The Government’s plan to crack down on ram raids has been given a stinging rebuke by Attorney-General David Parker, who says it is inconsistent with the Bill of Rights Act (BORA) on multiple grounds.
He said the new proposals might be justified if the benefits outweighed the harms, but the evidence suggested that wouldn’t be the case.
The Ram Raid Offending and Related Measures Amendment Bill is one of several bills the Government is progressing under urgency in the last sitting week of Parliament.
Others include trying to get global tech firms to pay for local news, lowering the voting age in local elections, improving the justice system experience for victims of sexual assault and banning bottom trawling for most of the Hauraki Gulf.
The bills to enact these changes are scheduled for their first readings today, so whether they eventually pass into law will be up to the next Parliament.
The Government has been using urgency in the last three sitting weeks to rush through the last of its legislative agenda, much of which National has said it will repeal, including the Three Waters law and the RMA reforms.
Despite supporting many of this week’s law and order bills, National Party justice spokesman Paul Goldsmith said they shouldn’t be rammed through under urgency in the last sitting week, characterising it as the “last gasp of a dying Government”.
National is supporting the Government’s plan to make a new criminal offence for ram raids, punishable by up to 10 years in jail, and applicable to 12 and 13-year-olds in the Youth Court. The bill would also allow a bodily sample to be taken from the child, and make publishing footage of a ram raid – including live-streaming it – an aggravating factor at sentencing.
Parker, in vetting the bill against the protections in the BORA, said it appeared to be inconsistent on three grounds: the right of a child to be dealt with in an age-appropriate way, the right to be free from unreasonable search or seizure, and the right to freedom of expression.
The bill might be justifiable if the benefits outweighed the harms, but Parker said that “a court is, having considered relevant evidence, likely to conclude that the harms outweigh the benefits”.
“In terms of benefits, it is unlikely that the new pathway into the Youth Court for 12 and 13-year-olds will, as a general proposition, result in a systematic benefit of reducing criminal offending or improving child outcomes,” he said.
That was because children at that age – according to the UN Committee on the Rights of the Child, which is referenced in the Oranga Tamariki Act – lacked the capacity for abstract reasoning because their frontal cortex was still developing. A welfare-based approach was considered more suitable than a criminal law approach.
“They are unlikely to understand the impact of their actions or to comprehend criminal proceedings,” Parker said.
“The default position of dealing with 12 and 13-year-old offenders through a ‘non-punitive’ approach, via for example care and protection proceedings in the Family Court ... reflects evidence that offending by children at this age is symptomatic of problems in the home environment.
“The evidence indicates formal criminal justice involvement is often associated with adverse consequences for the child and society, in particular by potentially increasing chances of reoffending.”
Children that age can already be dealt with in criminal proceedings under New Zealand law, but only for murder, manslaughter or very serious and repeat offending. The new ram-raiding offence would lower the threshold for what qualifies as very serious offending, and would apply to first-time offenders.
Parker said that, if the new offence was not justified, then allowing a bodily sample to be taken would also be unjustified and would, in this case, violate the right to be free from unreasonable search and seizure.
On the new aggravating factor at sentencing of publishing a recording of a ram raid, Parker said an argument could be made that it could inhibit free speech. One such circumstance could be if the recording showed police abuse of power, or other people committing other crimes.
“In such circumstances, publishing the recordings may benefit the public interest by exposing abuses of power or enabling identification of wrongdoers.”
Parker’s conclusion does not mean that the bill cannot progress, though following a new law last year, a court might be asked to consider the bill’s consistency with the BORA if it became law. If a court declared it inconsistent, the government of the day would be required to refer the matter to a select committee, and then provide a formal response after the committee’s report.
This is what happened with the voting age, which the House debated today after a Supreme Court finding that it was inconsistent with the BORA, and then a justice committee report recommending lowering the age to 16 for local elections. Though under no obligation to change the law, the Government introduced a bill to enable this, which had its first reading today.
National is opposing the bill, meaning it is unlikely to progress into law if there is a National-led government after the election.
None of this would necessarily happen with the ram raids proposal. The bill would have to be passed into law – which won’t happen this parliamentary term – and then a court could be asked to consider making a declaration on its consistency with the BORA.
National is supportive of two new bills to improve the justice system for victims: the Victims of Family Violence (Strengthening Legal Protections) Legislation Bill and the Victims of Sexual Violence (Strengthening Legal Protections) Legislation Bill.
The former would give a Family Court judge greater powers to stop a person from taking further proceedings if they are abusing the system to harass another party before the court.
The latter would enact changes the Government announced in April, including giving sexual assault victims more control around the suppression of their names, and banning questioning a child victim of sexual assault about consent.
A bill to crack down on fleeing drivers is scheduled to have its committee stage and third reading and, with support from National, should pass into law. The Land Transport (Road Safety) Amendment Bill would:
Other bills on the Order Paper this week include the first reading of the Fair Digital News Bargaining Bill, which would create a “bargaining code” for New Zealand media companies to negotiate payment from big tech firms for stories used on their platforms.
There is also a Corrections bill scheduled for Thursday.
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery and is a former deputy political editor.
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