The following are NZCCL submissions on Bills being considered by Parliamentary Committees.
NZCCL argued in this 2005 submission that the proposed rights of customs to apply seizure and forfeiture powers to goods even without proof of guilt is in breach of fundamental constitutional statutes, including the Bill of Rights 1688, and the Magna Carta, which still have legal applicability in New Zealand. The rights are also made explicit in Universal Declaration of Human Rights, the US Constitution and many other statutes including the New Zealand Bill of Rights. “….. the forfeiture and seizure of goods by customs without trial, and as a deterrent is simply a modern form of state theft”.
The Customs and Excise Act was passed in 2006.
The submission by Tony Ellis on 13 December 2004 to The Law Commission on the reforming the Customs Act Forfeiture and Seizure Powers is below.
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In its 2005 submission supporting the increase in the number of Appeal Court judges the NZCCL provides examples of delays in hearings, short cuts in judgements and the costs of using seconded judges. The Judicature Amendment Act (No 3) was passed in 2005.
The submission by Tony Ellis on 22 July 2005 on to the Justice and Law Reform Committee on the Judicature Amendment (No 3) for improvements to the operation of the Court of Appeal is below.
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A submission by Tony Ellis on 20 November 2003 to the Justice and Electoral Committee on the Judicial Matters Bill, which was enacted as the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.
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Oral submission to the Law and Order Select Committee in respect of the Electoral (Disqualification of Convicted Prisoners) Amendment Bill
1.1 The New Zealand Council for Civil Liberties (NZCCL) appreciates the opportunity to appear before this Committee in support of our submission.
1.2 We support the proposal to amend S.80 of the Electoral Act 1993, but rather than substitute two replacement paragraphs we urge the Committee to delete the two existing paragraphs in their entirety.
1.3 At the time of our written submission NZCCL had been unable to obtain specific details of the number of prisoners who were serving a term of imprisonment of less than 3 years, and of the number whose term of imprisonment was 3 years or more. Subsequently we have obtained that information from the Department of Corrections, and we are now able to include those details.
2.1 Specifically, as at 9 November 2008, being the date closest to the most recent general election, there were 6,177 sentenced prisoners and 1,759 remand prisoners in New Zealand prisons – a total of 7,936.
2.2 Of those 6.177 sentenced prisoners
2.3 The total number of prisoners eligible to vote as at 9 November 2008 was 4,460.
3.1 The number of prisoners serving sentences of less than 3 years, being those currently eligible to vote, constitute 45% of sentenced prisoners, and is at 2,809 an extremely small voting population. Even assuming that all of those prisoners were enrolled, and actually voted, the fact that their enrolment was in the electorate where they resided prior to imprisonment meant that the impact of those individual votes was fragmented.
3.2 The practical implications of those votes, and in the event they are no longer prohibited, the votes of all sentenced prisoners, is, on a collective basis, minimal. In terms of exercising a Party Vote the impact, on a collective basis, is also minimal.
3.3 This means that there is no practical justification for seeking to withdraw the current entitlement to vote from those prisoners sentenced to a period of less than 3 years, and the overall significance of the proposal is almost entirely symbolic.
3.4 The nature of the symbolism is open to speculation, but one very persuasive interpretation is that it serves to quench, in part and for a short time, the thirst for vengeance of those who are, or advocate for, victims by seeking to punish further those already sentenced to imprisonment.
3.5 NZCCL recognises the pain of those who are victims, and, without seeking to diminish their anguish, do observe that while victims may indeed feel better at a further punishment being imposed, the strong likelihood is that they will in fact be no better as a result. Moreover, those feelings usually fade over time. The old adage of “an eye for an eye” can only result, metaphorically speaking, in an increasing number of “one-eyed persons”.
4.1 Paragraph 16 of the Report issued in relation to this Bill states “I conclude that the blanket disenfranchisement of prisoners appears to be inconsistent with S.12 of the Bill of Rights Act and that it cannot be justified under S.5 of that Act.”
4.2 “Not consistent” and “not justified” suggests that further progress with this Bill ought to cease forthwith. To continue further on a rational basis requires an explanation of how the Bill is consistent with, and justified under, the respective sections. The General policy statement that, if enacted, the law would revert to what it was prior to the implementation of the current Act suggests that somehow the past 17 years have produced a detrimental outcome that now needs to be rectified. No evidence which might indicate or support such an outcome has been provided.
4.3 NZCCL believes that a more legitimate and detailed justification is essential in these circumstances. The final paragraph of the General policy statement does state that the analysis by the Royal Commission on the Electoral System omitted any consideration as to the level of serious offending most prisoners had been convicted of prior to them eventually receiving a custodial sentence.
4.4 This statement assumes some common agreement as to the understanding and acceptance of the concept of “serious offending” whether or not a custodial sentence is involved. There is no evidence to suggest that this is the reality let alone what that common agreement might be. Further, there are no numbers associated with the example so if, for instance, the sample size or the base line is very small, any change in the number of persons in the particular category automatically means a significant increase in the percentage. The omission of such an explanation also reflects adversely on the proposition that is presented.
5.1 The right to vote is a fundamental plank of democracy in New Zealand. S.12 of the New Zealand Bill of Rights Act 1990 states that every New Zealand citizen who is of or over the age of 18 ... (a) has the right to vote in genuine periodic elections. Any limitation of that right must be both reasonable and demonstrably justifiable in a free and democratic society. Even so, the ability to vote is of such fundamental importance in a democratic society that any move to weaken further the idea of universal suffrage by removing the vote for a certain class of person is to be strongly resisted.
5.2 In view of the minimal practical impact of the removal of this right, the subjective impact on those who are victims of those serving prison sentences, and particularly the very small number of persons directly affected by the proposed amendment, NZCCL suggests that the consideration of this Bill is a timely opportunity to revisit our approach to this particular form of punishment.
5.3 Rather than simply discontinue progress with this Bill in its present form and miss this opportunity, NZCCL proposes that the Bill be redrafted to repeal S.80 (1) (d) and S.81 of the Electoral Act 1993. Indeed, this is a rare opportunity to take something potentially punitive and turn it into something actively humanitarian. Most of those persons currently in prison are one day going to be released into our society when their sentences are finished, and this particular change can be a signal to them that, regardless of their past offences, they are still members of our society. This is our inescapable common heritage regardless of whether or not we like it.
5.4 While it may well be considered by some to be little more than a lottery in that the ultimate effect either way may never be able to be calculated, NZCCL believes that in general it is preferable to encourage those serving prison sentences rather than discourage them. The repeal of those two sections is one small step in that process of encouragement.
5.5 Finally, NZCCL suggests that whatever decision is made in relation to this particular Bill – whether put forward as is, withdrawn, or amended as suggested – that decision is more a judgment by, and of, the members of this Committee and ultimately by, and of, the legislators in general, than it is of those persons serving current or future prison sentences.
Kevin McCormack Secretary/Treasurer, NZCCL, PO Box 337, WELLINGTON
New Zealand Council for Civil Liberties submission about the Electoral (Disqualification of Convicted Prisoners) Amendment Bill. Current law says that prisoners given a sentence of longer than 3 years cannot vote. This bill extends that to all prisoners.
The Council opposes this change and recommends that this provision should be removed from the law, not extended.
1.1 I make this submission on behalf of the New Zealand Council for Civil Liberties Inc (NZCCL).
1.2 This Bill is remarkably brief and consists solely of two very small amendments – to, respectively, a subparagraph and a paragraph of two sections in the Electoral Act 1993. The smallness in size belies the significance of the amendment.
1.3 NZCCL wholeheartedly supports the proposal to amend the two existing sections. However, rather than substituting two replacement paragraphs, NZCCL proposes that the two existing paragraphs be deleted in their entirety from the Electoral Act 1993.
2.1 Currently only those persons who are serving a term of imprisonment of 3 years or more are disqualified for registration as an elector. Imprisonment for this period indicated a serious crime against the community, and the degree of seriousness is was regarded as sufficient justification for requiring some further forfeiture of rights, such as the right to vote. Now it is proposed to extend that forfeiture to those who have committed less serious crimes.
3.1 While NZCCL is unsure of the number of prisoners who are serving a term of imprisonment of less than 3 years and the number whose term of imprisonment is 3 years or more, we are informed that in the past 12 months to 31 May 2010 there have been 995 people removed from the roll as a result of Registrars of Electors receiving advice from Prisons that they are holding people who have been sentenced to a term of 3 or more years imprisonment. The proposal to include also those persons who have committed less serious offences will have minimal significance from a voting perspective.
3.2 The right to vote is, properly, a fundamental plank of democracy in New Zealand. Indeed, S.12 of the New Zealand Bill of Rights Act 1990 states that every New Zealand citizen who is of or over the age of 18 years – (a) has the right to vote in genuine periodic elections ... Any limitation of that right must be both reasonable and demonstrably justifiable in a free and democratic society.
3.3 The proposed removal of that right from those who are serving a term of imprisonment of less than 3 years (or, as NZCCL advocates, the return of that right to those whose term of imprisonment is 3 years of more) is hardly likely to have any material practical impact, except on the individuals concerned.
3.4 Even if the total number of inmates, say 9,000 on average, were to exercise a right to vote – which is probably an unlikely proposition – the actual impact of those votes is miniscule since persons detained in a prison vote in relation to the electorate in which they were enrolled on the basis of where they resided before they were imprisoned. So, the impact of their votes is significantly dissipated.
3.5 NZCCL notes that the exercise of a vote by a prisoner is a 2-step process viz. - the prerequisite of being already enrolled in an electorate followed by the later decision to vote when an election occurs. NZCCL suggests that this combination probably means that a relatively small proportion of those serving a term of imprisonment are sufficiently mindful of those steps and interested enough to participate in the process.
3.6 The effect of these observations indicates very strongly that the nature of the proposed amendment is almost predominantly symbolic. Even so, the ability to vote is of such fundamental importance in a democratic society that any move to weaken further the idea of universal suffrage by removing the vote for a certain class of persons is to be strongly resisted.
4.1 While the practical implications of the proposed amendment (in both formats) are minimal the symbolic implications are rather more significant. NZCCL suggests that the symbolism can be viewed in at least 2 ways.
4.2 Looking first at the proposal contained in the Bill, the removal of the right to vote (leaving aside whether or not it is exercised) is a further reduction in the dignity and humanity of the individual serving the term of imprisonment. The removal of liberty and other privileges associated with life outside a prison is a proper consequence of conviction, and their removal has a tangible impact and is exactly what is intended.
4.3 Some may question whether prisoners even care at all about whether or not they have a right to vote, and and may even suggest that if it were to be removed for all persons serving a term of imprisonment regardless of the length, it is probably likely to be met with a mere shrug of the shoulders and a “so what” attitude.
4.4 Such a view is far too dismissive of those in prison and leads to thinking of them as being less than other citizens, which seems to be precisely the motivation behind this Bill. While it might seem inappropriate to consider the impact of this proposal on those who are in prison, this Bill does seem clearly designed to indicate that those persons are both unwanted and lesser members of society, the reality is that, regardless of their offences, those in prison are also human beings. Moreover, most of those persons are one day going to be released into our society when their sentences are finished.
5.1 NZCCL considers that both proposed amendments are largely an academic exercise, and as such provide an opportunity to demonstrate either a heart that is hardened or one that is compassionate. The prisoner's fate has already been determined and judgment passed, so any decision now is less a judgment of the prisoner than it is of the legislators. The legislator's fate is in their own hands, so in judging the other one also judges oneself. This is an opportunity to look into one's own heart and make a decision based on what one finds there.
6.1 NZCCL believes that there are 2 humanitarian options. The favoured option is to repeal S.80 (1) (d) and S.81 of the Electoral Act 1993. The fall-back option is to decide that no further consideration is to be given to the Electoral (Disqualification of Convicted Prisoners) Amendment Bill.
6.2 There is really nothing to be gained by proceeding with this Bill other than to provide some appeasement to those who wish to punish further those who are already serving a term of imprisonment, regardless of how short that term of imprisonment may be. The current proposal shows no justification for removing the right to vote from an additional small group of persons who have committed less serious offences. The only tangible benefit is the saving of a few dollars of taxpayer funding.
7.1 NZCCL requests the opportunity to make an oral submission.
A submission by Tony Ellis on 28 March 2008 to the Law and Order Committee on the Policing Bill.
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In its 2005 submission on the Prisoners’ and Victims’ Claims Bill. NZCCL urged that the unprincipled Bill be withdrawn in its entirety, as it is in breach of the Bill of Rights Act and the Human Rights Act, and it puts our international reputation in jeopardy.
The Bill was passed into law in 2005.
The submission by Tony Ellis on 8 February 2005 to the Justice and Law Reform Committee on the Prisoners’ and Victim’s Claims Bill, stating that the bill is so unprincipled it should be withdrawn in its entirety is below.
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20 May 2010
ORAL SUBMISSION TO THE STRATEGY AND POLICY COMMITTEE OF THE WELLINGTON CITY COUNCIL RELATING TO THE PROPOSED AMENDMENT TO ITS LIQUOR CONTROL BYLAW
NZCCL acknowledges that the existing Bylaw relating to the Wellington central area was first enacted in 2003, and there have been 2 subsequent amendments which incorporated 4 further areas within the bylaw. The basis of this submission contains comments of a conceptual and practical nature, followed by some observations about perception and then a brief summary and a final remark.
The idea that banning an activity thereby causes it to cease is close to illusory. As the Council acknowledges in its Summary document “the problem may move to neighbouring suburbs”. The same logic means that with a city-wide ban the problem merely moves to another area, such as Petone or the Hutt Valley. At best, a ban merely moves the activity or conduct to another location, and at worst it is simply ignored. Of course, there are consequences when a ban is ignored, and that is ostensibly the thrust of this proposed amendment to the existing Bylaw. Moreover, while the data indicates that for the majority of those who committed an offence in a public place their last drink was in a public place, there is no indication that the majority of their prior drinking occurred in a public place. It is equally, if not more. likely that those persons were “primed” in one or more private locations.
A ban is also an easy option and saves having to determine the actual cause of the undesirable activity or conduct and, in turn, specifically addressing that cause. We accept that the task of identifying the cause can be a taxing exercise, and that the subsequent task of either removing the cause or of promoting a more desirable form of activity, is probably even more taxing.
There are 3 practical comments -
First, NZCCL urges that any extension to the existing Bylaw be made only when there has been a clearly demonstrable need in terms of S.5 of the Bill of Rights Act 1990. To propose an extension that encompasses the entirety of the city is breath-takingly audacious, and most likely to be ultra vires. It is comparable to using a sledge hammer to crack a peanut. The documentation indicates that some communities have requested a liquor control bylaw for their area, but they represent only a minority of those suburbs that are currently free of any liquor ban. The proposal seeks to remove, on a pre-emptive basis, a freedom which currently exists for the citizens of and visitors to Wellington.
Second, any extension will automatically extend the power of the Police, without warrant, to search a vehicle that is in, or is entering, a public place within the extended area. The extent of the proposed liquor free area is such that the Police can legitimately endeavour to search any vehicle anyway in the city at any time. It is small comfort to hear that this power is unlikely to be exercised indiscriminately – the mere fact of its existence is a clear indicator that this can occur when someone considers that the particular circumstances justify that approach.
Third, there is a need for clarity and further information in the current bylaw by incorporating into any extension, and if no extension, then to the existing bylaw two components – (a) amending the paragraph relating to S.170 of the Local Government Act 2002 to set out in full the wording of Ss. (1), and (b) adding a new paragraph excluding unopened liquor where there is no opened liquor in the vehicle or the container. In the latter situation, it is appropriate to issue a warning that none of the liquor is to be consumed in a public place where there is an existing liquor ban.
The proposal appears to be based on an assumption that the public consumption of liquor inevitably leads to alcohol-related disorder and harm. However, there are likely to be far more occasions where the consumption of liquor in public places has no adverse consequences. For example, a couple of bottles of wine at a picnic at the beach or in a park, or a few beers after a game of touch rugby at Anderson Park or at a barbeque at Makara – all of which will be prohibited if this proposal goes ahead in its current form. As well, those activities are usually rather spontaneous which means that there is minimal scope to apply for and obtain written permission beforehand.
The Council espouses a vision that Wellington is a safe, healthy vibrant city for people to live, work and play. While “there is no intention to spoil the fun” is a sensible and practicable approach on the part of the Police, it does sit incongruously alongside the stark wording of a city wide liquor ban. It also creates the impression that there are two standards - between the law as it is written and the law as it is applied. While widening the liquor ban may result in citizens and visitors feeling safer, but what evidence is there that it actually makes them safer.
Indeed, the proposal to extend the liquor ban city wide and the capacity to search a vehicle, without warrant, might well lead to a perception that the Council is willing to limit significantly the freedom of its citizens and visitors.
The NZCCL submission is that Council -
* extend the liquor consumption ban only where there is a significant and demonstrable need to do so, and on an area by area basis; and
* amend the existing Bylaw to incorporate more detailed wording of S.170 (1) of the Local Government Act 2002, and to exclude unopened liquor where there is no other opened liquor in the vehicle or in the container.
In regard to the search of a vehicle, without warrant, it might be said that if a person has nothing to hide then the person has nothing to fear. From a civil liberties perspective that observation, while superficially attractive, is actually based on an unstated and far less attractive assumption, viz. that a person in authority has a right to determine which vehicle is to be searched. That indeed is an erosion of civil liberties.
Kevin McCormack
SECRETARY/TREASURER
The Labour government repealed the sedition law in 2007 after recommendations of the Law Society.
A submission by Tony Ellis on 4 December 2006 to The Law Commission on reforming the Law of Sedition is attached.
Sedition is the stirring up of rebellion against the government in power. (Wikipedia)
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The Council intends to focus on 4 areas of concern -
1. The delay in determining the outcome of applications for legal aid
2. The lack of clarity in the criteria for eligibility for legal aid
3. A perceived subconscious prejudice or predetermination as to the merits of some applications
4. An unduly complex process with limited ability for objective internal review.
Dame Margaret Bazley
Chairperson
Legal Aid Review
C/- Ministry of Justice
PO Box 180
WELLINGTON
9 October 2009
Dear Dame Margaret
1.0 INTRODUCTION
1.1 The New Zealand Council for Civil Liberties Inc acknowledges and appreciates your invitation to comment on the discussion paper, Improving the Legal Aid System: A Public Discussion Paper.
1.2 The Council aligns itself with and endorses the views contained in the submission presented by Mr Tony Ellis, Barrister, of Wellington. Mr Ellis is the immediate Past President of the Council, and he held that position for several years. Executive members of the Council have witnessed his determination to ensure that Justice is accessible, and that the rules and procedures relating to access are reasonable, fair and transparent.
1.3 The Council notes the statement in your Introduction to the Discussion Paper that, in addition to meeting with many people throughout the country, you have also sat in many courtrooms and watched the legal aid system in action. We note that there is no reference to observing the process 'behind the scene', i.e. the manner in which applications for legal aid are received, processed, assessed, determined and reviewed.
2.0 CONCERNS
2.1 The Council intends to focus on 4 areas of concern -
1. The delay in determining the outcome of applications for legal aid;
2. The lack of clarity in the criteria for eligibility for legal aid;
3. A perceived subconscious prejudice or predetermination as to the merits of some applications; and
4. An unduly complex process with limited ability for objective internal review.
2.2 One of the basic precepts in a quality legal system is that "justice delayed is justice denied". This aspect is of particular importance at the outset of any legal proceedings, or when a new dimension of those proceedings (e.g. an appeal against a lower court decision) is being undertaken. A defendant, or an appellant, is entitled to the best legal representation at every stage in the proceedings, and the more serious the case the more important is the need for that representation, and the earlier it needs to be available.
2.3 The second concern in a sense flows over from the first. The absence of clear criteria for eligibility makes the tasks of the applicant for legal aid and of the person designated to determine the application more difficult, involved and time consuming than they need to be. It is surely possible to determine appropriate criteria that will cover a minimum of 80% of applications, so that in essence both the applicant and the Agency can process the application on a straightforward basis and within a short time frame.
2.4 Mr Ellis has referred to instances where, even at the highest level in our Court system, there has been a well-intentioned but subconscious predetermination as to the outcome of legal aid applications in particular contexts. The presence of clear criteria for eligibility at all levels in the legal system will go a long way towards eliminating this area of concern.
2.5 The fourth area of concern contributes significantly to the delays and difficulties experienced by applicants. The presence of teams of Specialist Advisors to support a Grants Officer seems to be recognition that the current process is now too difficult to manage effectively in any other way. Where those advisors significantly outnumber the decision maker, then it is very difficult to demonstrate that the roles have not in fact been reversed.
2.6 Moreover, in this environment it is equally difficult to be able to request and obtain a review of a decision, and be satisfied that the review is sufficiently objective. The tendency is usually to support the status quo unless it is shown to be demonstrably flawed, and in the process fine nuances are easily overlooked or discarded.
3.0 PROPOSALS
3.1 The Council has 4 practical proposals to put forward -
1. Revise the internal processes at the Agency;
2. Develop criteria which are set out clearly;
3. Implement a 2 tier approval system; and
4. Where an application is declined the decision be made and communicated promptly.
3.2 The most important practical proposal is to ensure that the processes within the Agency are rectified at the outset. They need to be simple, straightforward, transparent and prompt. If the 'front end' of the entire Legal Aid system remains flawed, then the model will always be flawed, and no end of fine tuning in its other aspects will eliminate that defect. The injustices that follow may remain buried and undetected for too long.
3.3 The Council considers that the criteria which govern the approval of applications for legal aid need to be specific and set out clearly. In particular, the distinction between criteria which are mandatory and which are discretionary needs to be established. Further, where criteria are discretionary, there needs to be a ranking as to their respective priority. Both the distinction between criteria and the ranking within discretionary criteria may change in the light of experience, and these changes notified in an appropriate manner.
3.4 The Council postulated in paragraph 2.3 that it was surely possible for 80% of applications to be processed on a straightforward basis and within a short time frame. This proposal utilises the Pareto principle, but, without knowing any of the particular details of applications, that percentage might readily be higher. The Council envisages that applications which have a considerable degree of urgency attached to the legal proceedings will fit within this category.
3.5 Applications which are complex will necessarily take longer to determine. Even so, it is, in the interests of justice and access to the law, highly desirable that there be a maximum time frame within which a determination is made. If a determination is outstanding at the expiry of that time frame then the application deserves to be approved
3.6 As a matter of principle, the Council believes that the appropriate mindset that the Agency needs to bring to consideration of all complex applications is not how to exclude it from the ambit of the provisions, but rather how to include it within them.
3.7 The fourth proposal is largely self-evident, and is relatively straightforward when the principle espoused in paragraph 3.6 is applied.
4.0 OTHER OBSERVATIONS
4.1 It is particularly important that the legal aid system is well regarded by all parties involved with it, and to achieve that recognition the process needs to operate with integrity at every level. For any legal practitioner to 'walk away' from the system because of perceived delays, difficulties or inconsistencies is an indictment, and an indication that the underlying issues remain too deep or too difficult.
4.2 The Council also considers a greater degree of parity is required in the allocation of resources to those who undertake the duty to prosecute and to those who undertake the duty to defend those individuals involved in the legal system.
4.3 Even in times of economic recession there is still the need for legal aid, indeed probably more so as more economically disadvantaged people collide with the criminal justice system. We have heard anecdotal reports of those facing minor offences increasing being denied legal aid. Those facing a possible period of imprisonment should not be denied aid just to save money. Indeed we query whether it does save money, as the costs of imprisonment for the Government are high, as are the consequences to society of someone imprisoned even for a short time. The Council considers that regardless of cost, economically disadvantaged people facing imprisonment should receive legal aid.
4.4 What further worries us is that people now plead guilty to minor charges not because they are guilty, but because the cost of defending a charge without legal assistance is too great.
5.0 RIGHTS OF THE MENTALLY ILL
5.1 We are concerned that the increasing number of the prison population who are mentally ill and intellectually disabled will not have their voices heard in this review.
5.2 This was referred to by Mr Ellis in his submissions to the Court of Appeal yesterday quoting from Bartlett & Lewis :
P 70 Few countries which have ratified the European Convention on Human Rights have systems of representation that would survive challenge. Most have not considered mental health representation a political or funding priority, and when representation is provided, in some countries it routinely fails to meet any adequate standard. There is therefore a major lack of compliance. …
P 251…people with mental disabilities who are subjected to substandard legal representation cannot be assumed to have the knowledge or the ability to recognise the difficulties and draw them to the attention of the relevant court authorities. If the court believes that reasonably competent representation is a part of the client’s rights under Articles 5(4) and 6(1), then it should insist that the state be proactive in ensuring such a standard. …
P 252 Inevitably, much will depend on funding. Lawyers will be understandably reluctant to perform services for which they are not paid. If a reasonable standard of representation is to be achieved States must be forthcoming with reasonable funding. Such a duty is buttressed by Article 3 of the United Nations Basic Principles on the Role of Lawyers:
Article 3. Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall cooperate in the organisation and provision of services, facilities and other resources.
Governments should be expected to live up to that commitment.
5.3 The Council urges that better funding and training is provided so that this serious disadvantaged group does not continue to fall by the wayside.
5.4 The Council also notes with interest that other minority groups are disadvantaged, and considers the quality of representation may have a part to play in this.
5.5 The Council notes the Government will be required to answer the following questions before the United Nations Human Rights Committee in New York in March 2010, and considered this review should also consider these questions:
Right to life and prohibition of torture and cruel, inhuman or degrading
treatment and treatment of prisoners (Articles. 6, 7 and 10)
"Please indicate(a) whether persons detained on mental health grounds have prompt access to judicial review of their detention; (b) whether inspection systems have been established in line with the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care; (c) what measures have been taken to redress the high number of persons with mental health problems in prisons. Please also provide detailed information on mental health care in prisons."
"What measures have been taken by the State party to address the high level of incarceration of Maori, in particular women? Has the State party fixed specific targets and timelines for reducing the high number of Maori in prisons? What measures has the State party taken to reduce levels of reoffending by Maoris?"
Kevin McCormack
Secretary/Treasurer
Far from promoting people’s civil liberties and human rights, the Bill has very few measures to protect those rights, and a large number of measures that can be exploited to infringe those rights, not only of people suspected of committing criminal acts, but also others inadvertently caught up in the activities. Enforcement agencies should be given powers of search, seizure and especially surveillance very sparingly and with limits and safeguards to ensure they are only used for the particular purposes of the agency. The agencies must not be given open powers such as proposed in this legislation. It is the role of parliament to support, promote and protect civil liberties. Civil liberties form the basis for a working democracy. This Bill constitutes a failure of Parliament to undertake its core function, the protection of the rights of the people it serves. Search and Surveillance Bill 2009 1. Search and Surveillance Bill 2009 There is no denying the need for some clarity and consistency regarding operations and procedures relating to search, seizure and surveillance in New Zealand. In some respects the Search and Surveillance Bill does a good job in making explicit procedures to be followed and parameters of the powers of police and other law enforcement agencies. The Bill gives effect to the Law Commission report, including the extension of the law to meet new electronic communication processes. However the Bill does much more than consider clarity and consistency, or extending to electronic communication the powers in existing law. It provides police with rights to stop and search vehicles without warrant, to require operators of computers to provide access to all files, it compels people to provide evidence, and permits unwarranted surveillance of businesses and home addresses. The most serious challenge to civil liberties is however that all agencies engaged in enforcement activities will be covered by the same extensive search and surveillance powers as the police and customs. The agencies covered by this include government departments (Department of Labour and Immigration, Department of Conservation, Ministry of Fisheries, Department of Social Welfare/WINZ, Customs), Crown entities (Accident Compensation Commission, Civil Aviation Authority), local authorities (Auckland City Council), or other bodies (NZ Food Standards Authority) that employ or engage enforcement officers. This massive extension of the powers of these agencies has been undertaken not because of need but in the name of ‘consistency’. 2. Balancing civil liberties and security In the Law Commission report, and in parliamentary and public discussion on the Bill, there has been much talk of getting the balance right between civil liberties and security. NZCCL submits that in reality this argument is used only when civil liberties are being eroded. Only rarely in New Zealand history has legislation increased people’s civil liberties or reduced the coercive powers of the State. Over the last few years, in the name of the ‘war against terrorism’ there has been, in New Zealand, as across the industrialised countries, massive increase in the powers of the state to intrude on the rights of people. This Bill, in the name of creating consistency between government agencies, in fact constitutes another step in a major assault on the traditional rights of New Zealanders, as enshrined in the Bill of Rights Act. It provides a range of law enforcement agencies, and especially the police, with search, seizure and surveillance powers that can be used indiscriminately and with little accountability. 3. The Bill in context The Bill needs to be seen in the context of a plethora of other acts that have been passed during the last few years in the name of ‘the war on terrorism’, including the Terrorism Suppression (Bombings and Finances) Act, the Crimes Amendment Act, the Border Security Act, the Telecommunications (Interception Capability) Act, the Police Act, and many others. The effect of these has been to greatly expand the powers of the police, the SIS and the GCSB to use classified information, to use surveillance, to arrest and detain people under suspicion of terrorism. At the same time the rights of those people to silence and to non-self-incrimination, to access to the information about them, and to legal remedies has been reduced. Some of the legislation has been made exempt from the Bill of Rights Act. It is clear that similar legislation has been used in other Western countries (including USA, Canada and England) to spy on minority communities and protest groups. There is considerable evidence that that also happens in this country. Recently released information confirms that the SIS has spied on New Zealanders' lawful behaviour and private lives for many decades. We know that different police units have also spied on political activists for many years. The number of units and their surveillance of activist groups and individuals have expanded as the police gained new resources and powers under the ‘anti-terrorism’ laws. Police entities such as the Strategic Intelligence Unit, Threat Assessment Unit and Special Investigation Group feed information into a super-spy group known as the Combined Threat Assessment Group that also includes the SIS, Defence force, GSCB, DPMC. There is no effective public accountability for their activities. Given the blurred boundary line between political activism, criminal offending, threats to security and terrorism, more search and surveillance powers for the police will inevitably feed into this network, and the extension of those powers to other enforcement agencies signals the advent of a society where people can no longer feel themselves safe to express themselves openly. This Bill, then, is not only a covert and major extension of the powers of surveillance and search to a large number of other government agencies, but is part of a system that has gradually been introduced that suppresses dissent and minority views. 3. The role of government The Bill calls into question the role of a government in a democracy, and the sort of country we would like to see in the future. In the news we see on a day-to-day basis the effects of governments that ally with law enforcement agencies to produce ever more sophisticated processes to combat crime. We know that in those countries with the most oppressive regimes crime has become endemic, and the government uses the measures they have introduced to spy on and oppress dissenting voices and minority groups. In a democracy, it is not the role of the government to ‘balance civil liberties and security’ but to ensure that civil liberties are maintained, even if it may make law enforcement more difficult. Otherwise the government itself becomes oppressive. The Law Commission report spends considerable time discussing what constitutes ‘reasonable expectation of privacy’. NZCCL considers that this Bill intrudes on the reasonable expectation of privacy as outlined in Section 21 of the Bill of Rights Act : “…to be secure from unreasonable search or seizure, whether of the person, property, or correspondence, or otherwise”. 4. Law by stealth Although it has been sold as a rationalisation of the search, seizure and surveillance powers or a range of existing government agencies (described in up to 50 other pieces of legislation) the Bill in fact increases the power of most of those agencies, to the extent that any of them may use surveillance equipment, seize and copy documents without consent, and require both work and private computer documents to be opened. The Bill also increases the power of police to conduct car and house searches without warrant, to seize property that may be incidental to a search warrant, and charge people who fail to cooperate. In effect the Bill removes the right of people not to incriminate themselves, by making it a requirement that the operator of a computer open up files to the police. It makes it very easy for all agencies to go on fishing expeditions, and makes it hard for suspects to appeal, because their rights to view evidence against them are diminished. It is the view of NZCCL that changes as substantial as these need to be subject to public debate, instead of being hidden in a complex bill that is promoted as doing administrative tidying up. The Bill challenges the rights and freedoms that are at the heart of our democracy. 5. No case for the increase in powers No strong case has been made, either in the Law Commission report or in the subsequent discussion, for the increase in the powers of the State to search cars and houses without warrant, to seize personal property, to flout laws relating to privilege, to use a range of surveillance measures with little accountability, and to charge people who fail to cooperate. The argument for increasing such powers has been made in the context of creating consistency between agencies, not based around clear evidence of need. 6. The role of the police The Law Commission report makes various benign statements about the role of the police and other law enforcement agencies: “Law enforcement agencies exist ultimately to protect rather than to control the community” (p.23); “The police and other law enforcement agencies are, after all, meant to be of the people for the people” (p.37). It considers that the police are not opposed to civil liberties but wish to protect them. It is the experience of NZCCL over many years that the police have no regard for civil liberties, and indeed have been the main instigators of the erosion of civil liberties within this country. The police push the boundaries of their power to the limit. It is fatuous to consider that police will use sparingly the powers provided in this Bill, or with regard to the civil liberties of the people who are suspects or caught up in their actions. Yet there is little check in the Bill of the powers of the police. There are no strong reporting requirements for any of the new powers, and indeed for some of them there are no reporting requirements at all. Thus the police are to a large extent able to be unaccountable and act with impunity. 7. In conclusion It is clear that this Bill attempts to do too much, and so issues of real concern are inadequately addressed. Not only has it the potential to trample on people’s rights, but it may also lead to greater confusion than it is intended to resolve, when a range of enforcement agencies determine to use their new coercive powers. Far from promoting people’s civil liberties and human rights, the Bill has very few measures to protect those rights, and a large number of measures that can be exploited to infringe those rights, not only of people suspected of committing criminal acts, but also others inadvertently caught up in the activities. NZCCL suggests that the Bill be divided into at least two separate Bills, so that the guidelines over the issuing of warrants and other powers, and the reporting of results, are separated from parts considering new powers given to various agencies. NZCCL considers that enforcement agencies should be given powers of search, seizure and especially surveillance very sparingly and with limits and safeguards to ensure they are only used for the particular purposes of the agency. The agencies must not be given open powers such as proposed in this legislation. Finally, NZCCL considers that it is the role of parliament to support, promote and protect civil liberties. Civil liberties form the basis for a working democracy. This Bill constitutes a failure of Parliament to undertake its core function, the protection of the rights of the people it serves. Recommendations 1. That the Bill be split into two parts, one considering the procedural, administrative, reporting and accountability requirements pertaining to all search, seizure and surveillance activities carried out by officers of any enforcement agency, and the other relating to the increase in powers of the police, to set up road blocks, to stop and search vehicles, to search without warrant, and other powers. 2. That the part of the Bill relating to all enforcement agencies be restricted to procedural, administrative, reporting and accountability requirements, with the authority for each agency to use the powers to be determined individually on the basis that they should only have the power if there is a strong necessity for it in order to undertake their enforcement activity. 3. That the part of the Bill relating to increase in police powers be subject to further public debate and scrutiny. 4. That a report should be written at the conclusion of ALL search, seizure and surveillance activities, whether or not they are done under warrant or other permission, with that report detailing the purpose, the procedure and the result of the activity. These reports should be subject to external scrutiny, both to determine the effectiveness of the activities and to ensure they are used only where there is a clear purpose that could only be resolved by the use. 5. That clear processes of complaint and redress are included, to ensure that people wrongfully caught up in the search, seizure and surveillance activities have their rights protected Batch Hales NZCCL Committee 16 September 2009
A submission by Tony Ellis on 9 November 2001 to the Justice and Electoral Committee on the reforming the Sentencing and Parole Reform Bill.
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In its submission, NZCCL indicates that the Bill breaches the 1990 Bill of Rights Act, as well as the International Covenant on Civil and Political Rights.
See below for the NZCCL written and oral submission.
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This submission, from the New Zealand Council for Civil Liberties (NZCCL), concerns the addition of further powers to credit rating agencies proposed in Amendment 5 of the Credit Reporting Privacy Code 2004. Together with Amendment 4 this amendment brings the New Zealand Privacy Code in line with that of Australia. They are designed to provide the credit rating agencies with 'positive' data relating to people's financial transaction history, rather than the 'negative' reporting of the past, which related only to a person's debt history, where the debt had been referrred to a collection agency.
Amendment #5 in effect gives the credit rating agencies the right to collect personal transaction data relating to payment for utilities such as power and telecommunications, as well as credit card transactions, for a period of two years. This data can show not only where a person is in arrears in payments but also where they have a positive payment record.
While the inclusion of 'good' debt management as well as 'bad' debt management is an improvement on data that shows only a history of defaults on payment, NZCCL is concerned that such information can lead to a detailed but inaccurate picture of a person's financial position, and can also be used by debt agencies to target vulnerable people with instruments that can lead to increased debt and financial hardship.
NZCCL has concerns about the whole nature and purpose of credit reporting. These concerns relate to
the gathering of the information - the possibility that selected information can be gathered about people without their knowledge or consent
the use of that information in ways that may disadvantage those people whether by refusing a loan or by targeting people suceptible to borrowing money
the ability of people to challenge the information gathered about them
the transparency of the rating process.
From our examination of the privacy codes surrounding the current rating system, we are reassured that many of these issues have been better considered here than in many overseas jurisdictions. In many cases here, for instance, the person applying for credit must agree that the information can be gathered or used (thought there are also many exceptions). There are also in place clear processes for individuals to check on their credit history and challenge it (though we have cases that show that actually getting erroneous data changed may be a more difficult process).
The transparency of the rating process – the way in which a person is allocated a number on a scale – appears to be an issue. We found that the Veda Advantage website, though clear about the processes for people wishing to access and change their information, had little about the uses to which the information might be put, the constraints on organisations using the information, and the processes of arriving at the 'score'.
NZCCL is concerned in a broader sense as well. The process is in place primarily for the benefit of the people wishing to provide debt facilities, and who make their money out of interest charged on people's debt.
That means that people who do NOT and have NOT had any debt in the past have no credit rating at all. Two cases of this have come to our attention. One involved a middle-aged couple who had all their lives lived in a house supplied by the armed forces. When they applied for a mortgage for a house of their own they were turned down on the basis that they had no credit rating. They needed to purchase something on credit and immediately pay it off before they were able to gain a mortgage. Another case involves a person wishing to open a bank account in England, who was turned down because of the lack of a credit rating in New Zealand.
There is therefore clear discrimination against those who should perhaps have the highest credit rating – those who are and always have been debt free. On the other hand there is encouragement for people to increase their debt. The people of most value to banks and credit agencies are not those who regularly pay off their credit cards each month, but those who pay the minimum amount on their cards each month, because those people are paying the most interest on their loan. Those people are the most vulnerable to schemes that 'consolidate' their debt, that increase their credit limits, that offer discounted credit cards, and that use loan sharks to meet repayment obligations. James Scurlock's book Maxed Out provides graphic accounts of how this occurs in the United States, and we see no reason that, with greater information available to them, credit agencies would not do the same targeting of the vulnerable.
While the credit rating agencies may not encourage such behaviour it is clear that where banks and other agencies that primarily deal in debt can use information about people's payment history regarding household utilities and especially credit card ownership, they are likely to target their credit instruments at the people most at risk.
NZCCL is concerned at the debt levels and culture of debt acceptance in New Zealand. The government tries to promote savings and spending at the same time, even though research shows that many householder incomes are inadequate to exist on, let alone save. In order to 'grow' the economy the government must increase private spending. The only way this can be achieved for many people is by increasing their debt level. Thus financial commentaries frequently laud the increase in credit card borrowing as a sign that the economy is improving.
The Veda Advantage website does not provide much data about New Zealand. It does however provide horrifying statistics about debt levels in Australia. On the Veda Advantage site is a press release about the biannual Australian Debt Study Report released in April 2011. This report identified that only 57% of Australians were managing their debt satisfactorily, and that “ almost three in every ten Australians who are looking to take on more debt are already in a position of financial hardship”. The figures are probably similar or worse in New Zealand.
The proposed amendment is in fact of limited value to the consumer but of immense value to providers of debt.
Its value to the consumer can only be viewed in the context of the previous powers of the credit rating agencies, which were primarily to inform debt providers of past debts and defaults of the consumer. This new amendment can mitigate the effects of the historical data by presenting a detailed recent history of thrift or good housekeeping.
Its value to the debt agencies is immense. It provides a great deal of personal information for organisations dealing in credit transactions, from insurance companies and mortgage brokers, to banks and investment companies. The changes being currently discussed provide these agencies with details of credit card transactions as well as payment records to utilities. Details of these transactions may be viewed or purchased by a variety of organisations dealing in credit, thus giving them access to people's purchasing processes on a day-by-day basis. They are also valuable in conjunction with other information collected by companies on the consumer, through store cards and purchasing profiles. The debt agencies are able from the information to segment the population on the basis of debt profiles and to target those profiles vulnerable to different approaches regarding debt management.
From our reading of the amendment and its place in the Privacy Code there is nothing to prevent this from occurring.
It means that the onus is now on consumers to check the information on a regular basis and challenge assumptions based on it.
Banks, credit agencies, stores, and ultimately the government itself, make their money from people's debt. If it were not for debt (another word for credit) people would find it difficult to buy houses or cars, they would think again about the second or fourth TV set or the latest electronic gimmick. Many households would not even be able to purchase basic necessities. Debt, not money, makes the modern economy go round. Credit reporting measures not the amount of money people have, but the amount of debt they can sustain. Thus people who have never been in debt are disadvantaged and those that manage large amounts of debt are seen as good risks.
The proposed new powers given to the credit rating agencies may at times be beneficial to some consumers. But unless the Privacy Commissioner places constraints on the collection of such information and on access by the debt agencies to such information, then they can readily lead to the targeting of vulnerable segments of the population by banks, debt providers and retailers, with specific instruments that may increase the consumers' debt levels and develop a cycle of poverty and dependence.
We recommend
that the amendment requires the consent of the consumer at all times before it can be accessed
that the information can be accessed by debt agencies only in ways that prevent the ability to profile the population and to target specific sectors of it
that the changes brought about by the amendment are monitored carefully in terms, not of their benefit to the providers of debt, but of their effect on consumers.
Batch Hales, Chairperson, NZCCL. 25 June 2011
Oral submission to the Law and Order Select Committee in respect of the Sentencing (Aggravating Factors) Amendment Bill.
From the Bill: "The purpose of this Bill is to ensure that the fact that an offence was committed against a Police officer or prison officer acting in the course of his or her duty is taken into account as an aggravating factor at sentencing."
1.1 The New Zealand Council for Civil Liberties (NZCCL) appreciates the opportunity to make an oral submission to the Committee in relation to this bill.
1.2 The two aspects on which NZCCL wishes to focus are the disregard for the provisions of S.9 of the Bill of Rights Act 1990, and, more importantly, the need for balance in addressing any change in the sentencing regime.
2.1 S.9 states that “everyone has the right not to be subjected to ....disproportionately severe ....... punishment.” Crown Law concluded that the bill as drafted is not inconsistent with the rights contained in the Bill of Rights Act, even though the Amendment bill introduces a further factor that is to be taken into account at the time of sentencing. Crown Law does state that “the Bill confirms the common law position”. Unfortunately, there is no further explanation or rationale provided which, in our view, considerably reduces the significance and value of its conclusion.
2.2 NZCCL considers that the addition of a further factor to be taken into account at the time of sentencing clearly amounts to an increase in the severity of the punishment. Indeed, according to the General policy statement in the Explanatory note that accompanied the bill, the sole purpose for adding that factor is to enable a more severe punishment to be imposed when the Judge considers it appropriate to do so.
2.3 Our view is that the Crown Law conclusion is flawed and, as a result, the requirement that the Attorney-General make a report to Parliament under S.7 has been by-passed.
2.4 Existing aggravating factors, as set out in S.9 (1) of the Sentencing Act 2002, relate solely to the circumstances of the offence i.e. the harm of the offence and the culpability of the offender. The proposed additional further factor extends aggravating factors to a new category, based solely on the occupation of the victim.
3.1 The General policy statement also states that “it is appropriate that an aggravating factor be introduced to recognise the important role of police officers and prison officers, and to denounce offending against (my emphasis) them.”
3.2 While there may be some justification in recognising those particular roles, no account has been taken of any offending by (my emphasis again) police and prison officers, particularly in relation to persons who are in their custody. NZCCL considers that any offending by police and prison officers in those circumstances deserves to be denounced at least to the same degree.
3.3 As a broad generalisation, most offenders are likely to have a low regard for the law, little knowledge of its content, and probably shy well away from any significant allegiance to it.
3.4 On the other hand, police and prison officers are expected to have a high regard for the law, considerable knowledge of its content and (significantly) have sworn allegiance to it. In addition, such officers occupy a position where they have a great deal of power over thosewho are in their custody. Sadly, there have been occasions when that power has been abused.
3.5 In view of their sworn allegiance to the law and the considerable power which is exercised by virtue of their position, police and prison officers are required to demonstrate a higher standard of performance than those who are otherwise classified as offenders. When an officer falls short of that standard, particularly in relation to a person within their custody, that officer also becomes an offender, and that offending in turn deserves to be classified in the same manner, i.e. as an aggravating factor.
3.6 NZCCL acknowledges that there are other avenues where the conduct of a police officer can be subject to review. However, our view is that those avenues are additional rather than alternative ways in which a review can subsequently occur, and that it is more important that a visible, balanced and transparent approach is utilised. In other words, that the same sentencing regime govern assaults on and by police officers.
4.1 Fundamentally, an assault involves human beings in an altercation with one another. To introduce the question of occupation into that equation is to cloak the altercation in a manner that blurs the reality that both parties are human beings. As the bill is presently drafted one of those persons is advantaged simply by virtue of their occupation, while the other (usually classified as the offender) is disadvantaged.
4.2 To ensure a balanced approach the bill needs to provide a comparable outcome whenever the offender happens to be a police or a prison officer, viz. that an assault by a police or prison officer constitutes an aggravating factor.
5.1 The bill confirms the common law position that New Zealand sentencing decisions already take into account as a matter of established practice that the victim of an offence was a police or prison officer acting in the course of their duty. Ipso facto the bill is superfluous, and on that basis alone the proper outcome is for it to be discharged.
5.2 However, if the Committee is of a mind that the bill ought to proceed, NZCCL considers that it is essential to incorporate a comparable provision where an offence is committed by a police or prison officer acting in the course of their duty.
5.3 S.9 (1) of the Sentencing Act 2002 requires the court to take into account the following aggravating factors to the extent that they are applicable in the case:paragraph (f) “that the offender was abusing a position of trust or authority in relation to the victim”. This clause indicates clearly that, inter alia, a position of authority constitutes an aggravating factor, which is comparable to the relationship of a police or prison officer in respect of those persons within their custody.
5.4 If the bill is to proceed NZCCL considers that for the sake of clarity, and to ensure balance and transparency, it is essential to include a specific provision to make it clear that an assault by a police or prison officer on a person in their custody is to be regarded as an aggravating factor for the purposes of S.9. The requisite paragraph can be worded along these lines:paragraph “fb that the offender was a constable or prison officer abusing a position of authority in relation to a person within their custody.” Simple, straightforward and balanced.
6.1 NZCCL submits very strongly that this bill be discharged forthwith. However, in the event that the Committee decides to proceed with the bill, it is essential that a comparable provision like paragraph fb above be incorporated into the bill.
The New Zealand Council for Civil Liberties (NZCCL) presents our submission in relation to this Bill, and I make this submission on behalf of the Council.
This Bill has been introduced as a matter of urgency following the decision of the Supreme Court in Hamed & Ors v R [2011] NZSC 101, which held that the covert video camera surveillance undertaken by the New Zealand Police in this instance was unlawful.
Concern has been expressed that there are a further total of some 90 additional operations that are either in progress or are before the Courts where similar covert video camera surveillance has been undertaken, and there is uncertainty as to the degree of acceptability of evidence obtained in that manner.
NZCCL has identified 4 issues that merit comment -
S. 21 of the NZ Bill of Rights Act 1990 states that “everyone has the right to be secure against unreasonable search or seizure, whether of the person, property or correspondence or otherwise”.
There is a great irony where the Search and Surveillance Bill currently before the Parliament over an extended period, and subject to extensive reservations, looks to validate the practice of covert surveillance as though it is on the verge of being implemented, when in fact that practice has already been used for at least 15 years.
The Explanatory Note accompanying the Bill states that, if video camera surveillance is unlawful, it is likely to be found to be unreasonable and in breach of S.21. Given this assessment, it is clear that this current Bill is inconsistent with the provisions of the Bill of Rights Act. It is thus very surprising that for some reason the Attorney-General has again failed to provide a S.7 report drawing that fact to the attention of the House of Representatives.
We acknowledge the validity of the proposition that where the law does not proscribe an activity then that activity is permitted. We also acknowledge the equally valid proposition that where the law does not prescribe an activity then that activity is proscribed. While those two propositions are mutually exclusive, the actual reality is that there is a great deal of activity within the so-called “grey area” which then becomes a fertile ground for litigation when something goes awry.
There is a risk for individuals and for the police when they operate in this grey area. Individuals tend to do so openly, and when something goes awry the “book may well be thrown at them”.
However, the Police tend to do so secretly, and when something goes awry they seek to legitimate their actions. There is clearly a double standard in operation here.
Moreover, the Police quite properly swear an oath to uphold the law which means to operate within its confines. Where an operation appears to require actions outside the law the proper approach is to have the law amended with effect on a prospective rather than a retrospective basis. This ensures that there is an openness about the methodology and that lawyers, judges and citizens are aware of the changed regime.
In an urgent situation an application might be made for a warrant to act outside of the prescribed regime, but in so doing there is no invitation to act in this manner on an on-going basis and virtually at will.
We acknowledge that, after considering submissions to a Select Committee, the members of the House of Representatives have the right to re-frame legislation as they see fit. That is readily accepted when the rules change for the future. It is unacceptable when those rules are changed for events that happened in the past. It is completely unacceptable when the actions involved in those past events were outside the law, and abhorrent when the parties involved in those past events were duty bound to uphold the law, rather than find ways around it.
Those who legitimise past unlawful actions become tainted with the same unlawfulness, although that is usually always denied. What it also does is undermine the notion of personal integrity.
It appears likely that most members of the House of Representatives will have had no knowledge of the practice now disclosed in the Supreme Court decision, and probably no idea that it had already been in operation for more than 15 years. To cover over this practice in haste is an indictment of the process and of those involved in it.
Far better, indeed, to allow existing matters to be determined within the Court environment. It would be no surprise to discover that there are perhaps even worse examples of video camera surveillance already within those operations, and that may be an additional (and covert) factor in the need for both legitimacy and for urgency. There needs to be a proper scrutiny of all those past actions.
The manner in which the Bill of Rights Act is over-ridden with disdain – even a S.7 report is absent – is a cavalier disregard for the rights and freedoms of all citizens. The distorted reasoning that enabled those who are duty bound to uphold the law to act outside it, is an indication of a significant disregard for it. The rush to legitimise a long-time practice, which has only now been fully examined in an holistic manner and found to be unlawful, on the alleged basis that other operations will be adversely affected, is an indictment on both the Parliamentary process and on the members of the House of Representatives.
Tony Ellis has made a submission on the Criminal Procedure (Reform and Modernisation) Bill, raising some issues with the way that the courts treat the intellectually disabled. The full text of Tony Ellis's submission is attached to this article.
Tech Liberty also made a submission about this Bill with a focus on the issues around name suppression. Of particular concern was the provisions around making internet service providers liable for the actions of their users. Read their written and oral submissions.
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Tech Liberty has made a submission on the Copyright (Infringing File Sharing) Amendment Bill.
This is the replacement for the earlier s92A of the Copyright Bill. The original version was flawed on a number of grounds and highly offensive to civil liberties with its lack of due process ("guilt upon accusation") and intrusions into privacy.
The new bill is significantly better but Tech Liberty remains concerned that internet disconnection continues as a possible punishment.
Read the full text of the submission.
The NZCCL Submission to the Foreign Affairs, Defence And Trade Select Committee recommended the withdrawal of all the amendments to the Terrorism (Bombing and Financing) Bill.
This submission arose as a result of a number of amendments to the Bill that substantially increased the powers of the state against any organisation deemed to be ‘terrorist’ even though the definition of ‘terrorism’ could encompass legitimate protest. There was no right for the public to make submissions on those amendments, in a move that we labelled an ‘assault on democracy’.
The Bill was passed as the Terrorism Suppression Act 2002.
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The New Zealand Council for Civil Liberties was invited to make a further written submission on the Sentencing and Parole Reform Bill, also known as the "Three Strikes Law".
The Council's submission was that the Three Strikes Law is inconsistent with the New Zealand Bill of Rights Act 1990 and ought not to be passed.
In one way the Bill was softened from the original in that the third strike, provided it was not murder, attracts the maximum sentence for the offence, rather than life imprisonment. In another respect the final form of the bill was more draconian as it spreads the net wider to catch all those who are convicted of a qualifying offence, rather than only those whose offending is sufficiently serious to attract a qualifying sentence.
The Submission says that the Three Strikes Law is inconsistent with the right not to be subjected to disproportionately severe punishment, the right of those imprisoned to be treated with humanity, and the right not to be punished again for the same offence.
The full submission is attached to this post.
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Tony Ellis, Barrister, has made a submission about the Electoral (Disqualification of Convicted Prisoners) Amendment Bill. Currently prisoners sentenced to longer than 3 years cannot vote. This bill extends that to all prisoners.
Tony Ellis's submission opposes the change and quotes supporting material from the International Covenant on Civil and Political Rights and the European Court of Human Rights.
The full submission is attached.
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