Bad retrospective legislation
December 30th, 2005 at 7:26 am by David FarrarBack in April I blogged that I thought it was a bad idea to have a retrosepective law change to ban people previously convicted of murder or a serious sexual offence from operating a taxi.
Not that I generally stand up for murderers and rapists. But if someone did something 30 years ago, has not re-offended, and been a model taxi driver, then the law change would penalise him or her unfairly.
How a Labour Government which claims to support rehabilitation could pass such a dopey law, I do not know. But they did and the NZ Herald reports today that a 60 year old from Huntly is going to lose his job driving buses because of an offence in the 1980s.
Also caught up in this silly law is a man who was convicted 40 years ago of sleeping with a minor. Never mind he later married her and had children with her – bang goes his passenger licence.
I don’t know how Harry Duynhoven says he had only recently become aware of the situation. It was obvious back in April this would happen.
No tag for this post.
December 30th, 2005 at 8:39 am
Since when do we get to punish people more than once for an offence?
Isn’t that persecution?
Vote:December 30th, 2005 at 9:22 am
This government’s view on justice seems very confused.
On one hand they seem to see the justice system as being a place to rehabilite criminals for their crimes but on the other hand punish them continually for whatever crime that they committed.
Perhaps it is time to look at justice as two seperate aspects, Punishiment and Rehabilitation.
The public want both not one or the other. Personally I would like to see sentences broken down into these two seperate phases.
So for instance you might be sentenced to 10 punishment and 5 years rehabilitation. During the punishment you wouldn’t have available the privilages that current prisoners have (tv’s, right to study etc etc). These would only become available at the rehabilitation phase.
Parole wouldn’t be available either during the punishment phase, however if during the rehabilitation it appeared that the causes of the crime were unlikely to reoccur then parole could be awarded.
The rehabilitation phase would also only be a minimum. If a person had shown no signs of rehabilitation then the justice system could apply tothe courts for an extension to it.
My two cents worth anyway.
Vote:December 30th, 2005 at 9:49 am
I reckon it’s actually bad legislation, not bad retrospective legislation (as an aside, wanna provide and example of good retrospective legislation?
It makes perfect sense that people with some kinds of criminal convictions shouldn’t have passenger licenses. There’s no way a taxi driver who rapes or murders a passenger should _ever_ be able to drive a taxi again. There’s no way a school bus driver who rapes or murders a passenger should _ever_ be able to drive a school bus again.
And if we’re going to have that rule then it shouldn’t matter when the person got their passenger license. It’s not retrospective to say “From mid Jan 2006 you will no longer be entitled to this endorsement on your drivers license”. It would be ridiculous to handle it any other way.
The real problem is the black-and-white nature of the legislation. Someone who, as a 17 year old, had consensual sex with a 15 year old girlfriend 40 years ago doesn’t seem like a major danger as a tour bus driver.
IMHO they should have set a rule that someone with a sexual violence or murder conviction needs special permission to maintain a passenger license, then established some guidelines for black, white and grey.
How hard would that have been?
Vote:December 30th, 2005 at 10:10 am
I think the retrospective aspect is important. Let me put it like this. No problems with a black and white law that says from today anyone convicted of mruder or rape is enligible to apply for a passenger licence.
You see if you commit one of those crimes, do the time, and come out – you will know that you can not be a taxi driver and will look for jobs elsewhere.
But to have been out for 20 years, to have spent 20 years as a good driver, and then to have your occupation and livilihood taken away from you due to a retrospective law change – that is harsh and unfair.
Vote:December 30th, 2005 at 10:21 am
Murray,
Consequential restrictions exist throughout society, and are not usually considered to be a second separate punishment – they are simply a consequence of the conviction.
Some obvious examples:
drug conviction !=> pharmacist
fraud conviction !=> accountant
child abuse conviction !=> adoptive parent
They exist in legislation and practice throughout our society, more examples:
* police checks for child care workers
* security clearances for plenty of public sector roles
* declarations of prior convictions on employment application forms.
Why shouldn’t taxi drivers be subject to reasonable scrutiny?
The problem with this legislation is that it seems to have overstepped the “reasonable” threshhold
Vote:December 30th, 2005 at 10:33 am
David,
Do you think someone who got out of jail in November after an 8 year stint for raping a taxi passenger, and who applied for a passenger endorsement in December, and got it (nothing preventing them). Should be driving a cab?
What makes them a better/safer taxi driver than someone who gets out of jail for the same crime in January and can’t get a passenger license?
Cos I’m not going to be any safer alone in a cab at 2am with the first one, nor is my drunk teenage cousin.
Also, would you feel better about it if the ex-cons could drive until their current endorsement expires (cos passenger licenses are for a limited time)? Would that make it feel less retrospective?
To be told after 20 years of a life of blameless (tour bus driving) excellence that your teenage sex with your teenage girlfriend means you’re not allowed to drive busloads of Korean tourists around the country any more is just plain dopey. It’s not that it’s retrospective, it’s just stupid because the conviction has nothing to do with the role.
Vote:December 30th, 2005 at 10:42 am
Anita you are asking the wrong questions. I don’t think anyone who has recently committed a serious crime should be a taxi driver. There are existing character checks that can take care of that. There were checks before this law got passed you know.
If someone committed murder 40 years ago and has been blameless since, I’d be just as happy with them as a driver as the person who had teenage sex 40 years ago.
You seem to think I am suggesting that there should be no checks on current drivers if the law isn’t made retrospective. That is incorrect.
Vote:December 30th, 2005 at 10:53 am
David,
1) If the current checks worked 100%, then we wouldn’t have a legislative change. So it’s possible there are people currently driving cabs and buses who you and I would agree shouldn’t be because of recent relevant rape and/or murder convictions.
You seem to be arguing that they should be allowed to continue because if they got through the old system (no matter how faulty it was) they should not have their endorsements taken away.
Do you really think that someone with a recent, relevant rape or murder conviction should be allowed to drive a cab as long as they got their license before 16 January?
2) I agree about the 40 year old murder conviction – no reason that they shouldn’t continue to hold a passenger license. Also no reason they shouldn’t be able to apply for and get one (tho perhaps you think they shouldn’t be able to?).
The point is the relevance of the conviction to the role (and we agree that relevance attenuates over time).
Why not just have someone make a decision about each application? If there are rape or murder convictions assess how relevant they are, and make a yes/no decision. A 40 year old murder conviction – not so relevant, a 2005 rape conviction, much more likely to be relevant.
Vote:December 30th, 2005 at 2:17 pm
Anita and David
Vote:You are both right and wrong all at the same time.
I do feel Anita yoyu are right on the mony that it has overstepped the reasonable threshold.
With respect to having an individual make an assessment creates opportunities for bribery, coercion etc – i.e Field
Also what would the guidelines be for such an individual.
At the end of it all the law only appears to have impacted on two individuals out of 4 million so it cannot be too bad.
December 30th, 2005 at 4:44 pm
Character passenger licence checks ? HA HA HA.I have insider knowledge (that sounds dramatic eh) so I know,as should Duynhoven, that these “licences” are being flung around like confetti.There are drivers out there who have attitudes to women that would scare you,no English,NO area knowledge and previous criminal convictions,known and/or ignored. Some have never sat a licence of any kind.There are gangs,scams,extortion and other behaviour that Duynhoven should have done something about long ago. To be fair,not all passengers fart frangipani.I,m grizzly enough to hail any cab,but my kid is only permitted to use Corporate or Alert.Duynhoven,s latest brainstorm clearly interests legal minds,but,being not burdened with similar intelligence,I just do what I see as reasonable.
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