Wednesday, November 18, 2015

Abusing language to avoid the BORA

When is a punishment not a punishment? When its convenient for the government, of course! That's the take-home message of Attorney-General Chris Finlayson's Bill of Rights advice on National's Returning Offenders (Management and Information) Bill. The bill subjects people deported to New Zealand after serving a criminal sentence to a period of parole, involving restrictions on freedom of association, movement, and assembly. It does so explicitly because they have been convicted of a crime in a foreign court. But according to Finlayson, "none of the standard or special conditions have a punitive character". Bullshit. People's freedoms will be restricted as a result of criminal offending. That's a punishment. Pretending otherwise is simply an abuse of language. And by imposing such restrictions, the government will be either punishing people without trial, in contravention of basic norms of justice, or punishing them again for the same offence, in violation of s26 BORA.

Sadly this is part of a growing tradition of pretending things aren't punishments in order to evade the BORA in New Zealand. Asset forfeiture without conviction? "Not a punishment". Civil detention for high profile criminals the government doesn't want bad "high profile criminal released" headlines from? "Not a punishment". But they are, and no amount of pretending will change that, or change the real feeling of those victimised by such regimes that they are being punished by the state for their behaviour. And if we subjected politicians to the same regimes - took their stuff without trial because they were "bad", locked them up because we didn't like them, or subjected them to parole on their departure from parliament to assist their re-integration into society after their political institutionalisation - I have no doubt that they would agree.