Liberty Watch – March 2011

Round-up of civil liberty news for March 2011 (final version updated on 3/4/2011).

Law Societies Concerns over Alcohol Reform bill

The Law Society’s concerns include the powers to arrest for an infringement offence and to demand information from individuals in an alcohol ban area. The Bill’s reverse onus provisions, which require people to prove their innocence if charged with a number of alcohol-related offences, are also a concern.

The Convenor of the Society’s Human Rights and Privacy Committee, Dr Andrew Butler, said the Bill proposed to make the breach of an alcohol ban an infringement offence with the power of arrest. This would make it the first infringement offence to carry a power of arrest. “The power of arrest should not lightly be used to detain people whose behaviour merely has the potential to escalate,” he said.  The Law Society believes that setting such a precedent deserves more consideration, and agreed with the Law Commission’s conclusion that there were already ample powers of arrest where behaviour is objectionable.

Giving police officers the power to demand the name and address of people in an alcohol ban area also appeared to be inconsistent with the New Zealand Bill of Rights Act rights to silence, to be free from unreasonable search and seizure, and also of freedom of expression.

Dr Butler said the Law Society also objected to provisions that did not appear to be compatible with the presumption of innocence protected by the New Zealand Bill of Rights Act. Both provisions required the accused to prove that an element of the alleged offence did not exist. The Law Society recommended that these provisions be removed from the Bill.


Race Relations in 2010

The Human Rights Commission's annual Review of Race Relations in New Zealand – Tūi Tūi Tuituiā highlights some crucial priorities for race relations.

  • AUMR Research Ltd survey in November found that Asians continue to be viewed as the group most discriminated against. The media reported sporadic incidents of racial violence and abuse, mainly in the South Island and mostly against Asians.
  • The Christchurch report-It website continued to receive complaints from international students about racial harassment.
  • More than 500 complaints and enquiries were made to the Human Rights Commission about racial discrimination in 2010.  This was an increase on the previous year and was mainly due to 21 complaints about sports personality Andy Haden’s comments in May about rugby players of Pacific island origin and 83 complaints about broadcaster Paul Henry’s comments about the Governor-General.

The media continue to report sporadic incidents of racially motivated violence, ranging from verbal abuse to severe physical assault. There is no way to establish the actual extent of racially motivated crime, because the Government has not yet honoured its commitment to the United Nations Human Rights council to introduce a system of data collection to capture this information.

Positives in New Zealand's race relations include the growth of te reo Māori and the Māori economy; Parliament reflecting the cultural diversity of the country; and the settling of historical claims for breaches of the Treaty of Waitangi.  However, the report notes that last year's 'three strikes' legislation and the removal of prisoners' right to vote are in breach of human rights and will impact disproportionately on Māori.


Human rights case update

Smith v Air New Zealand Ltd [2011] NZCA 20

In a decision released in February the Court of Appeal has found that Air New Zealand had discriminated against a disabled passenger but it wasn’t unlawful as it fell within the exception provided by Section 52 of the Human Rights.  S52 states that providers must accommodate the needs of the disabled unless it would impose an “undue burden or hardship” on the provider. After considering the costs involved to Air New Zealand in providing extra oxygen for disabled passengers such as Smith, the Court held at that the airline couldn’t “reasonably be expected to provide supplementary oxygen without the imposition of a charge”.

In 2002 Valerie Smith complained to the Commission that Air New Zealand charged her extra for oxygen when she flew and she regarded this as discriminatory.


Gang Patch Ban Ruled Illegal

Justice Clifford ruled the Wanganui District Council exceeded its powers when it created the bylaw in 2009. A special act of Parliament allowed the council to control gang insignia, but not to ban it completely.

The judge ruled that was what the council effectively did by applying the restrictions to such a large area. The judge also ruled the council had not fully considered the effect such a wide-ranging ban would have on freedoms of expression guaranteed under the Bill of Rights.

Manawatu Standard 9/03/11

Banning patches will do nothing to affect Wanganui's gang membership, according to an expert in crime prevention.

Kim Workman believes that a ban could instead make the situation worse, by driving gang activity underground and creating a stand-off with police that cuts off information flow.

"All the evidence would suggest that suppression actually produces crime, because you are setting up a challenge, which is what the mob thrive on," he said.

Mr Workman is the director of Rethinking Crime and Punishment, a group that aims to inform the public about crime and get people talking about solutions.

Wanganui Chronicle 15/3/11

Patch ban ‘not the answer’

GISBORNE District Council will not follow in the footsteps of Wanganui by banning gang patches in the CBD.  The matter came up at a Community Development Committee meeting yesterday, as councillors discussed a report on the council’s role in relation to gangs.

In her report, community development team leader Judy Livingston presented two possible responses to gang concerns — zero tolerance or prevention. The zero tolerance policy would mean banning gang patches in the CDB and seeing that gang members were sent to prison for a long time.

“The flipside is prevention. If we can reduce the number of young people joining gangs, it will benefit all of us. Young people who would have joined gangs can become productive members of society. It’s a win-win situation,” she said.

Gisborne Herald 17/3/11

Judge gives Mongrel Mob patch back

A gang member has successfully overturned a landmark court order to have his gang patch destroyed.

Mongrel Mob member Rawiri Mana Tehau, 30, a patched member of the Central Hawke's Bay chapter, said he was still celebrating after the decision last month.

"The patch is my life, I'm pretty happy," Mr. Tehau said.

Mr. Tehau's patch was ordered to be destroyed on January 14 after his conviction in Hastings District Court on a charge of disorderly behaviour.
"The defendant's patch was not seized pursuant to a search warrant, it was seized at the time of his arrest," the judge wrote.  He vacated the order and asked the patch be returned to Mr. Tehau.

Hawkes Bay Today 18/3/11

Spymaster not good choice as Governor General

Prime Minister John Key yesterday announced the appointment yesterday of Lieutenant General Mateparae as Governor-General.  He will take over Sir Anand Satyanand in August.

Lt Gen Mateparae was chief of the Defence Force until he retired in January and took over as head of the Government Communications Security Bureau (GCSB) the country's top spy agency. He will step down from this post when he becomes Governor-General.

Although Lieutenant General Jerry Mateparae has only recently taken the reins of the spy agency GCSB (Government Communications Security Bureau) he is currently involved in overseeing two controversial pieces of legislation he Search and Surveillance Bill and the SIS Amendment Bill.,  which it is alleged will seriously encroach on the civil liberties and freedoms of New Zealanders.

Global Peace And Justice Auckland spokesperson, John Minto claims that   Mateparae's political views and instinctive interests lie outside what many New Zealanders feel is appropriate for this country.


Calls to Crimestoppers Increasing

Awareness of Crimestoppers is growing with the past two months producing the highest call rates since the service was set up in New Zealand, chief executive Lou Gardiner said today.

Crimestoppers is an independent organisation that allowed people to phone in anonymously to provide information on crime.

In January, it took 982 calls, an average of 32 a day. In February, it received 840, an average of 30 a day. Mr Gardiner said those monthly figures were the two highest since Crimestoppers was launched in October 2009. The target of 10,000 calls for this year, an increase off 30 percent on the first 12 months of operation, was looking likely to be achieved, he said.

Drugs remained the crime that attracted calls and accounted for 60 percent of information received.

The next biggest categories were dishonesty (12 percent) and wanted persons (7 percent).
Otago Daily Times 15/3/11

Criminal Procedure (Reform and Modernisation) Bill
Changes to name suppression

Restrictions on the media’s right to be heard in respect of court name suppression orders under the Criminal Procedure (Reform and Modernisation) Bill appear arbitrary and should be changed, the New Zealand Law Society said

Speaking about the Society’s submission on the Bill to Parliament’s Justice and Electoral committee, the convenor of its criminal law committee, Jonathan Krebs, says the Bill currently restricts the right to be heard to official members of the media who are subject to the jurisdiction of either the Press Council or the Broadcasting Standards Authority.

“This seems an arbitrary basis on which to deny a right to be heard in respect of a suppression order,” Mr Krebs says. “Media who are not subject to the jurisdiction of one of the two complaints bodies may still have a proper interest in being heard.”

The Law Society’s submission states that the test of “extreme” hardship proposed for name suppression was pitched too high.
“We believe this is particularly so where the defendant still enjoys a presumption of innocence or has been acquitted, or where the hardship would be suffered by a person connected with the defendant,” Mr. Krebs says.

The Law Society’s submission also argues against raising the age at which victims can apply for publication to be permitted of identifying information about the person who has offended against them or about themselves, from the current 16 to 18.

“Because the Judge must be satisfied that the victim knows the nature and effect of the decision to apply for such an order, there seems to be no basis for increasing the age at which victims can apply for publication to be permitted,” Mr Krebs says.

The Law Society’s written submission to the committee also highlighted its concern that measures in the Bill may threaten some of the long-established rights at the heart of this country’s justice system.  It said the select committee should consider whether changes proposed by the Bill were a proportionate response to the drive for greater efficiencies in the criminal trial process.

“Efficiency gains should not be at the expense of rights such as the right to a fair trial, the Bill is proposing to amend the New Zealand Bill of Rights Act 1990 to restrict the right to trial by jury contained in clause 24(e). This is the first time ever that there has been an amendment to such a right as contained in that Act.”

The Law Society’s submission stated that there was no clear evidence of significant cost savings from raising the threshold for the right to trial by jury from offences carrying a maximum penalty of more than three months’ imprisonment, to more than three years.

Criminal barrister Patrick Winkler appeared before Parliament's justice and electoral committee today to make a submission on the Criminal Procedure (Reform and Modernisation) Bill.

The Bill required a criminal defendant disclose their case to the prosecution before trial, a move that would take away an extremely important right of silence, Mr Winkler said.

Barrister Roderick Mulgan appeared with Mr Winkler and said the Bill failed to identify any significant benefit from the proposed change.

Chief Justice Dame Sian Elias has also criticised the reform. In a written submission she said the "provisions are contrary to long-standing principle, being inconsistent with a defendant's right to have the prosecution prove its case beyond reasonable doubt, not being obliged to assist the prosecution by volunteering information".

Otago Daily Times 20/3/11

Study: NZ best Commonwealth country for girls

New Zealand is the best country in the Commonwealth to be born a girl, research released today has found.  The study used eight indicators including life expectancy at birth, pay equality, expected number of years in school, political participation and the number of teen pregnancies.

New Zealand received an "A" in five out of eight indicators and was the "star performer" in terms of pay equality, with women earning 72 per cent of what men earn.

However, the study was not all-good news for New Zealand. New Zealand's Equal Employment Opportunities Commissioner, Judy McGregor, said the research results were "wonderful" news for the country but added there was still room for improvement. "We are leaders in gender equality but we can't sit on our laurels," Dr McGregor said.  “There was still a lot to be done in areas such as women's income compared to men's and the number of women in Parliament.”

New Zealand Herald 14/3/11

Group slams government for slow moving civil human rights advances

Rainbow Wellington says there are a number of areas where civil and human rights advances are stalling, whilst homophobic bullying in schools continues to happen unhindered.

Rainbow Wellington also rounded off 2010 with an open letter to Prime Minister John Key, where the organisation expressed its disappointment at the record of the National-led government regarding civil and human rights in this country.

Among these concerns was the lack of any progress on the issue of the extension of rights of adoption by same sex couples, or any indication that the current government has an interest in pursuing this issue at all, let alone giving it any priority.

Rainbow Wellington chair Tony Simpson says the same applies for same sex marriage, which he says is a necessity for New Zealand. “Only a few scant years ago we could be said to be leading the world in the introduction of civil unions, we are now being surpassed in this regard by many other developed countries who have taken the further step in the direction of same sex marriage.”

Prisoners give up smoking ahead of ban

Almost 2000 prisoners nationwide have taken steps to quit smoking in the lead up to this year's prison smoking ban, the Corrections Department says. Free nicotine replacement therapy patches (NRT) and lozenges are being provided to prisoners in the lead-up to the smoking ban, which will begin on July 1. "Since the ban was announced, NRT uptake has increased steadily over the last seven months," assistant general manager of Prison Services Brendan Anstiss said. "This is a good sign that prisoners are aware of the ban and are taking a proactive step to give up smoking." Corrections is also working with The Quit Group and the Ministry of Health. Other support initiatives include distribution of fact sheets, posters and pamphlets about the ban.


Drivers Killed In Police Pursuits

Police Minister Judith Collins is taking a firm stand on police pursuits, saying those who flee are usually dangerous and have something to hide.

More fleeing drivers were killed in police pursuits last year than the previous four years combined.  Collins said police policies were "absolutely in accordance with international best practice" and every time someone was killed the Independent Police Conduct Authority held an inquiry.

Ms Collins' office provided NZPA further statistics showing that in 2010 there were 2211 fleeing driver incidents with 354 crashes (16 percent), in 2009 it was 2349 with 388 crashes (16.5 percent), 2155 with 505 crashes in 2008 (23.4 percent), 2435 and 584 crashes in 2007 (24 percent) and 2234 and 546 crashes in 2006 (24.4 percent).

Ms Collins office said analysis of the licence status of fleeing drivers showed 50.6 percent were disqualified, suspended, unlicensed or otherwise prohibited from driving. Research showed they were a high crash risk regardless of whether they try to flee from Police.

Around 30 percent of cars involved in fleeing driver incidents had been stolen.

Otago Daily Times 20/3/11

Overnight protest in Timaru over cannabis charges

Pro-cannabis activists staged a protest outside Timaru Courthouse to support a cancer sufferer facing jail time for cannabis charges.

Peter John Frances Davy, 51, is threatening to go on a hunger strike if he is jailed for possession of cannabis, cultivating cannabis, and importing cannabis seed.

Dakta Green, who founded The Daktory, which promotes the medical use of cannabis, said NORML (National Organisation for the Reform of Marijuana Law) supporters left Auckland last Friday and arrived in Timaru to stage a peaceful protest on Tuesday night, The Timaru Herald reported.

Davy admitted the charges in February and was due to be sentenced yesterday in Timaru District Court but the case was adjourned to April 20 so that new counsel could receive disclosure.

Otago Daily Times 17/3/11

Offender levy costs more than raised

A levy on convicted offenders is budgeted to cost taxpayers almost half a million dollars more than it would raise in its first year.

The $50 levy on every offender, which came into effect last July, was expected to raise $2 million in its first year – less than the $2.4m it would cost to set up and administer.

A total of $1.3m was spent on setting up the scheme while $1.1m would be spent on collecting payments in the first year.

Otago Daily Times 16/3/11

New regulations bill introduced to Parliament

A Bill that aims to provide greater transparency and accountability for the quality of laws and regulations has been introduced to Parliament.

Regulatory Reform Minister Rodney Hide said today his Regulatory Standards Bill would require all proposed new laws and regulations to be assessed against a set of accepted principles.

"The bill forces ministers and MPs to be more honest and clear about how their laws and rules will affect New Zealanders," Mr Hide said.
"It will make law-making transparent and our lawmakers accountable."

However, the Bill could significantly change the relationship between Parliament and the courts. It would give unelected judges the sorts of powers that courts are not well equipped to exercise, and that should instead belong to democratically elected MPs," says Alex Penk, Policy and Research Manager at Maxim Institute. The Bill would allow courts to issue declarations that a particular law does not meet the Bill's principles of good law-making if they think the inconsistency can't be justified. But this means asking courts to get involved in political value judgements. The courts would also be empowered to reinterpret provisions in other laws to make them more consistent with the Bill's principles. A re-interpreted provision could end up looking quite different to what Parliament originally intended."



Government to look at forced marriage laws

Efforts to get a legal crackdown on forced marriages appear to have made an impact on Parliament. The Government is responding favourably to a petition opposing the forced marriage of underage women. The petitioners are calling for new laws to allow intervention and prevention of what they see as a major human rights abuse. Forced marriage is illegal and the Government considers further legislation would be unlikely to have a significant impact on it. However it says it takes the petitioners' concerns very seriously and will review existing law to see if it can be strengthened to introduce extra protections for those at risk.


Lawyers question legal-aid change

Lawyers are expressing concern about changes to the system of allocating legal-aid lawyers, which they say are causing disruptions and delays for clients, lawyers and courts. Since November 29, legal-aid lawyers have been allocated on a roster basis to clients facing lower level charges. Neither clients nor lawyers have any choice of assignment and there is a waiting period while lawyers are assigned.

Previously, people could choose their own lawyer and potentially get their case under way immediately.

Lawyers have said the new system was resulting in legal-aid clients appearing in court unrepresented, being assigned multiple lawyers, being remanded in custody unnecessarily and not getting the best representation because the lawyer they were assigned might not know their history.

The New Zealand Law Society says it agrees with some of those concerns and had raised several issues with the LSA.

It was particularly concerned that some legal-aid clients who should get bail straight away had, since the new system started, been remanded in custody three or four times before a lawyer was assigned, identified and then became available.

Otago Daily Times 21/3/11


New Zealand government warns about storing data in the cloud.

New Zealand has joined the ranks of an increasing number of governments that have issued warnings for businesses thinking about cloud computing.

The NZ Inland Revenue Department, which is responsible for taxation, issued an alert earlier this week reminding businesses that by law, the agency must keep tax records in the country. With cloud computing, however, the data might be stored just about anywhere on the planet.  There's no issue with keeping backups of records overseas, the alert continued; yet the law says primary copies of accounts need to be kept in New Zealand, seemingly so they are instantly accessible to tax inspectors.;pblc-sctr;link_5


Court battle over Pacific language books in New Zealand

In New Zealand, a group of Pacific Islands’ parents are taking the Ministry of Education to court over its decision to suspend the production of Pacific language books indefinitely.  They say that losing Pacific language educational material breaches human rights of their children.

The Ministry of Education says it has paused production while it researches the best way to meet Pacific students' needs.

Shirley Maihi, the principal of Finlayson Park Primary School in Auckland, where many of the students are of Pacific Island origin, stated, “many of our students are now being born in New Zealand, so they don't have the elders of their home country to tutor them in their own language. A lot of our parents have been born in New Zealand, so it won't be very long, in a couple of generations that their language will be lost, unless in schools like ours we support them to continue their learning in their own language. So without that, yes they will lose their own identity, their cultural background and so on.

We want to be noticed, the outcome we want probably most of all would be that it is the right of these children to be educated in their own language, as well as in English. This is a bilingual situation, but we want all rights of all of these ethnicities to be recognised.”

Alarm at high school security cameras

The trend of installing security cameras in Waikato schools has civil libertarians worried, despite claims that the cameras are in the war against vandals and thieves.

Most cameras in Waikato schools have been installed during the past three or four years and the principals using them are enthusiastic about the benefits.

Cambridge High School principal Phil McCreery said the 26 cameras around the school, which were installed in 2009, had cut theft by more than 50 per cent and recently helped police identify and arrest a weekend trespasser.

But that security came at a significant cost.

Kitting out the new technology block cost about $10,000 and upgrading a couple of other areas will cost the school $15,000 to $20,000, which will come from the annual operations grant.


Mobile phone snooping software now available for parents

New software is now available for New Zealand parents so they can monitor their children's mobile phone use and location.

The developers of Myfone say it is aimed at helping parents protect their children from sexual predators and bullies.

The software requires the permission of the mobile phone user once it is downloaded.


Kapiti police to take hard line on behaviour on nudist beach

Police plan to start targeting nudists at a Kapiti Coast beach after repeated complaints from residents.

Sergeant Noel Bigwood, of Otaki, met about 16 residents of Te Hapua Rd, Te Horo, last week after hearing complaints about blatantly offensive sexual behaviour. He urged them to report such behaviour and write down descriptions and car registration numbers.

"One or two people need to be made an example of so the sunlovers can get on with their discreet sunloving, the gay community can get on with being a discreet gay community and other beach users can use the beach without anything being shoved in their face," he said.

"If we make an example of one or two, the rest will fall off the line and people will be able to go about their lawful business undisturbed," Mr Bigwood said.

Dominion post 29/3/11


Crackdown on legal highs

Legal products that mimic cannabis won't be able to be sold to children in future, but adults will still be able to buy them.

The Government is to limit sales of synthetic cannabinoid substances (synthetic substances producing similar effects to cannabis) to those under 18 under the Misuse of Drugs Amendment Act 2005 , Associate Health Minister Peter Dunne said.

Matt Bowden, co-founder of Stargate International, a company promoting thedevelopment of safer, legal alternatives to addictive and dangerous drugs, was delighted by the announcement. “Minister Dunne has made the right call by moving to prevent the sale of cannabinomimetics to those under 18. I am also pleased to see that the advertisement, packaging and sale of cannabinomimetics will be regulated to protect the public…This is a move away from prohibition, and towards an evidence-based drug policy.”


Changes to the Holidays Act 2003 and the Employment Relations Act 2000 come into effect on April1

New laws that allow employers to sack any worker in their first 90 days in a job, without any reason and without the right of appeal, and limit union access to worksites come into force on April 1st. The New Zealand Nurses Organisation (NZNO) and Service and Food Workers Union: Ngā Ringa Tota (SFWU) urge employers to follow the example of aged care providers Oceania, BUPA and Metlifecare who will not use the new provisions.

NZNO Industrial adviser, Rob Haultain says an important reason these three employers have agreed to maintain existing rights is because they are run by practical people who understand and accept the role unions play in the employment relationship.

The Out@Work Council says that the new workplace laws will make it easier for employers to discriminate against workers based on their gender identity or sexuality. The extension of the 90-day fire at will legislation means that an employer can sack any worker in the first 90 days of their employment without having to give a reason. Sacked workers will have no right of appeal.

Also, from April 1, employers will be able to request staff provide a medical certificate after only one day off work. Previously a worker had to have had three days off work before employees could be requested to prove they were sick.


Union denied access

Before the employment law changes come into effect on April 1st, PSA union officials were already being denied access to union members working at the Affco Imlay meat plant in Wanganui.

Under a collective agreement between the public sector union and the meat inspectors’ employer AsureQuality, the PSA must give reasonable notice of any meetings with its members. Despite doing so, PSA union organiser Mike Farrell was denied access when he gave timely notice of his intention to meet with meat inspector union members working at the Affco Imlay plant.