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Alice In Wonderland Meets the Banana Republic.

© Peter Zohrab 2009

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(Open Letter to the Speaker of the New Zealand Parliament)

 

Dear Dr. Lockwood Smith,

I am appalled by the way that many people appear to get Law degrees -- and even end up in Parliament -- without having any concept of Human Rights or the Rule of Law.  I refer, in particular, to the power being granted to Police to throw people off their own property without due legal process.  This is an excerpt from the December 2008 speech of the Justice Minister introducing the Domestic Violence (Enhancing Safety) Bill — First Reading (I quote from from Hansard online):

"Police will issue the orders in situations where there is an insufficient basis to arrest—that is a very important distinction to make—but where they believe there is a likelihood of domestic violence occurring and an order is necessary for the safety of the victim. The orders will provide a period of safety in which victims can consider their future options, including the possibility of a court protection order. Significantly, it will not be the police’s responsibility to find accommodation for alleged offenders for the duration of the order. It is important that these alleged violent offenders take responsibility for their actions and realise that their actions have consequences. Another serious consequence for the subject of the police order is that while the order is in force the provisions of a parenting order or an agreement allowing that person day-to-day care of or contact with any children is (sic) suspended."

So Simon Power, who is not a hick from the Rangitikei, but the actual Minister of Justice, has almost got passed an Act, in our Banana Republic, whereby:

  1. Orders will be issued by our Police State where there is no evidence fit to take to Court;

  2. One party is labelled "the victim" without any Court process;

  3. Without a chance to defend himself in Court, one person will possibly have to sleep on the streets;

  4. Without a chance to defend himself in Court, one person will be deprived of their own home and contact with their own children.

This Minister of Justice states:

"It is important that these alleged violent offenders take responsibility for their actions and realise that their actions have consequences."

These are only alleged offenders.  If they haven't done anything, why should they take responsibility for their actions? 

I do not need to tell you that it is absolutely fundamental to Democracy that people should not have a penalty imposed on them without having had the opportunity to defend themselves in Court.  I refer you to section 27(1) of the New Zealand Bill of Rights Act 1990. 

 

Crown Law Office

Of course, it is true that the Crown Law Office advised the Attorney-General that these provisions were permissible under section 5 of the New Zealand Bill of Rights Act 1990, which allows a limit on a right which is "reasonable ..., prescribed by law, and (able to) be demonstrably justified in a free and democratic society."  However, the Crown Law Office (like the Ministry of Justice) is a bunch of Feminist clowns, who have never found a Bill to be in breach of the New Zealand Bill of Rights Act 1990 where the most likely victims of Police State action under the Bill were mere men -- and they possibly never will. 

The advice from Crown Law rightly emphasises the extent of the infringement of human rights and personal liberties, as follows:

First, an order made under cl 7 is of very broad and intrusive effect and limits the rights of the person against whom it is made to expression (s 14 of the Bill of Rights Act) and movement (s 18). Further and more significantly, an order necessarily limits various significant legal rights of the person against whom it is made – notably, in denying that person access to land or buildings that he or she may own or otherwise be entitled to enter or use – by decision of a non-judicial officer and without procedural safeguards either at the time or by way of subsequent review or appeal, and so raises an issue as to compliance with the right to natural justice affirmed by s 27(1). Further, there is also limited immunity for the Crown and Police, under which there is no substantive redress for an order that is made or implemented in an unjustified manner, albeit in good faith and with reasonable care.

Then the advice from Crown Law goes on to state:

9. It is therefore necessary to consider whether these various limitations are justifiable in terms of s 5 of the Bill of Rights Act: that is, whether the restriction is rationally connected to an important objective and is proportionate to that objective.

10. It appears clear that the objective is important and rationally connected to the making of an order: the explanatory note to the Bill indicates (at 2) that the Police ("on the spot") order provisions are intended to provide Police with a response where a person is believed to be at risk but where there is not a sufficient basis to arrest and to provide persons at risk with an opportunity to consider their options. There are also indications of practical difficulties faced by people at risk in making use of the existing Family Court regime[2].

11. The issue is therefore whether the limitations are proportionate. It is relevant to note that:

11.1 An order may be made only if "necessary to ensure … immediate safety" (s 124B(1)(b)) and after consideration of relevant factors (s 124B(2));

This is where the advice from Crown Law fails completely.  The Bill is not rationally connected to an important objective.  Where "there is not a sufficient basis to arrest," the Police are not in a position rationally to predict that a person is at risk.  Even professional Forensic Psychologists (not that they know much about anything) are often loath to make predictions about violent behaviour (see Arrigo & Shipley, An Introduction to Forensic Psychology, 2E, 2005, London:Elsevier).  They may "believe" that a person is at risk, but belief is not a rational process, and lots of people believe a lot of absurd things.  The Bill provides a Police State remedy which has no rational, evidence-based link to a problem which that remedy will solve. 

In addition, the "indications of practical difficulties faced by people at risk in making use of the existing Family Court regime" are also not rational.  The footnote [2] refers to the following Feminist propaganda item:  N Robertson et al, Living at the Cutting Edge: Women’s Experiences of Protection Orders (2007). I have a copy of both volumes of that propaganda item, which was commissioned by the Ministry of Women's Affairs and written by the same group who inspired the Domestic Violence Act 1995, which has resulted in an increase in Domestic Violence in New Zealand. 

Not only is that propaganda item based only on the viewpoint of actual and potential applicants for Protection Orders, but it is also based only on the viewpoints of women.  The viewpoints of people against whom Protection Orders were (perhaps unfairly) applied, and the viewpoints of men who were actual or potential applicants or respondents of Protection Orders are ignored.  It is not rational, nor is it in accord with Natural Justice (section 27(1) of the New Zealand Bill of Rights Act 1990) for the views of only one half of the population and only one half of the stakeholders in a particular issue to have their views considered in relation to legislative change.

The Government is itself at fault here: 

This is the background to the Labour Party's original desire to attack men with this Bill:  The Domestic Violence Act 1995 is completely insane, in that a judge is forced to take into account someone else's mental state, when deciding whether to grant a Protection Order against a respondent.  It is the most absurd breach of Human Rights that I have ever heard of for someone to suffer a legal penalty (partly) on the basis of what went on in someone else's mind, over which the penalised person has no control.  This is in addition to the fact that most Protection Orders are granted ex parte, i.e. behind the respondent's back, which means that he has no chance to put his side of the story first.     

I pointed this out in legal language in the paper: The Influence of Non-Legal Research on Legal Approaches to Ex Parte Domestic Violence Protection Orders.  Maybe judges saw some sense in what I said there.  Anyway, for whatever reason, Feminists started complaining that judges were not handing out Protection Orders like confetti any more.  So the Feminist thought, "Well, maybe we don't control all the judges any more, but at least we control the Labour Party and Simon Power!"

 

Wider Issues

This Bill was passed under urgency.  That is another undemocratic feature of the present government.  Because I knew that a lot of Bills were being passed under urgency at the start of this government's term, I did not expect that this Bill would go to Select Committee, so I (like many other people, I expect) did not try to make a submission.  In any case, the Justice Minister made it clear in his speech that this was a Bill proposed by the previous government which he had already intended to support prior to the election.  So any input from me would probably have been a waste of time, anyway.

I understand that you have a PhD in Animal Science, so I ask that you reflect on the reputation of the New Zealand Parliament and on the qualities that New Zealanders respect.  Why is it that our most respected "living" New Zealander (even after his death) is a bee-keeper who climbed mountains, whereas the man who first split the atom, Ernest Rutherford is someone whom I cannot recall ever having heard mentioned by a public figure, apart from Melissa Lee, MP.  If we actually respected brains and education, maybe we would not have been turned into an Alice-In-Wonderland-style Banana Republic.

I incline to the view that former National Party politician Dr. Richard Worth, an intelligent man, was set up, so that he could no longer play a role in government justice policy.  His statement in support of this Bill was very lukewarm.   The Feminist Propaganda Service (Television One) once screened a shot of Dr. Worth having a private conversation with the anti-Feminist Labour Party politician, John Tamihere.  I had been to see both of them in Parliament not long before, which no doubt alerted the Feminist Propaganda Service to the possibility that not one, but TWO male members of Parliament had unapproved, anti-Feminist opinions. 

The previous Labour government referred to Simon Power as a very "effective" Justice spokesman, so they obviously like him.  The only official liar to be a Justice Spokesperson, the Labour Party's Lianne Dalziel, will be very happy to have him to work with, instead of Dr. Worth.

 

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