To the New Zealand Council for Civil Liberties AGM November 2007

I never really noticed when the New Zealand Bill of Rights Act (NZBORA) was passed. I didn’t really get interested in the law until about a year later. I discovered the benefits of knowing your legal rights when dealing with police harassment – something that was at that time a pretty regular part of life.

In fact as a young dreadlock Rastafarian there was about a 50/50 chance that I would be stopped and questioned if not searched by the police any night I went out. Because I didn’t have a car I’d walk into town and back to go to a gig. This was clearly a provocative and threatening act.

The searches were always conducted under the search without warrant provisions of the Misuse of Drugs Act – described by Mike Finlayson as the crescent spanner of the police arsenal. One size fits all.

I mention this in starting because civil rights is an issue that can become very abstract. For some people it’s like we are talking about some PC theory that is just another way of tilting the legal system against victims to the advantage of offenders. Actually for me civil rights are very here and now – they are about protecting ordinary people from arbitrary abuse and harassment by the arms of the State.

My lack of awareness of the passage of the Bill of Rights was perhaps not entirely due to lack of attention. The NZBORA was relatively unheralded among the general public I think, derided even as ‘legislating by bumper sticker’ by some commentators of the time. Once it became evident that there was not the Parliamentary will for an entrenched Bill of Rights, or for justiciable protections against legislation that breached the Bill of Rights, a number of people took the view that a Bill of Rights enacted as ordinary legislation and explicitly subordinate to other legislation would have little impact.

Looking back that does not seem to be true. As my interest in my own legal protections grew I did notice and celebrate some early decisions of the Court of Appeal under Lord Cooke that upheld the right to be free from unreasonable search and seizure and the like that seemed to my untrained eye to be significant departures from the past.

Philip Joseph describes the NZBORA as an integral part of our jurisprudence and says it represents one of the major legal developments of the modern era. It clearly has been important, although how judicial methodology around it will continue to develop is up for debate and there are indications that a retreat from some of the progressive high tide marks of the past 17 years is underway.

The Shaheed case is one example, where the Court of Appeal in 2002 abandoned the decade old prima facie rule of exclusion of evidence obtained by the police in violation of the Bill of Rights. A court must now decide if exclusion is a proportionate response to the specific breach.

In considering the Evidence Act recently in the Justice and Electoral select committee we did discuss this issue, and I sought to reinstate the prior position for a prima facie exclusion, fearing that this significant weakening of the most effective sanction against such breaches and police abuse of their powers simply encourages improper use of the powers of search and seizure. Unfortunately I failed to convince the majority of the committee.

The Hansen decision provides another example. While I welcomed the judicial indication that the reverse onus of proof of guilt on the presumption of supply is in breach of the Bill of Rights, I had not fully appreciated some of the other implications of the decision.

Claudia Geiringer gave an analysis of the methodology used in arriving at that decision at the conference in honour of Sir Kenneth Keith in August this year. She cites the comment of the Chief Justice that the approach taken by the majority (which was to refuse to engage in the requirement of clause 6 that an interpretation consistent with the NZBORA is to be preferred until after considering a proportionality consideration under cl 5) risks eroding the common law method and eroding fundamental human rights. Geiringer agrees and expresses concerns about the long term implications of that.

I’ll talk more about Hansen shortly in relation to the reverse onus of proof in relation to drugs supply charges and the right to be presumed innocent until proved guilty, but let me add that the Misuse of Drugs Act provides a number of examples of problematic provisions. In particular the search without warrant powers under sections 18 and 19 provide in my view the most draconian search powers in the police arsenal and the most widely abused.

I was extremely disappointed with the way that the Law Commission’s report into search and seizure dealt with this issue. They claim to have set out to find a balance between the competing demands of protecting rights while recognising the need to investigate and prosecute crime, and in many places they did find a reasonable balance. What disappointed was the bland assertion that search without warrant powers are somehow appropriate for drugs because it is in the public interest to ensure that drugs do not circulate in the community! I guess I expected more from the learned commissioners.

The second area I wanted to discuss is section 7. The Attorney General is required to report any apparent inconsistencies with the Bill of Rights in legislation introduced into Parliament to the House. Well, the Hansen case has had the effect of ensuring that the recent BZP amendments to the Misuse of Drugs Act have failed their Bill of Rights vet, due to the presumption of supply issues. Of course that won’t prevent their passage.

I have to say though that the Attorney General’s advice to parliament has in my view been totally inadequate and sometimes arbitrary in a number of cases.

Let’s take as one example the Immigration Act. This provides for classified evidence to be used in proceedings – evidence that the defendant and their counsel may not see. They may, if lucky, get a summary of the evidence. This passed a section 7 report.

The Proceeds of Crimes bill currently before Parliament allows the Crown to take a second bite at a suspect by, after failing to secure a criminal conviction, seizing their assets at a civil threshold of proof. It allows the Crown to freeze the assets of a suspect and explicitly prohibits them from using any of those assets to fund a defence, forcing them to rely on legal aid. All here would be aware of the dissatisfaction over legal aid rates and allocation to the degree that a number of senior counsel now refuse to do legal aid cases.

That bill got a clean Bill of Rights vet, as did the recent Suppression of Terrorism amendments.

Compare that to Diane Yates’ bill to require health warning labels on alcohol containers. THAT was a breach of the Bill of Rights according to the Attorney General.

I think that there is growing Parliamentary unease on this issue, to the extent that select committees have increasingly been asking for the actual legal opinion that these vets are based on, and for independent legal advice. One of the developments that I would very much like to see is greater transparency around such opinions.

Part of the problem is that any finding is inevitably an opinion, given the qualifications inherent in section 5 around justifiable limitations on those rights. It is proper for Crown Law advice to the Attorney General to indicate areas of prima facie breach and perhaps to discuss arguments for and against their justification. What they are currently asked to do is make a decision, and they are not necessarily in a good position to do so – especially since there is rarely any testing of that advice. It is only where cases such as Hansen have provided a pretty clear judicial steer (and that on existing law) that they are able to adequately fulfil what they are asked to do.

Lastly in relation to the Attorney General’s advice is the more fundamental problem that Parliament will simply ignore such advice even when well-founded. The so-called Boy Racer laws are a case in point, where parliamentarians from a number of parties proudly proclaimed their contempt for the Bill of Rights and then a majority voted to deliberately pass law that breached it.

This is also likely to be the case for the Criminal Procedures Bill, which introduces double jeopardy and majority verdicts in juries.

The problem is the notion of Parliamentary sovereignty. Again Philip Joseph, writing on the submissions to the original white paper arguing against the power of judicial invalidation of statutes, indicates that the main argument referred to Parliament’s democratic mandate – that MPs are democratically elected. Judges, submitters claimed, are neither accountable nor representative.

“The debate” he says” failed to rise to the intensely philosophical questions judicial review posed”. Geoffrey Palmer, the Act’s sponsor, rather more bluntly, called the arguments against the White paper bill ‘grotesque’.

Judging by Michael Cullen’s arguments for the notion of parliamentary sovereignty when publicly debating with the Sian Elias a year or two ago, the argument has not progressed much further, at least on one side of the debate. I did think that the Chief Justice displayed rather more subtlety in her argument than the Attorney General

The third and last area I’d like to touch on is about one area I see really needing a proactive BORA approach. That is the rights of young people in relation to schools.

Section 27 asserts the right to justice. Young people are often denied any semblance of justice under disciplinary proceedings by school boards. I have heard of numerous cases where young people are accused of some disciplinary offence and denied basic rights at disciplinary hearings, and of course this was reinforced by a recent High Court case in Auckland.
This is especially important in light of Chief Youth Court Judge Becroft’s comment that the most useful thing we can do to address youth offending is to keep young people in education.

In this context, the Green party has been pushing for a more accessible review tribunal that can look at these kinds of issues to check both for fairness of process and proportionality of punishment. We will continue to push for an Education Review Tribunal to try to get fairness for young people in these matters.

Let me end by simply saying that I can’t predict the next ten years for the Bill of Rights. What I do think is that it is only by taking up the Bill of Rights and wielding it that we will move the agenda of human rights and civil liberties forward.