Wednesday, June 10, 2009

"Boy racers": legal gymnastics

Last month I wondered in passing whether the government would be able to do the legal gymnastics required to avoid finding that its anti-"boy racer" laws violate the New Zealand Bill of Rights Act. The BORA-vets have now finally turned up on the Ministry of Justice site, and they show considerable acrobatic ability in finding that there are no inconsistencies.

On the Land Transport (Enforcement Powers) Amendment Bill (which allows "anti-cruising" bylaws with mandatory impoundment as a penalty), Ministry of Justice advice identified numerous conflicts with the BORA, including

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
In addition, there were also problems with disproportionate punishment and punishing the innocent. The BORA vet ignores these substantive issues to focus on two: whether the "without reasonable excuse" language in the definition of "cruising" violates the presumption of innocence, and whether impoundment constitutes an unjustified seizure. Naturally, it finds that neither is a problem - and their arguments here are not unreasonable (they are right in that "without reasonable excuse" language is a common part of driving regulation, and that bans on search an seizure are primarily related to privacy, not property rights). But in the process, it also considers whether mandatory impoundment constitutes a criminal penalty imposed without charge or trial. And here, they simply leave the planet. While carried out by law enforcement officers, triggered by a belief that an offence has been committed, and explicitly recognised by Crown Law as having "substantial adverse consequences" intended to have a deterrent effect, the fact that it is "broadly separate from the criminal process" means that it is not a penalty. In other words, because it is imposed without trial, it is not punishment without trial. Only a lawyer could be this perverse. But those whose vehicles are impounded by agents of the state on an allegation of criminal offending will be under no illusions about what is going on: this is a penalty for their alleged offending, done on the word of a police officer alone, with no hearing or evidence involved. If that's not punishment without trial, then its difficult to see what would be.

(Oh, and while I'm at it, those "substantial adverse consequences" morph into "a limited character" within about six lines. I suggest we take the Attorney-General's car off him for 28 days and see how "limited" he thinks it is...)

Concluding that impoundment is not a punishment allows them to ignore whether it is disproportionate, and whether people should suffer the same penalty for driving round and round the Square on a Friday night as they would if they were a severe repeat drunk driver.

On the Vehicle Confiscation and Seizure Bill (which allows car-crushing, and introduces the Orwellian term "substitute for the offender" to allow the seizure and destruction of the vehicles of innocent third parties), Crown Law recognises that this raises the question of

whether the third party is being punished for the offending of another without charge or trial.
Unfortunately they then perform a similar legal trick. While the seizure of an offender's vehicle, whether for unpaid fines or as part of a criminal sentence is a punishment, seizure of a scapegoat's isn't because they haven't been charged with anything. The fact that there is no criminal record and no finding of guilt means that the taking and crushing of your vehicle (and a prohibition on owning another one for a year) is not any sort of penalty or punishment. And since its not a punishment, it can't be punishment for the offending of another or punishment without trial. As I said, only lawyers could be this perverse. Those whose vehicles are seized for the actions of another will be under no illusions about what is going on or what is intended: they are being punished, for something they are not even accused of doing. It's not just absurd, but fundamentally immoral.

With these reports, Crown law has shown the worthlessness of the section 7 reporting procedure - the government's legal whores (sorry, that's needlessly insulting to members of the oldest profession) will say what they are paid to say, and twist things as much as they need to to earn their thirty pieces of silver. The only way we are going to get proper compliance with the BORA by the government is if we allow the courts to overturn laws for inconsistency.