The LawAid International Blog
This page contains regularly updated content of interest for LawAid International, and other cases of interest around the world.
PHILLIP SMITh: Hair for all
The recent High court decision that prison officials acted wrongly in taking Phillip Smith's hairpiece from him has created public outrage against him and at times Justice Wylie. That outrage is misguided and misses the point entirely. The Judge championed fairness and due process for all, which is yet another example of justice for the people.
The Judge in deciding this case has upheld the very fabric of what it means to be a citizen - with all the rights and responsibilities that attach to each and everyone of us (regardless of our residential situation). Decisions such as this, form part of the fabric of a civilized and fair society. In this instance, the freedom of expression of one of our citizens, that the Corrections Department interfered with, has been properly rectified.
In a democracy governed by the rule of law, maintaining equality before the law is paramount. Equality before the law means no one, including government agencies, such as the Corrections Department, is above the law.
The rule of law exists to protect fundamental rights and everyone’s individual freedom, including those of minority groups and prisoners to ensure that justice is accessible to all – be they perceived as weird or wonderful, good or bad.
Equality before the law means that Phillip Smith was entitled to freedom of expression - that is the wearing of a hairpiece. This right is guaranteed by Parliament and means that prison officials must respect his right unless they can demonstratively justify the need to limit it.
The Courts and the Judges that preside in those courts have an important responsibility in upholding the rule of law and ensuring the observance of human rights. There can never be a situation where officials can “cherry pick” who is deserving or undeserving of equality. Never.
The alternative to the rule of law is a lawless society devoid of democracy. Societies without the rule of law become loose but not free. Current examples of societies that have eschewed the rule of law and suffered the consequences of doing so can be seen in Syria, Pakistan and certain African States. We can see in those countries the dark splendour of officials making arbitrary decisions about who is worthy of rights and who is not.
Strangely and unfortunately, civics is not taught in New Zealand schools. The concept of the rule of law for many of us kiwis can be difficult to comprehend (unless you have studied at politics or law at tertiary level) – or have been on the receiving end of unfair and arbitrary decision making by enforcement agencies – such as the Police, IRD or Corrections Department.
If we do not really understand what is meant by independent courts, or if we lose trust in them, measures that undermine the rule of law can begin to gain support. Simplistic and unfounded criticisms of the administration of justice can encourage acceptance of steps to limit the role of the courts.
The rule of law is not a luxury, it’s a necessity. Cases like this highlight the manifestation of our legal system as it strives to deliver fairness, justice and equality
when is hate a speech
Freedom of speech, freedom of religion and accusations of hate speech have continued to go off sporadically like Guy Fawkes a week after the explosive event.
The speeches in question that attracted opinion - including everybody from on the street to the Prime Minister - were those made by the Muslim cleric Shaykh Mohammad Anwar Sahib and the Bishop of Destiny Church, Brian Tamaki, on two separate and unrelated occasions.
Complaints were also lodged with the Human Rights Commission.
The substance of the speech by the Muslim cleric, who was also the secretary of the Federation of Islamic Associations of New Zealand, was anti-Semitic and the Bishop's rant blamed gays, sinners and killers for the recent deadly and devastating earthquakes that have knocked parts of Kaikoura back to a colonial age.
Mohammad Anwar Sahib told an Auckland audience in a series of lectures posted online by the blog site Whale Oil that "Jews are using everybody because their protocol is to rule the entire world". He went on to say the "Jews are the enemy of the Muslim community" and made offensive remarks about women.
The Government’s Ethnic Communities Minister Peseta Sam Lotu-Iiga responded swiftly to the video that was trawling the internet, reminding that hate speech is prohibited in New Zealand.
He says attacks of the kind made by Dr Sahib are offensive and insulting and are way out of step with New Zealand's egalitarian values.
“The New Zealand Bill of Rights Act 1990 gives everyone the right to freedom of expression, including the right to seek, receive and impart information and opinions of any kind in any form. But hate speech is prohibited under section 61 of the Human Rights Act," Mr Lotu-Iiga said in his statement.
A New Zealand based international human rights lawyer says the anti-Semitic speech does breach s61
“On the face of it there is a clear breach of section 61 - such is unlawful and subject to investigation on the basis of racial disharmony,” says barrister Craig Tuck.
Mr Tuck is an International Human Rights Transnational Criminal Justice specialist but while he says it is a breach, he says freedom of speech is one of the most important and fundamental human rights.
He says public authorities, including the Police, have a duty to protect those legal rights.
“The freedom to think and speak is the very ‘stuff’ that we are made of – the human condition. The way we as a race, dream, develop and advance. Think of the great leaps forward that freedom of speech has delivered – in thought and act. It is the lifeblood of a democracy – it is what we are about as a nation.
"In a year where there has been significant threats to freedom of speech and human rights laws – utterances such as those that the Muslim Cleric espouses are an opinion – offensive and controversial, but still an opinion, held by many people throughout the world. Nothing new or novel in that - but hopefully something a well-educated and safe population can easily reflect on and see through,” he says.
Take responsibility for your words as they could have consequences
But while Mr Tuck says the cleric has a right to say whatever he pleases, he must take the responsibility and consequences, which attaches to that right, for what he says.
He (the cleric) has since been stood down from his role.
“Rather than debate any argument – anyone who prefers to attack a person or groups in an attempt to either silence the dissent, or propel issues such as racial disharmony and inequality of women by threatening or inciting violence must know that the democracy (and law making that flows from that) can and must respond.
"Stripped away, his words are just a platform for abuse, threats, intimidation and insults – like many others in New Zealand and overseas. The Human Rights Act 1993 in New Zealand and similar manifestations in other countries, with strong democracies and rule of law, addresses this sort of behaviour,” he says.
Mr Tuck also points out that the Whale Oil blog site has also produced extreme and hateful material.
“Whale Oil has come out with far more controversial things than this guy. October last year he wrote “the only solution is to kill them (Muslims) before they kill us” (later edited to refer more specifically to ISIS, but only after an HRC complaint was laid against him)."
Frances Joychild QC specialises in human rights and says the Convention on the Elimination of all Forms of Racial Discrimination calls for some sort of control of inciting racial disharmony.
“The comments in relation to Jews fall within that and they are very damaging of civil cohesion. Civil libertarians will say it has to be a high threshold but the way I would look at is, look at the psychological damage that is done through those comments on that group of people and that has impact on society by creating a lot of fear and it’s fear based on what has happened in the past to Jewish people,” she says.
So when is a speech a "hate speech" if the orator didn’t actually say "hate" or "kill"?
“The words in the statute are threatening, abusive or insulting and likely to incite hostility or bring into contempt. That’s a lower standard than inciting violence to kill and in my view that’s appropriate to this situation,” she says.
In contrast to the Muslim cleric's speech, Bishop Brian Tamaki, quoting the Book of Leviticus fired his shots at gay people, sinners and murderers who he labelled as biblically responsible for the earthquakes.
And there has been wide condemnation over that speech, including from Prime Minister John Key who said it was ridiculous and the facts of life are that New Zealand is a seismically-prone country.
Bishop Tamaki has since said the explanation for the earthquakes was God's view, not his.
So is that the end of the matter? Not necessarily, says Victoria University School of Law Associate Professor Petra Butler.
Sexual harassment under section 62 of the Human Rights Act could be a possible avenue for complaint or legal action, she says.
“That might need wide interpretation but it could be argued that Brian Tamaki’s speech incited hatred towards people with a certain sexual orientation,” she says.
But what about freedom of speech? Wasn’t the Bishop exercising his right?
Professor Butler says there is also the wider human rights.
“He’s not just exercising his freedom of speech but also his freedom of religion rights which are far more particular,” she says.
But while a person’s rights are vast, freedom of expression can have its limitations.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
“If you look at the European Commission on Human Rights and the International Covenant on Civil and Political Rights, you’ll find that freedom of expression often can be limited, for example public order,” she says.
How does that fit in with Brian Tamaki’s speech in relation to blaming gay people for the earthquakes?
“You could say this is inciting such public unrest among people that his freedom of speech should be limited, but freedom of religion is a different thing, it’s so personal and very hard to limit,” she says.
The religious aspects of Mr Tamaki’s speech quoted the Old Testament’s Leviticus “that the earth convulses under the weight of certain human sin.” It was in this context that he blamed gay people for the earthquakes.
And that was his interpretation of that religious text.
“That’s his freedom of expression and you hope that a good and robust democracy could have a discussion about that. If you’re going to respect the freedom of religious rights. Yes it has had a lot of condemnation but he also has some support too, but again a good democracy and rights for all people means that with freedom of religion, we must also accept and respect opinions that maybe many of us do not like,” Professor Butler says.
In 2014 Victoria University of Wellignton law student Fran Barber wrote a research paper that explores religion and human rights.
The paper, "Religious Vilification Laws in New Zealand: Should the Freedom of Expression Be Taken as Gospel?" can be downloaded here.
It tackles the ever-increasing multiculturalism and diversity in New Zealand and explores the potential for religious vilification laws to be passed in order to promote community tolerance.
In her research Ms Barber argues that religious vilification laws remove certain forms of expression from the public sphere on the grounds that these expressions might incite hostility towards others on this prohibited ground.
“These laws therefore overtly control the formation of public opinion. The Human Rights Act offences are only invoked when the expressions are published, distributed, used in a public place or (for the civil but not criminal offence) in a manner likely to become published. Private vitriol is acceptable. Therefore, in passing vilification laws, the state demarcates religious hostility as an illegitimate contribution to the public pool of thought. Under the argument from democracy, this detracts from the democratic legitimacy of the system,” she writes.
Fran Barber also writes that proponents of these laws are careful to argue that their purpose is to prevent harm caused to the religious person and not to the ideas themselves.
“The freedom to cause extreme offence to others has less social utility than the ability to debate ideas. However, it is questionable whether a valid distinction can be drawn between the harm caused by the vilification of the person and the harm caused by the vilification of a person’s fundamentally held beliefs. This is a salient point, which has arisen throughout the religious vilification law debate. As Harrison has written, 'there is no real difference between saying Christianity is evil' as opposed to 'all Christians are evil' both have the potential to incite religious hatred.”
Professor Petra Butler says Brian Tamaki’s speech should serve as a wake-up call for New Zealanders to use that tool of democracy more and have a robust discussion on these issues and his allegations.
“One might want to question how respected generally despite having a Civil Union Act, despite our very progressive same sex legislation and framework in New Zealand, having that framework is one thing but what people really think behind their four walls is another and maybe this shows there is still a big discussion need to be had to tackle tolerance and acceptance,” she says.
Professional Butler says it is about balancing every person’s individual rights against each other.
“The threshold or balance does tip a specific way if it becomes a hate speech which said something like 'we need to kill all gay people' or something similar to that."
And out of the ordinary beliefs are more common that you think, such as this explanation published in the English Daily Mail newspaper last year:
"Locals who believe in the supernatural have blamed a group of cheeky tourists for an earthquake that has left more than 100 climbers stranded atop Southeast Asia’s highest peak.
"The holidaymakers posed for a series of nude photographs and were accused of urinating as they scaled Mount Kinabalu in the Malaysian state of Sabah.
"According to Malaysian media, there are some locals who believe the 6.0-magnitude tremor was caused by ‘mountain spirits’ who were angered over the crude photo shoot which occurred high above the clouds."
Frances Joychild QC does not think a successful case could be mounted against Brian Tamaki in relation to sexual harassment following his speech blaming gay people for the earthquakes.
She says sexual harassment under section 62 of the Human Rights Act is not strong enough.
“When you accuse a group of people identified by their sexual orientation as responsible for something such as the earthquakes then you are coming across the Human Rights Act legislation in New Zealand that protects these people from discrimination. But it doesn’t protect them from harassment such as inciting disharmony.
"It has enormous impacts on gay people. Gay men in particular are still subject to random violence in public places."
Ms Joychild says Mr Tamaki’s speech was a hate speech.
“The next step should be for the Government to produce legislation that protects gay people whether they’re men or women from speeches or published words which bring them into contempt and ridicule,” she says.
Brutal seas: Meet the men enslaved to catch our fish
A few kilometres of road later, Sophal pulls over the truck at an open air cafe. Eng Bun Lai is waiting in the dust. He wears a navy parka, embroidered with the white IOM logo: a freebie some men are given when they are brought back into the country. He has a thin face, prominent cheekbones and a thick red scar crossing his forehead.
Eng Bun Lai spent four years and seven months on one boat, working 21 hour stretches at a time, and was paid around 1 million rupiah (NZ$204) every two months. If there was no catch, there would be no pay.
Most of all, he remembers the exhaustion. They worked non-stop, without eating or drinking. When one net was put out to catch fish, another would be drawn in and the men put to work sorting it.
At best, he would be given a break to catch three hours of sleep. If the nets were torn, the men would work through the night fixing them until day broke, drinking coffee to try and stay awake.
His voice slips when he remembers his time trapped on board.
“I thought about it a lot about it and didn’t know how I could leave the boat,” he says. “I was always thinking [about how] to return to Cambodia. I worked from day to day and didn’t have time to rest and I couldn’t come back to my hometown as I wished,” he says.
“Many who lost contact with their family and felt hopeless, died of drinking and causing violence, stabbed to death with a knife or fell into the sea when they got drunk. The men who died include Burmese, Thai, Laos and Cambodian.” Lai shakes his head.
“They drank wine so they could forget about their families. Such cases took place both in my boat and others.”
A 2015 study by the London School of Hygiene & Tropical Medicine interviewed 1102 trafficking survivors from Cambodia, Thailand and Vietnam, 27 percent of whom came from the fishing industry.
Eighty-eight percent of the men reported working seven days per week. Of all those surveyed, those working the longest hours were in the fishing industry, who worked an average of 18.8 hours a day.
Following their escape, many continued to suffer significant mental health issues. The study found 61 percent reported symptoms of depression, 42 percent anxiety, and 38 percent post-traumatic stress disorder. Five percent had attempted suicide in the past four weeks.
For those who manage to leave and make their way back to their villages, there is little waiting in the way of support. “Some of them are fine - they’ve dealt with the experience. they have mild depression, but over time they’ve got used to being reunited with their families,” Dickinson says.
“Others are just falling apart you know, usually because of what happened. Some guys have been locked up in cages, whipped with stingray tails for punishment because they tried to escape, some have been in that situation where they have to fight others.
“Some of them have been away for seven years, and it’s so disorientating for them to come back to Cambodia after all that time.”
Back in New Zealand, some are working to improve the trade.
Former police officer Tim McKinnel entered the public eye around a year ago, after his work as a private investigator on the wrongful murder conviction of Teina Pora led to Pora’s freedom – one of New Zealand’s highest-profile miscarriages of justice. After that, he came to the Greenpeace oceans campaign. He has worked undercover investigating fishing supply chains out of Taiwan and Thailand, and fronts the team tracing human rights abuse-tainted fish from Thai ships to New Zealand supermarkets.
Mckinnel says even after a career working in crime, he was shocked by what he encountered on the boats. Some of the men he interviewed were experiencing “terrible violence, bordering on torture”.
“Some were perfectly happy and comfortable with their conditions. others were being treated abysmally,” he says.
“It was disgusting. At every level. Here in New Zealand we wouldn’t have animals living in those conditions.”
The Thai fishing industry produces around 4.2 million tonnes of seafood a year, most of which is destined for export. McKinnel’s team has focused on supplies coming in from Thai Union, one of the world’s largest fishing companies.
Thai Union was implicated in a 2015 investigation by Associated Press which said its products were being produced by workers in slave-like conditions. In a June 2016 statement to its shareholders, Thai Union said it had begun assessment of its own supply chains and acknowledged a number of instances of forced labour, trafficking and human rights violations had been uncovered.
In a statement to RNZ, a Thai Union spokesperson said the company had taken a number of steps, including a new code of conduct and external auditing to try and eliminate forced labour in its supply chains.
“Thai Union is making significant efforts in traceability processes that enable us to prove that our seafood is legally and safely produced, and that safe labor conditions are met throughout the supply chain,” they said.
Documents released under the Official Information Act (OIA) show Thai Union and its subsidiary Songkla Canning have sold more than 5.7 million kilograms of product into New Zealand since 2008 - including 600,000kg last year.
Which companies are importing and on-selling that product under their own brands is still unknown. While Customs released the amounts and product types imported from Thai Union, it would not release the names of those importing it, stating it would “unreasonably prejudice the commercial position” of the companies.
While the connection of New Zealand’s imports to slave labour was made public in April, Customs has maintained their silence.
In documents released under the OIA, a retailer of Thai Union Products writes to Customs that “we believe the source of supply is highly commercially sensitive and the requested disclosure would cause unreasonable prejudice to our commercial position and is highly likely to cause brand damaging misinformation to released [sic] to the market”.
Internal correspondence shows one person from Customs writes “I can see we’re in a lose-lose situation here - if we release the names of importers, those importers will be annoyed, and if we don’t release their names then Greenpeace will announce that we’re protecting the companies.”
Ultimately, Customs declined requests for the names of companies importing Thai Union goods.