Liberty Watch – February 2012
Round-up of civil liberty news for February 2012.
CHILDREN AND YOUNG PEOPLE
Barring disabled kids ‘inexcusable’
Hampstead School principal Peter Melrose had said that barring disabled kids from schools is inexcusable in reaction to news that disabled services provider IHC has collected statements from families to back up a case to go before the Human Rights Review Tribunal against schools who have turned away disabled children.
Mr. Melrose said every school should be well equipped to handle students with disabilities and there were very few grounds to decline enrolments at any school.
Ashburton Guardian 21/2/12
Policy changes allow undocumented children to go to school
In 2010 the Government followed advice from the Human Rights Commission that for New Zealand to meet its international obligations under the UN Convention on the Rights of the Child, all children, whatever their legal status as residents, should be able to attend school. However, significant policy related hurdles meant it remained difficult for these children to attend school despite the funding. The criteria said a child had to be in New Zealand unlawfully for six months before they could enroll. Furthermore, depending on where the family was in the appeal process, a child’s immigration status could suddenly change. This could mean a child, who was attending school, could suddenly be unable to do so because under the previous policy the child would need to be “unlawful” for six months.
The change in policy means that the criteria are no longer based on the period of time that the child has been living unlawfully in New Zealand.
Radical jury trial overhaul proposed
The Law Commission has proposed ditching trials by a full jury of 12 in favour of trials by a judge and two semi-professional jurors to allow more evidence, such as previous convictions, to be used. Other proposals include, Judges, rather than lawyers, control trials including calling witnesses; Victims being able to request review of decisions to drop or amend charges; fast-tracking cases with vulnerable witnesses; and defendants' evidence given at the start of a trial instead of after the prosecution.
New Zealand Herald 14/3/12
Complaints body sent private details to journalist
The body charged with investigating complaints about judges has accidentally released personal details about those who had sought its help. The documentation contained complainants' names and addresses, and the progress of inquiries into the complaints
There were 181 complaints about judges last year. The details show that complaints were lodged against judges at the Family, District and High Courts. The complaints contained allegations ranging from judges being "bored", to "not interested in hearing defence" and "not interested in the truth". There was also an allegation that a judge had not taken seriously a claim that two young men had died as a result of serious offending by senior politicians and commercial leaders.
Herald on Sunday 19/2/12
Corrections transgender stance unjust
The New Zealand AIDS Foundation (NZAF) has expressed support with the Chief Ombudsman's criticism of the Department of Corrections saying that policies in New Zealand prisons put transgender prisoners at risk of HIV.
Shaun Robinson, NZAF Executive Director, says that one effect of the policy is that transgender women who may not have completed gender reassignment surgery and therefore have not changed their birth certificates are housed in male prisons and treated as male prisoners. "Yet these women identify as women, dress as women, receive female hormones and live their day-to-day lives as women."
Robinson argues that trampling on the human rights of people on the basis of sexual and gender identity is fundamentally unjust. "This is a human rights issue at a base level; the policy is transphobic and places transgender people at severe risk of violence in prisons.
"This decision flies in the face of the recommendations of the 2007 Human Rights Commission Report 'To Be Who I Am' on the rights of transgender people," says Robinson. "The report notes that 'protection from discrimination under the Human Rights Act 1993 requires policies and practices to be inclusive of transgender people, whatever their sex or gender identity' – something the Department of Corrections does not appear to have considered."
Ad requested good looking people only
An ad for a job selling ice-cream in Mangere required applicants to be fast and hard working but also indicated looks were important. Posted on backpackers.co.nz, the ad invited "girls" to text in a photo with their age and nationality.
"Those who do not send photo will be not selected. Good looks will be an advantage," the advertisement, listed by Rob Galsavo, read.
The Human Rights Act 1993 protects New Zealanders from discrimination based on gender, nationality and age. However appearance-based discrimination is not covered.
New Zealand Herald 26/2/12
FREEDOM OF SPEECH
Man fined for selling derogatory clothing
An Invercargill retailer, who was selling hooded tops with the words "Jesus is a c…" emblazoned on the back was fined $500 in Invercargill District Court and an order was made for the destruction of the garments.
The charge was laid by the Internal Affairs Department under the Films, Videos and Publications Classification Act.
Southland Times 15/2/12
Banned Bloody Mama book reclassified
Bloody Mama, the banned booked seized from a Newtown bookseller by government officials, has been reclassified unrestricted by the Office of Film and Literature Classification.
The decision said readers drawn to the book were likely to be mature enough to handle its adult content, which is restricted to ''one or two sentences'' in the 132-page novel. ''Unlike a film, a book does not make a sudden, colourful impression, and requires a level of engagement with the text that would make it of little interest to children.''
The now defunct Indecent Publications Tribunal banned the novel in 1971.
The office's decision is open to for review from the public or interested parties for a month from March 10.
Dominion Post 17/2/12
John Key's radio show broke law
An Electoral Commission ruling has found the Radio Live show hosted by John Key last September was an election programme and therefore a prohibited broadcast.
The commission's found the broadcast was an election programme and a breach of the Broadcasting Act.
The Electoral Commission will now see the police to decide whether to prosecute the broadcaster, which could be fined up to $100,000.
Otago Daily Times 9/2/12
First guide to religion at work
The Human Rights Commission has released the country's first guide to religion at work.
The Human Rights Commission received 55 complaints last year in relation to religious discrimination, of which 16 were employment related. It is illegal to discriminate on the basis of religion, although there can be exceptions if there is a health and safety issue at work.
The Press 19/2/12
Standards for health research could become less stringent
New Zealanders could participate in health research without the chance to give informed consent if draft procedures for health and disability ethics committees are adopted, the New Zealand Law Society has said in its submission on the Draft Standard Operating Procedures for Health and Disability Ethics Committees.
The submission says the proposed changes are a significant departure from the current standards for ethics committees and from international standards for the protection of human participants in research, and If implemented they will have significant human rights implications.
Section 10 of the New Zealand Bill of Rights Act 1990 provides that every person has the right not to be subjected to medical or scientific experimentation. “The Law Society is concerned that the proposed changes, together with reducing the membership and numbers of ethics committees, will not provide adequate protection for participants of health and disability research. This particularly applies to the right of patients or participants to give informed consent or refusal to participate in research,” Health Law Committee convener Alison Douglass said.
Police and immigration exceeded powers
Police and immigration officials exceeded their legal powers by forcing an Indian woman to put her fingerprints on deportation documents, two separate inquiries have found.
Seperate police and immigration investigations concluded that police, acting on behalf of immigration officers, exceeded their powers by using force to prise open the woman’s clenched fist in order to obtain her fingerprints for deportation travel documents.
As a result of the investigation, Immigration New Zealand has agreed to enter a process whereby the woman and her family can lodge an appeal on humanitarian grounds to be allowed to stay in New Zealand.
New Zealand Herald 3/2/12
Bureaucrats' burying visa decisions 'a blatant act of law breaking'
Instructions to immigration officials not to record information to avoid judicial reviews and extra paperwork have outraged civil libertarians, who are calling it a deliberate attempt to avoid accountability.
The Immigration New Zealand directive to staff concerns section 61 of the Immigration Act, which empowers the Immigration Minister to grant a visa to a person who is unlawfully in New Zealand and not subject to a deportation order.
This power is delegated to Immigration NZ officials and decisions are open to review by the Ombudsman.
In November last year Immigration NZ issued instructions to staff not to "record any reasons or rationale" in all cases involving section 61, including those that are thrown out without being considered, and those that are considered and are accepted or declined.
Council for Civil Liberties spokesman Thomas Beagle said the instructions could violate the Public Records Act, which requires that "every public office and local authority must create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice".
Failure to comply with the act regarding an individual could see a $5000 fine.
Mr. Beagle said hiding under a complete lack of documentation was against the way a transparent and accountable Government should operate.
New Zealand Herald 27/2/12
Parliamentary rule changes affect the use of urgency
A number of changes to the way Parliament is run will help ensure more integrity from MPs, less use of urgency and greater public.
One change gives the House an option to sit for longer and progress bills without resorting to urgency. Under urgency, a bill can pass all its stages and bypass select committee scrutiny, where the public has a chance for a say. Additionally, a minister calling for urgency will have to say why urgency is needed.
Speaker of the House, Lockwood Smith said he did not think urgency had been abused in the last term. "But the problem is that it gives the public the impression that stuff is being rammed through without proper scrutiny” he has said. A study by Victoria University's Faculty of Law found that during the MMP era, urgency was used the most in the 1996 to 1999 term and the 2008 to 2011 term.
New Zealand Herald 6/2/12
Questions raised over lack of support for deaf MP
The National Foundation for the Deaf has said a decision not to give special funding for deaf MP Mojo Mathers in Parliament is ''disgraceful and appalling.''
Spokeswoman Louise Carroll urged Mathers to take the matter up with the Human Rights Commissioner and to look closely at employment laws.
Carroll said, ''I'm hearing impaired. I spend my whole life trying to access information that other people who can hear normally take for granted…. This is just a gross example of it.''
Carroll agreed with Green Party leader Metiria Turei that disabled candidates would be dissuaded from standing for Parliament, adding ''It would seem to me that this is a straightforward issue of access for a person who is disabled, whether that be a wheelchair or a communication equipment is irrelevant” and she questioned Parliament's commitment to signing as New Zealand's third language.
Police access Facebook in Wellington murder investigation
Police investigating a Wellington murder enlisted the help of the United States Government to order Facebook to hand over the personal pages of suspects.
They also contacted internet giant Microsoft to gain access to Hotmail email accounts and tracked down those who had contacted a suspect on internet dating sites.
Dominion Post 11/2/12
Call to test for alcohol post crash
People injured in car accidents should be tested for the presence of alcohol in their blood before receiving treatment, Otago Southland Coroner David Crerar has said.
He has asked the Southern District Health Board to institute a protocol requiring, where possible, that a blood sample be taken from patients involved in car accidents as soon as they are admitted to hospital.
Southern District Health Board acting chief executive Lexie O'Shea said, "This is a complex issue and there are a number of ethical and national policy issues which need to be considered."
At present, the board would take a sample from a driver, in the circumstances outlined by the coroner, when requested by the police and as required by the Land Transport Act 1998.
Otago Daily Times 17/2/12
'Too many' being Tasered
Seven people have been Tasered by police in Manawatu in less than two years, amid fears officers are using them as "a weapon of first resort".
Figures released to the Manawatu Standard under the Official Information Act show that since Tasers were issued to the region's police officers in March 2010, they have pulled them on members of the public 32 times.
Last year not a single Taser was fired in Palmerston North, but three people were Tasered in the rural areas surrounding the city. In 2010 four offenders were Tasered by police in the city. Figures for 2012 were not available.
Tasers were introduced to frontline police in Wellington, Auckland City, Counties Manukau and Waitemata in 2008. Since the national rollout to all other districts in March 2010, Tasers have been presented on 890 occasions and fired 136 times.
All of those shot by Tasers in Manawatu were men aged between 18 and 40. Of the 136 people shot nationwide, only five were women.
New Zealand Civil Liberties Council spokesman Kevin McCormack said the use of Tasers was inhumane.
Nationally, police fired their guns at three people last year – including in Otaki in March, when a 28-year-old man was shot in the arm by police. The man was wanted by police for assault and driving while disqualified. The man was taken to Palmerston North Hospital in a stable condition. From the beginning of 2008 until September 2011, police drew their firearms 872 times throughout the country.
Manawatu Standard 15/2/12
Visit to niece ends with police brutality
A 56 year old retired civil engineer and university lecturer from China who came to New Zealand to visit her niece in Hamilton found her visit soured by alleged police brutality.
Ms Li went to Countdown Hamilton and parked her car in the Countdown car park. When she returned her car was gone. Not able to speak any English, she was given body gestures that her car might have been towed away by the towing company.
Spotting a tow truck in the car park, she went to see if the driver could take her to her car. She attempted to explain her situation to the driver and tried to sit in the passenger’s seat of the tow truck as a means of explanation; however, due to the language barrier, the driver misunderstood and instead called the police.
A total of 4 police officers arrived at the scene. After speaking to the tow truck operator, the officers gestured to Ms Li to move away from the tow truck and she obeyed. However, believing that the officers would help her, Ms Li then tried to explain her situation to them through hand gestures. The police officers however did not understand her and they gestured to her that she must move away from the police car. Ms Li followed their instructions and feeling exhausted from her ordeal began to walk back to Countdown to find somewhere to sit down.
In what was described as similar to a “rugby tackle”, the officers then jumped on Ms Li from behind, twisting her arms behind her back and forcing her to the ground.
Ms Li was then yanked to her feet and shoved into the backseat of the police car. During the trip back to the Hamilton police station, Ms Li was groaning with pain, and tried to get the attention of the officer beside her by using her leg and indicating that her right elbow was extremely sore. The officer did not help her, but rather laughed at her and mimicked her groans of pain. It wasn’t until they arrived at the Police station and after the handcuffs were removed that Ms Li was finally able to point her obviously deformed right elbow and was then taken by an ambulance to Waikato Hospital’s Emergency Department.
Upon examination, it was discovered that Ms Li had a dislocated right elbow, which took three attempts to reset and a laceration to her left cheek that required stitches.
A friend showed up in the hospital and was told by the same police officers that Ms Li was “biting and assaulting police officers which was the reason for her arrest, and that she would later be charged by the police and prosecuted in court.”
It is understood that next to the Countdown supermarket there are a few Chinese supermarkets and a transportation centre, where there would have been at least one Chinese speaking person who the police could have asked to act as an interpreter and helped to resolve the situation.
Press Release: Amicus Barristers Chambers
Commuters express privacy fears over Hop card ad blitz
Personal information from tens of thousands of Aucklanders has been given to a private company by council authorities, with the details then used in a marketing blitz.
Auckland Transport gave the information held on users of the "Hop card" – which are used to pay fares on buses – to a third party, Snapper Services, which embeds electronic chips in the cards so they can also be used to pay for items in affiliated shops. Snapper then used the email addresses contained in the personal information to launch a campaign advertising its retail services.
Although only names and email addresses are required to register a Hop card, users are also invited to supply phone numbers and street addresses. Although cardholders could elect not to register them, they would be unable to seek credit refunds if they were lost or stolen.
A spokeswoman for the Privacy Commissioner, Marie Shroff, provided a statement of concern it issued in 2008, soon after Snapper cards were introduced to Wellington, about the amount of information asked of registered users.
New Zealand herald 13/2/12
Asians face most discrimination in NZ
Asians are the most discriminated against group in New Zealand, according to a new survey conducted for the Human Rights Commission, and attitudes towards them have changed little in the past five years.
A Human Rights Commission review of discrimination and harassment found that the number of media reports of racially motivated crime dropped in the past year, but still included a number of serious assaults.
Two Thai women were abused both physically and verbally in Nelson, a couple set their dogs on a Filipino man and Japanese student in Christchurch, a man in New Plymouth attacked his Indian neighbours' car with a machete, and a Chinese student was assaulted at an Invercargill petrol station.
The Race Relations Commissioner, Joris de Bres, told the New Zealand Federation of Multicultural Councils in Wellington that an active focus on inclusion of Asian New Zealanders in all aspects of New Zealand life was required to break down discrimination. Asians are now one of our four largest population groups, and one of the fastest growing. Yet the only publicly funded television programme, Asia Downunder, was discontinued last year," he said. Auckland University, has rightly provided a space for Maori and Pacific students with the marae and the Fale Pasifika, could be thinking how they can similarly provide a space for Asian students who comprise a significant proportion of the student body, he said.
“There are very few Asians on the boards of District Health Boards, not enough Asian teachers in New Zealand schools, not enough Asian local councillors or community board members and Asian migrants continue to face discrimination in applying for jobs”, he added.
De Bres said that one of the organisations that have strongly focused on Asian recruitment in recent years is the New Zealand Police, and that meant they were able to deal effectively with Asian communities after the Canterbury earthquake, as well as being accessible to Asian communities elsewhere, he said.
To view the full review of discrimination and harassment in 2011 visit the Human Rights Commission website.
Women’s health & human rights on the line in welfare reform
Christy Parker, Policy Analyst at Women’s Health Action has responded to the welfare reforms announced by Social Development Minister Paula Bennet which target single and teen mums, and disputed the idea that the current structure of the Domestic Purposes Benefit provides an incentive to have additional children, an idea put forward by the Welfare Working Group and the driver for these reforms.
“This is not supported by international evidence which shows that women’s decisions regarding children are much more likely to be based on their personal and relationship circumstances than on government policy,” stated Ms Parker. “What we do know however is that women who can’t, or don’t, control their fertility whilst receiving welfare support, end up subject to disproportionate levels of poverty and hardship resulting from welfare sanctions such as these. This results in poorer health and greater social and economic marginalisation for both them and their children."
She further added, “That women bearing the burden of these reforms is a human rights issue. Women’s right to the freedom to decide whether or not to have children, and to control their reproductive capacity free of coercion has been affirmed in international human rights agreements which New Zealand has ratified. On this basis alone the reforms cannot be justified, let alone the likely health impacts on women and their children."