New Zealand Council for Civil Liberties

“...the concentration of power and the subjection of individuals will increase...in the same proportion as their ignorance.” 

Alexis de Tocqueville, Democracy in America, Part II, Book IV

The complaint about Immigration New Zealand from the New Zealand Council for Civil Liberties to the Chief Archivist, which is posted on this website, has highlighted the importance of being vigilant about the activities of government to ensure full records are created and maintained.  The complaint stems from the recent news story about Immigration New Zealand issuing a directive to its workers not to record (i.e. omit) any information or rationale that may lead to extra paperwork and be subject to scrutiny in judicial review or complaint to the Ombudsman.

Open and democratic government

Limited access to information helps to breed corruption in a government, and laws giving access to information are designed to counter this.  These laws promote honesty in government through accountability and transparency by providing the citizens with a legal right to obtain full and accurate information about the activities and decisions of their government.  This in turn increases democracy, and confidence in the governmental process.  The right to information is a fundamental requirement for citizens to be able to fully understand government policies, which in turn can help to create a more informed public who can then more ably take part in the democratic process and, ultimately, can better hold a government to account. 

The importance of freedom to information is recognised internationally.  The Law Ministers of the Commonwealth declared in 1980  “public participation in the democratic and governmental process was at its most meaningful when citizens had adequate access to official information”.^[1]  In 1995 the United Nations Special Rapporteur on Freedom of Opinion and Expression noted that “the right to seek or have access to information is one of the most essential elements of freedom...”.^[2]  In 1999 the Law Ministers of the Commonwealth adopted principles that considered the right to know and freedom of information to be a human right. 

Openness and NZ law

Here in New Zealand the Official Information Act (OIA)(1982) states that one of its purposes is to encourage the more effective participation of people in the making and administration of laws and policies, and promoting the accountability of Ministers and officials.^[3]  The Bill of Rights affirms the right to seek, and receive information.^[4]   The Declaration on Open and Transparent Government, which was approved by Cabinet on 8 August 2011, stated, “building on New Zealand’s democratic tradition, the government commits to actively releasing...data”.  In noting that access to information is a right not a privilege, the declaration recognised that the government holds data on behalf of the New Zealand public, and that releasing it encourages more involvement in government decision-making.^[5]

Openness without record keeping is pointless

However without the government creating and maintaining full and accurate records regarding their activities and decision-making, any law guaranteeing access to information is worthless.  An accountable and effective record-keeping programme is essential to the provision of access of information to the public.  In the Declaration of Open and Transparent Government it was recognised that the data and information that the government holds on behalf of the public must be open, trusted and authoritative, and well managed.  This has been highlighted by the case of the Immigration New Zealand directive not to record information.  This directive directly contradicts the Public Records Act 2005, which states that one of its purposes is to enable the Government to be held accountable by “ensuring that full and accurate records of the affairs of central and local government are created and maintained”.^[6]

Even with strong legislation in place that guarantees the public access to information, if there is no proper creation and management of records then government simply cannot provide access to the information that citizens may request.  If governments do not maintain these records then they cannot be transparent in their actions or held accountable for those actions, in effect rendering any freedom to information acts toothless.

Round up of civil liberty news for March 2012.

Round-up of civil liberty news for February 2012.

Round-up of civil liberty news for January 2012.

Back in August 2011 we wrote about the New Zealand Police censoring the Greencross site - a website arguing for the legalisation of marijuana for medical uses. The police claimed that the censorship was because the website was breaking the law, but refused to identify any law that was broken and have not laid any charges or applied for a court order to get the site closed. We said:

Whatever your opinion about using marijuana for medicinal purposes, it seems clear to us that there is nothing illegal about calling for a change in NZ's marijuana laws and that there is nothing illegal about the Greencross website. We are disturbed that the Police believe they have the power to shutdown a political website.

We followed up with the Police Commissioner, who forwarded our letter to Russell Gibson, District Commander of the Central District. His response is bizarre:

My responsibility is to enforce the law as devised by Parliament. It is neither appropriate nor helpful for me to become involved in a debate regarding political issues.
From my perspective I am satisfied that Detective Sergeant Paroli was working within the boundaries of the law and his motivation was simply to close down a site which assisted/encouraged offending against the Misuse of Drugs Act.

The police defence

The District Commander starts by saying he doesn't want to get involved in political issues - but that's exactly what his staff member has done by shutting down a political website.

He then tries to defend the action taken by his staff member by making a very weak link to the Misuse of Drugs Act. (We note, for the record, that the Act does not make it illegal to call for changes in New Zealand's drug laws). By doing so he completely ignores the fact that the police are not the right people to be making censorship decisions and trying to shut down freedom of expression in New Zealand.

If District Commander Russell Gibson doesn't want to get involved in political issues he should make it clear to this staff that censorship of political views is not part of their job description.

Police censorship

We stand by our original position that the police's attempt to get the Greencross website shut down was an inappropriate use of powers that they do not and should not have. We are disappointed that police leadership do not recognise this and have defended the actions of the officer involved.

Round-up of civil liberty news for November and December 2011. There is also our yearly review.

The past year has seen continuing challenges to the values of privacy, not just from the state, but employers, teachers, and even parents seem to be increasingly disregarding the notion of a right to privacy. It was reported in May that the Government was considering using bracelets for monitoring home detention that could detect the presence of alcohol use through secretions in the sweat, and in a trial of a scheme in the Bay of Plenty police officers were paying visits to known recidivist drunk drivers, even though no complaints had been made just to let them know that police are “keeping an eye on them”.

Schools

In the same month it was also reported that the Secondary Schools Principals Association President announced that most schools now used network managers and teachers to monitor their pupils’ social network sites, such as Facebook and Twitter, for evidence of misbehaviour. Schools were increasingly using other ways of monitoring their pupils outside school activities. Breathalysers and sniffer dogs were increasingly being used by schools to check people for alcohol and drug use at school balls. The teachers, seemingly being increasingly encouraged to see pupils as potential criminals and themselves as acting in the role of police, were given more powers to search students and their belongings, including cell phones, diaries and laptops, and issued with guidelines on how and when to carry out these searches.

The police were concerned about some of these increasing intrusive developments when in September they refused to carry out random sniffer dog searches claiming that they were in danger of breaching the children’s civil rights. The police stated that they were happy to assist principals, but only where there was reasonable suspicion that pupils were carrying weapons or illegal drugs.

Video Surveillance

Employers at Wellington International Airport were found to be using a private investigator to secretly filming employers in their coffee room. One employee who was sacked after being accused of misconduct was given a chance to get his job back after the Employment Court ruled that evidence gathered in such a way was illegal. A law change under the Private Investigators and Security Guards Act has now made such activity legal. The covert use of surveillance by police officers was also bought into question when a ruling in the case of those arrested in the Urewera Raids went against the police and their use of evidence that had been collected through the use of devices placed illegally on private land. The government later passed legislation to suspend the judgment’s applicability to 40 trials and 50 police operations that were already underway.

Apparently, no space is too private to be considered open for surveillance. Wainuiomata High School was just one school that was reported to installing cameras in toilets. The Kaikoura District Council was also reported to be doing the same thing.

Alcohol and Drug Monitoring

There is a seemingly growing desire to screen everyone’s behaviour. The alcohol advisory group of New Zealand (ALAC) wanted to extend the British Royal College of Psychiatrists advice, that all those aged over 65 visiting a G.P. should be screened for alcohol use, to cover the whole population. In a similar move the Social Development Minister Paula Bennett backed drug testing of welfare beneficiaries, amidst claims from the Employers and Manufacturers Association (EMA) that up to 50% of the workforce were now routinely screened for drug use.

Spying on Each Other

The state and employers cannot always observe our behaviour, so individuals are being encouraged to act and think as spies. Software was made available in New Zealand called MyFone, which lets parents remotely see all the numbers called and answered on their children's phones, and the content of all texts. A device was also made for sale and marketed for parents to track their children’s use of a car including its speed and location history.

We were all encouraged to spy on our neighbours when the Security Intelligence Service (SIS) announced the launch of a website where it asked the public to confidentially and anonymously pass on any information that may pertain to threats on New Zealand’s security and way of life. The online form states that “as part of the community you may have information which can contribute to defending and enhancing New Zealand’s security…”. The Security Intelligence Service was also given stronger powers in new legislation passed in July, which led to the Human Rights Commission (HRC) expressing concern about the Act’s diluting the accountability of the already often secretive SIS.

Police Use of Weapons

The appointment of a new Police Commissioner, Peter Marshall, saw the relaxation of the rules surrounding the police and their access to firearms. In May it was announced that every frontline police car was to carry semi-automatic rifles and pistols. Similarly, the access to tasers was relaxed. Police were now able to routinely carry a taser if they felt they were heading into danger whereas previously they had to get permission from a superior. In July, The Sunday Star Times reported that Tasers had been used 102 times in dealing with suspects since their introduction in March 2010. Somewhat concerningly, they also noted that they had been accidently discharged 108 times in the same period.

Race Relations

The issue of race continued to bubble away under the surface of New Zealand society. July saw reports that two bus drivers had refused to allow two Muslim women, who were wearing a veil, admission onto their bus. The bus company claimed the men weren’t racist but merely suffered from “maskophobia” and had been sent for counselling. Nevertheless the HRC said that the incidents appeared to amount to racial discrimination.

The Human Rights Annual Review of Race relations published in March noted that 2010 had seen an increase in the number of complaints made to the HRC about racial discrimination, mostly because of the response to broadcaster Paul Henry’s controversial comments about the Governor General. The report, however, expressed positive comments about the growth of Te Reo Maori, the cultural diversity of Parliament, and the settling of historic Treaty of Waitangi claims, although it voiced concern that stricter laws surrounding the punishment of criminals, such as the three strikes law and the removal of the prisoners’ right to vote, would disproportionately affect Maori. On a similar line, the lobby group, Rethinking Crime and Punishment, called for an inquiry into why the rate of imprisonment of Maori is so disproportionately high. They pointed out that over 40 per cent of adult male Maori have received a prison or community based sentence, at some time in their life, and that this is six times the rate of non-Maori.

Sexual Equality

Research by the Royal Commonwealth Society (RCS) described New Zealand as the best place to be born female in the Commonwealth, but it noted that women earn 72 per cent of the wages of men. The Greens raised the profile of the issue of gender inequality of pay with a bill that proposed that a woman doing the same work as a man should have the right to know his pay. The Equal Opportunities described it as disturbing that a large number of women did not know if they were receiving equal pay. In a response to the Green’s proposal, the head of EMA, Alasdair Thompson, found himself dismissed from his position for his suggestion that women got paid less because their productivity was lower as many of them “took sick days once a month”.

Internet

The notion of Internet access being a human right came under the microscope with the passing of a law that aimed to prevent the illegal sharing of copyrighted files. Under the new law, anyone accused of letting their Internet connection be used to share such files could be fined with very little opportunity to defend themselves.

Summary

It has to be noted thought that a succession of reports throughout 2011 gave New Zealand positive ratings in comparison with the situation in other countries. The most recent, The Democracy Index, compiled by the Economist Intelligence Unit, listed New Zealand as fifth in a table of 165 nations measured across five categories, namely, electoral process and pluralism, civil liberties, how government functions, political participation by the public, and political culture. However despite the good reputation New Zealand enjoys, there is no room for resting on laurels, and the eternal vigilance of a civil liberties group such as the New Zealand Council for Civil Liberties is always necessary if we are to protect the rights we have.

Round-up of civil liberty news for October 2011.