Liberty Watch – October 2012

 

Liberty Watch returns with a round-up of news for those interested in civil liberties:

CHILDREN AND YOUNG PEOPLE

Adults who pose risk to kids face bans

Adults who have never been convicted of any crime may soon be banned from living or associating with children on the "balance of probabilities" that they may pose a threat.

A White Paper on Vulnerable Children says this will be one of "a range of tough new measures targeting people who present a high risk of continuing to hurt children."  A background document says courts will be given powers to impose new "child abuse prevention orders" regulating a wide range of associations with children.

There might also be a condition available to the court to apply a presumption that any future children of the person be removed, if the court is satisfied that the risk posed by the person justifies such a presumption."

The order may last for up to 10 years with rights to apply for a review.

New Zealand Herald 11/10/12

 

Social Security Bill Coerces Parents

The Home Education Foundation (HEF) of New Zealand is calling on politicians to reject the coercive new Social Security (Benefit Categories and Work Focus) Amendment Bill. The Bill, sponsored by Minister for Social Development Paula Bennett, passed the First Reading and has been sent to a Government Select Committee.

HEF National Director Barbara Smith says, “I, along with many other Kiwis, have huge concerns about this bill.” If the Bill passes, “social obligations” will compel beneficiaries to send children aged 3-5 to an approved Early Childhood Education provider for at least 15 hours per week,

Under the Human Rights Act 1993, parents have a right to choose what kind of education they will give their children. “Over the years there has been a lot of research that children do much better at home than in Early Childhood centres,” Mrs. Smith added, citing research available on the HEF website. Mrs Smith says many concerned Kiwis have contacted her about the new legislation. “They want to continue learning at home with their 3-5-year-old children.”

Scoop.co.nz 9/10/12

 

CRIMINAL JUSTICE

Shoplifters banned from entire city

Two Marton women have been banned from Palmerston North after being accused of stealing more than $2000 worth of goods in a spate of shoplifting.

The two were remanded on bail for two weeks and Judge Gregory Ross banned them from the city until then, stating that "Neither of you can enter Palmerston North except to attend court or attend an appointment with an assigned [lawyer] only."

They were also told not to go to Marton's New World supermarket.

Manawatu Standard 4/10/12

 

DRUGS

Government cracks down on legal highs

Legal highs will undergo a costly and lengthy testing process involving human clinical trials under a strict new regime that could see manufacturers jailed for up to eight years.

Associate Health Minister Peter Dunne has announced new regulations for psychoactive substances that would become law by next August.  It would replace a temporary ban on 16 substances contained in more than 50 products that have already been removed from shelves.

Under the new regime, manufacturers would have to pay an application fee of about $180,000 plus testing costs of up to $2 million before any new product was deemed safe for sale, a process that could take up to two years.

The Ministry of Health would regulate the new testing regime, which was likely to include clinical trials on human subjects in New Zealand.  Regulators would look at toxicity, adverse effects and mental health impacts before any new products were approved.

The regime would also introduce tough new penalties, including up to eight years in prison for importing, manufacturing or supplying analogues of illegal drugs, and up to two years in prison for importing, manufacturing or supplying unapproved substances.  People caught with unapproved products could be fined $300, but it would not be a criminal offence so young people would not be penalised.

The rules would introduce a minimum purchase age of 18 and would restrict which outlets could sell the products, including a ban on dairy sales.  Products would face labelling and packaging restrictions and advertising would be banned except for at point of sale.  He expected there would be a drop in the number of products available, but denied it was a "back-door way" to ban all products.

Mr. Dunne denied the rules would encourage a black market or push users towards illegal drugs like cannabis, and said that the new rules would ensure products were safe for the people who wanted to use and enjoy them. 

New Zealand Herald 10/10/12

 

EMPLOYMENT

Greens make human rights complaint over youth pay

The Green Party have lodged a complaint with the Human Rights Commission over new legislation which will allow employers to pay 80 per cent of the minimum wage to those aged 19 and under.

The Minimum Wage (Starting-Out Wage) Amendment Bill has had its first reading in Parliament and passed by 61 votes to 59.  It was supported by National, Act and United Future and opposed by Labour, the Greens, New Zealand First, the Maori Party and Mana.

The Bill will allow employers to pay staff aged under 20 a "starting out" wage of $10.80 an hour for the first six months of their employment.

Three groups will come under the new rules:

– 16 and 17-year-olds in their first six months of work with a new employer,

– 18 and 19-year-olds entering the workforce after more than six months on the benefit,

– 16 to 19 year-old workers in a recognised industry training course involving at least 40 credits a year.

Green Party co-leader Metiria Turei said under the legislation, young people who had been on a benefit for more than six months would be able to be discriminated against, adding that it was illegal under the Human Rights Act to discriminate on the basis of young worker's employment status.

New Zealand Herald 16/10/12

 

GENDER

Targeting gender imbalance in NZ sport

Sport New Zealand and the New Zealand Olympic Committee (NZOC) have announced the creation of Development Scholarships to help get more women onto the boards of sports organisations.  The joint initiative is the first in a programme to encourage suitably qualified women to put themselves forward for sports governance roles.

NZOC Secretary General, Kereyn Smith said while real progress is being seen on the field of play, in terms of participation and achievement by women, this is not the case off the field.

"The London 2012 Olympic Games provided another example of women achieving at the highest level in the sporting arena, but the representation and value of women is less evident in sports board rooms," she said.

At present women comprise around 27 per cent of sports board membership (being 142 women out of 521 positions among 71 targeted organisations). Targets have been set for women to comprise 33 per cent of sports board membership by 2015 and 40 per cent by 2020. The ultimate target is for 50 per cent representation.

New Zealand Herald 8/10/12

 

Transgender woman pleads to avoid male jail

A transgender woman who struck a man over the head with a bottle of sparkling wine has pleaded with a judge not to send her to a men's prison.

The accused's lawyer has asked for a reduced sentence to allow her client to serve her sentence at home because she faces great risk of abuse if jailed alongside male inmates.

Lawyer Kelly Ellis said transgender is a recognised medical condition, which can require a variety of treatment options.  A transgender woman is a person born male who has gone through, or is in the process of, transition or gender change, said Ms Ellis.  Both her lawyer and the judge referred to the accused as a woman during last week's hearing.

The accused is currently on remand in the all-male Ngawha Prison. She has been in custody for several months.  Judge Harvey said that by the time she was sentenced she would have been in remand for about 11 months adding that if those 11 months were taken into account, the final sentence might enable home detention to be imposed.

"Under normal circumstances I would not take this approach but it recognises the difficulties of this person in a male prison," the judge said.

"It would be unjust not to hold out hope of home detention."

New Zealand Herald 10/10/12

 

Business NZ's views on parental leave labelled sexist

Extending paid parental leave to six months may lead to employers discriminating against women of child-bearing age, Business NZ says.

Business NZ employment relations manager Paul Mackay yesterday presented the group's submission on Ms Moroney's Parental Leave and Employment Protection (Six Months' Paid Leave) Amendment Bill. The submission said it was difficult for employers to find suitable temporary staff to fill parental leave vacancies.

"Employers who have been forced to bear considerable replacement costs, or to find those amongst their other employees willing to provide cover, may well think hard before again employing a woman of child-bearing age."

Business NZ accepted that attitude could be seen as discriminatory and Ms Moroney said it was "from a bygone era" and echoed the views of Mr. Thompson, who resigned last year after his suggestion that menstruation could be a factor in women being paid less than men.

New Zealand Herald 25/10/12

 

Breastfeeding mum asked to leave court

A Wanaka mother asked to leave the Queenstown District Court by Judge Kevin Phillips for breast-feeding her 18-week-old daughter.

Senior judicial communications adviser Neil Billington, of Wellington, told the Otago Daily Times yesterday that judges had a "legal authority" to run their courtrooms "in a manner that they consider appropriate to the administration of justice", adding  "It's based on a legal power that each and every judge has … each judge is independent in terms of how they exercise that authority."

Mr. Billington said, "Although courtrooms are open to the public, they're not 'public places' in the usual sense … where members of the public are free to do whatever they like", and Judge Phillips would not comment on his decision "and that's the usual situation."

A Ministry of Health website reports that "under the Human Rights Act, it's illegal for someone to stop you breast-feeding in public."

New Zealand Herald 25/10/12

 

Legal Aid

Legal aid law changes watered down

Justice Minister Judith Collins has watered down legal aid reforms that aimed to save money by charging for family and civil disputes.

The minister announced this afternoon that charges for family and civil cases would drop from $100 to $50.  Interest would no longer be charged immediately, but would instead be imposed from six months after the final amount of legal aid debt was finalised.

A proposal to make it harder to get legal aid for less serious crimes such as theft, assault or careless driving, has also been dropped by the minister. However, people who were not meeting their legal aid debt repayments would be prevented from getting further legal aid until they began clearing their debt.

New Zealand Herald 9/10/12

 

POLICING

New Zealand crime rate lowest on record

Crime statistics show recorded crime is continuing to drop, with a 5.2% decrease on the previous year.

There were 394,522 recorded offences in the 2011-2012 fiscal year, compared with 416,324 the previous year. This represents a decrease of 5.2% or 21,802 offences.  New Zealand’s resident population increased by 0.7% during that period, resulting in a 5.9% decrease in the number of offences recorded per 10,000 of population.

This is the lowest number of offences in any fiscal year since 1988-1989, and the lowest crime rate per head of population since before electronic records have been maintained.

Deputy Police Commissioner Viv Rickard says "Although movements in crime statistics can be due to several factors, I believe we are seeing some traction from our Prevention First approach, particularly against prolific drug offenders, people who deface our public spaces with graffiti and those who create public disorder."

Scoop.co.nz 1/10/12

 

Hutt teens targeted by police & strip-searched

Two Upper Hutt teenagers have told of their humiliating and traumatising ordeal at the hands of police, who arrested and strip-searched the pair before locking them up for 36 hours.

Apart from making shocking allegations about the incident itself – one of the girls having to express breast milk into a sink after being separated from her baby, not getting toilet paper for the weekend and being denied contact with their parents and lawyers – their experience has also triggered longer-term effects, their families say.

The 16-year-old girl and her 14-year-old cousin were arrested on Saturday, January 7, after police received a complaint about an attack on two other teenage girls.  The pair were taken to Upper Hutt police station, strip-searched and placed in individual cells until their court appearance on the Monday.

Earlier this week Youth Court judge Mary O’Dwyer gave permission to report her findings, in which she ruled the arrests unlawful and dismissed the charges.  She criticised the police’s decision not to free the girls on bail, to keep them in custody for more than 24 hours and to not consult a senior social worker before doing so, which is required by law.

Judge O’Dwyer noted that the descriptions taken of the alleged offenders did not match the 16-year-old, while the evidence in respect to the 14-year-old was weak.

Civil liberties lawyer Michael Bott said “They have an absolute right once they’ve been arrested to have contact [with a lawyer] . . . that would be a bare minimum standard….It appeared there were multiple breaches, including those of police protocol and the Bill of Rights Act.”

The Police Commissioner has publicly reprimanded staff involved in the detainment of the two teenagers.

Dominion Post 4/10/12

 

Crimestoppers hotline is giving police serious information

After a public campaign in August to raise awareness about the hotline, particularly as a way to pass on information about stolen property, Palmerston North people are warming to the idea of providing tips to police through the anonymous Crimestoppers hotline.  Acting Senior Sergeant Phil Ward said tips coming in rose from about four a month, six months ago, to 15, although the amount of information received still fell short of expectations.

Crimestoppers is an independent organisation providing an anonymous way for people to give information about crimes.  Any information is then passed on to police. No details about the source are taken, and calls are not recorded or traced.

Mr. Ward said information received through Crimestoppers in September had resulted in the seizure of drugs, and firearms.  Two separate pieces of information led to the identification of a recidivist female drink-driver who, although was not caught in the act by police, was spoken to and later referred to Immigration when an issue with her visa was discovered.

In another case a firearm was seized when information about a man suspected of growing drugs was called in.  Police did not find any drugs, but the man living with him had an illegal firearm.

Manawatu Standard 11/10/12

 

Trust in police hits new low survey shows

Public trust in the police has fallen, with overwhelming support for a beefed-up Independent Police Conduct Authority, a survey has found.

The police performance survey of 756 adults, surveyed in emails by Horizon Research during the weekend, found 80.7 per cent of respondents wanted complaints about police to be investigated independently.

Support for added powers for the IPCA was also strong, with 76.3 per cent believing the authority should have the power to initiate a prosecution against police officers. At present, the authority can make recommendations to the police only after an investigation.

The survey also found that, overall, net trust in the police had fallen 11.5 per cent to 59.9 per cent during the past five years.

Police Minister Anne Tolley has questioned the methodology of the survey, and Acting Commissioner Viv Rickard said Police took the matter seriously and had commissioned an independent research organisation to review the Horizon survey. The feedback from this confirmed concerns that the methodology was flawed and the sample produced a biased result, which varied considerably from other robust surveys.  Horizon however strongly defended the quality of their research.

Taranaki Daily News 16/10/12

 

Speed cameras improved

Drivers of heavy and towing vehicles will be closely monitored when police begin using better speed camera technology.

Police have updated speed cameras throughout New Zealand to enable the differentiation between general traffic and heavy or towing vehicles.  The open road speed limit for motor vehicles weighing more than 3500kg is 90kmh, and for school buses, 80kmh.  Vehicles towing trailers must also adhere to a 90kmh speed limit on the open road.

Changes mean heavy or towing vehicles previously not detected by speed cameras unless travelling at more than 110kmh will be identified as speeding if doing more than 95kmh.  Cameras will continue to detect general traffic travelling more than 110kmh.

Otago Daily Times 17/10/12

 

Case thrown out over false arrest

A judge has thrown out a Crown case against 21 accused because police fooled a court into prosecuting an undercover officer.

Justice France has ordered a stay of proceedings in prosecutions of those arrested as part of the police's Operation Explorer, which was a crackdown on motorcycle gang members.

During the investigation, a fake search warrant was prepared, and Justice France said a search warrant could be issued only by a judicial officer.

''This fake warrant, unappealingly described to me by the officers involved as "a prop", purported to be signed by a judicial officer,'' he said.

''The police scrawled an apparent signature … asserting the warrant has been issued by a deputy registrar, name indecipherable.''

An undercover officer using the name Michael Wiremu Wilson infiltrated the Red Devils in Nelson and police orchestrated a false arrest to boost his criminal credentials.

"However one looks at it, a fraud is being committed on the courts," Justice France said about the false arrest, and ''the court's processes can truly be said to have been abused, first by the use of the warrant, and second, by the laying of a false charge.''

He said judges had been treated ''in a disrespectful way.''

A prosecutor and the defence lawyer were also misled.

He concluded it was ''a fundamental and serious abuse of the court's processes''.

Justice France said: ''The courts are not part of police investigation. There is and can be no suggestion of collaboration. The court is independent and sworn to treat all who come before it equally and without favour.''

Operation Explorer was headed by Detective Inspector Grant Wormald, who also supervised the joint FBI-police raid on Kim Dotcom's Coatesville home for the Organised and Financial Crime Agency.

The Press 24/10/12

 

Police on to anti-royals

Police have started keeping tabs on anti-royals who might disrupt Prince Charles' visit here next month

Lewis Holden, chairman of the Republican Movement of New Zealand, received a visit from a detective from the threat-assessment unit to ask what plans he had for Charles' visit.

Security expert Dr Paul G. Buchanan said it was normal for police to plan ahead and "tell some of the loudmouths to shut up."

New Zealand Herald 28/10/12

 

Dodgy taxi drivers can block video

Taxi companies can say no to police requests for security camera footage from cabs if their drivers are the ones misbehaving.

Since last August, video cameras have been compulsory in all taxis as part of new laws aimed at making the industry safer for drivers and passengers.

The Taxi Federation says the move has "dramatically" improved the behaviour of drunk passengers and reduced taxi crime, including serious assaults and robberies of drivers, but it recently reminded its members they have no legal obligation to hand over footage that could incriminate those behind the wheel.

The issue arose after a Dunedin driver was accused of overloading by another taxi driver this year. Police accessed the security footage and the driver was fined as a result.

That prompted the federation to challenge the Transport Agency, which is now drafting new operational policy guidelines to let its staff know that not all taxi video is unrestricted.

Federation executive director Tim Reddish said it was important drivers had that level of protection to stop rival taxi drivers making "frivolous" competition-generated complaints, as was the case in Dunedin.  If that culture continued it could see drivers commit a criminal offence by moving their cameras or covering the lens to avoid detection, hindering the ultimate goal of deterring crime, he said.

"The taxi industry will always co-operate with the police . . . and there are many, many instances since cameras have come in where we have . . . 99 times out of 100, we supply the footage.

"We got cameras in there for the protection of taxi drivers and passengers from serious incidents. Not for tit-for-tat complaints where one driver is against another."

Mr. Reddish did not think the legislation was handing taxi drivers a licence to misbehave, as the company would decide whether to hand over the footage. "The drivers have no access to it."

Police could also seek a search warrant if a complaint was serious enough.

New Zealand Herald 6/10/12

 

PRIVACY

'Staggering' security breach at Winz

Thousands of files on the Ministry of Social Development's computer servers, including the personal details of at-risk children, have been accessed through a Wellington Work and Income jobseeker kiosk.

Journalist and blogger Keith Ng described how he went into a Work and Income (WINZ) office and used a self-service kiosk, normally used to look at job vacancies, to access up to 3500 files on the agency's server, "just using the Open File dialogue in Microsoft Office."

Mr. Ng said the files were PDF copies of ministry files and he has posted screen shots of what he found online.  He said he had managed to view an invoice to a community group who had supported a family after their family member attempted suicide, including the person's name, invoices relating to children in Child Youth and Family (CYF) care, including addresses, sensitive client case notes, the names of candidates for adoption and passwords in plain text.

Ministry Deputy Chief Executive Marc Warner said the ministry was concerned about the breach and an urgent investigation would be carried out.  "We have closed all kiosks in all sites across the country to ensure no further information can be accessed. They will not be reopened unless, and until we can guarantee they are completely secure and we have obtained independent assurance from security experts”, he said.

Otago Daily Times 15/10/12

 

Bars' use of ID scanners raises concern

A new technology that scans and records photo IDs, as well as taking additional photos of bar customers, is being trialled throughout the lower North Island.

There are three ID scanning machines in the country, with two in Auckland and the third being moved around from Wellington to Hawke's Bay.  So far the security system has been used on patrons at Trinity Group bars Cambridge Hotel in Wellington, the Empire Hotel in Palmerston North, and Turks Bar in Havelock North.  ID Scanner director Thomas Rawson said another two machines had been ordered from overseas.

The ID-checking systems have the support of the bars, but the Office of the Privacy Commissioner has questioned their credentials.

Jeremy Smith, managing director of Trinity Group, said the scanner would not work for every bar because of its "large and cumbersome" size.  It includes a monitor, which can blow up ID images; a camera, to take additional photos for comparison; and a scanner.

The scanner is used to identify fraudulent IDs, and to record who has entered a bar and how many times a single ID card is used.  Mr. Smith said if all the bars in Wellington used the scanners, troublesome revellers could be banned from town.

Wellington area tactical co-ordinator Senior Sergeant Hamish Milne said the scanners could be useful for police wanting to track down witnesses.

However, a spokeswoman for the privacy commissioner said the scanners raised a number of concerns.

"You have to play by the rules. If these bars are collecting the information through scanning, they have to be clear and upfront as to exactly why they're doing so.

"Are people given an option? People who are concerned about the collection of their personal information may have justifiable reasons – does the bar make allowances for this?"

Bars must ensure no-one could access the stored data for any reason other than security on the premises, she said.

Dominion Post 18/10/12

 

 

Privacy fears block police smart-phone ID bid

Police want to be able to use smart-phones to access driver licence photographs on the roadside, to stop people they pull over without identification from using false names.  However, Police Minister Anne Tolley says it is not possible because it would breach privacy rules.

Tolley said such a move would require going back to every driver in New Zealand to ask them to explicitly agree to waive their rights under the Privacy Act.

"It's a serious privacy issue and it would be an enormous step for New Zealanders to take. It would be almost moving towards a police state."

Privacy expert and barrister John Edwards said "The licence is there to demonstrate your authority to drive a vehicle on New Zealand roads. It shouldn't migrate into being a de-facto national ID card.”

Otago Daily Times 21/10/12

 

Police got Dotcom's bank details

Police got personal banking details of Kim Dotcom and his staff without getting a search warrant in a move that has implications for bank customers.

Banks, including the ANZ, BNZ and Westpac, turned the information over after deciding there was no Privacy Act reason not to.

The police request referred the banks to a Privacy Act principle that allowed them to release information to "avoid prejudice to the maintenance of the law by any public sector agency including the prevention, detection, investigation, prosecution, and punishment of offences."

The mechanism led to banks releasing, without a legal warrant, the name of the account holder, the account number and home address.

Assistant Privacy Commissioner Katrine Evans said it was up to agencies asked for information to form a "reasonable belief…They need to make their own judgment calls but simply because the request comes from the police isn't necessarily enough."

New Zealand Herald 27/10/12

 

Numberplate tracker may be illegal

Police software that automatically collects numberplates to catch offenders could be illegal, the privacy commissioner says.

The tracking technology, known as automatic numberplate recognition, has already been condemned overseas, where critics have likened it to Big Brother-style surveillance.  The New York Police Department used it to spy on mosques and track worshippers through their numberplates.

In New Zealand, it is still being tested by police, but the Office of the Privacy Commissioner has questioned whether even a trial is legal.

There are particular concerns about police gathering information without people's knowledge, which could then be retained and possibly used for other purposes.

Police have been testing the technology for the past two years, driving unmarked vans through Wellington to capture random numberplates.  The police manual on the technology prohibits gathering information on anyone not suspected of "unlawful activity."  The trial has been used to identify disqualified drivers, stolen vehicles and other "vehicles of interest." Police can also use it to check alibis and track the movement of vehicles used in a crime.

Dominion Post 31/10/12

 

SPYING

The Dotcom case (1)

Police are to investigate illegal spying on Kim Dotcom and his co-accused Bram van der Kolk, after it emerged Government Communications Security Bureau (GCSB) agents illegally snooped on Dotcom and van der Kolk in the run-up to the raid on his home.  They are both New Zealand residents, which protects them from spying.

 Independent QC Kristy McDonald will review the inquiry and advise whether       charges should be laid.

The Dotcom case (2)

Telecom engineers investigated irregularities in Kim Dotcom's internet connection weeks before GCSB has said it started spying on him, and found that it was being diverted inside New Zealand. Government Communications Security Bureau says it started spying on him.

Asked about the possibility of earlier spying, a spokeswoman said the Prime Minister had sought and received "a fresh assurance" the GCSB and Security Intelligence Service had not carried out any surveillance before December 16.

A Telecom spokeswoman said the company would not give information to the police of "any other government agency" unless legally forced to do so.

Stuff.co.nz 2/10/12; NZ Herald 5/10/12