A steady erosion of human rights in New Zealand through legislation is being accompanied by Ministerial attempts to avoid searching scrutiny of these measures, and to silence dissenting voices.

In June 2013 the Law Society reported to the United Nations’ Human Rights Council that in New Zealand, “a number of recent legislative measures are fundamentally in conflict with the rule of law” and in breach of human rights. 

The Law Society also reported that in a number of instances, Supplementary Order Papers and urgency have been used to avoid proper Parliamentary scrutiny of these measures.

Despite the importance of this report for monitoring the quality of democracy in New Zealand, it received little attention in the media. 

Partly because of this, legislative measures in breach of the Bill of Rights have continued to be passed by the New Zealand Parliament, with the use of SOPs and urgency - for instance the Crown Minerals Amendment Act 2013 and amendments of that Act, and the Government Communications Security Bureau Act 2013.

At the same time, efforts have been made to avoid searching scrutiny of these measures outside Parliament, and to silence dissenting voices.  An authoritative, dispassionate report, such as that made by the Law Society on the legislative measures, is needed on the current state of freedom of speech in New Zealand.

A few examples will illustrate why such a report would be timely. 

In the case of the Crown Minerals Amendment Act 2013, various punitive sanctions were proposed for peaceful protests at sea by NZ citizens. 

Sir Geoffrey Palmer, a former Prime Minister, a distinguished constitutional lawyer and an expert in international maritime law, pointed out that these measures were in breach of the Bill of Rights and various international conventions. He also noted that the Attorney-General had failed to vet the bill for compliance with the Bill of Rights, as is required under the Bill's provisions.

In reply, the Attorney-General made an ad hominem attack on Sir Geoffrey and other critics during the debate on the bill, under Parliamentary privilege, without answering their concerns.

In the case of the Government Communications Security Bureau Act 2013, the Law Society submitted that the bill “empowers the GCSB to spy on New Zealand citizens and residents… in a way not previously contemplated and that is inconsistent with the rights to freedom of expression and freedom from unreasonable search and seizure under the New Zealand Bill of Rights Act 1990, and with privacy interests”.

In response, the Prime Minister questioned the impartiality of the Law Society and Dr. Rodney Harrison QC, who had presented the Society’s submission to the Select Committee.

Subsequently, the Attorney General wrote to the Law Society, suggesting that it would be “helpful for me to write to you about the bill and the Law Society’s ongoing contribution to the debate,” and telling the Society that their interpretation of the bill was mistaken. 

After quoting unnamed lawyers who had spoken to him about Dr. Harrison’s role, he added, “At the end of the day, despite these concerns being raised with me, I do not think it would be proper for me to give an opinion on who should appear for the Law Society at a select committee.”  This letter has been published in the Society’s newsletter.

The Law Society responded by saying that the Minister’s interpretation of the bill was wrong, and that when Dr. Harrison spoke in public about the bill, he had been careful to do so as a private individual.

When the Human Rights Commission made a submission that raised significant concerns about the GCSB bill, these were dismissed by the Prime Minister, who appeared to threaten their funding.

And when the Privacy Commissioner raised similar concerns, recommending that the GCSB bill should be delayed until further inquiries could be carried out, these were ignored.

During the public debate on the GCSB bill, Sir Geoffrey Palmer and Dr. Rodney Harrison QC spoke out about its constitutional implications, while I addressed its implications for democratic rights and freedoms in New Zealand.

In reply, the Attorney-General made ad hominem attacks on Harrison, me, Sir Geoffrey and other critics of the legislation during the debate on the GCSB bill, under Parliamentary privilege, and without answering the concerns that had been raised.

These attacks on independent agencies and offices, and on individuals suggest a campaign of intimidation, aimed at deterring all those who oppose the erosion of human rights in New Zealand from speaking out, and making them afraid to ‘put their heads above the parapet’.

Similar efforts have been made to silence those asking searching questions in the media about these matters, for instance Rebecca Wright from the Campbell Live programme when she questioned the Prime Minister about the GCSB legislation.

For another example, see an exchange between the PM and journalist Alastair Thompson about the GCSB bill in a press conference, which has gone viral on You tube.

A pattern of efforts to avoid searching debate about the erosion of human rights in New Zealand, and to silence dissenting voices is evident.  An authoritative, dispassionate report on the state of freedom of speech in this country is needed.  

Perhaps colleagues who are specialists in human rights law, media studies or political studies could assist.

In submitting its report to the United Nations, the Law Society argued that the "protection of human rights [in New Zealand] depends on rigorous scrutiny of policy and legislation, close adherence to the rule of law, and political restraint where rule of law concerns or inconsistencies with human rights standards are identified".  

They are correct, but this is not what is happening at present.

Like the Law Society's report, this report could be submitted to the Human Rights Council of the United Nations.  Such a report could also consider the implications of the new Government Communications Security Bureau Act and the Telco Intercept Bill for the freedom of speech in New Zealand.

Comments (6)

by Andrew R on August 25, 2013
Andrew R

Yes Mr Findlayson's personal attacks during the third reading were disgraceful.

Further, he misrepresented the powers of the GCSB given in the 2003 Act, and used that misrepresentation to justify his false claim that no increase in GCSB powers was proposed.

He is not alone amongst cabinet ministers for such behaviour, with the leading exponent being John Key.

Not the behaviour of a responsible and diligent Attourney-General.

 

 

 

 

 

 

by Katharine Moody on August 26, 2013
Katharine Moody

I too find this subject very disturbing. The type of behaviour by this executive is not limited to the legal profession/legal matters.

http://news.bbc.co.uk/2/hi/programmes/hardtalk/9480610.stm

John Key in this interview when questioned about facts associated with the state of our environment, says; '.. he [Dr Mike Joy] is but one scientist, and .. a bit like lawyers, I can find you one with an opposing view..'  I find this telling of the way the PM thinks. This is how he leads and those around him, like Finlayson and others, simply follow suit.

Here is an exchange in the House regarding PCE, Jan Wright's submission on the proposed ETS changes to a select committee;

http://www.parliament.nz/en-nz/pb/debates/debates/50HansD_20120912_00000008/questions-for-oral-answer-—-questions-to-ministers

Grant Robertson: Has the Minister spoken to the chair of the select committee today, who drew into question Dr Jan Wright’s independence and impartiality—

Hon Member: No, he didn’t.

Grant Robertson: —sorry, one of the members of the select committee, who today drew into question the impartiality and independence of the Parliamentary Commissioner for the Environment, simply because she had raised concerns that this Government continues to subsidise polluters at the cost of taxpayers?

Mr SPEAKER: In so far as the Minister is responsible, the Hon Simon Bridges.

Hon SIMON BRIDGES: No. Look, the commissioner is entitled to her views, but so are the members on this side of the House.

Our Ombudsmen were treated very similarly with respect to their submission on  amended to the Education Act with respect to excluding Partnership Schools from OIA and Ombudsman's Act provisions.

Our Officers of Parliament are one of the very few checks on executive power - when an executive outright ignores these individuals it is in my opinion very serious.  

by Anne Salmond on August 26, 2013
Anne Salmond

All such instances should be documented.  At present, many New Zealanders appear to be afraid to speak out on matters of public importance, fearing similar attacks upon their careers and/or reputations.

This kind of intimidation puts at risk democratic freedom in New Zealand.  It breaches the Bill of Rights - Section 13 (Freedom of Thought) and Section 14 (Freedom of Expression), and the Universal Declaration of Human Rights - Article 18 and Article 19. 

Attacks upon the independence of Parliamentary Officers such as the Ombudsman, the Parliamentary Commissioner for the Environment and the Controller and Auditor General are particularly serious, since these offices were created precisely "to provide a check on the arbitrary use of power by the executive." 

 

 

by Anne Salmond on August 27, 2013
Anne Salmond

Katharine - many thanks for reminding us about the roles of the Ombudsman, the Parliamentary Commissioner for the Environment, and the Controller and Auditor General.  The Official Information Act is also involved, as you note, along with Parliamentary Services.  

Clearly in the Andrea Vance case, the independence of Parliamentary Services was severely compromised, along with the freedom of the press.  

As you note, the oversight of the Ombudsman and the Auditor General and the OIA has been specifically excluded from the Charter Schools legislation, and I gather that this has also happened in other recent Acts.

In addition, the powers of the Executive will be greatly increased if the proposed amendments to the RMA are passed, at the expense of local communities and local government.

Under the GCSB Act 2013, the powers of mass surveillance of a highly intrusive kind have also been augmented; and all of the effective checks and balances on those powers trace back to the office of the Prime Minister (of whatever party).

It seems that a striking aggregation of Executive power is under way in New Zealand, along with a significant weakening of independent checks and balances.

Under the 'critic and conscience' requirement laid out in the Education Act, it would be good to see analysis from expert colleagues that tests this proposition, while exploring the constitutional implications. 

And thanks to Andrew Geddis for starting the discussion with his article, 'I think National just broke our Constitution'.

 

by Philip Grimmett on August 31, 2013
Philip Grimmett
Thanks for your bravery Dame Anne. We need more passionate and concerned Kiwis to speak out. My eyes were opened when a short, damaging video clip of the PM was 'removed' very quickly from the parliamentary TV record. This was the fellow attempting to fall into the debating chamber, just prior to the last election. It's been getting steadily worse from then on. The media are finally waking up to seriousness of our situation when their privacy has been violated. Hahaha. All power to restoring our democracy.
by Philip Grimmett on August 31, 2013
Philip Grimmett
Thanks for your bravery Dame Anne. We need more passionate and concerned Kiwis to speak out. My eyes were opened when a short, damaging video clip of the PM was 'removed' very quickly from the parliamentary TV record. This was the fellow attempting to fall into the debating chamber, just prior to the last election. It's been getting steadily worse from then on. The media are finally waking up to seriousness of our situation when their privacy has been violated. Hahaha. All power to restoring our democracy.

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