Public Health Response Act belatedly referred to select committee for review

The Government has belatedly decided to allow a select committee in Parliament to scrutinise the controversial Public Health Response Act

One of the controversial things about the Bill/Actt  that was rushed through Parliament under urgency this week was that it affected civil liberties, giving police greater powers to enter homes, and that it hadn’t been subject to the full scrutiny of Parliament.

NZ Herald: Human Rights Commission ‘deeply concerned’ about Public Health Response Bill

The Human Rights Commission says it’s “deeply concerned” about the lack of scrutiny and rushed process for the Covid-19 Public Health Response Bill.

The bill, which set up the legal framework for future alert levels, was rushed through most of its legislative stages under urgency, with the support of Labour, NZ First, the Greens and Act.

But the Human Rights Commission says that despite the Government knowing for weeks that New Zealand will be moving to alert level 2, it has not allowed enough time for careful public democratic consideration of the alert level 2 legislation.

“There has been no input from ordinary New Zealanders, which is deeply regrettable,” said chief human rights commissioner Paul Hunt.

“This is a great failure of our democratic process. The new legislation, if passed in its current state, will result in sweeping police powers unseen in this country for many years.”

The Human Rights Commission is “strongly of the view” that the legislation must include a provision to ensure those making decisions, and exercising powers, under the new law, will do so in accordance with national and international human rights commitments and Te Tiriti o Waitangi.

“Given our concerns expressed to the Attorney General yesterday about the two-year sunset clause in the bill, we are pleased to see that Parliament will be changing this to 90 days,” Hunt said.

“However, given that the legislation encroaches on the civil liberties of New Zealanders we have serious concerns about whether the powers are proportionate.”

The Government has reacted to criticism and pressure and decided to allow a select committee to review the Act (albeit after it has been in force).

Legal framework for COVID-19 Alert Level referred to select committee

The COVID-19 Public Health Response Act 2020, which set a sound legal framework ahead of the move to Alert level 2, has been referred to a parliamentary select committee for review.

Attorney-General David Parker said the review of the operation of the COVID-19 specific law would be reported back to the House by July 27, in time for the House to consider whether to renew the Act in line with the 90-day review specified in the law.

“That will allow the House to take into account the advice of the committee before it makes the decision whether to continue with the law for another 90 days – or longer if the House decides,” David Parker said.

The Police can only use their enforcement powers under the Act if the Government has authorised a COVID-19 Alert Level notice.

The post-enactment review, which has been recommended by legal experts and academics, will be conducted by the Finance and Expenditure Committee, which will have MPs from all parties in Parliament on it.

David Parker reiterated that the COVID-19 Public Health Response Act ensures controls on gatherings of people and physical distancing are still enforceable. The new Act narrows the Police powers compared with those which applied under Level 3 and Level 4.

This is better than no review, but the Government should have made time for proper process before dumping the bill on Parliament under urgency last week.

Hobson’s Pledge a ‘divisive group of haters’

Hobson’s Pledge, led by Don Brash, has always been controversial. The Māori Council wants them investigated, believing that an accumulation of statements and behaviour justifies a complaint being made to the Human Rights Commission. saying they are inciting racism and violence.

This is getting into tricky territory in the free speech versus hate speech debate.

Stuff: ‘Divisive group of haters’ in Hobson’s Pledge must be investigated, Māori Council says

The New Zealand Māori Council said on Wednesday it had asked the Human Rights Commission (HRC) to investigate the group, which is led by former National Party and Act leader Don Brash.

Hobson’s Pledge was formed in 2016 and campaigns against what it says is preferential treatment given to Māori.

New Zealand Māori Council executive director Matthew Tukaki said the council had made the move because “no one’s called them out”.

Plenty of people have criticised Brash and Hobson’s Pledge, but this may be the first time a complaint against them has been made to the HRC.

He hoped the HRC would censure the group.

He said the “accumulation” of Hobson’s Pledge’s behaviour and statements, rather than any one incident, influenced the decision to go to the HRC.

Tukaki also said Hobson’s Pledge was “nothing more than a divisive group of haters who would do nothing more than send us all back to the dark ages”.

“They may wear suits and drive around in late model expensive European cars … but they are nothing more than a gang of misfits that seek to incite hate and divide the country.

“They should be held to account,” Tukaki said.

“They’re creating an environment…in which hate is breeding and not just breeding but duplicating and replicating.”

Tukaki said the Māori Council was concerned that comments Hobson’s Pledge leaders had made in public constituted “incitement to both violence and racism, hate and the segregation of New Zealand society”.

This has a risk of creating publicity for what is  fringe group that is usually ignored.

Hobsons’ Pledge spokesman Don Brash said claims of racism were “absolutely outrageously stupid” and he was taking legal advice.

“It’s a serious accusation … not only of racism, but also of advocating violence.”

“I’m deeply saddened that the Māori Council, which used to be a group of eminent and respected people, should descend to this kind of silly name-calling.

“I have a four-year-old Korean Hyundai, for the sake of the record.”

An odd comment. Owning a particular brand of car doesn’t rule out being a racist.

Brash said if the HRC censured Hobson’s Pledge it would prove the Commission “has absolutely lost its marbles”.

“We’re in favour of a single standard of citizenship for all.”

That’s probably an impossible ideal.

He said the Māori Council was probably attacking Hobson’s Pledge because the lobby group “was actually having an impact”.

The complaint is that Hobson’s Pledge is having a bad impact – “They’re creating an environment…in which hate is breeding and not just breeding but duplicating and replicating.”

I doubt that Brash and Hobson’s Pledge are having much if any impact beyond those who already have hates about what they perceive as unequal treatment of Māori. I doubt they are breeding any more of it.

I don’t think that Brash is a hater, he’s just trying to preach to the already converted who think that non-Māori are somehow disadvantaged because attempts are being made to address disadvantages for Māori.

Review confirms sexual harassment, lack of support at Human Rights Commission

A Ministerial review has confirmed there was sexual harassment at the Human Rights Commission and there were poor response systems and failure to provide proper support. there are =reports that a ‘clear -out’ of the Commission seems likely.

Justice Minister Andrew Little…

…today released the Ministerial Review of the Human Rights Commission in relation to the internal handling of sexual harassment claims and its organisational culture.

“I acknowledge the work conducted by retired Judge Coral Shaw. Her findings reveal a system that failed to provide proper care and support for sexual harassment claims made by staff.

“The main conclusions reveal:

  • Some sexual harassment occurred within the HRC but was not prevalent or endemic
  • The Dignity at Work policy used to investigate the October 2017 incident was aged and outdated
  • The HRC has recently improved its systems and processes for dealing with sexual harassment complaints by adopting a new Prevention and Response to Sexual Harassment 2017 policy, but it was formulated without full consultation with the HRC employees

“In relation to the governance and management structures and arrangements of the HRC it’s a concern that the review found:

  • Staff members’ lack of information and trust in management to deal appropriately with their complaints is a potential impediment to the successful implementation of the Prevention and Response to Sexual harassment 2017 policy.
  • There is a deep divide between some staff and some managers and a lack of trust in the management and the Commissioners among some staff.
  • Strategic leadership by the current Board is compromised by a lack of cooperation and communication between Commissioners and between Commissioners and the Chief Executive.

“I announced the review of the procedures and organisational culture at the New Zealand Human Rights Commission, following recent concerns about the handling of allegations of sexual harassment.

“It is vital that New Zealanders have trust and confidence in the Human Rights Commission as New Zealand’s authority for dealing with complaints about sexual harassment.

“I am currently awaiting advice form the Ministry of Justice. I will also meet with the State Services Commission today to discuss the next steps to fulfil the report’s recommendations. I have spoken to all Commissioners and the CEO, and I will now deal with the question of Commissioner appointments, as a matter of priority,” says Andrew Little.

Click here to read the report

Newsroom: Changes likely at ‘toxic’ Human Rights Commission

A damning review into the culture of the Human Rights Commission has uncovered outdated sexual harassment policies,highly dysfunctional leadership and commissioners “barely communicating with each other”.

A clear-out of the Commission seems likely, with Chief Commissioner David Rutherford – singled out for some of the organisation’s problems – already confirming he will not seek reappointment.

A history of dysfunction

The review also uncovered “deep-seated personality clashes”, with some managers afraid of raising serious complaints against board members despite their concerns.

Former and current commissioners suggested the problems were not unprecedented, detailing dysfunction going back “many years” under previous commissioners.

However, the relationship between Rutherford and his colleagues had been described as problematic since he took on the role in 2011, with other commissioners critical of his communication style.

Rutherford told Newsroom the Commission’s board had accepted all of the recommendations from the report, which was “confronting to read”.

“The key thing is that we acknowledge we have to work together to get policies that make it safer for, or people feel safer to raise issues and complaints, that’s the issue.”

Rutherford said he took responsibility for all the issues raised in the report as chief commissioner, including the concerns raised about his communication.

“As regards my own leadership style, that’s something that you constantly have to think about and adjust as you go through life and I’ve done that…

“The real point at the moment now is to look forward – we accept that there are issues as raised by the judge and we need to work better as a team.”

He confirmed he would not be seeking reappointment to his role, but said he was committed to improving the organisation before his departure.

The Commission certainly needs a change of management and change of culture.

Human Rights Commission CFO gropes, keeps job

I think there is still a big and unresolved issue about how small but personally invasive actions can result in major repercussions – for both the victims and the offenders.

This groping story is of particular interest because a senior staff member of the Human Rights Commission is allegedly involved.

Stuff: Human Rights Commission finance boss sexually harasses young intern, keeps job

A young American woman cut short her internship at the Human Rights Commission after she was groped by the organisation’s chief financial officer at a work party.

The commission investigated a sexual harassment complaint against Kyle Stutter, which resulted in disciplinary action. However, three months on, he remains employed there as chief financial officer.

From what is reported it’s difficult to judge whether what happened was of job-losing severity or not. Consequences of harassment remains a highly contentious issue.

The intern says she trusted the commission to look after her; instead, she felt the complaints process and the attempts to gag her became all about “protecting the organisation”.

If that’s what happened it is of concern that the Human Rights Commission is gagging the victim to protect their reputation.

The commission is the country’s watchdog for unlawful discrimination and racial or sexual harassment. But the former intern says it seemed ill-equpped to deal with Stutter targeting her, and it didn’t acknowledge the seriousness of the incident.

It is alarming that the Commission responsible for dealing with unlawful discrimination and racial or sexual harassment can’t deal with their own internal cases adequately.

The allegation:

…one Friday night at a farewell party for a colleague, after work hours at a private venue. As the night wore on, her colleagues left and she planned to head home herself. Only she and Stutter remained.

At this point, Stutter began dancing with her, before advancing on her without her consent and groping her breasts and private parts, she said, despite her trying to push his hands away.

“I felt it was so severe that it was completely unacceptable and inappropriate.”

She told Stutter she needed to leave and he walked her out of the venue. She got in an Uber and left.

The aftermath and mediation:

“I sent him an email later that night, just to let him know that it wasn’t OK and he should have asked permission to dance with me, to do anything with me,” she said.

She felt Stutter’s return email was “not an adequate response”. She considered laying a complaint with police, but instead reported the incident to her immediate boss the following Monday. She was confident the commission would address it.

But a mediation demonstrated there was no specific policy to deal with the incident.

That’s surprising. Perhaps the thought that harassment policies were just for other organisations.

The result of the mediation was that Stutter sent her a written apology and had to undertake anti-harassment counselling. He also received a formal warning and had the incident recorded on his personnel file, to be removed after three years if there were no further complaints against him.

“I would have hoped to see there was some distinction drawn at some point, where something like this would be handled differently to someone just making an inappropriate comment.”

She added there should have been increased transparency around the matter. “The fact there is so much emphasis on confidentiality in their policies can make it really isolating.

“It wasn’t until the complaint got to the highest level that I felt it wasn’t so much about me any more, it was about protecting the organisation, and them hitting all the right points that they had to hit legally. Ultimately I felt it came down to making sure they could move on as an organisation.”

The Commission response:

Chief executive Cynthia Brophy said the organisation was reviewing its internal processes for dealing with sexual harassment and “if there is anything we can improve on we are keen to make sure this happens”.

“I have a high degree of trust and confidence in the professionalism of all of our staff and can confirm that there is no current complaint outstanding against anyone in the Human Rights Commission.”

That sounds like sweeping under the Commission carpet. And it isn’t a one off incident:

The complaint against Stutter isn’t the only sexual harassment complaint against the commission’s staff in the past five years.

Figures released to Stuff under the Official Information Act showed the organisation had investigated three sexual harassment complaints against three separate staff members dating back to 2013.

Each of the complaints progressed to an investigation, with Stutter’s the only case that resulted in disciplinary action. Two employees resigned before their investigations were completed.

That suggests (but doesn’t confirm) three legitimate complaints.

It is understood the complaint against Stutter was dealt with exclusively by Brophy and human resources, and none of the organisation’s four commissioners were aware of it until the intern had left.

Chief commissioner David Rutherford said, “the Human Rights Commission takes this matter very seriously”.

“It is an employment matter requiring us to respect all of the rights of our employees. We have confidence in how our chief executive is dealing with this matter.”

It was an employment matter, but it is more than that for the Human Rights Commission. If they can’t deal adequately with internal complaints how can the be trusted to deal with complaints reported to them to deal with, their core function?

‘Suffering in silence’ from racism

The Human Rights Commission today launched a new campaign against racial intolerance, fronted by actor and director Taika Waititi.

RNZ:  New Zealanders ‘suffering in silence’ from racism

Racial intolerance is getting worse in New Zealand but most of those targeted suffer in silence, Race Relations Commissioner Susan Devoy says.

She said Waititi, as New Zealander of the Year, was an obvious choice to front the ‘Give Nothing To Racism’ campaign – and she contacted him while he was away working in the United States.

“I sent him a letter, and some Pineapple Lumps, to Los Angeles,” she said. “He took a day off working on Thor and did this.”

Dame Susan said one in three formal complaints to the Human Rights Commission was about racial discrimination, but the overwhelming majority of people never complained when they were humiliated or abused.

“I’m seeing and hearing every day from people in the community that are talking about the racial attacks on them,” she told Morning Report.

When there was an event such as a terrorist attack overseas, Muslim people, particularly women and children, were targeted, she said.

“Women who are visually diverse in New Zealand who wear a hijab talk all the time about being racially abused at bus stops and schools and in their communities.

“And what is sad about that is nobody comes to their defence.”

No one group was being targeted in New Zealand, and racist abuse was not limited to recent immigrants.

“Fourth-generation New Zealanders are still telling me that they’re the butt of racist jokes or being told to go home,” she said

There was a rise in racial hatred overseas and in New Zealand.

“I believe that things are getting worse and the reality is most people don’t complain about this.”

Dame Susan said everyone had a responsibility to speak up against racism, and urged politicians to refrain from pulling the race card in the lead-up to the election.

Winston peters reacted negatively to this.

This is the second stage of the commission’s anti-racism campaign. Last September it launched the ‘That’s Us’ campaign with a website that enabled people to share their personal stories of racism.


Williams breached trust and confidentiality agreement

Last week a jury awarded Jordan Williams $1.27 million in his defamation  case against Colin Craig. Williams successfully claimed that Craig had lied about him in a press conference and a booklet that was delivered to most homes around the country.

However in evidence it was alleged that Williams had breached a confidentiality agreement made in mediation between Craig and Rachel MacGregor through the Human Rights Commission.

Yesterday a decision released by the Human Rights Review Tribunal (MacGregor v Craig [2016] NZHRRT 6) detailed the breaches of trust and confidentiality by Williams.

[50] On or about 22 May 2015, approximately three weeks after the 4 May 2015 mediation, Mr Craig was told by a member of the Conservative Party Board (Ms Christine Rankin) there were rumours Mr Craig had paid off Ms MacGregor to cover serious misbehaviour. Ms Rankin added she was in possession of information sent to her by an informant. This information turned out to be a poem taken from a letter Mr Craig had sent to Ms MacGregor on 24 December 2013. That letter was part of the material relied on by Ms MacGregor in support of her sexual harassment complaint. At about the same time as his discussion with Ms Rankin Mr Craig was told attempts were being made to remove him as leader of the Conservative Party.

[51] By 30 May 2015 it appeared to Mr Craig other Board members (including the Chairman, Mr Brian Dobbs) had been given details about the mediation as well as confidential information. On 16 June 2015 Mr Craig received an anonymous text quoting from the 24 December 2013 letter and on 19 June 2015 the Whale Oil blog published extracts from the confidential documents. On the same day Mr Craig felt compelled to stand down as leader of the Conservative Party. 14

[52] By this time Mr Craig was certain the source of the information was Mr Jordan Williams. His suspicions were confirmed when Mr Williams gave evidence to the Tribunal that it was he (Mr Williams) who had provided the information to members of the Board and to Mr Slater of the Whale Oil blog. He explicitly acknowledged he did not have Ms MacGregor’s permission to disclose the information and indeed had been expressly instructed by her not to disclose the information to anyone. The disclosure was also contrary to an express assurance given by Mr Williams to Mr Bevan that the information relating to Ms MacGregor’s sexual harassment claim and in relation to which Ms MacGregor had, prior to the mediation, confided in Mr Williams would be kept confidential.

So Williams distributed confidential information to members of the Conservative Party and to Cameron Slater at Whale Oil despite being “expressly instructed by her not to disclose the information to anyone”, and despite an express assurance that Williams gave to lawyer Mr Bevan that the information would be kept confidential.

Ms MacGregor and Mr Jordan Williams

[56] Ms MacGregor met Mr Jordan Williams through her work with the Conservative Party. After her resignation she confided in Mr Williams because she knew he was a lawyer and someone who understood politics. She thought he would understand her situation and be able to provide good advice. She showed him the correspondence from Mr Craig but did not give him copies or permission to make copies of any of that correspondence. Mr Williams helped Ms MacGregor to put her claim in chronological order and to prepare a file note which was then sent to Mr Bevan.

[57] Some time later, prior to the mediation, Ms MacGregor and Mr Williams began a romantic relationship. At the time Mr Williams allowed Ms MacGregor to store certain documents, including correspondence between Ms MacGregor and Mr Craig, in the safe at his (Mr Williams’) work place. Mr Williams assured Ms MacGregor only he had access to the safe and that the material would be secure.

[58] At the time Ms MacGregor confided in Mr Williams she was under no obligation of confidentiality to Mr Craig (the mediation had not yet been agreed to and had consequently not taken place) and Mr Craig accepted in evidence she was entitled to speak to whomsoever she wished prior to the mediation confidentiality agreement being signed.

[59] When in November 2014 Ms MacGregor told Mr Bevan she had sought advice and counsel from Mr Williams, Mr Bevan decided to speak to Mr Williams about the importance of confidentiality, believing such discussion justified in the light of Mr Williams’ mention by Nicky Hager in his Dirty Politics: How Attack Politics is Poisoning New Zealand’s Political Environment (Craig Potten Publishing, Nelson, 2014). Mr Bevan contacted Mr Williams by telephone on 26 November 2014. Mr Bevan (inter alia) stressed the importance of Mr Williams keeping confidential the information Ms MacGregor had shared with Mr Williams. Mr Williams told Mr Bevan that he (Mr Williams) was a lawyer holding a practising certificate, but working in-house. He made it clear he was not acting for Ms MacGregor but that he was treating (or would treat) information he obtained from her on the same confidential basis as he would if she were his client. This gave Mr Bevan (and Ms MacGregor) a level of assurance Ms MacGregor would not be compromising her chances of a settlement by confiding in and seeking help from Mr Williams. Mr Williams also told Mr Bevan that he (Mr Williams) had a romantic interest in Ms MacGregor.

[60] In his evidence Mr Williams confirmed Mr Bevan’s account of the November 2014 discussion and that he (Mr Williams) had given Mr Bevan an assurance he would keep the information confidential as if Ms MacGregor were a client. Mr Williams also confirmed to the Tribunal he had subsequently received from Ms MacGregor an email dated 18 June 2015 asking him to return any copies of letters she had received from Mr Craig and asking that he not make any copies as she did not want the letters used against Mr Craig. Mr Williams further told the Tribunal he ignored the email and was the person who took the two photographs of the poems subsequently published on the Whale Oil blog. He took these steps knowing he did not have Ms MacGregor’s permission to photograph or distribute the documents.

In the defamation  trial Williams attempted to justify his actions, but what the Tribunal says here looks quite bad for Williams.

I think that Craig is justified in being seriously aggrieved by the actions of Williams.

However Craig reacted very poorly, especially in his breaches of the confidentiality agreement and his very public attacks on MacGregor knowing that she was constrained by the confidentiality agreement.

It’s somewhat ironic that as a result of legal actions to date MacGregor has been awarded $128,780 as an innocent victim, compared to Williams being awarded $1.27 million despite being him breaching trust and the confidentiality agreement, and provoking Craig into also breaching the confidentiality agreement, plus making accusations against Williams resulted in the defamation proceedings.

Craig has indicated he may appeal the defamation decision and damages award so it may not be the end of that matter.

But currently Williams is the major winner here so far, despite:

Mr Williams told Mr Bevan that he (Mr Williams) was a lawyer holding a practising certificate, but working in-house. He made it clear he was not acting for Ms MacGregor but that he was treating (or would treat) information he obtained from her on the same confidential basis as he would if she were his client.

Mr Williams also confirmed to the Tribunal he had subsequently received from Ms MacGregor an email dated 18 June 2015 asking him to return any copies of letters she had received from Mr Craig and asking that he not make any copies as she did not want the letters used against Mr Craig. Mr Williams further told the Tribunal he ignored the email and was the person who took the two photographs of the poems subsequently published on the Whale Oil blog. He took these steps knowing he did not have Ms MacGregor’s permission to photograph or distribute the documents.

Dear New Zealand Rugby management and board members,

An open letter to the NZ Rugby Union:

Dear New Zealand Rugby management and board members,

Right now, thousands of New Zealanders are questioning the culture of our country’s favourite sport and those in charge of it.

We are writing to you publicly in the hope that you will listen to our calls for you to act with courage.

The internal investigation into an incident involving a woman called Scarlette and members of the Chiefs rugby team has highlighted to all New Zealanders that NZ Rugby’s judiciary process is not appropriate for dealing with issues of integrity, mana, respect and basic personal rights.

We are offering our expertise, experience and support.  Louise Nicholas has been working alongside NZ Police to successfully enhance their internal culture for some time now. We encourage you to do the same.  Dr Jackie Blue offered to assist a month ago and this offer still stands.

Rugby is like a religion in New Zealand, with players worshipped by young kiwis throughout the country.  NZ Rugby could not operate without thousands of women volunteers and players in clubs and towns across the country: we must address the culture that exists from the top down and set the right example, particularly for our young New Zealanders.

Now is the time for you and those involved in the incident with Scarlette to be courageous and to take personal leadership on an issue that we can all work on addressing together.

As much as New Zealanders love rugby – we need New Zealanders to respect women.

We look forward to hearing from you.

Signed by,


…many people, see the list here and you can also sign it yourself if you want to.

There are currently 3,295 signatures. Make that 3,317 now, including mine.

I loved playing rugby, and liked refereeing to an extent, and still love watching it. But some of the ‘rugby culture’, especially involving booze and women, was and still is ugly. I support positive change.


Australian Visa cancellations under section 501

The Australian Human Rights Commission explains how visas can be cancelled under section 501 of Australia’s Migration Act.

The five broad categories under which visas can be refused or cancelled:

  • substantial criminal record
  • conviction for immigration detention offences
  • association with persons suspected of engaging in criminal conduct
  • past and present criminal or general conduct
  • significant risk of particular types of future conduct.

So it is not just a criminal record with more than one year imprisonment.

Association with a gang suspected of being involved in criminal conduct is one that may address War hero with no criminal record held in Australian prison

Lawyer Michael Pena-Rees told Fairfax that Mr Rutene had “exceptional good character” and no criminal record in New Zealand or Australia.

Mr Pena-Rees said police used tasers on Mr Rutene, who moved to Australia three years ago and lived with his partner and her son.

He was forcibly detained and forced into solitary confinement for four days, because of his connection with the Rebels motorcycle gang, Mr Pena-Rees said.

“The Rebels OMC is not a criminal organisation in Western Australia,” Mr Pena-Rees told Fairfax.

“To be a risk to national security because of his connection to an outlaw motorcycle club is an abhorrent and ill-conceived decision in light of the fact that Ko is a decorated ex-soldier, who, as part of the ANZAC spirit, served overseas for the same reasons as Australia and its soldiers.”

Note that Rutene only moved to Australia three years ago. He obviously has significant links to New Zealand.

His detention may be draconian but Australia has chosen to decline visas for people they deem at risk of criminal involvement.

I doubt many New Zealanders would be happy with Australians coming here and joining the Mongrel Mob or Black Power.

Details of visa cancellation criteria:

Background paper: Human rights issues raised by visa refusal or cancellation under section 501 of the Migration Act

2 When can a visa be refused or cancelled under section 501?

2.1 A two stage decision-making process

There are two stages of the decision-making process under section 501. At the first stage, the Minister or the delegate must consider whether the person passes the character test (referred to as the ‘threshold test for refusal or cancellation’ in the sections below). The character test is set out in subsection 501(6), and is discussed in section 2.3 below.

If the Minister or the delegate is satisfied that the threshold test under subsection 501(1), (2), or (3) for refusal or cancellation has been met, this triggers the second stage of the decision-making process under section 501. At this stage, the Minister or the delegate must decide whether to exercise their discretion to refuse or cancel the person’s visa.

2.2 Stage 1: The threshold test for refusal or cancellation

(a) Refusal or cancellation by the Minister or a delegate under subsections 501(1) or (2)

The Minister may refuse to grant a visa to a person under section 501(1) if the person does not satisfy the Minister that he or she passes the character test.

A person’s visa may be cancelled under section 501(2) of the Migration Act if:

  • the Minister reasonably suspects that the person does not pass the character test, and
  • the person does not satisfy the Minister that they pass the character test.

The power in subsections 501(1) and 501(2) can be exercised by the Minister personally, or by a delegate of the Minister. In practice, certain DIAC officers usually act as the Minister’s delegates in making such decisions.

(b) Refusal or cancellation by the Minister under subsection 501(3)

The Minister may refuse to grant a visa or may cancel a person’s visa under subsection 501(3) of the Migration Act if:

  • the Minister reasonably suspects that the person does not pass the character test and
  • the Minister is satisfied that the refusal or cancellation is in the national interest.

This power can only be exercised by the Minister personally. ‘National interest’ is not defined – it is a matter for the Minister to determine what constitutes the national interest in making a decision about whether to refuse or cancel a person’s visa.

It is also important to note the Minister’s personal powers under sections 501A and 501B of the Migration Act. These powers enable the Minister to set aside an initial decision by a delegate or the Administrative Appeals Tribunal in relation to refusal or cancellation under section 501, and substitute it with his or her own decision to refuse or cancel the visa on character grounds. These personal powers are discussed in section 5.3 below.

2.3 The character test

(a) Introduction

Section 501 of the Migration Act provides that a person does not pass the character test if they fall within any of the grounds specified in subsections 501(6)(a) to (d). These grounds can be grouped into five broad categories:

  • substantial criminal record
  • conviction for immigration detention offences
  • association with persons suspected of engaging in criminal conduct
  • past and present criminal or general conduct
  • significant risk of particular types of future conduct.

Further guidance on the interpretation and application of these grounds is contained in Direction No. 55. Each of these categories is discussed briefly below.

(b) Substantial criminal record

A person will not pass the character test if they have a ‘substantial criminal record’, as defined in subsection 501(7). For the purposes of the character test, a person has a ‘substantial criminal record’ if they have been:

  • sentenced to death or to imprisonment for life
  • sentenced to imprisonment for 12 months or more
  • sentenced to two or more terms of imprisonment where the total of these terms is two years or more
  • acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result they have been detained in a facility or institution.

A person who has a ‘substantial criminal record’ will automatically fail the character test, regardless of any mitigating factors which attended their offending. However, mitigating factors may be taken into account at the second stage under section 501, when the decision-maker is considering whether to exercise the discretion to refuse or cancel the person’s visa (discussed in section 2.4 below).

(c) Conviction for immigration detention offences

In 2011 the character test in section 501 was amended to include additional grounds upon which the Minister or a delegate may decide to refuse to grant, or to cancel, a person’s visa. These amendments to the character test were introduced following disturbances in the Christmas Island and Villawood Immigration Detention Centres in March and April 2011. Due to these amendments, a person will fail the character test if that person has been convicted of any offence which was committed while the person was in immigration detention, or during or after an escape from immigration detention, before being re-detained. Also, an escape from immigration detention is itself an offence which will result in the person failing the character test under section 501.

The effect of these amendments is that if a person commits an offence while in (or while escaping from) immigration detention, pursuant to subsection 501(6)(aa) or (ab) their criminal behavior will trigger the power in section 501 to refuse or cancel their visa, even if the offence is not serious enough to warrant a sentence of 12 months’ imprisonment (or any period of imprisonment). Under subsection 501(6)(aa) or (ab) therefore, a lower level of criminality may cause a person to fail the character test, because of the context in which their offence was committed, as compared to the criminality required for a ‘substantial criminal record’ for the purposes of subsection 501(6)(a).

Also, unlike under the ground of ‘past and present criminal or general conduct’ in subsection 501(6)(c) (discussed below), under subsections 501(6)(aa) and (ab) there is no consideration of the severity (or lack thereof) of the offending, or any mitigating circumstances. If an ‘immigration detention offence’ conviction has been recorded, the person will automatically fail the character test.

(d) Association with persons suspected of engaging in criminal conduct

A person does not pass the character test under subsection 501(6)(b) if the person ‘has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct’.

Direction No. 55 requires that in establishing ‘association’ for the purposes of the character test, decision-makers are to consider:

  • the nature of the association
  • the degree and frequency of association the person had or has with the individual, group or organisation, and
  • the duration of the association.

Direction No. 55 also requires decision-makers to assess whether the person was sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation, and directs that ‘mere knowledge of the criminality of the associate is not, in itself, sufficient to establish association’. The association must have some negative bearing upon the person’s character in order for the person to fail the character test on this ground.

(e) Past and present criminal or general conduct

Under subsection 501(6)(c) of the Migration Act, a person does not pass the character test if, having regard to the person’s past and present criminal conduct and/or general conduct, the person is ‘not of good character’.

In considering whether a person is ‘not of good character’, Direction No. 55 requires decision-makers to take into account ‘all the relevant circumstances of the particular case … to obtain a complete picture of the person’s character’, including evidence of ‘recent good behaviour’.

In determining whether a person’s past or present criminal conduct means that they are ‘not of good character’, decision-makers are to consider:

  • the nature, severity, frequency and cumulative effect of the offence/s
  • any surrounding circumstances which may explain the criminal conduct
  • the person’s conduct since the offence/s were committed, including:
    • the length of time since the person last engaged in criminal conduct
    • any evidence of recidivism or continuing association with criminals; any pattern of similar offences; or any pattern of continued or blatant disregard or contempt for the law
    • ‘any conduct which may indicate character reform’.

The consideration under subsection 501(6)(c)(ii) of a person’s past or present general conduct allows the decision-maker to take into account ‘a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not have constituted a criminal offence’. In considering this broader view of character, the decision-maker should take into account all relevant circumstances, including evidence of rehabilitation and any relevant periods of good conduct’.

Direction No. 55 sets out the following factors which may be considered in determining whether a person’s past or present general conduct means that they are ‘not of good character’:

  • whether the person has been involved in activities which show contempt or disregard for the law or human rights (such as war crimes, crimes against humanity, terrorist activities, drug trafficking, ‘political extremism’, extortion, fraud, or ‘a history of serious breaches of immigration law’)
  • whether the person has been removed or deported from Australia or another country, and the circumstances that led to the removal or deportation
  • whether the person has been dishonourably discharged or discharged prematurely from the armed forces of another country as the result of disciplinary action in circumstances, or because of conduct, that in Australia would be regarded as serious.

(f) Significant risk of particular types of future conduct

Subsection 501(6)(d) provides that a person does not pass the character test if there is a significant risk that, while in Australia, the person would:

  • engage in criminal conduct
  • harass, molest, intimidate or stalk another person
  • vilify a segment of the Australian community
  • incite discord in the Australian community or in a segment of the community or
  • represent a danger to the Australian community or to a segment of the community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Direction No. 55 provides that these ‘significant risk’ grounds are enlivened if there is evidence suggesting that there is ‘more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in [the prescribed] conduct’. It is not sufficient to find that the person has engaged in such conduct in the past – there must be a significant risk that the person would engage in such conduct in the future.

Direction No. 55 also states that the operation of the last three grounds of ‘future conduct’ set out above must be balanced against Australia’s ‘well established tradition of free expression’. The Direction states that these grounds are not intended to be used in order to deny entry or continued stay of persons merely because they hold and are likely to express unpopular opinions, even if those opinions may attract strong expressions of disagreement and condemnation from some elements of the Australian community.

Futile fulmination on Slater hate

I posted Slater: “The only solution is to kill them…” on Thursday and that was well discussed here. I think it was a stupid thing of Cameron Slater to post but pretty much par for the Whale Oil course.

But criticism has built up elsewhere, I’ve seen it on Twitter.

And this morning The Standard posted: Petition on Slater’s hate speech. Petitions are becoming more common for all sorts of things and are usually just futile fulmination.

You can sign the petition to the Human Rights Commission here.

WhaleOil has gone too far. We need to stand up to Slater.

In comments Psycho Milt puts a reality check on things.

Complaints can be lodged, but anyone lodging one will need to figure out how to get them over this hurdle:

6a. This standard is not intended to prevent the publication of material that is … the expression of genuinely held opinion…

Good luck with that.


I certainly wouldn’t sign this petition, because the Human Rights Commission has no place in this. If Slater’s comments are incitement to violence they open him up to prosecution, and if they aren’t incitement to violence then they’re free speech that ought to be protected under NZ law. In neither case does the Human Rights Commission have a role to play.

Seems like a sensible call.

There’s no reliable proof that it was even Slater who wrote it, it just happens to have him as author but that doesn’t mean much.

Disagreeing, criticising, ridiculing are all valid responses. There’s plenty of ways of standing up to crap from Whale Oil without racing off to petition the Human Rights Commission.

UPDATE: Naturesong responded to Psycho Milt:

I am not accusing anyone of bullying.
I am not suggesting that hate speech laws or in fact any using any legal means to silence him or his blog.

The point I’ve obviously not articulated well enough, is that the blog WO is a member of OMSA.
As a member the blog agrees to a minimum set of standards.
I’m suggesting that the blog be held to them.

It’s a personal responsibility argument.

That’s a good point and a sensible approach to holding Slater to account. Has Slater breached minimum standards at Whale Oil?

Lecretia Seales assisted dying case versus pressure group inteference

Lecretia Seales has a brain tumour and has taken her case to court to clarify whether her doctor can assist her death so she can avoid extended suffering. Stuff reports:

Terminally ill Wellington lawyer Lecretia Seales…, 42, has an inoperable brain tumour and has begun a court case in which she wants to test the law.

In the High Court at Wellington on Tuesday, her lawyer, Andrew Butler, said the case was about clarifying the criminal law, not changing it or trying to “lift a ban”.

It was only about Seales, and raised quite narrow issues that would not have any application to the elderly or disabled, for instance.

Seales was not interested in having a big debate about euthanasia, he said.

Seales wants to make sure her GP would not face charges under the Crimes Act if or when Seales was helped to die. The doctor’s name is suppressed.

Sounds sad, and sounds like a sensible test for the law.

It’s fairly well known that doctors and others able to administer drugs already ease peoples’ deaths. I’ve seen this happen with someone whose death I was closely associated with.

So it makes sense to clarify the law around this. Otherwise some people are lucky enough to get help to ease suffering, while others don’t have the choice.

And because it happens in a grey area of the law and of medical ethics it is easier for misuse or mistakes to happen.

If the law was clarified people who are suffering and dying wouldn’t have to deal with ambiguity and secrecy. It would also make it easier for families – the example I was associated with was bloody difficult to deal with until I understood what was happening.

But ‘special interest groups’ are trying to interfere with Seales’ case.

Seales faces attempts by special interest groups to have a say on her legal plea to be allowed the option of a medically assisted death.

Three parties are asking to be allowed to “intervene” in the case.

For the Human Rights Commission, Matthew Palmer, QC, said it was not a normal “adversarial” case. The orders being sought would seem to offer assisted dying in certain circumstances, and that had wide implications for society.

“If ever there was a case of widespread public importance, this is it.”

The commission would offer independent submissions and would not take a position on the ultimate question in the case, he said.

At least they are trying to be balanced and neutral on the emotional aspects.

The defendant in Seales’ case is the attorney-general, who is currently National MP Chris Finlayson. His lawyer, Paul Rishworth, QC, said it plainly raised issues of significant public importance, and the parties that wanted to intervene might be able to help the court.

But the Crown could gather evidence from palliative care specialists and others to cover the issues the case raised.

That’s up to the crown, but other groups seem intent on using Seales’ case to push their own.

The Care Alliance represents groups opposed to physician-assisted suicide and physician-assisted euthanasia. Its lawyer, Victoria Casey, said palliative care professionals and some groups representing the disabled were directly affected, and their views should be heard.

Seales is opposing them being allowed to take part in the case, but Casey said members of the alliance were best placed to give evidence and analysis of relevant issues.

The Voluntary Euthanasia Society is also seeking to intervene.

Kathryn Davenport, QC, for the Voluntary Euthanasia Society, said Seales was asking for a personal decision, but the case could not be seen in isolation.

If Seales was happy for this to happen then fair enough. But it sounds like she doesn’t want any interference.

Both sides of the euthanasia debate want to hijack Seales’ case to promote their own interests. It’s not their case. They can take their own legal action if they want to.

Seales’ case could easily be seen in isolation. Sure it would affect other cases, that’s how our legal system works.

3 News reported:

Care Alliance says if Ms Seales gets her wish it would set a dangerous precedent and could be applied to anyone with a terminal illness.

That sounds like scaremongering. It could be applied to anyone, whether ill or not. But that’s a stupid exaggeration.

The whole point of Seale’s case is she is requesting the option of an assisted death.She is prepared to test it in court.

The courts are never going to start ‘applying law’ to people who don’t want it applied to them.

Obviously time is important for Seales

Justice David Collins said he would give his decision as soon as possible on whether the three interveners were allowed to be part of the case. The full hearing is due to start on May 25.

3 News: in a blog post, Ms Seales’ husband Matt said: “If Lecretia were to commit suicide, she would need to do it alone, as anyone else present would risk a criminal conviction. The act would be extremely traumatic for her and her family. It’s not an option.”

Sadly now she has publicised her situation the risk of scrutiny and criminal conviction is much greater.

The court should do what it can to make a fair legal ruling. Special interest groups should stop pushing their own interests.

Seales is making brave moves, by openly her facing options as she dies, and by doing something that attracts publicity.

The law may or may not benefit her. But the special interest groups should back off unless their input is asked for.