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.