Liberty Watch - August 2013

Civil liberties news for August 2013.

Criminal Justice

Plans to publish criminal records on-line

Major changes to improve public access to court documents are planned.  Justice Minister Judith Collins has described the current system, where people often have to apply in writing to the courts for access to information, as "completely insane."

She wants all decisions online once the courts have completed a move to an electronic operating model next year. The documents would effectively act as a public register of criminals and improve public safety, she said.

The idea is backed by Chief District Court Judge Jan-Marie Doogue who believes it is important the public understand the reasoning behind court decisions making the court process more open.

"We welcome any development which would enable the decisions of the District Court to be available in a timely fashion...This would enable transparency and accountability," Doogue said. 

Media Freedom committee member Clive Lind said Collins' plan would be a great way of getting information about court proceedings into the public domain. "What we do at the moment doesn't make sense with today's technology."

The Sensible Sentencing Trust is also behind the changes, which it believes are long overdue. It was often a battle for victims to get hold of information, spokeswoman Ruth Money said.

Collins has also proposed changes that would see information about deported criminals made available on request to the public, or through an open register of serious offenders.

The Press 11/8/13

 

Child Abuse Policy Must be Subject to Democratic Process

“Minister Paula Bennett proposal for a wide reaching policy aimed at suspect child abusers, deserves the fullest consideration possible,” says Kim Workman, Spokesperson for Rethinking Crime and Punishment.  He was commenting on the announcement that wide-ranging measures, including restraining orders, will soon be in use to keep suspected child abusers away from children for up to 10 years.

“While we need to be prepared to take whatever action is effective to stem child abuse, legislative measures of the kind proposed, can often have unintended consequences. For example, we already know that family members will often not report suspected child abuse, if it means that the perpetrator is likely to be separated from the family for a long period of time. They will however, insist that the perpetrator undergo a sex offender’s treatment programme as an option to being reported to the Police or CYPS. Non-mandated approaches are often more successful in the long term,” Workman added. 

He also called for comprehensive public consultation process around these measures that would include the provision of advice from a panel of experts, and the opportunity for public submissions to the appropriate Select Committee. He also called for a report from the Attorney General under Section 7 of the Bill of Rights Act, on whether the proposed legislation breaches the Bill of Rights, or any international covenants to which New Zealand is a signatory.

Workman noted that, “Over the last three years, government has introduced eight Acts of Parliament which are in breach of the Bill of Rights. Six of the eight have been criminal justice legislation directed at offenders and prisoners. In the last three cases, the Attorney General did not report to Parliament on the breaches, as he is required to do.”

“What New Zealand doesn’t need right now, is one more piece of legislation that is passed in contempt of democratic principles.”

Scoop.co.nz 13/8/13

 

Bracelets to monitor alcohol use

The Cabinet has approved the introduction of alcohol-monitoring bracelets for high-risk offenders and those bailed in the community.

Corrections Minister Anne Tolley said alcohol was a major driver of crime, and the monitoring bracelets were another tool available to the police, to increase public safety, and reduce reoffending.

It is expected that up to 475 offenders and people on bail will be fitted with the bracelets each year, only being fitted to those considered of high risk to the community.

The ankle bracelets detect the presence of alcohol through the skin.  A signal is sent to a central monitoring system and if alcohol is detected action will be taken, such as arrest or a breach charge being laid in court.

Legislation will be introduced into Parliament later this year allowing the Department of Corrections and police to carry out alcohol and drug testing on offenders and bailees who are subject to a court order or Parole Board condition prohibiting them from using alcohol and drugs.

Final decisions on funding and the precise technology used will be made following a procurement process currently being carried out by Corrections for all electronic monitoring equipment.

Otago Daily Times 16/8/13

 

Police tracking our worst drivers

Police, through the use of new technology that is used to compile and plot where and when bad drivers may offend, are tracking New Zealand’s worst drivers. 

The technology collates bad driving behaviour and traffic offences from several data sets, including driver complaints, speed camera data, tickets for parking in disabled parks, and running red lights.  It also will includes public calls to the police's *555 complaints line, their 0800 Crimestoppers line, and online "community road watch" notifications logged against a car's licence plate number.  By using the data, drivers' offences will be plotted on maps, which can then be used to intercept them along the routes where they are known to offend most.

However, a civil liberties lawyer has criticised the latest technology.  Michael Bott said, "We were told with speed cameras there would be no further consequences after you paid the fine..."Now we're being told it will go into a database and be followed by police. It appears to be a case of overkill."

Mr. Bott expressed concern that the compilation of the data was another step towards a "nanny state" and that there was also the potential with the *555 service for callers to be vindictive or petulant. "What say you get two people making complaints? Will they start monitoring the person? It's got elements of the Salem witch trials."

Wellington police district intelligence manager John O'Keeffe said a trial project had been running for only a month, but would be strengthened with a four-strong road intelligence team. 

Taranaki Daily News 19/8/13

 

Sweeping changes to bail laws pass into law

Serious violent, sexual or drugs offenders now face greater hurdles to getting bail after sweeping changes to bail laws under The Bail Amendment Bill were backed by Parliament.

The bill will require that a person on a murder charge or repeat violence, drugs or sex charges would now have to persuade a judge that the community would be safe if they were released.  Under present law, the Crown must show why defendants should be locked up.

Justice Minister Judith Collins said the legislation put victims at the heart of the criminal justice system. She was confident it struck the right balance between public safety and a defendant's right to be considered innocent until proven guilty.

Opponents argued that people would be locked up for longer on the presumption that they would offend again in future, and is breach of the Bill of Rights Act.

New Zealand Herald 28/8/13

 

Employment

Facebook used in worker dismissal

A flight attendant was forced to let her bosses examine her Facebook pages and bank accounts in a dispute over the validity of her sick leave.

The employment court move signals a future where bosses will increasingly demand access to what most workers regard as private details, says employment lawyer Andrew Scott-Howman.

The worker was sacked by Air New Zealand earlier this year following a dispute over sick leave she took to care for her sister.  She said she did not misuse sick leave, and went to the Employment Relations Authority (ERA) seeking reinstatement.

Air New Zealand responded by demanding to see her Facebook and bank details.

The worker refused, saying it did not have that information when it dismissed her and that,  "it is well accepted in New Zealand there are general and legal privacy expectations about people's personal and financial information."

The ERA however ordered her to hand over details for March 8 and 9 this year saying they would provide "substantially helpful" evidence.  "The explanation for taking sick leave must be tested for veracity," said ERA member Tania Tetitaha.

Facebook information had been used previously to sack people, but adding bank account data went a step further, Scott-Howman said.

Dominion Post 11/8/13

 

Equal Marriages Right

Same sex couples celebrate first weddings in New Zealand

Nine same sex couples had registry weddings on19 August according to the Registrar-General of Births, Deaths and Marriages Jeff Montgomery, but others were married in churches and other venues after The Marriage (Definition of Marriage) Amendment Act made New Zealand the first country in the Asia-Pacific region and the 13th in the world to allow same sex marriage.

Labour Party Member of Parliament Louisa Wall, who sponsored the law change, said, "It makes me immensely proud to see New Zealand again leading the way with the continuation of our proud tradition of universal human rights for all people."

New Zealand Herald 19/8/13

 

Gangs

Prohibition of Gang Insignia Act “Dangerous legislation”

“The ‘Prohibition of Gang Insignia in Government Premises’ Act is a dangerous piece of legislation that is very likely to cause more harm than it prevents.  There is a real danger in passing into legislation a Private Member’s Bill, in the absence of any evidence-based research, or surrounding policy logic,” said Kim Workman, Spokesperson for Rethinking Crime and Punishment. 

He argues that the legislation is based on an inaccurate stereotype about the nature of Maori gangs, their kinship structures, level of criminality, the purpose of the patch, and the association between gang insignia and criminal behaviour, and that the response of gang members to the provisions of the Act is likely to increase criminal behaviour rather than reduce it.  Furthermore, it has the potential to increase the level of intimidation by gang members of public servants.  In addition, it is likely to obstruct and impede the work of social service agencies in their commitment to the Reducing Crime and Reoffending Action Plan.

“There is a serious risk in implementing legislation with a heavy focus on enforcement and suppression, in the absence of a well-developed and balanced approach to gang management,” Workman said. 

Scoop.co.nz 8/8/13

 

Human Rights

Report says NZ has improved human rights

A Government report on the status of human rights in New Zealand says improvements have been made in areas of concern highlighted by the United Nations, such as discrimination, inequality and family violence.

Justice Minister Judith Collins has released a draft report on changes made in areas singled out by the United Nations Human Rights Council in 2009.  Collins claims the Government is making significant progress in addressing the council's 56 recommendations.

However, Amnesty International says the report does not reflect the fact that rights to housing, education, social security and health are not adequately protected.

Spokesperson for Amnesty, Amanda Brydon says the Government needs to put more emphasis on strengthening such rights as part of the current constitutional review.

The final report on the issues highlighted by the UN will be submitted in November to its Human Rights Council, which reviews the record of member states every four and a half years.

Radionz.co.nz 25/8/13

 

Immigration

Radical musician barred on way to New Zealand gig

David Rovics who has written political songs on topics such as the Iraq war and whistleblower Bradley Manning was to play six concerts throughout New Zealand as part of his world tour.

Rovics was about to board a plane from Tokyo to Auckland however when he received a phone call from Immigration New Zealand telling him he was not allowed in the country.  On a blog post titled "You Are Not Welcome in New Zealand," Rovics said the immigration agent asked why he was coming to New Zealand. He replied he was playing "six small gigs."  The agent asked if he would make any money, to which he replied he hoped to make "a little money."  Rovics said he did not have a work permit, but hoped he could get one on arrival.

He was then questioned about being strip-searched on suspicion of drug smuggling in Norway.  He was also asked about being banned from Canada for a year when he tried to play a gig he did not have a work visa for.

Rovics quoted the agent as saying, "You can't board that flight. You're not welcome in New Zealand."

A spokesperson for Immigration New Zealand confirmed Rovics had been barred from boarding the flight because he did not meet immigration entry requirements. These included having sufficient funds and the work visa required.  The spokesperson said, "Mr. Rovics has openly talked on his blog about his drug use and being banned from Canada for providing false information to an immigration officer."

Nelson Mail 17/8/13 & also songwritersnotebook.blogspot.co.nz/

 

New Legislation

Auckland's begging ban bylaw passes

Beggars, illegal windscreen-washers and buskers, who are deemed intimidating or causing a nuisance, will be banished from Auckland's streets under a new bylaw passed by Auckland Council.

New Zealand Herald 22/8/13

 

Press Freedom

Police seize ‘Cuppagate’ texts

Lawyers are demanding a review of how police intercept private communications after a photo-journalist’s cellphone logs and messages, including exchanges with a lawyer, were obtained in and inquiry instigated by the Prime Minister.

Police seized the text messages of a photo-journalist involved in the "teapot tape" saga, including exchanges with his family, his lawyer and Herald on Sunday journalists.

Auckland University associate law professor Bill Hodge has described the police actions as "mind-boggling."

The 323 text messages seized by police were sent and received by cameraman Bradley Ambrose, in the days before and after the notorious cup of tea between Prime Minister John Key and Act candidate John Banks during the 2011 election campaign.  Amongst them were texts between Ambrose and his lawyer Ron Mansfield, in what Mansfield says was a breach of lawyer-client privilege.

John Key had called in police to investigate whether Ambrose had deliberately recorded the eight-minute conversation in front of a media pack in a Newmarket cafe, after Ambrose gave the recording to the Herald on Sunday.

The logs of Ambrose's text messages and phone calls were disclosed by Vodafone NZ after police served a search warrant on the company on January 24 last year, two and a half months after the incident. The text messages appear to confirm that the recording was inadvertent, not deliberate News of the World-style conspiracy as Key had claimed.

The Evidence Act says journalists cannot be compelled, in any criminal or civil proceeding, to answer questions or produce documents that might reveal the identity of a source. Only a High Court judge may order a journalist to produce such documents, and only if there is an overwhelming public interest, but in this case, police obtained Ambrose's communications from Vodafone without his knowledge.

Ron Mansfield called for a review of the rules enabling police to obtain text messages and phone calls.

"I think the police access to communications is too freely given and not sufficiently monitored," he said. "It's time we reviewed this important issue of privacy as a community. We need to determine what is appropriate and how it is protected.

"I would steadfastly fight to maintain my clients' ability to communicate with me without fear of those communications being intercepted or obtained by the police. Clients have to be able to communicate freely and frankly."

Police spokesman Ross Henderson said police had believed that there had been intentional interception and disclosure of private communications. Obtaining the relevant records was therefore important in providing information relevant to the inquiry, he said.

New Zealand Herald 4/8/13

 

Spying

Former CIA terrorism expert questions need for GCSB changes

Glenn Carle, who was the CIA's former deputy national intelligence officer for transnational threats, has stated it is hard to imagine al Qaeda training anyone in New Zealand.

While on a visit to New Zealand he said, “It seems to me that Sir Bruce Ferguson, former GCSB director, was spot on that the S.I.S. has standing and adequate procedures to investigate and parry any terrorist-related threat to New Zealand...This makes me wonder why it would be necessary to change the law and bring the GCSB more directly into domestic affairs. We have found in the US that one should not turn the nation's foreign surveillance powers to domestic affairs."

Scoop.co.nz 6/8/13

 

New Zealand Passes Law Allowing Domestic Spying

The Government Communications Security Bureau and Related Legislation Amendment Bill has passed at its third reading, allowing its main intelligence agency, the Government Communications Security Bureau (GCSB) to spy on residents and citizens, despite opposition from rights groups, international technology giants and the legal fraternity.

An opinion poll published in the Dominion Post found 75 percent of respondents were concerned about the changes. Prime Minister John Key acknowledged the move had left some people “agitated and alarmed,” but claimed “This is not, and never will be, about wholesale spying on New Zealanders....There are threats our government needs to protect New Zealanders from, those threats are real and ever-present and we underestimate them at our peril.”

However, he pledged to shackle the GCSB and restrict warrants granted to the spy agency so it can't initially look at the content of New Zealanders' communications in carrying out its cyber-security function.  He also said if the GCSB makes a good enough case to access content, he expects it to seek the consent of Kiwis before looking, unless there is a good reason not to.

Mr. Key said that when he issued warrants under the cyber-security function in the future, he did not intend the GCSB to access the content of New Zealanders' communications, including email in the first instance.

Mr. Key in an appearance on Campbell Live had said incorrectly that under the bill, the GCSB would not be allowed to look at the content of communications when conducting their cyber-security functions.  In fact, there is nothing that prevents it from doing so.

Key also said the Inspector-General of Intelligence and Security would independently oversee the execution of warrants.

Dominion Post 21/8/13; New Zealand Herald 21/8/13 & Otago Daily Times 21/8/13

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