Thursday, April 21, 2005

Another retrospective law

What is it with this government and retrospective punishment?

First, we had the Prisoners' and Victims' Claims Bill - which would effectively add to the sentence of every convicted criminal by denying them equal access to the law. And now the government is wanting to ban those convicted of serious crimes from driving taxis. But it's not their goal that's the problem so much as the way they are going about it.

There's an obvious public safety argument that at least serial violent offenders are not the sorts of people we want driving public transport. There's potential for abuse, and it probably is better that we deny the opportunity, just as we forbid child sex offenders from working in schools. The original version of the Land Transport Amendment Bill recognised this by providing for a blanket ban on serious, violent offenders convicted after the bill became law from holding or applying for a passenger endorsement (meaning they couldn't drive taxis or buses). But the Transport and Industrial Relations committee modifed the clause to make it retrospective. While this sounds good in theory, it clashes with both New Zealand and international law. Sections 26(2) 25(g) of the New Zealand bill of Rights Act 1990 bar increasing the punishment of those already convicted and sentenced, or applying a punishment harsher than that provided for when the offence was committed. The International Covenant on Civil and Political Rights has similar provisions, in Articles 14(7) and 15. And this ban exists for a very good reason: a state where the government can arbitrarily increase the sentence of those already convicted or further punish those who have completed their sentence invites abuse for political purposes. If we are concerned about justice, then we cannot allow retrospective punishment.

What really stinks is that, like the prisoner compensation policy, this is so obviously a knee-jerk reaction to a perceived crisis. As the Herald notes,

Several taxi drivers have faced charges for sex attacks on passengers in recent years. Three Wellington drivers arrested within a month of each other in the middle of last year are before the courts.

But this law wouldn't have prevented any of those crimes. It would, however, add to the punishment of those convicted, allowing the government to claim it had "done something". But legislating for specific cases tends to make for bad law, and I think this example rather proves the point.

So, how could the government achieve its public safety aims? It would be perfectly acceptable for this section of the bill to be passed in its original form. But OTOH, I'm not sure that a blanket ban is entirely suitable either. Most murderers in New Zealand don't reoffend, and so pose no risk at all to the public. More generally, a blanket ban punishes both rehabilitated and unrehabilitated criminals alike - and in doing so provides an incentive against rehabilitation (and we have enough of them already). A better policy may be to require anyone wanting a passenger endorsement to meet a "good character" requirement, much as we do for a firearms license. But OTOH, I'm not sure that being a taxi driver is such a position of public trust as to make that necessary.