Liberty Watch – March 2013

Round-up of civil liberty news for March 2013.

Criminal Justice

Breath testing amendment bill breaches Bill of Rights

The Law society has spoken against that the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill which proposes to amend section 77 of the Land Transport Act so that when a person fails an evidential breath test, but elects to take a blood test, the result of the breath test will be admissible against them in a prosecution if a blood specimen cannot be taken “for any reason”.

Jonathan Krebs, convenor of the Law Society’s Criminal Law Committee, says the bill is unnecessary, breaches the New Zealand Bill of Rights Act, and should not proceed.  He told Parliament’s Transport and Industrial Relations Committee that an evidential breath test cannot always be relied on as people and machines are not infallible.

In some circumstances a breath test result may not be an accurate indication of a person’s blood alcohol level, and only a blood test will provide an accurate result. Relying solely on breath test results is inconsistent with the right to be presumed innocent until proven guilty, under the Bill of Rights Act, said Mr. Krebs, adding “If the bill becomes law there will be no safeguard for those motorists from whom a blood test cannot be taken, not through their own fault, but for unrelated reasons.  These motorists will have no ability to challenge the result or accuracy of the evidential breath test.  The law change proposed could only be reasonable if the presumption that the results of breath tests are accurate was a rebuttal presumption, rather than a conclusive one.”

Sections in the Land Transport Act 1998 already make a breath test admissible, where a blood sample is unable to be taken because a motorist has obstructed the process. 14/3/12


Government to reconsider roadside drug testing

In a significant u-turn, the Government is now pursuing plans to introduce random roadside drug-testing.

The Government released its Safer Journeys Action Plan 2013-15, which said it would carry out research on drug testing techniques.

"Our aim is to move New Zealand towards a robust, cost-effective approach to random roadside drug screening and testing as soon as practicable and justified," the report said.

At present, police test drivers' blood for drugs only if they believe they are under the influence, following an impairment test.

New Zealand Herald 28/3/13


Sensible Sentencing Trust online database claimed to be hugely successful

Ross Crosby, the creator of the online Sentencing Tracker that is operated by the Sensible Sentencing Trust, says that while the list of offenders in New Zealand in the database is not complete the list of offenders has grown considerably over the years.

Mr. Crosby is a long-time advocate for the New Zealand government to make online registries for violent and sex offenders to be made (freely) publicly available.  "For me none of this is about naming and shaming offenders but is to promote public safety and an open and honest criminal justice system. I’ve always believed the public should know what goes on in our courts and who offenders are and the types of sentences they get particularly serious violent offenders as well as paedophiles and sex offenders," Mr. Crosby said.

The information on the online Sentencing Tracker is mainly sourced from media articles and sentencing judgments/notes. 11/3/13


Disabled Rights

Disabled man refused access to public transport

A disabled Papamoa man twice denied access on local buses is taking his case to the Human Rights Commission.

The man who relies on a four-wheel drive wheelchair to get around tried to board a bus but was told they were not allowed.  All Tauranga urban buses are wheelchair accessible with low floors and ramps.

Bay of Plenty Regional Council's transport policy manager Garry Maloney said the incident was "disappointing and concerning" and awareness of the council's wheelchair-friendly policy was something it would look into with the bus operator.

The Human Rights Commission said the company could be breaching the Human Rights Act but without a complaint she could not comment further.

Bay of Plenty Times 8/3/13



Workplace drug tests on rise

Nationally last year the NZ Drug Detection Agency conducted 68,551 on-site drug-screening tests, up 31 per cent from 52,124 tests in 2011, and 29,513 in 2010.

Of the 68, 561 drug tests carried out, 6.4 per cent tested "non-negative" indicating the presence of drugs.

Bay of Plenty Times 11/3/13


Maternity leave breaches alleged

Many pregnant women and mothers returning to work from maternity leave are seemingly facing illegal discrimination and losing their jobs.  In the past two years the Human Rights Commission (HRC) has received 102 complaints on pregnancy and employment, with 37 about redundancy, parental leave, and being declined a job because of pregnancy.  A further 36 of the complaints related to changed working conditions both before and after parental leave.

The commission published the Employers' Guidelines for the Prevention of Pregnancy Discrimination in 2002 because of the increasing number of complaints and inquiries from women and employers.

In the foreword, then Chief Commissioner Rosslyn Noonan said the HRC had been receiving complaints for almost 15 years from workers claiming they had been unfairly treated because of their pregnancies.

The law states that an employee returning from leave is entitled to the same role she had before; an employer must ensure returning workers are not given less substantial conditions; and employees cannot be dismissed because they take parental leave, unless there is good reason.

Otago Daily Times 16/3/03



University report highlights ‘democracy deficit’ in New Zealand

A report into constraints on democratic public debate authored by Victoria University academics Dr Sandra Grey and Dr Charles Sedgwick which is based on a 2009 survey which was responded to by 153 non-government organisations highlights shortcomings of both National and Labour governments.

One in three respondents indicated that public debate had been stifled under both Labour-led and National-led governments over the decade 1999-2009. Indicators given by respondents included:

• Governments that ignore referenda, 

• Negative behavior of elected representatives and public servants alike that has a silencing effect on the voice of civil society (from a punitive and blaming political culture through to interventions to block information that isn’t aligned to the government of the day), 

• A contractual environment that creates a climate of fear, as well as active gagging, around biting that hand that provides funding.

Overall the report reveals a gradual, negative erosion of the independence of the community and voluntary sector to the point where the sector, due to a variety of reasons, is struggling to critique the nation’s political leaders and their policies. 27/3/13



Police use drones to catch criminals

Detectives have used an aerial drone in a criminal investigation leading to charges being laid and a person before the courts.

The case was one of two uses of drones by police last year which has led to the purchase of a helicopter-style drone to see how it would best fit with police work.   It has also been revealed that the air force's secret surveillance and electronic warfare plane is also used by police for tracking and monitoring offenders.

Writer and former press secretary David Beatson discovered the practice through an Official Information Act request that showed the officers had already used drones on two occasions.

Privacy Commissioner Marie Shroff said drones were becoming cheaper and easier to buy and have the potential to be seriously intrusive for people.  She stressed that organisations using drones needed “to think through the privacy implications and then consult with us about their proposals. It's possible to use drones lawfully, but only if you have good privacy policies and safeguards or other authority such as a warrant."  She added there were legal constraints on what drones could be used for.


New Zealand Herald 2/3/13

No independent inquiry into 'foolish' police officers

There will be no independent inquiry into the actions of three police officers who wore matching identification badges while at an operation to remove Occupy protesters in Auckland last year.

The Independent Police Conduct Authority (IPCA) has confirmed it will not investigate the officers as their actions did not meet the most serious, or Category One, complaint. An IPCA spokeswoman said the authority usually investigated only incidents involving death and serious bodily harm and serious misconduct.

An internal police investigation was conducted into whether they had breached the policy that required each officer wear their own identification number.

Police said the officers' actions were foolish but they have been dealt with appropriately.  Two of the officers were found to be guilty of misconduct and a performance issue was identified with the third, a national police headquarters spokeswoman said. 

Of the three officers, two were still working on the force and the third has since left police for reasons unrelated to the matter. The spokesperson said details of sanctions applied against the officers were an employment matter and remained confidential between police and the employees.

Police Commissioner Peter Marshall said he was satisfied the staff were dealt with appropriately under the police code of conduct and appropriate sanctions were applied.

One of the organisers of the Occupy protest, John Minto, said it was "appalling" the authority was not investigating the officers' actions, stating, "The IPCA should be there to rigorously investigate and thereby provide assurances to the public that the police are being held to account when there are egregious practices like this."

He said the officers had committed serious misconduct.

"If the police deliberately collude together to avoid the consequences of their actions, and clearly their actions are either a breach of police regulations or a breach of the law, then that's extremely serious."

New Zealand Herald 10/3/13


Community rally against extended police powers

Allegations of unnecessary, and excessive force used by police empowered by recently introduced legislation were heatedly discussed at a Paparoa public meeting following claims that a 64-year-old local woman had excessive force used against her during a drug recovery operation.

It is understood a police helicopter spotted a cannabis plant on a rural property and staff on the ground went to the woman's address, where she stated the plant was not on her property, but on a neighbouring plot.  The officers invoked Section 20 of the Search and Surveillance Act 2012 which gives "emergency power" to search the property without a search warrant – although in this case no search was made and no charges were laid.

Many at the meeting raised concerns other innocent people could be caught up in further "botched up" operations.  Meeting organiser and Paparoa resident James Lyon said, "We need to feel protected by police, not threatened by them in our own homes.

Northern Advocate 14/3/13



Super camera spies on crowds at Eden Park

New technology that was trialed for the first time at Eden Park enabled a single camera to record an entire grandstand and monitor its thousands of faces.  Signs of trouble can be picked out and individual spectators zeroed in on, gathering detailed and full resolution video footage for evidence.

Recent advances in CCTV technology have brought warnings from overseas privacy advocates.  In the United Kingdom, new 16-megapixel HD cameras can pick out a face more than 800m away and match it against wanted people.  Such technology scans faces and "maps" their points out into a series of algorithms. Comparisons can then be made using facial recognition software to verify people's identity.

The UK's first surveillance commissioner, Andrew Rennison, last October warned such technology risked turning Britain into a "Big Brother" society.

New Zealand Herald 2/3/13



UN recommendations on racial discrimination welcomed

The New Zealand Federation of Multicultural Councils President, Tayo Agunlejika, has welcomed a UN Committee on the Elimination of Racial Discrimination’s 15 recommendations that cover some of the most important race relations’ issues facing New Zealand.  They range from Treaty issues, racial inequalities and structural discrimination to languages, racism on the internet and asylum seekers.

Mr. Agunlejika said, “We support all the recommendations but are particularly pleased that the Committee has taken up two issues raised by the Federation: discrimination against migrants in employment and the proposed abolition of the designation of Race Relations Commissioner in the Human Rights Commission.

The UN Committee also urged NZ to intensify efforts to reduce structural discrimination in the criminal justice system.  “This is encouraging news,” said Kim Workman, spokesperson for the Robson Hanan Trust and Rethinking Crime and Punishment.   “We recommended to the UN Committee that it ask the New Zealand government to research the extent to which the over-representation of Māori in the criminal justice system is due to racial bias in arrests, prosecutions and sentences and develop a strategy to address the issue.”

In its concluding observations, released on 2 March, the Committee reported that it remained concerned at the disproportionately high rates of incarceration and the over-representation of members of the Maori and Pasifika communities at every stage of the criminal justice system, and urged the government to intensify its efforts to address this.  It also asked the NZ Government to provide comprehensive data in its next periodic report on progress made to address this phenomenon. In doing so, it referred to earlier recommendations in 2005 and 2007 that had gone unheeded.

The full report can be viewed here. 4/3/13



Discrimination against beneficiaries

Child Poverty Action Group says the government has perpetuated damaging myths about beneficiaries to support its welfare changes, and has released a report that challenges common myths about beneficiaries, particularly sole parents on the Domestic Purposes Benefit.

A 2013 Human Rights Commission survey found discrimination against beneficiaries was greater than for any other group.

The report can be read here 28/3/13