Tuesday, May 26, 2009

"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.