Open letter to New Zealand Government regarding NZDF deployment to Iraq

Letter by HRLA executive
Summary by Nirupa George

Yesterday, 16 April 2015, the Aotearoa New Zealand Human Rights Lawyers Association (HRLA) sent an open letter to the New Zealand Government.

The HRLA urges the New Zealand Government to ensure that the NZDF’s military contribution to conflict in Iraq focuses on the protection and promotion of human rights.

The HRLA is calling upon the New Zealand Government to consider withholding NZDF troops’ involvement in training the Iraqi defence forces until it is able to independently verify that human rights abuses are not ongoing.

New Zealand needs to be a human rights leader in this area.

Full text.

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Kris Gledhill book launch: Human Rights Acts: The Mechanisms Compared

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Join us in attending the launch of Human Rights Lawyers Association supporter and member Kris Gledhill’s new book:

HUMAN RIGHTS ACTS: THE MECHANISMS COMPARED

  •  Date: Tuesday 31 March
  • Time: 5.30-7pm
  • Venue: Law Student Centre, Level 2, Building 810, 1-10 Short Street
  • Wine and canapés will be served to celebrate.
  • RSVP: Khylee Quince – k.quince@auckland.ac.nz by Monday 30th March

The aim of this book is to consider the jurisprudence that has developed in these various jurisdictions relating to these mechanics for the promotion of human rights. Relevant case law from countries that have a constitutional approach, such as Canada, South Africa and the United States, is also featured. Chapters cover such matters as the choice between a constitutional and non-constitutional bill of rights, the different approaches adopted as to how legislators are alerted to possible breaches of fundamental rights as Bills progress, the extent of the interpretive obligation, the consequences of failing to reach a rights-compliant interpretation, the remedies available in litigation and any alternatives to litigation.

The book is aimed at practitioners and also at academics and policy makers.

Radio New Zealand covers our International Covenant on Civil and Political Rights submission

Lawyers round on Tribunal funding
A group of lawyers says the Crown shouldn’t be in charge of funding the Waitangi Tribunal.
The Human Rights Lawyers Association complained of what it called a power imbalance between the Crown and Māori groups.The lawyers said there was an inherent tension because the Crown must contribute funds to Māori in order to prosecute claims against the Crown.

Full text.

HRLA gives feedback on draft Fifth Periodic Report for New Zealand under UNCROC  

Summary by Rebecca Thomson

The Aotearoa Human Rights Lawyers Association (HRLA) has made submissions to the Ministry of Social Development on its draft Fifth Periodic Report for New Zealand under the United Nations Convention on the Rights of the Child (UNCROC).

UNCROC confirms the rights owed to children and young people (aged 17 and younger) by their countries. As a state party to UNCROC New Zealand is required to make reports every five years to the United Nations Committee on the Rights of the Child regarding its achievement of the rights set out in UNCROC. New Zealand’s fifth report is due to be filed this year.

The HRLA submission focussed on eight key areas of concern;

  1. New Zealand continues to allow parents to physically discipline their children, despite the Committee recommending an explicit ban on all forms of violence against children.
  2. The Family Dispute Resolution service which has been implemented as a mandatory step before a dispute may be taken to the Family Court does not appear to be working as intended nor funded to the extent necessary, to the detriment of families who are already suffering through a stressful period in their lives.
  3. Children of offenders sentenced to imprisonment are often separated from their parents due to prison bed allocations, and unable to keep in contact with them through skype (for example). All children separated by state law from their parents have the right to maintain their relationship through direct contact with their parents on a regular basis.
  4. Unmarried same-sex couples remain unable to adopt children under the Adoption Act 1955, an unjustified breach of the right against discrimination on the basis of marital status and sexual orientation.
  5. As with the Family Dispute Resolution service, Family Violence Courts and the social services which surround them must be adequately funded. At present there are delays in returning children to their offending parent’s care after sentencing, in cases where their continued separation is not necessary.
  6. Children and young people subject to the Mental Health (Compulsory Assessment and Treatment) Act 1992 are not afforded the same rights as adults subject to the Act, because of a practical lack of resources available for their care.
  7. Similarly, the rights of young people who are incarcerated are often breached because of a lack of resourcing. For example, young people may be held in custodial units with adults (particularly young female offenders, for whom there is no specialist Youth Unit in the country).
  8. Raising the jurisdiction of the Youth Court to include 17 year olds would be consistent with New Zealand’s obligations under UNCROC, and likely to save costs in the long-term by dealing with young offenders in a way which recognises their vulnerabilities and developing psychology.

The HRLA’s conclusion is that many positive steps have been taken under the aegis of UNCROC, but that there is certainly room for New Zealand as a country to improve outcomes for our youngest and most vulnerable citizens. Their  voices must not be lost.

Full submission: HRLA Feedback on draft fifth report for New Zealand under UNCROC

 

Feedback on draft report on New Zealand’s performance under the International Covenant on Civil and Political Rights

Summary by Bryce Lyall

The Government recently released a draft report on New Zealand’s performance under the International Covenant on Civil and Political Rights (“ICCPR”) for public comment.

The ICCPR covers rights like freedom of religion, speech and assembly, the right to a fair trial and electoral rights. Each country that is a party to the ICCPR provides regular reports to the United Nations Human Rights Committee, which reviews countries’ compliance with the ICCPR; however it is not binding on the Government. The draft report responds to specific issues raised by the Committee, and outlines significant developments in recent years related to civil and political rights.

The Human Rights Lawyers Association of Aotearoa New Zealand (“HRLA”) chose to make a submission on the draft report, focussing on the Waitangi Tribunal, Treaty Settlements, Private Prisons, and the Terrorism Suppression Act 2002 (“TSA”). Rebecca Thomson, Cameron Walker and I drafted it on behalf of the HRLA.

The HRLA has concerns over the way that the Waitangi Tribunal is funded. We see that there is a backlog of claims, some of which have waited decades to be heard by the Tribunal. This is not a criticism of the Tribunal, but rather of the funding for it. We also expressed concern over the allocation of resources for future hearings, contemporary claims, and urgent hearings of the Tribunal. Insufficient funding undermines access to justice for Maori, and this must be addressed.

We also raised the issue of Crown treatment of decisions of the Tribunal, stating that the Government should adopt a framework to ensure that Tribunal recommendations are only overridden with sufficient justification, and that steps are taken to mitigate the harm to Maori caused by such actions.

We also raised issues associated with Treaty Settlements. While we note that there is nothing wrong with settlement per se, the figure of settled claims does not reflect the number of claims settled voluntarily. The large number of settlement bills that have gone before Parliament in recent years is regarded by some with a great deal of pride; however many of these settlements have been achieved not with settling grievances in mind, but for political expediency. We are also concerned that the Crown has developed its own settlement policy without meaningful consultation with the groups it seeks to settle with.

We noted that the HRLA is concerned with the proliferation of Private Prisons. We submitted that outsourcing key state powers over our most vulnerable citizens to private, profit-driven companies is a concerning trend. Overseas experiences show that private prisons tend to have lower staffing levels and higher incidences of violence than public prisons.

Finally we set out or concerns with ambiguity over which actions by designated groups are criminalised and the provisions of the TSA.

The finalised report will be submitted to the United Nations Human Rights Committee in April 2015.

 Full submission: HRLA Feedback on draft report on NZ performance under the ICCPR 

Grant Illingworth QC speech “The Right to Leave New Zealand” | 10 December 2014


Under s 18(3) of the New Zealand Bill of Rights Act 1990 everyone has the right to leave New Zealand. By virtue of section 5 of BORA, that right may be subject to restrictions only if the limitations are prescribed by law and are demonstrably justified in a free and democratic society. Once a New Zealand citizen or resident has exercised her democratic right to leave New Zealand, it would seem obvious that she should be able to travel where she pleases without interference from our government. The problem with all this, however, is that:

  • to be able to leave New Zealand and travel overseas, our hypothetical citizen needs a passport, or at least some form of travel document; and
  • s 18 of BORA can be overridden by ordinary legislation enacted under urgency, via a simple majority in a unicameral legislature, without necessarily having full regard to what can be demonstrably justified in a free and democratic society.

On 9 December 2014, by a vote of 94 to 27, the Countering Terrorist Fighters Legislation Act passed into law. Previously, under s 8A of the Passports Act 1992 the Minister could by notice in writing recall any New Zealand passport and cancel it or retain possession of it if:

  • the Minister believed on reasonable grounds that the person concerned was a danger to the security of New Zealand because the person intended to engage in or facilitate certain terrorist activities, and
  • the danger to the security of New Zealand could not be effectively averted by other means and
  • the cancellation would prevent or effectively impede the ability of the person to carry out the intended action.

Similar provisions applied to other forms of travel documentation.

The old provisions did not enable a passport to be cancelled or suspended where the danger in question was other than a danger to the security interests of New Zealand.

Under resolution 2178, the United Nations Security Council recently resolved to require countries to take action to prevent or impede terrorists from travelling to facilitate terrorist activities.

In compliance with that resolution the NZ government announced that (among other things) the Passports Act would be amended to extend the ability to cancel or suspend passports and other travel documents. Following that announcement, on 25 November 2014 the government introduced the Countering Terrorist Fighters Legislation Bill. The last day for making submissions was 27 November 2014.

At Labour’s insistence, the draft Bill had been released to the NZLS a little earlier, under embargo, and by the urgent combined efforts of the Rule of Law committee and the Human Rights committee, a comprehensive submission was made to the Parliament’s select committee – presented by Sir Geoffrey Palmer and Andrew Butler. As a result of that presentation some of the more extreme aspects of the Bill were ameliorated.

The Act is intended to be a temporary measure only pending a more comprehensive review of the relevant legal framework. In line with that objective, the Bill incorporates sunset provisions which set a use-by date in April 2017. This date was brought forward by a year as a result of the NZLS submissions.

The new legislation contains a number of provisions that are very significant in relation to basic rights but my present purpose is to focus only on the passports issue.

Under the old s 8A, the threshold requirement was that the person concerned intended to engage in or facilitate:

  • a terrorist act within the meaning of s 5 of the Terrorism Suppression Act 2002 or
  • the proliferation of weapons of mass destruction or
  • any unlawful activity designed or likely to cause devastating or serious economic damage to New Zealand carried out for purposes of commercial or economic gain.

Obviously the last of these three requirements could not apply to an overseas country, but the first two requirements may be applicable to countries other than our own.  Thus, o comply with the Security Council resolution, the amendment extended the statutory test to include danger to the security of other countries as a result of the intention to commit a terrorist act or the intention to facilitate the proliferation of weapons of mass destruction.

Under the old s 8A there were notification requirements and also a provision which enabled the Minister to apply to a Judge of the High Court for an order to extend the period of withholding of the passport for a further period not exceeding 12 months. The Judge was required to make the order if satisfied of certain specified requirements.

The amendments go further in certain important respects. Under the new provisions:

  • First, the Minister may defer notifying the person concerned for a period not exceeding 30 days if the Minister is satisfied that giving notice sooner would prejudice an ongoing investigation or put the security or safety of any person at risk. Notice is to be treated as given if the Minister has taken all practicable steps to provide that notice.
  • Secondly, the Minister may specify a longer period in the notice not exceeding 36 months if the Minister is satisfied that the person would continue to pose a danger to New Zealand or any other country. But, if the period exceeds 12 months, the person has a right to make submissions and the Minister must give an opportunity to be heard at every 12 month period.

As previously, the Minister may at any time before the expiry of the period apply to a Judge for an order to extend the period for a further 12 months and the Judge must make the order if certain conditions are fulfilled. Potentially, therefore, the restriction on obtaining a passport or travel document could last for a period of four years.

The regime created by the amendment appears to have a basic justification in that international terrorism and terrorist activities are a global problem and it is clearly inadequate to focus on the security of New Zealand alone. All countries have a common concern in relation to terrorism and there appears to be no sensible reason to conclude that each country should focus on its own interests without regard to the effect on the international community. But, having said that, it is arguable that the proposed measures go too far and are procedurally inadequate.

Under s 3 of the Passports Act, every NZ citizen is entitled to a passport, except as provided in the Act. It is extremely difficult to leave New Zealand without a passport or other travel document, so the decision to cancel or suspend a person’s passport or travel document clearly interferes with the right to leave.

Also, the cancellation of a passport or travel document for a lengthy period is undoubtedly a form of penalty from the point of view of the person affected. Indeed to prevent a person travelling abroad for 3 or 4 years is a more severe penalty than would be given for many quite serious criminal offences. It could perhaps be viewed as a kind of mega home detention.

It is a basic component of the rule of law that no one should be punished without having first committed an offence. The idea that a penalty may be imposed because of a perception that the person intends to commit crimes against international law, or against the laws of another country, sits uncomfortably with that principle.

Indeed it could be argued that to impose a penalty, because of an intention alone, amounts to a form of “thought-crime” reminiscent of situations depicted in George Orwell’s famous novel 1984. Interestingly, the scene for those fictional events was the super-state of Oceania, which included Australasia, and the events in question took place under circumstances of intense government scrutiny via advanced surveillance technology.

The effective suspension of a person’s right to leave New Zealand for a period of, say, a few months, might well be seen as demonstrably justifiable in a free and democratic society if the authorities have strong evidence to support the conclusion that the person concerned is actively preparing to carry out unlawful activities of the kind referred to in the Act.

A suspension period of that kind could allow legal proceedings to be brought to substantiate the need for further travel restrictions.  But to impose a passport restriction for a period of up to four years, without the need for formal court proceedings (other than a warrant) based only on the suspect’s presumed intention, seems draconian, excessive, disproportionate and, I suggest, Orwellian.

Human Rights Lawyers Association expresses concerns over Countering Terrorist Fighters Legislation Bill

28 November 2014

Human Rights Lawyers Association expresses concerns over Countering Terrorist Fighters Legislation Bill

The Countering Terrorist Fighters Legislation Bill will dramatically erode human rights and civil liberties if passed in its current form, said the Human Rights Lawyer’s Association Aotearoa New Zealand (HRLA).

The HRLA made a written submission to the Foreign Affairs, Defence and Trade Select Committee yesterday opposing the Bill on the basis it unjustifiably encroaches upon important human rights and civil liberties.

“One of our biggest concerns is that the Select Committee period is extremely short,” said HRLA co-chair Andrew Britton.

“There is insufficient time for analysis and examination of the Bill which means New Zealanders cannot engage in the legislative process in a meaningful way.

“We are particularly concerned about the human rights breaches that New Zealanders will be subject to in relation to passport law changes and giving the Security and Intelligence Service expanded powers for visual surveillance.

 “The HRLA is doubtful about the ‘stop-gap’ nature of this Bill as the sunset clause currently expires in April 2018; this is an extremely long time.

“The Committee needs to turn its mind to how the Bill will operate in practice, as there are a number of concerns with access to justice when dealing with classified or secret information.

“We strongly urge the Government to engage in proper consultation of and engagement with the public and interested parties before the Bill is progressed,” said Mr Britton.

Full submission: HRLA Submission on the Countering Terrorist Fighters Bill

Human Rights Foundation AGM Tonight

Our friends at the Human Rights Foundation have asked us to promote their AGM tonight, featuring a speech by journalist Nicky Hager:

Investigative Journalist, Nicky Hager, will speak at the Human Rights Foundation’s AGM tonight

Date: Tuesday 21 October 2014 at 6.00pm

Venue:

Pioneer Women’s Hall

2 Freyberg Place

Auckland Central

(Drinks and nibbles from 5.30pm)

All welcome. If you wish, you can join the Human Rights Foundation online at www.humanrightsfoundation.wordpress.com or join or renew membership at the meeting.

Congratulations to our newly elected executive!

Thank you to all those who came to our September political panel and annual general meeting.

We would like to congratulate our newly elected executive board, and in particular the new board members elected Bryce Lyall, Rebecca Thomson, and Rosa Polaschek. You can learn more about our leadership and read about our board members here.

Our thanks go out to Nid Satjipanon, Lily Nunweek, Danielle Kelly and Natalie Pierce, who left the executive board at this AGM. We would also like to thank Zyanya Hill, Helena Cook, and Edward Miller who resigned from the board for personal or professional reasons during the 2013-2014 year.

National Party confirmed for political panel

We are very pleased to announce that Chester Borrows of the New Zealand National Party will be attending Thursday’s political debate.  That brings the lineup up to:

  • Hon. Hone Harawira – Mana Party
  • Hon. Maryan Street – New Zealand Labour Party
  • Hon. Chester Borrows – New Zealand National Party
  • Hon. Jan Logie – Green Party of Aotearoa New Zealand
  • Ms Laila Harre – Internet Party
  • Ms Susan Cullen – Maori Party

We are still awaiting responses from Act and the Conservative Party.  New Zealand First have unfortunately declined our invitation.