Liberty Watch – December 2012



Prison smoking ban ruled unlawful

A judge has ruled a prison smoking ban is unlawful.  Justice Gilbert said a blanket smoking ban did not serve the purpose of ensuring custodial sentences were safe, secure, humane and effective, and was not ''reasonably necessary'' to maintain the safety of prison staff and inmates.  ''In my view, the ban falls outside the scope of the rule making power under section 33 of the Corrections Act,'' he said

The Government has said it would change the law if it had to, and Corrections said inmates would still not be allowed to smoke despite the ruling because the Government had amended Corrections regulations to make tobacco and related products contraband and the court ruling was not about those amended regulations.

Otago Daily Times 24/12/12

Recidivist drink-driver earns first ‘Interlock Licence’

A recidivist drink-driver prosecuted for his fifth offence is the first person in the country to have a court-ordered breathalyser installed in his car.  He was sentenced in the Manukau District Court on September 19, when he was instantly disqualified for three months and ordered to apply for an Alcohol Interlock Licence.  The devices became a sentencing option for repeat drink-drivers in August.

At sentencing, offenders are ordered to apply for a $200 Alcohol Interlock Licence. The pink licence means they can only drive a car that has the breathalyser device fitted.  The device is then installed by Auckland-based company Draeger and works in a similar way to a car immobiliser. Before the car can be started, a person must blow into the device and it has to give a zero-alcohol reading.

The licence must be held for a minimum of 12 months. However, if drug and alcohol tests come back clean after six months, and the court approves it, the device could be removed.

While the licence alone costs $200, there is an initial installation fee of $340 and monthly payments of $170 for a year. 29/12/12



NZ made disabled people 'invisible'

New Zealand may be in breach of its human rights obligations to significantly disabled people who are being treated as second-class citizens, according to new research.

The study, conducted by the Donald Beasley Institute on behalf of CCS Disability Action, found many disabled people felt socially excluded, isolated or segregated from their community, and faced a lack of choice in home and daily activities.  New Zealand could be in breach of its international obligations under Article 19 of the United Nations Convention on the Rights of the Disabled, which recognises the rights of disabled people to live independently and be included in the community.

New Zealand Herald 2/12/12



Activist told to pay for council reports

After spending $25,000 in the past year answering an anti-fracking activist's queries, the Taranaki Regional Council is now asking for payment before answering any more, but activist Sarah Roberts is refusing to pay for information she believes should be freely in the public domain, especially for people living next to oil wells.

Charging is allowed under the Official Information Act, and last month the council told Ms. Roberts that to respond to another request would cost about $7080 – $6080 for the time and an estimated $1000 for the photocopying. It would take a staff member two weeks to find and copy the information.

Taranaki Daily News 19/12/12



X marks the spot on passport for transgender travellers

New Zealand now allows people to change their gender on their passports by a simple declaration.  The change also allows people to state their gender as male, female or "X" (indeterminate/unspecified), without the need to change their birth certificates or citizenship records.

A Human Rights Commission report recommended in 2008 that people should have the right to change their gender on their passports and other documents.

A Passport Office spokesperson said gender changes on passports could now be made purely by a statutory declaration stating a person's preferred sex or gender identity and how long they have had that identity.

The passport application form still asks people to tick either male or female and gives no indication of any other option, but the spokesperson said the "X" option was known to the transgender community.

New Zealand Herald 5/12/12


Anger at Law Society's Xmas party in male-only club

The Law Society's decision to host a Christmas party at a male-only club surprised women lawyers and prompted one to boycott it.

The society's Hawkes Bay branch held its annual end-of-year function at the Hawke's Bay Club, which has not had any women members since it was founded at 1863.  The function was open to all lawyers regardless of gender, but if the party went into the club's members-only bar, women would not be allowed.  The Hawke's Bay Club, a private group, is entitled to restrict membership to men under the Human Rights Act.

Asked whether the legal profession remained a "boys' club", Auckland Women Lawyers' Association president Rachael Reed said the figures told their own story.  Women had been in the profession in roughly equal numbers to men for the last 20 years, but only 18 per cent of partners at large law firms in Auckland were women.  The number of women appointed as Queen's Counsel also remained low, while only 28 per cent of judges were women.  Ms Reed said the association was undertaking research to see what barriers women lawyers faced in progressing through to partnership, compared with men.

New Zealand Herald 5/12/12


Transgender woman sent to men's prison

A transgender prisoner has been ordered to serve her sentence in a men's prison, not on home detention as requested.

In the Whangarei District Court today Judge Duncan Harvey gave Cooper a 15 per cent sentencing reduction in recognition of the difficulties she would have in serving her time in a men's prison, but the sentence of 2 years and 1 month meant she was not eligible for home detention.

A Corrections Department spokesperson said transgender prisoners would be moved to a female prison if they had full sexual realignment surgery, as there could be risks in placing anatomically male transgender prisoners in a female prison.

Otago Daily Times 19/12/12 & 20/12/12



Indian workers prevented from returning back to New Zealand

Numerous Indian workers lawfully holding work visas in New Zealand have been prevented from returning to their jobs in New Zealand by Immigration New Zealand.

Dozens, and possibly hundreds of Indians holding valid work visas returned to India for holidays to celebrate Diwali with their families and, and with many also visiting their families whom they had not seen for many years or entering into negotiations for arranged marriages.

Despite these workers having jobs to return to and approval from their employers for extended leave, Immigration New Zealand have intervened and refused to allow many of these lawful workers from boarding aircraft bound for New Zealand and returning to work.

Judicial Review proceedings have been filed in the Auckland High Court this week seeking an interim injunction against Immigration New Zealand who intend to defend the application simply on the basis that the workers have no right to review the decision.

Immigration New Zealand advised a lawyer, Mr. Alastair J. McClymont, who is acting on behalf of the some of the Indians involved, that they simply wished to determine whether the extended leave period was authorised.  Despite this claim, Mr. McClymont notes that although they have been prevented from boarding their flight for a month now, Immigration New Zealand have not yet made a phone call to his clients' employers to check if the leave was authorised.

The consequence of this action is that many of these workers are now facing termination of their employment as the employers, whilst generally sympathetic, cannot keep their jobs open indefinitely and will soon need to replace them. 12/12/12



New Zealand Government refuses to sign up to International Telecommunications Regulations

An international push to put the internet under stronger state control has been rejected by the New Zealand government, who has joined other OECD countries in refusing to sign the International Telecommunications Regulations at a conference in Dubai. Communications Minister Amy Adams says the regulations would lead to stronger state control of the internet, content, spam and cyber security. She says those moves are unwarranted, unhelpful and represent a threat to innovation and free and open debate. 14/12/12



Police use web-scanning tool

Police insist a web-scanning tool that allows them to monitor people’s movements is not a case of Big Brother watching.  The software, Signal, developed by Wellington company Intergen with police collaboration, means wall posts, photos, videos and status updates sent from major events are likely to be viewed by police.

Police say the real-time information scanned from Twitter, Facebook and YouTube helps prevent crimes and increases public safety.

Intelligence director Mark Evans said Signal sped up the ability of police to analyse social media feeds related to crime and public safety. It was first trialled during the 2011 Rugby World Cup and allowed the police to search through relevant public posts more quickly.  If social media users have geo-location enabled on their smartphones, police can also map where the messages are being sent from.

Mr. Evans said the software was not invasive. "It can't see private communications between users."  He also said much of the internet was a social platform, and police needed to be aware of what is going on.  Intergen marketing director Wayne Forgesson said the product was "a handy tool" for the police.

Police use Signal to search for hashtags and keywords, enabling them to monitor large groups. During the World Cup they used Signal to intercept a boy-racer convoy from Auckland to Hamilton that was to coincide with a match, and learnt quickly about a planned protest.

A spokesperson from the privacy commission said it appeared the software was only accessing public web postings.

Dominion Post 19/12/12



Police checks routine work for banks

Banks get daily requests from the police for personal banking information, and one says it is influenced by law enforcement interest when it assesses customers.  Account details, contact information and even financial information can be handed over to police without a search warrant.

The banks supply the police with information on the basis they are told that doing so assists with "maintenance of the law", an exception in the Privacy Act to confidentiality rules.  A spokesperson for the Privacy Commissioner said banks could refuse to supply the information, but the discretion relies solely with the bank

 The financial information, which banks promise to keep confidential, is passed to police and then to other agencies, and in some cases, it has ended up overseas for use in foreign court orders.  

Financial information about targets of interest has been passed to the Ministry of Social Development and Inland Revenue.  In one case, details about a group under investigation went to Social Development which then reviewed benefits those people were receiving. In another case, financial details were passed to Inland Revenue, which then carried out a tax assessment.

Kiwibank spokesperson, Bruce Thompson, also said police requests for information influenced the bank's view of customers.  He said, "Kiwibank takes any approach from police seriously, and as a prudent lender, would consider any such approach as part of its overall assessment of any banking relationship.”

Kim Dotcom's application for a $4 million mortgage was declined after police asked Kiwibank for his records.  Kiwibank had initially approved the loan then withdrew the offer just before settlement and days after police sought information on his finances.

Kiwibank’s Bruce Thompson said the loan was rejected after a "simple internet search" turned up troubling information, but he also said the query from the police could not be ruled out as a factor in the decision to decline the loan.

New Zealand Herald 1/12/12 & 8/12/12



Dotcom cleared to pursue case against police

Details of the top secret international spy agency ring known as Echelon will have to be produced after a new judgment in the Kim Dotcom case.  Dotcom was also cleared to pursue a case for damages against the police and GCSB in a judgment that has opened the Government's handling of the criminal copyright case for criticism.

The order for the GCSB to reveal top-secret details came as the High Court at Auckland ruled the spy agency would now sit alongside the police in a case probing the unlawful search warrant used in the raid on Dotcom's north Auckland mansion.

The Echelon network is an international intelligence network to which New Zealand and the United States are members, along with Australia, Canada and the United Kingdom.

The judgment also raised questions about evidence given by Detective Inspector Grant Wormald, the officer who commanded the raid on the mansion. It said evidence he had given about possible "live footage" of the raid "contradicted" earlier evidence given during the hearing.

Mr. Wormald is also facing questions about other testimony after he assured the court there was no surveillance other than that carried out by police. The GCSB's illegal spying operation later emerged.

Otago Daily Times 6/12/12



Social Security Bill Is Unjustifiably Discriminatory

Parliament’s Select Committee hearing submissions on the proposed Social Security (Benefit Categories and Work Focus) Amendment Bill, has seen the issue of human rights taking centre stage, with many families raising concerns about the “social obligations” contained in the Bill, which will make early childhood education (ECE), registration with a medical provider, and attendance at Well Child checks mandatory for the children of beneficiaries.

Barbara Smith, National Director of the Home Education Foundation of New Zealand, says that these “obligations” will infringe parental rights under international and New Zealand law.  “The UN’s Universal Declaration on Human Rights says that parents have a prior right to choose the kind of education given to their children,” says Mrs. Smith, “and our own Care of Children Act leaves parents with the right to make decisions about their child’s education and health care.”

The Attorney-General’s opinion on the Social Security Bill was that no human rights would be infringed by the social obligations, but Mrs. Smith has explained, “The Attorney-General concluded that the social obligations aren’t discriminatory because ‘they are designed to be beneficial.’ He went on to say that if discrimination does occur under the act, ‘the disadvantage is outweighed by the best interests of the child’.”

The Law Society’s also outlined reasons for believing the discrimination to be unjustifiable including the fact that no other New Zealanders are required to fulfill such obligations, that it will cause material disadvantage to beneficiaries owing to the 50% benefit sanctions, and that there is a lack of compelling evidence to show that the social obligations will improve the lives of New Zealand’s children.

The Society also expressed concerns about the Chief Executive’s undefined authority to apply sanctions to beneficiary families, and the Bill’s failure to admit reasons for noncompliance such as cost and availability, and, the Home Education Foundation would add, different educational models.

In conclusion, the Law Society stated that the discrimination and hardship involved in the social obligations was disproportionate to the possible benefits gained. “The singling out of the whole group of parents…carries a real risk of stigmatising the affected group. There is no evidence that that group as a whole do not comply with the obligations or that they comply at significantly lower rates.”

New Zealand courts would at first glance consider this Bill discriminatory under the Bill of Rights, according to the Law Society. 10/12/12