Risky game when Kiwis' rights at stake

12:13 pm on 4 September 2017

Opinion - Yesterday, National announced a gang and drug policy that promised both progressive and regressive change.

cells criminal generic

Photo: 123RF

Promises of extra money to fund drug treatment and community harm prevention sat alongside such war-on-drugs staples as heavier prison sentences and new offences for drug users.

But what really grabbed the headlines was National's police spokesperson Paula Bennett's frank defence of granting the police new powers to freely enter and search the cars and houses of "the most serious criminal gang members" to look for firearms.

Asked about this policy's potential impact, Mrs Bennett said:

"Some have fewer human rights than others when they are creating a string of victims behind them ... there is a different standard."

This view of rights is both wrong and dangerous. It is wrong because the New Zealand Bill of Rights Act 1990, section 21, guarantees each and every person the right to be free from unreasonable searches.

And it is dangerous because a government that says some people have fewer rights than others undermines their very purpose. As the UN's Universal Declaration of Human Rights states, "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world".

Fortunately, National's leader Bill English issued a gentle corrective to Mrs Bennett's views this morning, recognising that "it's just not the right way to describe human rights" and that "sometimes we just don't say the right thing, that happens".

He did not, however, resile from Mrs Bennett's description of how the policy actually would apply.

Surely respecting human rights shouldn't come at the safety of the public?

Don't we want our police to be able to take firearms away from potentially dangerous individuals before they hurt someone?

The thing is, the police already can do so. Under the Search and Surveillance Act 2012, the police may search a person's house or car without a warrant when they have good reason to suspect that person illegally possesses firearms.

National's policy, therefore, is to allow police searches even where there is no reason to believe illegal firearms are present (or any other sort of criminal offending is taking place).

Those individuals subject to National's proposed law could have their cars or homes raided at any time simply because the police want to have a look around, based not on evidence of current wrongdoing but rather their past behaviour alone.

Unfortunately, this sort of cavalier attitude toward promoting laws without apparent concern for their impact on human rights can be seen across the political spectrum.

Professor Andrew Geddis of Otago University's Law School.

Andrew Geddis Photo: Supplied: Otago University

As recently as April of this year, Labour's then-justice spokesperson Poto Williams touted a policy under which a person charged with rape would be presumed guilty of the offence unless they could prove that consent was given.

So much for the presumption of innocence, also guaranteed in the Bill of Rights Act.

As our Supreme Court has stated, such "reverse onus" provisions pose a real threat to the fair trial rights of the accused and raise real risks of false convictions.

However, as our constitutional arrangements currently stand, either of these policies can become law irrespective of their rights' implications. That is because all the rights in our Bill of Rights Act can be overridden by any other Act of Parliament.

This fact then puts a lot of responsibility on our elected MPs. We entrust our rights to them, giving them the power to limit or even entirely remove them where they judge sufficiently strong reasons exist to do so.

At National's policy launch, Bill English defended this arrangement by saying "it's enabled the country to deal with all sorts of issues in a practical and effective way".

But when we see MPs campaigning for votes on these sorts of policies, we might ask whether "practical and effective" really means "careless and unprincipled".

Professor Andrew Geddis teaches Public Law at Otago University. He is also a member of the Legislation Advisory Committee. An earlier version of this article was first published at pundit.co.nz.

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