Libertywatch October 2015

A round-up of civil liberties related news from October 2015.


Armed Forces

Iraqi-born woman told she couldn't enlist

The New Zealand Defence Force (NZDF) told a woman, whose family fled violence in Iraq 23 years ago when she was three years old, that she couldn't enlist because of where she was born.

Warda Jawad, who is now a 25-year-old counselor and Masters student of psychology, had applied for a job as an army psychologist, but was told she could not pass a security clearance despite being qualified for the role.

She complained to the Human Rights Commission, which tried to set up a mediation meeting. The NZDF refused to attend, citing Section 25 of the Human Rights Act, which said a person can be denied employment based on their place of origin where national security is an issue.

An employment lawyer, Anthony Russell, said there was a high threshold for how "security" was defined legally, and it included espionage, terrorism and subversion. However, there was no legal definition for national security, and justification needed to be given for dismissing someone based on their ethnicity.

Since the rejection, Ms Jawad was told that it had been decided she did meet the criteria and her application would proceed, but that was in August, and no one had been in touch since, she said.

The New Zealand Defence Force refused to comment when asked by Radio NZ. 28/10/15



‘Into the River’ book ban lifted

The New Zealand Film and Literature Board have lifted a ban on the controversial teen novel Into the River (see Libertywatch, September 2015).

In a majority decision the board said that, although the book describes a number of "unacceptable, offensive and objectionable" behaviours, the board considered that the book "does not in any way promote them", and it no longer considers a ban on under-14s justifiable.

The book's publisher, Penguin Random House, was also delighted with the board's decision.

New Zealand managing director Margaret Thompson said the book's previous R14 rating had denied it the exposure it deserved, and the decision meant the book's intended audience would now be able to access it freely.

"The board's majority decision is a victory for freedom of expression and the right of authors and publishers to deal with the challenging social issues young people face today in high-quality works of literature."

Ms Thompson said the book grappled with important issues, including racism and bullying, that were relevant to young New Zealanders today, particularly teenage male readers.

Into the River would continue to display a parental advisory warning on its cover to help parents assess its suitability for their child.

New Zealand Herald 14/10/15


Criminal Justice

Concerns over ‘Three Strikes Law’

There's no evidence the much-vaunted Three Strikes Law has made a dent on crime, a law professor has stated.

More than five years after the law's introduction, Professor Warren Brookbanks, of Auckland University, said, conflicts over interpretation were potentially undermining the new law, and there was anecdotal evidence some judges were forgetting to issue strike warnings.

"Our concern was that it was likely to punish many relatively minor offenders more harshly than they deserved," the Brookbanks said during the inaugural Greg King Memorial Lecture. "I still have this concern."

He said the law was created to identify and punish "worst-of-the-worst" offenders but no empirical data so far vindicated hopes the law would deter offending.

Mr. Brookbanks said he worried the law was an example of "penal populism" in which politicians served their own ends "by tapping into the public's punitive sentiments".

The professor said by April this year, 5382 first strike warnings had been issued and only 76 final warnings, but this didn't mean the law was deterring would-be recidivists.

"Deterrence, if it is effective at all, should operate across the full criminal justice spectrum, not simply once a first strike conviction has been entered."

He said a narrow band of serious offences were producing the vast majority of strike warnings.   Data released in 2013 showed just three offences, sexual assault, robbery or aggravated robbery, and serious assault, accounted for 89.8 per cent of all first-strike warnings imposed.

Mr. Brookbanks said these three crimes accounted for 95 per cent of all second strike warnings during the same period.

"In fact, there could be an argument for reducing the list of qualifying offences, rather than increasing it, as some have advocated, while developing policy for dealing more effectively with the most prolific strike offences."

These comments were in contrast to those of Tauranga's Sensible Sentencing Trust, which this year called for an expansion of the law to cover domestic violence offences.

Otago Daily Times 2/10/15


Top policeman says he is 'incredibly disappointed' with faulty breathalysers

At least 79 people caught drink-driving were tested on faulty breathalysers, and that number could grow after a calibration fault forced police to recall all 400 of its latest state-of-the-art devices.

National manager of road policing, Superintendent Steve Greally, has labeled the recall "incredibly disappointing", while lawyers have warned the ramifications could be very serious if someone was found to be sitting in jail because of a faulty machine.

The recall means any drivers who were fined or charged after failing a test on a defective Drager 7510 breathalyser will be eligible to have that overturned.

To date 343 of the 400 devices in use have been tested, with 49 found to be defective, leaving 79 evidential readings in question.

Greally said the defective units only failed by a very small margin, but to avoid any doubt, police would be waiving any fines or prosecutions that may have resulted from those devices.

Auckland defence lawyer Alistair Haskett, who specialises in drink-drive cases, said the police had a potentially serious legal situation on its hands.

"You might have someone convicted of their third or subsequent offence sitting in prison because of a faulty machine."

The Land Transport Act did not allow people to challenge an evidential breath test reading, but this incident suggested the law should change, he said.

The breathalyser issue is not the first time technology has gotten the better of Police this year.

More than $150,000 in speeding fines had to be cancelled in May after a daylight saving error in Wellington's new hi-tech Ngauranga Gorge static speed camera went unnoticed for over a month. 20/10/15



Christchurch drone operator warned by NZTA after Western Belfast Bypass flight

A drone user who filmed progress of an under-construction national highway was warned by a government agency after posting the footage online.

Christchurch drone pilot Peter Perrim shot video earlier this month of the Western Belfast Bypass.  He had permission from the Civil Aviation Authority and air traffic control to conduct the flight, but did not think he needed consent from the Crown-owned NZ Transport Agency (NZTA), which owned the land.

Several hours after his video appeared on the Stuff website, Perrim said he was questioned by NZTA about how he shot the footage.

He said the agency told him he needed its permission to film the road, and he could face legal action if he did so again without its permission.

New drone rules imposed in August required users to obtain consent from the owners of land they planned to fly over to mitigate safety and privacy issues.

Perrim argued that because he was flying over Crown-land, and because no one was on the site at the time, there were no safety or privacy concerns to justify shutting him down.

Perrim asked NZTA for permission to film the road again, but was denied.

NZTA senior project manager Geoff Griffiths confirmed the agency had spoken to Perrim and that it had denied his subsequent request to film again.

"There are very good health and safety and privacy reasons for exercising discretion over the right to film a work project from the air, as there are with allowing a film crew on site on foot," he said.

"People have the right to go about their work without being filmed and without having supplied permission to be filmed."

The agency had decided not to take legal action against Perrim.

The Press 26/10/15



Poppy seeds cost worker his job

Four slices of toast containing poppy seeds have cost a Whangarei man a job after he tested positive for opiates.

Whangarei's Peter Corkill failed a pre-employment urine-screening test with a "not negative" result before working on-site at the NZ Oil Refinery and his employment with the contracting company South Pacific Industrial ended immediately.

A subsequent test of his urine sample by Environmental Science and Research returned a positive result for morphine. He says the poppy seeds in his toast caused the blip.

"I fully support workplace drug testing but the methods in use leave a large section of society vulnerable," Mr. Corkill said.

Poppy seeds resulting in positive drug tests are not uncommon.  Dr Paul Fitzmaurice, of The Drug Detection Agency, said while poppy seeds themselves did not contain morphine the seed surface could become contaminated with opiates from the poppy plant.

"If you eat the seeds, it's not uncommon that could produce a positive morphine result. If there was a declaration someone has eaten poppy seeds, the lab would test on that basis," Dr Fitzmaurice said.

The Northern Advocate 10/10/15



Gender pay gap grows 19% in one year

The Public Service Association (PSA) expressed alarm at the 19% growth in the size of the gender pay gap, from 9.9% to 11.8%

The alarming growth in the gender gap in median hourly wages, which took place from June 2014 – 2015, was revealed in Statistics NZ’s New Zealand Income Survey.

Richard Wagstaff, PSA national secretary, said "Government must take the lead and set a positive example by ensuring workers they employ and contract are not paid unfairly due to their gender."

"The public service pay gap is even larger than the overall NZ gap, so it is crucial that Government takes this issue seriously.

"It is shameful that more than 40 years after the Equal Pay Act became law, women are still not paid fairly. 2/10/15


LGBT Rights

Judge’s Decision to Send Transgender Woman to Men’s Prison Condemned

Transgender rights group, No Pride in Prisons, is furious that another transgender woman, Daytona Haenga, has been sentenced to time in a men’s prison. Despite an incident while remanded in custody that saw her segregated for her own safety, Judge Warren Cathcart sentenced her to 8 months in a men’s prison.

According to a report by the Gisborne Herald during the sentencing Judge Cathcart stated that her transgender status was merely a ‘life choice’ that should not entitle her to ‘special treatment’.

“Ms Haenga was assaulted while in Corrections’ custody awaiting trial,” says No Pride In Prisons spokeswoman Emilie Rākete. “Corrections repeatedly claim that they are sensitive to the needs of transgender prisoners, but this violence keeps happening.

“Protecting trans women from violence isn’t ‘special treatment’ but a fundamental obligation of the state.

“We already know that at least one trans woman has been sexually assaulted in a men’s prison this year. Because Corrections refuse to disclose how many transgender people are presently incarcerated, we have no way of knowing how often this is happening.” 14/10/15


Official Information Act

Judge orders Trade Minister to review his refusal to release TPPA documents

Trade Minister Tim Groser has been ordered to take a fresh look at a request for information on Trans Pacific Partnership (TPPA) negotiations.

Professor Jane Kelsey and others took Groser to the High Court after he refused to release information to her under the Official Information Act.  It later emerged that Groser had not reviewed the documents he refused to release, in a blanket refusal for information.

On Tuesday Justice David Collins delivered a judgement in which he said there was "no lawful basis for the Minister to withhold, in the way he did, some of the information requested by Professor Kelsey".

Collins added: "It is therefore appropriate for the Minister to ensure officials assess each piece of information requested by Professor Kelsey that is in the possession of the Minister and Ministry of Foreign Affairs and Trade (MFAT) against the criteria in the Act for withholding information".

The decision fell short of a declaration that Groser or officials at MFAT acted illegally in the refusal.

Groser was however given blunt advice from the High Court, instructing him to review his decision "in a way that is consistent with his obligations under the Official Information Act".

Officials will be required to review "each piece" of information requested.

Justice Collins also sounded a more general warning to the wider Government about the way it handles Official Information Act requests.

"[T]he [Official Information] Act plays a significant role in New Zealand's constitutional and democratic arrangements. It is essential the Act's meaning and purpose is fully honoured by those required to consider the release of official information," Collins wrote.

"[T]he orders I have made reinforce to the Minister and other decision-makers the importance of discharging their responsibilities under the Act and promote future compliance".

Kelsey said she had been vindicated.

"The Minister's approach epitomises the contempt for democratic processes and accountability that has pervaded these negotiations," she said in a statement.

However she added that Groser's tactic had been successful. Since the Court heard Kelsey's application, the 12 countries involved in the TPPA have announced an agreement, although the final text of the agreement has not yet been published.

"It's cold comfort that the Minister will have to revisit the request, using a proper process and interpretation of the rules, after the negotiations have already concluded," Kelsey said.

"His unlawful approach in circumventing the Official Information Act appears to have achieved its goal." 13/10/15



Police are monitoring online sites for illegal activity

Police have confirmed they keep a watch on social media for criminal activity such as selling drugs.

A police spokeswoman from Wellington said social media was just one of the many ways that criminal offending could be brought to their attention, and when it was, police took the appropriate action to prevent and disrupt the offending.

This was highlighted in a recent case in Rotorua where two men were charged after using Facebook to sell drugs.

Letters were also sent out recently to a Facebook user from Canterbury police warning them they might wish to "review" their membership of an online group suspected of aiding illegal drug deals.

Manawatu Standard 25/10/15



Escape sees privacy trade-off

Police will have access to driver's licence photos, there will be more sharing of personal information and possibly greater powers to cancel passports as a result of the convicted murderer Phillip John Smith's escape to Brazil while on short term release from prison.

Thirty-nine changes have been agreed or are being seriously considered after a high-level inquiry showed up an embarrassing chain of shortcomings that allowed Smith to fly to Brazil.

Justice Minister Amy Adams said she agreed with the inquiry, headed by retired High Court judge Dr John Priestley, QC, that there needed to be a "step change" in information sharing between government agencies.

She stated that she was comfortable with any privacy trade-offs, but did want to look closer at a handful of recommendations such as allowing the Internal Affairs Minister to cancel certain offenders' passports.

"I think we have to be very careful before we launch into automatic cancellation of passports and the like … I don't want to find we go too far in our haste to react to this one situation," she said.

Otago Daily Times 2/10/15


Police got Hager data without court order

Detectives investigating the Dirty Politics hacker Rawshark sought the banking, telephone and travel records of author and journalist Nicky Hager without any search order or other legal power.

Court records show Westpac, who have been the government's banker for 26 years, handed over "almost 10 months of transactions from Mr. Hager's three accounts" at the request of detectives investigating the hacking of Whale Oil blogger Cameron Slater's email and social media accounts.

Other companies that were asked for Hager's private details told police to come back with a court order, which would have legally obliged them to surrender the information.

Hager's legal teams used police documents to detail how detectives sought information on him from 16 "bank contacts", Air NZ, Jetstar, Spark, Trade Me and Vodafone. The request to Air NZ also sought information about anyone Hager might have been travelling with, the documents show.

Detectives told the companies they needed the information for an inquiry into "suspected criminal offending, namely fraud, dishonest access of a computer system", telling the bank the information would help avoid "prejudice to the maintenance of the law through the detection of serious offending".

The Privacy Act allows those holding personal information to waive the law if there are "reasonable grounds" to believe it would assist "maintenance of the law". There is no sign in the High Court documents of Westpac, or any of the agencies, being supplied with additional information that might assist with the "reasonable grounds" test.

The documents do show the other companies rejected the request without a legal order.  Hager's lawyers said: "Police did not seek production orders for any of this information."

Westpac sent detectives transaction details from December 2013 until September last year, with other personal details.

The police decision to seek detailed information without a legal order appears contrary to the position stated by Assistant Commissioner Malcolm Burgess to the New Zealand Herald last March.

He said then that there were "controls around how information is both requested and provided … While the Privacy Act provisions can be used to access low-level information, such as basic account details, higher-level data must be obtained through a production order.”

Hager's lawyers told the court there were no reasonable grounds for police to seek information without a legal order and questioned whether such an order would have been granted were it applied for.

Lawyers for the police told the High Court the requests were simply the act of asking for information. They said just because police quoted the Privacy Act exception "did not mean the agency was obliged in any way to provide it".

Westpac defended its decision to supply information, saying it followed internal policy in assisting with investigations into serious crimes. It did not supply a copy of the policy despite being asked to do so.

Media Freedom Committee chairwoman Joanna Norris, editor of The Press, said the work done by journalists was a "safeguard of an open and transparent society".

"I am concerned information of this type was released as a result of this request. The work of journalists should be protected, and the individual rights of any New Zealanders should be protected."

New Zealand Herald 24/10/15