Monday, October 21, 2019

Sophistry and bullshit

I spent some time reading the Regulatory Impact Statement and Bill of Rights Act advice for the government's odious control order scheme today. I am not impressed with either of them. Starting with the RIS, it is built on some pretty questionable assumptions. For example:

Unless individuals have been convicted of an offence in New Zealand or overseas, there is very little agencies can do to monitor the activities and movements of an individual who poses a terrorism risk to the community.

If there is no change to current settings, and high-risk returnees reside in the community, the Government can surveil a limited number of returnees (for the Police to do this a court issued warrant would be required). However, surveillance provides no capacity to impose any conditions or restrictions on individuals, or to support individuals in seeking counselling or other reintegration support services.

So, apparently we need to gut our human rights standards because the police and SIS can not surveil an estimated "1-2 people per year", and because they believe they cannot provide reintegration services unless someone has been convicted of a crime. Which is ridiculous, and if true, makes you wonder what we are paying these agencies hundreds of millions a year for. Instead, it reads like the police are going "waaah! Don't wanna do work! Don't wanna!" when faced with task of surveilling suspected terrorists. Instead, they'd rather compromise our protection of basic human rights because they are lazy.

It gets worse. While its not in that section, this is essentially the government's "problem definition":
Currently, the courts can impose restrictions that would limit potential terrorist activity once a person has been charged or convicted, either as part of bail conditions, by sentencing or via parole conditions. These options are not available where the individual has not committed a crime under New Zealand law or when a prosecution for an offence is not a viable or proportionate option (eg prosecution test under the Solicitor-General’s guidelines is not met).

To put that in plain English, the problem the government is seeking to solve is that some people haven't committed a crime (or if they have, they would not be prosecuted for it). But it wants to punish them anyway. This is the very definition of arbitrary punishment, and precisely what the BORA is supposed to protect against. And sadly, the BORA advice is essentially sophistry to disguise that fact. "It's a civil order, so its not a punishment". "A 12 hour a day curfew (with a penalty of a year in jail if you break it) isn't detention". "The courts have to observe the BORA, so none of the restrictions on freedom of assembly, association, expression or movement we explicitly say they should make are really restrictions". Sophistry and bullshit all the way down, which debases the BORA oversight regime. But it gets worse, because in the section on the impact on the right to natural justice (raised by the bill's explicit use of a term disclosable supporting information, which "alludes to" the potential use of secret evidence by police), they say that this is impossible:
the Bill does not establish the architecture for any "closed material procedure" whereby the Court would be entitled to consider evidence that has not been disclosed. We doubt the Court would be able to conduct such a procedure in its inherent jurisdiction, therefore there is unlikely to be any material that a Court would rule is "not disposable [sic] supporting information".

Meanwhile, the RIS is saying that the bill is proceeding in tandem with "proposals to protect the use of national security information in court proceedings" (something which has been on the SIS's wishlist for years) and that this "will improve the processes for applying fora control order". So, there will be secret evidence, with all that implies for the right to natural justice, its just that Crown law will pretend there will not be for the purposes of the BORA assessment. Again, this simply makes them look like liars, trying to tell two different stories. I know a lawyer is someone who tells you what you pay them to say (sorry, Graeme), but this really is disgraceful.

Meanwhile, they're also misleading the politicians who will be voting on this law, omitting the sorry history of the UK's control order regime (which was basicly overturned repeatedly by the courts on human rights grounds). You'd think that would be helpful in assessing this sort of legislation, but I guess the Ministry of Justice thinks MPs just don't need to know. Which is just he sort of shoddy and unprofessional job we've seen in the past on terrorism legislation.

If this is the case for the law, its a terrible one. And if Parliament accepts it and votes for it, they're a terrible Parliament, and just a rubber-stamp for tyranny.