Liberty Watch - October/November 2013

Civil liberties news for October/November 2013.

Censorship

Forbidden book furore

The only book ever to be banned from Auckland Libraries is being reviewed for reinstatement into the collection. The Central City Library held a copy of the controversial graphic novel Lost Girls in 2008 and quickly pulled it off the shelves following counsel from the Office of Film and Literature Classification (OFLC).  “Their advice at the time was that if we had the book and it was later banned then we might be liable for prosecution," Collections manager Louise LaHatte explained.

Auckland Libraries purchases more than 500,000 books each year and never sends them to the censor.  Unlike films, books get classified only if someone thinks they are offensive and demands they be checked.  Lost Girls has never been submitted to the OFLC for classification.

Auckland-based comic artist Dylan Horrocks was among those who requested the book be bought back into the library's collection.  "It is a challenging work. But part of the role of libraries is to make work that is challenging available to people that wouldn't otherwise be able to access," he said.

Stuff.co.nz 25/10/13

 

Census

100 face prosecution for dodging census

Statistics New Zealand (SNZ) has announced about 100 people will be prosecuted for not completing their census form.  Everyone in New Zealand on census night is legally required to complete their form or have it completed for them.

However, it was not too late to hand the form in, "While it has been over seven months since census night, we will continue to accept completed forms throughout the prosecutions process," SNZ said.

When deciding if to prosecute, SNZ take into consideration the type of offence, the personal circumstances of the person and the likelihood of success. 

In 2006, after the last census, SNZ prosecuted 72 people, resulting in 41 convictions.

The Press 25/10/13

 

Criminal Justice

Ageing sex offenders may die in prison

New Zealand's ageing sex offenders could wind up dying in prison because of a lack of suitable community support facilities, even if they present little or no risk to the public.

Corrections Department figures show more than 200 pensioner-aged offenders are behind bars, including 97 prisoners aged 70 years and older and 13 prisoners aged 80 years and older.  Thirty-three elderly prisoners are serving sentences of preventive detention.

Rethinking Crime and Punishment executive director Phil McCarthy said the Parole Board considered the level of community support available to elderly inmates when deciding parole applications. "The board has to be confident that they can release these aged people and they will get the level of support they need to be risk-free in the community," he said. 

"The board often finds these inmates are being well cared for in a low-security environment and conclude this is the best environment for them because there aren't really any options for them in the community.”

Mr. McCarthy said it was "hard to imagine" a bed-ridden inmate presenting a risk to the community, "but the Parole Board has to consider, case by case, what the alternative care proposals are for the inmate and I suspect increasingly they're saying, ‘well there isn't one’.

"I think to some extent you can say it's a pretty dreadful indictment on our society that the best option for these inmates is for them to remain in prison.”

Sensible Sentencing Trust member Paula Hastings said a prisoner's age should have no bearing on whether or when they were released back into the community.  She said offenders sentenced to preventive detention had a history of serious offending.

"Unless there are suitable community care facilities for these inmates they should be kept locked up. The majority are proven sex offenders who deserve to be where they are."

Waikato Times 1/10/13

 

Transgender Prisoner Rights Issues

The equal Justice project has raised concerns that transgender people are especially vulnerable in prisons due to the disconnect between their state-recognised gender and their personal, inherent gender identity. 

The group argues that the identity crisis that many transgender people face is a classified mental illness (Gender Identity Disorder) and being a transgender person is a recognised medical condition. Still, transgender prisoners are not allowed to ‘commence’ treatment for issues related to their transgender identity while in prison under current corrections policy.

The other issue transgender prisoners faced was in their accommodation.  Under previous corrections policy, only those who have completed gender reassignment surgery have the option of being placed in the prison of their identified gender.  This can create a real danger of harm for these individuals.

Scoop.co.nz 3/10/13

 

Change to legal aid a concern

Legal aid spending is down as measures to tighten the government-funded scheme take effect.  Since March last year, legal aid for criminal cases has been paid on a "fixed-fee" basis rather than at an hourly rate.

Palmerston North lawyer Peter Coles expressed concerns about the fixed-fee model saying it provided financial incentives for early guilty pleas, as opposed to taking less serious matters to a defended hearing when required.

Guilty-plea payments range from $300 to $390, while a lawyer who takes on a defended matter could get as little as $100 to $200 extra, covering up to 90 minutes of hearing time, preparation and initial court appearances.

A not-guilty plea could mean three or four trips to court, an "apple box full of documents" to wade through and long "stream of consciousness" police interviews to watch, Mr. Coles said, "I don't think fixed-fees are the answer, because there is a disincentive if people aren't doing their job properly…There's no doubt that fixed-fees, along with a lot of other changes in the criminal justice system, have the potential to deliver expedient results rather than just results.”

Manawatu Standard 7/10/13

 

Convict's human rights breached

A convict who was sentenced to solitary confinement for an unlawfully long three-week period had his human rights beached, the Court of Appeal has found, but rejected his bid for $50,000 in compensation, finding it could not award damages because he did not use all the complaints mechanisms available to him.

The prisoner, John Vogel, had asked the visiting District Court judge to sentence him to 21 days of confinement so he could deal with his drug habit.  The judge agreed, even though the sentence was longer than the legal limit of 15 days in confinement.

Vogel was confined to his cell for 23 hours a day, with only one hour to shower and exercise, and no access to visitors, a telephone, radio or television.

In the High Court, Vogel argued his confinement was in breach of the Bill of Rights Act, which holds that prisoners should be treated with humanity and respect for their inherent dignity.  He also argued he was not regularly visited by doctors and the prison's superintendent, and instead received daily visits from prison guards and nurses, which breached the Penal Institutions Act.

Vogel gave evidence that his mental health had suffered, describing his confinement as stressful and “maddening".

The High Court rejected his claim, finding that while his confinement was excessive, it was not disproportionately severe, particularly considering the circumstances in which the sentence was imposed.  Vogel appealed to the Court of Appeal, which found his confinement was in breach of the Bill of Rights Act and the Penal Institutions Act.

New Zealand Herald 7/11/13

 

Equal Marriage

Over 100 same-sex marriages already

Statistics New Zealand figures have shown that there were 117 same-sex marriages in the September quarter, the first since the same-sex exchanging of marriage vows was legalised in April.

The first same-sex couple married on August 19, and since then the newlyweds have comprised 56 male and 61 female couples. Only 77 of the couples were Kiwis, with the rest making a special trip to New Zealand from overseas to legally exchange vows.

The Press 5/11/13

 

Equal pay

Statistics show Government action needed on gender pay gap

The income figures from the New Zealand Income Survey show that there has been no progress in reducing the gender pay gap, says spokesperson for the Pay Equity Challenge Coalition, Angela McLeod, noting that, “Using average hourly earnings there remains a 13% gap between what men and women are earning”.

The Pay Equity Challenge Coalition uses average hourly ordinary time earnings for the gender pay gap.  It is the indicator that the New Zealand Income Survey has used since 1974 to monitor the impact of the Equal Pay Act 1972.

The Government continues to cite median hourly earnings to indicate the gender pay gap, which makes the earnings gap appear narrower. But a far bigger proportion of men than women are at the really high end of the distribution and the median takes much less account of this than the average.  But there is no narrowing of the gap even with the median. In fact there is an increase from last year from 9.3% to 10.1% for part timers and full timers combined.

Scoop.co.nz 4/10/13

 

Freedom of Speech

Fine for burqa remarks questioned

Farm worker Yuet Rappard should not have been fined for telling a foreign student to remove her burqa, Otago University religious freedom professor Rex Ahdar has said, and free speech professor Andrew Geddis added that Rappard's view was valid and pointed out that a Supreme Court ruling allowed people to cause offence, and upset others, to maintain the freedom of speech.

Rappard was found guilty of offensive behaviour and fined $500 for telling a student on May 17 in a Dunedin supermarket to remove her burqa or leave New Zealand.

Prof Ahdar said, “Only in the most exceptional circumstances would I have criminal liability for speech and this isn't one of them…The inciting of a riot, or threatening to kill, was worthy of criminal liability but insulting somebody was not.”

Prof Geddis said Rappard was fined because if a person behaved in an offensive way in public they had committed an offence, if a “reasonable person'' would find the behaviour offensive.

However, Geddis pointed out that the Supreme Court had ruled that people could cause an offence and upset other people so free speech meant something,''Because if you can't offend people with your speech, well then you don't really have a right to free speech at all, you can only say things that everyone agrees with and there is not much point to that.’'

For something to be deemed offensive, it had to create a risk to public order, he said. “It's not enough to cause people to be upset inside themselves; you have to have some impact on the public sphere.’'

The law then needed to decide if the public should have been offended by, or tolerated, the behaviour.  However, he believed Rappard had stepped over the line of respect and civility in the Dunedin supermarket, “in the way she treated the student, not in what she thought, what she thought was a quite valid view. A lot of people think the burqa is a bad symbol. It is how [Rappard] went about it, particularly if she used the words ‘dirty Muslim’.''

Otago Daily Times 26/10/13

 

Immigration

Immigration bars ex-Nazi

Former Australian Nazi and convicted felon Jim Saleam has been blocked from entering New Zealand to speak at a National Front rally in Wellington.

Saleam, who is leader of the right-wing Australia First political party, was stopped from boarding a flight from Sydney to Christchurch on Wednesday.  An Immigration New Zealand spokesman said Saleam's criminal convictions made him an "excluded person,” who was not eligible for a visa or entry permission without special exemption.

He spent 3 years in jail during the 1990s for organising a shotgun attack on the home of an African National Congress representative. He also spent two years in jail for insurance fraud.  In the 1970s, he was involved with the Nationalist Socialist Party of Australia and has been photographed wearing swastika armbands. 

Immigration NZ said Saleam was allowed into the country in March after declaring his convictions. But new information had since come to light that meant he was now required to apply for a Special Direction to visit.

The Dominion Post 6/10/13

 

Policing

Police criticised for excessive force at party close-down

The Independent Police Conduct Authority (IPCA) released its report into 10 complaints against police conduct at a Khandallah party on September 5, 2009. IPCA chairman Sir David Carruthers said on the balance of probabilities, one party-goer, Mr. Christie, suffered a broken neck when he was hit with a baton by a member of the Tactical Policing Unit. 

"This force was excessive and contrary to the law," Sir David said.  The report was not able to identify the responsible officer.

Police also failed to conduct a timely, thorough and robust report which was "unjustified, unreasonable and unfair" to the complainants and police officers involved, Sir David said, "Such a delay is inexcusable.”

Police accepted the two specific recommendations made by the IPCA in relation to dealing with disorder situations on private property.  Police said they also accepted the IPCA's conclusion that the Tactical Policing Unit's decision to enter the property against the wishes of the occupants was contrary to law in this instance.

"In addition we accept the possibility that the neck injury suffered could have been caused by a police baton while the party was being shut down, however, the police investigation into this specific allegation was unable to identify sufficient evidence that met the threshold for initiating criminal proceedings," police said in a statement.  Even if Mr. Christie was struck, it was probably an accident and officers had acted in "good faith,” the statement also said. "The fact that force was used is regrettable . . . but it was done with the best of intentions."

Police also regretted that several weeks after the party, a police employee leaked information to the media in relation to their investigation into the allegations.

Police also accepted that extensive delays occurred during their internal investigation into the incident and it was regrettable it had taken four years for this matter to reach this point.

"We acknowledge that not enough resources were initially allocated to the case to ensure a robust and timely investigation was conducted.”

The authority's report reveals a police internal investigation eventually found that officers had broken the law by forcing entry into the party, but the complainants were never told of that conclusion. Instead, police wrote to them, claiming the officers had been cleared of wrongdoing. "The authority considers this omission to be misleading and unfair."

The authority says police did not investigate complaints in a "thorough and unbiased" way, and interviewed only four of the 11 officers.  Police had refused to provide pictures of the officers at the scene so that Mr. Christie could identify the one who hit him.

Iain Morrison, who represented some of the partygoers, said there was a "culture of corruption'' in the police force, and that it was outrageous that the officer who struck Mr. Christie had not been identified. "You really have to ask yourself, there's up to a dozen police officers at the property and none of them knows who struck Jakob [Christie]. I find it absolutely incredible.”

New Zealand Herald 17/10/13 & The Dominion Post 18/10/13

 

Evaluation of new pepper spray underway

New Zealand Police is currently evaluating the potential use of a more concentrated form of OC (Oleoresin Capsicum) pepper spray.  National Manager Operational Services, Inspector Jason Ross, said the evaluation, which follows a recent trial in the Bay of Plenty Police District, will consider the effectiveness of the more concentrated spray against the current version being used by Police, which has the lowest concentration of capsicum currently available.

The new spray contains approximately six times more capsicum than the current spray, meaning that it has a more effective immediate impact, and takes slightly longer to wear off. 

Ross claims that, ”Since the introduction of OC spray, as its use has become more common, there has been a corresponding levelling off in its effectiveness over time. This is consistent with our own research and what has happened internationally among other Police jurisdictions, the vast majority of whom have already moved to the enhanced spray.”

As part of the trial, Mr. Ross said Police had tried different spray configurations, including a liquid "stream" spray and a gel version.

From 1 July 2012 to 30 June 2013, OC spray was used nationally 1505 times, while the new version of the spray has been deployed 119 times over a seven month period during the separate Bay of Plenty trial.

Scoop.co.nz 5/11/13

 

Police investigated again over spy agencies

The Independent Police Conduct Authority is investigating whether police neglected their duties in their handling of a complaint against spy agency the Government Communications Security Bureau (GCSB) over alleged illegal spying on New Zealanders.

The police two months ago completed an investigation into the GCSB's surveillance of Kim Dotcom and his associate Bram van der Kolk. The spying was done at the request of the police ahead of their raid on the Dotcom mansion early last year.  In their findings, the police said the GCSB's spying was illegal but as GCSB staff did not act with criminal intent, no-one would be held accountable.

They also decided against further investigation of alleged illegal spying on 85 other New Zealanders after reviewing the Inspector-General of Intelligence and Security Paul Neazor's report on the matter.

Greens co-leader Russel Norman, who laid the original complaint, confirmed the conduct authority had decided to investigate a new complaint he laid in response to the police findings.

One of three issues raised by Dr. Norman was that leading barrister Kristy McDonald, who was hired by the police to review the investigation's findings, had a potential conflict of interest because of her previous work for the police and because she was acting for them in an ongoing court case against Mr. Dotcom.

Dr. Norman also has complained that the police said they wouldn't bring charges because they couldn't prove "criminal intent" by GCSB staff but the relevant laws don't require criminal intent to be established; also the police relied on Inspector-General of Intelligence and Security Paul Neazor's findings that the GCSB's potentially illegal spying on 85 other New Zealanders was "arguably" legal rather than investigating the cases themselves.

Otago Daily Times 31/10/13

 

Police add 'sponge gun' to arsenal

Police will arm some specialist police units with a new non-lethal sponge gun, which will however cause pain, bruising and abrasions when they hit a person.

The gun will fire 40mm projectiles that have a high-density sponge nose designed to spread its energy across 4.5 times the surface area of a bullet.  Police media adviser Ross Henderson said the impact is unlike any other projectile, adding, “the impact from the sponge round is probably best described as like a hard punch. “

The sponge round is manufactured by American company Safariland.  Its website lists its velocity at 99 metres per second, roughly the same velocity as a typical paintball shot. It describes it as an excellent solution to incapacitate a single subject or control a crowd. The optimal range is five to 36 metres, although it may be used in situations from two to 50 metres, the website said.

They rounds are fired from a 40mm gas launcher already available to police and will be used by the Auckland, Wellington and Christchurch Armed Offenders Squad and national Special Tactics Group.  Police National Tactical Groups Commander, Superintendent Bruce Dunstan, said the rounds would be used in situations where previously firearms may have been the only remaining option.

Police consulted with the Independent Police Conduct Authority and other interest groups before introducing the sponge round. Its use has also been independently reviewed by researchers, Dunstan said.

The Dominion Post 29/11/13

 

Privacy

All-of-government privacy officer a smart move, says Privacy Commissioner

The Privacy Commissioner Marie Shroff today welcomed the government’s announcement that it was creating the role of Government Chief Privacy Officer.

She said, “the need for the government to have expert internal advice on privacy has been obvious for some time. These days, good stewardship and protection of people’s information is a must for any organisation.

“This move brings the government sector into line with many large private sector organisations. Global internet giants and banks position responsibility for privacy at a very senior level. This ensures that the company gets advice on how to protect the people who entrust it with their personal information.”

Scoop.co.nz 19/11/13

 

Race

Drug law enforcement discriminates against Māori

Māori are significantly more likely to be arrested and convicted for cannabis offences because drug laws are enforced in a discriminatory way, a Cannabis and Health Symposium in Auckland was told. Khylee Quince, Associate Dean (Māori) at the University of Auckland’s Faculty of Law, said while less than five percent of personal cannabis possession cases result in prosecution, 34 percent of the prosecutions that do occur are of Māori.

“While the Misuse of Drugs Act itself is not racially discriminatory, the way it is applied and enforced clearly is.  Māori are more likely to be stopped, searched, arrested and convicted, and are much less likely to benefit from police discretion,” Ms Quince said.

“This is something that should concern all New Zealanders because it breaches the Human Rights Act and the Treaty of Waitangi which promises equal citizenship for Māori and equal treatment under the law.”

Ms Quince said decriminalisation of cannabis would only address the immediate issues of discriminatory enforcement for Māori. “That’s only one aspect of the problem. What we also need is more open discussion and Māori presentation at a justice system level.”

She said she thought New Zealand’s use of the law to identify and solve problems, for example youth and drug courts, was encouraging, but that she was sceptical about the current role of tikanga and kaupapa Māori in those processes, and that, “We need to be more involved and have a voice at the table so we can help ensure we retain our unique position as Māori.”

Scoop.co.nz 28/11/13

 

Refugees

The New Zealand High Court has denied the bid of a man from Kiribati to be recognised as a climate change refugee.  Kiribatian man Ioane Teitiota said the rising sea levels in the Pacific island nation, has prompted him to remain in New Zealand even though his work visa had expired. He said there was no land in which he and his family can live on safely if they are forced to go back.

Kiribati is a low-lying island vulnerable to the effects of climate change, and despite the claims of the world's first climate change refugee, the judge ruled that problems with the environment are not included in the list of internationally recognised criteria for Mr. Teitiota to be declared as a refugee.

New Zealand High Court Justice John Priestley said returning to his homeland Kiribati will not result in a sustained human rights violation such as the right to life, food and shelter.

Mr. Teitiota had challenged the decision of the judge and argued that the 37-year-old "refugee" and his New Zealand-born children will suffer harm if he goes back to Kiribati due to the pressures of rising sea levels and overpopulation.

Michael Kidd, Mr. Teitiota's legal representative said the case hits the outdated refugee laws that were drawn up at the end of the Second World War.  Mr. Kidd said the refugee laws should include people who are trying to avoid the catastrophic effects of climate change.

International Business Times 27/11/13

 

Right to Protest

No notice for oil-wells receives Taranaki Council backing

A law change meaning the public will not be informed of new offshore oil wells has been supported by the Taranaki Regional Council, but Chairperson of the Aotearoa Human Rights Lawyers Association Edward Miller is concerned the decision will strip New Zealand public of the right to know.

"The right to participate in public affairs is a fundamental human right that ought not to be traded for unproven economic gains," Mr. Miller said.

Exploratory offshore drilling will be classified as a non-notified activity meaning the public are not involved in the decision-making process, but Taranaki Regional Council director of resource consent Fred McClay said the public need not worry as long as the wells were regulated and managed properly.

David Marshall, the owner of Ahu Ahu Beach Villas in Oakura, said sturdy measures should be in place to keep the coastal environment safe, clean and pristine and that it was important for the public to be involved in the decision-making process around offshore drilling.

"When big money is involved and the monitoring agencies or government stand to gain from granting consents, it is wise and for the good of all to have transparency with regard to these issues,” he said.

Earlier this year the government used a law change to curtail the public's right to protest at sea.

Taranaki Daily News 2/10/13

 

Spying

Spy boss says ex-MP Keith Locke not spied on

Government Communications Security Bureau (GCSB) boss Ian Fletcher has confirmed former Green MP and activist Keith Locke was not among the 88 New Zealanders his bureau may have spied on illegally. Mr. Fletcher made the rare admission after initially refusing to answer, prompting Mr. Locke to take the matter to the Privacy Commissioner.

Mr. Locke said he was please to finally get the information from Mr. Fletcher, "and I hope that GCSB now adopts a policy of more reasonable openness to requests from others who ask whether they are among the 88 people.”

Asked whether Mr. Fletcher's decision indicated he would provide an answer to similar questions from others, a GCSB spokeswoman said: "We consider each request on its merits, and if a requester isn't happy with a response they can take it up with the Privacy Commissioner.’’

New Zealand Herald 6/11/13

 

Surveillance Cameras

Surveillance cameras in a suburban township will soon use automatic number plate recognition to search for stolen vehicles.  Once the system on Howick's Picton Street identifies a wanted car it will immediately send a message to the police control room with the number plate and a picture.

Tech Liberty's Thomas Beagle said that he is not aware of any other fixed surveillance camera in New Zealand using such technology, but "If it's just identifying vehicles that the police are looking for and telling the police about it, it's probably not that bad.”   However, if the information is stored then that could be an issue, he noted.

Howick Village Association president Jenny Foster has pushed for the technology and says the cameras are for the community, not just Howick's retailers. "The car of interest might not necessarily be doing a robbery here but it can still be flagged," she says.

Stuff.co.nz 6/11/13

 

Trans-Pacific Partnership Agreement

Call for Key to stop misleading New Zealanders that Parliament has power over the Trans-Pacific Partnership Agreement

“The government seems intent on misleading New Zealanders that Parliament will have the final say about the Trans-Pacific Partnership Agreement(TPPA),” says Professor Jane Kelsey.

The Prime Minister claimed on TV3s Firstline that Parliament gets to debate and ratify the treaty once it is agreed, but Kelsey states that, “this mistruth has been repeated so many times by Ministers and National MPs that it has to a deliberate attempt to defuse growing concerns about the secrecy of these negotiations and anti-democratic nature of the agreement.”

The Cabinet Manual says, in unequivocal terms, “7.112: In New Zealand, the power to take treaty action rests with the Executive.”  In practice, that means the Cabinet decides whether to enter into negotiations, the negotiating mandate and any revisions to it, and what trade-offs are made to conclude a deal.  Cabinet then approves the signing of the text agreed to by the Minister.

The Cabinet Manual confirms that by signing an agreement the executive is indicating an intention for New Zealand to be bound to that text.  This constitutes a good-faith obligation under international law. Parliament does not get to see the text until after it is signed.  The text is then tabled in Parliament and referred to a select committee, but the committee cannot change the text, nor can Parliament.

Even if a parliamentary majority voted against the TPPA, Cabinet still has the power to ratify it, and indeed would be expected to under international law.

Groser and Key will be assuming this does not become an issue, because Labour has supported such agreements in the past, Kelsey claims, but “David Cunliffe’s call for release of the draft text so people can assess its implications shows that support can no longer be assumed.”

Scoop.co.nz 1/10/13

 

Welfare

Crackdown on welfare fraud

New measures to crack down on beneficiaries who have previously cheated the system have been introduced.

The 'low trust client' rules are aimed at preventing those with a history of benefit fraud from repeating the abuse.  It will apply to people who have been convicted of welfare fraud in the past or had overpayments established following a fraud investigation.  The new law will apply to an estimated 1500 per year, the Government says.

"These people have proven, through their own actions, that they are willing to be dishonest with the welfare system and take money they are not entitled to," said associate social development minister Chester Borrows.

"With these new measures we will have sensible steps to prevent them repeating this behaviour, such as requiring them to deal face-to-face with a single case manager.”

The changes are part of a series of measures announced by the Government earlier this year in a bid to "better prevent, detect and punish welfare fraud.”  The measures include changing the law to hold partners of beneficiaries complicit in 'relationship' fraud offending to account; joint agency fraud investigations; and enhanced information sharing between the Ministry of Social Development and Inland Revenue.

However the new measures lack justification and may breach international human rights obligations it has been argued by the New Zealand Law Society.

In its submission to the Social Services Committee the Law Society raised concerns over aspects of the Social Security (Fraud Measures and Debt Recovery) Amendment Bill.

Under the changes, the spouse or partner of a beneficiary who has committed fraud will be liable for the full amount of money so obtained if they benefited, directly or indirectly, from the fraud knowingly, or ought to have known they were benefitting from the fraud.

The Law Society’s Jeremy Finn says while there is no objection to proper accountability in relationship fraud, the amendment imposes a more stringent "ought to have known" standard on partners of fraudulent beneficiaries compared to those partners of other fraudsters.

"The Criminal Proceeds (Recovery) Act 2009 establishes a carefully considered regime for the recovery of benefits derived directly or indirectly from ‘significant criminal activity’.  This proposed departure from the Act should be subject to careful scrutiny. No justification is apparent in the Regulatory Impact Statement for the proposed more stringent standard.”

He adds there are already laws in place to deal with such actions, and the proposal represents a departure from the general principles of criminal law.

"There exist a number of options to penalise positive acts or intentional omissions by a fraudulent beneficiary's spouse or partner to assist that beneficiary to obtain a benefit or level of benefit by fraud or other offending, to conceal that offending or to launder money received.”

The Law Society’s Joss Opie says the Social Security Act currently gives the Ministry of Social Development (MSD) discretion to whether welfare debt should be recovered. The Bill proposes to replace that discretion with a duty to take all reasonably practicable steps to recover debt. It also proposes that in some circumstances, MSD’s chief executive may disregard "relevant considerations" when recovering debt, including the effect of recovery on living standards.

This may impact on New Zealand’s compliance with its obligations under the International Covenant on Economic, Social and Cultural Rights and UN Convention on the Rights of the Child. These include an obligation to realise the right of everyone to an adequate standard of living including those on social welfare and their children.

"In the Law Society’s view, there would need to be very compelling justification for welfare debt recovery to take precedence over international human rights obligations and other relevant considerations. Such justification is not evident," says Mr. Opie.

The Law Society also noted that it has been constrained in submitting on the human rights implications of the Bill as a consequence of the apparent redaction of the human rights analyses in the relevant Cabinet papers.

voxy.co.nz 13/11/13 & Otago Daily Times 13/10/13

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