Tuesday, November 09, 2010


Yesterday, the government introduced its Alcohol Reform Bill to Parliament. The bill will repeal and replace the Sale of Liquor Act 1989 to implement some of the recommendations of the Law Commission, including a split drinking age and national opening hours (AKA the national bedtime), as well as a host of changes to the licensing and enforcement regime. Today, the Attorney-General found that some of those latter provisions are inconsistent with the Bill of Rights Act [PDF], violating the right to silence and the right to be free from arbitrary arrest and detention.

The big problems are around the power of arrest to enforce local authority liquor bans. The bill will turn violating such a ban into an infringement offence, but intentionally retain the explicit statutory power of arrest. So, you can be arrested and detained by police for an arbitrary period of time for an offence for which you can never serve jail, and which has been explicitly judged to be on the same level of seriousness as a speeding ticket, without any oversight whatsoever. Because there will be no formal criminal charges or court process, the normal protections around arrest (which assume there will be) will not apply. The result is to render the arrest arbitrary, and detention potentially indefinite.

The problem here, which the wowsers fail to understand, is that arrest is a criminal punishment. You get stuck in a cell, deprived of your liberty. And that requires serious justification. The normal justification is to ensure people show up for trial. But that justification is obviously absent for infringement offences, where there is no trial. In this case, the power of arrest is apparently driven by concerns about "public disorder". But there are already existing powers (e.g. offensive or disorderly behaviour, fighting in public) to deal with that. If it doesn't reach that level, sorry, but it is not a crime for young people to have fun in public.

Related to this, the bill includes a power for the police to demand from anyone believed to be committing an infringement offence "the name and address and whereabouts of any other person connected in any way with the alleged offence", on pain of a $5,000 fine. This is an obvious and clear breach of the right to silence. That right exists for very good reasons - basically to prevent the police from fabricating "confessions" or beating them out of people - and it should not be eroded, particularly for something so trivial. While its obviously in the interests of police to be able to find out who sold people their last drink, or who your mates you were dancing in that fountain with are, they should not be allowed to threaten us in any way in an effort to force an answer.

There are other problems - reverse burdens of proof upon people who have no ability to prove themselves innocent because the evidence is held by others is one egregious example - but the overall impression is one of an overreach by enforcement authorities and laws made primarily for the convenience of police rather than with a proper respect for the liberty of the public. And that just isn't good enough. The government and Parliament have a legal obligation to uphold and protect our rights. Instead, they're giving in to moral panic and engaging in lazy authoritarianism.