Inconsistent

The government's Summary Offences (Tagging and Graffiti Vandalism) Amendment Bill passed its first reading in the House yesterday. But while the media is focusing on the debate and its attendant hatefest against the young, they've missed an important aspect of the story: the inconsistency of the bill's s7 advice under the Bill of Rights Act.

Back in 2005, Labour MP George Hawkins tried to pass a local bill targeting graffiti in Manukau City. And at the time, the Ministry of Justice (who provide advice on BORA-consistency for most bills) argued that the proposed law violated the BORA because it discriminated on the basis of age. While the prevention of graffiti was "a significant and important objective", the age ban was neither a rational nor a proportionate means of meeting it, and therefore could not be justified under the Bill of Rights Act:

15. On the evidence available, prohibiting the sale of spray paint to minors in Manukau does not have a strong connection to the stated objective of the Bill because it is not likely to minimise the incidences of graffiti. Offenders would still be able to purchase graffiti implements in nearby areas or through purchase on their behalf by an adult. Those committing acts of graffiti are likely to be determined and will find alternative methods of acquiring the necessary equipment. In addition to this, cans of spray paint are not the only graffiti implements identified in the Bill but they are the only ones subject to restrictions on sale. For example, implements capable of etching glass are also identified but minors would still be able to purchase such implements.

16. The restriction on the right is not sufficiently precise to ensure that it addresses only those matters that it is intended to address. Given the extent to which spray paint can be used for lawful purposes and the negative impact that the prohibition might have on law-abiding members of the public, prohibiting the sale of spray paint to minors is disproportionate. The Bill will cause disadvantage to those minors who are not the intended targets of the Bill and who will be unfairly prevented from purchasing spray paint because of their age. The Report of the Manukau City Council on Graffiti Control, produced in 2004, acknowledges that its own legal advice suggests that such restrictions would be found to be in breach of the Bill of Rights Act.

But now that the government has made a war on tagging a policy priority in a shameless effort to grub for votes, all that has changed. The new s7 report finds the discrimination to be both rational and proportionate - despite arguing that it punishes all teenagers to target a miniscule proportion of their number, and that it will be utterly ineffective:

8. On that basis, I note that not all people engaged in tagging are under 18 and, significantly, that tagging appears to be carried out by only a very small proportion of young people: for example, the Ministry of Justice has advised that a Christchurch study suggested that in that city there were only approximately 200 "casual taggers" and 30-50 "prolific taggers".

[...]

10. I note there is some reason to expect that the direct positive effects of the age restriction will be limited. Most widely, it will remain open to young people to use materials or implements other than spraycans and also to obtain spraycans through people aged over 18, including older people engaged in tagging. Further, a similar age limit provision in the Graffiti Control Act 2001 (South Australia) was apparently not effective in addressing graffiti problems.

(Emphasis added).

But these problems are simply blithely dismissed. As for the difference with the earlier bill, the report explains that it was a problem because it only targeted teenagers in Manukau. So, violating the human rights of young people in a limited geographic area is bad, but violating them across the entire country is fine. Do these people ever bother to actually read what they say?

What this shows is the flexibility of the supposedly neutral and objective advice the Attorney-General receives on BORA issues. If the government wants to pass a bill, it will get a clean BORA report, no matter how flawed or overt the violation (see for example the Prisoners' and Victims' Claims Act, or the Criminal Proceeds (Recovery) Bill working its way through Parliament). For this reason, the task of vetting legislation for consistency with the BORA should be taken away from MoJ and Crown law, and put in the hands of a truly independent organisation, such as the Human Rights Commission.