Unimpressed III

Back in June, I received some Cabinet papers on the government's "boy racer" laws from Minister of Police Judith Collins. While the papers did show that Treasury thought the proposals would not work, they were riddled with deletions, almost all made under s6(c) of the OIA, potential prejudice to the maintenance of the law.

Given Collins' past record of information control-freakery, I complained to the Ombudsmen, challenging the deletions on the basis that there was no prejudice. Under the Ombudsmen's Practice Guidelines [PDF],

It is not sufficient to simply assert that disclosure of the information will have a prejudicial effect. The public sector agency must be able to identify, with sufficient particularity, the nature of the prejudicial effect and explain how such prejudice will occur in order to meet the tests for withholding in section 6.

Furthermore, there must be "a real and substantial risk" that the prejudice will occur. Based on other releases, I suspected that the Minister was censoring material which undermined her preferred policy or made the police look bad - a clear misuse of the Act.

My suspicions were correct. A new version of one of the documents I received today - sans deletions - showed that the Minister had attempted to remove material showing:

• Police were reviewing their operational procedures to managing public disorder associated with street racing - implying that those procedures were flawed (and arguably a significant cause of the problem in Christchurch);
• The large numbers of people involved in street racing events presented "practical difficulties" for police;
• Increased demerit points were more effective than fines in handling noise offences, but police had explicitly ruled out such an approach;
• Police have had persistent trouble enforcing the graduated driver licensing system;
• Amendments to the bill would close a loophole around enforcement of fines and sale of confiscated vehicles. This was obvious the moment the bill hit the House, but it was censored from documents released after the bill was introduced;

The common theme here is anything which makes the police look bad or ineffective. But while that may be an embarrassment for the Minister and the Police, it is hardly a prejudice to law and order, and not a reason for withholding information under the Act. Hopefully the Ombudsman will have educated Collins about this. otherwise, she'll be getting a lot more complaints.

"Boy racers": Reported back

The Transport and Industrial Relations Committee has reported back [both PDF] on the Land Transport (Enforcement Powers) Amendment Bill and the Vehicle Confiscation and Seizure Bill. The bills establish a draconian regime targeting "boy racers", criminalising "cruising" and allowing their cars (or those of "substitutes for the offender") to be impounded, confiscated, and crushed for a variety of mostly minor offences. Despite serious human rights concerns and no evidence that these measures will work, the select committee has reported the bills back without substantive amendment, and the major parties are already positioning themselves for yet another unseemly competition to see who can be the most vicious and inhumane (yes, Labour objects to one of the bills because it doesn't go far enough). Meanwhile, the report on the Land Transport Bill neatly sums up the lack of actual need for new legislation:

We understand that there are effective interventions being undertaken by the New Zealand Police, such as Operation Sniper in Counties Manukau, and that measures have been taken by the New Zealand Police to ensure that operational responses to illegal street racing are national and consistent. This includes the Police fully utilising all existing legislation and clearly monitoring illegal street racing in each district.

In other words, to the extent that there is a real problem - as opposed to pure pedophobia - it can be handled under existing legislation. But I guess there's no votes for any politician in admitting that.

"Boy racers": "severe punishment"

Yesterday the Herald reported on the Transport and Industrial Relations committee's hearings into the government's "boy racer" laws, and specifically on the Motor Trade Association pointing out that crushing cars rather than selling them is mindlessly vindictive and makes no financial sense. It also reported the Police Minister's response:

But Police Minister Judith Collins says this is unlikely and public support for severe punishments for the worst offenders is overwhelming.

I'll leave aside Collins' characterisation of people who drive round and round in circles as "the worst offenders" for the moment, because I have a bigger target. Crown Law's advice that the bills complied with the Bill of Rights Act relied very heavily on the view that confiscation and crushing was not in any way a punishment for offending, or that if it was, it was "of a limited character". Here we have the Minister admitting not just that its a punishment, but a "severe" one. Which rather blows Crown Law's arguments (and the BORA-consistency of the bills) out of the water, neh?

Collins can't have it both ways. If confiscation and seizure are punishments, then the bills are inconsistent with the BORA, as those punishments are disproportionate and intended to be inflicted without trial. But if they're not, she doesn't get to grandstand. I wonder which one she'll choose?

"Boy racers": Submission II

Below is the draft of my submission on the Vehicle Confiscation and Seizure Bill, which I'll be emailing away before Friday. It has been informed by posts here and here.

• I oppose the Vehicle Confiscation and Seizure Bill and ask that it not be passed.
• The chief purpose of the bill is to allow the confiscation and destruction of vehicles as punishment for illegal street racing offences. According to the government’s own advice, there is no evidence that this measure will work, and no empirical case has been made for it. According to Treasury comment on the Cabinet paper approving the proposal, there was “no analysis, evident in the paper, that any of the measures proposed are likely to be effective in influencing behaviour and achieving the stated objectives”.
• Policy should be evidence-based. This is not. It seems to be aimed primarily at securing “tough on crime” headlines for the Minister. That is not a proper goal for public policy.
• Recommendation: the entire confiscation and destruction regime should be removed from the bill.
• As part of this goal, the bill allows the confiscation and destruction of vehicles from third parties as “punishment” for the crimes of others. It uses the Orwellian phrase “substitute for the offender” to refer to these third parties. A better term would be “scapegoat”.
• Such collective punishment is as absurd as it is immoral. It violates fundamental standards of justice and ignores completely the link between behaviour and punishment. If it was performed in time of war, it would be considered a war crime. This bill would impose it in time of peace.
• In addition to being collective punishment, this confiscation of third-party vehicles also constitutes punishment without trial. Under the bill, person A is tried, and as a consequence person B’s vehicle may be confiscated and destroyed. Person B has not been charged with any offence, let alone been tried, and has had no chance to defend themselves. While they have access to an appeals process, this is with a reverse onus of proof which stacks the legal deck against them. This would not be an appropriate process for a speeding ticket, let alone the confiscation of a vehicle potentially costing tens of thousands of dollars.
• Crown Law has argued that as this confiscation “[does] not involve any penalty other than the loss of the vehicle”, it is not a punishment, and as there is no trial, it does not constitute punishment without trial. I hope that the committee can see the absurdity of such arguments. As with impoundment under the Land Transport (Enforcement Powers) Amendment Bill, it is performed by agents of the state, using the coercive power of the state, and inflicted explicitly for violation of the law (albeit by another). It is explicitly intended as a deterrent. These are all the hallmarks of a punishment, and it will be understood as such by those it is inflicted upon.
• Recommendation: if the confiscation regime is preserved, those sections allowing confiscation and destruction of vehicles owned by a “substitute for the offender” should be removed.
• I do not wish to make an oral submission to the Select Committee.

"Boy racers": Submission I

Below is the draft of my submission on the Land Transport (Enforcement Powers) Amendment Bill, which I'll be emailing away before Friday. It has been informed by posts here and here.

• I oppose the Land Transport (Enforcement Powers) Amendment Bill, and ask that it not be passed.
• The primary purpose of the bill is to create a bylaw scheme targeting “cruising”, punishable by automatic seizure of the vehicle on a second offence. This scheme has numerous problems, undermines the rule of law, and is contrary to the Bill of Rights Act 1990.

  Definition of “cruising”

• The bill defines “cruising” as:

  driving repeatedly over the same section of a road in a motor vehicle in a manner that—
  (a) draws attention to the power or sound of the engine of the motor vehicle being driven; or
  (b) creates a convoy that—
  (i) is formed otherwise than in trade; and
  (ii) impedes traffic flow
  

• The definition is potentially applicable to protest action, such as the 2008 “big rig” protest against increased road-user charges, which shut down the centre of several cities with organized convoys of large trucks. It thus potentially violates the freedom of expression affirmed in the New Zealand Bill of Rights Act 1990.
• Recommendation: the definition of “cruising” should be amended to explicitly exclude political protests.

  Bylaw regime

• New sections 22AB – 22AE would allow local authorities to enact bylaws banning “cruising’. New section 22AF provides that any vehicle breaching such a bylaw be issued with a warning notice for 90 days. Section 16 amends the Land Transport Act to require that any vehicle with a warning notice contravening such a bylaw must, if practicable, be impounded. This scheme has numerous problems and violates the Bill of Rights Act 1990 in numerous ways.
• The bylaw regime prima facie violates the freedoms of assembly, association, and movement affirmed in the BORA. Simply put, if someone wants to waste petrol by driving round and round a particular piece of road, they should be allowed to. If they are not driving unsafely (as tested by whether they are obeying speed limits and other relevant traffic regulations), then there is no harm to anyone but themselves, and no justification for state intervention. If they are joined by friends, then again provided it is done safely, there is no harm, and no justification for intervention. As John Stuart Mill noted, “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection”. There is no such case here.
• A case can be made for limiting vehicle noise, as this may do harm to others when it is excessive. But that is not the primary purpose of this bill.
• The punishment is grossly disproportionate. The proposed punishment for this “offence” of driving round and round in circles is (on the second offence) mandatory impoundment of the vehicle for 28 days. This is a significant punishment, which imposes significant costs. By way of comparison, a penalty of mandatory impoundment is only applied at present to disqualified drivers and drunk drivers who are grossly over the limit and already have multiple convictions for drunk driving. Here, it is being imposed for driving which is not unsafe, but which can at best be described as “annoying”. Such disproportionately breaks down the proportionality of offences and encourages (no, incites) disrespect for the law.
• It may be argued that impoundment is not a punishment. This is simply ridiculous. It is performed by agents of the state, using the coercive power of the state. It is inflicted explicitly for violation of a bylaw. Unlike the existing reasons for impoundment, it serves no safety purpose – driving round and round in circles within the road rules is not any sort of risk to safety. It is explicitly intended as a deterrent. These are all the hallmarks of a punishment, and it will be understood as such by those it is inflicted upon.
• The punishment is imposed without trial. Impoundment is performed by a police constable at the roadside. There is no hearing, and no need for evidence beyond their “reasonable belief” that a law has been violated. While this may be acceptable for a speeding ticket, it is entirely inappropriate to impose such a significant penalty as vehicle impoundment without proper judicial oversight.
• Recommendation: this section of the law should not be passed.

  Information requirements

• Section 24 would amend existing provisions of the Land Transport Act 1998 requiring drivers to provide identifying details (name, address and date of birth) to include occupation and telephone number. This seems totally unnecessary, and simply an information grab on the part of police. It prima facie violates the freedom of expression (which includes the freedom to say nothing), and so must be justified. No such justification is provided, and no evidence is submitted that there is a problem with identifying drivers which would be solved by requiring them to submit further information. The police do argue that there is a problem with drivers providing false details, but it is difficult to see how requiring further details which can be easily falsified will solve this.
• There are significant concerns in a democratic society around any compulsion to reveal information or prove your identity to police. “Papers, please” is widely taken as the hallmark of totalitarianism. Requirements to prove identity establish a power relationship with police and the state in which citizens are forced to be subservient – the exact opposite to what should prevail in a democracy. Such requirements should therefore be kept to an absolute minimum, and ask only for information that is strictly required to meet an important public purpose. A policeman by the side of the road may need to know my name (and address, and date of birth, as names are not exclusive) in order to verify that I do have a driver’s license and am not currently the subject of an arrest warrant – but they do not need to know what I do for a living, or what my phone number is. And they certainly should not be able to imprison people for refusing to reveal what is fundamentally private information.
• Recommendation: this section should be removed.
• I do not wish to make an oral submission to the Select Committee.

"Boy racers": arbitrary detention

The government-directed police crackdown on "boy racers" seems to have developed a new tactic: arbitrary detention:

Police corralled 120 boy racer vehicles in a Kaiwharawhara car park while the cars underwent thorough road-worthiness checks.

The four-hour police operation ended early yesterday morning with 15 cars ordered off the road and 38 infringement notices issued.

It happened in the Spotlight car park at the bottom of Wellington's Ngaio Gorge, from 10pm on Thursday to 2am yesterday.

I am struggling to see a legal basis for this, and it seems to constitute arbitrary detention. Detention because, while the police claim in the article that the drivers were "free to come and go as they pleased", the drivers clearly did not feel that that was the case, with one quoted as saying

"We were prisoners in the car park until they finished inspecting our vehicles."

The test for detention is a reasonably held belief induced by the conduct of police or officials that someone is not free to leave. That is clearly the case. Contrary to the claims of the police, these people were detained.

Was that detention arbitrary? Yes, on two grounds:

• While the police unquestionably have powers to stop motorists in order to inspect vehicles and if necessary order them off the road, that requires a reasonable belief that a specific vehicle does not comply with the regulations. This was clearly not true in this case - the police applied a blanket policy of testing every vehicle in the area, based solely on its location. And that is a prima facie case for arbitrariness. Where the law provides for the exercise of a power to detain, then the appropriateness of exercising that power must be assessed in each case. Detaining someone as part of a blanket policy is an unlawful abdication of discretion (Attorney-General v Hewitt [2000] 2 NZLR 110, which found that a blanket policy of arresting all suspects in domestic violence cases and detaining them overnight to "cool off" was unlawful).
• Initially lawful detention can become arbitrary if its duration becomes excessive. This is most famously seen in the case of Ahmed Zaoui, but it applies in other circumstances as well. Here, the power of police to incidentally detain while enforcing the road regulations is limited to only as long as is reasonably necessary to complete the exercise of the power or duty concerned (interestingly, in the case of a roadside stop to establish the identity of the driver this is limited to 15 minutes, which suggests that such incidental detentions are expected to be brief). Here, people were detained for four hours. The police might argue that that was the quickest the seven officers involved in the operation could inspect the vehicles - but I would suggest that if they planned to detain 120 cars, then they should have provided the personnel to conduct the inspections quickly enough not to infringe upon the civil liberties of the drivers.

There is a further question of whether the detention was for an improper purpose - not enforcing road safety, but intimidating "boy racers". The fact that fully two-thirds of the vehicles detained were found to have no problems supports this.

In their zeal to get "tough on crime" headlines for the Minister, the police seem to have overstepped the bounds of the law. They should be held to account for it.

"Boy racers": Treasury says it won't work

Back in April, the government announced that Cabinet had signed off on its proposed anti-"boy racer" laws. Naturally, I requested the relevant Cabinet papers from the responsible Minister. Naturally, the Minister didn't want to hand them out. And having finally received the relevant Cabinet paper (after a second, illegal, extension) I can see why: because Treasury thought her ideas for getting positive media coverage by being "tough on crime" controlling "boy racers" through draconian measures wouldn't work. Here's what they had to say:

Regulatory Impact Analysis

Treasury does not consider that the Regulatory Impact Statement (see Appendix 3) would currently meet the Regulatory Impact Analysis criteria.

[...]

Treasury considers that some suggestions in the paper, such as rebalancing demerit point deductions with fines, and issuing notices to "forbid to drive", are potential low cost options for enhancing existing procedures. [Three sentences withheld under s9(2)(g)(i) OIA - "free and frank advice"]

However, there is no indication that these measures will be effective in altering illegal street racing behaviour.

Treasury is unable to support the full suite of proposals because there is no analysis, evident in the paper, that any of the measures proposed are likely to be effective in influencing behaviour and achieving the stated objectives. Likewise, there has been no assessment of potential risks arising from unintended consequences of the proposals.

(Source: Joint paper from Ministers of Police and transport to Cabinet Domestic Policy Committee on "Land Transport (Illegal Street Racing) Bill and Vehicle Seizure and Confiscation Bill" 6 April 2009 (sorry, no POL number); Emphasis and links added)

The exact proposals Treasury is referring to have been censored, but they can quite easily be worked out by a process of elimination: it's the high profile, draconian bylaws, seizures, crushing and punishing the innocent Collins needs to get her "tough on crime" photo ops. And Treasury thinks that they will not work (or at least that the Ministers of Police and Transport have not made any case that they will).

These draconian laws are about PR, not policy. They should be dumped immediately.

"Boy racers": legal gymnastics

Last month I wondered in passing whether the government would be able to do the legal gymnastics required to avoid finding that its anti-"boy racer" laws violate the New Zealand Bill of Rights Act. The BORA-vets have now finally turned up on the Ministry of Justice site, and they show considerable acrobatic ability in finding that there are no inconsistencies.

On the Land Transport (Enforcement Powers) Amendment Bill (which allows "anti-cruising" bylaws with mandatory impoundment as a penalty), Ministry of Justice advice identified numerous conflicts with the BORA, including

freedom of peaceful assembly, freedom of association, freedom of movement, freedom from unreasonable search and seizure, liberty of the person and the right to justice

In addition, there were also problems with disproportionate punishment and punishing the innocent. The BORA vet ignores these substantive issues to focus on two: whether the "without reasonable excuse" language in the definition of "cruising" violates the presumption of innocence, and whether impoundment constitutes an unjustified seizure. Naturally, it finds that neither is a problem - and their arguments here are not unreasonable (they are right in that "without reasonable excuse" language is a common part of driving regulation, and that bans on search an seizure are primarily related to privacy, not property rights). But in the process, it also considers whether mandatory impoundment constitutes a criminal penalty imposed without charge or trial. And here, they simply leave the planet. While carried out by law enforcement officers, triggered by a belief that an offence has been committed, and explicitly recognised by Crown Law as having "substantial adverse consequences" intended to have a deterrent effect, the fact that it is "broadly separate from the criminal process" means that it is not a penalty. In other words, because it is imposed without trial, it is not punishment without trial. Only a lawyer could be this perverse. But those whose vehicles are impounded by agents of the state on an allegation of criminal offending will be under no illusions about what is going on: this is a penalty for their alleged offending, done on the word of a police officer alone, with no hearing or evidence involved. If that's not punishment without trial, then its difficult to see what would be.

(Oh, and while I'm at it, those "substantial adverse consequences" morph into "a limited character" within about six lines. I suggest we take the Attorney-General's car off him for 28 days and see how "limited" he thinks it is...)

Concluding that impoundment is not a punishment allows them to ignore whether it is disproportionate, and whether people should suffer the same penalty for driving round and round the Square on a Friday night as they would if they were a severe repeat drunk driver.

On the Vehicle Confiscation and Seizure Bill (which allows car-crushing, and introduces the Orwellian term "substitute for the offender" to allow the seizure and destruction of the vehicles of innocent third parties), Crown Law recognises that this raises the question of

whether the third party is being punished for the offending of another without charge or trial.

Unfortunately they then perform a similar legal trick. While the seizure of an offender's vehicle, whether for unpaid fines or as part of a criminal sentence is a punishment, seizure of a scapegoat's isn't because they haven't been charged with anything. The fact that there is no criminal record and no finding of guilt means that the taking and crushing of your vehicle (and a prohibition on owning another one for a year) is not any sort of penalty or punishment. And since its not a punishment, it can't be punishment for the offending of another or punishment without trial. As I said, only lawyers could be this perverse. Those whose vehicles are seized for the actions of another will be under no illusions about what is going on or what is intended: they are being punished, for something they are not even accused of doing. It's not just absurd, but fundamentally immoral.

With these reports, Crown law has shown the worthlessness of the section 7 reporting procedure - the government's legal whores (sorry, that's needlessly insulting to members of the oldest profession) will say what they are paid to say, and twist things as much as they need to to earn their thirty pieces of silver. The only way we are going to get proper compliance with the BORA by the government is if we allow the courts to overturn laws for inconsistency.

Submit!

The Transport and Industrial Relations has called for submissions on the Vehicle Confiscation and Seizure Bill and the Land Transport (Enforcement Powers) Amendment Bill. Two copies for each bill, by Friday, 3 July 2009, to:

Transport and Industrial Relations Secretariat
Parliament Buildings
Wellington

These bills are absolutely draconian. They punish the innocent, impose punishment without trial, undermine the rights of the accused, and generally trample all over the BORA so the Minister can grandstand about how "tough" she is. Even if you are not a boy racer and hate the obnoxious little creeps, you should care about this. So speak up, and protect your human rights from a draconian and authoritarian government!

Making a submission is as easy as writing a letter saying that you support or oppose the bill and stating the reasons why. If you need help, the Office of the Clerk has a handy guide here [PDF].

"Boy racers": what actually works?

The policy advice on National's proposed "boy racer" laws is a goldmine of information. For example, they have some details on what has actually been found to work in preventing and reducing illegal street racing. And it's not the sort of draconian measures favoured by Judith Collins:

Illegal street racing occurs to some degree in many locations throughout New Zealand. Local initiatives to combat illegal street racing and associated antisocial behaviour have often been successful, and have not resulted in the escalation of problems seen in Christchurch. Some examples of such action are outlined below.

Hamilton liquor ban and traffic calming measures

Hamilton City Council identified a portion of one of the city's avenues to be particularly attractive to illegal street racers due to its configuration (two lanes in each direction separated by a narrow centre verge with an ample roundabout at one end, and a parallel access road with a clear vantage point for spectators at the other end). This gathering place, referred to by illegal street racers as "T-straight", attracted hundreds of individuals from Hamilton and as far as Tauranga and Auckland. Antisocial behaviour (including damage to surrounding businesses) increased in line with crowd numbers and intoxication levels.

In 2007, Justice, via the Crime Prevention Unit, provided Hamilton City Council a one-off grant of $10,000 for a Crime Prevention Through Environmental Design (CPTED) assessment and actions to address alcohol and vehicle related crime in the city. as a result, Hamilton City Council instigated a liquor ban in the "T-straight" area and placed gates at the end of the parallel access ways (the gates are locked every Friday, Saturday and Sunday nights to prevent vehicles completing the "racing circuit"). Hamilton Police have been key supporters of these initiatives which have proven successful in discouraging illegal street racer activity in the area.

Tauranga Bylaw

In October 2007, Tauranga City Council passed the Traffic and parking Bylaw, known as the "boy racer bylaw". The Bylaw bans the congregation of people in vehicles, between the hours of 9 pm and 5 am, in 62 streets in the industrial areas of the city. the fine for breaching the bylaw is $750.

Tauranga Police report that, since the bylaw was passed, there has been a significant reduction in illegal street racer activity [One sentence withheld under s6(c) OIA - maintenance of law and order] Police suggest there are two contributing factors in the reduction of illegal street racer activity in Tauranga. Firstly, the Bylaw itself, as it was well publicised at the time of introduction and enforced by Police. Second, an illegal street racing incident led to the death of a member of the illegal street racer community. The death and the ensuing prosecution of two illegal street racers focused media attention on the issue of illegal street racers in the Tauranga community.

New Plymouth off-road facility

Following the death of an illegal street racer in New Plymouth, members of the illegal street racer community approached the City Council for support to develop an off-road facility to hold gatherings and to do "burn outs" in a controlled environment. Council staff were involved in the project which was also strongly supported by New Plymouth Police.

In October 2008, a lease agreement was negotiated with a local speedway, and money raised to lay down a concrete pad and develop safety measures. Larger events have attracted 1400 people and are held every two weeks. Police have a strong presence at events where everyone who goes onto the concrete pad is breath tested. Police have also increased enforcement action in traditional illegal street racer "hot spots", thus creating additional pressure to engage in the now legitimate racing activity.

new Plymouth Council staff report that, on the nights when events are held, there is a reduction in the number of illegal street racers at the traditional meeting points, including a significant reduction in rubbish and beer bottles. There has been no retaliation from the illegal street racers to the off-road facility initiative.

Manukau dedicated Police team

Most of the illegal street racer activity in Manukau took place near the airport. This led to significant complaints from airport management relating to illegal street racer activity, oil on the road, staff not getting to work on time for night shifts and visitors and tourists having access to the airport impeded.

A dedicated police team (Operation Sniper) was established two years ago to target illegal street racing. Both Manukau City Council and Police identify Operation Sniper as the key to managing illegal street racer activity in the area.

(Memo to Ministers of Justice and Courts on "proposals to address illegal street racing and associated antisocial behaviour", 20 February 2009)

The government's chosen measures, OTOH, seem to lead to this...

Some of these measures have human rights problems of their own - but nowhere near as serious as punishing the innocent. The common themes seem to be minor changes by local authorities, cooperation with street racers to reduce risk, and targeted policing. But none of that lets the Minister posture in front of a car crusher. And so policies which actually work - while apparently forming part of the government's response - take a back seat to the PR-driven draconian polices which won't.

"Boy racers": why you should care

Firstly, they discard the entire idea of justice, instead seeking to curb street racing by punishing the innocent. If a person commits multiple street racing offences, they will punish them by taking someone else's car away and crushing it.

Secondly, it takes a car crusher to human rights, violating the freedoms of movement, association, peaceful assembly, and from unreasonable search and seizure, not to mention the rights to justice and the right against disproportionate punishment - all of which are affirmed in the Bill of Rights Act and in multiple international instruments our government has sworn to uphold.

No-one likes boy racers. They're loud, obnoxious, and a danger to cats. But justice and human rights are indivisible. We need to protect them for everyone, even people we despise, or we have no right to claim those protections ourselves. What the government is doing here is simply wrong, and we should stand up and tell them so.

"Boy racers": the details II

So, what's actually in the government's anti-"boy racer" legislation? Here's the details on the Vehicle Confiscation and Seizure Bill.

This is the bill which actually allows the crushing. It amends the Sentencing Act 2002 to insert new sections allowing for the confiscation and destruction of vehicles for a third street racing offence. It begins to get decidedly draconian when it introduces the Orwellian term "substitute for the offender". You see, Judith Collins thinks that at the moment

[i]llegal street racers are currently able to commit an offence in another person’s car and avoid the full force of the law

Her solution? Punish the person who owns the car, regardless of actual guilt. And so innocent third parties who own vehicles become (with the service of a legal notice) "substitutes for the offender", and if the offender doesn't actually own a car to send to the crusher, theirs will do instead. And if they no longer own a car, the "substitute for the offender" (fuck it, lets call them what they really are: scapegoat) can be banned from owning a car for 12 months, just to ram the point home that they shouldn't have not done that thing they're not actually on trial for (or even accused of doing).

Putting it like that shows the fundamental absurdity here: this law aims to punish people for things they are not even accused of doing. And that's not just absurd, but fundamentally immoral.

The second part of the bill allows vehicles to be seized and sold for unpaid fines, and extends the scapegoating mechanism to allow "substitute" vehicles to be seized and sold if the offender doesn't have one.

This isn't justice, it's a legal lynching. Unfortunately, the drafters of the BORA never considered that our lawmakers would throw the entire idea of justice - you punish the actual offender, and you punish them proportionately to the crime - out of the window and instead start vigorously squicking innocent third parties, and so there is no actual protection in law against this. The closest thing that applies is that it is by definition disproportionate - but that obscures the real horror of what is being proposed.

To put it in printable language, I am exceedingly angry about this. Our justice system may be flawed, it may get it wrong sometimes, but it at least tries. Collins doesn't think we should even bother. Her proposals would corrupt our police and justice system into a mechanism for handing out random "punishments" with absolutely no link to behaviour. It is as if she was sending the police out to beat random people on the street in response to burglaries. That is not justice, and if the system is going to do that, there is no point having one, and we might as well be back in the metaphorical State of Nature.

And why is the government doing this? So Judith Collins can get a few "tough on crime" soundbites. Again, I'd prefer our Ministers kept their impotence issues between them and their psychologists, rather than working them out in public by crushing our human rights.

"Boy racers": the details

So, what's actually in the government's anti-"boy racer" legislation? The bills are now on the web, and here are the key details:

Land Transport (Enforcement Powers) Amendment Bill

Amends the Land Transport Act 1998 to give councils the power to ban "cruising" and create an ASBO-style enforcement mechanism to punish those violating them. The first interesting point is their definition of "cruising":

cruising means driving repeatedly over the same section of a road in a motor vehicle in a manner that—
(a) draws attention to the power or sound of the engine of the motor vehicle being driven; or
(b) creates a convoy that—
(i) is formed otherwise than in trade; and
(ii) impedes traffic flow

But this doesn't just cover obnoxious boy racers driving round and round the (Palmerston North) Square every Friday night; it also clearly covers "boobs on bikes" parades, as well as any form of motorised protest (for example, the "big rig" protest last year). The wowsers on the Auckland City Council will be rubbing their hands together with glee.

If a car violates the bylaw, the police get to sticker it with a 90-day warning notice. If it violates it again while under such a notice, the police must seize the vehicle. If the driver is not the owner, tough luck - while there is an existing basis for appeal on the grounds that the owner "did not know and could not reasonably be expected to know that the operator of the vehicle" would engage in illegal street racing, there is no amendment updating that to include contravention of an anti-cruising bylaw. The rhetoric from Collins in Parliament today has been about boy racers "escaping punishment" because they are not driving their own vehicles; her solution to that appears to be to punish the innocent.

As a side note, currently the police must impound vehicles only from disqualified drivers or severe repeat drunk drivers. I'll leave it as an exercise for the reader to decide whether "cruising" (as defined above) is on a par with such offences.

The bill makes some minor tweaks around licensing laws and suspensions, and prevents suspects whose vehicles are likely to be confiscated as a result of repeat offending (not just boy racing) from selling their vehicles (which is apparently a major frustration for the law). In the process, it also makes another nasty little power grab, amending the current requirement to give details to police officers to include not just your name, address and date of birth, but also your occupation and telephone number. Which is getting awfully close to "papers, please". And if the police don't like your answer - sorry, think it is false or misleading - they get to arrest you (though exactly what the offence justifying that arrest is is unclear - pissing off an authoritarian not technically being a crime in New Zealand). As Charlie Skelton pointed out in the conclusion to his recent series on trying to report on the Bilderberg meeting in Greece, the little things like this - "the power to ask, the obligation to show" - matter. They establish power and force subservience. And we should oppose them whenever they go beyond the bounds of what is strictly necessary for enforcement of the law. A policeman by the side of the road does not need to know what you do for a living, or your phone number. And they certainly shouldn't be able to drag you off to jail for refusing to tell them.

I'll deal with the other bill in another post.

Update: As multiple people have pointed out, the clause "driving repeatedly over the same section of a road" probably protects "boobs on bikes". But the truck protests - which drove round and round Parliament blocking traffic - would be covered, as would any similar action. And at the end of the day, I don't trust our local authorities - dominated as they are by authoritarians and wowsers - not to abuse this law. The definition needs to be amended to make it very clear that it does not cover protest action (and then boy racers will drive round and round The Square with "save the whales" and "fuck the government" plastered all over their cars. And good on them too)

"Boy racers": how many cars will they crush?

The government introduced its anti-"boy racer" bills to Parliament today, and in keeping with its "tough on crime" PR strategy, focused on the new power to crush vehicles, with Police Minister Judith Collins saying that "every new offence will bring [boy racers] closer to the crusher".

This raises the obvious question (again unasked by the Herald): how many cars do they plan to crush? The bill allows for confiscation and destruction after third illegal street racing offence. How many cars is that? Here's the estimate from their advice on the matter:

[In 2007] 10 offenders were convicted of a third illegal street racing offence within four years.

So, about ten crushings a year. In other words, the whole thing is nothing but a "tough on crime" PR exercise.

"Boy racers": The bylaw option

The government will introduce its anti-"boy racer" bill to Parliament today allowing for the impoundment and crushing of vehicles. It will also allow local authorities to pass "anti-cruising" bylaws, but the Herald story is light on the details. Fortunately, thanks to an OIA request, I have them.

The bylaw scheme is essentially the "vehicle warning notice" scheme the police initially demanded - the one which is worse than ASBOs. Local authorities can already pass such bylaws, and they have been effective in reducing street racing in Manukau City. But merely being effective doesn't get the government the "tough on crime" coverage they want, and so they want to replace the current penalty - a fine of up to $750 - with an ASBO-style scheme:

Those vehicles where the driver is given a notice for a breach of a bylaw that restricts access to certain locations during certain times (for the purpose of limiting illegal street racer activities) would have a warning notice attached. The warning notice will advise that if any driver of the vehicle is apprehended for another qualifying offence within a specified period (eg 3 months), the vehicle must be impounded for a period of 28 days.

(Memo on "Illegal street racing: disorder, vehicle warning notices, destruction and costs" [PDF], 6 March 2009; emphasis added).

Note the absence of any trial or hearing - if the police want your car, they take it. Note also that while it is not financial in nature, the punishment for breach of a bylaw - impoundment for 28 days - entails significant costs and inconvenience, which may be disproportionate to the offence. And that's just the beginning of the BORA problems:

The basic bylaw proscribing "cruising" is unlikely to raise any significant Bill of Rights issues when applied to the driver only. However, Bill of Rights issues arise when the owner of a "tagged" vehicle is subject to the proposed sanctions when the individual did not commit the qualifying offence.

To reduce the Bill of Rights concerns, there must be proper notice to the owner of the vehicle. In addition, there must be defences available to the vehicle owner that reflect an absence of wrongdoing (eg lack of knowledge). There may still be prima facie Bill of Rights issues with freedom of peaceful assembly, freedom of association, freedom of movement, freedom from unreasonable search and seizure, liberty of the person and the right to justice. If however the prima facie issues can be justified, there may be no inconsistency with the Bill of Rights.

It will be interesting to see if the government can do the legal gymnastics to justify this appalling violation of human rights, or whether they'll just ignore the BORA and pass it regardless. We'll find out at 2pm today, when the bill is introduced and the Attorney-General tables his s7 report, if there is one.

In the meantime, people might want to consider what will happen when we go beyond criminalising young people engaged in a dangerous activity (which is fair enough) to applying disproportionate punishments and treating them like terrorists. This is not going to encourage respect for the law, and unfair treatment of this sort may in fact encourage the sort of attack on police we saw in Christchurch.

"Boy racers": crushing our human rights

Back in February, in a typical authoritarian knee-jerk reaction, Police Minister Judith Collins proposed crushing the cars of boy racers and forcing them to watch. Yesterday I acquired the Ministry of Justice's advice on this proposal - and as with their advice on ASBOs, it is less than enthusiastic:

Justice has several concerns about the proposed changes to the Sentencing Act to allow routine vehicle crushing. The punishment may be disproportionate to the offence, and there may be issues with consistency between sentences if both high value and low value vehicles are crushed. There is also a question as to the appropriateness of crushing a valuable commodity of this kind, particularly when the car may be substantially owned by a finance company and this may result in a significant debt burden. Innocent third parties with an interest in the vehicle would also be unfairly penalised by crushing confiscated vehicles. In addition, the cost of storing and eventually crushing vehicles would fall to Justice. Currently funding is not allocated within Justice's baseline to accommodate these increased costs. This option is therefore not considered appropriate.

(Memo to Ministers of Justice and Courts on "proposals to address illegal street racing and associated antisocial behaviour")

Which sounds pretty much like "it's a crock of shit and it stinks". So you can see how it will end up. From the same memo:

However, due to the high level of publicity it has generated, Police consider work to further explore this matter is necessary and are leading further cross-agency work on this matter.

In the final memo in early March, Justice elaborates further on the problems:

• Applying such orders to a limited class of offending undermines consistency and relativity between the sentences imposed for comparable and more serious offences. For example, it would be anomalous for forfeiture and destruction orders to apply to illegal street racing offences, but not to the more serious offence of vehicular manslaughter or careless use of a motor vehicle causing injury or death
• Forfeiture and destruction orders would have different consequences in different cases. An offender who had a high value vehicle would lose a great deal more than an offender with a low value vehicle, even though they may have committed the same offence. In extreme cases, involving lower level offending and high value vehicles, it may even constitute a disproportionate penalty in breach of the New Zealand Bill of Rights Act 1990.
• Forfeiture and destruction orders would have an effect on finance companies. In many cases, the vehicle could be heavily financed and the companies would lose the security for the debt.
• In the case of low value vehicles, Justice would have to absorb most, if not all of the costs associated with the orders. Justice would have to pay to store the vehicles until any appeals had been determined or the time for appealing had expired. it would also have to pay to have the vehicle crushed or otherwise dismantled. Unlike confiscation orders, where sale of the vehicle provides a larger sum of money, it would be difficult to recoup all of these costs when the vehicle is destroyed.

Despite this, the Minister still wanted crushing, and directed the Ministries of Justice, Transport and Police to develop a proposal to seize and crush vehicles where an offender has been convicted of two street racing offences in the past four years. It would be nice if Ministers could deal with their impotence issues in private, rather than crushing our human rights.

"Boy Racers": Justice hates ASBOs

For the past two months, I have been attempting to extract information from the government on its proposals to use "cease and desist" orders against boy racers. Two weeks ago, I managed to extract the Police's initial list of demands to Judith Collins, which included an authoritarian plan to apply "cease and desist" orders to vehicles on suspicion, with no court, no hearings, and no requirement for evidence - a policy which is even worse than ASBOs. Today, I received the Ministry of Justice's advice on these proposals - and they utterly pan them. Here's what they had to say about the proposal to use ASBO-style "cease and desist" orders to target disorderly behaviour:

Justice officials recently met with Transport and Police officials to discuss the proposal to create powers for police to issue 'cease and desist' notices and the adequacy of the existing sections 3 and 5A of the Summary Offences Act (1981) (SOA) relating to disorderly behaviour and disorderly assembly respectively. This proposal is intended to target antisocial activity (rather than actual street racing) that may result where large groups of people congregate to watch, but not necessarily participate in, illegal street racing.

[Paragraph withheld under s9(2)(h) OIA - legal advice]

Justice agrees that section 3 as it currently stands is adequate, and can be appropriately used in response to situations such as those recently experienced in Christchurch.

Officials are concerned that 'cease and desist' has become a 'soundbite' catchphrase for tackling illegal street racers without understanding the implications of such a regimes implications [sic]. Such orders resemble the Anti-Social behaviour Orders (ASBOs) currently in place in the UK. Justice is concerned that failure to comply with such orders can quickly escalate and criminalise people whose original offences were relatively minor. In turn this escalation creates increased costs for enforcement agencies and courts.

Getting a 'cease and desist' notice could also become a 'badge of honour' and lose its deterrent impact. Anecdotal evidence indicates this is th case with Antisocial behaviour Orders (ASBOs) in the United Kingdom.

Justice also considers that the proposed cease and desist orders risk conflicting with the New Zealand Bill of Rights Act 1990, and the status quo provides adequate tools for Police, without potentially impinging citizen's rights to free association and assembly.

Due to these concerns, [3-4 words withheld under s9(2)(g)(i) - free and frank advice] Justice officials recommend against cease and desist notices. Officials believe the SOA, used correctly, is a more powerful and appropriate tool.

(Memo to Ministers of Justice and Courts on "proposals to address illegal street racing and associated antisocial behaviour; links added)

The memo has a large section on "illegal street racing and successful local responses" (OMG! Evidence-based policy!), contrasting the success of Hamilton, Tauranga, New Plymouth and Manukau in dealing with "boy racers" by using liquor bans, a specific road closure, provision of dedicated facilities, and the use of dedicated teams (interestingly, deaths due to racing seem to play as much of a role as policy and policing in preventing it; people stop when they see their friends killed). And on this issue at least, the government seems to have paid attention - while further details of the "cease and desist" scheme have been withheld (something I will be challenging with the Ombudsmen), the final memo indicates that the Minister of Justice, Police, transport and Courts rejected those options, instead directing police to

review their existing operational approaches to managing illegal street racing and the anti-social behaviour associated with it and to ensure all legislative and other operational policing approaches are being delivered effectively.

It's a rare victory for sanity (really, boy racing does seem to be a Christchurch problem, exacerbated by thuggish policing). Unfortunately, its the only one. I have more documents on the proposals for car crushing and "vehicle orders", but they deserve posts of their own.

Worse than ASBOs

For the past two months, I have been attempting to extract information from Judith Collins about her plans to use "cease and desist" orders against boy racers. As I've noted before, these orders smell a lot like ASBOs, the "anti-social behaviour orders" used by the UK government to do an end-run around human rights and fair-trial protections as part of its pedophobic "tough on crime" campaign. But the police's original proposals, which I obtained under the Official Information Act despite Judith Collins' best efforts to prevent it - don't just smell like ASBOs - they're worse. How? Well, even under the Scottish system which the police are using as a model, issuing an ASBO requires a hearing before a sheriff or magistrate. While the standard of evidence is low - the sheriff must merely be "satisfied" that the target of the order has engaged in (ill-defined) "anti-social behaviour", and that an order is "necessary" to protect others from further incidents - the evidence can be contested and the alleged necessity challenged. The New Zealand Police, OTOH, want the following:

• Give Police the ability to serve a notice on the driver (or owner) of the vehicle requiring they "desist" for 2 years (nothing prevents an arrest or prosecution where a substantive offence is disclosed, and this order could be served regardless);
• make the threshold "good cause to suspect" a driver or any person has participated in vehicle disorder (e.g. Police turn up after persistent complaints and find several cars, hot tires, diesel on the roadway, noisy exhausts, etc);
• Make it applicable to the vehicle owner and driver in any combination (the Scots do this as many racer cars are shared amongst drivers);
• Make any breach of the notice a summary offence (3 months imprisonment / $2,000 fine)

(Emphasis added)

So, no court, no hearing, no evidence - just a single police officer's suspicion. You don't even have to be suspected of committing a specific offence - being in the wrong place at the wrong time is enough. In fact, it's quite clear that you can be punished for the offending of others, without any requirement to prove or even allege that you were involved. This isn't justice - it's the worst sort of lazy authoritarianism. A decent Minister who respected the Bill of Rights Act would reject it outright. But given this government's past contempt for the BORA, she probably found some way to make it even worse.

As a final note, there is little in this document that has not already appeared in the media, suggesting that it has already effectively been publicly released. which raises the question: why try and withhold it? There seems to be little reason other than a pathological desire for secrecy and an utter contempt for the principle of open government on behalf of the Minister. And unfortunately, there is no way other than public embarrassment to force her to respect the law.

Smells like ASBOs

Obnoxious boy racers in Christchurch have caused the police - and the police minister - to demand new measures to control them. Unfortunately, their proposals look awfully familiar:

Police want a cease and desist order, like that used in Scotland. It would require a new offence of vehicle disorder – using a vehicle in a way that alarmed or distressed the public – to be established.

A notice would be issued to offenders and if they breached it within two years they could be jailed for three months or fined $2000, be disqualified for driving for six months, and have their vehicle impounded for up to 28 days.

The details are sketchy, but this smells a lot like an Anti-Social Behaviour Order - something which allows the police to do an end-run around normal rules of evidence (or even create new offences out of thin air), and which has been on their agenda for a while. In the UK, they has been a disaster for human rights and another sign of that country's fall into authoritarianism. They are likely to have the same effect here.

As for whether they are necessary, I think its worthwhile to point out that street racing and burnouts are already illegal, as is driving in a reckless or careless manner. Drivers can already be jailed or fined and vehicles can already be impounded for these sorts of offences. So rather than demanding new powers, the police could actually try enforcing the ones they already have. But that, I suppose, would be work. And that's the last thing our lazy police ever want to do.

Another knee-jerk response

A man died in Tauranga on Saturday after being run down by a boy racer. The driver responsible has been arrested and charged with manslaughter, but that's not good enough for the local mayor. Instead, he's proposing a bylaw to ban cars from large portions of the city after dark.

There are obvious practical problems: what about the cleaners, the night-shift workers, people who work late? Or simply those for whom the shortest path from A to B passes through a banned area? But more important than that is the violence done to the right of freedom of movement affirmed in s18 of the Bill of Rights Act. We need no permits for internal travel in New Zealand. We take it for granted that on public streets we can go where we choose, when we choose, and not have to justify ourselves to anyone. And if we choose to drive the streets at night, provided we keep within the speed limit and are not obviously drunk, it is no business whatsoever of the state. But if this bylaw passes, this will no longer be true, at least in Tauranga - and another valuable part of our freedom will have been sacrificed simply so some shitty little local body politician can be seen to be "doing something" about the headline d'jour.