Monday, May 26, 2008

Making the law up as they go

Since the time of Solon, civilised countries have followed the principle that the law should be written and public. This allows people to know whether their behaviour is legal or illegal, and prevents the powerful from victimising others by making the law up as they go along.

The Labour government plans to throw that principle out the window.

In a recent Cabinet Paper on Reducing the Level and Impact of Organised Crime in New Zealand: Recommendations for Legislative Reform, Justice Minister Annette King floated a number of options to target "'street level' problems" caused by gangs, such as "incidental intimidation" caused by the presence of gang members. The options of UK-style Anti-Social Behaviour Orders (ASBOs), or California-style civil injunctions on gangs were rejected due to significant human rights issues and uncertain effectiveness. However, Cabinet directed officials to study a third alternative: granting a general power to police to "defuse" "intimidating" situations:

It is therefore proposed to vest the police with a new power that simply enables police officers to take reasonable and necessary measures to alleviate intimidatory situations – without criminalising any person who may have contributed to those situations. It would be an offence, however, to refuse to comply with a constable’s lawful directions. For example, individuals lawfully directed to "move on" or to remove clothing will be susceptible to arrest only if they refuse to cooperate.
This is an authoritarian's wet dream. Instead of Parliament having to pass a law to outlaw gang patches or exile people from Rotorua, individual police officers will be able to make the law up as they go along, and anyone who disagrees will be stuck with a $2,000 fine or three months in jail. The paper fully acknowledges the potential for abuse and victimisation - that
members of the community have be known to feel intimidated by the presence of persons with facial tattoos or a moko, homeless people living on the street, people engaged in public demonstrations, union members on picket lines, or groups of youth wearing "hoodies" in public places
and so individual police officers might well use their "discretion" (read as: power to legislate out of their arses) against such people. It also acknowledges that such powers are likely to face significant legal challenges on BORA grounds, and that Crown Law thinks it will be read down to require a very high threshold before such powers can be used. But none of that seems to matter: the government wants to be seen to be "doing something" and is quite willing to throw out a 2,500 year old legal principle and people's right to liberty in order to be seen to be "tough on crime" (left unstated: most people will simply comply out of fear of arrest, few will bother to challenge such directions in court, and the police will ignore the rulings anyway just as they have Brooker v. Police. So any judicial oversight and human rights protection will be non-existent; we'll all be subject to the arbitrary power and prejudices of the police).

This sort of shit is why I can never vote for Labour. Too many knee-jerk authoritarians, and no respect for personal liberty.