Liberty Watch – May 2013

Round-up of civil liberty news from May 2013.

Criminal Justice

Government to look at law on revealing criminal backgrounds

Justice Minister Judith Collins and the Justice Ministry are considering a law change to allow police to flag criminal backgrounds to family members and others.

Ms Collins said she would like to ensure police can provide information to people who might be concerned about the behaviour of someone they're in a close relationship with.

"For example, if you're living with someone, or going out with someone and you start to see some behaviour that made you concerned, you should be able to go to police and get the full details.

"I don't understand the idea that one day a matter is in court and it's public and public information, and it seems like a week later it's suddenly private,” Collins said. 

Otago Daily Times 7/5/13


Tracking proposed for high-risk violent criminals

Corrections Minister Anne Tolley wants to keep a 24-hour watch on serious domestic violence offenders – the same way high-risk and sex offenders are tracked.

Twenty-four hour GPS monitoring, announced last June, means Corrections are alerted to intervene if a tracked offender strays into a designated exclusion zone.

It must be imposed by the Parole Board or sentencing judge, and currently applies only to high-risk and child sex offenders.  However, Tolley said she had instructed officials to investigate how this could be extended under current legislation to cover domestic violence offenders.

"We want to do everything that we can to prevent and deter any would-be perpetrators…if this can stop one potential victim from being harmed, then it will be worth it."

Tolley said there were currently 40 offenders in the community under GPS tracking, and the system had already proved valuable.

The Press 16/5/13


Courts stick with legal aid despite Court of Appeal ruling

The courts will continue to operate with the current legal aid system for the time being despite the Court of Appeal ruling it unlawful.

The Criminal Bar Association (CBA) launched court proceedings after the Government's cost-saving shake-up of the legal aid system, which resulted in legal aid lawyers getting a 10 per cent pay cut.

Auckland District Law Society vice president Brian Keene QC said the judgement was a victory for defendants and their counsel.  "The right to a proper defence is a right of all New Zealanders. It must deliver access to justice regardless of financial circumstances. We believe that limiting legal aid payments would have limited the way criminal barristers defend their clients, and so result in unsafe convictions," he said.

The changes to legal aid came after a report by Dame Margaret Bazley resulted in a fixed fees programme for criminal legal aid, which standardised the cost of all cases, regardless of how much time they involved.  Previously, lawyers had been paid at an hourly rate, and the shake-up meant legal aid lawyers were being paid an average of about 10 per cent less.

New Zealand Herald 24/5/13


Disabled Rights

Human Rights Commission concerned new legislation 'will compromise disability rights'

The Human Rights Commission (HRC) is concerned that new legislation will make it more difficult for disabled people and their families to access their rights. The New Zealand Public Health and Disability Amendment Bill (No 2), passed under urgency, will mean that family carers who are assessed as meeting the eligibility criteria will receive the minimum wage of $13.75 an hour. The measures come in response to last year’s Court of Appeal decision that the Government’s current policy of not paying family carers to provide disability support services to disabled family members constituted unjustifiable discrimination on the basis of family status.

However, under the new Bill, people will no longer be able to bring unlawful discrimination complaints about the legislation or any family care policy to the HRC. The Bill also states that no proceedings may be commenced or continued in any court.  "This sends a chilling message to anyone seeing litigation as a road to solving issues relating to the protection of their economic and social rights,’ said Chief Human Rights Commissioner David Rutherford.

"This legislation clearly prioritises the reduction of ongoing litigation risks over providing a better support system to make sure disabled people and their families have good lives,’ said Disability Rights Commissioner Paul Gibson. "New Zealand is now lagging behind in fulfilling our obligations under the United Nations Convention on the Rights of Persons with Disabilities," he said. "Given the restrictions in the use of litigation that have been rushed through Parliament under urgency, we expect to see substantive movement by the Government to realise the rights of rights of disabled people and their families." 17/5/13



Gang insignia Bill passes first reading

The Government is one step closer to banning gang patches in schools, police stations and Work and Income offices, as the Prohibition of Gang Insignia in Government Premises Bill has passed its second reading.

Rotorua MP Todd McClay's bill makes it a criminal offence to wear gang insignia in government-owned premises, including local government.

However, the bill related could include coloured clothing associated with gangs, and the Law and Order committee were told last year that would be too broad and would accidentally capture people who are innocently wearing gang colours.

Law Society human rights and privacy spokesman Robert Hesketh told the select committee that insignia was too widely defined in the legislation and would capture clothing that was not intended to be intimidating.  The society felt the bill should not progress beyond the select committee stage but, if it did, it needed to be amended to tighten the definition.

Mr. Hesketh also noted the bill clashed with the Bill of Rights Act because it was inconsistent with the right to freedom of expression.

"One is reminded of that time-honoured mantra that one may not agree with what another person expresses, but certainly the right to have and convey that expression is guaranteed by our Bill of Rights Act," he said.

Otago Daily Times 15/513


Gay Rights

Homosexual rejected for training as a priest heads to tribunal

A homosexual man has taken the Anglican Bishop of Auckland to the Human Rights Tribunal after being rejected for training as a priest.

It is understood the man, who is in a sexual relationship with his partner, has wanted to enter the church's training programme for priests for years, but after applying to enter after years of study, he was rejected by the Bishop Ross Bay, who approves entrants.

Bishop Bay has stated that he was simply following the church's doctrines, and that the man was rejected "by reason of the defendant not being chaste in terms of canons of the Anglican Church.”

His lawyer David Ryken told the Tribunal that that excluding someone from a training programme because of his or her sexuality breached Section 38 of the Human Rights Act.

New Zealand Herald 6/5/13 & 8/5/13


B&B owner refuses lesbian couple

A lesbian couple were told to sleep in separate beds or move on to other accommodation by a bed and breakfast owner. 

“I’m totally happy if people want to be homosexual or whatever, but not in my home,” The accommodation owner said.  “We are entitled under current legislation to discriminate on the basis of sex in shared accommodation… It’s my own personal integrity to say I don’t want same-sex sex in my house…the Government can legislate for same-sex marriage but it can’t legislate that I allow them to have their honeymoon in my home,” he added.

Green MP Kevin Hague responded that the law does not allow for cases of discrimination in commercial accommodation. 11/5/13


Human Rights

Amnesty Report criticises New Zealand

Amnesty International's annual reports into The State of the World's Human Rights has criticised New Zealand.  The latest report, which documents the state of human rights during 2012, hits out at New Zealand for undermining children's rights, because of high levels of child poverty which ''disproportionately affect Maori and Pacific Island peoples''; women's rights, due to ''persistently high and increasing levels of violence against women''; and the rights of asylum-seekers, with the introduction of the Immigration Amendment (Mass Arrivals) Bill into Parliament, which would give authorities new powers of detention among others.

Last year's report made the same findings on child poverty, questioned the rights of workers on foreign-chartered fishing vessels, scrutinised ''indigenous people's rights'' in some areas of the Marine and Coastal Area (Takutai Moana) Act 2011, and examined New Zealand’s role in ''counter-terror and security'' given the admission by Defence Minister Jonathan Coleman that ''he could not guarantee that detainees captured during joint operations in Afghanistan had not been tortured''.

Otago Daily Times 31/5/13



Call for investigation into alleged human rights abuses

Gisborne District Councillor Manu Caddie has called for an investigation into alleged human rights abuses by Immigration New Zealand in Gisborne. Mr. Caddie was concerned about reports that two Tongan men being held at Gisborne Police Station have been denied access to lawyers and interpreters.  He said, "Apparently the men are accused of being in New Zealand unlawfully and their lawyer says immigrants in Gisborne are being ‘actively discouraged’ from accessing legal counsel and interpreters…these are serious accusations of human rights violations in our community by a government agency, we need an urgent and full investigation of the situation before anything happens to the men who should not be languishing in Police cells any longer than is necessary." 10/5/13



Police unmoved by buzz around anti-crime tool

A senior police inspector has expressed concern over the ethics of an anti-loitering device being used to deter young people from gathering at problem areas north of Auckland.

The Mosquito is a small box that emits an irritating buzzing sound.  Six devices have been installed at strategic trouble points including near Whangaparaoa Primary School and college, Stanmore Bay Beach and skate park and the Hibiscus Coast Association Football Club.

Police say is it hoped the signals will help to reduce tagging, liquor ban breaches, vandalism, minor assaults and drug dealing in the area.

North Shore area police commander, Inspector Les Paterson has stated though that there are no plans to introduce the Mosquito to the North Shore.

"I would have to seek legal advice and evidence to prove it doesn't cause any long term harm to people before I was to endorse it," he says, "But I would not support it being used in a public space when it's sole purpose is to drive away young people.”

New Zealand Council for Civil Liberties spokesman Kevin McCormack said that while the organisation supports any actions that lead to the reduction in crime, the device might be in breach of the Bill of Rights Act.

Sections relating to freedom of peaceful assembly, freedom of association and freedom of movement could be affected by the use of the Mosquito, Mr. McCormack says.

North Harbour News 3/5/13


Police trialling new scanner

Southern District Police have taken possession of an automatic number plate recognition (ANPR) unit, which can scan up to 3000 plates an hour.

''ANPR is a tool that helps police get dangerous drivers, unsafe vehicles and criminals off the road,'' Southern District acting road policing manager Senior Sergeant Steve Larking said.

The unit, which costs between $40,000 and $50,000, provides police with already available information, but without the need to call a dispatcher to check a number plate.

The system scans number plates and notifies police of ''vehicles of interest'', including those that are unsafe, used by unsafe drivers, or have been involved in crime.

A Police National Headquarters spokesman said the system was vehicle-focused and did not store any form of facial recognition.

The system has been successfully implemented by law and order agencies around the world, and five vehicles in New Zealand have already been fitted with the technology.

In a three months trial in South Auckland, the automatic number-plate recognition technology helped police to seize 15 stolen vehicles, take 180 disqualified drivers off the road and recover other stolen goods from a number of offenders.

But lawyers fear innocent people, such as a driver stopped on a Waikato road last week on an incorrect indication her car was unwarranted after a mechanic had not updated records, may be caught in widespread surveillance that could expand to tracking movements to build profiles of "people of interest".  That is denied by police, who say their use of the technology is governed by a manual containing strict guidelines and that "law-abiding motorists have nothing to fear".

Auckland Council for Civil Liberties president Barry Wilson, also a lawyer, said: "The potential for tracking people's movements, spying on people, is just enormous," and the Privacy Commission have previously warned such technology has to be used "carefully."

New Zealand Herald 15/5/13 & Otago Daily Times 14/5/13


Union asks if police "bias" on picket is result of 50% discount at MacDonald’s

Unite Union has charged the police of bias against them during recent pickets outside McDonald's stores and asks if this is because they get at least a 50% discount off all meals there.

Unite National Director Mike Treen said that he has written to the police to complain about their aggressive and biased policing tactics during recent pickets in Auckland, and that, "It seems reasonable to ask if this police behavior is not at least in part the result of the special treatment and favors they receive from the company."

The official police code of conduct states, "No member of police shall solicit for personal gain, or accept a discount on any goods or services where that discount is offered because that person is a member of police," and police have been banned from accepting such discounts overseas.

The accusation drew an angry response from Police Assistant Commissioner Grant Nicholls who said, ‘‘to suggest that the police would trade off their integrity for half a hamburger is nothing short of ludicrous, and that is what this union is suggesting.''  However, Police Commissioner Peter Marshall has sent a stern message to his officers, saying they can't be seen as 'McCops' by accepting discounted meals at fast food outlets, saying police reputation was too important to be compromised by such perks.  Officers accepting discounted food could be subject to code of conduct investigations, he said. 14/5/13 & Otago Daily Times 16/5/13 & 17/5/13


Urewera police raids report calls police actions ''unlawful, unjustified and unreasonable''.

An independent review of the Urewera raids has labelled police actions ''unlawful, unjustified and unreasonable''.

The raids in the Ruatoki Valley and elsewhere on October 15, 2007, resulted in 17 people facing a total of 291 charges under the Arms Act, including the illegal possession of an AK47-style rifle, a double-barrel sawn-off shot gun, a military-style semi-automatic firearm and Molotov cocktails.

Most defendants had their charges dropped when evidence was ruled inadmissible in court but the ''Urewera Four,'' – Tame Iti, Te Rangikaiwhiria Kemara, Urs Signer and Emily Bailey – were convicted last year.

Iti and Kemara were sentenced to two and a half years' jail, while Bailey and Signer were sentenced to nine months' home detention.

While the decision by then-Commissioner Howard Broad to undertake ''Operation Eight'' in 2007 was described by the report as justified and reasonable, some of the subsequent actions were not, the Independent Police Conduct Authority (IPCA) has revealed, with an overall conclusion that police actions in stopping and searching vehicles, were not in accordance with the law, and were unjustified and unreasonable.

IPCA chairman Sir David Carruthers said that Police also undertook insufficient planning and preparation for the road blocks, that having armed police on the scene was intimidating and no-one had considered the likely impact on the community of the roadblocks.

''All vehicles leaving Ruatoki were searched by armed offenders squad members, not just those vehicles believed to be transporting an offensive weapon," Carruthers said, ''This impacted on people going to work, taking their children to school and otherwise going about their daily business.”

Photographs of 66 drivers and 15 passengers were taken at the road blocks, in some instances including children. The IPCA found the photography was not part of operation planning and had not been discussed, stating that ''Police had no legal basis or justification for this action, which left some people feeling degraded and intimidated.''

Searches carried out at 11 properties were also deemed unlawful and unjustified, as were the detentions of occupants at five properties who were wrongly led to believe that police could detain them while the search was made.   ''While police have the power to restrict the movement of people to prevent a search being interfered with, they cannot lead people to unreasonably believe they are being detained. In a number of cases here they did so,'' Sir David said.

The IPCA recommended that police institute a number of policy and practice changes relating to their use of road blocks, and has further recommended police ''re-engage with Tuhoe and take appropriate steps to build bridges with the Ruatoki community''.

Police say they have already changed their methods so that armed offenders squad operations will generally include an assessment of the potential of their actions to adversely affect communities.

Police say they have also changed policy about dealing with children and vulnerable people while conducting searches.

Taranaki Daily News 22/5/13


PM’s dismissal of compensation shows cavalier disregard for human rights, says Christchurch lawyer

A Christchurch lawyer and academic who won $20,000 compensation in a court case against the Police for an unlawful search of his home has criticized John Key’s dismissal of calls for compensation for those subjected to unlawful Police search and detention in the Urewera raids.

David Small contrasted the Prime Minister’s “cavalier disregard for New Zealanders’ basic human rights” with the approach of the courts which take seriously the rights of New Zealanders guaranteed by the Bill of Rights Act to be free from unreasonable search (section 21) and arbitrary detention (section 22), said David Small. The most common and proper way that courts remedy violations of these rights is by paying compensation.

In determining compensation, it is the courts and not the Prime Minister who are in the best position to take into account all the circumstances of the breach, said Dr Small. 23/5/13


Civil Liberties Council worried about weapons policy

The National Council for Civil Liberties is concerned about the police using the shooting of a man in Wellington as a success story following a new weapons policy.

The man was shot and tasered by two officers during an incident in Porirua.

Police say the officers arrived at a Penguin Grove address at about 5.30am on Thursday to find a distressed woman with a large cut to her arm.

Hearing a commotion in another room, they forcibly entered it to find a man holding a knife over another woman.

Police say their new policy of having guns stored in lockboxes in police cars saved the woman's life.

The Council for Civil Liberties says the acceptance of weapons may encourage the public to arm themselves too. 3/5/13



Prisons and police cells to face UN scrutiny

A United Nations torture-prevention delegation is visiting New Zealand and inspecting prisons and police cells for an international appraisal, the first time the UN sub-committee has visited New Zealand.

New Zealand is a signatory to the Optional Protocol to the Convention Against Torture. The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) comprises 25 independent experts, including High Court Justice Lowell Goddard although she is not part of the delegation.

The protocol, which New Zealand signed in 2007, is designed to ensure the country meets its obligations under international law to prevent torture or ill treatment of people detained by the state.  Sub-committee members visit participating countries to see institutions where people are detained including police stations, immigration centres, prisons and mental health facilities.

Chief Human Rights Commissioner David Rutherford said the visit provided a valuable opportunity to get some independent, expert advice on how well New Zealand protected the rights of those in detention and whether improvements could be made.

Southland Times 7/5/13



Rise In Workplace Racism Is Unacceptable

The chief executive of the Equal Employment Opportunities Trust says figures from the Human Rights Commission over the last five years show that discrimination and harassment on the grounds of race or colour occurs most commonly in the work place and is on the rise.

Bev Cassidy-Mackenzie says in 2010 there were 59 complaints of racial harassment and 44 of them stemmed from employment, and last year, of the 71 complaints, 44 came from the workplace.

“Racism surrounding employment comes in many different forms – some job seekers were not given work due to their ethnicity, others suffered racist comments and abuse at work while others were treated badly because of their accent,” said Ms. Cassidy-Mackenzie, further adding that it is not acceptable to advertise a job specifying that applicants must have English as their first language.

“I hear of racist slurs such as a staff member being told to ‘go back home where you came from’. This is ridiculous as New Zealand has an increasingly diverse population and Auckland, for example, has nearly 200 different ethnicities in its workforce,” she also noted and warned that companies need to make the most of people from different countries and cultures as there’s an ageing population and a looming skills shortage. 15/5/13


Maori tattoo not allowed by Air New Zealand

An applicant for an air hostess position was turned down by Air New Zealand because of her ta moko on her lower arm.

Claire Nathan said she was told tattoos that could not be covered by the uniform were unacceptable and added that she never thought her ta moko – depicting her heritage and her two children – would limit her career choices.

Air New Zealand said that tattoos were seen as "frightening or intimidating" in many cultures, but The Human Rights Commission says "a person of Maori descent may not be denied employment, entry to premises, or declined service because they wear moko visibly".

New Zealand Herald 28/5/13



Surveillance law changes criticised

Under new changes in the Government Communications Security Bureau and Related Legislation Amendment Bill, the Government Communications Security Bureau (GCSB) will be able to assist the Security Intelligence Service (SIS), Police or Defence Force where they were acting within their own laws.

It will also be able to help public and private organisations but where that required spying on New Zealanders, it would need signoff from the minister responsible – usually the prime minister – and the commissioner of security warrants.

"I think it's important to understand that it would be legal for them to carry out the activities they previously carried out that they believed to be legal," Prime Minister Key said in justifying the changes, however the changes will move New Zealand towards a ''national security state'', two University of Otago professors say.

Prof Kevin Clements and Prof Richard Jackson, of the university's National Centre for Peace and Conflict Studies, warned that the changes have ''worrying implications for individual privacy, civil liberties and national security,'' and that the Bill “provides expanded powers of surveillance without evidence of real necessity or effectiveness, or corresponding safeguards of individual liberty and privacy.''

They say that the law change would effectively merge the GCSB and the SIS plus the intelligence wings of the military and the police, and that this was moving New Zealand towards what was known as a ''national security state,'' with intrusive surveillance capacity, challenges to freedom of speech, control of citizens and potential civil rights abuses.

''We do not think this critical law should be changed without more extensive public discussion about its potential costs and benefits,” they said.'

Otago Daily Times 8/5/13


Activist may take spy agency to court

A political activist is considering legal action against the Government Communications Security Bureau (GCSB) for refusing to reveal if she has been under surveillance.

Valerie Morse, one of the 17 people arrested in the Urewera raids, is requesting details from the Privacy Commissioner about whether she was spied on by the GCSB and what information is held about her.

The GCSB had refused to tell her whether she had been spied on, she said.

"Those people who have been illegally spied on by the GCSB at the very minimum deserve to know whether they have been the subject of surveillance…At the very least these people have been subject to criminal offending by the state, they've had their human rights violated and they deserve to be able to seek some sort of remedy for that," she said.

GCSB director Ian Fletcher said that to confirm who or what the agency might have been investigating or not would potentially identify law enforcement or national security priorities.

Otago Daily Times 15/5/13


GCSB cleared of illegal spying

Inspector-General of Intelligence and Security Paul Neazor has cleared the Government Communications Security Bureau (GCSB) of illegal spying on New Zealanders.

Mr. Neazor was asked to conduct an inquiry into potential breaches of the GCSB Act after Cabinet Secretary Rebecca Kitteridge's report on the bureau's compliance with legislation raised concerns about 88 instances where the GCSB had spied on New Zealanders.

"The Inspector-General formed a view that there have been no breaches, although the law is unclear and the Inspector-General recommends amending it", GCSB Director, Ian Fletcher said in a statement.

New Zealand Herald 21/5/13


GCSB refuses to comment on claims communications were intercepted

A high-tech United States surveillance tool that sweeps up all communications without a warrant was sent to New Zealand for testing on the public, according to an espionage expert.

The tool was called ThinThread and it worked by automatically intercepting phone, email and internet information.  The tool could handle massive amounts of intercepted information that it uses to automatically build a detailed picture of targets, their contacts and their habits for the spy organisation using it.

Those organisations were likely to include the Government Communications Security Bureau (GCSB) after the author Tim Shorrock revealed ThinThread was sent to New Zealand for testing in 2000-2001.

A spokesperson for the GCSB said the bureau would not be making comment on the ThinThread test. He said the intelligence agency "won't confirm or deny" the claim because it was an "operational" matter.

A spokeswoman for Prime Minister John Key also refused to comment saying it was an operational matter.

New Zealand Herald 25/5/13