Libertywatch May 2015

Assisted dying

Terminally Ill woman acts for right to assisted dying

A woman who has terminal brain cancer has said in a statement to court that she will face a choice between taking her own life or suffering a slow and painful death, if a doctor cannot lawfully help her die.

Lecretia Seales has gone to court for clarification of whether the Crimes Act prevents a doctor from helping her to die without then being charged themselves.

If the court finds it does then she wants it to consider whether a ban on assisted dying under the Crimes Act is contrary to her human rights under the Bill of Rights Act.

Human Rights Commission lawyer Dr Matthew Palmer told the court had the jurisdiction to make a ruling, in response to Solicitor-General Michael Heron, QC, earlier arguing that New Zealand’s constitution meant such changes had to be made through Parliament rather than through a court; Parliament had considered euthanasia three times in recent years and each time rejected a law change enabling it.

But Ms Seales’ lead lawyer Dr Andrew Butler said, in closing, sometimes ethics drove the law and sometimes the law drove ethics.

He said it would be wrong to leave the issue to Parliament to deal with.

“You cannot allow the Crown to come along and say ‘leave it to Parliament to have a debate about it’ when there’s no prospect of such a debate occurring and there has never even been select committee hearings on the topic,” he said.

Ms Seales and her lawyers maintain the case is about her alone, and said they did not want it to become a wider debate about euthanasia.

But Victoria Casey, a lawyer for vulnerable persons umbrella group Care Alliance, said it would effectively legalise assisted dying on demand, leaving groups such as the elderly and the disabled at risk.

Euthanasia was legal in the Netherlands, where 97 people with dementia there had been euthanised in 2013, and there had been a “dramatic” increase in the euthanasia of people with long-term psychiatric illnesses, she said.

“When you combine this with New Zealand’s well-documented problems with elder abuse and the neglect and abuse of the elderly and disabled in care, the prospects are … chilling.”

But Voluntary Euthanasia Society lawyer Kate Davenport, QC, said what Ms Seales wanted her doctor to do by prescribing medicine to relieve an aspect of her suffering could not be classed as either homicide nor assault.

“If what Ms Seales’ general practitioner is seeking to do can properly be defined as treatment, then it doesn’t fall within the definition of the Crimes Act,” she said.  That was particularly so, given it was up to Ms Seales to decide whether or not she took the medicine prescribed.

Justice Collins closed the case by thanking Ms Seales for taking the action and said he would endeavour to make a quick decision., 28/5/15


Criminal Justice

New body launched to investigate potential miscarriages of justice

Charitable trust The New Zealand Public Interest Project (NZPIP) will launch on June 1. Its panel will investigate potential injustices. Civil proceedings of public interest, including test cases and class action, could also be considered.

The voluntary board consists of sociologist and University of Canterbury (UC) lecturer Jarrod Gilbert, UC dean of law Chris Gallavin, private investigator Tim McKinnel, lawyers Nigel Hampton QC and and Kerry Cook, forensic scientist Anna Sandiford, legal expert Duncan Webb, and founder of investigation firm Zavest Glynn Rigby.

Gilbert said countries including England and Scotland had independent criminal cases review commissions that pursued potential miscarriages. While these organisations were created and funded by Acts of Parliament, successive New Zealand governments refused to establish a similar body.

“We see this as an important absence in our country’s legal system, and so we decided to create one ourselves,” he said.

The initiative was a partnership with UC, and would act as a charitable trust, calling on the help of outside experts, he said.  UC law school students, who would operate under the supervision of the board, working mostly on “pro bono” basis and earning course credit, would also look at cases.

In some cases, the board could apply for legal aid but the organisation would receive no direct funding.

Gallavin said it would be “fairly small with a limited capacity” but in some instances the cases would end up in the Court of Appeal, Privy Council or up for judicial review.

People who felt they have fallen victim to a miscarriage of justice would have forms available to them to fill out and make a referral to the body.  From there, the board would decide on the merit of a case and if it is in the public interest, then decide if it has “got legs”, and finally if they had the capacity to carry out the investigation., 19/5/15


Jurors to be Facebook vetted

A new company offering to vet the Facebook and Twitter profiles of potential jurors could deter people from turning up in court, a law expert warns.

The company, Jury Selection Services, profiles jurors and gives defence lawyers access to their digital footprints. As well as social media, that can include all publicly available information such as financial status, personal relationships, debt and religious or charity affiliations.

It is the first service of its kind in New Zealand, but University of Auckland law professor Dr Bill Hodge said it was "reasonably common" in the United States where the jury selection process was an intensive part of the defence strategy.

Currently, Crown prosecutors and defence lawyers are given a list of up to 150 potential jurors about five days before a trial.  When jurors are balloted, prosecution and defence have only four opportunities and about 30 seconds to judge whether to challenge a juror.

Before a trial, prosecutors are able to call on police to conduct background checks on criminal convictions and other possible red flags.  Since defence counsel did not have access to those resources, Hodge said the new service "levels out the playing field".

But he warned there were dangers. "If you know that your details are out there for people, it may or may not unconsciously have an effect on the way a juror goes about their deliberations," he said. "It's hard enough to get people to do jury service…It might well find a way for them to seek an excuse to be exempted or excused from being empanelled."

A Privacy Commission spokesman said no laws were broken if information used was publicly available.

New Zealand Herald, 30/5/15


Disabled Rights

Deaf Aotearoa applaud NZ On Air funding announcement

Deaf Aotearoa are thrilled with the announcement that NZ On Air will be providing additional funding for captioning on TV One, TV2, TV3 and FOUR.

Independent captioning and audio description service Able will receive $400,000 more in the coming year, allowing it to continue to increase its services.

“Increases to Able’s funding will be hugely beneficial to New Zealand’s Deaf and hard-of-hearing communities,” says Robert Hewison, president of Deaf Aotearoa. “Access to information is the right of all Kiwis, and increasing the quality and reach of the services offered to allow for this is an immensely positive step toward creating a more accessible, inclusive and engaged society.”, 26/5/15


Call for equal access for all

A southern disability action group has called on the Southland District Council to ensure everyone has access to its facilities, particularly as the population ages.

CCS Disability Action was one of the submitters at the council’s Long Term Plan hearing on Tuesday, and access co-ordinator Mary O’Brien said a large number of Southlanders were excluded from basic areas of life because of their disability.

“It’s good for us to review how disabled people feel in society. Disabled people are significantly disadvantaged,” she said.

She recommended accessibility be addressed during upgrades and any new toilets the council constructed be made accessible to all people.

She also commended the council’s project to develop the map of Southland showing accessible facilities, labelling it a positive step for accessible tourism.

“Some people are not going to go on the Southern Scenic Route if they can’t see where the accessible toilets are,” O’Brien said.

She also called on the council to review the availability of rural accessible transport, including buses between main centres and townships.

“A safe community includes all it’s members, and good accessibility does benefit everybody,” O’Brien said.

The Southland Times, 19/5/15



Claims that school pamphlet “steps over the line”

Papanui High School has hit back at claims students were exposed to inappropriate material after a Christian conservative pamphlet was given out.

It described women who have sex outside marriage as "cheap prostitutes", and says those who have gay sex will face punishment of death and hell.

The Christchurch school's board of trustees’ chairperson Sandy Brinsdon insists the views aren't those of the school.

"It's really important that kids understand a wide range of views that are out there in the community that they're going to come across – that's how we prepare them to be good young adults," she told RadioLIVE.  "It was given out as one of many perspectives of a range of views that society holds. It wasn't done to discriminate or offend anybody – it was to help the students in their learning."

The Ministry of Education said it would be "rare" such material would be appropriate in a classroom setting, and Labour education spokesperson Chris Hipkins said the pamphlet "steps over the line" and should be withdrawn.

The pamphlet is published by United States-based Bible Baptist Publications, and contains phrases such as: "Either you are married or you are not married. If you are not married, yet you have sexual relations, then you are a wicked fornicator."

It was given to 15-year-old students, but its relevance not explained in class until the following week, reports Fairfax Media.

Secular Education Network coordinator Peter Harrison agrees with Mr. Hipkins, claiming the pamphlet's distribution is "essentially against our New Zealand Bill of Rights and our Human Rights Act"., 18/5/15


Schools to consider gender-neutral uniforms

Schools have been asked to consider offering gender-neutral uniforms as part of new sexuality education guidelines aimed at being more inclusive.

Advice from the Ministry of Education, released yesterday, also suggested schools could review toilet spaces, allow same-sex partners at balls, and be aware of grouping students by gender in sports classes to help a more diverse range of students feel safe.

"While social attitudes to sexual diversity are becoming more inclusive in New Zealand, young people who identify as non-heterosexual still face many challenges in schooling environments…"Young people who identify as gay, lesbian, or bisexual often feel marginalised and isolated, and experience less inclusive environments in schools," the guidelines said.

Policy additions were based on research saying issues included the sexualisation of young people, particularly girls; the effects of pornography on young people's understanding of sexuality and relationships; and examining the bias that opposite sex relationships are normal.

Gender issues were also prevalent; with a nationally representative survey in 2012 finding that transgender students were a numerically small but important group. Around 1.2% of students report as transgender and 2.5% not sure.

The guidelines said: "School uniforms can reinforce gender norms, so schools may consider offering gender-neutral clothing choices when uniforms come up for review."

Otago DailyTimes, 31/5/15


Access to education a “fundamental human right”

A school is going to one of the country's highest courts to fight to keep a child with Asperger's out of the classroom.

Green Bay High School will try to overturn a 2014 judicial review that said the boy – who was expelled after scuffling with a teacher over a skateboard – should be allowed to return to class.

The landmark hearing in Wellington has implications for schools up and down New Zealand, as it pits the rights of schools to prevent disruption in the classroom against a child's right to an education.

The Human Rights Commission, advocacy group IHC, and Crown Law have each successfully applied to join the court action.

The Disabilities Commissioner, Paul Gibson, said it too had become involved because access to education was a fundamental human right.

"This case raises the legal issue of the obligation for New Zealand schools to reasonably accommodate the needs of students with disabilities," he said.

Jen Puah from Aotearoa Youth Law, who is representing the schoolboy in the court action, said the teen wanted to return to the West Auckland school.

But the school had made it "extremely difficult" for that to happen.

Puah said the case reflected a large number of schoolchildren slipping through the cracks, partly because schools were dealing with stretched finances and were unable to meet all the needs of students with behavioural issues.

IHC director of advocacy Trish Grant hoped the case would lead to stronger legislative protection for students with disabilities.  Students with disabilities had the same right as their non-disabled peers to be enrolled and receive an education, but she said there wasn't a law that protected them from being rejected through disciplinary or enrolment processes, or restrictions placed on the time they're at school.

New Zealand Herald, 30/5/15



Online voting trials available for 2016 local government elections

Local Government New Zealand (LGNZ) is putting its support behind councils looking at trialling online voting in the 2016 local body elections.

The Associate Minister of Local Government, Louise Upston, confirmed last week that a small number of local authorities will shortly be able to undertake a trial of online voting at the 2016 elections.

LGNZ President Lawrence Yule says that online voting can streamline the voting process.

“The local government sector is interested in being able to offer citizens the choice to vote online,” Mr. Yule says.

“It is easier for many people in the community including those with disabilities and in some cities, online voting has increased the number of people taking part in local body elections.” · May 20, 2015


Gender Identity/Sexual Orientation

Statistics New Zealand is recommending neither sexual orientation nor gender identity be included in the next Census in 2018, but is welcoming feedback on the long-running issue.

Groups from across the lgbti community have been calling for both to be included for years, saying data needs to be collected to identify and address significant health disparities for our communities.

Statistics New Zealand decided not to include such questions in the last Census in 2013, and the previous one in 2006, but says independent research it commissioned supports a need for information on sexual orientation, with growing evidence that members of sexual minority populations are disadvantaged across a range of social well-being, health, and economic indicators.  However it says the census may not be the best way to do this.

“Sexual orientation is multi-faceted in its definition, including elements of behaviour, desire, and identity. It is conceptually difficult to define and measure, particularly given the self-completed nature and limited space of census forms.

“We must also consider data quality and intrusiveness. Many respondents may not answer the question, and although census data may produce indicative figures, these may not be accurate enough to be analysed against other variables or published. Our focus group research identified quality issues and concerns about the accuracy of information people are comfortable disclosing.”

Statistics New Zealand says there is also an emerging need and desire to recognise gender equality, although the potential uses of census data on this are not yet clearly established.

A 2014 report from the Human Rights Commission highlighted the need for visibility as a means of promoting equality and decreasing the likelihood of discrimination., 1/5 2015


Human Rights

UN report says NZ must improve in many areas

Significant issues highlighted by the Human Rights Commission have been reflected in the most recent UN report on New Zealand’s human rights performance.

Chief Human Rights Commissioner David Rutherford welcomes, in particular, the report’s attention to the issues of there still being too many Māori people in prisons in comparison to other groups, the number of people with mental health issues and other disabilities in prison, and the need for government to do more to stop violence against women and children.

David Rutherford says the UN review of New Zealand’s performance under the UN Convention against Torture and other Cruel Inhuman and Degrading Treatment gives the government the opportunity to reflect and commit to changes that will improve the wellbeing of people.

 “Māori are significantly overrepresented in our prisons. While only five percent of Māori come into contact with the justice system, they make up 50 percent of our prison population,” David Rutherford said.

“Over 60 percent of prisoners have a learning or mental health disability. I believe that better identification of these issues early on will mean the lives of most of these people will stay on track. Many of these people simply shouldn’t be in prison.”

Mr. Rutherford agrees with the UN Committee’s call to government to better fund the Independent Police Conduct Authority and the Office of the Children’s Commissioner., 18/5/15



Concern over access to information held by schools

The Human Rights Commission is concerned at allegations officials are trying to access information held by schools to locate and deport students’ family members.

Race Relations Commissioner Dame Susan Devoy said, “We’re concerned that requiring schools to disclose personal details may lead to children being kept away from school. Education is fundamental to the well-being and development of the child and every child should be able to enjoy their right to an education”.

In 2010, the Immigration Act was changed to enable children without legal immigration status to attend school in order to better reflect New Zealand’s obligations under the UN Convention on the Rights of the Child. The Human Rights Commission and various other agencies including the Office of the Children’s Commissioner worked together to help make this happen.

Dame Susan says the Commission is unable to speculate on the lawfulness of the alleged operations that ultimately fall under the jurisdiction of the Privacy Commissioner and other agencies, such as the Office of the Ombudsman.

“Our sole focus here is the potential impact on the well-being of the children. It could have the unintended consequence of those children not attending school for fear of the impact it will have on their family.”

“This is about the children, it is not about their parents or their family members. Education is a fundamental human right and every New Zealand child has a right to go to school,” said Dame Susan., 14/5/15



Kiwis urged to stand up to racist abuse in sports

The Human Rights Commission is urging everyday New Zealanders to stand up to racist sports fans and players.

"Athletes and fans who abuse players because of the colour of their skin have already lost," said Race Relations Commissioner Dame Susan Devoy, "Their racism belongs in the past and has no place on our sports fields and sidelines."

Responding to allegations of abuse at a rugby game in North Canterbury last weekend, Dame Susan says racial slurs in sport happen and it’s "not good enough to say they’re random or only happen in the heat of the moment."

"All of us – not just officials – are responsible for standing up to people who use racism to try to win in sport. Everyday New Zealanders can make a stand whether they’re playing rugby in North Canterbury, soccer in Seatoun or a 1st XV game in the suburbs," said Dame Susan.

"Sport is a powerful vehicle to push through important social messages and this is a huge area where our sporting bodies can also step up and stand up to racial abuse in sport.", 28/5/15



Amnesty International urges the government to accept more refugees

Amnesty International has urged the New Zealand government to accept more refugees, particularly those from Syria in light of the ongoing war there.

Race Relations Commissioner Dame Susan Devoy says New Zealand hasn't raised its refugee quota since the 1980s.

"For a country that's renowned for punching above our weight on the world stage, when it comes to taking in refugees, we lag behind the rest of the world.", 23/5/15


Security Intelligence Service

Tip-offs from public still provide the main defence against domestic terror, rather than widespread surveillance

Rebecca Kitteridge, Security Intelligence Service director, speaking at a Wellington conference on security said that tip-offs from the public still provided the main defence against domestic terror, rather than widespread surveillance.

 “We do not live in a surveillance state where everything you do online is recorded – at least not by the government,” she told the conference.

“Where information suggests that a person may be a threat to New Zealand’s domestic security, we will try to find out more about that person, and either determine that the person is not of interest, or will build an intelligence case that may lead to a warrant application.”

“Many people worry about state surveillance,” she said. “Polling late last year [showed] 29 per cent of respondents thought intelligence agencies might be interested in their personal communications … If that were true, that would mean the SIS would be targeting 1.3 million people and that bears no resemblance to the actual situation.”, 18/5/15


Young People

Parental notification and family planning

The law allowing a teenager to keep her abortion private from her parents should stay in place, NZ Family Planning says. 

Stratford mother Hillary Kieft presented a petition calling for an amendment to the law, to Whanganui MP Chester Borrows on Monday, after her teenage daughter had the procedure done without her knowledge.

Family First national director Bob McCroskie said an abortion is the only medical procedure that keeps parents in the dark, regardless of the age of the young pregnant woman in question. 

“This all effectively means that while a parent has to sign a letter for their daughter to go on a school trip to the zoo or to play in the netball team, they are totally excluded from any knowledge or granting of permission for that same child to be put on the pill or have a surgical abortion,” he said. 

New Zealand Family Planning chief executive Jackie Edmond said while she cannot speak about this specific case, she supported the law, as it stands, around parental notification. 

“The law was put in place for a reason and the reason was young people don’t always feel comfortable talking to their parents around these issues and in fact the parents may have contributed to what happened to that young person.”

Edmond said where possible, those young women are encouraged to talk with their parents, or a trusted adult, by health providers. 

“They don’t always want to talk to the parents. Sadly it’s the way young people are,” she said. 

New Plymouth Girls’ High School principal Jenny Ellis said she can empathise with parents and grandparents who are not kept informed of decisions around termination and contraception, but it is not a black and white issue. 

“We work very hard to get that young woman’s consent to involve the family and we see that as very important.  There are also students where I wouldn’t agree with the parent being informed.”

Taranaki Daily News 27/5/15