Public Address - Legal Beagle (Home)

Asserting ancient rights | Feb 28, 2009 16:10

The news that section 92A is likely gone, or neutered, is great – although I'm not convinced that it is as bad as was being made out. I've noted my concern over the strained interpretation in comments here and on other 'blogs before, but Steven Price puts it much better than I have :

An ISP that simply terminated on the basis of two or three allegations would surely not be implementing its policy reasonably, and termination would be inappropriate. True, this provision is awfully vague (which may also raise Bill of Rights issues, actually). Yes, it gives quite a lot of wiggle room to ISPs (though they are not likely to try to implement it against their clients' interests). But it does not require – or even permit – guilt by mere accusation.
...
Throw in the new Telecommunication Carriers' Forum draft on how this law is likely to work in practice and we move even further away from guilt by accusation. What this draft gives us is "innocence by denial"

[emphasis added]

But as good as the news is, I'm more than a little disturbed at how it came about. Not that it came about because of citizen action, but the reaction itself. The Herald article breaking the story on Monday began:

Prime Minister John Key has announced the controversial Section 92A law, which has been widely condemned by internet users, is to be delayed. It will go on hold until March 27 while work is carried out on a voluntary code of practice.

If no solution is reached by then it will be suspended.

Suspended. Not repealed. Not even (the still constitutionally dodgy) further delayed. Suspended. You know, I'm pretty sure the Government doesn't have that power. Parliament makes the laws. The Government administers them.

True, the Copyright (New Technologies) Amendment Act 2008 did empower the Government to say when this section would enter into force, but it didn't delegate the power to decide whether the section would enter into force. The Legislation Advisory Committee has this to say about laws which delegate to the executive their commencement:

As a general principle, the commencement of legislation should not be delegated because of the risk that the will of Parliament may be frustrated by an Executive that no longer supports the policies in an Act.

It's as if they were warning about this very situation. Certainly, Parliament can do what it wants, but even when it passes a law and delegates its commencement, there is an expectation that the law will come into force at some point in the future. No matter how stupid the law, it was the democratic will of Parliament that it be the law. And, until Parliament does something about it, that will remain the case. Rather than asking Parliament to repeal or amend s 92A the government may just sit on it – continually delaying its implementation until who-knows-when. That would be wrong. It would be wrong if I supported the law, and it is wrong even though I don't.

George W. Bush took hell for issuing signing statements refusing to implement pieces of the law that Congress had passed ... and he claimed his power to do so arose from the US Constitution. From where does the power to "suspend" s 92A of the Copyright Act arise?

I'm probably overstating the problems – parliamentary democracy isn't under threat. From a democratic standpoint, the fact that there probably isn't great support within (or outside) Parliament for s 92A, mitigates the outrage. That's also not really the point. It wasn't the point in the action that led to Fitzgerald – which followed an election victory fought over the very law Muldoon purported to suspend. Even then, the Fitzgerald involved suspension of a law in force, where this does not. But I'm still uneasy. There was probably popular (if not particularly strong) opposition to the Civil Union Act; I imagine there would still have been quite an outcry if a politician had come along and said 'yes, Parliament passed this, but people have protested and brought their concerns to me, so we won't be implementing it while we review what to do about it.'

Not much will likely result from this, but I wonder what happens if, in a year's time, we're still in this holding pattern. Does an APRA-initiated judicial review force the Government's hand? Do we really want to find out?

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Three strikes (w/ updates) | Feb 19, 2009 00:13

Play the audio for this post MP3, 43.5 KB

I think it fair that over such an issue as this, given the comments that are to follow, that I start my post with a upfront statement of my view.

I oppose a three-strikes law - I'm pretty comfortable with our jury system, and a system that allows judges who have heard all the evidence to ... um ... actually judge. With any system so rigid as to require, in all instances, a set sentence for an offence, there will undoubtedly be injustices. The closest I think I could come to supporting a three-strike law would be one in which the option of a harsh sentence for a third offence was available to a judge. Which doesn't really count, because that's pretty much already the case.

But this is not your standard three-strikes law. Many – probably most – of the arguments arrayed against the three strikes law in California, and those in other US States, simply do not apply. Indeed, the Sensible Sentencing Trust's David Garrett claims to have gone to the US, and met with organisations actively campaigning for changes to their draconian legislation. He says a law like his draft bill is what these groups are fighting for, and it is a claim with some merit. It's still a three-strikes law, but on the spectrum of laws with mandatory life sentences at the third strike this bill is squarely at the liberal end.

The proposed law does not count as a strike every "felony", but only a very small subset of mostly serious ones. Petty theft will never see you in prison for life, as it has for some Californians. Indeed serious thefts, and burglaries won't bring you within the regime.

The proposed three strikes law has undergone a number of iterations. It still appears in an earlier form on the Sensible Sentencing Trust's website. On the form of bill on that site, the offences which can count as strikes are:

• Sexual Violation (section 128 of the Crimes Act 1961)
  
• Murder (ss 167 & 168)
  
• Manslaughter (s 171)
  
• Wounding with intent (s 188)
  
• Injuring with intent (s 189)
  
• Injuring by an unlawful act (s 190)
  
• Aggravated wounding or injury (s 191)
  
• Aggravated assault (s 192)
  
• Assault with intent to injure (s 193)
  
• Assault on a child, or by a male on a female (s 194)
  
• Cruelty to a child (s 195)
  
• Disabling (s 197)
  
• Discharging a firearm or doing a dangerous act (s 198)
  
• Using any firearm against a law enforcement officer etc. (s 198A)
  
• Commission of a crime while using a firearm (s 198B)
  
• Acid throwing (s 199)
  
• Poisoning with intent (s 200)
  
• Infecting with disease (s 201)
  
• Providing explosives to commit a crime (s 272)
  

You can see that the list was small. Attempted murder wasn't a strike, but smacking was (section 194 is the provision under which parents face prosecution following the amendment of section 59).

To those who doubt that commenting on a 'blog can change anything, I offer this thread on John Ansell's 'blog as proof . Someone finally looked beyond bland assertions and promised to fix it up – if you're designing a three-strike regime, and intending it to apply only to serious violent offences, whatever your thoughts on the criminalisation of smacking, it doesn't belong among them.

Late last year I obtained a copy of the bill in a more recent form by emailing the Act Parliamentary office. Hopefully, I've succeeded in attaching it to this post (it may be pretending to be audio). Section 194 was still in – I imagine it no longer is – but there had been some changes. Section 198 was gone, and there were – I might politely call them drafting instructions – to add attempted murder and manufacture of or possession of mephametamine (sic) for supply (why not all class A drugs?).

But it is still instructive to look at what was missing. Indecent assault was not there. The various crimes relating to sexual abuse of children were missing; even attempted sexual violation (i.e. attempted rape), and assault with intent to commit sexual violation weren't there ('though assault with intent to injure – far less serious – was). Robbery and even aggravated robbery – despite being offences of serious violence – were also missing.

I imagine that some of this has changed. I do not know what, although I understand the bill was introduced under urgency this afternoon: it's not yet available in the usual places.

Apparently, on the bill's introduction, it received a report from the Attorney-General as inconsistent with the New Zealand Bill of Rights Act. Sentencing someone to prison for life, to serve at least 25 years, for offending that might carry a maximum sentence of at most three years (e.g. assault with intent to injure) is pretty likely to run into problems. And for some of the offences which count as strikes in the drafts I have seen – I think particularly of injuring by unlawful act – it would be ludicrously draconian. Injuring by unlawful act can result from very serious actions, but it is also a charge which can result from non-lethal hunting accidents, or the mis-labelling of the peanut content in foodstuffs.

But I shouldn't be too harsh on the bill. Even if it passes (in the supply agreement support was promised only as far as select committee) it will be some time before it takes effect. It is entirely prospective. Unlike its American counterparts, no offence committed prior to the law's enactment counts as a strike. I imagine it would be at least a decade before anyone is even eligible for sentencing for a third strike (except perhaps for violence in prison). They will have to commit a specified offence, and be sentenced normally, commit a second specified offence, and be sentenced for it as a second strike, and upon leaving prison commit a third specified offence, before facing its full wrath. We've passed retrospective criminal legislation before (home invasion sentencing rules were introduced for the purpose of getting not yet convicted criminals longer sentences), but this isn't it.

I don't want to understate the problems of a mandatory three-strike system. On the drafts I've read, it could result in great injustice even on the second strike. On the publicly available drafts, a second strike results in the maximum sentence applicable to the offence (e.g. if the second strike is for injuring with intent to injure then the penalty would be the maximum of five years, if it was wounding with intent to cause grievous bodily harm, the sentence would have to be 14 years). But if the second offence was manslaughter, or possession with intent to supply methamphetamine, it would result in a life sentence. And given that even the Sensible Sentencing Trust thinks manslaughter should sometimes result in leniency, I wonder how they'd view their own bill if a single strike was hanging over a Bruce Emery.

This is obviously the main problem with any mandatory sentencing law – there are just some offences, even though they are covered by the same section of the law, that are just less serious than others. Manufacturing a kilogram of methamphetamine is obviously worse than selling a few points of the stuff, but a second strike for either is a life sentence. Janine Rongonui's 150+ stab manslaughter of Pheap Im is obviously worse than Bruce Emery's killing of Pihema Cameron, and both are worse than a manslaughter charge that might result from dangerous driving. Both meth charges, and both homicides, are serious, but they aren't the same, and any two injuring with intents or two wounding can differ greatly too. It is only just that the law treats them differently.

But I'm also not going to pretend that this proposed law is anywhere near as bad as any of the three-strikes laws in the US. And if someone is opposing it by pointing out life sentences that resulted from stealing chocolate chip cookies or golf clubs, you can pretty much ignore what they have to say. The draft law I've seen only applies to specified offences (and some of the really problematic ones can probably be removed), not theft or burglary; it doesn't bring decade-old convictions back from the dead; it doesn't allow the first and second strikes to occur in the same offending; and it doesn't allow multiple third strikes to make the penalty life with a minimum non-parole period of 50 years. These are the problems Californian opponents of their state's three-strikes law will point out, and the Sensible Sentencing Trust has assiduously avoided all of them.

*Updates*
I've been adding further information on the bill as introduced when able in the comments thread. There's a bit to go, but it seemed sensible to provide links here to my more informative posts:

the link to the bill and the A-G's section 7 report

the list of offences now covered, and those removed from earlier drafts

further changes from earlier drafts noted

a correction to misleading information I gave in answer to a query

*life without parole* for murder

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