RNZ: Protesters condemn govt’s Manus Island silence

Emile Donovan

 

The government is being urged to take a stand against Australia’s policy around asylum seekers, four years on from the official re-opening of the detention centre on Papua New Guinea’s Manus Island.

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About 30 people attended a protest at the Australian Embassy in Wellington today. Photo: RNZ / Emile Donovan

On this day four years ago, 19 July 2013, the Australia government under then-prime minister Kevin Rudd agreed a deal to detain all asylum seekers arriving by boat at a detention centre on the island while they were being processed.

Shortly after, another detention centre on the remote Micronesian island of Nauru was also reopened.

Those assessed and deemed legitimate refugees were allowed to resettle in Papua New Guinea.

The decision was met with local and international outrage, with detractors saying the decision was inhumane, and unfairly punished refugees.

There have been well-documented reports of human rights abuses of asylum seekers on both islands.

The high cost of detaining the asylum seekers has also been heavily criticised, with reports citing figures up to $7.5 billion.

According to the Australian government’s website, more than 1250 people were being detained at both detention centres as of last October.

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Protesters outside the Australian Embassy. Photo: RNZ / Emile Donovan

About 30 people turned up to a protest today outside the Australian Embassy in Wellington, urging the New Zealand government to flex its ethical gumption and condemn the Australian government for its actions.

One of the protesters, Victoria Quade – who was born in Melbourne but has lived in Wellington for 30 years – said Australia’s treatment of desperate people was shameful.

“I teach English to migrant and refugees. They’re people. I don’t know if I could cope with this kind of thing that some of my students have faced and that’s why I’m here.”

The protest was organised by Amnesty International’s New Zealand branch.

Amnesty International New Zealand's executive director Grant Bayldon.

Grant Bayldon. Photo: RNZ / Emile Donovan

Its executive director, Grant Bayldon, said New Zealand’s passiveness in refusing to take a stand against its Antipodean neighbours was unconscionable, and flew in the face of the country’s principled past.

“The New Zealand government has been vocal speaking out on human rights abuses in other countries around the world, like Saudi Arabia and Iran, but it’s been completely silent on the issue of the abuse of asylum seekers and refugees in offshore detention by the Australian government.

“We definitely need to hear much more from the New Zealand government on this issue.”

Finally, hope for victims of domestic violence… Catriona MacLennan, Newsroom

 

Can domestic violence victims finally hope that the Family Court will start applying the Domestic Violence Act properly and provide them with the protection the law was designed to give them?

The Court of Appeal has handed down the most important decision on the act since it took effect more than 20 years ago.

The Domestic Violence Act was passed in 1995, following an inquiry conducted by retired Chief Justice Sir Ronald Davison after Alan Bristol killed his three daughters in 1994.

Sir Ronald recommended the law be strengthened to better protect domestic violence victims.

Parliament passed a new, tougher law. But, almost immediately, concerns arose about how Family Court judges interpreted and applied the law.

I was one of a group of lawyers in 1999 who organised a meeting with Family Court judges to discuss with them our concerns about how hard it was to obtain urgent protection orders.

Protection orders are the key mechanism under the act designed to keep women and children safe.

I spoke to judges at that meeting about my concerns with the irrelevant considerations being taken into account when judges decided whether or not to grant protection orders.

I have dealt with a case in which a judge refused to grant a final protection order because the parties were young.

That is not a criterion under the act for declining an order.

I have also dealt with cases in which a judge refused to grant a protection order because the women and children were in a Women’s Refuge and he thought they were safe.

That is not a criterion under the act for declining an order.

One judge said he thought about what was fair to the violent partner when he ruled on orders.

That is not a criterion under the act for declining an order.

A judge also said that physical violence within the past few days was required in order for an urgent protection order to be granted.

That is not what the Domestic Violence Act says.

My experience of misapplication of the law has been shared by many other family lawyers over the past two decades – and women and children’s safety has been compromised as a result.

That is why the Court of Appeal’s decision is so important.

It spells out very clearly and directly that the Domestic Violence Act is to be interpreted in plain language and to give effect to its purpose of protecting domestic violence victims.

A Family Court Judge had ruled that an interim protection order granted to SN should be discharged.

That is almost invariably the end of the matter: domestic violence victims are primarily trying to stay alive and keep their children safe.

They don’t have the time, money or energy to fight court cases. In addition, when they go to the Family Court seeking protection, it is a massive knock-back when they are disbelieved and their fears and experiences of violence are belittled and disregarded.

But SN and her lawyer fought on. They went to the Court of Appeal.

Our country has the highest reported rate of intimate partner violence in the developed world and the law designed to protect women and children has been wrongly interpreted for two decades.

Three judges heard the appeal and their decision was delivered by Justice Harrison.

He reviewed the physical and psychological abuse suffered by SN. This included two events of body slamming; Mr MN’s erratic and explosive temper; swearing and yelling; repeated breaches of the protection order; and the burning of hedge trimmings following an argument.

The Family Court judge looked at each event in isolation, and minimised and excused MN’s actions. He found that there had been only one event of psychological abuse and there had been no physical violence.

The Family Court judge said that some actions were explained by the stress of dividing the couple’s property and that SN was an “assertive and strong” person who did not need protection. He also said that one violent event had occurred “a considerable period ago” and that MN was well-regarded by his employer.

The Court of Appeal ruled that the Family Court judge was utterly wrong in his interpretation of the law.

Justice Harrison said that the words of the Domestic Violence Act were “clear and unambiguous”. The law required access to the court to be “as speedy, inexpensive and simple as is consistent with justice”.

“Its controlling words and phrases mean what they say. It is unnecessary to resort to synonyms for phrases like violence, which has a specific statutory definition, or physical or psychological abuse. Judicial overlays or refinements on a self-contained, plainly written statutory code do not assist.”

The Court of Appeal said that a single act could amount to domestic violence. That is what the act very plainly says, but this clear statement has all-too-often been disregarded by Family Court judges.

Justice Harrison said: “It is unlikely a court could rationally refuse to grant a protection order where the behaviour is such as to lead to reasonable fears for safety based on being subjected to a pattern of recent serious domestic violence, unless there are very strong indications to the contrary.”

What is crucial about the Court of Appeal’s decision is its statement that the pattern of behaviour should be looked at.

This is vital in domestic violence, as there is generally an ongoing sequence of verbal and physical abuse.

(That is why it is important that New Zealand now has a Family Violence Death Review Committee which goes back and reviews in detail every domestic violence homicide in this country. Doing that brings into stark relief how important it is to take early violence events seriously: if action was always taken after the first violence, women’s and children’s lives could be saved.)

The Court of Appeal criticised the Family Court judge’s approach of assessing each event separately and concluded that MN’s behaviour was “plainly abusive”.

Justice Harrison listed the irrelevant considerations taken into account by the Family Court judge and said that the Family Court must “focus on the effect of offending behaviour rather than speculate on its cause”.

The Court of Appeal held that the Family Court had set an unacceptably high threshold for behaviour to qualify as physical or psychological abuse. The Family Court judge had failed to address the mandatory consideration of whether MN’s behaviour formed a pattern against which SN needed protection.

The Court of Appeal granted SN’s appeal and ordered that a protection order be made to take immediate effect.

I and other anti-domestic violence campaigners have waited years for this judgment. What is needed now is for every Family Court judge to read it thoroughly and start applying the clear words of the Domestic Violence Act in the way they were intended to protect women and children.

Our country has the highest reported rate of intimate partner violence in the developed world and the law designed to protect women and children has been wrongly interpreted for two decades.

The Court of Appeal decision spells that out clearly and tells the Family Court how to get it right from now on.

Government searches for prison panacea

 

14 JUL 2017

The Government has been unapologetic for the record high prison population, but that confidence may be beginning to waver. Shane Cowlishaw reports.

Corrections Minister Louise Upston has sought advice about how to curb the surging prison muster, but what those options are remains a secret.

It comes as New Zealand’s prison population is forecast to keep rising, with the possibility a new prison facility may not be big enough to cope.

In February, the Department of Corrections responded to a request from Upston for an “initial set of options” that could reduce the population.

Newsroom requested a copy of the briefing under the Official Information Act but it was heavily redacted, including all details about the ideas presented to the Minister, on the grounds of protecting the “confidentiality of advice” of officials.

Several other documents on the prison population have also been withheld in full.

New Zealand’s prison populations sits at about 10,200 – the highest it has ever been.

Last year it was announced $1 billion would be spent building another 1800 prison beds, most of that going towards a new 1500-bed facility at Waikeria Prison in Waikato to open in 2020.

Now Corrections has confirmed that it has briefed the Minister on the possibility of boosting Waikeria’s capacity by another 500 beds to 2000. No detailed costings or plans have been provided to the Government and the matter has not gone before Cabinet.

Kelvin Davis, Labour’s Corrections spokesperson, praised Upston for wanting to address the issue but was shocked the suggestions of how to do so had been withheld.

“Why they would redact suggestions beggars belief because surely we have to have a discussion around the various options and just because Corrections gives advice doesn’t mean to say it’s Government policy.

“What they’re suggesting is not of national security significance, what they’re scared of is people saying they’re going soft on crime.”

While much information is withheld, the briefing does contain some insight into how the prison population has risen so high – a surge of 20 percent since 2014 – and the tough decisions looming.

“Long term, the Government will have a choice between the extent of additional investment in prison capacity, or policy and investment decisions across the justice sector that ‘pull back’ the demand curve,” the briefing says.

“To be effective given the size of forecast increases, these decisions would likely need to involve changes to existing settings.”

The rapid rise in prisoner numbers took the justice sector by surprise, with the briefing noting it was unexpected and had led to “substantial pressure” on prisoner accommodation and services.

The document reveals that some of the redacted options for reducing the population had been presented to Upston’s predecessors in 2015 and 2016, but whether they were acted upon is unknown.

Upston herself refused to reveal what options had been provided to her, stating a range of ways to reduce pressure on the justice sector pipeline were being considered with a report due in November.

Bail Act blowout

At the National Party conference last month, Upston appeared onstage with her justice sector counterparts Paula Bennett and Amy Adams.

The trio thrilled the crowd, with Upston and Bennett putting the record prison muster down to fantastic work from the police.

“Criticism of police is not justified because we have more people in jail than ever before,” Bennett said.

Corrections Minister Louise Upston has been briefed on a range of options on how to reduce the prison population, but won’t say what they are. Photo: Lynn Grieveson

But the Corrections briefing squarely points the finger at law changes that have seen the remand population balloon.

In 2013 the Government changed the Bail Act to make it tougher to get bail, particularly for violent and drug-related crimes.

The briefing reveals that in reality, the changes led to a need for 10 times the number of prison beds initially estimated.

When the policy was designed, justice officials believed a mere 50 extra beds would be needed each year, but actual demand was for an additional 500.

Restorative justice changes had also created demand 10 times the original estimate of 10 beds a year.

It would be “useful” to understand why these figures had been so wrong, the briefing says.

Immediate, targeted funding focused on remand offenders was recommended to reduce the pressure.

Legislative amendments to victims’ rights and sentencing laws plus a tougher stance on family violence has also likely played a part.

In 2011 the Government also passed the Criminal Procedures Act in an attempt to streamline the court system.

But the briefing described the changes as a failure, with no improvement in court disposal times.

Upston was unavailable for an interview, but in a written statement said the record prison population had been foreseen by her predecessor Simon Power in 2010.

While it was high, it was only a 23 percent rise since 2009 compared to a 40 percent increase that had occurred under the previous Labour Government.

She said the best way to reduce the prison population was to prevent people from entering the system and the Government’s social investment approach was designed to do this, through reducing risk factors such as alcohol and drug addiction, family violence, and mental illness.

“We know that the earlier we intervene, the greater the likelihood will be of preventing offending and victimisation.”

“We have a tolerance, indeed some could argue an enthusiasm, for a high incarceration rate.”

Davis described the Bail Act changes as short-sighted as the more people you locked up, the more people there were that would eventually come out worse off.

He accepted that previous governments had also neglected to address the issue of a rising prison rate, however.

“That’s a fair comment, Corrections is an area that governments have been too afraid to touch because they’ll be seen soft on crime, but the reality is we need to be smart on crime.”

Tracey McIntosh, professor of indigenous studies at Auckland University, said the rising prison rate meant the disproportionality in terms of Māori incarceration rates were intensified.

It was critical to look at policies to prevent people being sent to prison rather than those aimed at locking them up, such as addressing the drivers of crime and social harm, she said.

“We have a tolerance, indeed some could argue an enthusiasm, for a high incarceration rate.”

Deporting prisoners early

One option that has been considered by the Government is deporting non-New Zealand citizens before the end of their sentence.

In a separate briefing obtained by Newsroom, Corrections provided Upston with advice on the current policy after she requested details.

The Minister of Immigration holds the power to release offenders to be deported early, but they must be serving a sentence of less than two years or have served a substantial portion of their sentence.

Michael Woodhouse, current Immigration Minister, has only granted one early release since 2013 while the number of prisoners liable for deportation is just 227.

Corrections raised several problems with adopting earlier deportations, including that it was unlikely the offender would be subject to any oversight when returned to their country.

“Changes to deportation policy may therefore have diplomatic implications for New Zealand,” Corrections said in the advice for the Minister.

“New Zealand does not enter into prisoner exchange agreements with other countries in order to allow prisoners to serve out their sentence in their country of origin.”

The idea has shades of Australia’s controversial law change in 2015 that has seen scores of New Zealanders sent back to their birth country.

The development caused outrage, with offenders who had lived for most of their life in Australia separated from their families and many offending soon after arriving back in New Zealand with no support systems.

Upston declined to answer questions on the subject, stating it was an immigration matter.

Former police officer sentenced to home detention for snooping on 21 women

Former Police Officer Jeremy Malifa arrives at Auckland District Court for an earlier appearance.

DAVID WHITE/STUFF

Former Police Officer Jeremy Malifa arrives at Auckland District Court for an earlier appearance.

An ex-police officer who admitted using a police data base to snoop on 21 women has been sentenced to 400 hours community work and six months community detention.

Jeremy Malifa, 34, was sentenced at the Auckland District Court on Tuesday after earlier pleading guilty to 21 charges of accessing police computer systems to retrieve personal information on 21 women.

He will also serve 12 months of supervision and was ordered to pay $200 to each victim.

In court on Tuesday, Judge Heemi Taumaunu called Malifa’s behaviour “predatory, calculated and manipulative”.

The offending took place between 2010 and 2016.

Malifa was sworn into the police force in 2008 but resigned at the end of 2015 as a result of his offences.

He used the police system to look up women he was attracted to and who he thought would be susceptible to his advances, Judge Taumaunu said.

He searched all of his victims multiple times, using details given to him as an officer and details of victims sourced outside of work.

Malifa used the police database to gain cellphone numbers, home addresses and personal information.

With multiple victims he went to their homes as an officer and would later send text messages.

He began sexual relationships with eight of the victims.

One victim, who he tried but failed to have a relationship with, was 13 years old at the time.

Some victims were met at crime scenes he attended as an officer, others were met on police training courses and outside of work.

He also used an alias.

The names of the complainants are suppressed.

Malifa and his wife had separated but Malifa continued to support her and their children, defence lawyer Graeme Newell said.

Malifa cried in the dock as the judge addressed his behaviour.

Judge Taumaunu said Malifa’s repetitive offending over six years was a gross breach of trust within the New Zealand police force and victims.

“Sentencing you today, it’s important to impose a sentence that holds you accountable for your offending.”

Judge Taumaunu began at a starting point of two years  and eight months imprisonment, which was lessened by Malifa’s guilty plea and personal factors.

He also noted Malifa was remorseful for his actions and suffered from mental health issues.

But Judge Taumaunu took the opportunity to warn other officers that a starting point of two years and eight months imprisonment would be held for any officer who grossly misused the police data base.

“This also sends a message to other police officers of general deterrence,” he said.

After the sentence was imposed, Auckland City Police District Commander Superintendent Karyn Malthus said the offending was “wholly distressing for the victims”.

“It has also undermined the efforts of the thousands of NZ Police officers who carry out their duties every day with the highest standards of integrity and professionalism.”

Malthus said police wanted to acknowledge the victims in this case. “We thank them for their willingness to assist our investigation, and we apologise to them on behalf of NZ Police.”

Malthus said that in November 2015, police received information that Malifa had approached a woman “via inappropriate means” during his time as a police officer, and an internal investigation was launched.

“Further information was obtained and a criminal investigation was subsequently launched that continued for many months.”

Malifa resigned from the police in December, 2015.

Malthus said police did not believe any other staff were involved or complicit in his offending.

“The use of the police database is strictly controlled and all police staff are aware that it is only to be used for the purposes of carrying out policing duties.”

There were systems in place to control and manage user access to sensitive information, she said.

“In the past the monitoring mechanisms have largely been manual and randomised.  Police now have a system capable of automatically monitoring, detecting and reporting unacceptable or anomalous user behaviours that would not be consistent with police Information security policies or police values.”

 – Stuff

Investigation: NZDF blunders again over NZSAS raid as fresh details emerge

7 Jul, 2017 11:36am

NZSAS troopers leaving a Chinook helicopter in Afghanistan. Photo / NZDF

There has been a second embarrassing blunder over photographs taken during the top secret NZSAS raid in Afghanistan called Operation Burnham.

First the NZ Defence Force said there were none – and the NZ Herald showed it was wrong.

Then they said there was only one camera taking photographs – and now the Herald has proved that was wrong too.

The NZ Defence force is blaming an “administrative error” but it has led to further claims of a cover-up.

The details have emerged through Herald inquiries into the allegations made in the book called Hit & Run, written by journalists Nicky Hager and Jon Stephenson, which claimed six civilians were killed and 15 wounded during an attack motivated by “revenge”.

Until then, NZDF called claims of civilian deaths “unfounded” and allowed former Defence Minister Wayne Mapp’s statement that it was “false” to stand for six years.

The book forced NZDF to shift position, saying “unfounded” actually meant it was possible civilians had been killed, although it has strongly denied claims of “revenge”.

Instead, it has said the raid was to eliminate a threat to the NZDF base 50km away and the nine people killed were armed with automatic rifles, rocket-propelled grenades and machine guns.

The Herald sought copies of imagery from the raid, having been told by military sources that NZSAS troopers often wore cameras on missions to record events and that soldiers used cameras to exploit intelligence. 

In the case of the Operation Burnham mission into Baghlan province – supported by US helicopters and other aircraft – the mission had specific people it was targeting.

The Operation Burnham raid came after New Zealand’s first fatality in the Afghanistan deployment and targeted two villages about 50km from the base of our Provincial Reconstruction Team in the mountainous Bamyan region.

Military sources said the NZSAS soldiers would have been trained to recover information – and even DNA – which would allow intelligence specialists to identify whether those targets had been killed.

NZDF initially responded saying: “No video or still imagery was taken by the NZDF during Operation Burnham.”

But the denial conflicted with information the Chief of Defence Force Lieutenant General Tim Keating made public in a 17-page media briefing about the raid after the book’s publication.

Defence Force Chief, Lieutenant General Tim Keating, during a press conference in Wellington on the allegations made in the book Hit & Run. Photo / Mark Mitchell

Defence Force Chief, Lieutenant General Tim Keating, during a press conference in Wellington on the allegations made in the book Hit & Run. Photo / Mark Mitchell

NZDF backtracked, saying the photographs had been “overlooked” and “it would have been more correct to say that the photos provided in the slide are the best of the few photos taken of the arms cache discovered during Operation Burnham”.

The three photographs showed ammunition said to be found during the raid, including machine gun, and a rocket-propelled grenade launcher with ammunition.

NZDF stated: “We are not aware of any other still imagery captured by the NZDF during Operation Burnham.”

The Herald then sought through the Official Information Act details of the photographs taken during the raid, asking for copies of the electronic files which would include metadata revealing the time and place the images were taken.

NZDF chief of staff Commodore Ross Smith then provided computer file information for five photographs – not the three the military conceded existed – and said the images were “captured on a New Zealand camera”. 

He said it was “the file information that the camera gave to the photographs”.

Examination of the file information showed that four of the images were recorded in a different file format from the fifth image, strongly suggesting there was more than a single camera.

It also raised questions about further photographs, as the standard operating practice for “sensitive site exploitation” – the intelligence-gathering technique used on raids such as Operation Burnham – meant it was unlikely the NZSAS took only a single photograph.

Again NZDF backtracked: “Two cameras were used to capture the images provided.”

In a statement apparently in reference to the camera with a single image, he said: “Given storage capacity limitations with that camera only the single image of the RPG (rocket-propelled grenade) was retained following the operation. Other images have been deleted.”

The Herald had questioned why the cameras were not used to capture images of those killed – a standard practice in post-battle intelligence-gathering.

“The body of only one insurgent was checked by NZDF personnel. They were not equipped with a camera and given the prevailing operational conditions it was not feasible to undertake any further action in respect of the deceased.”

While the NZSAS did not have to contend with incoming fire from an opposing force, it did have to contend with a seriously injured soldier who was hurt when a wall – weakened by air support – collapsed.

The claim only a single body was checked is a key detail given NZDF’s insistence that it killed insurgents during the raid and Hit & Run‘s counter-claim that civilians were killed.

The single body checked was likely to have been the person shot and killed by the NZSAS sniper team watching over the target area.

US video of the raid has not been released but both the Apache helicopters and the AC130 Spectre gunship that fired in support of the NZSAS on the ground have cameras capable of picking up clear ground movement – including whether people are carrying weapons.

But the claim only a single body was checked means there was a lack of after-battle identification to establish whether those killed were the people targeted and whether civilians had been killed.

It would also leave it unclear as to whether any armed people killed were “insurgents” or the armed groups known to rove the Hindu Kush mountains trafficking poppies to the north.

One of the five photographs NZDF says remain from the NZSAS raid in 2010.

One of the five photographs NZDF says remain from the NZSAS raid in 2010.

It adds context to NZDF’s ability to respond to the claims in Hit & Run. The inquiry carried out the week after the raid by two Afghan government agencies and the International Security Assistance Force did not actually visit the area.

There has been no other boots-on-the-ground inquiry.

Without the NZSAS inspecting the bodies while there, it was never able to be categorical about civilian deaths. It raises questions about why it allowed it defence minister’s absolute denial to stand.

It appears the NZSAS had time to make a wider sweep of the area. The first helicopter landed about 12.30pm and the weapons believed to belong to the insurgents were secured by 1.55am – the photographs from the two cameras were taken between 1.44am and 1.53am.

It could be the injury of the NZSAS trooper from the wall disrupted plans to do so. From the chain of events in the book, the injury happened after the weapons were secured.

The NZSAS and supporting Afghan troops left the area at 3.45am, by NZDF’s timeline.

Authors Nicky Hager, left, and Jon Stephenson during the launch of their book, Hit & Run. Photo / Mark Mitchell

Authors Nicky Hager, left, and Jon Stephenson during the launch of their book, Hit & Run. Photo / Mark Mitchell

Intelligence analyst Dr Paul Buchanan, who worked on counterinsurgency at the Pentagon, said the injury would have changed the scope of the mission. “That would explain putting serious fire (from air support) in the perimeter of where this guy was evacuated.”

Buchanan – who has been involved in counterinsurgency operations in Central America with United States forces – said the checking of only a single body “strains credulity”.

“You would think they would take DNA and photographs of these people so they could confirm they had a ‘good kill’ and got the ‘bad guys’.”

If they had found that those killed included women and the child said to have died, then there would be “no need”.

One of the five photographs NZDF says remain from the 2010 NZSAS raid.

One of the five photographs NZDF says remain from the 2010 NZSAS raid.

“Maybe that’s why there wouldn’t be any photographs or DNA.”

He said air support video of those who were killed might show weapons being carried but that did not help with identity.

“Even from the height of the AC130 they’ll be able to see these people are carrying weapons. If these guys were sheepherders, I wouldn’t be surprised if they were carrying rifles.”

The shifting position over the existence of photographs and the one camera which became two cameras also came in for criticism from Buchanan.

He said there was evidence of a “cover-up culture” in NZDF. “There seems to be at (senior level) a reluctance to admit mistakes happen.”

Hager said it was hard to accept the issues around the cameras and photographs was an “administrative error”.

“It completely lacks credibility to suggest the SAS would go on their biggest and most important raid in their whole time in Afghanistan and take just five photographs.

“The idea on such an important raid they would delete all but five photographs because they would need the space on the cameras just isn’t believable.

“I’m absolutely certain that what we’re seeing is part of the ongoing cover-up.”

Commodore Smith said NZDF had provided all the information that existed.

“NZDF did not overlook the existence of the second camera. It was an administrative error drafting the response to you that was not corrected before release.”

He said the deleted images – which NZDF said had happened to save space on a camera – showed “the same weapons and ammunition shown in images already released”.

“All images not required were deleted several hours after being taken.”

Editorial: Begging and free speech

Cases in the US have come down on both sides of the question of whether begging constitutes free speech.

FILE

Cases in the US have come down on both sides of the question of whether begging constitutes free speech.

OPINION: Is begging free speech? Does New Zealand law protect it? Should local councillors who want to ban the practice – and there are more than a few of them – be stopped from doing so?

These are the questions raised by a fascinating test case in Napier, where three men have pleaded not guilty to soliciting money without permission, an offence under a Napier City Council bylaw.

Alan Cressey, lawyer for two of the men, says he will borrow from overseas cases and submit “that to deny a person the right to ask others for help is the most fundamental breach of freedom of expression possible”. Leading human rights law experts say the men have a strong case under New Zealand’s Bill of Rights Act.

That’s good to hear. Free speech is not a pure good, or the answer to every dilemma, but it is about as close as they come. Most begging is a passive and forlorn plea for aid – unsightly to some, troubling to many, but otherwise not a threatening act. It should be covered by the same broad protections that apply to most people’s talk and communications on the streets.

Of course, the courts may disagree. Similar cases in the United States, a country notable for both its wide protections for free speech and its many beggars, have gone both ways.

Some of the tension hinges on whether begging is “speech” or “conduct”, and, perhaps, on what qualifies as intimidation on the streets.

Clearly harassment and threatening behaviour are unacceptable; clearly the councils and the police have an important role in dealing with that.

Clearly, too, as cynical and tough-minded people will happily point out, some beggars are opportunists who merely call on the kindness of strangers because it works. But most people prepared to sit on the streets and ask for money are subjecting themselves to obvious public humiliation.

Moreover, while many people will choose not to answer the plea, reckoning that the state already provides a basic safety net, some will be moved by sympathy and generosity to give.

And of course they should be allowed to – this, too, is part of the free exchange that is taking place.

So the law should recognise beggars’ rights. But even if it doesn’t, councils should refrain from banning beggars from the streets in the first place – for both moral and practical reasons.

The idea crops up with monotonous regularity now, from Auckland, to Hamilton, to Wellington and further. Even though Wellington City Council rejected a ban last year, retailers and inner-city residents revived the calls this month.

They’re misguided, and Wellington Mayor Justin Lester is right to reject them. Of course no-one likes begging, but forcing people from the streets – temporarily, no doubt – is a solution only for those who see them as a cosmetic problem.

Bans don’t solve the real issues that growing numbers of beggars point to: a broken housing market, under-resourced mental health and drug addiction services, and a class of people struggling and alienated by a society that too often doesn’t have work or a place for them.

Politicians should put their energies into all of that.

 – The Dominion Post

Prison guards to carry pepper spray – Corrections Minister Louise Upston

Corrections Minister Louise Upston says pepper spray is safer than other uses of force.

SUPPLIED

Corrections Minister Louise Upston says pepper spray is safer than other uses of force.

Prison guards will soon be able to carry pepper spray, and use it without getting permission from higher up.

Currently guards can use pepper spray but it is kept within secure storage and requires approval from prison directors to be carried around – usually for high-risk events.

Minister of Corrections Louise Upston said pepper spraying a prisoner is a much safer use of force than others.

Corrections Minister Louise Upston: "It is crucial that Corrections staff are able to immediately control spontaneous ...

Supplied

Corrections Minister Louise Upston: “It is crucial that Corrections staff are able to immediately control spontaneous and potentially dangerous situations to keep themselves and prisoners safe inside prisons and during escorts.”

Pepper spray, also known as mace, is a chemical compound that causes intense pain to the eyes and face, temporary blindness, and some difficulty breathing.

“Pepper spray is a safe tactical option with a lower risk of injury compared with other means of force. It adds to the range of safety measures and tools rolled out in the past few years under the Corrections staff safety programme,” Upston said. 

“It is crucial that Corrections staff are able to immediately control spontaneous and potentially dangerous situations to keep themselves and prisoners safe inside prisons and during escorts.”

Prison officers also have stab-proof vests and body cameras. The pepper spray will be the same police use.

The new rules would come into force in July when the Corrections Amendment Regulations 2017 come into effect.

Upston said all officers would be well-trained in how to use pepper spray safely.

Madeleine Rose, spokeswoman for prisoners’ advocacy group the Howard League, said the use of pepper spray was not “an ideal situation”.

“What would be ideal would if they could talk to them, if they had trained negotiators like the police.”

However she acknowledged that force was occasionally necessary and said her group received far more complaints about holds than pepper spray.

“They can be really heavy and over the top. So I guess using the pepper spray would mean not using those really severe restraints.”

Chief custodial officer Neil Beales said health staff on site would be trained to respond to pepper spray decontamination.

“Custodial staff receive ongoing specialist training in tactical communications, de-escalation and negotiation, including use of pepper spray and what processes staff should follow after use. Pepper spray has been available to prison personnel since 2012, when it was rolled out nationally following a twelve month trial,” Beales said.

He said deescalation would remain the preferred option and that Corrections does employ specialist negotatiors.

 – Stuff

 

Mauritius supported by 94 nations in move to consult The Hague over colonial hold of Indian Ocean territory by British

Chagos islanders protesting in London 2016
Exiled Chagos islanders protesting in London, 2016, over the long bar on their living in the archipelago. Photograph: Fiona Hanson/PA

The UK has suffered a humiliating defeat at the United Nations general assembly in a vote over decolonisation and its residual hold over disputed territory in the Indian Ocean.

By a margin of 94 to 15 countries, delegates supported a Mauritian-backed resolution to seek an advisory opinion from the international court of justice (ICJ) in The Hague on the legal status of the Chagos Islands.

A further 65 countries abstained on Thursday, including many EU states who might have been expected to vote in support of another bloc member.

Among EU members who abstained were France, Germany, Spain, Denmark, Belgium, the Netherlands, Estonia, Latvia, Greece and Finland. Canada and Switzerland also abstained.

Speaking after the vote Jagdish Koonjul, the Mauritian representative at the UN, said: “I’m elated. The results are beyond my expectations. It’s interesting that the EU didn’t support the UK. Even some of the countries that supported the UK agreed that this was an issue of decolonisation. Now we wait to see what the UK will do as a result of the vote. We have given the US full comfort of a long-term lease [for the Diego Garcia base] that would be renewable [if sovereignty passed to Mauritius].”

The resolution, though only in favour of obtaining a non-binding legal opinion, is a blow to the UK’s international prestige and demonstrates the limited diplomatic influence wielded by the British foreign secretary, Boris Johnson, at the UN.

The row between Mauritius and the UK – over what Britain terms BIOT, or British Indian Ocean Territory – has become increasingly acrimonious in recent years.

In 1965, three years before Mauritius was granted independence, the UK decided to separate the Chagos Islands, an archipelago, from the rest of its Indian Ocean colony. The Mauritian government claims this was in breach of UN resolution 1514, passed in 1960, which specifically banned the breakup of colonies before independence.

Most of the 1,500 islanders were deported so that the largest island, Diego Garcia, could be leased to the US for a strategic airbase in 1971. The US was one of the few countries that publicly backed the UK over the islands’ fate. The islanders have never been allowed to return home.

The UK has promised to return the Chagos Islands to Mauritius when they are no longer needed for defence purposes, but has refused to give a date.

Two years ago Mauritius won a ruling at the permanent court of arbitration at The Hague saying Britain had acted illegally in the way it had exercised territorial control over the Chagos Islands. The court criticised the UK for failing to consult over establishing a marine protection zone around what is now the British Indian Ocean Territory.

The fact that Diego Garcia was used by the CIA after 9/11 in rendition and interrogation operations may have alienated many states from the UK’s cause.

Diego Garcia, the Chagos island which hosts a US military base leased from Britain.
Diego Garcia, the Chagos island which hosts a US military base leased from Britain. Photograph: Reuters

Urging delegates at the UN general assembly to oppose the resolution, the UK permanent representative, Matthew Rycroft, warned: “This could set a precedent that many of you in this hall could come to regret.” He added that “the resolution for an advisory opinion is an attempt by the government of Mauritius to circumvent the principle” – referring to the principle that a state could only be involved at the ICJ through its own consent.

The UK, Rycroft added, would not consent to the Chagos Islands being taken to the court. The dispute, he said, should be left as a bilateral issue for the UK and Mauritius to deal with through direct negotiations, and that the Chagos Islands were still needed for security purposes.

Philipe Sands QC, who attended the UN debate, and is acting as legal counsel for Mauritius, said: “The vote, passed with an overwhelming majority, sends a strong signal about the UN’s attachment to decolonisation. That Britain was able to obtain the support of barely a dozen countries, including just four EU members and no permanent member of the security council apart from the US, will, hopefully, give it pause for thought about its position on Chagos.

“Its arguments that Chagos is about security and a bilateral matter between it and Mauritius were given short shrift. The message is clear: the UN wants the world court to rule on Chagos, and seeks the court’s advice and assistance in bringing colonialism to an end.”

Advisory opinions at the ICJ are normally triggered by a formal request from the UN secretary general. The court can request submissions from member states and those involved in a dispute.

Although its findings are normally non binding, the ICJ’s advisory opinions carry some legal influence and moral authority.

The Foreign Office labelled the outcome “disappointing”.

“Sovereignty of the British Indian Ocean Territory is clearly a matter for the UK and Mauritius to resolve ourselves. Taking this dispute to the international court of justice is an inappropriate use of the ICJ mechanism. This is reflected in the fact that over half of General Assembly members did not vote for the resolution,” a Foreign Office spokesperson said.

 

David Snoxell, coordinator of the all party parliamentary group on the Chagos Islands and a former British diplomat, welcomed the UN vote.

“This was a brilliant result for Mauritius and the Chagossians. Apart from the sovereignty issue, now referred to the ICJ, the resolution was a means of bringing to the attention of the UN general assembly the travesty of the UK’s treatment of the Chagossian people since 1965 when the [general assembly] last considered the Chagos Islands,” Snoxell said.

“174 states took part in the debate but only 15 sided with the UK. That sends a clear message to the British government that the UN expects the UK to bring this relic of the cold war to an end.”