Rights v Rights

In everyday life when someone asserts that they have a right it’s often accompanied by a hands on hips sort of manner that acknowledges little else other than the asserter’s sense of entitlement.

Rights based arguments in the Courts though come up against competing values. Sometimes these competing values are other starkly cataloged values such as those set out in the New Zealand Bill of Rights Act 1990 and sometimes they are fundamentals that are drawn from elsewhere.

The High Court in a case concerning abortion dealt with this conflict in a recent decision, Right To Life New Zealand Inc v The Abortion Supervisory Committee. Right to Life could draw in aid of their argument the right not to be deprived of life guaranteed by section 8 of the Bill of Rights. The Committee couldn’t point to a right to liberty and security of the person which in other countries underpins access to abortion. Nevertheless the Committee prevailed in this part of the argument. Prominent in the decision was the “born alive rule” which recognises fetuses as human beings after birth. Justice Miller wasn’t impressed by medical evidence (intended by Right to Life to undermine the rule) about the way that fetuses develop and he pointed out that there were other reasons for the rule – “…it reflects the autonomy afforded women of full capacity, and any other approach risks leading the Courts to assume control over their behavior and lifestyle choices during pregnancy.”

Assertions of rights in the Courts are inevitably often just another way of characterising an argument – they rarely end the debate.

See See TV

I remember early on in my life as a criminal defence lawyer being involved in a case where the police had footage from Closed Circuit Television. "I'll look at that first" I thought to myself. "Bound to sort everything out". Not so. Security camera footage is often frustratingly ambiguous and piecemeal in the contribution it makes to understanding a situation. Some cameras create very grainy footage, some are fixed and inevitably facing the wrong way, and in cases where what is said is just as important as what is done, they are of course next to useless. In the United Kingdom where you seem to be reminded every five minutes walking down the street that you are on CCTV, the money spent on equipment is said to be in the billions of pounds. Unfortunately only 3 per cent of crimes are being solved with the help of CCTV nationally. For city councils and business people in New Zealand the cost benefit analysis would seem to be clear and the rest of us will wonder whether our myriad daily uncredited walk-on parts on security screens are worth the intrusion. 

Tagged

The latest manifestation of our government's flailing ineffectiveness is the snappily named Summary Offences (Tagging and Graffiti Vandalism) Amendment Bill. It's more unnecessary and discriminatory law making targetted at the only social group that Labour can get support against - young people. It's unnecessary because it's already a crime to tag someone else's property without the owner's permission. In fact the existing law is tougher (and previously the government has been all in favour of tougher when it comes to law and order) because it provides for sentences of imprisonment. Three months imprisonment is the maximum penalty in the case of the offence of willful damage in the Summary Offences Act 1981 and seven years can theoretically be imposed for intentional damage in the Crimes Act 1961. The Bill allows for community based sentences "only". Like the previous legislative window dressing aimed at "boy-racers" it's duplicative law-making that serves no purpose other than to pot an obvious target to the applause of newspaper editors the length of the country.  

Cafes and convictions

Here in Wellington we are counting the days to the next local body elections. Incumbent mayor Kerry Prendergast is campaigning on her vision of the city which seems to involve cafes, aimless motorway extensions and visits by celebrity sports men - a sort of lifestyle magazine editor's vision of a city really. The readers of one such magazine apparently recently voted our fair city 12th in a survey of global "liveability". One wonders whether the readers of that magazine where told about our city's bullying liqour ban which is criminalising a significant number of the city's ratepayers. Anyone crossing into a designated section of the CBD with a container of alcohol whether in a car or on foot is liable to a criminal conviction being entered against their names along with a maximum fine of $20000. No disorder or drunkeness is required to offend the bylaw. Simple possession of alcohol is enough. The mayor and the police say that officers warn people before arresting. If that's the message then it is not getting through to the officers responsible for enforcing the law. I have seven clients at the moment who are charged with this offence none of whom have been warned before spending up to a night in the cells and being put at risk of conviction. The police will also say that they have to deal with offences involving alcohol in the central city (particularly violence) far too often. I don't doubt them but we should be addressing these substantive crimes and encouraging the people who commit them to examine their use or abuse of alcohol. Criminalising behaviour which is at best part and parcel of the modern urban experience and at worst poor manners is not good civic policy or the mark of a great city.

Welcome Mr Zaoui

The withdrawal of the security risk certificate is the end of a disgracefully long process for Ahmed Zaoui who has had to wait for more than four years for his status in New Zealand to be finally determined. It’s a tribute to his supporters and his legal team rather than a vindication of an obscure judicial and bureaucratic process. For me the turning point was the bail hearing in the Supreme Court in 2004 where the Court was concerned with the question of what type of detention was proportionate to the risk represented by Mr Zaoui. The furthest the then Solicitor-General could go was that Mr Zaoui knew some people who were probably terrorists. That was it. The fear was not that he would be trawling the back streets of Auckland for plastic explosive but that he knew some bad people. Probably inevitable given his opposition to the Algerian regime that he had come across people who, like him, were opposed to a brutal government but who differed with him about how that opposition should be expressed. Probably also inevitable that some people opposed to the Algerian regime want to fight fire with fire and use violence to achieve their ends. The idea that we should trust in the authorities in relation to Mr Zaoui was exploded at the point of the Supreme Court bail hearing. This was all the State had, this was the basis of Mr Zaoui's detention in solitary confinement for a year and this was how the State wanted to finally determine Mr Zaoui’s fate – by keeping the detail of the case against him behind a veil and by attempting to divine the truth without rebuttal from the person in the best position to do so. There is no substitute in a fair judicial process for knowing the case against you and the involvement of the SIS shouldn’t change that.

NZ Punching Above Its Weight Again

No doubt many people will be happy that there are now a record number of people in our prisons. It's a theme of letters to the editor pages that somehow hard time and plenty of it is the solution to our ills. Less people will be happy to know that some of these inmates are in Police stations because we now lock up so many people up our dedicated penal institutions can't cope with the numbers. At Wellington Central Police Station this means no natural sunlight, no exercise and a menu of junk food. Even less people (I'm hoping no-one) will be happy when they realise that the inmates spending time in police custody are remand prisoners ie they are awaiting trial and have not been proved to have done anything wrong. One would hope that even the eye-for-an eye crowd are alarmed by that.

John Howard-Human Rights Champ

Putting aside the question of whether we should be playing cricket with some of the other test playing nations if human rights observance is the issue, many people think Zimbabwe is the last place anyone should be sending a representative cricket team. The last time the question was raised here there was much talk of politics in sport, law suits against New Zealand Cricket for breaching its contractual obligations and other assorted brow furrowing. In the end the team went with the Government expressing disappointment and wringing its hands. Now it's Australia's turn to tour but in typical Ozy fashion there's not been a lot of angst. John Howard simply threatened to exercise the Government's powers to remove passports from the tour party and that was that. Because of our Passports Act that simply can't be done in New Zealand. The power to remove a passport is restricted basically to cases of lack of entitlement or where removal is demanded by national security. And just as well too.