Caution needed when rights infringed

One of the fundamental planks of various statutes and conventions which make up New Zealand’s constitution is the concept of the rule of law — put simply, that the law applies to everyone, with neither fear nor favour.

Mostly, that is what happens. But there are a few outliers and one of those happens to be Parliament.

New Zealand has a Bill of Rights, 1990 legislation which builds on centuries of human rights law brought to its far-flung colony by the British.

In theory, all New Zealand law should comply with the Bill of Rights, and one of the Attorney-general’s jobs is to scrutinise all laws Parliament is about to pass to see if they do indeed pass that test.

Occasionally they do not, and the AG will tell Parliament so ... but Parliament has no obligation whatsoever to follow that advice. Such laws — the law change which banned prisoners from voting being a prime example — will be passed, often with the government’s legal adviser who highlighted their inconsistency with the Bill of Rights voting for them.

The wiggle room Parliament leaves itself which allows this is the "justifiable limitation" loophole, whereby it convinces itself that even though what most would consider a fundamental human right is being breached, the law change is important enough for that not to be a consideration.

That caveat is about to be deployed again, as Parliament prepares to consider a law change which proposes to ban gang patches and stop gang members from associating with each other.

Mark Mitchell. PHOTO: SUPPLIED
Mark Mitchell. PHOTO: SUPPLIED
The justification offered by Police Minister Mark Mitchell for this is that "for too long gangs have been allowed to behave as if they are above the law", which is more than a little ironic as the government will almost certainly have to behave as if they are above the law to pass the legislation.

Among the rights guaranteed by the Bill of Rights are the freedom of expression, freedom of peaceful assembly and freedom of movement. It is very difficult to see how the government can frame a Bill in line with the coalition party’s campaign rhetoric which will not in some way compromise any or all of those freedoms.

New Zealand has been down this path before, when Whanganui attempted to pass a bylaw to ban gang patches being worn on its streets and the High Court then found that such a law change would likely breach the Bill of Rights.

The potential for police overreach of their powers if such laws are passed is a real one. The New South Wales ombudsman reviewed that state’s non-consorting laws in 2016 and found that they were being used in many situations other than policing organised crime, which is what they were created to tackle. The state’s Law Enforcement Conduct Commission carried out a similar exercise last year and found that the problem had persisted.

Although there is as yet no draft Bill to examine, it is difficult to conceive of any language or phrasing which will not see the courts take a similar view of any eventual law change.

Another of those fundamental planks is the concept of parliamentary sovereignty — essentially, that Parliament is top of the legal tree and what it says goes. Judges have no ability to strike down a law which they believe likely breaches the Bill of Rights, and in the past have had to rely on the formula that Parliament must have known about the issue and decided to pass it anyway, so it must be the law.

This has dissatisfied legal academics for decades and the previous government went some way to changing the law in this area, permitting judges to issue a declaration that a law is inconsistent with the Bill of Rights, a statement which requires Parliament to reconsider if that was what it really intended to do.

Assuming the proposed law is passed, and assuming it is challenged, that is likely what will happen. And almost certainly, assuming that some combination of the present governing coalition remains in power, Parliament will ratify its rights-infringing legislation because it prefers the politics of being tough on crime to the politics of defending the human rights of gang members.

We understand, and in many ways applaud, what the government is trying to do. Gangs are undesirable organisations and many commit indefensible criminal acts: they are rightly deplored.

But like it or not, rights legislation applies to everyone and those rights should only be circumscribed in the direst emergency — and it is hard to see what has fundamentally changed in recent times, given gangs have been with us for decades, to meet that threshold.