Libertywatch August 2015

A round up of civil liberty related news from August 2015.

Criminal Justice

Government plans child sex offender register

New Zealand's first register of child sex offenders is to be set-up, with the Government saying currently such people can "disappear into communities".

Police and the Corrections Department will run the register, which will be established under legislation that has been introduced to Parliament.

Offenders will need to provide a range of information including fingerprints, photographs, aliases, address, workplace and employer, car registration, computer IP address and passport details. They also have to give 48 hours notice of their travel to another town and where they will be staying.

Social Development Minister, Anne Tolley, said that the balance between tracking offenders and not infringing on their rights after they have served their sentence would be tested in select committee, adding, "It is not unreasonable to keep a register of where people are…They can go and live their life, but we are asking that they register every 12 months to keep those details up to date."

Offenders will be on the register for life, 15 years or eight years, depending on the severity of their crimes.

If their information changes, police must be notified within 72 hours or offenders will face charges of up to $2000 or one year in prison, or both.

Penalties of up to a $4000 fine and a maximum jail term of 2 years will be established for those giving false or misleading information.

The register is scheduled to be in place by July 2016.

Authorised Police and Corrections staff, and authorised staff from relevant agencies such as the Ministry of Social Development and Housing New Zealand, will be able to share relevant information in the register.

There will not be public access, but in certain cases, such as where there is a threat to a child, information may be released to a third party such as a parent or teacher.

In an article in the New Zealand Herald, Keith Locke, noted that the Attorney-General rightly sees the legitimacy of the Police having more information about sex offenders via a register but notes that "there is a lack of evidence" from other jurisdictions that such registers have "improved public safety."

Locke also points out that the Attorney-General expresses concern that the Bill imposes on released sex offenders "disproportionately severe treatment or punishment", contrary to Section 9 of the Bill of Rights. It does this when it imposes on the former prisoners lifetime reporting obligations without any right of appeal as to whether "they no longer pose a risk to the lives or sexual safety of children".  It also constrains two other Bill of Rights provisions by restraining the right to freedom of movement (section 18) through the advance notification requirement, and the right to freedom of expression (section 14) because reporting obligations are a form of compelled speech.

Locke further points out that further adding to civil liberties concerns is the comment by Ms. Tolley that the register may later be expanded to include other serious offenders, not just sex offenders.

New Zealand Herald 13/8/15 & 26/8/15


Department of Corrections agrees to move transgender

The Department of Corrections has agreed to move a transgender prisoner to a women's facility.

The move came as the prisoner's lawyer questioned why a person who identified as a woman and was undergoing hormone therapy was put in a men's prison in the first place.

Rimutaka Prison director Chris Burns confirmed the request by transgender prisoner Jade Follett had been approved, and said, "Corrections has a duty of care to all prisoners. We are very much aware and sympathetic to the particular needs of transgender prisoners including the issues surrounding their placement and safety."

The transfer will be the fifth since the new transgender and intersex prisoner policy took effect in February 2014.

Dominion Post 27/8/15



More white-collar job seekers drug tested

Lawyers, executives and accountants are among an emerging group of white-collar job seekers being asked to undergo pre-employment drug tests.

The Drug Detection Agency (TDDA) is currently conducting up to 200 drug tests a month in New Zealand using hair samples, almost four times as many as this time last year.

Although many of those tests were for the New Zealand justice system, white-collar industries were contributing to the rise, TDDA chief executive Kirk Hardy said.

Hardy said the hair test could reveal a candidate's drug habits for the previous three to 12 months if they were frequent users. It is an accurate test designed to identify job seekers who may "clean themselves up" before a job interview and clear urine tests.

Figures for the past six months show that only one in seven pre-employment drug tests using hair samples returned failed results. 23/8/15


Law Society warns of 'secret courts'

A late change to health and safety legislation currently progressing through Parliament will allow use of so-called "secret courts," a move that should concern New Zealanders the Law Society says.

The changes would allow court hearings to be held in secret, in order to protect national security. The Crown could introduce secret evidence, which would not be seen by the defendant or their legal team.

The Law Society said the provisions would allow a person to be tried and convicted of a criminal offence without seeing all the evidence against them, and without the right to be present during all proceedings.

It has written to Workplace Relations and Safety Minister Michael Woodhouse to protest that the provisions should not have been inserted at such a late stage.

Law Society president Chris Moore said that while the Government's advisers may have argued that there would be very few cases where handling of classified information would be needed as part of a health and safety case, the provisions had a very wide definition of "classified security information."

Otago Daily Times 26/8/15


Gender pay gap growing faster than inflation

The gap between the hourly pay rates of men and women grew by another 30 cents last year.  The pay gap is now $4.20 and has grown by 7 per cent in the last year, according to the latest Quarterly Employment Survey data.

Tertiary Education Union's women's vice-president Cat Pausé says four dollars is a huge pay gap, and it is even more for Pasifika and Māori women.

"The pay gap between men and women is growing faster than inflation. The government … needs to take proactive steps to close the gap for all women, reintroduce pay and employment equity reviews, and the pay and employment equity unit.” 11/8/15


Harmful Digital Communications Act 2015

“Shameful” new blasphemy law introduced “by the back door”

“An embarrassing step backwards and a severe blow to free speech” is what the New Zealand Humanist Society has called New Zealand’s newest de facto blasphemy law, which received Royal assent on 2 July.

The Harmful Digital Communications Act 2015 has come under international scrutiny from human rights organisations for allowing individuals to bring proceedings if they allege that a digital communication has denigrated their religion, causing them to “suffer serious emotional distress”. And the punishments are some of the most severe in the world.  If charged, individuals could face up to two years imprisonment or a fine of up to $50,000.

The President of the New Zealand Humanist Society, Mark Honeychurch, said, “This legislation not only flies in the face of human rights, but the introduction of yet another law that gives special privileges to religions is unfair, unpopular and unrepresentative of our society, where over 40% of New Zealanders identify as not religious, making this our country’s largest single belief group.”

Honeychurch said, “It is ironic that on the same day that the parliament in Iceland voted unanimously to abolish their blasphemy law, in New Zealand we adopt a new one, taking a great step backwards from being a progressive society and breaching both International Law and our obligations under international agreements.” 6/8/15


Human Rights Commission

'Stop stereotyping us as criminals', say people with facial tattoos

Christchurch artist Jesse Wright was refused entry into a bar because of his facial tattoos. The bouncers believed he might have gang links, but the tattoos represented his family Wright said. 

Wright went to the Human Rights Commission but was told he had no grounds for a complaint because his tattoos held no cultural significance.

Wright said it was a "kick in the guts" the Human Rights Commission said he had no grounds for a complaint. 

"I know I'm not the only one in the country that's got this problem," he said.  

Human Rights Commission chief mediator Pele Walker said earlier that a policy banning tattoos might not in itself be unlawful. If the tattoo was of religious or ethnic significance, a complaint of indirect discrimination could be made.

The Press 26/8/15



Immigration 'told teen student she had no rights

An international student about to be deported for bringing too many cigarettes into the country was told she had no human rights, her lawyer says.

The teenager's lawyer, Frank Deliu, said she was stopped when she arrived in New Zealand last week, and fined, when problems were then discovered with her visa.

Mr. Deliu said the most disturbing thing was that when a legal representative turned up at Auckland airport, a customs official denied him access, saying she had no rights.

"I've been doing immigration law for many years, I've done hundreds and hundreds of cases, I've never actually had them bluntly say that a human being has no rights, so it's really quite outrageous."

Frank Deliu said a High Court judge has halted the deportation for now, with a judicial review due to be heard next month.

Immigration New Zealand said it was unable to comment as the case is before the court. 21/8/15


Privacy Commissioner finds Immigration NZ in breach

Privacy Commissioner John Edwards has referred a case to the Director of Human Rights Proceedings after finding Immigration New Zealand breached a migrant’s privacy by failing to correct his date of birth.

The complainant came to New Zealand as a refugee in 2011 from Ethiopia.  Through no fault of his own, he arrived in New Zealand with incorrect information on his travel documents. His parents had died when he was very young and there was no record of his birth.  Not knowing how old he was, his sponsor had the Ethiopian government issue a birth certificate saying he was born in early 2000. This estimated date was incorrect.

Immigration New Zealand took the birth certificate at face value and put the incorrect birth date on his refugee visa when he arrived.

After arriving in New Zealand the complainant began to question the accuracy of his birth date. He underwent medical testing that showed he was at least 3 years older than the date of birth recorded by Immigration New Zealand. In 2014, he obtained a new birth certificate from Ethiopia that listed his birth date as 1996. This meant he was at least 18 years old, in contrast to his visa that said he was only 14 years old.

On two occasions, the man asked Immigration New Zealand to amend his birth date. Immigration New Zealand refused, arguing that an individual’s birth date forms a cornerstone of their identity, and changing it would set a dangerous precedent.

Privacy Commissioner John Edwards said "In this case, a young adult was being restricted from accessing things he was entitled to in New Zealand, such as a driver’s licence, financial assistance from Studylink and WINZ and the adult minimum wage. Immigration New Zealand needed to look at these tangible effects of not changing his birth date rather than the theoretical risk of changing it." 18/8/15



Police breach own Taser rules at protest

Police on a Wellington demonstration against the Trans-Pacific Partnership Agreement were apparently in breach of their own rules for use of the taser.

Photos clearly identified several officers carrying tasers and yet the police “standard operating procedures” state that they are not to be carried by police at demonstrations. 17/8/15



Sky TV drone did not breach privacy – Privacy Commission

A drone owned by Sky TV did not breach an apartment-dweller's privacy when it flew within metres of his property, the Privacy Commission has ruled in its first investigation into the unmanned flying craft.

The man who laid the Privacy Commission complaint thought the drone might have captured "highly sensitive information in an unreasonably intrusive manner".

He was unsure if the drone was filming or if anyone saw the footage of him, which he said he had not given consent to.

The complaint to the commission said the drone use breached parts of the Privacy Act dealing with the collection of personal information.

These principles specify when personal information can be collected and for what purpose, what someone should be told when their information is collected, and how information should be collected.

The operator has said in future he won't be filming over private dwellings for sports events, but in the past when filming shows or advertisements, if he needed to film over private houses, then the production company would do a letter drop and give people time to oppose the plan.

Sky TV accepted that its drone may have flown past the complainant's property, but said the drone had not recorded or broadcast images of the complainant, or the inside of his property.

The commission found no breaches of the Privacy Act and said a separate investigation by the Broadcasting Standards Authority found no breaches of the Broadcasting Act.

New rules have this month come into effect requiring drone users to have consent of people and property owners before flying over them.

New Zealand Herald 12/8/15


Privacy Commissioner watching Microsoft on Windows 10

The Office of the Privacy Commissioner is "paying close attention" to spying claims made against Microsoft.

Microsoft launched its cloud based Windows 10 operating system for free on July 29, attracting positive reviews mixed with claims it was using the software to spy on users.

Office of the Privacy Commissioner spokesman Charles Mabbett said the office was aware of the potential privacy issues Windows 10 raised.

"Windows 10, by default, has permission to report a huge amount of data back to Microsoft. But the operating system can be configured in ways that would allow users to retain their privacy and keep their personal data on their PC," he said.

"We're paying close attention to developments."

Mabbett recommended Windows 10 users tweak Microsoft's new privacy and security dashboard associated with their accounts if they were worried.

Waikato Times 28/8/15


Stop The Spies Coalition


People's Review Reveals Lack of Trust In Spy Agencies

There is widespread distrust of New Zealand’s spy agencies, according to a report published today.

The Stop the Spies Coalition, which includes the New Zealand Council for Civil Liberties, the Anti-Bases Campaign, OASIS, the Dunedin Free University and the What IF? Campaign, has conducted its own People’s Review of the Intelligence Services in a series of public meetings and discussions in Auckland, Wellington, Christchurch and Dunedin

"The People’s Review has solicited a wide range of views from ordinary people in New Zealand about the operations of the intelligence services. The questions raised went far beyond the very narrow frame of reference of the official review, currently being carried out by Michael Cullen and Patsy Reddy," said Thomas Beagle, a spokesperson for Stop the Spies Coalition.

The full review is available for download at: 4/8/15