cartoon, Otago Daily Times 12 March 2003

by Gordon Campbell

On the eve of the invasion of Iraq, it was said to be all about oil. Saddam was just the excuse. The conspiracy theory said the US wanted to get its hands on one of the biggest oil and gas deposits in the world, for the benefit of Dick Cheney and his oil industry friends in Houston. If that was the intention – and it certainly was part of the White House self funding plan that profits from Iraqi oil would be used to offset some of America’s costs for the invasion – it has been a spectacular failure. By accident or design, the control of Iraq’s oil is still very much in Iraqi hands. Like most things in Iraq over the past ten years though, it hasn’t been a pretty story.

Any way you measure them, Iraq’s oil and gas reserves are a fabulous treasure. Here’s how the BBC recently painted the picture:

Iraq is the world’s third largest oil exporter, behind Saudi Arabia and Russia, and is expected to produce 3.6 million barrels of oil per day during 2013. Output before the US-led invasion was about 2.8 million barrels a day. The country stands to earn almost $5 trillion in revenues from oil export by 2035, an average of $200bn a year, according to the International Energy Agency (IEA).

Leave aside for a moment the question of which Iraqis – and which Kurds – currently benefit from the oil revenues. Back in 2003, as Glenn Greenwald recently documented in the Guardian, oil was definitely on the White House invasion agenda.

In terms of the original conspiracy theory though, the most interesting outcome has been that very little of the Iraqi oil has come under the control of US and other Western oil companies. A few weeks ago, the Financial Times pointed this out in its recent report on the Iraq oil industry:

When Iraq held its first postwar oil licensing round in June 2009, groups like ExxonMobil, Royal Dutch Shell and BP flocked to Baghdad for what was one of the most eagerly anticipated events in the oil industry calendar.

At the fourth round last May, none of them bid. The poor attendance epitomises a general disenchantment with Iraq’s oil sector. The country was once the hottest ticket in global energy. But the widely predicted bonanza for western oil companies in postwar Iraq has failed to materialise. Political instability, poor contractual terms and infrastructure bottlenecks have sharply reduced the country’s appeal to Big Oil. Many companies have shifted their attention from the south to the semi-autonomous Kurdistan region, angering Baghdad… “People say that the Iraq war was fought over oil,” says Robin Mills of Dubai-based Manaar Energy Consulting. “But American companies are now almost absent from the Iraqi upstream scene.”

It is a deadly irony. Apparently, the political instability and violence set in motion by the invasion has effectively torpedoed the West’s plans to exploit Iraq’s natural wealth. The same instability has affected the repair of Iraq’s oil infrastructure, further impeding the rate of extraction. For 2017/2020, production targets are being scaled back to 9 million barrels a day, down from earlier, more optimistic estimates of 12 million barrels per day by that date. A further explanation for the hesitancy felt by foreign investors is the foggy legal status of the ownership and extraction rights and conditions. Basic questions of who owns the oil – regional governments, central government, and in what proportions? – remain to be settled by the Iraqi Parliament. Passing a law seems too hard, too explosive a project. As a result, even joint venture investment by foreign companies can be a risky undertaking.

If that hesitancy to invest characterises Iraq as a whole, it is somewhat less the case in the semi-independent region of Iraqi Kurdistan where – as the Financial Times reports “ The Kurdish regional government has signed 50 deals with foreign oil companies, including Exxon, Chevron, Total SA and Russia’s Gazprom Neft. Officials there want to raise production from about 200,000 barrels a day now to 1m b/d by 2015.”

Valuable, but still small potatoes. The vast wealth potential of Iraq’s wider oil and gas reserves remain relatively untouched. While Iraqis still do largely control what oil is being extracted, the benefits are not trickling down the social ladder. Pakistan’s Dawn newspaper for instance published an AFP article in late March under the downbeat headline “Iraq’s People Yet To Feel Benefit Of Oil Boom.” One reason for that is because the violence and political instability preclude the development of the service sectors on which middle class jobs and income growth can be built. Yet here’s the final, devastating irony: the main foreign beneficiary of oil industry development in Iraq seems likely to be China, not the United States. The Financial Times, again :

According to the International Energy Agency, a quarter of Iraqi oil, about 2m barrels a day, will be heading for China by 2035. “A new trade axis is being formed between Baghdad and Beijing,” said Fatih Birol, the IEA’s chief economist….But ultimately, the winner of the past decade has been the Iraqi state. The IEA predicts Baghdad stands to gain almost $5tn in revenues from oil exports to 2035 – offering a “transformative opportunity” for the economy. “It has secured a tremendous amount of investment and international help to develop its energy sector while giving away very little,” says PFC Energy’s Mr Alkadiri. “The Iraqis are well and truly in control of their own oil industry.”

China? How did that happen? It looks like another disaster for the Americans. Ten years on, we know the reasons for the Iraq war were far more incoherent than the original conspiracy theory had suggested. The March 20, 2003 invasion turns out to have been born out of a mix of political opportunism, willing credulity among the Bush administration at what it was being fed by Iraqi exiles, neo-liberal delusions of imperial grandeur, an irrational obsession with Saddam Hussein, psychological issues between Bush pere and Bush fils – and somewhere in there, Dick Cheney’s abiding interest in oil.

Subsequently, the invasion has killed and maimed hundreds of thousands of Iraqis, sent millions sent into exile, taking with them the skills and education that will take generations to replace. Women in particular have lost social and educational opportunities amid the rise of religious fundamentalismn abd –reportedly – thousands of widows have been rendered vulnerable to sexual exploitation and prostitution.

To the Americans, the likely financial cost has been estimated in the region of $2 trillion, vastly in excess of the fifty or sixty billion that was confidently projected on the eve of the invasion. And, it seems, China is now positioned to be the main foreign beneficiary of Iraq’s oil bonanza. What Dick Cheney and George Bush have wrought at the cost of vast amounts of American and Iraqi blood and wealth is the provision of energy security for its only rival as a 21st century superpower.

Add that to the domestic chaos that the legacy of the Bush-era tax cuts continue to wreak on the American economy, and one can readily regard the Bush presidency as a curse upon the planet.

by Rory MacKinnon

Here in Glasgow, the only mighty river power is the nuclear submarine fleet docked in the Clyde. But John Key’s breezy assurances about carving up New Zealand’s state-owned power companies seem ever more absurd, viewed from half a world away.

Admittedly they must look even more absurd up close back home too. The plan is going ahead, despite there being a consistent majority of the public against the sell-off, in polling conducted years apart: and as indicated previously on Werewolf the whole idea makes no fiscal sense either. And here in Britain, two decades after the Thatcher government smashed the electricity boards and privatised the shrapnel, electricity prices have become, for many, something that is literally a life-and-death issue.

Around a fifth of the country’s households are in a state of fuel poverty, meaning they need to spend more than 10 percent of their annual income just to keep their home at a safe temperature. Shivering within those walls are more than three million pensioners, and an estimated 1.6 million children. One in four households receiving a winter fuel subsidy cut their weekly food budget – already a meagre median of £27 – by more than a third during cold snaps just to tide them over. And as the government’s Fuel Poverty Advisory Group warned a scant few months ago, some 300,000 more households have joined them in the last year alone.

It is a lot of numbers, but the math really isn’t difficult. Between them Britain’s ‘Big Six’ retailers – E.ON, EDF, Npower, Scottish Power, British Gas and Scottish & Southern Energy – raised their gas and electricity prices by 6 to 10.8 percent last year alone. The year before they leapt a galling 15 to 19 percent, even as median household income actually shrank by 3.5 percent in real terms.

But if percentages aren’t your thing, you can also measure in lives. The Office for National Statistics also publishes an annual record of ‘excess winter mortality’, which – soberly and without comment – tots up the number of people who succumbed to cold-related illnesses. In 2011, 24,000 people died of the cold (this treated as a welcome reduction from 26,000 the year before). Figures for the winter just ended are still pending, but you get the picture. Those are just the deaths, mind you: it’s much more difficult to track pensioners who can’t bear to leave their beds or babies screaming themselves hoarse with bronchitis.

None of this passes without comment — but the stock response from any given press officer is that as private enterprises they simply must raise prices to ensure Investment and Security and other serious, frowny-face words. As Centrica CEO Sam Laidlaw said of their British Gas subsidiary’s double-digit price rise:
“People have to work out whether they feel energy companies need to make a return to invest, or whether they’d rather there was no investment and we had a less secure supply.”

However, after twenty years of vigorous, jostling free markets, Conservative energy secretary Ed Davey had to huffily admit last May that there hadn’t been much investment at all. In a terse foreword to their proposed energy reforms (a column all in themselves), he insisted privatisation had “delivered reliable and affordable energy”. Yet the industry had inexplicably forgotten to set aside enough cash to develop the renewable energy technologies that successive governments had promised, and now Britain faced “significant challenges” in the form of overwhelming dependency on volatile imported gas prices and bugger all to show for its climate change targets. A kind of ‘market failure’, if you will.

And yet the legislative response here – from Labour, Lib Dems, Tory and Scottish Nationalists alike – has been a ubiquitous cooing over the need for ever more arcane and expensive “incentives”. Their hands are tied, after all: these are publicly traded companies whose ultimate responsibility is to their shareholders, and private shareholders are responsible to no-one.

Make no mistake: even with every assurance of mixed ownership, National’s share float is by definition inviting a chorus of speculators who will agitate for short-term profits before the national interest, whether environmental or social. The entire UK energy sector is proof of this. And for every ‘mum-and-dad’ investor, real or imagined, there will be thousands more who can no longer afford to keep their children warm, let alone set them up with an investment portfolio.

The great shuck-off will ultimately cost lives. Controlling interest or not, it’s not worth it: two percent is too small a margin for error.

by Gordon Campbell

Philip Matthews’ regular film column will be back next month.

In the wake of this year’s Oscars, the vast sea of humanity seems to have fallen in love with Jennifer Lawrence, ranging from the grandfatherly generation – thank you, Jack Nicholson – right down to the tiny tots. Which raises the question of what the rise of Jennifer Lawrence may mean for the survival of the Manic Pixie Dream Girl. Can the likes of Lawrence and Jessica Chastain and Elizabeth Olsen and Elizabeth Moss succeed in breaking the mould in which so many young female actors have been trapped for the past decade or more?

Memorably, the Manic Pixie Dream Girl was first identified and defined by AV Club film critic Nathan Rabin as being “ that bubbly, shallow cinematic creature that exists solely in the fevered imaginations of sensitive writer-directors to teach broodingly soulful young men to embrace life and its infinite mysteries and adventures.” She is the screen incarnation of Woman As Elusive Mystery placed on this earth solely to make real men, of boy men. Does she have an inner life of her own? C’mon. Does a rainbow know its pretty?

At 22, the way that Lawrence is currently handling her fame may not be sustainable for long. Yet for now, her instinctive disdain for the conventions of film starlet responses is startling. It was evident last year, in her Letterman interview about the Hunger Games movie, but the real clincher came at her post Oscar press conference.

Normally, this is a context where female Oscar winners are expected to be (a) radiantly happy (b) gratefully humble (c) winsomely gorgeous as the assembled press pinch and prod them for variations on the agreed set of responses. Lawrence blew right past those expectations without pandering one bit, and managed to ridicule the idiocy of the questions and the occasion without seeming to try. It was admirable, and likeable without being ditsy. In the Daily Telegraph, one columnist was only half joking when she called Lawrence the future of womankind.

Naturally, a backlash has already been noted. Maybe she isn’t that great an actor they’re saying and maybe not that attractive. Maybe, the same snipers have suggested, she is this year’s Renee Zellweger, another non-conformist likely to flame out, leaving barely a trace behind.

Fairly or otherwise, Zooey Deschanel has been damned as the epitome of the Pixie Dream Girl. Never more so than in 500 Days Of Summer, in which she put Joseph Gordon-Levitt through love’s wringer and taught him a thing or two about life. So far, Elizabeth Olsen has escaped being typecast in the same way. The kid sister of the Olsen twins, she made her breakthrough in the impressive 2011 indie hit Martha Marcy May Marlene.

Currently though, Olsen can be seen in New Zealand cinemas in the film Liberal Arts, in which she plays an idealistic 19 year old sophomore called Zibby (sigh) who awakens our jaded 35 year old writer/director /star Josh Radnor from his midlife crisis, by showing him (notwithstanding an argument over the Twilight books) how to get out of the rut, and take a chance on life. Contrived as this sounds – and in précis it is a classic Pixie Dream Girl movie – there are at least a couple of things that redeem Liberal Arts, apart from Olsen’s own luminous screen presence.

For one thing – and I’ll try and avoid spoilers – Liberal Arts has a fairly interesting take on academic life, as experienced by different generations. For the Olsen character, university is a source of wonder and awakening. For the 35 year hero, it is a nostalgic playground of suspended – “stunted” is his word for it – adolescence, rife with nostalgia for a time when his own life seemed full of exciting ideas and genuine options. For the two senior faculty professors (played by Richard Jenkins and Alison Janney respectively) academic life is a gilded cage – offering one an arena for his beliefs that helps ward off loneliness, while for the Janney character, academia offers an endless supply of young men that enable her to make a cougarish mockery of the romantic poetry that she teaches. I’ll just mention in passing that Radnor steals shamelessly from Woody Allen’s Annie Hall/Manhattan period, complete with a Brooklyn Bridge interlude.

Lets assume Olsen signed for this role before the success of Martha, Marcy etc put her in another league. With not a lot of help from the script, she still manages to make the effervescent Zibby into a credible, three dimensional figure. However, does she exist mainly as a catalyst in our male hero’s life journey? Absolutely. And never more so than in a key scene between the two leads, which I can’t describe without spoilers. Suffice to say, the male hero’s moral code gets given far more weight and screen time than the (offscreen) impact his decision has on Zibby, who is painfully humiliated by the choice he makes. The trajectory of these two characters after this key scene is indicative of the sad lot of Pixie Dream Girls in general. His outcome is comic, sexy and redemptive. Her path looks much more painful, but left entirely unexplored. That’s what happens to Pixie Dream Girls. Their job done, they vanish like Tinker Bell.

You could also call Silver Linings Playbook a variation on the Pixie Dream Girl theme. David O. Russell’s film depicts an oddball romance between two mentally ill people, where their manic depression merely makes them more humorously interesting and vibrantly alive than normal people and their stuffy old social conventions. This time, they’re both Manic Pixies but once again, it is the woman who does the heavy lifting. It is she who pursues him, provides a tangible goal (a dance contest!) for his lonely existence, and it is she eventually motivates him to stop being delusional. This is a feel-good romance, and no complaints about that. It is also one where the heroine’s back story depicts has having been more of a Sleeping Around Beauty than a conventional fairy princess. It is she who plays the adult, until he finally stops being a Pixie Boy, and steps up. That’s an advance of sorts, I guess.

Much of the problem here – one that Silver Linings Playbook and Liberal Arts share with many other movies – is that the POV of the narrative is resolutely and automatically, male. Which means that the inner life of the female characters has to be inferred, and usually only in her relation to our hero. That’s an excellent reason why Martha Marcy May Marlene (Olsen) Hunger Games and Winter’s Bone ( Lawrence) and Zero Dark Thirty ( Jessica Chastain) are such a radically welcome respite. All of these movies are ones in which the inner life of the female characters (and the choices that they make) is the engine that drives the narrative – and not just in a kitchen sink, family centred context either, or in relation to the male lead – but in action narratives that were hitherto the sole province of men. In the Hunger Games, Katniss Everdeen ( Lawrence) even gets the opportunity to choose between two willing suitors and – even more dramatically – chooses neither of them.

Of all these films, Martha Marcy May Marlene is probably the one most removed from normal narrative conventions. Olsen plays someone who escapes from the confines of a cult and takes refuge with her sister’s family, only to find that the transition is immensely difficult. Not only has she been damaged in realistic (and off putting) ways by her experience, but she finds it increasingly difficult to relate to her sister, and to the “normality” of her sister’s worldview. Over time this renders her more, not less vulnerable to the malignant cult, as it reaches out for her again. It is a horror story, and one with a central character who engages and repels the sympathy of the audience in almost equal measure. It puts the audience in the position of the sister, feeling awkwardly and impotently protective as the bad stuff closes in. Olsen’s ability to convey her disturbed character is fully the equal of Joaquin Phoenix’s achievement in The Master, and Phoenix has had a lot more experience to draw on.

Can Olsen and Lawrence sustain what has been a dream run to date? Next up, Lawrence will revisit an Appalachian setting (for the first time since Winter’s Bone) in Serena, a period film set in 1927 that is based on the book by Ron Rash, who was in New Zealand last year for Writers and Readers Week. Lawrence plays a schemer who sets about wresting control of a small town timber business from the family of her husband, played (again) by Bradley Cooper. The director is Susanne Bier, best known for the Mads Mikkelson drama After The Wedding and In a Better World. In October, the second installment of the Hunger Games will be released in which – as fans of the book will know – Katniss Everdeen has to survive far more ambiguous and treacherous challenges, Right now, Lawrence is shooting an untitled film for Silver Linings director David O. Russell based on the 1970s Abscam political scandal, and co-starring Christian Bale, Bradley Cooper ( yet again) Jeremy Renner and Amy Adams. No sign of Pixie Dream Girls in any of those roles.

As for Olsen, her next major film is in the period drama Therese Raquin, based on the 1867 novel by Emile Zola. It deals with the tragic outcome of the title character’s attempt to escape the confines of a loveless marriage. That will be followed by Olsen’s appearance in Spike Lee’s American remake of the Korean cult movie Oldboy. Then comes Kill Your Darlings which is about a 1944 gay hate killing that was a formative episode in the careers of the young Allen Ginsberg ( played in this film by Daniel Radcliffe, of Harry Potter fame ! ) William Burroughs and Jack Kerouac. Kill Your Darlings premiered at Sundance this year, to generally positive reviews. Lets agree to ignore Olsen’s role in Very Good Girls with Dakota Fanning, about a ‘lets lose our virginity pact’ that two friends make, and which comes to focus (sigh) on the same cute guy.

In sum, there are a few encouraging signs that the Manic Pixie Dream Girl may have just about run her course. In future, will sensitive boy-men have to paddle their own canoes down the river of life? Late last year, Slate magazine ran a piece suggesting that this may indeed be the case. “Critiques of the MPDG,” Slate suggested, “may have become more common than the archetype itself.” Slate also linked to the clip below of a Manic Pixie Dream Girl Prostitute acting out scenes from the Zooey Deschanel and Natalie Portman show reel of wacky, life affirming muses. Anything to nudge the concept into oblivion.

by Laura Gribbon

Photo: REUTERS/Mohamed Abd El Ghany

From widely circulated images of Khaled Said’s brutalised body (in 2010) to the recent public lynching of two thieves in Gharbiya, the increasingly public use of violence and the aestheticisation of physical suffering has had a polarising effect on Egyptian society.

The Ikhwan (Muslim Brotherhood), many of those considered ‘felool’ (of the old order) and Egyptians of all classes, who are trying to go on with their everyday lives, are demanding greater stability and the strengthening of the rule of law. This is juxtaposed with a growing lawlessness, unrest and anger on the streets that no state official, police or military officer has been brought to justice for the deaths of over eight hundred in 2011, seventy-two during the Port Said massacre in 2012 (except two minimal sentences for police officers), and over fifty during the two-year commemorations of the revolution this year, making a mockery of the judicial system and state institutions.

The interpretation of tragedy and loss has reinforced affiliations and communities, both real and imagined. During the first eighteen days of the revolution in 2011 and the months that followed, images of dead heroes were used as a call to arms; a way of defining loyalties and strengthening opposition to the Mubarak regime and police. Since then, as narratives of victimhood and heroism have been performed and re-interpreted by various actors to numerous audiences, contentious claims have been made in the names of these political martyrs by state and religious institutions, as well as the public. ‘Ownership’ of the memory of Egypt’s revolutionary martyrs is being utilised to defend and attack the use of violence by the state and security forces.

Efforts to commemorate some of the most tragic events to date and re-enact scenarios that are still so painfully fresh in peoples minds have ended in further bloodshed, as performances of remembrance have reinforced anger and resentment against security forces and the state. The five-day commemorative event, ‘Eyes of Freedom’ (Monday 19 – Friday, November 23, 2012) planned to mark the one-year anniversary of the Battle of Mohamed Mahmoud in 2011 (during which many protestors lost their eyes), quickly turned into a new violent struggle.

President Mohamed Morsi issued a decree on Thursday, November 22, in effect putting his decisions above the law, which enraged oppositional groups and further fuelled the battle between protestors and police. Additionally, marches and protests organised from Jan 25 – 28, 2013, to commemorate the second anniversary of the start of the revolution, were marked with bloodshed. On this occasion, the courts released a controversial verdict on the Port Said massacre, referring twenty-one civilians to the Mufti (Egypt’s official authority for issuing religious edicts) for sentencing. They’ve since been handed the death penalty. Lawlessness and chaos followed, with police killing seven in Port Said during a funeral commemorating the deaths of thirty-one, who died protesting the death sentences of the twenty-one, who have been accused of killing seventy-four.

Such cycles of violence have been described by some as formulaic, staged cat-and- mouse attacks, between young protestors and police. State media and the Ikhwan have blamed foreign influence or written them off as waves of counter-revolution, in an effort to single out a new enemy, whether it be activist organisations such as April 6, Ultras (hard core football fans), the National Salvation Front (an alliance of liberal, secular and leftist groups) or the newly emergent Egyptian Black Bloc.

Protestors in black masks have been perceived by the state as violent radical outlaws. Yet such affiliations with the ideologies and tactics of anarchy, including civil disobedience, appear to be more indicative of Egypt’s current state of lawlessness than the cause of it.

Walking around downtown Cairo lately, it is apparent there are more self-appointed traffic officers and vigilantes than ever, and an increasing number of people are carrying around personal protection devices, such as knives and tasers; the latter now being sold occasionally by street vendors in Tahrir Square. This trend is not limited to opposition forces. The government recently drafted a law granting private security firms powers of arrest to support the Ministry of Interior.

Ambiguity and confusion is rife. Morsi publicly declared the Port Said dead as ‘martyrs’, before government-run newspapers blamed an arms-smuggling mafia, and seven out of nine indicted police officers were acquitted, effectively absolving the state of all responsibility for the massacre.

The regime appears weak through such schizophrenic attempts to deal with outbreaks of violent protest. A curfew initiated in the canal cities of Port Said, Suez and Ismailia was withdrawn hours after it was instigated, as people took to the streets in their thousands, showing a blatant disregard for Morsi and his laws.

Whilst recent battles between protestors and police are heavily reminiscent of scenes from the last couple of years, there are both similarities and differences in the emerging actions and strategies of those in power and ‘the street’. The state continues to re-enact the repressive tactics of the Mubarak regime, from the heavy use of tear gas and curfews to the arrest and torture of prominent activists and journalists. The Arab Network for Human Rights Information (ANHRI) has recently questioned the absence of security forces in protecting the CBC channel headquarters and Al-Watan, as well as the active targeting of journalists and media professionals by state operatives.

The barricading in of the Ministry of Interior with walls lays bare the intention of a weak regime to protect itself rather than its people. Likewise, the actions of the military and police, exposed by human rights groups and NGOs such as ‘No to Military Trials’, signifies the increasing desperation of the regime to hold on to power. The recent murder of twelve-year-old street vendor Omar Salah Omran by a military conscript in Cairo near the US embassy, and even more poignantly the cover- up attempts of fellow army officers, doctors and ambulance staff, shows the incompetence of the Morsi regime to deal with daily life in Egypt without resorting to violence and coercion.

Despite the chaos, opposition groups are learning from each subsequent wave of protest. As the state repeats its familiar tactics of repression, NGOs and activist organisations are becoming more adept at evidencing the brutality of the regime, from filming and capturing events on camera to uncovering and exposing false autopsy reports. Recent widespread civilian action in Port Said, ranging from government workers to microbus drivers, indicates a growing impatience that spans all sectors of society. It is common to hear people sitting in ahwas (street coffee houses) speaking of their latest plans to demand better conditions at work through strikes and walkouts. This culture of protest has been present in Egypt for years within certain groups and sectors, but now appears to be more prevalent.

The repertoires of resistance that Egyptians draw upon are constantly enlarging and developing. Strikes, sit-ins and marches are still commonplace, and effective to a greater or lesser extent depending on numbers and levels of violence. However, there are also battles being waged at every level of society, from campaigns to stop sexual harassment on the streets, to those promoting freedom of information and expression. Attempts by the regime to scare protestors into silence through targeted attacks and intimidation have continued to backfire. Organisations such as OpAntiSH (Operation Anti Sexual Harassment) have discovered that several survivors of recent mass rape attacks have resolved to help others cope with similar violent assaults, even volunteering in subsequent protests and marches.

The prolonged use of violence has divided society in many different ways. Not just along secular and religious lines, as has been heavily documented, but between the old order, institutions, and a heavily disaffected lower middle class, as well as between urban and rural areas. This has been particularly poignant in Port Said recently, where many people feel as though they have been scapegoated to ease the violence in Cairo.

As German political theorist Hannah Arendt argued, a group or state that utilises violence against its own citizens does not have the legitimate authority to maintain compliance without resorting to coercion or political terrorism. It also sends a message to its citizens that the use of extreme violence and terror is okay as a means to an end. Justice Minister Ahmed Mekky described the public hanging of two thieves on March 17, 2013 in Egypt’s Gharbiya governorate as indicative of “the death of the state”.

In this brutal incident, villagers beat the two accused, dragging them through the streets and hanging them from a tree, evoking the ‘Haraba’ penalty (the execution of anyone terrorising another to steal from them). Mekki suggests such lawlessness (he cites road blocks by citizens as another example) is a sign of the death of the state. However, does a state that uses the death penalty for civilians, tortures its citizens, and pays mobs to sexually assault men and women, not in some way sanction the use of violence against itself and between its people?

Such a cycle is hard to break once it has begun. Of course when speaking about violence and the state, one cannot ignore the endemic role of violence in the very formation of the modern nation state itself. Violence and the threat of violence has become a modus operandi for both democratic and autocratic regimes worldwide, depending on the extent to which the state claims a monopoly on violence and maintains legitimate support. The social acceptance of violence is often based on whether or not the state utilises methods that appear proportionate to the level of threat against it.

Narratives of threat, chaos and disorder have been used historically by both the Mubarak and Morsi regimes to justify the use of violence, and more recently to give credibility to the proposed use of Ikhwani militias. Many Egyptians support calls by the police for greater arms in order for them to prevent further bloodshed by baltageyya (thugs) and paid mobs. However, again society has been polarised over this issue, with others claiming the police force needs urgent reform itself before it can be trusted to use discerning judgement and reasonable force in dealing with such threat. There is still greater sympathy in Egyptian society for the military than Central Security and police, with many claiming the Ministry of Interior is the main problem and needs dismantling.

There are several indications the Morsi government is losing control over its security forces. Widespread police strikes and increasing vigilantism have led to calls by the attorney general for citizens to assist in the arresting of thugs, and the introduction of private militias would also seem to support this.

So, what is the way forward in dealing with this escalation of violence and the increasing polarisation of Egyptian society? On the weekend of the final Port Said verdict, many asked, “Where is Morsi?” Calls for ‘strong leadership’ and nostalgia for the rules of former presidents Sadat and Nasser have been voiced by various individuals, and increasing resistance to the Ikhwan can be felt across all levels of society. It has become apparent that the next wave of revolution is being waged, and will continue to be fought, outside of Cairo and Tahrir Square. The canal cities – Suez, Port Said and Ismailia, as well as Mansoura, Tanta, Mahalla, Alexandria and Sinai are all experiencing unrest, violence and acts of civil disobedience.

This battle is going to be a long one, and will result in further violence and bloodshed. However, as Arendt famously wrote, “… Out of the barrel of a gun grows the most effective command, resulting in instant and perfect obedience. What can never grow out of it is power [authority]” (Arendt, On Violence, 1969). As it was with Mubarak’s, the increasing use of violence by the Morsi regime will be its undoing. The greater challenge will be in establishing a legitimate state in Egypt that can govern with the support of such a heavily divided population without resorting to further violence.

This article is reprinted from the UK website Open Democracy
(Creative Commons) Attribution-Non-Commercial 3.0 Unported (CC BY-NC 3.0)

by Lyndon Hood

ere I asked to name a regret
I might mention that Andoulliette:
A species of sausage I might describe best in
terms of it main fillings: chopped-up intestine,
and other things which I forget.

You may well have heard this before
(It is something of an old saw):
That persons of delicate digestion ought
not give the making of sausage much thought
And not, similarly, of law.

The French have a phrase that will sit
quite well with that sentiment (it
is earthier, more practical): do not forget
that politics, much like the Andoulliette,
Should smell – but not too much – of shit.

Now, before we proceed any more,
I should probably settle the score:
The Andoulliette, though chewy, tasted quite mild -
Sausages and your truly are quite reconciled -
My regret is I haven’t had more.

ut I have a problem here still:
With one lot ideological-
ly claiming results that do not match their actions
While their foes chase their tail in search of some traction -
It’s the politics making me ill.

I hope that I don’t need to tell
You the efforts we make to compel
Some sensible folk to get into the tent
Of that bastion of privilege – the government.
For instance, we pay them quite well.

But a bar remains: Someone with the grace
To think due process has a place
Or decisions from evidence¹ that comes to hand,
If offered a place in our parliament as it stands,
Might rather chew off their own face.

No, rather than swallow all that -
Paving the environment flat,
And gouging the poor, taking away elections
(both ‘for our own good’) – I will swallow those sections
Through which a piggie once shat.

¹ Italics indicate foreign words or other concepts readers or Ministers may not be familiar with.

by Gordon Campbell

Politics and television merged quite some time ago. With the result that we now laugh for instance, at the quaint images of television news from the 1970s, which look so gormless and naive. At the time, the style was deliberate. The news was not supposed to look like an entertainment programme or like an ad. The starkness was its way of saying : “I’m real. Watch and listen. This is important.” That difference no longer exists. News, political events…are seen as an extension of programming, and are conveyed with the same techniques and melodrama as the ads.

No, this article isn’t a lament for some bygone age. It is merely an attempt to answer the question: why do people keep voting for some politicians, when its obvious they’re so bad for us? The obviousness is the interesting part. How can politicians be so incompetent and venal and self serving and still rate so highly in the polls? Part of the answer lies in the convergence. Politics is not only on television : it is television. Politics has opinion polls, TV has ratings. We consume politics the same way we consume Downton Abbey and Game of Thrones. We know its kind of crap – and we flatter ourselves that we can see that it is – but we don’t turn it off. As a result, Judith Collins probably has more in common with Tracy Barlow than she has with National Party politicians of even only 15 years ago, like Jenny Shipley. Point being, the failings of politicians are no longer disqualifiers – they’re part of a nightly narrative that’s character driven, not content driven. The flaws, foibles, and f***ups are all ingredients in the storyline.

That’s one reason why John Key’s failings don’t seem to affect his standing. Most of the time, they just make him seem like the daffy father on Modern Family. The recent takedown of David Shearer for his US bank account was a different version of the same process. No one really believes the subsequent attacks on Shearer made by John Banks, Banks least of all. The point was to erode Shearer’s outsider status, to blunt any residual ability he may have had to stand apart and above the normal political process. By screwing up on a point of morality, Shearer brought himself down into the usual narrative, as just one more venal character: the shady preacher you can’t trust. Not an unfair conclusion, either. When sitting down to tot up his list of assets did Shearer, could Shearer really forget he had that money? Or did someone in Shearer’s office figure that declaring $50,000 in an offshore bank account would sit uncomfortably with the Ordinary Dave character he was trying to establish in season one as leader? Would it be something better left as a second season reveal?

The point here is not that politics and TV are shallow and sound bitey, or that politics is about marketing. This isn’t an anti-TV tirade. It is more about the political implications of the old “medium is the message” maxim. Familarity may breed contempt, but omnipresence leads to acceptance and the erosion of the individual response. For example : the beneficiaries we know may not be bludgers, but that’s only a personal reality. They do tend to be presented as bludgers on television though, and that version has the weight of seeming the consensus view.

If politics = television then no wonder that political commentary is almost indistinguishable from TV reviewing. You certainly hear the same carping, and the same virulent dislike for the bogus, focus-grouped mediocrity that the public is spoonfed. No wonder most people ignore political commentary. It is either no fun, or when it tries to make politics fun, it is redundantly cynical. It is no accident that the blogosphere – which prides itself on being the political equivalent of HBO – calls traditional journalism the “mainstream media” and despises it so much. Too clueless, too many ad breaks. Surely free to air television and mainstream political journalism are dying on their feet, together? Anyone?

In reality, it sometimes seems as if the niche politics of the blogosphere and the mass politics of television barely cross over, if at all. Going back to the initial point – how can John Key /Stephen Joyce retain any credibility when they’re so patently clueless? And the answer is : they don’t, but it doesn’t matter as much as it once did. That’s because the likes of Joyce and Key have been the political beneficiaries of the major stylistic accomplishment of television advertising over the last 25 years : the inoculation of the medium with irony. Irony flatters the individual viewer/voter for their perceptiveness, keeps expectations usefully low, and immunises what’s on offer from criticism. Political cynicism is welcomed, in the same way that television actively invites a certain skepticism about its own dodgier efforts.

To the HBO wing of the political blogosphere, Key may be vain and shallow and Joyce may be a bag of wind who has failed hopelessly to foster economic growth – but that sort of detail is felt to belong on a “Making Of “ featurette, and not in prime time. In prime time, the politicians may well come across as awkwardly shifty political tools – but the nightly displays of their fallibility merely confirm the wisdom of having low expectations in the first place. Routinely, journalists function as enablers of that process. The process readily becomes a duet of cynicism, and not a genuine holding to account. That’s the evil genius of television politics, and media theorist Mark Crispin Miller described its elements pretty well in his “Divide and Conquer” essay way back in 1986. For “TV” read “politics.”

TV solicits each viewer’s allegiance by reflecting back his or her own automatic skepticism toward TV. Thus, TV protects itself from criticism or rejection by incorporating our very animus against the spectacle into the spectacle itself.

There is no known cure for this disease. Easy to say that we can switch off television (but we don’t) in a way that we can’t with politics, which is the reality show you can’t escape. Oh, you can vote people off the island, but the show goes on. Until…like even the most beloved of TV shows, governments eventually run their course, and get cancelled. (To be replaced by clones, or variations on a theme.)

Try as we may to bring it about, it is quite hard to imagine the political likes of an HBO hit in the Beehive. And if that did somehow happen, we could merely be doubling down on the cynicism. Tony Soprano, Al Swearingen, Don Draper and Walter White are all very well, but would you want them running the country? They’re not exactly Nelson Mandela. But then again, they might look after the assets and the economic growth better than the guy from Modern Family that we’re stuck with right now.

Footnote : What started me thinking about this was a particular version of the TV/political convergence : namely, male politicians crying in public. American politicians, that is. Here in New Zealand, we’re still a bit behind the trend on this one. Helen Clark getting tearful at Waitangi was the exception that proves the rule. By and large, we’re still more like Robert Muldoon, who after conceding defeat in the 1984 election said : “I’m not going to burst into tears or anything like that. This is politics. You win some and you lose some.”

Americans used to be like that, too. In 1972, the Democratic presidential front-runner Ed Muskie blew his candidacy at a press conference when he cried while making an emotional defence of his wife, who had been accused by a newspaper of drinking and using profanity on the campaign trail. Later, Muskie tried to say those weren’t tears, they were snowflakes melting on my face, but from then on, he was toast.

He wouldn’t be, today. Every American politician and celebrity cries in public now even – or especially – the tough ones. Last year on the campaign trail, Newt Gingrich cried about his mother. Rick Santorum cried before the Iowa caucuses, probably because he remembered how crying in front of the TV cameras before the New Hampshire primary in 2008 helped Hilary Clinton win over the female voters who swung the contest her way. Barack Obama cried, while thanking his staff last year, while Mitt Romney won praise by looking like he was about to cry when thanking his staff. Apparently, the Republican House Speaker John Boehner is a serial crier in public.

There really seems to be an epidemic of public lamentation among celebrities in America. A tough sports guy like Tim Tebow turned on the tears when he lost a game. Robert DeNiro cried when he tried to talk to Katie Couric
about his film Silver Linings Playbook. In fact when director David O. Russell showed DeNiro the script at DeNiro’s home, they cried together. Which is apt, given that co-star Jennifer Lawrence apparently had the same effect on Russell:

Jennifer made David O. Russell cry during her audition for Silver Linings. She made a grown man cry because of her raw talent and emotion.

It is not that celebrities and candidates for public office in America have suddenly become a bunch of cry babies, or that American men are now more in touch with their feelings. The real reason is that as politics and television have converged, emotion has trumped content yet again. Politicians have learned to behave like soap stars, and learned how to telegraph their emotions. Tears are political short hand, a visual soundbite. Politicians have felt impelled to posterise their inner life. Crying on cue means ‘I’m not a cyborg,’ all other appearances to the contrary. And as a politician, you better learn how to put your allegedly deepest feelings out there for all to see, or else you’ll go the way of Democrat Party candidate Michael Dukakis in the 1988 presidential debates.

Famously, Dukakis was asked by CNN’s Bernard Shaw a question along the lines of : you oppose the death penalty, but would you still oppose it if your wife Kitty was raped and murdered ? The clip of Dukakis’ measured response – which by general consensus, killed his campaign – can be seen here.

The explanation for why Dukakis replied as he did and paid the price that he did is discussed here:

Dukakis didn’t believe in capital punishment. He had seen all the studies and he didn’t believe it deterred crime. So should he throw out that principle because the hypothetical victim was now his wife? Is that what principles were all about? They were good when others’ loved ones were involved but not good when your own were involved? Dispassionately, he expressed his true feelings. And he was savaged for it. He was savaged for giving a sincere and unemotional answer instead of giving an insincere and emotional one.

Admirable enough, but suicidal. In the world of TV politics, the insincere emotional response gets to trump the sincere unemotional one every time. As indicated, there is no known cure for a disease which thankfully hasn’t yet taken full flower here yet. But it would be very interesting to see what a harried, tired John Key might achieve on the campaign trail next year, by wiping away a judicious tear about the effort he has been expending in trying (blink) to turn this country around.

by Gordon Campbell

Last year when I did a column on obscure soul music, a reader from Sweden wrote in to complain that I’d forgotten to mention Lee Moses. Good call. To make amends, here’s round two of obscure soul sides, and with Moses right to the forefront this time. Lee Moses was born in Atlanta, Georgia in 1941, and died there in 1997. A terrific singer, an innovative guitarist – Dan Auerbach of the Black Keys recently named him as an influence – and useful keyboard player, Moses had a recording career that began in the mid 1960s, but lasted only until 1973. For a while, the compilation album Time and Place brought together almost all of his music on the one terrific CD – but that’s now out of print, although Amazon does have one copy right now on sale for a mere $US298. The cover features both of the only known photos of Moses. Youtube is for now, pretty much the sole repository of his musical legacy.

1. Lee Moses : “Time and Place” “Bad Girl”
During the mid 1960s, Moses played with Jimi Hendrix a few times on the club circuit, and later recorded a worthy version of “ Hey Joe” in tribute. IMO though, the fantastic “Time And Place” is the best of Moses’ psychedelia meets Stax soul music mash-ups. Even so, “Bad Girl” is even more unusual, a lurching headlong marriage of garage band propulsion and soulful emoting. In it, the singer defends – even to his own mother Lord have mercy – the girl that broke his heart, and forgives her (“ She just wanted to be free”) while asserting the value of their original love for each other, to a world more than willing to blame her for what went down later. All of this in just over 2 minutes 20 seconds. Songs like “ Bad Girl” probably explain why Moses never found anything beyond a cult audience. Hard to imagine something like it on the radio even now, much less in 1968.

2. Lee Moses : “If Loving You is A Crime” “I’m Sad About It.”
These two are more conventional soul sides, but of no lesser quality. “If Loving You is A Crime (Then Give Me Time, Because I’ll Always Be Guilty)” pays some pretty obvious debts to Otis Redding in the gruff heartfelt vocal – within Redding’s oeuvre, its reminiscent of “ That’s How Strong My Love Is” – but this beautifully written and delivered track has a great lyrical conceit that Moses brings home with feeling. On the other hand, “I’m Sad About It” is a deep soul shuffle with a simple, urgent message about betrayal, remorse, and learning the hard lessons from heartache. You get the picture. She’s gone. He’s sad about it.

3. Lee Moses : “Hey Joe” “ Reach Out/Daytripper “

And finally, a 1971 version of “Hey Joe” completely different from the Hendrix hit, but fully its equal in the way it leisurely builds to a climax punctuated by guitar lines by Moses that doff a hat to Hendrix while pointing forwards to 70s funk. From 1965, there’s also a terrific Hammond organ instrumental version of the Four Tops big hit, combined with a similar keyboard workout by Moses on the Beatles’ “Daytripper.” The guy was a genius and yet died in 1997, completely unheralded.

4. George Perkins “ A Man in Love” Frank Turner “ All For The Kids”

Most of that first soul column I did on obscure soul focussed on Shreveport Louisiana, and its incredible contribution to deep soul. These days, George Perkins is best known for the eerie Martin Luther King inspired semi-hit “ Cryin’ In the Streets” that I linked to in the previous column. “ A Man In Love” is another brilliant Perkins track, a dignified meditation on love’s temptations and the havoc it can wreak. Perkins’ backing group the Silver Stars also turn up on Frank Turner’s “All For My Kids” – one of the few songs about the sacrifices that working parents make for their children. Rather than being sentimental about it, Turner testifies to how hard it is to sustain such dedication day in, year out.

5. Li’l Bob and the Lollipops “I Wake Up Crying” “I Got Loaded” “Nobody But You”

More Louisiana soul. Bob Camille cut some great sides as Lil Bob and the Lollipops, and here’s a pretty solid selection. The dreamlike “ I Wake Up Crying” is the masterpiece here, but there’s an amiable charm to Camille’s celebration of booze (“I Got Loaded”) and to his fine cover version of Dee Clark’s oldie “Nobody But You.”

6. TSU Toronados : “Play The Music Toronados”
The TSU Toronados were a Texas soul collective who were active in the late 1960s ino the early 70s. They were the actual group on Archie Bell and the Drells number one pop and soul hit “Tighten Up” in 1968. I prefer this track, which also exists in a different incarnation on Youtube as the backing track for soul singer James Taylor’s song “Love With Hope.”

7. Bobby Powell “Love Man” “The Glory of Love”

More great things from Louisiana : this time, from Baton Rouge. I linked to Bobby Powell doing the utterly charming wedding song “ The Bells” in the last column, but here he goes all early 1970s bass driven funk style on “ Love Man” and then sings his heart inside out on the old chestnut “ The Glory of Love” hitting some amazing falsetto notes in the process. Powell had a great voice, but could never get properly focussed on a distinctive style of his own.

7. Reuben Bell & The Casanovas “Its Not That Easy” “Superjock”
In the last column I featured Bell’s slow burning classic “You’re Gonna Miss Me” but this one runs it pretty close. From 1967, this short and intense track has a sincerity that’s almost unimaginable in 2013, and the same quality characterised the other stuff on the Murco label that year – such as Eddy Giles timeless “Losin’ Boy” which was recorded on Murco at about the same time. By 1975, Bell could sound pretty comfortable on “Superjock” in a dancefloor setting, but his singing on this track still has more of a soulful edge than the usual funkateering of the day. Born in Shreveport in 1945, Bell died there in 2004.

8. Lee Moses : California Dreaming “ And finally back to Lee Moses again for this great version of “ California Dreaming” – which takes the song down a notch or two from the soaring Mamas and Papas rendition, and grounds it in the grittier, more wasted realities (“I’m freezing!”) of that winter’s day. Where the M & Ps were beautifully wistful (“I’d be safe and warm /If I was in LA”) this one has yearning and desperation : and there’s room for both in anyone’s world.

Chronically, Wellington runs the risk of being overlooked by a central government fixated with the Christchurch rebuild, and by the economic and political powerhouse that is Auckland. The Wellington region’s strong centre-left showing at the last election also risks making the capital look like something of a lost cause to the current inhabitants of the Beehive. For these and other reasons, the capital needs a political leader able to represent its interests at national level – and able to make the most of its existing resources, both around the Council table and out in the community. Len Brown makes a good fist of it on both levels in Auckland. By contrast, Wellington functions with a relatively inexperienced mayor in Celia Wade-Brown and a Council chief executive in Garry Poole who has barely one month left in the job.

Wellington is also working within a largely self-imposed economic straitjacket. Seen in the light of the strictures of its “Towards 2040” planning document, the Basin flyover and the debate about light rail seem like mere incidentals. In a 19 February memo to Council staff on staffing issues and the current rounds of work sector consultations, Poole outlined the situation as he sees it :

Firstly, we needed to reorganise our structure so that it is aligned to our vision: Wellington Towards 2040: Smart Capital. This document sets a course for our city over the next 30 years….To achieve all of the outcomes stated in our Long-term Plan, we need to find $240 million of savings over the next 10 years. Increasing rates or borrowing to find these savings are not options.

Many Wellington citizens could dispute that prognosis. Presumably, they elected a Green –leaning mayor and several centre left councillors because they wanted an alternative to service rollbacks, job cuts, increases in fees and charges and outsourcing. Yet this route appears to be the one being taken, regardless – and there is some evidence that the centre-left leadership Council have been largely unaware of the extent of change that has been occurring on their watch. If they have been unaware, there has been little public sign of them voicing their concern, or of them rallying effectively against the prevailing trend.

Take the impact of that $240 million savings target on the city’s libraries as one example. On 14 June last year in a document called “Libraries Business Review Decision deputy chief librarian Jane Hill set out proposals for a new management structure for libraries. In appendix 2, she says :

The Library has to make operational savings of $852,000 in 2012/13. It is not 100% the right structure but I believe it is the best one for the Library. It positions us for future decisions regarding the small branch libraries; provides more flexibility across sites; gives CICM staff more work opportunities; Brooklyn and Wadestown are on bus routes to Central…

To many Wellingtonians, even those on Council, it would come as news that library services “have” to be cut by $852,000 this financial year. The reference to Brooklyn and Wadestown libraries being on ‘bus routes to Central’ and their inclusion – regardless of geography – in the new mooted “central cluster” of library management can only be taken as signs that those branches are headed for closure, or downgrading at best. Unfortunately, the grim prospects for the city’s libraries are also symptomatic of a wider problem.

Early in March, Kevin Lavery, 51, is due to arrive from the United Kingdom to take up his post as the new chief executive of Wellington City Council. Initially, his appointment raised fears in some quarters about his possible privatisation agenda.

As CEO of Cornwall Council in the United Kingdom, Lavery’s track record certainly had been one of enthusiasm for (a) outsourcing Council contracts, (b) privatising Council services via joint ventures with the likes of British Telecom and (c) presiding over the amalgamation of six regional councils into one entity. This agenda proved controversial and was eventually met with staunch local opposition and divisions on the Cornwall Council. On the same day that Lavery heard of the defeat of his joint venture plans in Cornwall, he was headhunted for the chief executive job in Wellington.

Lavery has argued that many of his actions in Cornwall had been driven by massive cutbacks in central government funding. This would be more convincing if Lavery hadn’t written a book in 1999 called Smart Contracting For Local Government Services that waxed enthusiastic about the gains that local government can allegedly make from outsourcing. In Wellington however, this particular horse may have already bolted, without any assistance from him.

By the time Lavery fully takes over from current CEO Garry Poole in late March/early April, Wellington will have gone further down the track of outsourcing and its related mechanisms than is commonly realized. Such is their strategic disarray, the left-leaning faction on Council appears to have become only belatedly aware of this virtual fait accompli. During a wide-ranging interview with Labour councillor Paul Eagle, Werewolf explored some of the reasons for this largely ineffectual response.

From the outset, Eagle explains, management has held the initiative. “There’s been a culture ever since I’ve been here, ” he begins, “that anything to do with Council operations has really sat with management.” Councillors were thwarted ‘constantly’ by the distinction between governance vs operational matters. “But in plain English, when things get contracted out, when services get cut, councillors get given very little time, or information about the impacts…I really think what has been missing is the fundamental discussion around what is a public service, and what is commercial. ”

Along the way, has there been a failure by the Council leadership to make clear what its expectations were, and what the acceptable commercial parameters would be? Eagle thinks so. The ideology of whether you deliver the services in house…for some councilors that debate simply hasn’t happened, he says. “It has not been debated in changing times.”

In his view, the city management was entrenched in certain ways of doing things. So…was there a general failure by the incoming Council – or at least some elements on it – to provide direction to officials as to what it would be expecting of them ? Eagle thinks that has been the case. “ I would say there was a failure on refreshing the expectation of a new Council – with a different Mayor. The mayor has a different political ideology than what I would deem to be [held in] the previous decade plus. My expectation was that some of these things should have been refreshed.”

Whose responsibility was that? “I couldn’t pinpoint a particular person.” Was it due to the incoming Council failing to appreciate that business as usual would otherwise continue? “I think on reflection, definitely. If I knew what I know now I would definitely be saying we’ve got a centre left mayor – supposedly – and that ideology and culture needed to start being reflected through. Because I think there was an expectation that there had been a change in the political dynamic. Therefore, things like contracting out, exiting services, setting up more unelected governance structures. The expectation [was]: this is a no no.”

Eagle continues : “Add that to the economic climate we’re in, of needing to change. Because the ‘business as usual’ that we’ve seen in the last 10 to 15 years… the conditions are no longer like that. There was a high level of expectation from people on the centre-left saying : We would not have expected this.” But the necessary action didn’t happen? “It didn’t happen.” On this matter of perception, Werewolf asked Eagle, the Mayor and some other councillors have publicly supported the Living Wage campaign – but if the left-leaning councillors can’t even protect job security for their own Council staff, that commitment can’t mean very much, can it ? “True,” Eagle replies.

In order to try and quantify the extent of job losses via outsourcing and contracting out in Council-related services in the past two years, Werewolf sought the relevant numbers from both trade union sources and – to cross check – and within Council, from Eagle himself. The following numbers are conservative estimates, and readers should be mindful that further consultations are taking place right now in sectors where jobs are on the line. The proposed new structure for the Building Compliance and Consents unit at Wellington City Council for instance, will be signed off by the by the WCC Executive Leadership Team (ie, Garry Poole and co) on March 4th, at which point the scale of the loss in full time equivalent positions (FTEs) and redundancies should become apparent.

For now, the extent and pattern of job losses through outsourcing looks rarher like this. As indicated these figures should be treated with caution, as merely a best attempt. At Citi Operations, trade union sources identified the following as being lost due to contracting out: Recycling/Rubbish – 24 jobs ; Citi Operations Workshop – 4 ; Drainage -37 ; Drainage CCTV – 6 ; Landfill – 8. This amounts to a total of 79 over the last two years.

In addition, the following numbers arose from restructuring within WCC since May of 2012. Finance – 3 ; Libraries – 12.5* ; Environmental health – 4 ; Building Consents – 2 (so far) ; Urban development – 3 Property – 1. For a total of 20.5. At City Communities, Werewolf was advised, up to 20 jobs are still in consultation and five more are at a similar point within Project Management. It should be noted * that while was only one redundancy in the initial library re-structure last year, a total of 12.5 FTE’s were lost, mostly though people having their hours cut. In February 2013, a further round of administrative change began within libraries, with additional job security implications. From the above, we get a grand total of either 104.5 – or 129.5 if all the potential losses cited come to fruition. In addition, the full extent of the changes in the Building Compliance and Consents unit has yet to be assessed with any accuracy.

As mentioned, a key driver of these changes is to meet the “Towards 2040” targets. That rationale appears again and again in the wave of consultation documents on various Council staff restructurings over the past eight months. As Paul Eagle has indicated, there seems to be a clash of philosophies between those on Council opposed on principle to outsourcing (and opposed to the Council exiting the direct delivery of services) and those within Council management who seem to see this route as the path of economic virtue. The economic philosophy that appears to be in vogue among Council management was well articulated by Hadyn Read, the Council Manager of Strategic Asset Planning in a December 10 letter to Drainage CCTV staff advising them of a restructuring, and of the motivations behind it. It is worth reading between the lines of the management-speak to glimpse the wider outcome being envisaged :

…..As evidenced in recent changes to drainage maintenance and with upcoming contracting out of the landfill and the roading corridor, City Networks continues to evolve from a physical works unit into a service and contract management entity. This is consistent with the Council’s Infrastructure philosophy of managing service delivery rather than directly providing services [ Werewolf’s emphasis] where the scale of another entity, can provide employee growth and development and invest in assets that share common uses….

The Council is continually changing to meet the needs of the community and as a result, has successfully changed to reflect the environment it operates in. This is to ensure that it can undertake its business as effectively and efficiently as possible now and in the future. Council is committed to pursuing the above and this forms the rationale for this proposal.

So….officialdom sees the evolution of the Council from a deliverer of services to the manager of delivery by others, as being a desirable goal. But is it, in the long run? There are valid concerns whenever either central or local government voluntarily dispense with their in-house expertise and their ability to deliver expert services – in the belief that private sector delivery will be cheaper and more efficient. There is a political ideology that promotes such a point of view, but it isn’t one that has ever found much support at the ballot box in national elections, or in local body polls in Wellington.

In Eagle’s opinion, false economies can be readily assumed. Routinely with central and local government contracts, he agrees, private sector bidders will bid low in order to win the tender – and then once the in-house capacity is destroyed, they are then free to jack up the prices. Are we at risk of that outcome in Wellington?

“Absolutely,” Eagle says. “What will happen here is they will hold the intelligence, then they will start to say to Council that if you want this service its going to cost X. The expertise then lies in the private sector, and not with the neutral player, the right player, which is Council. And we end up being dictated to over time.” In the infrastructure sector and with refuse and recycling, duopolies will also readily emerge he says, “There are not a lot of players in the market. Transpacific International own just about everyone, and Enviroway….own everyone else, nationally.” In a tiny country, not many competitive players exist.

Does he accept the idea of Council becoming more and more just the middle manager rather than the actual deliverer of services? “Not really. There is an expectation from the public and the ratepayers that when things go wrong, I voted for you – our elected member – and that you will intervene. What they don’t [accept] is unelected governance structures [ie, CCOs or Council controlled organisations] starting to deliver services. I’ve taken groups through it and said that our only influence is a statement of intent, and they think that’s absurd. They think – how has this gone so horribly wrong? So you’re telling me 47 cents in my rate dollar goes to unelected governance structures? I said : ‘Yes. And my only power of intervention is through a statement of intent.” And people don’t get it. But they simply don’t know, either.”

Of course, with some of the job losses mentioned above, some of the workers concerned may be rehired by the private contractor. Again though, this situation goes tio expose the faklse economies at work. At least some of those workers will have taken redundancy payouts before being rehired – thereby saddling the ratepayer with the short term costs of the restructuring, (eg, the cost of ‘consultations’ the hire of ‘change consultants’ the redundancy payouts, the loss of expertise) and the long term costs in higher fees and charges as the private contractor extracts profits from its captive pool of citizens/customers.

As yet, there are no available official estimates of what the last two years of restructurings have cost Wellington ratepayers. In the name of meeting the Council’s Towards 2040 targets, potential cost savings of $120 million have been identified however. The operations of the CCOs have also been reviewed, Eagle says. For him. the key finding in the review was that the corporate overheads – in some of the feedback from staff – appeared to be massive. (So much for contracting out producing a lean and mean corporate structure.) At least in the transition phase, the cost of compliance and the loss of economies of scale appear to be producing more in the way of corporate overheads, not less. “Because some units became CCOs, they no longer pay a corporate overhead – and because CitiOps has now been contracted out, there’s a high corporate overhead and all of these units now have bigger corporate overheads than what they had.” His suspicion is that there will be less in the way of services on the frontline and more on the inside in order to keep the machine running – and thus it could well “cost proportionally more” to deliver less, in future.

In all probability, the task of keeping officialdom in check would stretch even the most talented, and united Council. Councillors get elected, come in, get given a cellphone and a desk, and are somehow expected to cope with a well-resourced city management team that has been ticking over nicely for over a decade. The way Eagle describes it, the situation is like a local government version of Yes Minister. With some mixed feelings, the Council now awaits the arrival of its new chief executive, whose appointment was reportedly voted in by a 9 to 6 margin.

Oddly enough, Kevin Lavery seems to have won the support of the centre left, despite his past enthusiasms for privatization. Did most of the centre-left councillors vote for a change of chief executive? “Yes,” Eagle says. “The only one who didn’t would be Leonie Gill…I’m not dobbing in a fellow Labour councillor, but this was something we had a very different opinion on..” The task ahead will require a centre-left grouping on Council that has so far failed to rein in Garry Poole and his team, to somehow find common ground with the highly experienced political operator who will now replace him.

Meanwhile, the process marches on. On 25 February this [necessarily anonymous] email came my way. It eloquently describes the current situation :

I have been with the council for 21 years myself and have seen our city grow into a rather unique and likeable place to be. I have read comments left by Travellers, Tourists, Backpackers even Wellingtonians to say the character Wellington has gained is irreplacable. As you are aware many departments of the WCC have been sold off to Contractors, this we are told is related to cost saving. I and many others alike think otherwise.

I was at a council meeting last year when Gary Poole told employees, change was inevitable. I wonder if he would have made the same rash decisions if he knew his position would be compromised months later. I also attended a meeting addressed by Celia Wade Brown trying to justify decisions made by the council. Which ever decisions are made by the CEO or board of directors, they directly reflect the councillors elected to sanction these decisions whether they knew about them or not.

We are a team of 27 council employees plus supervisors, we still operate under the banner of the City Council but are told sadly that on July 1st a new contractor will commence operations. We are as you would say the only recognisable entity of Wellington city that ratepayers could relate to. When we are sold the light will go out on a city tended to by its own caring residents.

by Sue Kedgley

Who would want to be mayor of Wellington? Clearly, not many people. At the moment no one else has put their hand up to stand against incumbent mayor Celia Wade-Brown, despite the efforts of a group of Wellingtonians – apparently spearheaded by Rex Nichols and Chris Parkin – to find a high profile candidate to contest the mayoralty.

When Wade-Brown first decided to stand for the mayoralty, she readily concedes she was only half-expecting to win and her narrow victory took most Wellingtonians (and the media) by surprise. At times, her mayoral term has been contentious. She has faced considerable criticism, including from some who say she’s not decisive enough, and that her Council has not achieved a lot.

Yet as she seeks re-election later this year, Wade-Brown defends her record vigorously, arguing that the financial climate and budgetary constraints have necessitated a period of consolidation in the Council, focussed on low-key ‘nuts and bolts’ issues such as fixing infrastructure and earthquake prone buildings, rather than high-flying projects. In her view, she offers Wellington ‘a different, collaborative leadership style that brings in everybody’s ideas, rather than a top-down, one-voice-for-the-region approach.’ At the local body elections in October, Wellingtonians will get to decide whether she is offering the kind of leadership they want. In early February, Werewolf contributor (and former Green Party MP) Sue Kedgley interviewed Wade-Brown on a range of issues relevant to that decision.

Kedgley : Kerry Prendergast had the support of the business community. Have you been able to generate support amongst the business community?

Wade-Brown : I’ve had strong support from some businesses such as Matakino Technology who invited me to launch their new offices recently, and are having a lot of success globally. They love the kind of Wellington that I –and my supporters– love—a compact city, with more walking and cycling and less reliance on one person, one car…

I meet regularly with the Chamber of Commerce and I have a good relationship with them. I have to say they represent a constituency that says the most important thing is to get more roads to the airport and extend the airport runway, and I’m not sure that’s the view of businesses as a whole in Wellington. I also have regular meetings with different businesses…from Weta Digital; all the companies that support film ; the social entrepreneurial businesses. There’s a lot of growth in those areas of business. And one thing I would strongly have in common with all businesses is the need to promote Wellington as [being] not only a central government town.

Some Councillors such as John Morrison seem implacably opposed to you. Do you think you’ve been effective in getting support across party lines?

All our elected Councillors believe they’re doing the best for Wellington, so what I’ve tried to do is to find their strengths and work with that. I wouldn’t put John Morrison near the transport portfolio. But just because we disagree in that area doesn’t mean he doesn’t do a lot for the sporting community and he’s been one of the real movers and shakers in getting Australian football to play their Anzac game here, for example. So my strategy is to find areas of their strengths and give them responsibility in those areas…

Do you expect to be contesting the mayoralty against Fran Wilde at the next election, and if not her, then who?

It’s been really interesting that no one else has yet committed to standing for the Mayoralty. It’s a democracy so I really hope we have a range of views and visions articulated during the election. But I must say that our smart capital vision that talks about people, jobs, a healthy environment and a smart digital approach is getting strong support. It’s got unanimous support across the Council, so maybe people do feel we are on the right track….

Do you find it surprising that seven months out from the next election, no other contender has yet thrown their hat into the ring –despite the efforts of Rex Nichols, Chris Parkin and other who have apparently formed a group to search for a candidate to stand against you?

Until the end of last year there were a number of people who would have assumed there would be a super-city in place before the next elections, and that would have put some people off because it would be a huge thing to have to campaign right across the region for the mayoralty. But with the last minute changes to the Local Government Act (that allow referendums to be initiated by local communities) it’s clear that the smallest part of the region could force a referendum by a 10% petition in their area. I think that change has thrown some of the right into a degree of disarray.

Why should Wellingtonians re-elect you?

I’ve been much closer to the average person and I’m out and about in the community a lot, and I think people feel they can ask me questions and make suggestions to me directly. I think people feel I’ve got a genuine community interest.

In terms of big projects I have advanced? Well, the financial situation has been quite challenging for any project over the past two and a half years, so we’ve focussed on prudent, low cost, less visible initiatives, such as improving neighbourhood connections, community gardens and so forth. The big investment we’ve made in this Council term has been on earthquake strengthening, whether it’s been strengthening our social housing stock, buildings that Council owns, our sea walls or tunnels. They’re not very exciting projects, but they’re absolutely essential.

There’s also been a really good project to involve people in strengthening their own homes –again it’s a relatively frugal project but it’s one with potentially big benefits. Then there’s the pools initiative. Instead of building one grand ‘put-your-name-on-it’ pool, we’ve worked with half a dozen schools to make sure their languishing school pools can be upgraded and used by the community as well as schools. These are modest projects but they make a big difference. So I think if people want to continue with that approach of distributed access to resources and making sure all communities, of all ages, have a good life in the capital city then I’m certainly keen to offer myself up again.

There’s also a really different approach to transport prioritisation from the political arm of Council now. And we’ve had unanimous support for our strategic cycle-ways initiative. Passionate cyclists may not have seen as much expenditure on tarmac as they would like, but we are two thirds of the way through a shared cycle and walking way in Tawa and we’ve pushed the Great Harbour Way cycle way up to the number two priority in the region. That doesn’t mean we’ve fixed it yet but it’s on its way. And I have to say that I’ve brought a really different approach to transport issues at the Basin.

One of your main planks as Mayor was to bring light rail to Wellington. Yet some are predicting that the way the light rail study has been set up –excluding any light rail connection with the northern lines such as the Johnsonville line –that it is destined to fail. Do you agree?

I think the decision to put old style trains on the Johnsonville line has made it more difficult. I am surprised that the consultants threw out the possibility of a direct linkage to the northern rail lines, but I’m equally encouraged by the links to the south and the east which look like a fruitful direction for light rail to go…The reality is that whether its France, Sydney or the West Coast of America, more and more light rail systems are being built in cities that are our sort of size –in the 300.000 population range– because you don’t have to be a mega city to improve your public transport outcomes.

If the working group came out and rejected light rail (and supported bus lanes instead) would that not be seen as a major failure of your mayoralty?

I think you’ve got to look at the assumptions that have been built into the study and the fact that it’s a three-way study between NZTA, Greater Wellington Regional Council and the City Council, so we are only one third of the study. And I don’t think the current government or NZTA or Greater Wellington are enthusiastic proponents of light rail. But I’m sure that all the information that’s been gathered will be a basis for movement in the future. And even if the immediate result was improved bus lanes across the city and a clear corridor for public transport in Wellington, I think that would make the path of light rail smoother. The reality is that light rail was always going to be a long-term project. I wasn’t expecting to have tramlines laid within three years of being elected.

What’s your personal view of the flyover?

I have yet to find in real, physical life-rather than in an artists drawing-a fly over that I thought looked attractive. I think the landscape architects have probably done the best they can with their drawings, but I don’t think Wellington really deserves a flyover that would bring urban blight to that area of the city. Many cities are pulling down flyovers now, from Asia to Europe to North America. It was exciting to go to San Francisco and see their lovely waterfront after their flyover had been pulled down.

But the question is, if you don’t build a flyover, what do you do to make traffic flow more smoothly around the Basin, because there are certainly times when you’re coming from the Eastern suburbs into the city in a car, when there’s congestion. We’ve had suggestions from the architecture centre that the undergrounding of Memorial Park will reduce the cost of doing some ‘cut and cover’ work on the northern side of the Basin, and we’re also examining the proposition that, at least in the interim, you can reduce some of the blockages around the Basin Reserve without a flyover. Maybe it’s not a sensible place to have parking in the middle of a state highway there, for example.

Also, the undergrounding of Buckle Street has already removed quite a big pinch point at Tasman and Tory street. So there’s going to be some improvement there anyway, and that’s just looking at the traffic flows. There are other approaches too. We’ve suggested to Greater Wellington (who set the fares with a part subsidy from NZTA) that they should do some innovative “Early Bird” fares before 7.30 in the morning. Maybe there are some people who would start work a bit earlier and finish work earlier, and that would reduce the numbers of people using the Basin at peak time. That could apply to students too. Wellington High senior school starts at ten and it’s been great for the students. So there are an awful lot of ways, other than building a large piece of concrete infrastructure, that you can address the issue.

I’m going to be meeting with the NZTA board on 1 March with some information about our assessment of alternatives and we’ll see if they are open to some of our suggestions.

Do you find it galling that the New Zealand Transport Authority, not the Wellington Council, seems to be calling all the shots about a key transport issue such as the flyover—and doesn’t this undermine local democracy?

I think it needs to be a partnership because it is a state highway, not a local suburban cul de sac, and there is funding from taxpayers. So certainly they need to have some input, and they are part of the story. I just don’t think they should have the final word.

Were you offended by the New Zealand Transport Agency letter threatening the Council that would be serious implication for future transport investments in Wellington, if the Council opposed the flyover? Is there any way to interpret that letter other than an attempt to hold a gun to Council’s head?

The conclusion of the conversation has been that we’ll be meeting the board on 1st March, so I think it’s more useful to focus on where we’ve got to, and that may be partly because I didn’t over-react to the initial letter they sent. So now we’ve got the opportunity to meet with the Board and show them our proposals.

Do you seriously believe there’s still a chance of stopping the flyover, or is it really a fait accompli?

I think the people of Wellington will be very interested to see what alternative traffic solutions there may be to the fly-over, and at some point it will be up to the people of Wellington, through the submission process and through the next elections, to say what they would prefer.

Who on Council led the drive to headhunt and recruit Kevin Lavery to replace Garry Poole as the chief executive?

Our Council voted to advertise the position, and we had a number of the advertising agencies pitching to us… We weren’t by any means looking overseas, but we were open to overseas applicants.

Why do you think Kevin Lavery won the day?

Well, different people will have different reasons, but the important thing is that we’ve made the decision and the applicant who was successful has worked for both a Labour-controlled council and a Tory-controlled Council. Sometimes what has been ascribed as his position has been very much him executing the will of council, and let’s not forget that the Chief Executive is an employee of a Council and it’s the Council who should call the shots.

Did you vote for him?

The votes on whether we should advertise and who we should select were taken in public excluded, and I would like to keep it confidential.

Mr Lavery has a background in privatising and outsourcing local government services such as IT, and put up proposals to partially privatise libraries in Cornwall. Can we expect moves to privatise or outsource some Council services – or even Wellington’s libraries – in the next Council term?

I don’t believe this Council would want to privatise libraries and that’s where the decision lies –with Council. It should also be noted that his Council managed to maintain their frontline services despite the fact that the British government cut funding to local Council’s by almost 30%. We’re not in that situation here. We’re trying to keep our rate increases closer to the CPI, and we’re not facing a 30% reduction in our revenue, so it’s a very different context.

There’s some confusion over where the Council stands on local body amalgamation. At one stage you were reported as being strongly opposed to it. But a few months later it was reported that the Council was in favour of a supercity. What is the Council’s position and where do you stand personally on the issue?

First of all, Council as a whole has not voted on a preference on amalgamation. Our general view has been to go out and consult the public, and we did that on where the boundaries should go. In September we asked our officers to go away and produce some more information on how different options could work, the financial implications and so forth, and since then we’ve seen the final government legislation which is somewhat different from what people were expecting.

Personally I’m still really sceptical, and I think the public are sceptical about how one Council from Miramar to Masterton could be close to the people. Auckland has a bigger population but physically the Wellington region is about twice the size, geographically, of Auckland. And geography does matter. So the options are one Council on the other side of the Rimutukas, or may be 3 or 4 councils in the region. And then there are some real issues about whether we have one or two tiers of local government. In previous Councils we have co-existed reasonably successfully with the Regional Council but I think there are a number of areas of overlap between us…At the moment the Regional Council is conducting a bus review and even though the Regional Council has kept us in the loop, it’s been quite difficult. I think it would be simpler if it was dealt with by one decision-making body.

Is there much grass roots support for local body amalgamation, or is it being driven by a reasonably small group of people, headed by Fran Wilde?

When I’ve talked to people out in the suburbs, there’s been a preference for maintaining the current boundaries but working more closely together with other Councils.

Do you accept the argument that a super city would be better able to drive the economy forward?

I don’t think it has a great deal to do with whether you are one city or one region. I think one naturally works with the central government of the day on the areas where one agrees, and advocates for the community; and agrees to differ in some other areas. I mean having Len Brown as the mayor for the whole of Auckland doesn’t seem to have made the inner city rail loop happen.

One of the main arguments that’s put forward for amalgamation is that it would give Wellington more influence with government..Do you have ready access to government Ministers? Or does the government shut you out because you’re not a right-leaning mayor?

Yes we do. As Mayor of Wellington there are so many opportunities to meet government ministers. The Metro mayors have regular meeting with a range of Ministers, and one of the particular issues we are discussing at the moment is a regional affordable housing strategy. That was started by the Wellington Council of Social Services coming to meet with us and saying, can we work together on this issue regionally? And of course we can. Working collaboratively, and putting together groups when you need to on certain issues, is a much more modern and collaborative approach than saying one size fits all. And anyway there isn’t one voice for Wellington. There are Maori voices, there are new migrant voices, there are big business voices, small business voices. So I think it’s a little arrogant to say there’s one voice for Wellington.

Will the huge costs of earthquake strengthening in Wellington – and escalating insurance costs – see businesses exiting the city, and the loss of many of our heritage buildings?

To start with we’ve been really proactive in doing earthquake assessments. We’ve got the initial evaluation process going on pre-1976 buildings because we’re always aware of the threat of earthquakes in Wellington. We have assessed 3694 buildings. Out of those 597—less than a quarter—are listed as earthquake prone, or less than 33% of strength, and we have 1143 still to be assessed….

Obviously that’s quite a number that are earthquake prone, but only some of those are heritage buildings…The tricky areas are some of the big commercial buildings and heritage buildings. I’ve been encouraged how many large commercial buildings have been strengthened –the Majestic building, the World Trade Centre, BP House, the Huddark Part building…But there will be real questions about whether some heritage buildings should be strengthened or not. It will depend on the cost and whether strengthening would destroy their heritage value.

Cuba Street is a little bit different –the buildings aren’t so big and it’s a heritage area…So we are working with Victoria University School of Architecture to look at whether pinning some of the buildings together might be a way of reducing the cost to individual owners of individual earthquake strengthening. I haven’t seen the recommendations yet but its absolutely important that we keep our sense of place and Cuba Street must be the funkiest place to go shopping in the whole region.

We’ve also strengthened our own buildings and that’s a huge investment. The Embassy Theatre, the Art Gallery, the Johnsonville library, the Begonia house have been done and now we’re going to do the town hall, and the Band rotunda and so forth. The number of people using a building and its function will determine its priority. But it does create jobs –it may create more jobs to refurbish a heritage building than it does to build a new building so we shouldn’t ignore its impact on the economy.

Why does the Council allow so much glass to be used in such an earthquake prone city?

The art gallery in Christchurch which is made of glass and ended up being the welfare centre is a hugely encouraging example. If glass is used it has to meet quite strict building standards that ensure it will stay on and wont shatter.

There’s a feeling that the Wellington’s economy is stagnating. What is the Council doing to help kick start the local economy? Are these initiatives enough?

Well, we’ve got a number of areas where we are working on an economic strategy. One is that we have earmarked some funding to encourage long-haul flights from Asia to come to Wellington. It would make quite a significant difference if people could fly here directly instead of coming through Sydney or Auckland or Christchurch. We’re pushing for that and we’ve been shown a model that will work before any runway extensions need to be built. Another strand is the digital economy. There’s a huge number of socially positive and also very successful companies in Wellington like Zeus, {which] is selling its financial accounting software to a huge number of small businesses around the world. There are lots of design businesses that are doing really well…There are certainly some challenges about business head offices. They like to be closer to their bigger customer base that is increasingly not just Auckland, but Melbourne or Sydney. But we do have some real advantages to being the first country in the world that’s awake. Despite being in a digital world, real time advantages matter so I think our focus on digital is correct.

Are these initiatives enough?

I think we need to sing about our successes. Central government job cuts have really shaken confidence and a lot of…spending in the city. Its not so much that the cuts are huge but even a 10% cut can frighten 50% of employees, so they don’t spend on going to the theatre or going out to dinner or buying new clothes. So it does have a flow on effect. Our main counter to this is to promote the city, and encourage people to move to Wellington –either to study here, or create a business here. We’ve done some research work on Destination Wellington, which is a joint project with our tourism wing. We’re very good at promoting Wellington as being the coolest little capital on earth and telling people why they should come to visit but we haven’t promoted it enough as a place to live –a place to come to study or set up a business, for example. We’ve got a talented workforce, its easy to get around, you can organise half a dozen different meetings in one day and it’s a great place to live. There’s all the different sporting facilities, all the sports you can do here, from mountain biking to sailing, and the lifestyle, the safety of the city—there are a whole lot of advantages. And we have the international arts festival, world-class ballet and so forth.

In your view, would a super city be better able to drive the economy forward?

I don’t think having one super city would make a magical difference. At the Wellington Regional strategy meetings we’ve had updates recently from the Regional Economic development agency Grow Wellington (which has a mandate to grow business in Wellington and support existing businesses to grow) as well as from each of the councils in the region about what they’re doing in the economic development area, and each of them is doing something additional to what the economic development agency is doing. All of them have their own particular focus on economic development, and I think that’s a good thing.

If you proved to be a one term Mayor, what would you most miss about the job?

What I enjoy the most is meeting such a diverse range of people from council housing tenants to people planting community gardens, to visiting businesses, diplomats to the incredibly artistic people who come to Wellington. I love the opportunity to make them feel welcome and at home here, and I intend to continue doing that for another three years.

ENDS

by Alison McCulloch

‘You must be a worthy vessel. No coffee or tea though, no alcohol. Studies have been done.’ – Margaret Atwood, The Handmaid’s Tale

In Margaret Atwood’s imaginary fascist Republic of Gilead, fertile women are a rare and valuable commodity, prized for their ability to reproduce. Inside their tightly controlled lives, they are forbidden anything that might endanger a pregnancy and punished for their transgressions. It’s a dystopic world of surveillance and control.

New Zealand is certainly no Gilead, but an array of initiatives in the health and justice sectors are combining to raise concern among women’s health and rights advocates of a trend toward increasing surveillance, monitoring and, in some cases, criminalisation of pregnant women.

It’s a trend that’s been well documented overseas, including in the United States where a new study by the National Advocates for Pregnant Women (NAPW) reported on more than 400 cases over 32 years where pregnant women were detained, incarcerated or subjected to other forced interventions in order to protect fetuses – or to punish women accused of not doing so themselves. In the American cases, NAPW found the common thread was a willingness by the authorities to treat fertilised eggs, embryos and fetuses as completely and legally separate from the pregnant woman carrying them.

In New Zealand, the impetus behind the increasing focus on fetal protection ranges from IT experts wanting to improve record keeping to child welfare advocates looking for ways to tackle our abysmal record of child abuse to judges acting, they say, to protect the unborn child. It’s a trend that isn’t confined to the official realm, either, with public scrutiny and judgement about women’s behaviour during pregnancy continuing to intensify.

Earlier this month, the police union in Queensland, Australia, made headlines when its president called for new powers to lock up pregnant women suspected of putting the health of their fetuses at risk by drinking or taking drugs. The request was part of the union’s submission to the state’s Commission of Inquiry into Child Protection, and included a call for the abolition of legislation that protects the rights and liberties of pregnant women. “The State must have the ability to intervene and protect the unborn child, when its mother either refuses to do so, or is incapable or unwilling to do so,” the union said. Under changes it would like to see, courts could order a pregnant woman into care, have her monitored and impose conditions on where she lives and who she has contact with.

Something eerily similar to the Queensland union’s proposal actually took place in New Plymouth just last year, when a 40-year-old pregnant woman, Tina Hotene, was sent to prison in a drink-driving case in order, the judge said, to protect her 5-month fetus. Hotene was facing her eighth such charge – though the seventh conviction had been nearly 8 years earlier – and was told by District Court judge Allan Roberts that she must be imprisoned “if only for the sake of enforcing abstinence on you so as to ensure the child you carry is not subject to ongoing excessive liquor intake and the consequences that must flow from that”. Home detention, the judge said, was not a viable option, and he sentenced her to 12 months in prison.

Hotene appealed the prison term to the High Court, with her lawyer Amy Dallison arguing, among other things, that “the sentence was inappropriately influenced by the Judge’s concern to protect the unborn child”, as the judge who heard the appeal, Justice Dobson, put it in his August 2012 decision. Dobson appeared to have some sympathy, expressing concern at both the justification for the sentence and its severity, but he was circumspect in some of his criticism. He was troubled, he said, by “the lack of consideration by the [District Court] Judge of the relative severity of a sentence of imprisonment on a woman who is pregnant”, and noted that Roberts had “focused more on protecting the unborn child than on any consideration of the relative hardship created for Ms. Hotene by virtue of her pregnancy”. Still, despite calling the sentence “manifestly excessive”, Dobson did not release Hotene, instead reducing her prison sentence from 12 to 8 months.

Cases like this, where judges have explicitly acted to protect fetuses, pop up surprisingly regularly in the court system, even though under New Zealand’s “born alive” rule, a fetus isn’t a legal person until birth. Each time it happens, there’s a brief flurry of media activity and the issue dies away. Taken together, however, these cases reveal an increasing willingness of the judiciary to push the boundaries of personhood, often at the expense of the autonomy of the mother.

Other notable examples in recent years include the so-called “Baby P” case from 1995, when the court took guardianship of a fetus away from its 15-year-old mother because she was considered unreliable and was in a violent relationship with the father; in 2002, in what became known as “Nikki’s Case”, the High Court made a fetus a ward of Court because its mother planned to allow the birth to be filmed as part of a pornographic movie; and in Invercargill in 2006, a pregnant teenager was remanded in custody for drug treatment to protect her and the fetus. According to a report in The Southland Times, the judge “cited several cases where orders protecting the rights of unborn babies had been made in New Zealand courts”.

Professor Nicola Peart of Otago University is a medical law expert who wrote the chapter in Medical Law in New Zealand on the status of the fetus under New Zealand law – a status she concluded was “in a mess, devoid of principle and logic”.

Since that assessment, published in 2006, Peart says the situation has not improved. Decisions like that in the Invercargill case “effectively says to every pregnant woman, ‘your child’s interests are superior to yours, your freedom is now curtailed and law will enforce it’.” It’s an approach, she says, that “absolutely runs against principles of autonomy, self determination, the right to bodily integrity Where do you draw the line?”

It is not just judges who are pushing these kinds of boundaries. Health-care professionals and child protection advocates are doing the same. Most often, it’s for the best of reasons: to protect the health of future children and their mothers. Yet too often, some of the wider implications are either not considered, or are subsumed beneath an overarching goal of fetal protection.

New Zealand’s abysmal record on child abuse – and the pressure for effective action – is clearly a big driver in the increased monitoring and scrutiny of pregnancy. Alongside the continuing work on last year’s Green and White papers for Vulnerable Children, a special select committee inquiry on the issue was established last March that provides another good illustration of this shift in focus. Called the “Inquiry into preventing child abuse and improving children’s health outcomes”, it has six terms of reference, two of which focus on the period before a child is conceived (“the preconceptual period”), with a third zeroing in on the fetus in utero.

This focus on the child before conception and birth didn’t escaped the notice of the health promotion group Women’s Health Action (WHA), whose senior policy advisor, George Parker, has been closely tracking attitudes toward pregnancy. “I think what we’re seeing is pregnant women progressively side-lined, but, probably more so, turned into this potential threat – this idea that the mother and fetus are in conflict with each other, and the fetus is needing protection.”Of concern to WHA is the extent to which this is being played out in the policy environment: “The idea that the state needs to be in defence of the fetus, needs to protect the fetus; the idea that it’s at risk from the body that its housed in”.

That policy direction is also clear in the Government’s Children’s Action Plan, which includes myriad initiatives likely to increase the surveillance if not control of pregnancy. One part of the plan, which is scheduled to be implemented this year, is the introduction of Child Abuse Prevention Orders – new court powers targeting child abusers. While details of who the orders might affect and what conditions they would impose are still being finalised, pregnant women would not be excluded from their ambit. According to a spokeswoman from the Minister of Social Development’s office, the orders “could apply to anyone male or female and at any stage in life, which could include pregnant women”.

Hunua MP Dr. Paul Hutchison, a former obstetrician-gynaecologist, is chair of the select committee inquiry that’s looking into child abuse, and he says the focus on prenatal – indeed on preconceptual – health is justified by evidence showing how important it is to better outcomes for children. He acknowledges there’s a tension between maternal autonomy and child protection, and says finding a balance is crucial. “It is hugely important to ensure that mothers and dads are fully aware of the sort of monitoring that takes place and give informed consent for it.”

Tools, such as the Child Protection Alerts, which have so far been piloted in Hawkes Bay and Auckland, “need to be used with very great care to ensure that the parents are fully aware of what’s going on”, Hutchison says. “Let’s identify risk issues early so that, with the mother fully informed, one can do everything possible to have a good baby. It’s a universal wish of parents to have as healthy babies as possible.”

But those Child Protection Alerts (CPA) are another initiative of which women’s health advocates are wary. Under the CPA system, alerts linked to National Health Index numbers (NHIs) are put on a child’s District Health Board file when risks have been identified. The alerts, which are also entered into the National Medical Warning System, can be linked to the files of both pregnant women and fetuses. What’s more, under the Children’s Action Plan, this alert system is likely to be expanded into a new national Vulnerable Kids Information System, with more data able to be more widely shared.

Alison Eddy, Midwifery Advisor with the New Zealand College of Midwives says details are sketchy so far, but the new expanded system seemed likely to take in sectors beyond health such as education, housing and benefits provision. Like Parker, Eddy says monitoring and surveillance models risk disengaging people, and she too pointed to a growing fetus-centric view within which the pregnant woman “should be doing this and she shouldn’t be doing that”. She’s also concerned that the proposed database and associated risk assessments will focus on particular groups, for example women on benefits.

Parker says her organisation has no issue with Child Protection Alerts in terms of child safety issues, but was disturbed that in defining a child “from conception through to 16 years”, those behind the system hadn’t adequately considered some of the implications for the autonomy of pregnant women. “There hasn’t been anyone consulted right from the outset from the perspective of women’s sexual and reproductive rights,” Parker said, “and you can tell, because a child’s able to be defined in that way unproblematically, and of course anyone who has a lens around women’s sexual and reproductive rights knows there’s a whole set of problems there, and they’re not part of the discussion.”

Dr. Russell Wills [pictured left], a paediatrician in Hawkes Bay and the current Children’s Commissioner, has had a lot of experience with the Child Protection Alert system, which was pioneered at Hawkes Bay District Health Board. He, too, acknowledges the tension between maternal autonomy and the interests of the child, but says it’s not the case that one perspective is right and one is wrong. “Both are right…you can have both.” “I share the same concerns which is why we’ve gone about it with enormous care,” he says. “Criminalising people doesn’t help.”

He speaks in some detail about his district health board’s Vulnerable Pregnant Women programme, which takes an informed-consent, multi-disciplinary approach to dealing with at-risk pregnancies and children. It’s been a great success, Wills says, with children notified to Child Youth and Family (CYF) falling by 50 percent.

While there are some cases where Child Protection Alerts and care plans are undertaken without the woman’s consent, he says those are rare. And Wills sees no possibility of a slippery slope whereby pregnant women are unnecessarily monitored or constrained for endangering fetuses. One reason is the workload. “We simply don’t have time to talk about someone who is a bit depressed or drinking a few times a week.”

Asked about mandatory treatment, Dr. Wills said that was only available under the Mental Health Act, and he’d never heard of it being applied for risk to the fetus. “There are times when I wish we could,” he said, adding that it was an issue that “should be discussed”.

Another initiative that has raised some eyebrows is a proposal from within the health sector to assign National Health Index numbers to some fetuses. NHIs are unique identifiers assigned to every person who uses health and disability support services in New Zealand and, prompted by the needs of doctors working in maternal fetal medicine to keep fetal records separate from those of the mother, it was suggested to the Ministry of Health’s Health Identity Programme that a solution would be to formally assign such fetuses their own NHIs. The initial legal opinion on the idea apparently raised no red flags, and the proposal looked like it was headed toward implementation when groups with an interest in reproductive rights issues, including WHA, were alerted.

“We didn’t take issue with the idea that there might be some clinical safety issues why fetuses and pregnant women’s blood results needed to be recorded separately,” Parker said. “However the National Health Index number system assigns a unique identifier at birth for persons.” Again, consideration of the implications for women’s health and reproductive rights appears to have been absent. After WHA and others registered their concerns, the policy was paused with the Ministry committing to wider consultation. “To date, we haven’t been invited back to the table,” Parker said, “so we haven’t at this stage been able to contribute our on-going perspective. I don’t know if that’s still coming and hopefully it is.”

At this point, it remains unclear just where this proposal stands. Asked about the matter, the Ministry’s chief advisor for child health, Dr. Pat Tuohy, said that if it was progressed, the Ministry would “test the approach with key groups” and NHIs would only be used in a “limited number of very high risk pregnancies”.

It’s a given that society has strong moral and social reasons for making the care and protection of children a priority. Dr. Russell Wills, the Children’s Commissioner, cites the principle of primacy outlined in the United Nations Convention on the Rights of the Child, which stipulates that the best interests of children be the primary concern in any decisions that affect them.

And who doesn’t want to protect children? By the end of 2014, under another Children’s Action Plan proposal, we may all get more opportunity to do just that with the establishment of a free “Child Protect” line “for the public to report concerns by phone, email, text or online”.

Again, just what that might mean in practice remains to be seen, but it’s likely that this initiative, too, will intensify the scrutiny not just of children and those who mistreat them, but of pregnant women and their behaviour.

There’s been little local research on public surveillance of pregnancy, but overseas studies and anecdotal evidence suggest it’s intense. Again, Australia provided a recent telling example of the attitudes toward pregnant women seen as not behaving as they should. Reported in the New Zealand Herald under the headline “Pregnant Star Busted Smoking”, the story told of Australian TV personality Chrissie Swan [pictured left] breaking down on air after being outed by Woman’s Day magazine for smoking while pregnant. According to the editor of the magazine, “Chrissie herself has admitted how grateful she is the photos were taken as they not only stopped her smoking but have sparked one of the most significant debates for women’s health in years.” The Herald article included a helpful link where readers could “watch Chrissie Swan’s tearful confession”.

Public health campaigns that advise of the dangers of smoking or drinking while pregnant are important, but as Parker says, they aren’t developed in a vacuum.

“It’s a real challenge for public health in an age of emphasis on the individual to think very critically about what a worthy public health message is,” she says. Like some other critics of last year’s White Paper, she points to impacts on maternal and fetal health that are much bigger than any single woman’s individual behaviour – like poverty, homelessness, insecurity and violence.

In many ways, it’s easier to focus policy attention on the vulnerable fetus and to target badly behaving women, particularly when the public often seems eager to join in and point the accusing finger. But such policies can backfire. In lengthy remarks on the issue of criminalising pregnancy, the special Rapporteur on health for the UN Human Rights Council, Anand Grover, has warned against shifting the burden away from states onto pregnant women, and argues that criminalising conduct during pregnancy may simply deter women from seeking help.

Perhaps, as Commissioner Wills suggests, we can both protect the wanted pregnancy and the rights of the pregnant woman. But in the headlong rush to do something, anything about how poorly we treat children, what won’t work is treating women poorly instead.

ENDS

by Gordon Campbell

The criticisms of Wikileaks founder Julian Assange spring from the accusations about (a) his alleged intolerance of dissent and criticism (b) his sexual behaviour in Sweden and (c) his rationale for seeking asylum in Ecuador’s London Embassy, rather than returning to Sweden and facing his accusers in court. A sense of betrayal is evident among some former supporters, such as Jemima Khan. At its heart lie the allegations of sexual predation on his part, made by two women in Sweden. The accusations are that on both occasions what began as consensual sex became rape in one case, and in the other, sexual molestation.

Assange has denied the allegations, and has offered to be questioned by the Swedish authorities, either in Britain and/or by video link. Returning in person to fight the accusations, Assange claims, would put him at serious risk of being extradited to the United States to face charges regarding the material taken by Bradley Manning and subsequently published by Wikileaks. Assange’s legal advice is that extradition to the US could occur, regardless of the outcome of the Swedish court proceedings.

This has been a disputed point. His critics argue that Swedish law prohibits extradition for charges carrying the death penalty or for charges of a political nature – but that stance seems disingenuous. If the US extradition request was merely framed in terms of criminal, not political charges – eg computer theft or collusion with theft by Manning of what Wikileaks later published – the extradition request would fall into a grey area where it is unclear whether the Swedish authorities would retain much discretion to refuse co-operation with the US request. It is only if the US publicly waives its intentions to prosecute Assange – which it has refused to do – that the Swedish prosecution could go ahead without the US extradition shadow hanging over it.

Currently, an impasse exists. Jemima Khan lost 20,000 pounds as her part of the bail forfeited by Assange’s supporters when he fled to the Ecuadorian Embassy. In a critical New Statesman article published early in February, Khan depicted Assange as being a cult-like leader intolerant of criticism – “an Australian L. Ron Hubbard” – athough the examples she offers seem utterly trivial. At the centre of her article though, Khan raises the issue of genuine substance: “The women in question have human rights, too, and need resolution. Assange’s noble cause and his wish to avoid a US court does not trump their right to be heard in a Swedish court.”

That is the basis of the current deadlock. Khan is right, but only half right. One could just as easily invert her argument by saying that the women’s right to be heard does not require Assange to undergo decades in a US Supermax prison regardless of whether he is found innocent or guilty of the charges in Sweden. There is no clean solution, and that helps to explain some of the heat in the rhetoric about Assange. (If only people shout loud enough, their side will drown out the other.)

Assange’s personal behaviour has hardly been blameless. Moreover, his decision to subordinate his accusers right to be heard in court to his desire to avoid imprisonment in the US has been laid open to challenge. Yet the celebrity worship that elevated Assange and is now denigrating him also seems highly dubious. Khan writes about Alex Gibney’s new Wikileaks film : “In many ways, the film’s narrative arc mirrors my own journey with Assange, from admiration to demoralisation.” To which one can say : was Assange’s celebrity ever about anything other than the personal ‘journey’ of his admirers and accusers? Only, it seems, if Assange goes to Sweden, is acquitted but martyrs himself in a US prison for a decade or more, would admiration be restored and a “ Free Julian Assange” lobby group then formed. Small consolation, in the circumstances. For now, Assange is refusing to go down that route – and as a result, the rape allegation remain unresolved in court. As a further consequence, Assange has become the poster child for the expendability of women’s rights for the greater good of left wing political causes.

Recently Assange’s lawyer Jennifer Robinson [pictured left] was in New Zealand with West Papuan independence leader Benny Wenda, as part of her work in an organisation called International Lawyers for West Papua. In a brief interview, Werewolf editor Gordon Campbell sought an update from Robinson on the legal aspects of Assange’s situation.

Campbell : The Swedish prosecutor in a press release had said that Assange – if her returned to Sweden – would be held in custody and wouldn’t be released on bail. And [allegedly] this would preclude his ability to claim asylum in Sweden. Is that correct?

Robinson : Yes. The situation Julian was facing was that there is a grand jury impaneled in the US but we have no legal way to flush out the Department of Justice to determine whether or not there is a sealed indictment in the US. We know the grand jury [investigation] is ongoing. We know their criminal investigation continues. We don’t know what the outcome of that is, because it is completely sealed. So he was in a position where he had exhausted his last appeal with respect to the UK – about going to Sweden. He knew that he going to be taken into custody in the coning days ahead of that. The Swedish prosecutor had put out a press release saying that she would put him in custody and that he would be held in custody pending charge and trial. Which meant that physically, he wouldn’t have the opportunity to seek asylum [from say the Ecuadorian embassy in Sweden] with respect to what might happen in the United States.

But he could have sought asylum in Sweden itself?

I don’t know enough about that to know. Yes, I guess he could have, I think his view was…he doesn’t trust Sweden.

Lets look at that. There are people who say his view of Sweden is false, and reflects a paranoia not grounded in the Swedish realities. They’d cite two strong counts:Swedish won’t extradite on a capital punishment charge and secondly, it won’t extradite for a political charge – which admittedly does leave the door open for a charge framed in criminal terms. Yet in the circumstances of this case, wouldn’t a criminal charge be seen for the de facto political charge that it is? So what’s the problem?

Well, I debated a professor of public international law – Pal Wrange – in Stockholm last summer. And we came to the same conclusion – that it depends entirely on what the US pleads its case as. It depends entirely on the criminal charges that are brought, and [whether] the charge is, on its face, not political, I understand under Swedish law that it can consider certain facts. But if on the face of it, it does not appear to be political – it if it is some sort of accessory / liability in computer crimes –

Yes, I understand how it could be framed as a criminal matter but –

It is entirely possible he could be extradited to the US. The legal advice we have from Sweden is that ultimately it will be a decision by the executive, and it is within the power of the executive to give an undertaking that they wouldn’t do that [extradite Assange] Also, because he is being extradited from the UK to Sweden, then the UK could insist on the rule of specialty, and insist that he not be extradited to any third country for any other crime, because he is only being extradited for that particular criminal investigation. And the UK has refused to do that. The point is… it is entirely possible to be extradited from Sweden. You don’t have to argue any collusion with the US. You don’t have to argue any political interference. It is entirely possible.

Legally possible. The question is whether it would be politically possible.

Would you be willing to put your life at risk for that possibility?

You wouldn’t be putting your life at risk. In this case, you’d be putting your liberty at risk.

Would you be willing to put your liberty at risk ?

Well, that’s his decision. And the longer he maintains that position, the more he erodes the consensus in Sweden that would be his best protection against extradition. I’m not saying there’s a simple way out of this. But that whittling away of support must be a concern, isn’t it?

Public opinion in Sweden has always been a concern. Because of the nature of these allegations. Because of the nature of the press coverage in Sweden. And because of the very public statements being made by members of the Swedish administration about Julian. oF course, we are concerned about the politcial climate in Sweden. I’m not going to venture an opinion on that, or any of his choices except to say that – legally speaking – it is possible to be extradited from Sweden. The assurances that were sought by Ecuador in the process of granting political asylum were refused. And that’s his legal position, as it stands.

Clearly, the role of jntermediaries will be crucial if this deadlock is ever to be broken. As Assange has pointed out, pressure could be applied to the US to publicly waive any intent to extradite him. The other obvious pressure point is Sweden itself, to provide an assurance that there would be no onward extradition, whatever the outcome of the trial. Arguably that would even be in accord with Sweden’s obligations under the Refugee Convention of…what’s the French term?

Non-refoulement?

Exactly*. So either a commitment by the US to waive prosecution or a public commitment to non-refoulement to the US by Sweden would break the deadlock?

Absolutely.

And obviously, those commitments are not going to be volunteered. They’ll have to be elicited. In that respect, what could the Australian government be doing – on behalf of its citizen – that it is not doing at the moment?

The Australian government could have done any number of things that we have been asking them to do for more than two years. We asked them to seek an assurance from the US that they wouldn’t seek his extradition. We asked them to seek an assurance from Sweden that they wouldn’t send him onwards to the United States but that he would be permitted to come home to Australia. They refused to ask for any of those assurances. Flat out refused. Its well within the power of a state to ask on behalf of its citizens.

We’ve asked for various due process assurances. In particular, political assurances that if Julian were to go to Sweden, that he would receive an assurance from the Swedish government that he could travel home to Australia after whatever happens, happens. But at least he’d be home [afterwards] in Australia. And the Australian government said “No.” The Australian government won’t even ask the US whether they are going to prosecute. We asked them – ask the US what their intentions are. [But] the only thing the Australian government has asked – which we have only able to detect through a Freedom of Information request – is that they be given advance warning if charges are brought, so that they can prepare their political response.

Couldn’t there be a legal rationale for that – in that the Australian government wouldn’t want to prejudge or preclude any beef that some third country may well have with Assange, given the global nature of Wikileaks?

No. All it would be requesting – and this is all a moot point, it is all only for background basically now. Because the Australian government was asked for two years and said no, and that’s the reason he sought asylum from another state. And Ecuador has asked all the questions that we asked the Australian government to ask, and were refused answers. But while it is now a moot point, no – it wouldn’t preclude further action. All we were asking is that he be returned to Australia, so that he could defend any future extradition request.

When it comes to public opinion, two elements are being put on the scales – the rights of the women to have their case heard, and Assange’s right to avoid political persecution. What is your answer to Khan’s point that the Swedish women have human rights too – and that they deserve to have their day in court.

We absolutely agree they deserve to have this matter resolved, as much as Julian deserves to have this matter resolved. He has offered his testimony to answer these questions for more than two years. He actually co-operated with the Swedish prosecutor while he was in Sweden. He sought her permission to leave and got that permission to leave. He was interviewed with respect to the allegations. He has been offering his testimony since then. All he is asking for is an undertaking with respect to onward extradition. If those could be provided, he is happy to participate. In no way, is he attempting to deny their right – he is asserting his own. He wants to resolve this. He hopes to resolve it. But not at the risk of being sent on to the United States. He continues to offer his testimony from the Ecuadorian Embassy. The Ecuadorian government has offered that to the Swedish government.

Khan’s point though is that Assange’s rights – and his desire to avoid a US kangaroo court – do not trump their rights.

He has never said that either. He has offered himself to be questioned and to answer their allegations. And with the appropriate assurances, he would go back and answer.

Have you seen the Alex Gibney film on Wikileaks ?

Yes, I was at Sundance…

Do you have a response to its handling of the legal position?

The film actually covers some important ground. It shows the importance of Wikileaks, at least in the initial states of the film. It shows how the New York Times has tried to distance themselves in ways that are rather unacceptable – in the way they’ve treated us all. With respect to Julian’s legal position..it does not refer to the Grand Jury. It does not explain the grand jury or how the Grand Jury process works. And then in the narration, Alex Gibney himself says ‘despite any evidence of a US secret plot, Ecuador grants asylum.” In order to understand the US position and the Ecuadorian government’s decision to grant asylum, you have to be able to understand what the grand jury is – that it is by its nature secret, and that we have no legal recourse to flush out the answers from the grand jury. It is simply a waiting game for Julian. And unless and until the US government make public what it has decided to do, we have no recourse. But we know the grand jury has been impaneled, and we know that Julian is the subject – that’s in the Bradley Manning proceedings. But none of that –

Is in the film?

None of it is in the film.

Perhaps the most damaging aspect of the Khan article is the characterisation of Assange as being at the centre of a dwindling cult of Scientology –like followers – from whom he demands absolute fealty. Is that the guy you know?

I would say that is not an accurate assessment. Wikileaks still has widespread support. My observation of the Wikileaks team – and I interact with them regularly – is they are an incredibly hardworking and intelligent-thinking group of people who question him constantly. I have no problem with people criticising – but cult-like status? That’s incredibly unfair. Wikileaks was set up – and Julian has worked tirelessly – to reveal Scientology…

Right. But its not about his attitude to Scientology. Its whether he is starting to evidence some of its traits.

How so?

By dint of – at least according to Khan – his obfuscation, and his lack of transparency.

Obfuscation about what, though ?

Obfuscation about his rationale for refusing to go to Sweden. Those arguments that he advances are being seen – fairly or otherwise – as excuses, rather than as solidly based concerns.

Well, these are questions that should be put to Julian, not to me. But he has explained his position. The Ecuadorian government has given a full statement on the matters that they have considered in granting him asylum. The Ecuadorian Foreign Ministry had an entire legal team analyzing the application. Julian had a full legal team that submitted the application, that was looked over by Ecuador and considered very carefully, and approved. Julian has made public statements giving the reasons for his seeking asylum. There are legal commentators on either side of the debate who agree one way or the other -

That a clear and present danger to him does exist?

Precisely. So I don’t think in any way he has obfuscated. He has been very clear about what his reasons are. People might disagree with them, but a lot of people agree with him. I don’t think you can call that obfuscation. He’s been very upfront.

Footnote * : Under the Refugee Convention, the non-refoulement obligation of ensuring Assange would not be extradited by Sweden onwards to a third country where he is at risk of political persecution rests finally with the United Kingdom. However, there is no sign the UK has sought or required any guarantees from Sweden about onward extradition.

ENDS

by Philip Matthews

Let’s imagine an alternate world in which Quentin Tarantino didn’t win the Palme d’Or for Pulp Fiction in 1994 and instead it went to Krzysztof Kieslowski for Three Colours: Red as most expected it would. Would history have been much different?

For critic Jonathan Romney writing about the Criterion DVD release of Kieslowski’s The Double Life of Veronique, that moment at Cannes marked “90s cinephilia’s turn away from the poetic-art-cinema tradition” of the final Kieslowski films. Sure, you can compare the fractured structures of the Three Colours trilogy to Pulp Fiction, except that in the Tarantino film, “the play of interlinked destinies was proudly exposed as a gratuitous effect of narrative game playing”. If the early-to-mid 90s was the age of unseriousness, irony and pastiche, then Pulp Fiction was its peak achievement. Kieslowski’s metaphysical art-house was looking so serious, so old-fashioned.

But I suspect that time has been kinder to the Kieslowski films than to Tarantino and his imitators. And maybe cinema’s ultimate award had a stunting effect on Tarantino. Other than the relatively low-key and even mature Jackie Brown – which sits in Tarantino’s body of work much like The King of Comedy sits in Scorsese’s – everything he has directed since has seemed like a regression. Two decades after the Palme d’Or we get second-hand stuff like Django Unchained.

There was another effect of that Palme d’Or. Tarantino had talked up both Reservoir Dogs and Pulp Fiction with recycled Jean-Luc Godard quips – “All you need for a movie is a gun and a girl”, “A story should have a beginning, a middle and an end, but not necessarily in that order” – and his production company was named A Band Apart, as a take-off of Bande a part (and then there was Uma Thurman in her Anna Karina wig). The thought occurred to more than a few that Tarantino was spearheading an American New Wave roughly comparable to the French one of 30 years earlier, with Tarantino as its Godard: its thinker, its greatest publicist, its chief radical, its director-as-star. Now France had anointed him. But actually, as the years go by, Tarantino looks more and more like an Orson Welles figure, forever tied to an early achievement.

His films are worse now than they were 20 years ago: more vulgar, more pointless, less connected to any reality beyond cinema. Which doesn’t mean they aren’t intermittently enjoyable and sometimes well-made (I hated Death Proof but I almost admired Tarantino’s adolescent urge to never let his audience get bored). And they can even be considered a perverse, degraded form of Godardism, like a Godard that is never political or cerebral.

Godard once said that his films were film criticism by another means – essays about film rather than essay films. So it is with Tarantino. The pastiche in Reservoir Dogs and Pulp Fiction (bits of New Wave and Scorsese colliding with bits of film noir and Asian cinema) became, in Death Proof, an idea that cinema’s power could be contained through totemic or fetishist means, and that a misanthropic driver (Kurt Russell) could be destroyed only by three women driving the Dodge Challenger from Vanishing Point. In Inglourious Basterds, cinema defeated the Nazis in a parallel World War II, which was either bold revisionism or dopey bad taste (I opt for the latter and agree with critic David Thomson that it was “the war film of a kid incapable of understanding the war except in movie terms”).

After the Holocaust, we get slavery. It is as though Mel Brooks and Oliver Stone were collaborating on Steven Spielberg subjects. Django Unchained is a revision of history in which a figure from 60s and 70s Spaghetti westerns and blaxploitation (Jamie Foxx as Django) is sent back 100 years, and as a freed slave, becomes a sidekick to a bounty hunter (Christoph Waltz from Basterds) and enacts his own revenge on white masters, thus changing the course of history, although less significantly than in Basterds. Structurally, it is Tarantino’s most conventional film yet. The narrative tricks and temporal games have disappeared. Stylistically, it falls awkwardly between grindhouse imitation – you get a few gratuitous crash zooms and some kitsch music – and well-made Hollywood classicism (it’s shot by Robert Richardson). Sometimes the parody of western clichés is broad enough to suggest an excessively violent Blazing Saddles. As ever, the soundtrack does a lot of the work, but we miss Sally Menke, who edited Tarantino’s films from Reservoir Dogs to Inglourious Basterds and died in 2010. The thing plods along and you could easily lop half an hour or more off it. An idea like this should be done in 90 minutes, and would have been back in grindhouse days. It gets interminable at about the point that Leonardo Di Caprio arrives.

It was said that language was central to Inglourious Basterds, as characters switched between English and German at key moments. It was about fluency, talking your way out of situations, as was Reservoir Dogs way back when. Both English and German feature in Django Unchained too but Tarantino’s usual facility for long-winded and incongruous speechmaking seems to have dried up, despite Waltz’s attempts to squeeze comedy out of some ornate verbiage (in other words, he says things like “ornate verbiage”). But, mostly, watching Django Unchained, you don’t only think that we’re a long way from whatever the achievements of Reservoir Dogs and Pulp Fiction were – and I still have fond memories of both films – but you also wonder, what is the purpose of this, beyond the display of Tarantino’s personal taste? It has nothing to say about American history, or the cruelty of slavery, and as entertainment it only really comes alive when people are being killed.

Remember that period, in the late 1980s and early 1990s, when every Oliver Stone movie felt like an event, or at least a provocation? It was as though you couldn’t be in the cultural conversation if you hadn’t seen them. But who would think of watching JFK, Wall Street, Platoon or Born on the Fourth of July now? Twenty-five years later, we go to Quentin Tarantino movies for the sole purpose of having opinions about Quentin Tarantino movies.

Harvey and Bob Weinstein’s Miramax was the company that distributed Reservoir Dogs, produced Pulp Fiction and had the most to do with the elevation of Tarantino to auteur celebrity. Accounts of that era of American cinema tend to paint the 1990s as the Miramax years, and Peter Biskind’s dutiful history Down and Dirty Pictures is largely about the trajectory of Harvey Weinstein as a mercurial mogul in the old tradition.

At some point in 1995, Miramax was presented with a script for Boogie Nights by Paul Thomas Anderson. According to Biskind, Harvey Weinstein ran screaming when he heard it was about pornography, having just come off controversy over Kids and Priest. (By and large, Miramax was more cautious than it liked to pretend it was – it buried Jim Jarmusch’s Dead Man and would often cut foreign-language films for the US). Instead, Anderson took Boogie Nights to New Line. In New Zealand at least, Boogie Nights was released to capitalise on the same kind of ironic retro appeal (a porn-disco 70s) that Pulp Fiction and Swingers mined, even though it went to much darker places.

Tarantino wasn’t the only one of his generation to make movies that were dependent on movie history. Todd Haynes and Paul Thomas Anderson – and, a few years earlier, the Coen brothers – were doing similar things. But over the years, their work has deepened and matured, whereas Tarantino has been stuck with a bad case of arrested development.

Anderson’s newest film, The Master, has been criminally under-released in New Zealand. While Django Unchained played multiplexes and was advertised on the back of buses, The Master has so far been limited to Auckland and Wellington. I caught The Master on a recent visit to Auckland and was one of an audience of two at the Academy. You wouldn’t want to seem bitter, but only a month or two earlier, its distributor, Roadshow Films, was crowing about getting The Hobbit onto 203 screens in 98 New Zealand locations.

Whatever. I guess The Master isn’t mainstream cinema – it might have been in the 1970s – even though it contains some of the finest acting you will see on either the big or small screen, beautiful cinematography and production design (the shooting is by Mihai Malaimare Jnr and the design is by Malick regular Jack Fisk), and faultless editing rhythms. You are so immersed in the old-fashioned pleasures of film-making that a conventional three-act narrative with conflict, resolution, back story and the rest seems less important. Which is a way of heading off the chief criticism thrown at this film – that it doesn’t deliver on story.

Actually, I think there are subtle ways in which it does. But I also think The Master is “about” other things. It’s well-known that it mimics a version of the early days of Scientology, with Lancaster Dodd (Philip Seymour Hoffman) as a parallel L Ron Hubbard and The Cause as something like Dianetics. Joaquin Phoenix’s Freddie Quell is horny, violent, drunken, like the id to Dodd’s ego, or the Caliban to his Prospero, the inner animal that he struggles to repress or rise above (Dodd makes speeches about overcoming your animal self). Quell has come out of the army, seems disturbed and shell-shocked – Anderson and Phoenix looked at a documentary about shell shock, Let There Be Light – and finds his way onto Dodd’s ship. Dodd puts him through “the Process”, which is roughly like Scientology’s auditing.

The greatest surprise is that The Master doesn’t really condemn its version of Scientology – it isn’t about exposing either Dodd or The Cause as a colossal fraud or his process as an exercise in abuse. There are ways in which Dodd’s system works for Quell. And that should cause you to reflect on its moment and its geography. Five out of six of Anderson’s films have been set in California. There was the suburban San Fernando Valley in Boogie Nights, Magnolia and Punch-Drunk Love. Then you went back 100 years to California for There Will Be Blood, with Daniel Day-Lewis doing an impersonation of John Huston in Chinatown as oil monster Daniel Plainview. A couple of generations pass, and in The Master we are in California immediately after World War II. This was a crucial time in California generally and Los Angeles in particular (see also Todd Haynes’ recent Mildred Pierce mini-series which is set in suburban Los Angeles in the 1930s). These films are about California and its promise and mythology as much as they are about the people in them. Scientology could only have happened as it did in California. You could say the same thing about Hollywood.

It isn’t just proximity that has made Scientology a big thing for actors. There is a way in which Scientology’s auditing is itself a version of an acting class – your self is just a persona, a character, a mask. Dig deeper. Go back 75 million years. Its exercises are about power over others, and the presentation of an impermeable self. Exactly what an actor is looking for. The Master gets into that, the shifts of personality. Hoffman’s performance has suggested Orson Welles in Citizen Kane to some, as though that’s the template for every audience-fooling blowhard. It is easily the best showcase yet for the remarkably raw and direct emotions of Joaquin Phoenix’s acting, even greater than the one Hollywood recognised (Walk the Line). You might even wonder about how this lost or damaged soul follows on from Phoenix’s presentation of himself as a lost or damaged soul in his weirdly misjudged pseudo-doc, I’m Still Here. In any event, I found The Master mesmerising and enigmatic, powerful without ever being obvious.

A quick footnote or two : After splitting with Miramax, the Weinsteins took Tarantino with them to the Weinstein Company. They supported Django Unchained, just as they indulged both parts of Kill Bill, the Grindhouse experiment and the problematic Inglourious Basterds. The good news is they also backed The Master.

The Paul Thomas Anderson film not set in California was his first feature, Hard Eight, a gambling movie set in Nevada, which established the father-son theme that has run through the writer-director’s work since (there, it was Philip Baker Hall and John C Reilly). In 1998, Roadshow Films – believe it or not – brought Anderson to New Zealand for interviews to promote Boogie Nights. He told me that the distributor changed the title of Hard Eight to Sydney for its US theatrical release as they were worried that Hard Eight sounded like a porn film. He was incredulous. Now here he was … well, too many ironies.

Anyway, Hard Eight is a smaller film, less flamboyant than what followed. And if you’re after some other interesting Joaquin Phoenix work, check out his films with James Gray, especially Two Lovers.

by Gordon Campbell

The Living Wage campaign has done the calculations. Essentially, a Living Wage would require a wage level of $18.40 per hour, or $736.00, before tax, for a 40-hour week. This would not be to deliver the middle class ideal of home ownership. It is the income necessary to support the basic necessities of life, and to enable people to feel they belong to society : as the campaign website puts it, “a living wage that will enable workers to live with dignity and to participate as active citizens in society.” The scary thing, as No Right Turn points out is that the Living Wage calculations include government subsidies such as Working For Families, and that underlines just how far this country’s private sector wage rates have fallen :

Its an example of how ingrained the culture of low pay has become in our society: it is now seen as a core duty of government to effectively subsidise corporate profits (and hence the incomes of the wealthy) by compensating for their sub-standard wages. We spend over a billion dollars a year doing this; meanwhile the idea of government regulating for decent wages (or even paying them itself) is apparently now politically unthinkable for the major parties.

So….where do we go from here in order to make the Living Wage become a reality? Not to mention to achieve a Universal Basic Income that can address the income/participation needs of the unwaged on benefits who could miss out on the Living Wage, just as they do not qualify for the Working For Families subsidies at present.

One way forward would be to vote for political parties who promise to regulate for a Living Wage and to increase the benefit levels. (Good luck with convincing the Labour Party to do either.) There is another avenue however. The political parties could be pressured to amend the New Zealand Bill of Rights Act, in order to put social, cultural and economic rights on the same legal footing as the civil and political rights that we already recognize under BORA. That way, people would have a legal mechanism to seek a decent standard of living as a fundamental right, and not as an act of charity bestowed by employers and/or by benevolent governments. It would also mean that all future legislation would have to be vetted for its impact on the standard of living – and for the extent, for instance, to which it may contribute to economic hardship and income inequality. Any retrogressive socio-economic legislation would then need to justify its existence.

This may sound like airy-fairy stuff. It isn’t. It might be the only way to escape from the whims and expediency of the government of the day. And luckily, the intellectual spadework has already been done. Wellington-based lawyer Joss Opie wrote his law thesis on the subject, and that’s available online (click item 6 on the list here.)

Fortunately, Opie has also published an accessible version of the same arguments in an article catchily entitled “A Case For Including Economic, Social and Cultural Rights in the New Zealand Bill of Rights 1990” published in last September’s issue of the Victoria University Law Review. That article is behind a paywall here.

Because of the paywall, I’ll try and summarise Opie’s arguments.

It probably isn’t a surprise that Geoffrey Palmer and the Labour government of the 1980s did not give legal recognition to economic, social and cultural rights (call them ESCR) in the 1990 Bill of Rights. Doing so might well have put a legal brake on the Rogernomics reforms, and invited the courts to weigh the social impacts against the wider good. The fourth Labour government did recognize civil and political rights – which constrain the powers of government – but it omitted ESCR, which it took to be more about what the public could legitimately expect of government. For the state to voluntarily constrain its powers was one thing – but giving people the right to challenge the socio-economic policy being tested on them was something else again.

Giving the two sets of rights a different status under our Bill of Rights makes little obvious sense. New Zealand has signed the International Covenant on Economic, Social and Cultural Rights and this took effect in December 1978. Article 11 affirms “ the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions.” – which clearly, the Living Wage campaign is still seeking, 35 years down the track. Article 7 affirms the right to “ remuneration which provides all workers, as a minimum…with a decent living for themselves and their families in accordance with the provisions of the present Covenant.” As Opie notes, the Covenant recognizes that some of the rights identified are capable of being met only over time : however, signatory countries did pledge themselves to the gradual realization of these rights :

States parties do not have to guarantee most of the Covenant rights immediately and in full. Instead, they undertake to take steps, to the maximum of their available resources, to realise progressively rights such as the right to social security or the right to adequate housing, until full realisation is achieved.

(Signatory governments also pledged not to take retrograde steps that would frustrate those rights, unless these can be shown to advance the general well-being of society) Given the current political debate on affordable housing, all of the above still seems highly relevant. In his VUWLR article, Opie tackles an actual case heard in 1996 that dealt with the state’s obligation to provide adequate and affordable housing for the poor. Lawson vs Housing NZ was brought by an elderly married couple (she in her 70s, he an 80-plus man in ill health) who were seeking judicial review of the Bolger government’s imposition of market rents on the home they had lived in for 49 years.

Opie analyses the actual court decision from two angles. One, the actual situation where the presiding judge considered himself unable to consider ESCR – and secondly, how that case ( and similar cases today) might pan out if the courts did possess that power. There is little doubt the Lawsons (and everyone since seeking state provision of adequate, affordable housing) would have fared far better with the ESCR protection, than without it. More on the Lawson case, below.

Why did Palmer and the fourth Labour government include the civil and political rights contained in the UN’s International Covenant on Civil and Political Rights within our Bill of Rights – while carefully excluding the economic, social and cultural rights set out in an equally important UN Covenant? Hadn’t New Zealand signed both documents, and doesn’t the rest of the world tend to treat them as complementary? Opie, again :

While the [BORA] Bill’s preamble referred to New Zealand’s ratification of the International Covenant on Civil and Political Rights (ICCPR) there was no reference to the ICESCR, and ESCR were intentionally omitted from the Bill. The reasons given for this in the White Paper [largely the work of Geoffrey Palmer] were that while the Bill should “capture and protect the continuing essence of our constitutional and political system”, it should not “attempt to capture (or more accurately to impose) a temporarily popular view of policy.” CPR were seen as “value free”, but ESCR were characterised as an attempt to “freeze into a special constitutional status substantive economic and social policies.”

These distinctions seem utterly arbitrary and self serving – especially when advocated by a government whose economic reforms had devastated the economic, social and cultural security of thousands of New Zealanders. Can giving legal protection to what New Zealand and the rest of the world had recognized as fundamental rights really be written off so blithely as a surrender to “ temporarily popular views of policy”?

Hardly. The Justice and Law Reform Select Committee that heard submissions on BORA didn’t think so, either. It felt that civil and political rights actually go hand in hand with ESCR. That may be why, in its final report, the committee said :

Fundamental social and economic rights … are obviously as important to New Zealanders as the civil and political rights in the White Paper draft…. In Appendix A the Committee suggests that some of these major specified rights could be included. It is recognised that effective exercise of civil
and political rights depends on securing an adequate standard of living, housing, health care and education.

Exactly. Today, the Living Wage campaign would agree. However, the Labour government proceeded on its set course. In 1992, Palmer justified his position in these terms :

To broaden a Bill of Rights so that it encompassed such broad policy questions would have made it unmanageable in my view and opened it up to ridicule. It also seemed to me that to state as fundamental rights matters which it was not within the power of government to deliver would cause expectations to rise, only to be dashed.

Hope – and need – continue to arise despite Palmer’s desire for constitutional tidiness. In a 2006 speech footnoted in Opie’s article, Palmer added for good measure that New Zealand judges just weren’t up the job, anyway. In his view, New Zealand’s judges did not have the requisite “background or capacities” to adjudicate on “social policy”. A few years previously – before the Zaoui case brought our judges up to speed – the same patronizing attitude used to exist about the ability of New Zealand courts to adjudicate on security issues as well.

Back in the real world, the battle to convince a succession of Labour and National-led governments to recognise economic, social and cultural rights continues. Would putting ESCR into the Bill of Rights really make a difference? Well, giving recognition to civil and political rights has made a difference, as Palmer has gladly trumpeted. Opie again :

Various commentators consider that the NZBORA has had not only an important impact in CPR [civil and political rights] cases, statutory interpretation and law-making, but also on policy. Palmer has contended that the statute has been “a set of navigation lights for the whole process of government to observe”, and that it has led to more principled governance in New Zealand.

No such luck on social economic and cultural rights, largely as a consequence of their deliberate exclusion :

It….follows that because ESCR are not generally included in the NZBORA or the HRA [Human Rights Act] they have a much lesser effect on statutory interpretation, law-making, and policy than they otherwise would. For example, because the NZBORA does not affirm ESCR, those rights fall outside of the state’s obligation to interpret statutes consistently with the NZBORA’s rights where possible; and outside of the review that the Attorney-General conducts of each Bill in order to comply with s 7 of the NZBORA. Further, while the Cabinet Manual requires that Ministers identify potential inconsistencies between Bills and “international obligations” (which include New Zealand’s obligations under the ICESCR), there is little evidence that proposed legislation is analysed for compliance with ESCR.

In other words, the omission has left a rather gaping hole in the way we devise and interpret legislation in New Zealand. The problem is not that our laws do not recognize ESCR at all – our health and safety provisions, minimum wage provisions, aspects of ACC and employment law (eg such as personal grievance measures) and such statutes as the Housing Act and Social Security Act protect and enforce certain aspects of ESCR. The problem is that the approach is so piecemeal. The protections on offer are limited, often indirect, and asre easily treated as the token afterthoughts that the politicians no doubt intended them to be. Often, the “social responsibility” clauses dotted through our social legislation are floating in space as mere acknowledgements that are all too easily brushed aside. Yet if ESCR had been embedded in our Bill of Rights, the injunctions on government and government departments to be socially responsible might finally get some teeth :

The critical difference between CPR and ESCR in New Zealand domestic law is that the law does not recognise ESCR themselves as fundamental, justiciable rights. As Geiringer and [Matthew] Palmer state, “[w]hat the New Zealand courts lack is the ability to test state and/or private action against broad [ESCR] protections. ”

Can we put this all down to being wise after the fact and exonerate the fourth Labour government? To be fair, Geoffrey Palmer’s objections in the White Paper to embedding ESCR were in a context when our fledgling Bill of Rights was being contemplated as supreme law, able to knock down other statutes. Ultimately though, it ended up as just another statute. All the more reason, one would think, to now embed the ESCR in a BORA no longer able to directly impinge on other statutes.

In passing though, it is worth thinking about the situation if our Bill of Rights had been given the status of supreme law. The United States and the United Kingdom – countries with far more complex systems of governance and incorporate than oiurs, and with many more checks and balances – cope with (a) US Supreme Court rulings and (b) Strasbourg findings on human rights. Do we really want to argue that the relatively simple New Zealand political system cannot cope with social, economic and cultural rights being protected by a far weaker kind of statute?

There is another, far better reason why these rights need protection by the courts. For much of the past 30 years, successive governments have seen fit to carry out socio-economic experiments of a very extreme nature. As Opie says :

The Labour Government…. went well beyond moderate reform. Instead, it carried out radical neo-liberal reforms of New Zealand’s state institutions and its economy, at great speed. The National Government continued this agenda following its election in 1990. In 1993, The Economist described these reforms as “more radical than any other industrial country’s”

As Opie demonstrates with chapter and verse, at the time the Bill of Rights was passed in 1990 there were already clear signs of the havoc that the economic reforms were wreaking on the social fabric of New Zealand – to the point where the deliberate exclusion of what could have been a useful safety net now looks inexcusable. For example:

Unemployment in the general population, seen as the natural consequence of a dynamic economy, rose from 3.8 per cent in 1985 to 7.7 per cent in 1990 and to 11.1 per cent in 1991. Figures for Maori and Pacific Islanders were much worse. This was largely due to heavy Maori
and Pacific Island dependency on unskilled wage labour, which the State had traditionally provided. When that work was cut back dramatically, Maori and Pacific Islanders suffered disproportionately and severely.

These figures are worth retrieving from the memory hole, if only because the communities affected are still enduring the consequences. Citing the economist Paul Dalziel, Opie notes that in 1991 the Household Labour Force unemployment rate for Maori was 27.1 % compared to 7.7 % among Europeans. The Polynesian rate was 28.6 per cent.. “It is not easy to imagine,” Opie writes, “ what having more than one in four workers unemployed does to a community – but for comparison, note that at the height of the Great Depression, the United States unemployment rate peaked at just under 25 per cent in 1933. That experience seared the psyche of the whole nation, and led to a range of institutional and policy reforms to prevent its recurrence.”

Needless to say, no comparable healing steps have been taken in New Zealand. Opie continues :

Income inequality grew, as did poverty. Between 1989 and 1992, “the number of New Zealanders estimated to be living below the [unofficial] poverty line rose by at least 35 percent.” As the number of people on benefits grew (almost doubling between 1984 and 1990), the value of benefits was reduced….Substantial cuts in education ($380 million) and health ($192 million) were also implemented. In addition, the Government began to charge for services which it had previously provided for free, or to increase charges. This included fees for tertiary education, which were raised significantly in 1990.

In other words, as tank was being driven through the economic, social and cultural rights of hundreds of thousands of New Zealanders, rights which the New Zealand state had solemnly promised the world it would protect :

A considerable increase in social distress became evident. Between 1974 and 1990 the rate of male suicide rose by 288 per cent, “with the greatest increase in the late 1980s.” Between 1991 and 1993, the Salvation Army registered a 1,117 per cent rise in the use of its food parcel service.

There is a point to repeating these figures, which could otherwise seem like ancient grievances. The point being that the ballot box had offered little in the way of protection, since successive Labour and National governments had routinely broken their election promises, eventually motivating the adoption of MMP as a brake on the abuse of executive power. The courts stood by, impotent, while all this happened. None of the architects of the abuses of this period in our history have been held to account – indeed, several have been knighted. Yet the social consequences are still with us, largely because the same economic policies (and punitive approach to those on benefits) remain in place. Given the history and consequences of this onslaught, the fact that the current New Zealand Bill of Rights continues to offer so little in the way of protection surely needs to be revisited. Opie puts it like this :

[Both] before and after the NZBORA’s enactment – the purpose of which is “to affirm, protect, and promote human rights and fundamental freedoms in New Zealand” – a series of retrogressive measures were taken which directly impacted upon the levels of realisation of New Zealanders’ internationally recognised ESCR. However, the lack of free-standing ESCR in New Zealand law meant that there was little scope for challenging any of the reforms on a legal basis, despite the fundamental human rights interests at stake.

In fact, none of the above is ancient history. We are living with the consequences. What the Living Wage Campaign appears to seek is a re-assertion of those “ fundamental human rights interests” by pinpointing the income required to meet them at their most basic levels, in 2013. Would having ESCR formally recognised in our Bill of Rights be a useful tool in reaching that goal? Undoubtedly. The affordable housing case that Opie analyses forms one of the most convincing part of his argument.

As mentioned above, the Lawsons were an elderly couple (one in ill health) who were subjected to National’s shift from subsidized to market rents – a policy phased in over four years from 1991. The Lawsons sought judicial review of that policy. In finally dismissing their application, the judge’s reasoning was just as striking for what he felt he couldn’t do – largely because he felt the Lawsons’ social and economic rights had to be treated as lying beyond his ability to consider – as for what he did focus upon.

Some of the reasoning still seems extraordinary. For instance : if Housing NZ had to consider the social and economic rights of the likes of the Lawsons, the judge reasoned, this would put them at a competitive disadvantage to private sector landlords, and inhibit Housing NZ’s ability to function as a business. (So much for the token social responsibility clauses in the housing legislation.) The government and Housing NZ knew full well what market rents would do to the likes of the Lawsons :

…[In] 1993, the Chair of the HNZ Board wrote to the Prime Minister, advising him that a rent increase planned for November 1993 would particularly impact on approximately 9,000 retired persons, mainly women, who would generally not be able to find alternative accommodation. These
people had in the past been the best tenants. The increase would result in their paying more than 40 per cent, and in some cases more than 50 per cent, of their income on accommodation. The Chair advised the Prime Minister that this would cause “considerable individual distress”.

The Government, however, decided to proceed with the rent increase apparently without implementing any of the remedial strategies the Chair suggested, on the basis of advice that “the figures might have been overstated”. Therefore, the Government not only knew that the availability of adequate housing in the market was limited, but also knew that its reforms would force many tenants out of their current properties (indeed that was its intention) and simultaneously increase demand for smaller properties which were already oversubscribed. Despite this, the Government appears to have simply assumed that adequate housing would somehow be provided by a combination of market forces, HNZ, private landlords and the accommodation supplement. This assumption was apparently incorrect.

Nothing much has changed about that “market will somehow deliver” stance in the years since. In dismissing the Lawsons’ pleas to review Housing NZ’s market rents policy, the judge found himself with limited resources to bring to bear, absent any evidence of fraud or corruption in the creation or application of the policy. According to the judge, the decision to increase rents was ‘ purely commercial.’ As mentioned above, the court considered that finding in favour of the Lawsons would put Housing NZ at a competitive disadvantage – in that it would have to charge less than private landlords, which would distort the housing market. (A bigger sin, evidently, than the ongoing failure of market forces to deliver a sufficient supply of affordable housing in Auckland.)

Although, as Opie says, the judge did acknowledge that the housing reforms had had “a seriously adverse effect on [Mrs Lawson's] financial position and on those who are similarly situated”, the judge also found that “any hardship which she experienced is insusceptible to judicial review.” In relation to Mrs Lawson’s claim regarding the right to life, the judge found that “an unduly strained interpretation” of the right would be required for it to apply to Mrs Lawson’s circumstances. Further, even if the right were applicable, the Judge held that the reforms constituted a reasonable limit on the right under s 5 of the Bill of Rights noting that “the provision of subsidised rental housing is no longer regarded as being as important in the public interest as was formerly the case.” Finally, the judge also dismissed Mrs Lawson’s allegation that the Ministers had not given proper regard to available alternatives, and to relevant international obligations – holding that it was not for the court to judge whether the government of New Zealand has fully complied with those obligations.

In 2013, it may seem that the Lawsons case belongs to a distant past, given that the market rents policy no longer exists. In fact, as this year’s events have shown, the extent of the state’s responsibility for providing adequate, affordable housing remains a pressing social and political concern, 17 years after the court declared it had no legal means to give the economic and social rights of the vulnerable very much weight.

Putting such mechanisms into the Bill iof Rights and into the hands of judges would not mean every individual would get their particular grievances heard ans satisfied. Opie, at the conclusion of his article, makes that point very clearly : generally speaking, he says, the judge in the Lawsons case was correct in stating that a court should be reluctant to intervene in areas with high policy content. That shouldn’t be the end of it, though :

Where there is evidence of considerable prejudice to people and indications that their rights (whether at international or domestic law) are being breached by a certain policy, a substantive judicial review of the justifications for and proportionality of that prejudice, and of the measures taken to ameliorate it, should be available.

Such a review will not necessarily lead to a finding that a particular measure is impermissible, and indeed a finding in favour of the measure will strengthen its legitimacy. In the case of the housing reforms, given their severe consequences for many state tenants, the ability to invoke a rights-based, substantive judicial review would have been entirely appropriate (whatever the outcome of such a review). It would also have been consistent with New Zealand’s international obligation to protect the right to adequate housing.

by Gordon Campbell

Talk about a stealth attack. It turns out that Argo should have been the film that everyone hated for its daredevil US interventionism and its ‘journalistic inaccuracy’ – aka making up stuff about things that really happened. This guy makes a really, really convincing case (in a story amusingly headlined “Argo, F…K Yourself”) for why everyone should hate Argo and all it creepily stands for – and this guy does too, from a Canadian perspective. In a perverse way though, the “Best Picture” award for Argo only goes to confirm its relative lack of worth. Of course they gave the Oscar to the feelgood flick directed by the middleweight actor. That’s what they do. (Think Robert Redford, and how his puny Ordinary People film beat Raging Bull.) The fact is, no one expects much from Ben Affleck, and the Iran hostage crisis happened so long ago that the details don’t matter to anyone but a few pissed off Canadians, New Zealanders and Brits who were there at the time, and resent Affleck’s lies about what their country did during the events onscreen. By contrast, we’re still living in the Bush/Obama foreign policy era portrayed in Zero Dark Thirty. That saddles it, as Slant magazine said, “with the burden of responsibility.”

I liked Zero Dark Thirty even though I hated its politics. Go figure. On the face of it, the hunt for Bin Laden seems like an unlikely topic for a $30 million film. The same went for Elephant (about the Columbine shootings) and United 93, about the hijacked 9/11 flight. We know how these stories end. Yet in each case, pretty fascinating, disturbing movies resulted. For all the jingoism evident in Zero Dark Thirty, I found it interesting that director Kathryn Bigelow filmed the moment when Bin Laden gets shot – who was that peeping round the corner in the greenlit darkness? – as undramatically as possible. This was not the monster at bay, crashing in cinematic ruin. It looked exactly what shooting an unarmed elderly diabetic in a darkened corridor would look like. An anticlimax, and confusing. Was that him? Good. In fact, yay ! Now, let’s get out of here.

However, the film’s claim to journalistic truth and accuracy – and the uses to which the selective sense of verite has been put – fed a backlash that knocked the film right out of Oscar contention. (Liberal Hollywood preferred killing the Dick Cheney-ish vice president in Homeland to celebrating Cheney’s torture policy in this movie) As her many critics have pointed out, Bigelow primes the audience to believe her film will be factually accurate. It begins with an onscreen statement that what we’re about to see is “based on first-hand accounts of actual events.” Real cellphone recordings from some of the doomed people on the morning of September 11, 2001 are then heard, against a black screen. Jump to a graphic fictionalized portrayal of a torture scene that includes waterboarding, based on accounts by black site interrogators.

That’s how the film starts. There’s similar attention to historical detail in the conclusion, a brilliant 40 minute reconstruction of the helicopter raid on the Bin Laden compound in Abbotabad, Pakistan. That section too, was based by scriptwriter Mark Boal on versions provided by the US participants. If you’re interested, here’s a fairly exhaustive list of the film’s main characters, and the real life people they were based on.

In sum, journalistic accuracy was the declared norm and framework for rampant fictions allegedly introduced only when (and if) dramatic effect demanded it. Oh sure. That’s the rub. In fact, journalistic accuracy went out the window repeatedly – and often at crucial points in the narrative, and it totally skewed the film’s moral centre.

A major plank in the film’s claims to fidelity is that the central character – an obsessive young CIA agent called Maya in the film, played by Jessica Chastain – is based on a real life CIA operative. She was the same person nicknamed “Jen” in the best-selling memoir No Easy Day, written under the pseudonym “Mark Owen” by Matt Bissonnette, a Navy SEAL who took part in the Bin Laden raid. While the film-makers claim that “Maya” is a composite character based on several CIA agents, the main inspiration for Jen/Maya is reportedly an alleged agent called Alfreda Frances Bikowsky.

Bikowsky can be seen standing in the doorway at the rear of the famous photo of Obama watching the live feed of the Bin Laden raid. (See left.) Who-ever Jen/Maya is in real life, she was also the inspiration for Carrie Mathison, the impetuous CIA analyst in the TV series Homeland. She still seems to be creating waves within the CIA. According to this Washington Post story, she has been bypassed for promotion since the Bin Laden raid, and made part of an internal investigation into the scope and propriety of the CIA’s co-operation with the Zero Dark Thirty film-makers :

The operative, who remains undercover, was passed over for a promotion that many in the CIA thought would be impossible to withhold from someone who played such a key role in one of the most successful operations in agency history. She has sparred with CIA colleagues over credit for the bin Laden mission. After being given a prestigious award for her work, she sent an e-mail to dozens of other recipients saying they didn’t deserve to share her accolades, current and former officials said.

Sorting out the truth from the fiction is compounded by the fact that the Obama administration clearly want to disown the film’s portrayal of how prevalent torture is/was, and how useful it was ( or wasn’t) to the US war on terrorism. (It would have been a foreign policy embarrassment if this film had been festooned with Oscars this week.) For different reasons, Zero Dark Thirty has generated fury among Bigelow’s liberal audience. That anger has two major triggers (a) the torture of detainees by US forces and their surrogates – while brutal – is shown to yield information crucial to the finding of Bin Laden and (b) the film offers no political or ethical context for the events it depicts.

For example : the fact that the FBI and CIA battled over the legality and utility of torture is not shown. The fact there was dissent within the CIA ranks about torture is also omitted. True, Obama is shown onscreen in a TV news clip calling torture un-American, but that view is presented in a context where such views seem wussy, and pointedly, Obama is being completely ignored by the CIA analysts in shot. By default , the film becomes a megaphone for their jingoism. For clarity, I’ll treat these two strands separately.

Torture. Why the big fuss ? For starters, torture is a war crime condemned by international treaties that the US has signed. From the outset of the war on terrorism, “enhanced interrogation techniques” (aka torture) quickly became controversial on ethical grounds, and on doubts about the reliability of the information produced. Were this brutality really extracting truth, or merely what the desperate captives thought the torturers wanted to hear?.

In his defence of the film, Mark Boal has argued that torture was a feature of the early hunt for Bin Laden and since the film unfolds chronologically, he felt it imperative to begin with the scene involving the interrogation of the character called “ Amar.” However, the fact that torture existed – and was brutal – isn’t the point of the controversy. What Zero Dark Thirty claims is that torture (and the mere likelihood of further torture) gets useful results, and those results were crucial to finding Bin Laden. The evidence says otherwise.

Hey, but it’s only a film, says its defenders. Even as just-a-film, they add, the film can also be taken as merely an accurate depiction of a belief system dominant within the CIA. From there, it’s just a short jump to Bigelow’s claim that depiction is not endorsement. I’m more inclined to think that the constant repetition of that same viewpoint without challenge throughout the film cumulatively amounts to an endorsement. Yet to be as fair as possible on this point, one can certainly read the film’s script at the conclusion of the first graphic scene in a variety of ways. You can read it as torture being either brutal and essential or as torture being self-brutalising and futile. Here’s how Boal’s script depicts the scene, as the US interrogator switches to using soothing Good Cop tones on Amar :

Daniel : Its cool that you’re strong. I respect it, I do. But in the end, everybody breaks, bro. Its biology.
Dan and Maya exit. They’ve learned nothing.

Later however, Dan and Maya return to the tasks of torture – and ultimately, Amar does deliver up information. Everybody breaks, bro. (In reality, some black site detainees stayed silent and died under torture, or gave up lies.) Later in the film, the mere threat of rendition to Israel induces an older detainee to collaborate : “I have no wish to be tortured again – ask me a question, and I will answer it.” Later again, after American policy on torture has officially changed, a CIA official complains about needing proof to satisfy the White House that the mysterious inhabitant of the Abbotabad house really is Bin Laden : “You know we lost the ability to prove that when we lost the detainee program – who the hell am I supposed to ask: some guy in GITMO who is all lawyered up?” Damn. Where’s a torture programme when you need it, in order to satisfy those pussies in the White House ?

All of this may – at a stretch – be justifiable as the viewpoint of the fanatical characters who remain the sole, solitary focus of the film’s narrative. Yet that narrow focus is a choice, not a given – and the decision Boal and Bigelow made to exclude any other viewpoint on torture’s (a) moral justifiability and (b) practical utility can only be read one way. As Fox News demonstrates, the repetition of a wilfully narrow perspective – even one held sincerely – produces a ‘truth’ that is untrue, and pretty dangerous. To paraphrase a moment in last year’s presidential campaign, Zero Dark Thirty risks being what Americans say to each other about torture, in order to make themselves feel better.

Was Torture Significant in Locating Bin Laden ? In the film and in real life, the path to Bin Laden came down to identifying the importance of a courier nicknamed Abu Ahmed al–Kuwaiti. In a Washington Post op-ed published only days after Bin Laden’s death, Senator John McCain – who had been tortured in Vietnam – hotly denied that torture had been of any use in finding Bin Laden.

I asked CIA Director Leon Panetta for the facts, and he told me the following: The trail to bin Laden did not begin with a disclosure from Khalid Sheik Mohammed, [pictured left] who was waterboarded 183 times. The first mention of Abu Ahmed al-Kuwaiti — the nickname of the al-Qaeda courier who ultimately led us to bin Laden — as well as a description of him as an important member of al-Qaeda, came from a detainee held in another country, who we believe was not tortured. None of the three detainees who were waterboarded provided Abu Ahmed’s real name, his whereabouts or an accurate description of his role in al-Qaeda.

In fact, the use of “enhanced interrogation techniques” on Khalid Sheik Mohammed produced false and misleading information. He specifically told his interrogators that Abu Ahmed had moved to Peshawar, got married and ceased his role as an al-Qaeda facilitator — none of which was true. According to the staff of the Senate intelligence committee, the best intelligence gained from a CIA detainee — information describing Abu Ahmed al-Kuwaiti’s real role in al-Qaeda and his true relationship to bin Laden — was obtained through standard, non-coercive means.

McCain’s account was supported by Charlie Savage and Scott Shane in their New York Times investigation of the trail that led to Bin Laden. The NYT story indicates the person who provided the initial information on Al-Kuwaiti was someone called Hassan Ghul – which makes him the best available candidate for being the “Amar” character in the film – but Ghul’s disclosure was emphatically not the result of coercive interrogation. Even then, as the film accurately depicts, the crucial bit of interpretation came from routine, exhaustive file checking by a young woman and admirer of Maya, working in the CIA back room.

So why then, did Boal/Bigelow so thoroughly distort the truth about torture? To my mind, Emily Bazelon in Slate has offered the best explanation. They were in a hurry, they narrowed their focus to keep narrative momentum, and they got captured by their informants in the process:

My own theory is that with perhaps more access to the real-life CIA agents who hunted Bin Laden than any journalist has had, Boal and Bigelow adopted their sources’ interpretation, in which the “small role” played by torture looms larger than it does in the journalistic accounts. The filmmakers didn’t set out to be Bush-Cheney apologists. But they adopted a close-to-the-ground point of view, and perhaps they’re in denial about how far down the path to condoning torture this led them. (Surely it didn’t hurt [or help] that the scenes with Amar are as riveting—as pure cinema—as they are disturbing.)

You don’t have to prove that torture never works, Bazelon adds, in order to reject it utterly.

All of this means is that Zero Dark Thirty isn’t the movie the left wanted made about the death of Bin Laden. But as the debate about the movie unfolds, we opponents of harsh interrogation need to remember that we can make the moral case against torture—and even the cost-benefit case that it’s not worth the trade-off in reputation, political capital, and honor—without resorting to the claim that torture never accomplishes anything. In his op-ed, John McCain also said, “I know from personal experience that the abuse of prisoners sometimes produces good intelligence but often produces bad intelligence because under torture a person will say anything he thinks his captors want to hear.” That’s the unfortunate, uncomfortable truth. But we can make room for a little gray and still come to a conclusion—the United States should not torture—that is resolute.

The Film’s Worldview The contrast between the Homeland TV series and Zero Dark Thirty is instructive. While neither remotely realistic nor a paragon of balance, the TV series does at least allow the terrorists to voice a rationale for their actions. (One of its main plot points turns on the killing of children by a US drone attack.) During the “Broken Hearts” episode in its second season, the CIA’s heroine Cathie Mathison even got to debate with terrorist mastermind Abu Nazir about the moral equivalence of suicide bombing vs drone attacks. Jihadi tactics are barbaric, she says. Your drone attacks are inhuman, he responds. Barbarism vs techno-inhumanity? Both kill the innocent.

Nothing similar occurs in Zero Dark Thirty, which is an exercise in pure, self-righteous US victim-hood. “They attacked us on land in ’98, by sea in 2000, and by air in 2001. They murdered 3000 of our citizens in cold blood ! ” one CIA manager angrily yells at his staff. The roll call of terrorist attacks – in London, at Camp Chapman in Khost, Afghanistan, at the Marriott Hotel in Pakistan, the Richard Reid shoe bombing and the Times Square attempted bombing are all cited and/or depicted – and attributed to al Qaeda’s central command, not to freelancers. In its entire 137 minutes, the film’s only rationale for why America has been attacked comes via a TV news clip of New York mayor Michael Bloomberg saying that the terrorists ‘hate our freedom.’ Couldn’t some character have been allowed to voice a mention of America’s own citizen-killing actions ?

Art and Politics – What Boundaries? Like her heroine Maya, Bigelow was for a long time a relative outsider in a male-dominated Hollywood environment. Shorn of its torture rationale and jingoism, the film might have won a liberal constituency on that score alone. Its hard not to feel positive to a female character who, when asked who she is by her boss, replies “I’m the motherfucker who found this place, sir.” As the Washington Post noted, this is not the usual persona you see onscreen in an entertainment industry where women actors typically get cast as Wife of Someone + She Cries. As Mark Boal said of Maya’s role in his screenplay :

[Maya] is portrayed in such a way that her identity isn’t structured around her relationship with men, or isn’t structured around suffering from a neurosis or sexual addiction or whatever. Those are some common tropes for defining women in film. They are what they are; I obviously didn’t choose to deploy them.

Good politics don’t guarantee good art. And the reverse – artistic brilliance in the service of noxious politics – still leaves most people ( well, people like me) with a problem. That’s why Birth of a Nation and Triumph Of the Will remain difficult to accept, wholeheartedly. To be kind, Zero Dark Thirty’s politically dodgy frame of reference may be a reflection of the speed with which it was made. This film was written, cast, shot, edited and reached cinemas in New Zealand within 20 months of the events it depicts. That’s a strikingly different timeframe to how previous wars were dramatized. With very few exceptions, it usually took a decade or more for mass audiences to accept recreations of WW11, and of the wars in Korea and Vietnam. Even a biopic of US WWII hero Audie Murphy didn’t get made until 1955.

Since the first Gulf war, that’s all changed. And even though the rationales for the wars in Iraq and Afghanistan seem utterly bogus, the films made about those conflicts are laying claims to documentary realism. Its as if reality has been flipped. The official version is now treated as fiction, while the fiction presses its claims for realism. The result is intensely political, regardless. More often than not, the films become hymns to the hardbitten, hard done by US grunts on the front lines, doing a dirty job because is has to be done by someone. That’s Zero Dark Thirty, in a nutshell.

Footnote : Does it help (or block) our identification with Maya/Carrie Mathison to know that the CIA agent who inspired those characters was also involved in one of the CIA’s more serious screw-ups?

The German car salesman Khaled El-Masri was abducted during a vacation in Albania, rendered, and tortured – before the CIA finally realized that uh oh, it had the wrong spelling for the guy’s name they were really after. Reportedly, “Maya” was convinced throughout of El-Masri’s guilt. Since then, the Obama administration and US legal system (all the way up to the US Supreme Court have blocked his attempts at seeking compensation. The same single mindedness that led ‘Maya’ to Bin Laden appears to have contributed to this terrible mistake.

Ironically, Mark Boal and Kathryn Bigelow started out making a film that might have reflected this kind of moral ambivalence. Reportedly, the pair began working on a Bin Laden film while he was still a will o’ the wisp, which would have put an entirely different spin onto the torture scenes. With Bin Laden still alive, it would have made them more of a self-defeating exercise, in the pursuit of a ghost. Once Bin Laden got found and killed, the narrative changed and the moral centre of the film shifted with it. Maya became a heroine – and no longer the dangerous obsessive that she also was, and arguably still is.

by Maggie Murphy

This article is reprinted from the UK website Open Democracy

Ambiguity is the scourge of human rights law. For decades, lawyers have chiselled away at declarations and conventions, seeking to clarify in terms of black and white the obligations of states towards their citizens. With the passing of time, additional international treaties were drafted specific to different demographic slices, such as women or children or people with disabilities with the aim of further cementing in crystal clear terms the universality of rights as they apply to all peoples.

An insidious process now threatens to cloak those lucid words in a nuanced shade of grey. Efforts have been made by some member states of the Human Rights Council including China, Cuba and Pakistan – but led by the Russian Federation – to push through a process to legitimise the concept of “traditional values of humankind” as the basis for human rights law.

In September 2009, a Human Rights Council Resolution presented by the Russian Federation called for the establishment of a one-off expert panel to discuss how a better understanding of traditional values can contribute to human rights protection and promotion. The resolution scraped by with the support of only 26 of the 47 member states. One of the key conclusions of the subsequent panel held a year later as voiced by the UN Independent Expert in the field of Cultural Rights, Ms Farida Shaheed was the “danger in making something as undefined and constantly evolving as “traditional values” the standard for human rights.”

Nevertheless, the Russian Federation saw fit to disregard such advice and submitted a follow-up resolution in March 2011 seeking to further entrench the concept of traditional values in the work of the Council. Once again it was the most controversial of that session, and passed with just 24 of 47 votes. The resolution welcomed the outcomes of the expert panel but then for the first time, formalised the following statement as the position of the Human Rights Council:

The Human Rights Council […]

3. Affirms that dignity, freedom and responsibility are traditional values, shared by all humanity and embodied in universal rights instruments;

This operative paragraph appears innocuous enough. However, what should be most worrying for human rights activists – and especially for those gathering in New York next month for the 2013 UN Commission on the Status of Women, which has adopted the elimination and prevention of all forms of violence against women and girls as its priority theme this year – is what is excluded from this position, and for no given reason. The resolution supposedly draws from the 2010 expert panel. The expert panel included just two substantive sessions. The first was entitled “Human dignity and equality” and the second, “Freedom and responsibility through the prism of different cultures and traditions”. Despite re-iterated warnings from experts and states alike that traditional values were not only difficult, but dangerous to define, and that tradition and culture can be used to undermine the universality of human rights principles, only three of the four concepts from those panel discussions found their way into the resolution’s language presenting the supposed position of the Human Rights Council; dignity, freedom and responsibility. The concept to get the cut? Equality.

Sidestepping the concept of equality in a debate about traditional values – and doing so without explanation or rationale – demonstrates the dangerous path down which the Russian Federation and its supporters are determined to push the concept. And without equality at the core of human rights discussions, the very universality of human rights is threatened.

The 2011 resolution goes on to task the Advisory Committee, often referred to as the independent think-tank of the Human Rights Council, composed of independent members, to conduct a study on how “traditional values of dignity, freedom and responsibility” – but not equality – can contribute to the promotion and protection of human rights”.

The Russian member of the Advisory Committee drew up the first draft of this study and shared it with the rest of the Committee in February 2012. As was feared, the universality of human rights came under attack. The first of two very worrying assertions reframed human rights as something that is dependent on one’s behaviour rather than something innate;

“Human rights arise from the dignity and freedom of the individual and his or her responsible behaviour in respect of society and other people”.

It goes on to say that “these universal values are criteria that should be used in determining the level of respect for and promotion of human rights”. The decades-old principle of universality has in one short study been rendered conditional on responsible behaviour, a term as subjective as “traditional values”. The task of adjudicating responsible behaviour conjures up a chorus of dissenting voices, from members of Pussy Riot, to the Egyptian female protester whose assault was captured on video, to Wodjan Ali Seraj Abdulrahim Shahrkhani, to Malala Yousafzai, to the 23 year old student brutally gang-raped on a bus, to NedaAngha-Soltan and to many other unnamed, invisible people. Each of them has had their “behaviour” judged and condemned, often with horrifying consequences. Responsible behaviour when judged is judged by people in power. No wonder that women and members of minority groups often fall into the irresponsible category.

The second worrying assertion is the promotion of traditional values above human rights law. The study, which when adopted is intended to guide the work of the Council states that;

“All international human rights agreements, whether universal or regional, must be based on, and not contradict, the traditional values of humankind. If this is not the case, they cannot be considered valid”.

Laws that are based on traditional values allow for the promulgation of further ambiguous (and therefore threatening) terms. This was the case with the insertion in Tunisia’s draft national constitution, now removed, that women have a “complementary” role to men. In addition, anyone from a demographic group that has not held a position of power to influence majority traditional values stands to have these laws unfairly used against them. Ethnic, religious and linguistic minorities and other minorities along lines of sexual orientation or political persuasion are most likely to have their rights stripped if they are not deemed to act in a “traditional enough”, or “responsible enough” manner.

The draft study also takes the stance that traditional values are wholly positive, enthusing for example, over the traditional role of families without a pause for reflection on their role in honour killings, forced and marriages, FGM, infanticide, virginity tests, witchcraft accusations and inheritance laws amongst others.

The process being led by the Russian Federation and allies would be less insidious but for the way it has been conducted. Outcry from civil society, who have been largely sidelined from the process to date caused an entirely new, much more measured draft to be presented in August 2012. The process was deemed “hijacked” by Catholic groups. The Advisory Committee requested further time to present a final draft to the Human Rights Council in March 2013. Threatened by the more balanced report, the Russian Federation decided to push through another resolution in September 2012 without waiting for the final draft. This resolution disregards concerns about negative impacts of traditional values and instead calls for states to submit “best practices in the application of traditional values while promoting and protecting human rights and upholding human dignity” and for these to be summarised by the High Commissioner for Human Rights, Ms. Navi Pillay and presented to the Council in September 2013. According to the International Service for Human Rights, Russia held just one single negotiation with other states, long enough to hear the resolution be “heavily criticised”, before ceasing further negotiations. It was adopted with just 25 votes of 47.

The debates scheduled to take place in Geneva, March 12-13 will inevitably see renewed vigour by some states to re-instate traditional values principles from the discredited first draft, above the cautioning approach of the second. What remains to be seen is whether this movement can gather force in the newly shaped Human Rights Council following elections at the General Assembly late last year. Nine of the 25 states who voted in favour of the most recent ‘traditional values’ resolution had their terms expire at the end of 2012, and amongst them were the strident voices of China and Cuba and protagonists, the Russia Federation. By comparison, only five of the states (Mauritius, Hungary, Mexico, Belgium and Norway) who voted against the resolution in September 2012 will not be able to vote in 2013.

Will the states for whom universality and clarity of international human rights law is better cloaked in ambiguous, regressive concepts, stripped of the principle of equality, have the strength to move forward without the Russian Federation at the helm? The key may reside with member states from Latin American such as Chile, Uruguay, Peru and Guatemala who have been criticised for abstaining, whilst simultaneously voicing apprehension and concern about the resolutions. An optimist might say however, that they are showing the Russian Federation how these contentious processes should be done – by listening, engaging and allowing for revisions and second drafts before placing a decisive vote. However, rights advocates need to secure their keenly anticipated “No” votes and stronger stances to bring to an end this re-emergence of regressive, in-egalitarian concepts.

In a world in which gender and minorities know no national boundary or regional bloc, it is an indictment of outdated power structures and diplomatic politicking that concepts threatening equality on all levels of society remain at the heart of UN politics in 2013.

This article is reprinted from the UK website Open Democracy
(Creative Commons) Attribution-Non-Commercial 3.0 Unported (CC BY-NC 3.0)