Liberty Watch – December 2013/January 2014

A round up of civil liberties news from December 2013 and January 2014.

A round up of civil liberties news from December 2013 and January 2014.

Border Control

Backpacker stripped of electronic equipment at Auckland Airport

A backpacker coming home for Christmas had every bit of electronic equipment stripped from him at the airport.

A Customs officer at Auckland International Airport took law graduate Sam Blackman's two smartphones, iPad, an external hard drive and laptop and demanded his passwords.

Mr. Blackman, 27, who was breaking up travelling with his fiancée for a month back in New Zealand for Christmas, was initially given no reason why the gear was taken.

The only possibility of why it occurred was his attendance, and tweeting, of a London meeting on mass surveillance sparked by the Snowden revelations, he said.

However, a Customs official has since told him they were searching everything for objectionable material under the Films, Videos, and Publications Classification Act 1993.  Mr. Blackman said he did not have anything of that nature and could not understand why he had been targeted.

A Customs' spokeswoman refused to discuss Mr. Blackman's case. She said passengers considered "high risk” received attention at the airport. She also said Customs officials were required to have "reasonable cause” to believe an offence had been committed.

New Zealand Herald 12/12/13


Canterbury Earthquakes

Commission releases report on Human Rights in Canterbury Recovery

The Human Rights Commission has released a report calling for people and their human rights to be put at the heart of the recovery in Canterbury, with Chief Commissioner David Rutherford saying, “The Canterbury earthquakes represent one of New Zealand’s greatest contemporary human rights challenges…[and] the report examines human rights challenges that have emerged during the recovery and makes 33 recommendations to improve access to adequate housing, health services and help business make a positive contribution to human rights.”

He agrees that progress has been made, but notes that “many residents affected by the earthquakes continue to experience deteriorating standards of living and quality of life that go beyond the immediate effects of the disaster…[and] rights to property, housing and participation in decision-making have also become major issues.

“A natural disaster is no excuse for human rights to be ignored. In fact, Canterbury shows us that when human rights are incorporated in the response and recovery, they can lead to better decisions, better services and a stronger recovery for everyone.”

A copy of Monitoring Human Rights in the Canterbury Earthquake Recovery is available on the Human Rights Commission website at: 10/12/13



Unicef raises concerns about the rights of New Zealand’s children

A new report by Unicef makes for further sobering reading about the plight of our country's children.  Titled ''Kids Missing Out'', the report is a summary of the first 20 years of the United Nations Convention on the Rights of the Child in New Zealand.

Unicef is the United Nations Children's Fund and its mission is to create a better world for every child. The convention has been ratified by 190 countries.

The report explains how at the time of ratification, in 1993, then Minister of External Relations and Trade Don McKinnon stated that despite making no legislative changes, the convention would ''help ensure that the interests of the children are fully considered in the future''.

Sadly, the report's findings show that while there have been some advances (it cites the repeal of section 59 of the Crimes Act which removed the right of parents to use physical force to punish or correct their children), progress on implementing the convention here has overall been ''patchy and too slow''.

It also says since 1993, the UN Committee on the Rights of the Child ''has made a range of recommendations as to how New Zealand might better implement the convention raising, often repeatedly, over 35 different issues''.

Unicef New Zealand executive director Dennis McKinlay says ''the continued failure'' to meet the convention's obligations has ''very real, everyday consequences for children'' and is also ''harmful to New Zealand's standing in the international community'' in terms of human rights and commitments under international human rights conventions.

The report says 20 years after ratification of the convention, an estimated 270,000 New Zealand children live in poverty, which Children's Commissioner Dr Russell Wills has previously said affects their development, behaviour and physical health, can limit their adult potential and comes at an estimated cost to the country of $6 billion to $8 billion.

The report is critical of the increases in hospital admissions for children suffering from poverty-related conditions, access to health services and education, the high rates of child abuse, neglect and family violence, the way in which children are treated by the police and judicial system, and our adoption laws.

It says there are a number of areas in which New Zealand does not fully comply with the UN Convention on the Rights of the Child and criticises the Government for not committing to implementing the 78 recommendations for alleviating child poverty made by Dr Wills' expert advisory group on child poverty last year.

It says implementation of policies to help children ''will remain ad hoc, reactionary and potentially inconsistent with the convention and each other'' unless an effective convention action plan is adopted, and policy strengthened through legislation.

Otago Daily Times 11/12/13


School defends Christian studies

An Auckland state school says most parents want its Christian education programme for five- and six-year-olds to continue.

A woman taking a complaint to the Human Rights Commission about the programme at St. Heliers School says the classes are a form of indoctrination.

Two parents have now complained to the commission to try to stop the school giving religious instruction to Year 1 and Year 2 pupils.

Melissa Muirhead says while she would be happy for her children to be exposed to a variety of religions, Christianity is the only one being taught at the primary school and that amounts to discrimination.

"The school promoted it as a values-based programme, but it's not. It's actually very much Christianity and [coming] from an angle which I think is indoctrination of children at a very vulnerable age."

The head of the school's board of trustees said a survey of parents at the end of last year found more than two thirds wanted the classes to continue, with just under a fifth against them. Gary Ivill said only 12 of the school's 221 children in Years 1 and 2 have opted out.

Parent Roy Warren, who has also made a complaint, said his child comes home repeating Christian beliefs and is only learning about one religious viewpoint.

Another father, Maheen Mudannayake, said he was disturbed to see a volunteer instructor setting up a mock communion with fruit juice and rice cakes at the state school.

Mr. Mudannayake, a Buddhist, removed his children from the optional classes, and said his children are left to draw or do menial tasks during the sessions. 26/1/14


Equal Marriage

361 same sex marriages since law change

Three hundred and sixty one same sex couples have got married in New Zealand from August to December 2013.  The figures show almost one third of the couples are Australian. The total figure of 361 includes 202 New Zealand couples, says Registrar-General of Births, Deaths and Marriages, Jeff Montgomery. 24/1/14



Pregnancy ban “illegal discrimination”

Banning women from flying in the late stages of pregnancy is "gender biased" and may breach human rights, a University of Canterbury researcher says.

Rules regarding the rights and responsibilities of pregnant women flying with New Zealand airlines vary, but women are generally required to carry a medical certificate stating they are fit to fly after about 28 weeks of pregnancy.

Associate Professor Annick Masselot said the policies were often justified on the grounds of health and safety, despite little medical or scientific evidence to back them up, and it was rare for pregnancy-related medical problems to occur on flights, particularly compared to the number of passengers who suffered other health problems while flying, such as heart, epileptic or high blood pressure problems, she said.

However, pregnant women were still asked to provide a medical certificate while others with "more risky" medical conditions were not.

"Airlines base their policy on over-inflated safety concerns that are gender biased," Masselot said.  The policies were "guilty of over-protecting pregnant women" and created a space for "illegal discrimination".

There had been very few legal challenges to the policies, but a number of recent challenges had been brought to the Human Rights Commission (HRC) by pregnant women refused travel by some airline companies, she said.

She hoped decisions, expected to be released by the HRC soon, would result in a "better environment" for pregnant women.

The Press 31/12/13


Gender surgery cost too high for many

A national support group for transgender people says the $500,000 of public health funding spent on gender realignment surgeries over the past five years is woefully inadequate.

In 2006 the Human Rights Commission launched the world's first inquiry by a national human rights institution into discrimination experienced by transgender people.  It found that most trans-people could not access the gender reassignment services necessary for them to live in their gender identity and appropriate sex.  The vast majority of services were not available within the public health system, resulting in many bearing the cost of private assessments and medical treatments, either in New Zealand or overseas.

The inquiry, which took two years, concluded the cost of gender reassignment services was a significant barrier to many trans-people.

Since that inquiry the Ministry of Health has done work to improve the standard of health services provided to trans-people but the barriers for accessing sex change surgery remain high.

Ministry of Health chief medical officer Dr Don Mackie said there was funding through the Special High Cost Treatment Pool to provide just three male to female surgeries and one female to male surgery every two years.

The Press 11/1/14


Human Rights

Justice Minister reports on New Zealand’s Human Rights

Justice Minister Judith Collins has visited Geneva to present the first update on human rights in New Zealand since 2009.

An area Ms Collins admits New Zealand can improve on is its figures on domestic violence and social inequality for Maori, the focus of New Zealand's last human rights review.  She has stated, "It's not something we should say we're completely proud of our record. What [we] can say is [we are] very proud of the steps we've taken and that we are very honest about the situation."

After Ms. Collins presented the report, United Nations member countries will later report back with recommendations for New Zealand to improve human rights. However, the recommendations are not legally binding, as it's effectively just suggestions.

When New Zealand was last up for review in 2009 there were 64 recommendations made. Only 36 were accepted. 25/1/14


Attorney-General launches attack on Law Society

Attorney-General Chris Finlayson has launched a strong attack on the Law Society for claiming that Government's use of urgency was a breach of human rights.

The Law Society has said that its concerns about Parliament's law-making were left out of a Government report to the United Nations.  The Society had criticised law-makers for passing five acts that were inconsistent with the Bill of Rights.

Law Society spokesperson Austin Forbes QC also argued that the National-led Government's use of urgency, when Parliament sat for extended hours to pass legislation, was a breach of human rights.

Mr. Forbes also said the society was particularly concerned about the passing of the New Zealand Public Health and Disability Amendment Act last year.

The legislation passed into law in a single day in May, despite a notice from the Attorney-General that not extending payments to all family carers could breach the Bill of Rights Act.

The society presented its concerns in a submission on the Universal Periodic Review in June 2013, but they were not included in the final report.

Mr. Finlayson said that the Law Society was wilfully misrepresenting New Zealand's human rights record, and the use of urgency was not a human rights issue.  He said that the Law Society had ignored the work that all parties had done to reduce the use of urgency, and that the rate that it had been used was the lowest in years. 

Mr. Finlayson also said that Section 7 notices, which are attached to legislation if they breach the Bill of Rights, did not prevent the passage of the law, adding "Some of the Society's members may want an entrenched bill of rights allowing the courts to strike down laws made by a democratically elected Parliament. However, that is not the law of New Zealand under the New Zealand Bill of Rights Act."

New Zealand Herald 31/1/14


Media Freedom

Cameron Slater 'incredulous' over ruling

Blogger Cameron Slater says he was "incredulous" that a District Court judge ruled he does not meet the criteria to be considered part of the media.

The Whale Oil founder is being sued by Auckland businessman Matthew Blomfield in a defamation case and has been ordered to hand over confidential sources as part of discovery.

In September Judge Charles Blackie said Slater was not entitled to rely on journalists' rights to protect the identity of sources, as set out in the Evidence Act.

In a ruling made on September 26, Blackie said Slater's blog was "not a news medium within the definition of … the Evidence Act".

Wellington media lawyer Steven Price said the thrust of the Law Commission's report was that bloggers who were serving the functions of free speech and a free press should be treated as media and be entitled to media privileges.

"Still, it is concerned that the reporting be dispassionate and reliable. It can be argued that Whale Oil doesn't measure up on that criterion."

New Zealand Herald 2/12/13


New Legislation

Drunk-cam: Police to film patrons

Drunk patrons will no longer be allowed in bars, and if they are caught, the bar-owner will face a fine of up to $5000.  Police will also film punters, to prove their intoxication.

The new rules are among tougher alcohol measures under the Sale and Supply of Alcohol Act, which took effect from 18 December and are intended to reduce alcohol harm in the community.

A 4am closing time for all on-licence premises has been well publicised, but other changes are not widely known.  These include police having the power to ban shot-glass drinks or the use of glass vessels after a certain time, and $250 on-the-spot fines for people who drink in a public place or use a fake ID.

Bars are now forbidden to serve intoxicated people. Under the new law, drunks will not be allowed to be in a bar and the bar-owner can be fined up to $5000 for any breach.

Police already patrol bars, but drunks will now be judged by tougher standards and officers will have video cameras at the ready to film them, said Inspector Gary Davey, of Auckland city police.

Two cameras had been bought for the city's enforcement team, Mr. Davey said.

The filming would not be done covertly.

The criteria used to establish intoxication are: appearing to be affected by liquor, impaired behaviour, impaired co-ordination or impaired speech.

Someone who fails two of these tests will be considered intoxicated.

Auckland Council's manager of alcohol licensing, Rob Abbott, said licensing inspectors would also inspect bars. Unlike police, they would not have to identify themselves on entering licensed premises.

"This means they can make some initial observations … while remaining incognito."

New Zealand Herald 9/2/13


Operation 8

Human Rights Commission report accused of being  'toothless'

The Maori Party is bitterly disappointed with the Human Rights Commission’s report into Operation 8 saying the report is toothless, sidesteps important rights issues including institutional racism and discrimination, and fails to outline steps to redress and right the human rights violations that occurred.

Maori Party Co-Leader Te Ururoa Flavell said, "my heart sank when I read the report. While it upheld the view that the human rights of the people of Ruatoki were trampled on, the analysis largely follows the IPCA report, the laws and policies of the police and does not at all reflect the experience, trauma and impact of the rights violations suffered by the children and adults of Ruatoki.

“After five years of waiting, we get a report which glosses over issues such as institutional racism, such as how the police came to violate and terrorise an entire low socio-economic primarily Maori community; the violation of the rights of children, like when Police raided school buses, and homes where children were present; the human rights of indigenous people; the rights of collectives and more. It acknowledges that violations happened, but makes no further practical comment about how to move forward and how to remedy the situation.” 20/12/13



Taser use, and injuries, on the rise

Police are discharging Tasers more often and the number of people injured by it is increasing, police statistics reveal.

From January 1 to June 30 police showed the weapon, which hits offenders with an electrical charge on 552 occasions and discharged them 72 times.  The number was the highest six-month figure since the weapons were rolled out nationwide in 2010.

The weapons were shown in 21.5 per cent of all tactical responses by police, another six-month high and compared to the six months from July 1, 2011 to December 31, 2011 when they were used in 13.2 per cent of tactical call outs.

The injuries from Tasers were also on the rise, with 10 people moderately or seriously injured as a result of a shot in the six months to June 30.  There had been 14 such injuries in the 18 months before that.

Police also had to use more shots on individuals, having to use three or more discharges on an individual suspect 10 times in that six-month period.  In the 18 months before that three or more shots into the same suspect only occurred seven times.

Anti-Taser activist John Minto said it was only a matter of time before someone died because of a Taser shot, and noting that,  "In the United States hundreds of people have been killed by Tasers.”

Minto wanted to see only the armed offenders squad armed with Tasers, saying, ”The more police have them and the more officers will use them and grab them rather than good body language and communication skills."

Minto said he had seen police act very well without them in the past but if those same situations were replicated today then the taser would be out straight away.

Dominion Post 10/12/13



People wise up over privacy as they ponder misuse prospects

Reflecting on a year that uncovered global bulk internet surveillance and potentially illegal spying by our own spy agencies, Privacy Commissioner Marie Shroff said Kiwis were increasingly concerned about losing control of their information.

"There is a loud sound of penny-dropping all over the place as people are realising the full implication of collecting all this data, the huge risk that it poses, the opportunity for misuse."

She said it was unclear how mass online surveillance by the United States and others were affecting Kiwis because there was so little information.

However, she rejected the suggestion that the horse had already bolted on privacy. "That is a myth perpetuated by the people that have the most to gain from collecting and using information. We shouldn't allow ourselves to be conned by that sort of attitude."

Leaks by former National Security Agency (NSA) intelligence analyst Edward Snowden have revealed the mass harvesting of citizens' internet and phone data, both in the US and overseas.  Closer to home, it was revealed the Government Communication Security Bureau (GCSB) may have unlawfully spied on 85 New Zealand residents, including internet entrepreneur Kim Dotcom.

Unsurprisingly, both the GCSB and the Security Intelligence Service (SIS) were the subjects of privacy complaints to the commissioner in the past year.  The GCSB was the subject of 19 complaints, only one of which was found to have substance, while the SIS was the focus of 13, three of which were substantiated.

Both were dwarfed by complaints against other government agencies, with ACC receiving 79 during the year.

Overall, 842 privacy complaints were received, down from a record 1142 in the previous year.

Dominion Post 6/1/14


Agencies too slow in destroying shared data

Kiwis' private information is being mishandled by government agencies, which break their own rules when sharing people's details.

Reports from the Office of the Privacy Commissioner reveal agreements between Government agencies to share personal information have been "non-compliant" and have had "substantial issues".

Several agencies have been caught holding on to the information of hundreds of thousands of people after they had previously agreed to destroy it.

The Ministry of Justice was caught three times over a year holding on to personal information of fine dodgers it had received from Immigration New Zealand, Inland Revenue and the Ministry of Social Development. The details the ministry was meant to destroy included cellphone numbers, passport details and employment records.

In another report, the Ministry of Health was criticised for incorrectly retaining death records and running the risk of assuming someone alive was dead.

In another, the Ministry of Social Development was caught tracking people using their tax numbers, which is illegal under the Privacy Act.

Privacy Commissioner Marie Shroff said the breaches were disturbing. "This is a highly complex environment with huge amounts of citizens' data, and you do need a watchdog carefully checking what is going on to keep them honest."

Dominion Post 6/1/14



New Zealand’s ‘twilight’ population of refugees

New Zealand has created a ‘twilight’ population of refugees who have severely limited access to support services both before and after being recognised as Convention refugees and gaining Permanent Residency according to new research conducted by ChangeMakers Refugee Forum and the National Refugee Network.

The research, based on interviews with 18 people who have successfully claimed asylum and staff from agencies working with asylum seekers, found systemic information and service delivery gaps with research participants facing an array of challenges to claiming asylum and permanent residency.

Despite having their claim for refugee status recognised, successful asylum seekers, known as Convention refugees, are eligible to few of the support mechanisms available to refugees who are resettled part of the United Nations High Commissioner for Refugees refugee quota programme.

According to Alia Bloom, Research Coordinator at ChangeMakers, New Zealand is barely meeting its international commitments recognising the right of people to claim and enjoy asylum.  “As a country we provide a very basic level of support for people claiming asylum and those recognised as Convention refugees. Our research found that even at this most basic level there were inequities and inconsistencies regarding information about support mechanisms and how they could be accessed.” 9/12/13