New Zealand Council for Civil Liberties

Round-up of civil liberty news for November and December 2011. There is also our yearly review.

The past year has seen continuing challenges to the values of privacy, not just from the state, but employers, teachers, and even parents seem to be increasingly disregarding the notion of a right to privacy. It was reported in May that the Government was considering using bracelets for monitoring home detention that could detect the presence of alcohol use through secretions in the sweat, and in a trial of a scheme in the Bay of Plenty police officers were paying visits to known recidivist drunk drivers, even though no complaints had been made just to let them know that police are “keeping an eye on them”.

Schools

In the same month it was also reported that the Secondary Schools Principals Association President announced that most schools now used network managers and teachers to monitor their pupils’ social network sites, such as Facebook and Twitter, for evidence of misbehaviour. Schools were increasingly using other ways of monitoring their pupils outside school activities. Breathalysers and sniffer dogs were increasingly being used by schools to check people for alcohol and drug use at school balls. The teachers, seemingly being increasingly encouraged to see pupils as potential criminals and themselves as acting in the role of police, were given more powers to search students and their belongings, including cell phones, diaries and laptops, and issued with guidelines on how and when to carry out these searches.

The police were concerned about some of these increasing intrusive developments when in September they refused to carry out random sniffer dog searches claiming that they were in danger of breaching the children’s civil rights. The police stated that they were happy to assist principals, but only where there was reasonable suspicion that pupils were carrying weapons or illegal drugs.

Video Surveillance

Employers at Wellington International Airport were found to be using a private investigator to secretly filming employers in their coffee room. One employee who was sacked after being accused of misconduct was given a chance to get his job back after the Employment Court ruled that evidence gathered in such a way was illegal. A law change under the Private Investigators and Security Guards Act has now made such activity legal. The covert use of surveillance by police officers was also bought into question when a ruling in the case of those arrested in the Urewera Raids went against the police and their use of evidence that had been collected through the use of devices placed illegally on private land. The government later passed legislation to suspend the judgment’s applicability to 40 trials and 50 police operations that were already underway.

Apparently, no space is too private to be considered open for surveillance. Wainuiomata High School was just one school that was reported to installing cameras in toilets. The Kaikoura District Council was also reported to be doing the same thing.

Alcohol and Drug Monitoring

There is a seemingly growing desire to screen everyone’s behaviour. The alcohol advisory group of New Zealand (ALAC) wanted to extend the British Royal College of Psychiatrists advice, that all those aged over 65 visiting a G.P. should be screened for alcohol use, to cover the whole population. In a similar move the Social Development Minister Paula Bennett backed drug testing of welfare beneficiaries, amidst claims from the Employers and Manufacturers Association (EMA) that up to 50% of the workforce were now routinely screened for drug use.

Spying on Each Other

The state and employers cannot always observe our behaviour, so individuals are being encouraged to act and think as spies. Software was made available in New Zealand called MyFone, which lets parents remotely see all the numbers called and answered on their children's phones, and the content of all texts. A device was also made for sale and marketed for parents to track their children’s use of a car including its speed and location history.

We were all encouraged to spy on our neighbours when the Security Intelligence Service (SIS) announced the launch of a website where it asked the public to confidentially and anonymously pass on any information that may pertain to threats on New Zealand’s security and way of life. The online form states that “as part of the community you may have information which can contribute to defending and enhancing New Zealand’s security…”. The Security Intelligence Service was also given stronger powers in new legislation passed in July, which led to the Human Rights Commission (HRC) expressing concern about the Act’s diluting the accountability of the already often secretive SIS.

Police Use of Weapons

The appointment of a new Police Commissioner, Peter Marshall, saw the relaxation of the rules surrounding the police and their access to firearms. In May it was announced that every frontline police car was to carry semi-automatic rifles and pistols. Similarly, the access to tasers was relaxed. Police were now able to routinely carry a taser if they felt they were heading into danger whereas previously they had to get permission from a superior. In July, The Sunday Star Times reported that Tasers had been used 102 times in dealing with suspects since their introduction in March 2010. Somewhat concerningly, they also noted that they had been accidently discharged 108 times in the same period.

Race Relations

The issue of race continued to bubble away under the surface of New Zealand society. July saw reports that two bus drivers had refused to allow two Muslim women, who were wearing a veil, admission onto their bus. The bus company claimed the men weren’t racist but merely suffered from “maskophobia” and had been sent for counselling. Nevertheless the HRC said that the incidents appeared to amount to racial discrimination.

The Human Rights Annual Review of Race relations published in March noted that 2010 had seen an increase in the number of complaints made to the HRC about racial discrimination, mostly because of the response to broadcaster Paul Henry’s controversial comments about the Governor General. The report, however, expressed positive comments about the growth of Te Reo Maori, the cultural diversity of Parliament, and the settling of historic Treaty of Waitangi claims, although it voiced concern that stricter laws surrounding the punishment of criminals, such as the three strikes law and the removal of the prisoners’ right to vote, would disproportionately affect Maori. On a similar line, the lobby group, Rethinking Crime and Punishment, called for an inquiry into why the rate of imprisonment of Maori is so disproportionately high. They pointed out that over 40 per cent of adult male Maori have received a prison or community based sentence, at some time in their life, and that this is six times the rate of non-Maori.

Sexual Equality

Research by the Royal Commonwealth Society (RCS) described New Zealand as the best place to be born female in the Commonwealth, but it noted that women earn 72 per cent of the wages of men. The Greens raised the profile of the issue of gender inequality of pay with a bill that proposed that a woman doing the same work as a man should have the right to know his pay. The Equal Opportunities described it as disturbing that a large number of women did not know if they were receiving equal pay. In a response to the Green’s proposal, the head of EMA, Alasdair Thompson, found himself dismissed from his position for his suggestion that women got paid less because their productivity was lower as many of them “took sick days once a month”.

Internet

The notion of Internet access being a human right came under the microscope with the passing of a law that aimed to prevent the illegal sharing of copyrighted files. Under the new law, anyone accused of letting their Internet connection be used to share such files could be fined with very little opportunity to defend themselves.

Summary

It has to be noted thought that a succession of reports throughout 2011 gave New Zealand positive ratings in comparison with the situation in other countries. The most recent, The Democracy Index, compiled by the Economist Intelligence Unit, listed New Zealand as fifth in a table of 165 nations measured across five categories, namely, electoral process and pluralism, civil liberties, how government functions, political participation by the public, and political culture. However despite the good reputation New Zealand enjoys, there is no room for resting on laurels, and the eternal vigilance of a civil liberties group such as the New Zealand Council for Civil Liberties is always necessary if we are to protect the rights we have.

Round-up of civil liberty news for October 2011.

The New Zealand Council for Civil Liberties will be holding its AGM followed by a public lecture.

Public Lecture

The Importance of Protest by Steven Price

A look behind the scenes of the Valerie Morse flag-burning case - how the law in NZ and elsewhere protects protesters and whether it goes far enough.

Steven Price is a Wellington barrister and law lecturer specialising in media law and member of the Supreme Court defence team for flag-burner Valerie Morse.

6:30pm

Thursday November 3rd

Mezzanine Meeting Room

Wellington Public Library

All welcome. Free entry.

The lecture will be followed by tea and biscuits.

Annual General Meeting

The lecture will be preceded by the NZCCL's AGM at 6pm. Visitors and new members are welcome.

Cynthia Laberge was the 2008-2009 InternetNZ Senior Research Fellow in Cyberlaw at Victoria University of Wellington. 

The Introduction to her research on the topic of To What Extent Should National Security Interests Override Privacy in a Post 9/11 World? (published December 2010) follows.  This paper uses international discussion of these issues to inform the New Zealand position.  It discusses how the balance might be found between security and privacy.  This is a complex question and this paper provides a comprehensive guide to what needs to be considered in that balance.

Introduction

• If a bird has two legs, and a man has two legs, a man must be a bird. ¹   
• If a man is suspected of being affiliated with terrorists, he must be a terrorist. ²

Is this where we are headed? In the name of stopping terrorists are we compiling data on innocent people who share a similar profile as those on our "most wanted" lists, and treating them the same?

Since 9/11, the world has become obsessed with terrorism. Understandably so. We expect our governments to protect us, at a minimum from foreseeable acts of violence. It is an onerous commission. But in its zeal to do the right thing, are governments actually doing more harm than good? And in the name of security, are we complicit in sacrificing liberty?

The security/liberty debate is not new. It has been ongoing since the time of Cicero at least ³:

Though liberty is established by law, we must be vigilant, for liberty to enslave us is always present under that very liberty. Our Constitution speaks of the 'general welfare of the people.' Under that phrase all sorts of excesses can be employed by lusting tyrants to make us bondsmen.

But with the law unable to keep pace with technological advances, are we letting technology determine how best to protect us? With oversight and accountability at an alltime low, are the technological programmes that are being put in place to combat terrorism effective? And if so, at what cost?

Regional, national and global databases, containing records on everything from finances and vehicle ownership, to DNA records, are booming. Investment in technologies to analyse and crossreference data in those databases is also booming. The securityrelated goal: to stop the next terrorist attack. Governments justify this previously unprecedented accumulation of data on the grounds that they are faced with an unprecedented threat. If this is true, does it also justify the unprecedented secrecy surrounding our governments' activities?

This paper is an attempt to chart the path we are currently on in balancing national security with privacy and, ultimately, liberty by giving an overview of the cooperative efforts, privacy and counterterrorism laws of four countries (the United Kingdom, United States, Australia and New Zealand) and four international institutions (the United Nations, the OECD, the Council of Europe, and the European Union), and the technologies employed in the fight against terrorism (used predominantly in the United States). It makes no predictions, nor does it presume to present an indepth analysis of privacy or counterterrorism laws, which have already been covered in depth elsewhere by experts.

What this paper attempts to do is provoke thought and stimulate discussion on the direction that the West (primarily) is taking to fight the "scourge of international terrorism." ⁴ And to posit what role we can play in holding government accountable for protecting our security, without unduly sacrificing our privacy, and thereby our liberty.

Read the full article.

Footnotes

1.Professor John Haven Mental Philosophy: Including the Intellect, Sensibilities and Will (Sheldon and Company, New York, 1862) at <www.archive.org>. The original quote reads "All birds are bipeds, no man is a bird; therefore no man is a biped."

2. Department of Homeland Security (DHS), Office of the Secretary, Privacy Act of 1974 (US) 5 USC § 552a Public Law No 93579; Customs and Border Protection Advanced Passenger Information System Systems of Records (23 August 2007) 72 Federal Register 163 4834948353 <www.edocket.access.gpo.gov>.

3. Marcus Tullius Cicero, Roman orator – 106 - 43 BC

4. Resolution on threats to international peace and security caused by terrorist acts UNSC Res 1377 (2001)  <www.un.org>.

As the agency responsible for upholding the law it is obvious that the police have a duty to operate within the law.

It is now public knowledge that the police in New Zealand have been illegally using video surveillance for some years.

The Supreme Court

The Supreme Court's decision in the Hamed case is fairly scathing of the police's deliberate flouting of the law. The Chief Justice wrote:

In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.

However, even after writing these stern words the Supreme Court's decision went on to say that this illegally obtained evidence could still be used in court if the alleged crime was sufficiently serious.

The fix-up law

The Government's reaction was to propose a law that would not only allow the police to keep using video surveillance, but would also retrospectively grant them permission, legitimising their past illegal behaviour. The outcry against this led to the law being watered down somewhat, but it still gave the police the power to legally do what they had been doing illegally.

Why obey the law?

The question has to be - why should the police follow the laws around search and surveillance when:

1. the courts will accept the illegally collected evidence,
2. no one in the police will be punished for breaking the law,
3. if the police do it enough, the government will pass a law to make it legal.

Isn't this missing the point of having limitations in the first place? Aren't we just saying that the police can do whatever they like unless it is expressly prohibited?

In our society it is the people, through Parliament, who get to decide the law and not the police. If the police set themselves up as superior to Parliament and Parliament acquiesces we risk the slow slide into becoming a police state.

Tainted evidence

The police probably don't think they're bad people for breaking the law - after all, they're trying to catch criminals. Indeed they see themselves as the good guys, doing what has to be done to keep people safe. The fact that the courts can accept the evidence provides tacit permission for the police to continue with their illegal behaviour. Catching and convicting criminals is incentive enough.

If the courts rejected this evidence this would remove the incentive for the police to break the law. This is the actual situation in the USA where all illegally obtained evidence is excluded under the "fruit of a poisonous tree" doctrine.

Of course this can lead to the situation where police misconduct can end up in a criminal escaping conviction. However, we already accept this in New Zealand. The main difference here is that instead of a hard and fast rule we leave it up to the judge to decide based on section 30 of the Evidence Act. This already says that the judges should consider "the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith" but it seems clear that they are not giving sufficient weight to it.

We believe that this law should be changed so that deliberate police misconduct leads to the evidence being excluded. Anything else will just encourage the police to keep operating outside of the law.

Punishing the police for breaking the law

If the police have been engaging in wilfully breaking the law - why have the police officers involved not been charged or punished? If the courts accepting illegally obtained evidence is an incentive, the lack of any punishment when caught means that there is no reason not to break the law.

The police have legal powers that other people do not. This surely means that are to be held to a higher standard of behaviour, to ensure that these powers are not abused. When they are abused there needs to be repercussions that will discourage others from doing the same. Moreover, it is unacceptable for people with this lax attitude towards obeying the law to continue working in the police force. The proper

Conclusion

The current situation is unacceptable in a democracy. The police are tasked with upholding the law and shouldn't be breaking it instead. We need to remove the incentives to them breaking the law and ensure that they are punished when they do.

We believe that the law be changed so that evidence is automatically excluded where the police have deliberately flouted the laws in the collection of that evidence.

We further believe that members of the police who deliberately break the law should be charged and, if convicted, lose their jobs. Criminals, even though well intentioned, have no place in the New Zealand police force.

Round-up of civil liberty news for September 2011.

1.0 Introduction

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.

2.0 Issues for Consideration

NZCCL has identified 4 issues that merit comment -

1. the assumption that S.21 of the Bill of Rights Act 1990 can be over-ridden with impunity;
2. the assumption that the Police, who are responsible for upholding the law, can operate outside the law without express authority, and without any awareness on the part of the public; 
3. the need for extreme urgency; and
4. by proposing legislation with retrospective application, there is a reduction in the integrity of the process and, by implication, of those who endorse that legislation.