Wednesday, December 15, 2004

Discarding natural justice

Pandering to the "hang 'em high" brigade has reached a new low, with Stephen Franks committing an unwitting act of self-parody by calling the government's proposed law on prisoner compensation "wussy". But Don Brash's reaction is worse. In the 70's, he took a lead role in organising funding for Amnesty International in New Zealand. Now he's suggesting that people be denied a right of reply in legal proceedings against them:

Dr Brash is also concerned by a clause that will allow some of our worst rapists and murderers to see, and respond to, any claim by their victims on court-ordered compensation for alleged 'mistreatment'.

"Not only will victims have to revisit some of their worst nightmares by jumping through legal hoops to get their case for compensation heard, their applications will be forwarded to the offender for a response.

"In other words, the man who brutally raped and attacked a woman in her own home will be given access to the victim's personal thoughts with a right to reply.

The problem here is a little thing called "natural justice", affirmed in our Bill of Rights Act and regarded by judges as the basis of our legal system. Part of this is the doctrine of audi alteram partem - literally, "hearing the other side". In order for our adversarial legal system to work, both sides must be able to effectively put their case. This means that hearings must be notified, relevant material must be disclosed, and the opposing party given a chance to respond to it. If this is not followed, the system simply fails to work; rather than the stronger argument winning, victory goes to whoever the deck is stacked in favour of.

This principle of hearing the other side is arguably what lies at the heart of the Ahmed Zaoui case. Here we have a man whose fate will be decided by secret evidence which he is forbidden to hear, and which therefore he will have no chance to effectively rebut. Don Brash has quite rightly voiced his objection to the unfairness of this procedure, but seems quite happy to apply similar conditions to criminals facing claims for compensation from their victims. But then, hasn't he already more than shown his willingness to ignore consistency (and simple human decency) for political advantage?