It is now some 6 years since my court
case, Butcher v the New Zealand Transport Agency (NZTA)
and the Attorney General.
Like many Court decisions, the reader only gets a glimpse
of the evidence and arguments when reading the official
judgment.
So there can be merit in review. There is, however, some
risk in questioning a judgment outside of the court
process.
But I am persuaded to do so by the realisation that we are
fast becoming a "papers, please" society, the sort of
totalitarian state that our fathers fought against not
that very long ago.
I am also persuaded by the replacement of human rights
with the evil notion that we should blindingly accept this
loss, based on noises from Government that we should,
instead, have "trust" in what they are facilitating.
I am also persuaded by the creep of facial recognition
into banking services, in particular the new open (sic)
banking system now being introduced here in New Zealand.
That system will use the driver's licence facial
recognition database to function.
My appeal to the Human Rights Review Tribunal (HRRT) in
2019 was on one issue: should a driver licence without a
photo be made available on religious grounds or, more to
the point, is there any compelling reason why it should
not?
One pertinent fact is that in New Zealand there is already
a legal form of paper driver's licence without a photo.
This is spelled out both in the Act and the Regulations,
and there are an estimated several thousand such licences
in use. NZTA refuse to disclose the actual number.
Apparently they don't know - and it would seem obvious
they have no road safety concerns about these licences.
My case was not seeking a ruling on whether or not to
create a new class of licence without photo. It already
exists as a paper licence. The issue is around that
licence not being made available to someone like me with
religious objection to the photo.
The photo licence
The photographic licence does not use an ordinary analogue
or digital photo. It uses facial recognition.
My case was around exemption from the facial recognition
ID system. Whether to dismantle that system is another
point, a perfectly valid one in my opinion, but not the
point of my appeal to the HRRT.
Previous appeals to the Courts, both here in NZ and
overseas, also sought exemption from photo ID on religious
grounds, both against a photo per se based on the Old
Testament scriptures and against facial recognition based
on the New Testament scriptures. They, like me, have all
failed. It is as if the judiciary will generally consider
any form of religious accommodation, barring this one.
In my case I was asking, is it really going to be a road
safety issue if someone with a particular religious belief
around photo ID drives on a paper licence? The Court in NZ
thinks it is.
Bringing this case to the HRRT was not to obtain a legally
binding decision forcing the NZTA to issue a paper
licence. Nor was it to knock back current legislation. It
was only asking Parliament to reconsider the legislation.
If faced with such a declaration, Parliament is not
compelled do anything to change the law but can
elect to do so, for example by making 12 month paper
licences available on a continual basis, that is, annually
renewable for religious objectors.
However, I lost my case on the basis that a renewable
paper licence extended in this way would compromise road
safety, compromise the integrity of the licencing database
and open up the application system to all kinds of riff
raff.
I also lost my case because the NZTA were able to defend
themselves on the matter of intent. They needed to show
that there was a compelling reason to introduce the photo
licence.
The ID card
When I refer to the photo licence, I refer to a driver's
licence that is actually an ID card with driver licence
information added to it. While we call it a driver's
licence, that is incorrect. It is an ID card. We should
call it that.
The photo taken for the ID card is not an "ordinary"
photo, either analogue or digital. It is not a
"photographic image" as prescribed in the legislation. It
is a facial recognition image taken on equipment
specifically for that purpose and has been since day dot
in 1999.
The intent of those driving the ID card was never road
safety.
Concurrently with the introduction of these cards, the
Government lowered the drinking age from 20 to 18. It is
simply untenable to argue that the then National
Government had road safety in mind when they introduced
the ID card. If they had, they most certainly would not
have lowered the drinking age at the same time.
One of the reasons for the ID card (there were many) was
that it could be used as a "pass card" by teenagers to get
into pubs. The ID card was therefore part and parcel of
the lowering of the drinking age.
Drink Driving
The irony seemed to be lost on Parliament: only letting
teenagers into a pub if they had a driver's licence.
Heavens above, shouldn't it be the other way around?
"Sure, welcome to my pub. Have a few beers. You have your
licence on you? Great. Safe travels."
The legislators could not possibly claim to genuinely care
about road safety while actively making it worse.
And they certainly succeeded in making it worse. It took
around 10 years to bring New Zealand's road statistics
back down to their usual abysmal standard.
Legislative intent
Much of the judgment against me spoke of the threshold
required for Government to defend itself - and that
threshold is still dangerously low. It said, in effect,
that so long as the "intent" or aim of the legislation was
primarily road safety then Government need not actually
have achieved that aim. This would suffice as a defence
for not allowing religious accommodation.
Changing one type of licence for another does absolutely
nothing for road safety. There is statistically no
rational connection. But lowering the drinking age does
have an effect and most certainly it is not to improve
road safety, ditto the ID card that facilitates drink
driving.
To my mind it is unreasonable for the HRRT judgment to say
that the Crown case passes the threshold for "intent" in a
situation where the Government passes a bill to lower the
drinking age with clearly very little consideration of the
road safety consequences. It was simply not on the radar
in the gilded halls of power.
The claim that the people who lowered the drinking age in
1999 were genuinely concerned with road safety does not
pass any standard of honesty.
In my opinion the HRRT judgment on this issue should not
stand.
Honesty in
Parliament
History tells us that the underlying motive
for the driver licence was to create a facial recognition
database and a desire to use that database in the future,
rather than simply a ploy to catch youngsters votes. It
was designed to take advantage of function creep.
Such data acquisition of a very private nature would
likely meet resistance and the ways, in hindsight, used to
get around that were to appeal to young people, as a pass
card to get into pubs, and to point blank deny it was
facial recognition and then let desensitization run its
course.
In other words, people would be told the photo was just a
plain old photo and by the time the truth came out people
would have become accustomed to using it. It would be
normalised.
One of the first clues to the facial recognition aspect
was in the Green Draft of the regulations. This draft was
withheld from public view of course, only the Yellow Draft
being open for public comment.
In theory the Yellow Draft on the driver licence format
would be put out for public comment followed some time
later, after consideration of public feedback, with an
updated Green Draft.
But in this instance the Yellow and Green Drafts were
written at the same time. The Yellow Draft said nothing at
all about a driver's licence being an ID card whereas the
Green Draft spelled this out in no uncertain terms.
A copy of the Green Draft was leaked to a Mrs Lois McInnes
and is now in my possession. It is a sobering reminder of
the lengths to which the totalitarian underbelly in New
Zealand is prepared to go to turn this country into a
"papers, please" state.
The Hansard records are replete with lies in support of
this deception on the New Zealand public. Here are some
from the then Minister of Transport, the Hon. Maurice
Williamson:
"The format of the driver licence has been changed to
include a photograph, and it will be a similar size to a
credit card." Hansard, 5 Nov. 1998, p12940.
"I want to make it quite clear that I do not want this
photo licence used for anything other than road safety. I
do not want it to be a national ID card. I do not want
this system to be used by other government agencies. I do
not want people to be nervous that the system may be being
accessed by anyone else, by uncle Tom Cobbleigh and all. I
want this photo licence to be used purely for road safety
outcomes." Hansard, 24 Nov. 1998, p13489.
"I want to tell people that the card is not intelligent.
it is a dumb piece of plastic. All of the stuff I have
heard on talkback about how people can be tracked when
they are at a concert is nonsense. I heard on the Leighton
Smith show the other day that the police will be able to
film a gathering with a video camera and then run it
against the database and say who was at the concert that
night, based on someone's driver's licence. That is a
whole pile of nonsense." Hansard, 24 Nov. 1998, p13496.
"I want to put some information on the record. The word
'digital' seems to trip up so many people. It seems to
scare the living bejesus out of many people these days,
because somehow it is supposed to be evil. I have heard
people say that their blood type, their Inland Revenue
Department number, where they went to school, and all of
that, can be stored on these digital photographs. I want
to tell members, so that they are very clear in their own
minds, that digital technology is just the new technology.
that is all it is....so there is nothing evil about
digital technology. It only takes ordinary photographs
(my emphasis)..." Hansard, 24 Nov. 1998, p13651.
Function creep
Of course those "ordinary photographs" are now to be used
in "open banking." Like the driver's licence, the "opt
out" is likely exclusion from an essential service.
Assurances that cash will always be available as an
alternative are simply not believable. There are many
businesses who already refuse cash. A sample of my recent
experiences are an insurance company, a local recycling
facility, a plumbing supplier, to mention a few. Clearly
those giving assurances that the future of cash is
guaranteed are out of touch with how the rest of us live.
In fact cash is not legal tender except for the payment of
a debt. Parliament has declined to give cash full status
as currency for the purchase of goods and services. Until
Parliament changes its tune, cash is not an alternative.
As a note, the reader should also make themselves familiar
with the National Ticketing Solution (NTS), its likely
connection to open banking and the draconian powers
involved.
Without penalty
There is one thing human rights protections must do. They
must allow a person to opt out without penalty.
So far the Courts have failed to do this in New Zealand,
with the predictable creep of the facial recognition
database now extending into NZ currency. The current
National Government, likewise, have done nothing to make
good for the failings of their predecessors.
Stephen
Butcher
24 August 2024