Doug Graham was the New Zealand Minister of Justice when the infamous Domestic Violence Act 1995 was passed. I write "infamous" with my tongue in my cheek, because it is only infamous among people who:
What is not generally realised is that there is no such thing as generic human rights, in practice. If you read some legal provision about the elimination of discrimination on the grounds of sex or race, for example, you might be excused for thinking that it applies to both sexes and all races. Far from it. Almost all the people (i.e. lawyers and judges) who are crucial to the implementation of such a provision have been trained to accept a list of categories of people who deserve protection from discrimination. Such a list includes women, but does not include men; it includes Blacks, but it does not include Whites.
When I gave one of my talks to the Linguistics Staff/Postgraduate Lunchtime Seminar at Victoria University of Wellington, some years ago, I criticised Television New Zealand for only banning sexist language that disadvantaged women, but not sexist langauge that disadvantaged men. So, for example, it bans words such as "chairman" and "postman" (you have to say "chair" or "chairperson", and "postal worker", or something like that), but it does not ban words such as "gunman" or "manhunt". Words such as "chairman" and "postman" are banned because it is argued that they create a stereotype that puts off women from applying for the positions so described. Similarly, words such as "gunman" or "manhunt" imply that only men use guns or that only men are hunted by the police, and this creates stereotypes that might well have negative consequences for men.
When I had given my talk, Dr. Laurie Bauer objected that Television New Zealand was merely implementing a list of words that it had been given. He appeared to mean that the problem was therefore not Television New Zealand's fault. I should have made (but did not have the presence of mind to make) the following point: the issue is not whose fault it is -- the issue is that the human rights approach to sexist language is not being applied generically to both men and women. Television New Zealand should have insisted on a list that included words such as "gunman" or "manhunt", and the person (i.e. the woman) who drew up the list should have included words such as "gunman" or "manhunt", in the first place.
The Domestic Violence Act 1995
In New Zealand, the Domestic Violence Act 1995 provides that a person may apply for a protection order, in order to prevent some other person (now or formerly living with them) from coming near them or communicating with them. Protection orders can be imposed without the other person knowing that a court was even considering the matter. This type of application for a protection order is called an ex parte application.
Not only can a person have this penalty imposed on them without having a chance to defend themselves, but subsections 13(2) and 14(5) state that, in all applications for protection orders, the judge must take into account:
(a) The perception of the applicant or a child of the applicant's family, or both, of the nature and seriousness of the respondent's behaviour; and
(b) The effect of that behaviour on the applicant or a child of the applicant's family, or both.
So, not only is Natural Justice breached by the fact that a penalty can be imposed on someone in their absence, but they can be penalised for the effect of their behaviour on someone else and for the perception that someone (apart from the judge) has of their behaviour -- neither of which the latter person can fully control.
Some -- maybe many -- people would say that the effect of someone's behaviour on someone else is something that the law should be concerned with -- even if that effect is not totally under the control of the former person. However, since the Act mentions the effect of someone's behaviour, why should it also mention someone's perception of someone else's behaviour, which is also not under the second person's full control?
Most people who apply for protection orders are female, so what is really involved here is the law's concern for female subjectivity.
Section 22 of the New Zealand Bill of Rights Act 1990 reads as follows:
22. Liberty of the person -- Everyone has the right not to
be arbitrarily arrested or detained.
Does the Domestic Violence Act breach this section? There are two issues:
1. Does the Domestic Violence Act provide for people to be arrested or detained?
2. If so, can they be arrested or detained arbitrarily, under the Domestic Violence Act ?
The initial effect of a Protection Order is not to arrest or detain the respondent. However, section 49 of the Domestic Violence Act provides for
"imprisonment for a term not exceeding 6 months or to a fine not exceeding $5,000" (or imprisonment for up to 2 years for certain categories of repeat offenders)
for failing to comply with the terms of an Protection Order or of a direction to attend a programme. So, if, in a particular case, a Protection Order has been imposed, and the respondent subsequently receives a prison term under section 49 of the Domestic Violence Act, I consider that he has been detained in terms of section 22 of the New Zealand Bill of Rights Act 1990.
The next question, then, is whether there is scope for the arbitrary imposition of a Protection Order under the Domestic Violence Act. This is the point at which words almost fail me, because of the sheer scale of the breach of the Bill of Rights that is involved, and because of the fact that it appears to have attracted no public criticism.
I repeat that subsections 13(2) and 14(5) state that, in all applications for protection orders, the judge must take into account:
(a) The perception (my emphasis) of the applicant or a child of the applicant's family, or both, of the nature and seriousness of the respondent's behaviour; and
(b) The effect (my emphasis) of that behaviour on the applicant or a child of the applicant's family, or both.
I do not claim an encyclopedic knowledge of the Law in all its historical and geographical forms and variations, but this subsection seems to me to be unprecedented in what we arrogantly call "civilised" communities. Normal courts routinely have to determine what the objective facts of a case are. In criminal cases, they also routinely have to determine what was going on in the mind of the alleged perpetrator at the time of the alleged crime, in relation to the mens rea elements (i.e. intention, recklessness, etc) of the crime, as described in the statute. All of that is reasonable, since a person has control over his acts (with certain exceptions), and can reasonably be held to account for his own intentions, negligence, or recklessness, etc.
But to be subject to a court sanction -- which may be converted into a fine or imprisonment if one does not comply with its terms -- because of what goes on in the mind of another person is such an unreasonable assault on the inherent dignity of the individual, I submit, that even the Third Reich, that icon of crimes against humanity, did not go so far in its inhumanity to man. This modern, Feminist, New Zealand provision is certainly arbitrary, in my opinion. In fact, it is insane!
The Ministry of Justice's website (as at 8 December 2008) states that, "The Ministry is led by Secretary for Justice and Chief Executive Belinda Clark." She, or someone like her, was probably mainly responsible for brainwashing Doug Graham and turning him insane. This (below) is the evidence of his insanity: