Libertywatch July 2015

A round-up of civil liberty news from New Zealand.


A round-up of civil liberty news from New Zealand.


Transition to democratically-elected regional council for Canterbury under way

The regional council for Canterbury, Environment Canterbury (ECan) will be run by a combination of elected councillors and Government-appointed commissioners from next year, with a fully elected council returning in 2019.

Environment Minister Nick Smith on Wednesday confirmed the next governance model would be a 7-6 split between councillors and commissioners, forming after the next local government elections in October 2016.

"This phased approach ensures we maintain the momentum in completing Canterbury's water plan and work on the earthquake recovery, while providing an orderly transition to a fully-elected council in 2019," he said.

Under the mixed-governance plan, four elected councillors will represent Christchurch. North, Mid and South Canterbury will have one elected councillor each.

The Government, frustrated at ECan's inability to implement freshwater management reform, removed the council in 2010, replacing it with six commissioners.

They were only expected to serve until 2013 but their tenure was extended. Smith believed a return to a wholly-elected council at that point could jeopardise work under way, particularly on water reforms.

He acknowledged the need for a return to a democratically-elected council, but said the commissioners’ ongoing presence was essential.  

Smith allayed fears the commissioners could stay beyond 2019. Legislation to be introduced later this year would guarantee an elected council would take over.

"Calling it a transition to democracy is misleading, this is just denying Cantabrians their rights for four more years," Labour environment spokeswoman Megan Woods said however.

 Christchurch deputy mayor Vicki Buck was also disappointed, saying, "It's a very fundamental part of democracy that you elect your representatives."

Green Party spokeswoman for Christchurch Eugenie Sage echoed the concerns.  

"Democracy is our greatest asset yet National is denying Cantabrians a proper vote for almost a decade. Citizens deserve more than the second-class council they are getting which the Government can continue to influence and dominate. 8/7/15


Criminal Justice

Prisoners should be allowed to vote – High Court

A ban on prisoners voting has been ruled inconsistent with the Bill of Rights, in a declaration from the courts that is the first of its kind.

Prisoner Arthur Taylor is one of a group of five serving prisoners who argued that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 was inconsistent with the New Zealand Bill of Rights Act 1990.

Under the amended act, all people in prison on Election Day are unable to vote.  However, Justice Paul Heath formally declared the ban to be inconsistent with the New Zealand Bill of Rights Act, which all laws should be in line with.  The Attorney-General had also found the law was inconsistent with the Bill of Rights before it was introduced.

The declaration from the High Court was the first of its kind. It sends a formal message to Parliament that the law it passed was indefensible as it limited individual rights without reasonable justification. 

Heath said the inconsistency arose in the "most fundamental aspect of a democracy…the right of all citizens to elect those who will govern on their behalf."

As it stood, the law had "arbitrary consequences" in that a low-level offender given a short prison sentence could not vote if incarcerated on election day, while a serious offender imprisoned for 2-1/2 years between elections could still vote, Heath said.

The courts still have to apply the law under the Bill of Rights Act, but the formal declaration from the High Court indicates it should not be in place. 

University of Otago law professor Andrew Geddis said the Government and Parliament should decide, "whether or not they think the law is worth it."

"In the end, Parliament is sovereign and can do what it wants, so if Parliament wants to take a different view on this issue it can, but I think it really ought to re-examine this issue given the strength of the notice that has been given."

In practice, it would boil down to how embarrassed the Government would be about the issue, Geddis said.

"They've essentially been told they've made law that good nations like New Zealand shouldn't make – but do they care?"

A spokesman for Justice Minister Amy Adams said Parliament had considered Bill of Rights implications when it passed the amendment in 2010.

"At this stage we're still considering the judgment but it's worth noting that, as the judge has stated, the finding that a piece of legislation breached the Bill of Rights Act does not invalidate the legislation." 24/7/15


New Zealand's longest-serving prisoner’s case heads to the UN

77-year-old Alfred Vincent's case is heading to the United Nations amid claims he has been wrongly jailed for 40 of the past 47 years.

Auckland-based human rights lawyer Tony Ellis wrote to Vincent last week with news he planned to lodge his case to the UN Working Group on Arbitrary Detention by September.

Ellis said Vincent had spent a disproportionally long stretch behind bars in Canterbury prisons for seven convictions in September 1968 of indecent assault on five boys aged 12 to 14 – offending that carried a maximum jail sentence of seven years. 

At the time, he was sentenced to preventive detention because of six previous convictions for indecencies with boys, which saw him jailed for several years in the mid-1960s.

"I think it is appalling in a civil society such as ours that you can lock someone up for 47 years when the finite sentence was for seven years. If you do a double murder, you don't stay in for half that long. It's absurd," Ellis said.

Vincent was due to appear in front of the Parole Board in late August, three years after his last appearance, when the board imposed a three-year postponement order.

"I do want to be released from prison," he said in his parole assessment report in 2012.

"I don't have sexual thoughts any more. I get locked up at 7pm every night, I keep to myself and I stay in my cell."

In 2012, Fairfax contacted all four of his surviving victims from the 1968 preventive detention charges. Three supported his release.

On July 8, Ellis learned he had won a landmark case in front of the UN Working Party on Arbitrary Detention involving an intellectually disabled inmate, who had been locked up for 45 years in North Island psychiatric institutions or prisons for child sex offending.

The 58-year-old man remained in jail, despite the UN calling for the Government to release him and compensate him for illegally depriving him of his liberty since 2004. He was first admitted to a psychiatric institution at age 12 for allegedly sexually abusing a young girl in 1968 and was sentenced to preventive detention in 1994 on a charge of unlawful sexual connection with a minor after several previous child sex convictions.

Ellis said he was seeking a Government decision by August 7 on whether the man would be released immediately and compensated. 27/7/15


Serco 'may have broken law' – human rights expert

A human rights lawyer says the alleged treatment of a Mt Eden prison inmate possibly breaches both the Corrections and Bill of Rights Acts.

Alex Littleton broke both his legs in February after a prolonged assault by other inmates.

Littleton said he was discharged from hospital four weeks early after private prison operator Serco said he would receive appropriate care in prison. But he said that did not happen.

He is now at Kaitoke Prison near Wanganui. In a recording obtained by Radio New Zealand, he accused Serco of lying to the hospital about the care he would receive on his return to Mt Eden.

"I wasn't getting my pains meds from 10 o'clock at night until eight o'clock in the morning," he said.

Littleton said he soiled the bed on the first night because he could not walk.

His mother, Lorraine Pehi-Littleton, is distressed at what she heard from her son about his treatment.

"I was able to grill the doctors about why they were letting him go back to Serco, and the doctors assured me that Serco had assured them that he would get exactly the same care and service as he was receiving in the hospital," she said.

Criminal and human rights lawyer Michael Bott said if what Alex Littleton said was correct, Serco had some explaining to do.

"It's bordering on barbaric," he said.

Mr. Bott said the prison company appeared to have breached Section 5 of the Corrections Act – which requires sentences to be administered in a safe, secure, humane, and effective manner.

"It's not a secure environment for prisoners, it's not humane and their treatment of inmates is not effective and it’s in breach of the United Nations standard minimum rules," he said.

Howard League for Penal Reform spokesperson Dr Jarrod Gilbert said prisoners tended to have poor health because their care did not come under the Ministry of Health.

"In 2010, a report was written by the national health committee that recommended that prisoners should come under the Ministry of Health – but that of course hasn't happened.

"Prisons just aren't set up to be hospitals, and it's ambitious at best to suggest that they can look after unwell prisoners," he said. 28/7/15


Disabled Rights

Battle to get wheelchair on ferry

Wheelchair-bound Juliana Carvalho has won her fight to use the Half Moon Bay ferry.

She had been travelling from her home in Flat Bush to the ferry in order to get to work in the city.

However after using the service for two months, she was told by Auckland Transport (AT) that she would be unable to use the ferry because of a safety issue.

AT spokesman Mark Hannan says the ferry facility will be fully accessible after it is upgraded in the next 18 months.

After initially suggesting the train, AT has now proposed that until the new terminal is completed Carvalho will be able to catch the 7.30am ferry from Half Moon Bay.

"The 7am and 8.15am sailings are usually bigger boats and the stairs are needed for boarding," Hannan says.

"The sailing at 7.30am uses a smaller vessel and a ramp is used providing wheelchair access."

Carvalho says although it is "not the ideal" outcome, she is happy to be able to use her preferred mode of transport.

"I love using the ferry. Disabled people face a lot of challenges to get around and get access, and they shouldn't have to go through what I did."

Eastern Courier 14/7/15



Another fail for diversity

Sixty-one per cent of New Zealand employers admit that they don’t have a diversity policy in place for hiring new staff, according to findings in the 2015 Hays Salary Guide, which is based on a survey of 451 New Zealand employers, representing 374,007 employees.

Of those that do have a diversity policy in place, 19 per cent said it is not adhered to. The remaining 81 per cent say it is ‘generally’ adhered to.

“There are many barriers preventing real diversity in New Zealand workplaces, but the failure to put a diversity policy in place is right up there at the top,” says Jason Walker, Managing Director of Hays in New Zealand. “Even if organisations have a policy in place, if hiring managers ignore it then it is mere lip service.

“It still surprises me that despite years of enthusiasm, commitment, policies and strategy development all aimed at improving gender diversity on corporate boards, equality for women still remains out of reach.

“There are many benefits to be gained from a diverse workforce. From increasing the candidate pool and creating a workforce that better reflects your own customer base, to recognising and valuing the varied skills, knowledge, backgrounds and perspectives that people bring to their work, a culture that supports diversity will breed a workforce that is innovative, respectful and solution-orientated.”

“None of these benefits can be achieved however if an organisation does not put a policy in place or embed the principles within its culture,” says Jason.

The Hays Salary Guide includes salary and recruiting trends for over 1,000 roles in Auckland, Christchurch and Wellington. 27/7/15


Gender and race discrimination hurting New Zealand financially

White men can lead the way in reducing gender and race pay inequality in New Zealand, says prominent lawyer Mai Chen.

Speaking at a YWCA seminar on pay inequality, Chen said there had been a recent spike in the number of racial discrimination complaints in New Zealand, particularly in Auckland.

Chen, who chairs the Superdiversity Centre for Law, said the intersection between gender and race was "the elephant in the room" when it came to pay inequality in New Zealand.

According to the Ministry for Women there was a gender pay gap of 9.9 per cent in 2014.

New Zealand's ranking in the World Economic Forum gender pay gap list has dropped from 7th place in 2013 to 13th in 2014.

A report released by the Human Rights Commission in June showed that middle-aged white men were paid a median hourly rate of $28.77, two-thirds more than Pasifika women of the same age, who were earning just $17.32.

Of those still stuck on the minimum wage by age 25 or older, 66 per cent were women, the report said.

Many employers were avoiding hiring young migrant workers because they could not see the candidate fitting within the organisation, Mai Chen said.

There was also a lack of cultural education amongst employers and an unwillingness to hire migrants because they were perceived as requiring extra work, she said.

"Discrimination is actually preventing New Zealand from fulfilling its full potential."

Research showed that Asian workers were often overqualified, she said.

"We're wasting a lot of talent in the New Zealand economy. 28/7/15


LGBT Rights

New Zealand first in the world for gender identity information

A new gender classification for people who don't see themselves as just male or female has been developed and New Zealand will be the first to adopt it.

"Gender diverse" will now join the "male" and "female" categories when Statistics New Zealand collects data on Kiwis' gender.

It will also be used by government organizations, but it is still being decided how it will be implemented and used across information collection.

New Zealand Herald 17/7/15


Farmers makes changing rooms gender neutral after claim assistant ridiculed shopper

Following a complaint by a transgender shopper who was ridiculed by a shop assistant while trying on shorts, Farmers plans to make all of its changing-rooms gender-neutral.

Spokeswoman Nikki Newton-Cross says the company has reviewed its fitting rooms policies and decided to make its fitting rooms gender-neutral following Mary Haddock-Staniland's experience at their Botany branch in Auckland last month.

Mrs. Mary Haddock-Staniland says she overheard a shop assistant ask colleagues if it was okay to let "half-man, half-woman" in.

Mrs. Haddock-Staniland says she has also lodged a complaint with the New Zealand Human Rights Commission.

The results of this are expected to come out next month.

When the incident was first reported, Mrs. Haddock-Staniland was praised by Human Rights Commissioner Richard Tankersley for going public.

He said what happened to her was not new, but rather highlighted the "bullying and hate" that transgender New Zealanders faced often.

New Zealand Herald 20/7/15


National Security Agencies

Spy conference shrouded in secrecy

Despite calls from participants for more openness around our national security, an intelligence summit held in Wellington on Wednesday was closed to outsiders, including news media.

The New Zealand Institute of Intelligence Professionals met at Rydges Hotel in central Wellington for its annual conference with high-ranking government intelligence officials, cyber-security companies and experts discussing issues of public trust, confidence, privacy and intelligence.

Privacy commissioner John Edwards, who was speaking at the conference, said during the lunchbreak that intelligence and security was changing rapidly "and irrevocably" in the wake of US whistleblower Edward Snowden's ongoing revelations about global spy networks, and illegal spying and mass whistleblowing had spawned a "heightened sense of anxiety" in the public around the actions of government spying agencies such as the Security Intelligence Service (SIS) and Government Security Communications Bureau (GCSB).

Edwards said agencies needed to work with as much transparency as an operation allowed.  New Zealand had held on to greater levels of secrecy beyond the needs of what other countries and agencies required, a mindset that needed to change, he said.

Former police commissioner Howard Broad, who as the deputy chief executive of the Department of Prime Minister and Cabinet is now the country's security and intelligence tsar, also spoke on the need for more openness around spying. 15/7/15


Stop the Spies Campaign Launch

A coalition of groups across the country has come together to call for the closure of the GCSB and the SIS, and for New Zealand to get out of the Five Eyes.

“Over the coming months, the Government will run a narrow ‘Review of Intelligence and Security’ that is widely seen as hobbled before it even begins. We are taking this opportunity to call instead for a future without the GCSB and the SIS,” said Valerie Morse, spokesperson for the Stop the Spies coalition.

“The world is awake to the global spying network operated by the Five Eyes of the US, UK, Australia, NZ and Canada… In 2013 when the NZ state passed its controversial new Government Communications Security Bureau (GCSB) Act, massive public protests erupted.”

The New Zealand Council for Civil Liberties supports the coalition, which includes peace groups, civil libertarians, tech libertarians, and social justice activists. 12/7/15



Police conducted “chilling” search of Hager's home

The lawyer for Dirty Politics author and investigative journalist Nicky Hager says police conducted an invasive and chilling search of Hager's home during a raid last year.

Hager is seeking a judicial review into the steps taken by police during a raid at his home last October.

The raid was carried out following a complaint from blogger Cameron Slater, who claimed his emails had been illegally hacked.  The emails taken from Slater were then disclosed to Hager, and formed the basis of his tell-all book Dirty Politics.

The object of the police search was to discover the identity of the hacker who had disclosed information to Hager, and during the raid a number of documents were confiscated, including physical records, computers, CDs, phones and USB drives.

Hager's lawyer Julian Miles QC told the court that police actions were "invasive", and described the search as a "raid on the confidential information held by a journalist."

Mr. Miles also told the court the warrant police used, issued by a judge, sought a wider category of documents than just those linked with the hacker and those documents relevant to Dirty Politics.

He said police had been given the right to "hoover" any of Hager's documents and this put the confidentiality of Hager's sources at risk.

Mr. Miles has argued that police should not have applied for the warrant, as the source material for Dirty Politics was subject to journalistic privilege under the Evidence Act.

He said as an investigative journalist Hager has to promise confidentiality to his sources.

The need for journalists to protect the identity of their confidential informants was recognised by New Zealand statue and common law, Mr. Miles said.

Otago Daily Times 13/7/15


Police letters warn Facebook drug dealers they're being watched

Police have been snooping on people's Facebook profiles, and using the evidence to carry out drug raids.

The monitoring has been exposed by members of a black-market Facebook group, who complained of receiving letters out of the blue from police, warning them they were being watched.

One unidentified user received a letter from the Canterbury Organised Crime Squad, dated July 15, warning that their membership of a group suspected to be aiding illegal drug deals had been noticed.

They might wish to "review" their membership of the group, the letter suggested, and it had a card for a drug abuse helpline stapled to it.

Police confirmed on Monday that they were monitoring social media pages, and sometimes using the evidence they found to mount raids.

The letter was generating plenty of online debate on Monday about whether police monitoring of social media activity amounted to a breach of privacy.

Privacy expert and lawyer Kathryn Dalziel said people could not have an expectation of privacy on social media when it came to their activity in public groups. Police were entitled to use online posts as an evidence-gathering tool if they suspected crime.

"There are good things happening and bad things happening on Facebook and, if it's on an open group, police are not doing anything illegal by looking at it, then contacting people."

What was less certain was whether police were getting evidence from social media through using undercover officers. Dalziel said police were exempt from Privacy Act restrictions, to a point, when performing law-enforcement duties.

But if they were creating fake profiles to gain access to private posts online, it was possible they would require a search warrant, she said. 21/7/15


SIS and police trawling Trade Me for information on potential criminals

Spies and police are increasingly turning to Trade Me to obtain private information that may relate to criminal activity.

Figures released by the auction site show the Security Intelligence Service and police are requesting growing amounts of information.

The SIS increased the number of its inquiries to Trade Me by almost 50 per cent in the year ending in June, up from 28 to 41, while police inquiries were up 11 per cent, from 1663 to 1840.

Neither the SIS nor Trade Me would provide any details about the nature of the inquiries, citing privacy.

Police said they mainly approached Trade Me for information relating to stolen goods, drugs, firearms and fraud. However, there were a small percentage of inquiries that related to child exploitation, sexual offending, homicide or missing persons cases, and money laundering.

Detective Senior Sergeant Clifford Clark, of the national cybercrime centre, said police approached Trade Me for information only if they considered there was a direct connection between a crime and the site.

NetSafe chief executive Martin Cocker said Trade Me provided a unique opportunity for police and the SIS to obtain "deep" information. "The police and SIS, from time to time, are going to use it, because it can be the best way to find out information." 23/7/15


Commissioner announces routine carriage of Taser by first response staff

Police Commissioner Mike Bush today announced that frontline Police response staff would move to routine carriage of Tasers.

Mr. Bush says the important operational change is about enhancing the safety of New Zealand communities and Police staff, and is backed by detailed research gathered since Taser was rolled out nationally in March 2010.

The decision means the Taser can be carried at all times while on duty by appropriately trained Police 'level one' response staff, the majority of who are frontline officers whose role, responsibilities and likelihood of risk supports having easier access to Taser.

These staff can currently access a Taser from a lockbox in frontline Police vehicles if required.

Approximately 5,500 staff are trained as ‘level one’ responders.

Mr. Bush says the decision is based on research and evidence highlighting the success of the Taser in de-escalating violent situations, and its extremely low rate of injury compared with other tactical options.

"In making the decision, the Police executive has considered almost five years worth of 'use of force' data, which includes analysis of injury rates, numbers of Taser deployments and the ratio of Taser ‘shows’ to actual discharges.

It consistently shows that the Taser is one of the least injury-causing tactical options available when compared with other options, with a subject injury rate of just over one per cent for all deployments. 31/7/15