Legal Beagle by Graeme Edgeler

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Gordon Campbell @GordonCampbell_ #GordonCampbell

Gordon Campbell has written an important article for this month’s Werewolf, detailing the concerning nature of this Government’s attitude to the rule of law.

However, while the article makes a large number of important points, some of the detail is exceedingly odd, in particular, his assessment of the Government’s approach to Bill of Rights Reports, which Gordon draws upon in support of an overall thesis that this is all much worse than we have seen before:

4. Token Bill of Rights Act (BORA) Reports. Routinely, the Attorney-General vets new Bills as to whether they comply with the Bill of Rights. Just as routinely, the government ignores the conflicts that ther A-G identifies. Here are a few examples of where the Key government has ignored its legal puppet and passed laws that violate human rights supposedly protected by BORA, and/or by international conventions that New Zealand has signed

No reason is given as to why the Attorney-General is the Government’s “legal puppet”, and I would have thought that the fact Chris Finlayson is making so many reports suggests he probably isn’t a puppet. But that is less important than the example’s Gordon gives of where the Key Government passed laws that violate human rights.

Gordon’s first example, the Criminal Investigations (Bodily Samples) Amendment Act draws no further comment from me. It seems a perfect fit for the argument. However, his second example - the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill - is laughable:

  • it isn’t a government bill. It is a member’s bill, albeit from a National Party MP.
  • it also hasn’t passed. The strong hint that this was the case is probably in the use of the word “Bill”, but it makes a list of laws passed by the Key Government anyway.
  • this bill is still before a select committee, and it has already been indicated that it will not continue in the same form. We will need to wait to see whether this is still in a form which would breach the Bill of Rights, but even if it is, it won’t be as a bad as it is now.

Gordon’s third example is the Parole (Extended Supervision Orders) Amendment Act 2009. Extended Supervision Orders are problematic, but this act didn’t create them. They were created in 2003 by the Labour Government in the Parole (Extended Supervision) and Sentencing Amendment Bill. National’s bill made some largely technical changes, properly characterised as errors in the original legislation. Fixing the errors did have the effect of extending the powers of the Parole Board, but not in a way beyond that which was originally intended, which was why it got a section 7 report. National can, perhaps, be challenged for not repealing extended supervision orders, but this bill’s inclusion in this list makes no sense.

Gordon’s next example is the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010. I agree it is worthy of a place in a list of unreasonable laws passed under Key’s watch, but Gordon’s description of its effect is seriously in error. Gordon states:

Probably the Key government’s most craven pitch for the talkback radio vote. This Act effectively removes the right to vote from every New Zealander who happens in prison at the time of a general election.

Again, this wasn’t a government bill, but a member’s bill, but more importantly, saying the bill “effectively removes the right to vote from every New Zealander who happens in prison at the time of a general election” is simply wrong. The law does not apply to all prisoners. It does not apply to people who are in prison for non-payment of fines, or those in prison for contempt of court, or those in prison for disobedience of a court order. It also does not apply to service prisoners detained under the Armed Forces Discipline Act. It does not cover those detained in prison awaiting extradition hearings. And most importantly, it does not apply to prisoners who are on remand awaiting trial or even those remanded to await sentencing. 

Next we have the Sentencing and Parole Reform Act, otherwise known as the three strikes law. Unfortunately, Gordon paraphrases the Law Society’s views at the select committee: “this provision for a life sentence to be imposed for a third listed serious offence appears inconsistent with the right not to be subjected to disproportionately severe treatment”. This might be right, but it’s a particularly poor example to use of the Government ignoring human rights concerns, because on this issue, the Government listened to criticism and removed that provision before it passed the law. The three strikes law does not provide for life sentences for third strikes.

Next we have the Corrections Amendment Act 2013, in respect of which Gordon’s analysis seems fine. The strip-search provisions of this bill, which were opposed by not only the New Zealand Law Society, but also the Ombudsman, and the Corrections Association, seem unnecessary.

Finally, we have the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Act 2013. This too is offensive, but like the Extended Supervision Order regime, this is merely a re-enactment of a law passed by Labour. National did announce it was going to go further than Labour did, but there was objection, and it backed off. The law offends against the right to an effective remedy for state breaches of rights, but it doesn’t really belong in a list aimed at pointing out how much worse than previous governments National is.

Gordon lists other bills he considers problematic, with many of his arguments overstating any problems in the bills. He describes the Search and Surveillance Act as allowing searches without warrants, but doesn’t state that the old law allowed them too. He uses the production order system, which has been designed to be less invasive than the aspect of the search warrant procedure it replaces, as an example of overreach. A member’s bill providing for secret ballots for strikes – a worker protection mechanism – is objected to because it doesn’t similarly apply to boards of directors, who have no say in lockouts, and who don’t need protection. He argues that the removal of a tax break provided to companies is anti-worker, despite it applying to money employers have no option but to pay to workers.

The simple point is that none of these overstatements is necessary to make the overall argument that Gordon Campbell makes. There are plenty of objections in respect of state overreach and civil liberties that can be laid at the Government’s door without resorting to the fallacious examples the article uses. Arguments like these, which are easily rebuttable, weaken the case, and I like to think we deserve better from someone I have recently seen described as New Zealand's leading political journalist.

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