The Explosion

Over the weekend, Police Minister Annette King floated the idea of introducing UK-style Anti-Social Behaviour Orders in New Zealand "as a way to overcome Bill of Rights problems with banning individuals and gang patches in public". For those who don't know, Anti-Social Behaviour Orders (ASBOs) are court orders, obtainable by a wide range of bodies against people who acted "in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household", and barring people from being in certain places or doing certain things. They are issued on a civil standard of proof, according to standards of evidence which would shame the average lynchmob - gossip and hearsay are admissible, as is anonymous "evidence" (pedophobia being so strong in the UK that the victims of teenage chavs swearing and sneering are considered to need more protection than the victims of rapists). There is no limit on what can be required by an order (some have effectively sentenced people to exile by forbidding them to reside in their own homes), and the penalty for violating one is up to five years imprisonment.

The basic objection to such a system is obvious: it seeks to punish people without the procedural safeguards of a criminal trial. Those subjected to an ASBO do not benefit from such niceties as the presumption of innocence, the need for proof beyond a reasonable doubt, the right to counsel or the right to challenge their accusers. The entire system is conceived as an end-run around those protections. This is bad enough when used against those accused of petty crime such as vandalism, shoplifting, offensive behaviour and harassment (all of which could be prosecuted under existing law if the British police actually wanted to do their jobs). It is worse when it is used to punish behaviour which is not actually an offence at all. Unfortunately, that is what Annette King is proposing - her chosen targets are boy racers who drive loud cars, gang members who wear patches in public, and convicted criminals who live in Rotorua. None of this is a crime - but if King has her way, people will be facing punishment and possibly jail time for it.

Unlike King, I think that if the state wants to punish certain behaviour, it should pass a law criminalising it, rather than letting the police make up the law as they go along. And unlike King, I take the Bill of Rights Act seriously. If the BORA says that you can't punish people just for wearing a gang patch, or retroactively punish them again for a crime they have already served their sentence for, then that to my mind is a good reason not to do such things, rather than a flaw which must be circumvented with a tawdry legal fiction.