Liberty Watch – June/July 2013

Civil liberties news for June and July 2013.


Criminal Justice

Lundy's bid to see appeal blocked

Prominent human rights lawyer Michael Bott has complained after convicted double murderer Mark Lundy was not allowed to watch his appeal to the Privy Council as it unfolded.  Since his conviction Lundy has maintained his innocence and in June the Privy Council in London heard his appeal against his convictions.

The three-day overnight Privy Council hearing was live-streamed on the internet on a publicly available website, and a request was made for Lundy to be able to watch from Rangipo Prison, but this was turned down by the Department of Corrections.

"The prisoner would need approval to be out of his cell after lockup hours, which is only approved in emergency situations and this request is not considered an emergency," Tongariro/Rangipo prison manager Dennis Goodin said in a statement.

Instead Lundy had to rely on a meeting with his sister a few days later to learn details of the hearing, a situation that, Mr. Bott said, was not good enough.

"In New Zealand, inmates have the right to attend their appeals…Fundamentally ‘justice being seen to be done' does not apply just to the public, but also people affected. That’s the accused as well. Really, one would think the Department of Corrections would adopt a more enlightened policy," Mr. Bott said.

Inmates could follow their appeals via video link to New Zealand's higher courts, so Mr. Bott saw no reason why Lundy couldn't watch what was going on in London.

Manawatu Standard 25/6/13


Three Strikes Law

Over 2000 criminals have been given warnings under "three strikes" legislation introduced in 2010 to keep violent offenders behind bars longer, but critics say

In total, 2784 people have been given ‘first strike’ warnings, while 20 have received a ‘second strike.’  No-one has yet received a ‘third strike.’

Manawatu Standard 6/7/13



Workers drug test numbers skyrocket

Workplace drug and alcohol testing is skyrocketing as screening expands from traditional safety-sensitive jobs like forestry to sectors including finance and government.

The New Zealand Drug Detection Agency figures show that between 2011 and 2012 its alcohol screening tests rose 32 per cent, with 39,369 tests administered. After doing 29,000 drug tests in 2008 it forecast it would probably do 90,000 this year.

Chief executive Chris Hilson said where once it tested 12 sectors, including construction and transport, it now screened 23. There was a marked uptake among white-collar industries, and many middle and senior level managers were being tested before being appointed.

Drug Testing Services managing director Jo Kirk said More random testing has seen an increase of four per cent to around 17 per cent in the number of non-negative tests.

Duayne Cloke, site services manager for Pro Med, which trains drug testers, says the trend is now so marked most New Zealand workplaces will soon be drug testing.

Any workplace can have a drug-testing policy, but procedures must be clear.  Farry and Co employment lawyer Kirsten Maclean said staff must know the circumstances in which testing will be done, and what the disciplinary procedures are. The conditions should be included in employment contracts.  She said legal issues usually arose when policies weren't clear, or if workers felt they were being unfairly targeted.

Some workers had won compensation after being unjustifiably dismissed because of drug tests.  Last year, a Nelson roofer was awarded $15,000 after being sacked after a random drug test. The ERA found there was no reasonable cause to test him at the time, and it was not the action a fair or reasonable employer would have taken.

Taranaki Daily News 7/7/13


Human Rights

Strengthening of human rights protection mechanisms urged

The New Zealand Law Society has advised the United Nations’ Human Rights Council that mechanisms protecting human rights in New Zealand would benefit from further strengthening.

In a submission to the Council for the second Universal Periodic Review of New Zealand’s human rights record, the Law Society identifies a number of legislative measures that it says fail to meet New Zealand’s domestic and international human rights obligations.

Law Society President Chris Moore says that while New Zealand has a generally good record on human rights, its constitutional arrangements mean that protection of human rights depends on rigorous scrutiny of policy and legislation, close adherence to the rule of law, and political restraint where rule of law concerns or inconsistencies with human rights standards are identified.

"Without a supreme bill of rights or entrenched constitution it is crucial that human rights protection mechanisms operate effectively to forestall breaches of human rights. Unfortunately on a number of recent occasions legislation has been passed despite conflicting with the rule of law and human rights.

"There have been twelve pieces of legislation in recent years that have been identified as inconsistent with the rights and freedoms protected in the New Zealand Bill of Rights, and on a number of occasions urgency has been used in Parliament to limit or bypass select committee scrutiny," he says. 20/6/13


Government human rights record attacked

The Government's treatment of disabled people has been criticised before the United Nations.

In its submission to the UN Human Rights Council, the New Zealand Human Rights Commission attacked the Government for passing laws under urgency, human rights breaches in post-quake Canterbury, and legislation limiting disabled people's rights, stating that, "The Canterbury experience is symptomatic of a wider trend to move towards centralised governance, progressively removing the voice of those affected from the decision-making process."

The commission also called for parts of the Public Health and Disability Amendment Act to be repealed.  This act blocks carers of disabled family members from seeking redress for unlawful discrimination.

The law passed in May under urgency despite Attorney-General Chris Finlayson admitting it breached the Bill of Rights Act.

Dominion Post 19/6/13



Mass detention a failure for human rights in New Zealand claims Amnesty

Amnesty International has said that is appalled with the New Zealand Government’s decision to implement a law that breaches the rights of people seeking protection from persecution.  The Immigration Amendment Bill passed its third reading on 13 June, by 63 votes to 53. Use of the new powers of mass detention in this Act could breach New Zealand’s international obligations under the Refugee Convention and human rights law.

“It is extremely disappointing to see that the Government has pushed forward with this law despite strong criticism from both the New Zealand public and the international community,” said Grant Bayldon, Executive Director at Amnesty International. “The NZ Human Rights Commission and the United Nations High Commissioner for Refugees were among those who raised their concerns with the Bill.”

“Amnesty International is calling on the Government to adopt additional safeguards to ensure that they do not detain already vulnerable people unnecessarily and put New Zealand in breach of its obligations under human rights law,” Bayldon added, and further argued, “detention can fundamentally damage individuals who have already fled torture and situations we can’t even imagine and therefore it is crucially important that detention is used only as a last resort and not on mass in an effort to deter people smugglers.

“Experience in countries like Australia has shown that psychological damage caused by detention can last for years after people are released. Detention will not only further, unnecessarily, burden New Zealand taxpayers but robs individuals of the ability to contribute productively to their new country."

Amnesty also expressed concern about a number of other amendments in the legislation that apply to all asylum seekers, including limits to judicial review and the suspension of claims. 13/6/13


Media Freedom

Journalist Jon Stephenson accuses NZ Defence Force of spying on him

An article by investigative journalist Nicky Hager claims the New Zealand military had received help from US spy agencies in monitoring journalist John Stephenson's phone conversations while he was working in Afghanistan.

According to the article, members of the New Zealand Defence Force had copies of intercepted phone metadata for Stephenson.  The reports, which related to Stephenson's phone conversations in the second half of last year, showed who he had called and who those people had called.  At the time, Stephenson was working as a Kabul correspondent for the US McClatchy news service and for various New Zealand organisations.  Calls of Stephenson's associates were also monitored.

The monitoring was believed to have been co-ordinated from the main US intelligence centre at Bagram, north of Kabul. According to the article, GCSB staff have been posted at this unit since early in the Afghanistan war.

An internal Defence Force manual, which refers to "certain investigative journalists", as "subversion" threats was also referenced by Hager's article.  The manual, which was leaked, was issued as an order by the head of the Defence Force, and said some journalists may be classed as hostile individuals as they pose a threat of subversion.

"Counter intelligence" methods, which are "activities concerned with identifying and counteracting the threat to security" by such individuals or organisation can be sanctioned by the by the Defence Force chief in New Zealand.

The Human Rights Foundation says Defence Force involvement in monitoring a journalist is an abuse of fundamental human rights.  Spokesman Tim McBride said, "Independent journalism is especially important in a controversial war zone where the public has a right to know what really happens and not just get military public relations.”

New Zealand Herald 28/7/13 & Dominion Post 28/7/13


Release of journalist’s phone records condemned

Prime Minister John Key says he is "very disappointed" that three months worth of phone records for Fairfax journalist Andrea Vance have been handed over to a ministerial inquiry.  Speaker David Carter has confirmed the records were given to the inquiry. He apologised to Vance and Fairfax group executive editor Paul Thompson and acknowledged answers given last week denying Vance's phone records had been handed over were wrong.


Key said Parliamentary Service "got it wrong…they made a mistake and they should never have released that information." But he reiterated that at no stage did the Henry inquiry make use of the information.


"The Henry inquiry fully understood the breadth of their mandate; they didn't access the information, they didn't look at the information, frankly they didn't want the information. Parliamentary Service got it wrong and let itself down."


Key said he had "enormous respect" for the media and believed in the freedom of information.  "We don't think they should be subject to surveillance and they're not."


The union that represents journalists, the EPMU, also attacked the act saying, “protection of sources is a key ethical consideration for journalists. When sources know they can provide information to journalists without fear of retribution, they are able to hold authorities to account…If government agencies are able to delve into journalists’ communications, it will seriously impede the flow of information to journalists and have a chilling effect on media freedom.”

Scoop 31/7/13 & Dominion Post 30/7/13



Concern at search and seizure law change

A University of Otago law lecturer has said the Government's Education Amendment Act 2012 has provided a ''potential playground for lawyers''.


The legislation was passed in Parliament this month, amending the Education Act 1989, and now gives appropriate school staff the power to search pupils and their bags, and seize property.

Otago University’s Paul Roth has expressed concern at what he calls ''weasel words'', such as 'reasonable grounds', 'detriment to the learning environment', 'reasonable period', 'as appropriate', and 'items that are reasonably believed to pose an immediate threat to a person's emotional safety', all of which could be used by lawyers to argue their cases.

He also noted that that conferring the legislation's intrusive discretionary powers on all school seemed risky and could result in unfairness if there is a disparity in the treatment of pupils by different staff members.  'I would prefer the concentration of such powers among a small number of senior staff,” he said.

However, on the positive side, the legislation gave schools more protection from potential lawsuits in relation to search and seizure, which previously were not spelled out.  Previously, schools either had to take the risk they might be acting in breach of the New Zealand Bill of Rights' provision on search and seizure, or call in the police, who had more experience with such matters.

Otago Daily Times 23/6/13



MP's express fears over GCSB legislation

MPs want the Government's GCSB legislation amended to ensure the spy agency doesn't overstep the mark if it eavesdrops on them.

Under an existing agreement, the SIS can collect and retain information about MPs under limited circumstances if it shows the Speaker of the House there are good grounds to do so.

However that agreement doesn't cover the GCSB which, under the Government's new legislation, will be expressly allowed to spy on New Zealanders when it is helping the police and SIS, and The Clerk of the House has raised concerns that there is no framework for dealing with complaints about surveillance of MPs by the GCSB when it is working on behalf of the SIS and Police.

Parliament's Privileges Committee has recommended that the GCSB and Related Legislation Amendment Bill is amended so that the Inspector General of Intelligence and Security can receive and act on complaints made on behalf of a class of people rather than just individuals.  That would allow the Speaker to raise issues around any GCSB or SIS surveillance of MPs.

The committee has also recommended the Inspector General can initiate an inquiry into actions of the spy agencies without the approval of the responsible minister.

New Zealand Herald 12/6/13


Facebook seeks spying exemption

Facebook has asked the Government for an exemption from a new spying law that could see its two million New Zealand users' messages subject to interception by the GCSB.

The company’s request was in its submission on the Telecommunications (Interception Capability and Security) Bill.  The bill gives the Government the power to force internet companies such as Facebook, Google and Twitter to provide electronic spy agency the GCSB with access to New Zealanders' messages and other communications carried over their systems. At present that obligation rests only with telecommunications companies such as Telecom, Chorus and Vodafone.  Google and Microsoft have also come out against the bill.

In Facebook's submission, the company's Australasian head of policy, Mia Garlick, said the bill "needed to be clarified to ensure that it is beyond doubt that services such as Facebook that provide stored messaging services are not subject to this legislation."

Ms Garlick indicated Facebook regarded the bill's interception provisions as "blunt tools, which have the potential to infringe on civil liberties and constrain economic growth".

She said Facebook, which has more than two million Kiwi users, already co-operated with New Zealand law enforcement authorities, "making sure that we prioritise any cases where there is an imminent risk of death or bodily harm".


Otago Daily Times 11/7/13


GCSB legislation 'inadequate' according to the Human Rights Commission

The Human Rights Commission has added its voice to those calling for a full and independent inquiry into New Zealand's intelligence services.

The commission released a report to Prime Minister John Key on the Government Communications Security Bureau and Related Legislation Amendment Bill, the Telecommunications (Interception Capability and Security) Bill and broader human rights matters regarding surveillance.

"The Commission is concerned that the proposed bills are wide-reaching without sufficient safeguards against abuse of power. There is inadequate oversight and inadequate provision for ensuring transparency and accountability," chief commissioner David Rutherford said.

The commission recognised that some level of surveillance was inevitable and justifiable from a human rights perspective in a democratic society.  "However, surveillance can be subject to human rights principles, protecting human rights and limiting them only when proportionate and justified and in accordance with the law," Mr. Rutherford said.

"The right to privacy is fundamental in a democracy and reinforces other fundamental rights, such as rights to freedom of expression, association and assembly. The proposed restrictions on the right to privacy are too general to be proportionate to the bills' objectives."

Otago Daily Times 12/7/13