Liberty Watch – September 2011
Round-up of civil liberty news for September 2011.
CHILDREN AND YOUNG PEOPLE
Reporting Child Abuse
A package to make it easier for teachers to contact Child Youth and Family including a dedicated phone line has been announced by Social Development Minister Paula Bennett today.
CYF received 8300 notifications of possible abuse or neglect from teachers and school social workers in the past year, Ms Bennett said.
The education assist package has been established after Ms Bennett asked CYF to strengthen processes to respond better to school reports of abuse.
Parliament has recently passed a bill making it a criminal offence to turn a blind eye to child abuse.
New Zealand Herald 18/9/11
Anti Smacking Legislation
Over the period 22 December 2010 to 21 June 2011, police attended 456 child assault events, 18 of these events involved ‘smacking’ and 58 involved ‘minor acts of physical discipline’.
Of the 18 ‘smacking’ events, one resulted in prosecution, 12 resulted in a warning and 5 resulted in other / no further action being taken. Of the 58 ‘minor acts of physical discipline’ events, 9 resulted in prosecution, 38 resulted in warnings and 11 resulted in other / no further action being taken.
The smacking event prosecution involved a child being smacked at least five times on the buttocks with an open hand. The smacking was witnessed and reported to police by a neighbour. The offender had a prior history of assaults and police laid a charge of Common Assault (Domestic). The defendant was ordered to come up for sentence if called upon by the Court over a one-year period.
There have now been 5 prosecutions for a ‘smacking’ event since enactment of the Amendment in June 2007.
The Press 30/9/11
School denied sniffer-dog drug search
Police are refusing to carry out random sniffer-dog drug searches at schools amid claims they are breaching pupils’ civil rights.
The move follows legal advice from police lawyers, but principals say they have lost a vital tool in the fight against drugs.
Although schools admit the random searches may be illegal if they cannot show just cause, they want the practice to continue until the legality is tested in court.
Education Minister Anne Tolley said a law change might be needed, because it was wrong for the rights of one or two pupils to take precedence over the rights of the whole school community. Police, meanwhile, are drafting a new national policy detailing when they can assist schools, but they also appear to have stopped offering breathalysing services before school balls.
They will still help schools with searches but only when there is evidence of pupils carrying weapons or illicit drugs
Conducting blanket drug searches of schoolchildren without reasonable cause is discriminatory and a breach of the Bill of Rights Act, a civil liberties lawyer says.
“No other New Zealand citizens are subject to the same intrusive search criteria,” lawyer Michael Bott said.
Mr Bott said innocent pupils were routinely singled out for random drug searches, which were “deemed OK by virtue of their age and the fact that they’re compelled to attend the school”.
Dominion Post 30/9/11
Charges relating to Urewera raids dropped
The Crown has dropped charges against 11 of the 15 people charged after the nationwide raids, but said four would still face trial for participation in a criminal group and firearm charges.
The group facing charges began as 17 but has dwindled to four in the four years since the arrests.
Police originally sought prosecution under Terrorism Suppression laws, but the solicitor-general rejected this.
Crown Solicitor Simon Moore said that there was no longer enough evidence to continue against some and the others would have to be tried separately after the main trial.
That would be 4 1/2 years after they were charged, and the main trial would have to be subject to wide-ranging suppressions, and so was not practical or in the public interest.
The larger group was going to be tried before a judge-alone but now that it is only four they will be tried before a jury in February 2012. An amended indictment was presented in the High Court at Auckland specifying that the objectives of the group were one or more of: murder, arson, intentional damage, endangering transport, wounding with intent, aggravated wounding, discharging a firearm, using a firearm against a law enforcement officer, or kidnapping.
Crown prosecutor Ross Burns said the Crown case relied heavily on video footage taken in the Urewera Ranges. The exercises are alleged to have taken place on private Maori-owned land. Police went onto the land after getting search warrants and installed motion-sensor cameras. A High Court ruling found that putting the cameras on private land was illegal and so the evidence could not be used.
New Zealand Herald 7/9/11, 17/9/11.
Criminal justice Reforms
Justice Minister Simon Power has made some changes to the controversial criminal justice reforms, committing to preserving the right to silence and substantially watering down other aspects to pass the bill with cross-party support.
The proposed changes now:
*Drop the pre-trial disclosure regime – described as an erosion of the accused’s right to remain silent and not having that held against them – from the bill altogether
*Allowing a defendant to choose a trial by jury if they are charged with an offence carrying a maximum penalty of more than two years’ jail, with no “exceptional circumstances” clause; the bill originally proposed a three-year threshold
*Allowing a trial to proceed in the absence of the accused for procedural hearings such as initial appearances, and preventing trials from proceeding if the defendant is absent and has a reasonable excuse, unless it would not prejudice the case; the bill originally required trials to proceed if the accused was unreasonably absent.
*Further restricting the ability of courts to impose fines for non-compliance in court procedure, by clarifying that this can only be done rarely and for significant non-compliance
*Remove the word “substantial” from the “miscarriage of justice” test.
New Zealand Herald 15/9/11
The Legality of Office Sweepstakes
Internal Affairs has warned that office sweepstakes may be illegal.
Under the Gambling Act 2003, sweepstakes are considered a form of illegal gambling if the total value of all the prizes offered is more than $500, if someone is paid to run the sweepstake, or if some of the money is kept as profit.
Each sweepstake must pay its own prizes and the total value of all prizes in each sweepstake must not exceed $500.”
If the prize money goes over this, or the sweepstake organiser gets a cut, they are considered an illegal bookmaker.
Dominion post 9/9/11
Patient smashed two windows to escape from secure room
A patient in a psychiatric ward smashed his way through two windows to regain his freedom.
About 7.30am on August 1, Palmerston North Hospital staff put a patient in a “secure room” by himself because he had tuberculosis and there were concerns it could spread to other patients. But, as defence lawyer Alan Knowsley told Palmerston North Court that under the Mental Health Act this was effectively unlawful imprisonment.
Community and justice liaison nurse Grahame Stillwell confirmed this.
The patient appeared in court on two charges of wilful damage resulting from his reaction to twice being put into a room by himself, and was convicted and discharged on both charges.
There was no order for reparation for the damage caused.
Manawatu Standard 16/9/11
NZ man denies al-Qaeda links
A New Zealand man alleged to have links with al-Qaeda says his life has been ruined because of an innocent mistake.
Mark Taylor was among 23 Australian-based people of security interest listed in a secret diplomatic cable published by WikiLeaks.
He had been arrested trying to enter an al-Qaeda stronghold in Pakistan, claiming he was there only to find a Muslim wife.
He said he was arrested and tortured by the Pakistani military, who accused him of being a spy. During the torture he said he was working for “jihad” (holy war) due to the pressure he was under.
Mr Taylor has said, “I haven’t been taken to court, I haven’t been charged or anything. It’s all just basically a completely made up story to make me look bad.”
Prime Minister John Key said earlier this month that he was aware of Mr Taylor, and that “he’s someone that has quite a number of restrictions on him for very good reasons, without stating what the reservations where.
Otago Daily Times 12/9/11
Man in hospital after police gassing
An armed man who was gassed during a stand off with the Hamilton Armed Offenders’ Squad this afternoon was hospitalized.
An eye witness described how “The armed defenders were trying to coax him out for about 45 minutes. And then they shot with shot guns, a sleepy gas into the bedroom windows.”
Officers wearing gas masks cleared the house.
Otago daily Times 14/9/11
Driver stopped for warning other drivers of speed trap
A man who flashed his headlights to warn another driver of a speed camera was pulled over by police
“I can’t remember the exact words; it was either inappropriate or excessive use of headlights,” he said.
It is against the law – with a penalty of $150 – to flash dazzling, confusing or distracting vehicle lights, although police say the law is used sparingly.
New Zealand herald 15/9/11
Following the judgment in the Urewera raids case, the government is to pass temporary legislation suspending the judgment of the Supreme Court that covert surveillance on private property by the police is illegal. The government expressed concern that it could impact on 40 trials and 50 police operations currently underway
New Zealand Herald 15/9/11
Female Prisoners and babies
Women in prison will now be able to keep their babies with them for longer, as the age limit for infants living in prison has been extended from nine months to two years. Plunket says the change is a step in the right direction, but says it should go further because international evidence shows the first three years of a child’s development are crucial.
Blood samples to be kept indefinitely
Over two million blood-spot samples collected from newborn babies are to be kept indefinitely. ”Guthrie” cards have been collected from every baby born in New Zealand as part of a screening programme to identify and treat those born with serious metabolic disorders, such as cystic fibrosis. There has been mounting concern over access by researchers and others, and, in response, new governance arrangements were issued. Under these, individual written consent will be required for population research on samples collected before June this year. ”Guthrie” cards were used to identify victims of the Christchurch earthquakes.
Reality TV Show breached privacy
The reality programmePolicetwice showed a man being arrested and taken to the police station to “detox” after solvent abuse. The complainant’s first name was disclosed and his house was shown, in breach of privacy and fairness standards.
The Broadcasting Standards Authority held that the although the complainant’s face had been blurred he was identifiable due to use of his first name, full length shots of his body and clothing, footage of his property and street, recordings of his voice. Furthermore, the complainant’s solvent abuse was a private fact, and disclosure of complainant’s solvent abuse in the late 1990s would be highly offensive to an objective reasonable person, and it was unfair to re-broadcast footage more than 10 years after filming. Public interest did not outweigh the complainant’s right to privacy.
The complainant said that his main concerns were that, first, he had not consented to the broadcast, and second, that the filming had taken place in the mid to late 1990s, and he had since “gotten on with my life”, but TVNZ had broadcast the footage two or three times.
Take a drug test or lose benefits?
Addiction treatment services are raising the alarm about a proposal to penalise welfare beneficiaries who refuse to undergo drug tests or addiction treatment.
Social Development Minister Paula Bennett has backed drug testing.
"We expect it for people who're in work so why shouldn't we expect it for people who're looking for work? Frankly, I don't think that's too much to ask," she says.
Dr Paul Fitzmaurice of the Institute of Environmental Science and Research (ESR) says drug tests have increased from 30,000 to 40,000 a year three years ago to well over 100,000 a year. Paul Jarvie of the Employers and Manufacturers Association says testing now covers 40 to 50 per cent of the workforce.
New Zealand Herald 24/9/11