Libertywatch March 2016
Round up of civil liberty related news in March 2016.
Adoption
Calls for urgent reform of New Zealand adoption laws
New Zealand's 61-year-old adoption laws are discriminatory and outdated, according to a new ruling by the Human Rights Review Tribunal.
A Human Rights Review Tribunal decision, which comes after two years of legal battles, has found the Adoption Act 1955 and the Adult Adoption Information Act 1985 contradicts the Human Rights Act and the Bill of Rights Act by discriminating against people based on sex, age, marital status and disability.
The current law stops civil union partners or same-sex de facto couples from adopting. It also places restrictions on single men trying to adopt a female child and stops anyone under the age of 25 from adopting.
The Adoption Act is over 60 years old and no longer reflects New Zealand’s values and practices, urgent law reform is needed,” said Chief Human Rights Commissioner David Rutherford.
“We urge Government to make the necessary legislative changes to remove the discriminatory provisions of these laws to ensure that our adoption legislation reflects societal norms and expectations: reform is long overdue.”
Hrc.co.nz 9/3/16
Broadcasting
Survey's questions about Māori biased – Human Rights Commission
The Human Rights Commission says Kiwis should think before they link to an online survey launched by the state broadcaster that poses leading and biased questions about Māori New Zealanders.
The “Kiwimeter” has been touted by TVNZ as the biggest survey of national identity ever undertaken with thousands of New Zealanders taking part.
In one question Kiwimeter states “Māori should not receive any special treatment” and asks respondents for their opinions on this.
“This is a leading statement demonstrating a clear bias: Kiwimeter has decided Māori already receive ‘special treatment’ even though they do not explain what this actually means,” said Karen Johansen, Indigenous Rights Commissioner.
“The Treaty of Waitangi settlements process is a judicial form of truth and reconciliation that acknowledges human rights abuses faced by generations of New Zealanders: to describe it as ‘special treatment’ is disingenuous and wrong.”
The Commission states that they support open discussion about national identity but urged the state broadcaster to think carefully about where their leading questions are taking respondents.
Scoop.co.nz 11/3/16
Criminal Justice
Poor court cell condition linked to death
Poor conditions at an Auckland court cell contributed to a man taking his own life there, the Independent Police Conduct Authority has found.
In May last year, police arrested Dwayne Walters for breaching his bail conditions and took him to Counties Manukau police station. Mr Walters had reportedly threatened suicide, but no concerns regarding his welfare were communicated or recorded by any police officer at the station, the IPCA report said. Mr Walters was transferred to Papakura District Court later that morning and remanded in custody after his court appearance.
He returned to the court cells waiting to be transferred to the Mount Eden Corrections Facility, but just before 4pm that day an officer found the man had taken his own life in his cell.
IPCA chairman Judge Sir David Carruthers said the cell's poor condition was a "significant contributing factor" in Mr Walters' death. "The cell should not have been maintained in a way that presented this level of risk to occupants."
The authority found a large number of other court cells throughout the country operated in similar conditions. A review was completed on all court cells across the country and a national programme of work was being developed to ensure all court cells were maintained to an appropriate standard.
"The authority is satisfied that in response to its investigations, and the concerns expressed, prompt action has been taken by the ministry. The authority anticipates it will be kept abreast of progress and completion of the work programme," Sir David said.
Otago Daily Times 17/3/16
Concern for transgender prisoners raised
New Zealand's prison population is approaching 10,000 inmates, an all time high. To deal with the rise, Minister of Corrections Judith Collins has proposed an increase in double bunking. Placing prisoners in the same cells has advocates afraid for prisoners' safety, particularly transgender inmates.
The lawyer for No Pride in Prisons, Whangarei barrister Kelly Ellis, has said that an overwhelming number of trans-women are kept in men's prisons because they can't afford to change their birth certificates. Alternatively, they can apply to be transferred to a female prison under the 2014 Transgender and Intersex Prisoner policy. However, Ellis said, "While trans-people have the right to apply to go into women's prison, this often goes by the wayside."
Ministry of Corrections chief custodial officer Neil Beales says, "Corrections is committed to ensuring transgender and intersex prisoners are treated respectfully and according to their needs while maintaining the safety and security of other prisoners". Every application for placement in a gender-specific prison is considered on its own merits, but if it's unsuccessful, transgender prisoners are assigned to a prison according to their gender recorded on their birth certificate.
Vice.com 24/3/16
Employment
“The right to work in just conditions is a human right”
The Human Rights Commission says New Zealanders’ right to work in just and favorable conditions will become more of a reality with the scrapping of Zero Hour contracts.
“The right to work in just and favourable conditions is a human right, work plays a central role in the quality of life enjoyed by New Zealanders and their families,” said Equal Employment Opportunities Commissioner Dr Jackie Blue.
“Contracts that require workers to be available without guaranteeing those workers any paid work are unjust and open to abuse. Thousands of low income earners across the country, many of them women, Pasifika, Maori, disabled and younger New Zealanders, will be favourably affected by this important development.”
A parliamentary bi-partisan agreement to introduce a minimum hours of work clause will effectively eliminate zero-hour contracts. In their submission to the select committee the Commission recommended a change that would guarantee minimum hours as well as full minimum wage protection.
“Vulnerable population groups have been more likely to be subject to zero-hour contracts and other exploitative employment conditions. Workers who are constantly concerned about income security perform less well at work and this income insecurity impacts negatively on health,” said Dr Blue.
“Today’s decision better protects the right of all New Zealanders to work under conditions that are just and favourable.”
New Zealand is a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 7 of which provides that all persons have the right to just and favourable conditions of work; fair wages and equal remuneration; and remuneration that provides a decent living for the worker and their family.
Scoop.co.nz 10/3/16
Freedom of Information
Library blocks tabloid websites
Auckland's Central City library blocked access to The Daily Mail and Daily Star websites on computers available for public use, although other tabloid sites, including The Sun, The Daily Express, The Mirror and the New York Post, were accessible.
Auckland Council's digital and service development manager Greg Morgan said there was no specific list of blocked sites maintained by the council. Instead, access to websites was only restricted when certain kinds of content were detected by filtering software. This included "adult content, harmful and stealth content, and hacking content," Morgan said.
If library users thought blocked websites were not objectionable, library staff could provide manual exceptions.
New Zealand Herald 27/3/16
Policing
Allegations that New Zealand police racially profile African youth
Police and African community leaders have met after allegations that police are racially profiling African youth.
The dispute arose after the release of AUT University research that claimed African youth felt unfairly targeted and sometimes racially abused by police.
Young Africans told AUT researcher Dr Camille Nakhid that police have stopped them on the streets or in cars for no apparent reason except their colour, beaten them, racially abused them, told them to "go back to your country" and even told them to go back to Mt Roskill when they visited the North Shore.
Police say while they cannot respond to single incidents without more details, they take cultural concerns very seriously.
Dr Nakhid posted two questionnaires on Survey Monkey last April and advertised them to young Africans through Facebook and other media. The main survey drew 84 respondents, of whom 31 per cent had been stopped by police and 3.6 per cent had been arrested. She also interviewed 31 young Auckland Africans, including 25 from Somalia, Ethiopia and Eritrea.
Only 13,464 people of African ethnicity were counted in the 2013 Census, just 0.3 per cent of New Zealanders. Sub-groups included 1617 Somalis, 1245 Ethiopians and 243 Eritreans, who all came here mainly as refugees from civil wars, many without husbands or fathers.
Young Africans are not offending at a higher rate than the national average, police say. A spokeswoman said only 12 out of 5000 (0.2 per cent) of the police database of youths aged 14 to 16 identified as African, less than their 0.3 per cent share of the national population aged 15 to 29.
"Valuing diversity is now one of the core values of the NZ Police and we have a responsibility to encourage and grow the cultural competencies of our staff and actively recruit from all communities," she said.
The police website lists 13 Maori, Pacific and ethnic liaison officers across the three Auckland police districts and eight in the rest of the country. Only one, in Christchurch, is listed as speaking an African language (Shona), but the spokeswoman said one African officer was also working in Auckland.
Former Race Relations Conciliator Gregory Fortuin said the police had responded positively since he first raised concerns about unfair treatment of minority groups in 2001. "But if there are individual cases, it should not be tolerated in 2016," he said.
Police downplayed the research on Friday, with Superintendent Wally Haumaha saying they were "disappointed" with the "unsubstantiated claims". The research by AUT social sciences associate professor Camille Nakhid involved a very small number of individuals aged 16 to 31, some of whom were known to police, he said. "I do not agree with the generalised findings of this report which are at odds with the very positive feedback we receive from our African and other ethnic communities," Haumaha says.
However, African Communities Forum president Kizito Essuman said the researcher findings were shocking and needed to be treated seriously. "Even if there is only one person coming out to share his or her experience about Police abuse on the street, one case is too many at this civilised age.
"These are real stories by real people in our community and cannot be swept under the carpet."
Otago Daily Times 4/3/16 & Stuff.co.nz 5/3/16
Privacy
University CCTV watching Dunedin’s student quarter
The University of Otago is planning more CCTV for Dunedin's student quarter, following confirmation it was behind a camera watching a popular party street.
A CCTV camera, installed on a University-owned building on Albany St in early February, was monitoring Hyde Street. However many students on the street said they were not aware of the camera, despite the Office of the Privacy Commissioner recommending people be made aware of CCTV, while others expressed concern over it watching their every movement. There was talk on the street about a possible petition to have the camera removed.
Deputy Proctor Andy Ferguson confirmed the camera was one of 18 watching public streets or public walkways, and was part of a network of 400 cameras, most inside university buildings.
The University was planning a proposal to the Dunedin City Council and police to roll out more cameras in public places around campus streets, "to keep residents safe and deter dangerous and antisocial behaviour, such as lighting fires".
That was likely to include the notorious Castle St, with cameras already on nearby Abbey College.
Ferguson said as the Hyde St camera viewed a public place, "we have not needed to notify students directly".
"For residents and people not doing anything unlawful or harmful to others, they have nothing to worry about – we won't be interested. It is simply another tool, another pair of eyes, no different to when a campus watch staff member has seen something that shouldn't be happening on their regular walks around campus.”
Stuff.co.nz 2/3/16
Council puts secret listening device in couple's garden
A Christchurch couple was shocked to discover the city council was spying on their dogs using a listening device covertly placed in their garden.
The move has astounded Jenny and Tim Bennett and a human rights lawyer, who said the couple's right to privacy has been breached. The Christchurch City Council admitted on Tuesday it used the devices and normally sought permission before installing them. That did not happen in the Bennett’s case.
It has now recalled all listening devices until its animal management officers have received refresher training to ensure they followed correct procedure. The council has 18 devices and has used them for the last five years.
Human rights lawyer Michael Bott said the council's action's were "outrageous" and breached the couple's right to privacy. "It's the sort of thing you would expect by someone from the KGB or more lately the GCSB (Government Communications Security Bureau)."
He said the council's actions seemed "excessive, disproportionate and on the face of it unlawful". He did not know of any statutory power the council would have to covertly place surveillance equipment on someone's property.
Council regulatory compliance head Tracey Weston said the listening devices were used once all other steps had been taken to determine excessive dog barking.
She said the device on the Bennett's property was the only one placed without permission.
"The council's practice is to only use these listening devices on a property with the permission of the owner."
The device was able to pick up voices, but animal management officers could not recall a situation where they had heard conversations on a recording. The council's policy was to disregard anything heard on the recording other than barking, Weston said.
Stuff.co.nz 16/3/16
Spying
Security Bureau may be given permission to spy on Kiwis' private information
New Zealand's foreign intelligence agency should be able to spy on Kiwis' private communications, a wide-ranging intelligence and security review has recommended. At the same time, a new single piece of legislation to govern both the activities of the Security Intelligence Service and Government Communications Security Bureau (GCSB) would contain a beefed-up authorisation process, designed to safeguard privacy.
However, that could be overridden in urgent situations where there is a threat to life, or a brief window of time to obtain intelligence critical to national security.
The Government-ordered review, released today and completed by former Labour Deputy Prime Minister Sir Michael Cullen and lawyer and professional director Dame Patsy Reddy, contains 107 recommendations.
Sir Michael told a press conference that such co-operation between the two intelligence agencies was the intent of the current law. A lack of clarity about what the law permits and recent high profile controversies meant the GCSB had taken an overly conservative approach, which, it is claimed, could lead valuable lines of investigation to being dropped, and ultimately put New Zealanders' safety at risk.
Future reviews will be carried out every five to seven years. Dame Patsy and Sir Michael said it would be likely that in the future a full merger between the agencies could be considered.
Under the single piece of legislation proposed, all of the agencies' activities would require some form of authorisation. A three-tiered system was recommended, with higher level of scrutiny for activity that is more intrusive or targets New Zealanders.
Tier 1 would require a warrant approved by the Attorney-General and a judicial commissioner. Such sign-off would be required for activities that would otherwise be unlawful and target a New Zealand citizen, permanent resident or organisation.
Tier 2 would require a warrant issued by the Attorney-General for activity that would otherwise be unlawful, but not targeted at New Zealanders or New Zealand organisations.
Tier 3, the lowest level, would need a policy statement issued by the Minister responsible for the agencies after referral to the Inspector-General.
Currently the Minister in Charge of SIS and GCSB approves warrants. Under the new regime and before green-lighting a proposal, the Attorney-General and judicial commissioner would need to be satisfied of a range of conditions. Tier 1 or Tier 2 conditions could be granted "to test, maintain or develop capabilities or train employees for the purpose of performing the agency's functions".
Asked how happy New Zealanders would be to be "guinea pigs" for staff training, Sir Michael said there would be clear and stringent internal protocols.
The tiered process could override the authorisation process if there is an imminent threat to the life or safety of any person, or a delay in obtaining the information is likely to seriously prejudice national security.
The Chief Commissioner of Intelligence Warrants would be notified immediately in such cases, and the Attorney-General and Commissioner would consider an application after the fact, and order any intelligence to be destroyed if the application is declined.
Other new safeguards include allowing non-New Zealanders to complain to the Inspector-General of Intelligence and Security, and expanding the size of the Intelligence and Security Committee of Parliament to a maximum of seven members.
The review also backed the extension of the Countering Foreign Terrorist Fighters legislation, which is due to expire on March 31 next year. That law, which was rushed through Parliament, gave the SIS greater powers of surveillance. Today's review recommended an additional safeguard, in that any decision by the Minister of Internal Affairs to cancel a passport should be reviewed by a judicial commissioner.
Any access to intelligence held by a foreign partner should still require the appropriate level of authorisation, the report recommended, in order to stop agencies using foreign partners to collect information they could not lawfully obtain themselves.
The report found that, of all the security leads the SIS investigates, about half are received from foreign intelligence partners.
New Zealand gained considerably more from its international intelligence partnerships that it provides in return, the report stated. For example, for every intelligence report the SIS provides to a foreign partner, it gets back 170.
Mr Key, also the Minister of National Security and Intelligence, has welcomed the report and stated that he believed that most New Zealanders would look to the Government to get the balance right between keeping them safe, and inevitable trade-offs with privacy and human rights.
Mr Key also noted that new legislation could be put forward by July, although not all the proposals would necessarily be adopted and the public could have a say through select committee.
New Zealand Herald 9/3/16