Liberty Watch – May 2011
Round-up of civil liberty news for May 2011.
AGE DISCRIMINATION
Unlawful student loan changes in Budget?
Changes proposed to the student loan scheme in this year’s Budget will discriminate against older people and almost certainly breach human rights law, the Green Part have claimed.
Tertiary Education Minister Steven Joyce has signalled plans to restrict access to student loans for living costs for students over the age of 55.
"This is age discrimination, plain and simple," Green Party Tertiary Education Spokesperson Gareth Hughes said.
"Everyone should have the same access to education and support no matter what their age.
"In the current recessionary environment, many people need to retrain after losing their jobs. For many older people, higher education is not a luxury, but a necessity.
The Human Rights Act and the New Zealand Bill of Rights Act set out that it is unlawful to refuse to provide goods or services to someone on the basis of age.
If the proposed changes were inconsistent with the Bill of Rights Act, it would be the Attorney General's job to bring that to the attention of Parliament.
www.scoop.co.nz17/5/11
CHILDREN AND YOUNG PEOPLE
Rights of Children and Young People in Healthcare Charter
A new charter that sets out the rights children and their families have when receiving health care in New Zealand, has been launched by the Children’s Commissioner.
The charter provides, for the first time, official recognition that children and young people have a right to have a say in the care they receive.
The Charter is based on the United Nations Convention on the Rights of the Child, which New Zealand ratified in 1993, and includes 11 rights which, when taken together, aims to ensure that children and young people receive healthcare that is appropriate and acceptable to them and to their families and that they are given the right to exercise choices in health services as much as possible.
www.scoop.co.nz 13/5/11
CRIMINAL JUSTICE
"Urewera 18" to get fines?
Wikileaks have released a cable which says the New Zealand Police told the US Embassy in Wellington that they expected those accused would only get a fine rather than jail time should they be convicted," said Global Peace and Justice Auckland spokesperson Mike Treen.
"We can be sure that if the US Embassy received this information it was from either then Police minister Annette King or Police Commissioner Howard Broad. It is clear that the government and police have known for years that the whole case of 'Operation 8' is a beat up, and yet, for nearly four years the crown has thrown millions and millions of dollars into this prosecution," said Mike Treen.
socialistaotearoa.blogspot.com 1/5/11
'Terror raids' evidence suppressed
The Supreme Court has suppressed any reporting of the arguments it is hearing on behalf of 12 of the accused in the so-called "terror raids" centred on the eastern Bay of Plenty four years ago.
NZ Herald 14/5/11
Monitors can sniff out drinking on home detention
The Government may be considering monitors that can tell if someone on home detention has been drinking alcohol.
Transdermal alcohol detection is widely used in the US.
It uses the remote monitoring system in electronic bracelets but can detect alcohol secreted in sweat. If alcohol is detected an alert is remotely sent to the monitoring company or an alarm is sounded, much like if the device has been tampered with or the offender has moved outside the confines of the designated property.
NZ Herald 15/5/11
No more prisons, says English
Finance minister Bill English says there will be no more prisons built under his watch as finance minister. He's called prisons a moral and fiscal failure and there are other ways of dealing with criminals and potential criminals.
He said the aim instead is to reduce recidivism, and prevent young people from entering the system at all.
Newszealand.blogspot.com 22/5/11
EMPLOYMENT
Workplace tests for legal drug on offer
A workplace drug and alcohol testing company has introduced a test for synthetic cannabis after being told of widespread conversion to the legal drug by workers to avoid detection of plant-based cannabis.
NZ Herald 13/5/11
Some beneficiaries forced to look for work
Sickness beneficiaries deemed suitable for part-time employment now have an obligation to be out seeking work. Social development minister Paula Bennett says those medically assessed as being able to work 15 to 29 hours a week have to be available for work and looking for it. They also must accept any offer of part-time employment, attend interviews and undertake training and work assessments. However Ms Bennett says there are no penalties if those options aren't taken up. There are also tighter requirements around the length of time on the sickness benefit, including a compulsory review after 12 months.
Newszealand blogspot.com 5/5/11
FREEDOM OF SPEECH
Court throws out flag burning charge
An activist who burned a New Zealand flag at an Anzac Day dawn service has had her conviction for offensive behavior thrown out by the Supreme Court.
Valerie Morse was convicted in Wellington District Court for behaving in an offensive manner in a public place after setting fire to the flag in Wellington 2007. She was fined $500.
A District Court judge concluded "offensive behavior'' to mean behavior capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it in the circumstances. He considered that a tendency to disrupt public order was not required.
The judge concluded that while Morse's behavior was protected by s14 of the Bill of Rights Act 1990, it was offensive in the context of the Anzac Day dawn observance.
Earlier attempts by Morse to appeal the conviction to the High Court and Court of Appeal were dismissed.
But the Supreme Court has found that the lower courts "mistook'' the meaning of the Bill of Rights, saying that offensive behavior must be behavior which gives rise to a disturbance of public order.
Because the District Court had proceeded on a wrong basis of law, by failing to assess the impact on public order, the Supreme Court set aside Morse's conviction.
It is illegal under the Flags, Emblems and Names Protection Act of 1981 to destroy the flag with the intent of dishonouring it.
However, Auckland University law professor Bill Hodge said yesterday's decision appeared to set a new precedent, giving protesters more right to freedom of expression under the Bill of Rights.
"You can now burn the New Zealand flag any time, anywhere you like, because I can't think of a time any more sensitive with the right people in the right place than Anzac morning in our nation's capital while the morning ceremony is ongoing. Constables will now get an order that you can't arrest people simply for burning a flag.
Dominion Post 6 &7/5/11
HUMAN RIGHTS
Human Rights section of the Ministry of Justice website
The Ministry of Justice has developed a Human Rights section for its website, which is now online. It brings together a large amount of information on and various documents produced about New Zealand’s international human rights obligations as well as domestic human rights legislation.
It can be found at http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights#Human%20Rights
Human Rights Commission Asked to Audit TPP
A formal request has been made to the Chief Human Rights Commissioner to examine the implications of the proposed Trans-Pacific Partnership Agreement (TPPA) for New Zealand’s international and domestic human rights obligations.
Over the past decade, a wide range of United Nations’ agencies have been highly critical of the trend for free trade agreements to undermine human rights guaranteed under international law, she said.The TPPA grew from an original free trade agreement, between New Zealand, Brunei, Chile and Singapore, which came into force in 2006.
Five additional countries — Australia, Malaysia, Peru, the United States and Vietnam — are negotiating to join it, forming the TPPA.
Critics have raised concerns the deal could restrict future policy in New Zealand and guarantee special rights for foreign investors.
Their statements and reports have addressed the implications for rights to health, education and other public services, indigenous rights over lands, livelihoods and traditional knowledge, core labour rights, among other issues.
"UN Rapporteurs have also emphasised the right of every person to take part in the conduct of public affairs, including access to information and participation in public policy decisions, including agreements like the TPPA."
www.scoop.co.nz 16/5/11
Amnesty Report Reveals NZ's Human Rights Record Eroding
Amnesty International Report 2011: State of the World's Human Rights documents abuses in 157 countries around the world during 2010. New Zealand is not exempt from criticism, as the report cites allegations of complicity in torture, indigenous rights, and the rights of refugees and asylum seekers as areas of concern.
* In August, Defence Minister Wayne Mapp confirmed there was a risk the NZSAS had been involved in the transfer of detainees to torture in Afghanistan and that he had launched an investigation. Nine months later, and despite mounting fresh evidence and allegations, the Government has not released the findings of its investigation despite promising to do so and has refused to agree to an independent 
investigation.
* Amnesty welcomed the Government's support for the UN Declaration on the Rights of Indigenous Peoples in April and the repeal of the Foreshore and Seabed Act in 2011, but concerns remain that its replacement has largely the same discriminatory impact.
* In November the Immigration Act came into effect, allowing for the extension of the detention period of refugees and asylum-seekers without warrant, lacking an explicit guarantee against the detention of children and prevents asylum applicants from access to judicial review.
* The Government has failed to formally safeguard human rights for all New Zealanders by continuing to refuse to legally entrench the New Zealand Bill of Rights Act, allowing for the possible enactment of legislation that could be inconsistent with its provisions. The Act also fails to give legal recognition to economic, social and cultural rights.
IMMIGRATION
Deportation of terrorist suspect
A cable published by WikiLeaks, reveals that the Labour government hastily deported a "9/11 hijacker crony" in 2006 to avoid political embarrassment.
Rayed Mohammed Abdullah Ali, who was deported in June that year, had roomed with and studied flying in the US with one of the hijackers who crashed into the Pentagon.
Mr. McCormick's cable says: "Some local commentators have accused the government of overreacting, as Ali had allegedly been extensively interviewed after 9/11 by the FBI in America and was released for lack of evidence.
"As a practical matter we would have preferred that Ali remain in New Zealand, where close law enforcement co-operation would have let us keep an eye on him." But the government had preferred to be rid of him quickly, to avoid the Opposition getting wind of his presence and Ali becoming a "Green Party cause célèbre", as Ahmed Zaoui had been.
www.stuff.co.nz 3/5/11
Mum faces removal with NZ born child after marriage fails
A migrant mother who is fighting to stay in New Zealand with her 2-year-old child says Immigration New Zealand will be denying her son his right to stay and have regular contact with his Kiwi father if she is deported.
A Removal Authority decision last year said that the best interests of New Zealand-citizen children did not necessarily determine whether parents could stay here.
Head of Immigration New Zealand Nigel Bickle said having a child who was a New Zealand citizen did not automatically give the parent a right to reside or remain here.
NZ Herald 19/5/11
INTERNET
New Copyright Laws
Free internet access at libraries across New Zealand is under threat thanks to upcoming changes to the copyright laws.
From September 1, anyone illegally downloading copyrighted material could face a fine of up to $15,000 thanks to last month's passing of the Copyright (Infringing File Sharing) Amendment bill.
And if the threat of fines doesn't work, eventually the Government may start forcing Internet Service Providers (ISPs) to disconnect alleged infringers.
The catch for libraries – and other providers of public internet access, like McDonald's and cafes – is that under the law, it is the account holder that is responsible for what is downloaded on their connection, not necessarily the individual
TVNZ3 20/5/11
UN: Cutting off internet a 'violation' of human rights
The UN's independent expert on freedom of speech says governments that cut users' access to the internet are violating a basic human right "regardless of the justification provided".
Frank La Rue says blocking internet access is "disproportionate", whether it is a blanket ban imposed during times of political unrest or against individuals for violating specific laws.
McDonald's free WiFi debate sent to HRC
Rainbow Wellington has made a complaint to the Human Rights Commission over McDonald's blocking of a number of websites on its free WiFi service. However the fast food company is confident it's not in breach of the Human Rights Act.
A spokesman for the company said that, “at launch, the filtering software picked up some sites, including Family Planning NZ and Rainbow Wellington. They were initially blocked due to the software’s filtering process, and we have been happy to remove the block on any sites that our customers ask us to review."
GayNZ.com 19/5/11
Twitter to be monitored on election day
Social media sites like Twitter will be monitored on election day to ensure electoral rules are not breached, Chief Electoral Officer Robert Peden says. It is illegal to campaign on election day, a prohibition which covers the publishing or broadcasting of anything intended to influence votes. With tweeting becoming increasingly popular, Mr Peden says, the Electoral Commission will keep an eye electronic media communications including Twitter on polling day. "If people tweet on election day in a way which is trying to influence how somebody votes, then that's a breach of the act and we'll be following it up."
newszealandblogspot.com 26/5/11
MISUSE OF DRUGS
Ban herbal highs until they're proven safe: Law Commission
In a review of the Misuse of Drugs Act, the commission has said it was recommending an end to the sale of new psychoactive substances until they had been assessed and approved by a new drug regulator.
Without that approval, it would be a crime to sell synthetic psychoactive substances such as "Kronic" and "Puff", which were currently unregulated and created an "unacceptable level of risk to the public".
Law Commission president Justice Grant Hammond said the Misuse of Drugs Act, which became law 35 years ago, had not kept pace with the rapidly evolving market in new psychoactive substances.
Manufacturers and sellers cold evade the law by making the chemical structure of their products slightly different from drugs prohibited by the Act.
Sale restrictions could only be imposed retrospectively after authorities had evidence showing the risk level, which was what happened with the stimulant BZP party pills in 2005.
Otago Daily Times 14/5/11
Further Law Commission Reccomendations
Possession of drug utensils should be made legal and the punishment for small-scale drug dealing should be more flexible, the Law Commission has recommended.
It says there is room for ''a more flexible approach to small-scale dealing and personal drug use,'' particularly when it is linked to addiction.
''For those whose drug use is associated with addiction or other mental health problems, the criminal law's response can in some circumstances exacerbate rather than reduce drug-related harms,'' the report says.
While there should be ''no dilution'' of prohibition laws, there should be a cautioning scheme that would see people warned rather than arrested for personal possession and use charges.
Dominion Post 13/5/11
NEW LEGISLATION
New transport law will make things tough for youth
The minimum driving age will increase to 16 on August 1, 2011. An exemption application process will be available for those currently holding a Learner licence as at 1 August 2011 who, when they turn 16, wish to progress to a Restricted licence, if they meet certain conditions. The introduction of the zero alcohol limit for drivers under 20 will come into force 90 days after the Bill receives Royal Assent.
The Council of Trade Unions youth wing, Stand Up spokesperson James Sleep, says young people across the country will now struggle to access work, education and community activity.
"Increasing the driving age is only going to delay the issues associated with unskilled drivers on the road. It's not an age issue, it's a skill issue.
"Many young people in New Zealand start working around 15 to help support their families. Their ability to drive a car is important to them. It's disappointing that the Government is not prepared to consider exemptions for young drivers who need this mobility".
Other measures in the bill include:
* Tougher restricted licence testing;
* Zero blood alcohol limits for repeat drink drivers;
* Allowing courts the option to require repeat or serious drink drive offenders to use alcohol interlocks, after a mandated 90-day disqualification;
* Doubling the maximum sentence for dangerous driving causing death, from five years to 10.
Dominion Post 5/5/11
PARLIAMENT
Lack of public participation damages parliamentary democracy
The lack of public participation in fundamental legal reforms is damaging parliamentary democracy, says the Human Rights Commission. In the past five years fundamental human rights issues such as the lack of public participation in submission processes, diminishing collective deliberation about fundamental changes, rushed legislation, the by-passing of select committees, and what appears to be less respect for submitters in select committee proceedings have been of concern, says Commissioner Dr Judy McGregor.
In a submission to the Standing Orders Review, the Commission says that each of these on its own is a cause for concern but the aggregated effect warrants serious scrutiny so that parliamentary processes are not further weakened.
www.scoop.co.nz 16/5/11
POLICING
Guns for frontline police cars
Every frontline police and traffic patrol car will soon have semi-automatic rifles and pistols in special lockable containers in the boot.
In his fourth week on the job,police commissioner Peter Marshallhas brought more weaponry to the streets of New Zealand than any police commissioner – although he says there is no rise in assault numbers.
NZ Herald 1/5/11
Police getting Taser with longer prongs
A high failure rate has led to police being armed with new Taser cartridges with longer prongs that can penetrate thicker clothing.
It is understood at least some police have been using the new Taser cartridges, which also have a greater range, since January this year.
Sources say the change was made because the original Taser prongs were having difficulty penetrating heavy clothing.
Police figures show the X26 Tasers have had a greater than 25 per cent failure rate since they were reintroduced in 2010.
Tasers had been discharged 63 times since they were introduced nationally in 2010. They were ineffective in 17 of those cases.
Eight times, the Tasers detached from the subject or their clothing. In another eight cases, either one or both probes missed the subject.
National operations manager Superintendent Barry Taylor He also withheld answers to questions about whether any new Taser capabilities had implications from a medical point of view, or if staff using them were being retrained.
NZ Herald 14/5/11
Rules around police Taser use relaxed
Front line police have been given easier access to Taser stun guns. New police commissioner Peter Marshall said officers were told last week they no longer had to seek approval to strap on a Taser if they thought they were heading into danger.
Until now, front line police had to seek approval from supervisors, or the police communications centres in Auckland, Wellington or Christchurch.
Dominion Post 25/5/11
Crackdown takes drink-drive fight into offenders' homes
Police are tackling high-risk drink-drivers in their own homes and workplaces in a get-tough operation.
Dubbed Operation De-Clutch, the crackdown is targeting a small list of disqualified drink-drivers who have offended at least three times.
Police have visited some of the offenders at their homes, without any complaints.
The new scheme is being trialed in the Bay of Plenty, one of New Zealand's battleground regions for drink driving.
The region's acting district road policing manager, Senior Sergeant Stuart Nightingale, said, “This is a very direct, in-their-face approach. We can't afford to be soft and fluffy about this.
"The fact that police are making a point of visiting them, getting to know them, where they drink and where they work suddenly makes it aware to them that drink-driving isn't acceptable.”
Mr Shadbolt, a senior sergeant in Napier, said Hawkes Bay police had adopted similar tactics with sex offenders released into the community.
"It's all about letting them know police in the community are keeping an eye on them.
NZ Herald 21/5/11
Cop stops car to defend phone use
A policewoman talking into her cellphone while driving pulled over a disapproving motorist just to tell him she was exempt from the phone ban, he says.
Under the land transport legislation, officers were exempt from the rules barring motorists from using cellphones. The legislation does not specify the reasons police officers can pull over drivers.
NZ Herald 31/5/11
PRIVACY
'Few controls' on personal data sent overseas
New research indicates personal information given to big government agencies and businesses is ending up overseas, with few checks on how it is then being used. The Privacy Commission has asked most government departments and a number of large companies, including banks, Air New Zealand and Fonterra, about what they do with information given to them by the public. About half the 50 agencies say they send it offshore for processing or storage, often without people knowing this is being done.
Newszealand blogspot.com 2/5/11
New toolkit about health privacy
Health consumers and providers now have access to a new privacy toolkit explaining their rights. Privacy Commissioner Marie Shroff released the toolkit as part of Privacy Awareness Week. She says the relationship between a person and their health professional is based on confidentiality and trust. Mrs Shroff says very few consumers know they can ask to see what information their health professionals hold about them. She says it's becoming increasingly important to know what information is held about us, by whom, and where it is.
Newszealand blogspot.com 5/5/11
Schools monitor students' online exploits
Students are being warned schools are actively monitoring them online – their Facebook profiles, their forum posts, their tweets – to check for misbehaviour.
Secondary Principals' Association president Patrick Walsh said his school John Paul College in Rotorua, and most others, had network managers and teachers charged with trawling their students' social networking sites.
NZ Herald 22/5/11
Official eye on how you pay bills
Privacy Commissioner Marie Shroff has made public proposed draft amendments to the Credit Reporting Privacy Code that will allow much more information to be collected about New Zealanders' borrowing.
And she conceded that would come at a cost to privacy.
"There is no doubt that this would be a more intrusive regime, but I have tried to ensure that there will be benefits to individuals and the community, as well as to business interests," she said.
Your last 200 bill payments, on average, will become part of your credit record – available for scrutiny by banks and other businesses – under this proposal, showing whether you were late with your electricity, gas or phone bills, mortgage or credit-card invoices, insurance, or other monthly payments.
NZ Herald 30/5/11
Sacked airport worker to fight for job
A senior Wellington International Airport manager who was sacked will get another chance to get his job back after a court ruled he was filmed illegally.
The employee who worked as a duty manager at airport, was fired after the airport installed a camera in its emergency operations room and recorded him and a woman in ''clothed, sexual activity''. He was also filmed watching television, drinking coffee and using the telephone.
The Employment Court found the video evidence was illegally obtained as it was collected by a private investigator, rather than an airport employee as the airport had originally told the authority.
Dominion Post 25/5/11
RACE
Will bin Laden's death stop NZ's 'racial profiling'?
A top Auckland immigration lawyer says the death of Osama bin Laden is a chance for New Zealand authorities to bury negative stereotypes towards Middle Eastern refugees.
Heval Hylan, an international human rights lawyer, says New Zealand Immigration has “racially-profiled” refugees of Middle Eastern origin for years.
Mr Hylan says those seeking residency in New Zealand are regularly asked, “Do you know Osama bin Laden?” or “Have you met al Qaida?”
He says many are refused entry based purely on ethnic origin rather than genuine suspicion of links to terrorism, while others face long delays.
“We have cases like one Sudanese man who tried to bring his wife over and it took him four-and-a-half years simply because he was from Sudan – we think it is profiling and discrimination.”
3news.co.nz 5/5/11
Far-right group plans Auckland anti-Asian march
The Right Wing Resistance is handing out flyers in areas with high Asian population, such as Pakuranga, Howick and Northcote, claiming an Asian invasion is taking place.
Right Wing Resistance had 42 members on its Facebook website.
A Human Rights Commission spokesman said it was against the law to incite racial disharmony, but there was a "high threshold" for the Human Rights Act to come into play. The Human Rights Act 1993 says people may be in breach of the law if they have “intent to excite hostility or ill-will against – or bring into contempt or ridicule – any group of persons in New Zealand on the ground of their colour, race, or ethnic or national origins of that group of persons”.
Such offences are punishable by a prison term of up to three months, or a fine up to $7000. It is not clear-cut whether the flyers constitute a breach of human rights law.
Police Asian liaison officer Raymond Wong says the Right Wing Resistance is being closely monitored and police would prosecute anyone who committed or incited racially-motivated violence, but admits that “The fact people are saying something, or putting out a leaflet that others might find offensive, isn’t necessarily unlawful.” To press charges, police must determine if the material being distributed incites racial disharmony.
NZ Herald 12/5/11
Former Wellingtom Mayor complaint
The Human Rights Commission won’t investigate comments about the Wellywood sign made by a former Wellington mayor.
Sir Michael Fowler wrote a letter to a Wellington newspaper in which he said those opposed to the sign were likely to be dumb, humourless and Irish.
Those comments prompted complaints to the Human Rights Commission, which says it's received several calls from members of the public expressing their concern.
However spokesman Gilbert Wong says there's nothing the Commission can do about it.
He says they recognise the comments might cause offence, but under the New Zealand Bill of Rights everyone has the right to freedom of expression.
He says as long as comments don't incite racial disharmony they are not unlawful.
NZ Herald 25/5/11