Friday, February 15, 2008

The war on tagging

In an election year when it is trailing in the polls, you might expect a left-wing Labour government to aim high. You might expect it to focus policy on areas that really matter, declaring a "war on poverty", a "war on inequality", or maybe a "war on low wages". Instead, we have a "war on tagging", as nonsensical as its namesake "war on drugs". Talk about scratching every boil on the bum of the body politic.

The actual policy seems to be a resurrection of George Hawkins' Manukau City Council (Control of Graffiti) Bill, shorn of some of its more obnoxious features such as the violation of the right to silence or the offence of "carrying graffiti implements", and with a focus on community sentencing. However, it will retain the ban on selling spraypaint to those under 18. In case anyone has forgotten, the Ministry of Justice found that this violated s19 (1) of the BORA, which bars discrimination on the basis of age:

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.

17. Prohibiting the sale of spray paint to persons under the age of 18 is discrimination within the definition of section 19(1) of the Bill of Rights Act. Although it has a significant and important objective (the reduction of graffiti), on the evidence available there is no rational and proportionate connection between that objective and the discrimination. Accordingly, clause 7 of the Bill cannot be justified under section 5 of the Bill of Rights Act and appears to be inconsistent with that Act. The Ministry recommends that you draw this inconsistency to the attention of the House of Representatives in accordance with section 7 of the Bill of Rights Act.

The new bill will face exactly the same problem, and will likely receive an adverse report (and if it doesn't, there will be serious questions to be asked about the consistency of MoJ's assessment). Not that the government will care - they seem quite happy to piss on the bORA when they think there's votes in it. But do people really think our Bill of Rights Act, which is there to safeguard us against government abuse, is something we should tear up to combat graffiti? If so, I'd suggest they seriously need some perspective.