Three Strikes Law may breach Bill of Rights

March 2nd, 2009 at 7:36 am by David Farrar

The Herald reports that the Attorney-General has advised that the “” bill breaches the Bill of Rights. That will be one of the factors National will grapple with in deciding whether to support it beyond select committee.

I’m not sure on this, but wouldn’t the AG have given his advice at the time of introduction or first reading? I’m wondering why it has just now been reported. Mind you, the advice is not yet available on the Ministry of Justice site.

As Attorney-General, Mr Finlayson is required to report any bill that appears inconsistent with the Bill of Rights.

His concerns relate to the inconsistencies it would lead to, such as “the imposition of a life sentence for offences that would otherwise be subject to a penalty of as little as five years”.

This is of course deliberate. The intent of the three strikes law is basically a value judgement that if you have committed a third crime that is so bad, it results in a sentence of at least five years, then you are judged likely to carry on offending indefinitely. The third strike is designed not so much to punish, but to protect the public.

The select committee hearings will be vigorous I am sure.

UPDATE: I’ve been informed that the Attorney-General’s advice was tabled when the bill was introduced – so this story is now some new info. Also the advice may not yet be on the MOJ website, but it is on the Parliament site.

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50 Responses to “Three Strikes Law may breach Bill of Rights”

  1. petal (706 comments) says:

    Change the law to consecutive sentencing for offences carrying a maximum penalty of 10 years or more in prison and Bob’s your aunties husband. Doesn’t sound as catchy, but it works even better. While we’re at it – introduce 1st, 2nd and 3rd degrees of murder.

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  2. bkd09 (5 comments) says:

    It was given a week or two back. Not sure why it’s not on that particular website—it’s definitely been floating around.

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  3. Murray (8,847 comments) says:

    Do what labour did and rush it through even though you told a judge you wouldn’t and then its a law and by definition can’t breech the BOA act.

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  4. dad4justice (8,313 comments) says:

    Do the learned judges consider the Bill of Rights?

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  5. Murray (8,847 comments) says:

    Only when left wing arseholes use it to circumvent other laws by claiming free speech even though the BOA specifically does not allow this.

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  6. dad4justice (8,313 comments) says:

    Yes Murray I didn’t think judges took any notice of the BOA, because the Family Court operates a bias agenda as it treats many forced clients to proceedings without humanity and without any respect for the inherent dignity of the person.

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  7. big bruv (14,165 comments) says:

    Then change the bill of rights!

    Bloody simple really.

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  8. goodgod (1,348 comments) says:

    The Bill of Rights applies when politicians want it to and they ignore it when the legislation works mainly in their favour. National won’t pass this bill, it was clear from the start. Any mental “grappling” will be Shortland Street level theatrics.

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  9. Graeme Edgeler (3,290 comments) says:

    Yeah – Justice can take a while to get it updated, but it was made available at the same time as the bill (i.e. on introduction), and the Attorney-General made the report at the time. It is available via Parliament because – as there is a breach – it had to be published by Parliament under standing orders.

    Worth noting – there are three aspects to the legislation:

    * The third strike 25 to life – considered inconsistent.
    * The second strike ineligibility for parole – considered consistent
    * The first strike possibility of life without parole for murder, and the second strike mandatory life without parole for murder – considered consistent.

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  10. Graeme Edgeler (3,290 comments) says:

    The third strike is designed not so much to punish, but to protect the public.

    If that were the case, it would just be a life sentence (i.e. with parole allowed), not a life sentence with a minimum 25-year non-parole period. Requiring that someone who might, in prison, suffer a severe stroke or be severly disabled, or even be permanently confined to a hospital bed, stay in prison isn’t about public safety. Public safety may require that the state always of the option of leaving this person inside, but it can’t require that the state must – no matter the change in circumstance – leave the person inside for at least 25 years.

    If the third strike was automatic periodic detention, with a non-parole period equal to the determinate sentence that would have been imposed, it would be getting pretty hard to argue against the law.

    [DPF: I think you mean preventative not periodic detention :-)]

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  11. slightlyrighty (2,475 comments) says:

    1st strike: Sentence as usual, terms can be served concurrently

    2nd Strike: No Concurrent sentences. Judge to determine sentence

    3rd strike: Mandatory maximum sentences, to be served consecutively, no parole.

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  12. AG (1,832 comments) says:

    Murray:

    “Only when left wing arseholes use it to circumvent other laws by claiming free speech even though the BOA specifically does not allow this.”

    Not sure if you’ve actually read the NZBORA. You might find s.14 interesting. And s.6.
    http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225513.html?search=ts_act_bill+of+rights_resel
    http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225502.html?search=ts_act_bill+of+rights_resel

    As for why the Crown Law advice isn’t on the MoJ website – they don’t post this up if the A-G has given a s.7 notice (look back at the BZP amendment from 2007 which also got a s.7 notice … the advice on this isn’t up either). I guess the thinking is that the advice already is incorporated into the A-G’s notice, so no need to make it public in this forum?

    [DPF: Which is stupid if that is the case. They are meant to be the public service, and part of that is not having to have people trawl through different websites to find information which can easily and logically be gathered in one place]

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  13. georgebolwing (1,011 comments) says:

    I am very glad to see that the current Attorney-General has been brave enough to issue a report to the House on a Bill that is part of a grubby political deal pointing out potential inconsistencies with the BORA.

    The A-G’s report raises what to me one of the grave flaws of this sort of proposal: when faced with the prospect of manifestly unjust sentences, judges and juries will have a tendency to acquit.

    Particularly in cases of assisted suicide, the just outcome is a conviction for murder and the person being sentenced to the rising of the court. But that possibility is taken away by mandatory sentences.

    Do we really want to see juries finding obviously guilty people not guilty because the resulting sentence will be unjust?

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  14. Murray (8,847 comments) says:

    I had a very nice lawyer in New York go over it for me thanks AG. She stopped laughing when Isaid no it isn’t a joke. As she pointed out it is essentially meaningless when it can be got around so easily.

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  15. AG (1,832 comments) says:

    Murray:

    “As she pointed out it is essentially meaningless when it can be got around so easily.”

    Yes – your US lawyer would find the NZBORA odd, as it is very different to the US one. Deliberately so. Because if you have a US style bill of rights, you end up getting unelected, politically-appointed judges deciding matters like “should abortion be allowed?”, “should the state be able to ban handgun ownership?”, “are bans on racial hate speech permissible?”, “can the state lock-up prisoners for life without parole?”, etc, etc, etc. And their decision on each of these matters is IT … you can’t vote them out, you can’t sack them, you can’t override them in Parliament. And the only people who get to participate in all of these debates are lawyers … those before the court, and those (ex-lawyers) sitting as judges.

    Frankly, I think this is a democratic abomination. So with the greatest respect to your nice New York lawyer friend, I’ll stick with members of Parliament to make my laws for me … and if I don’t like those laws, I’ll do my utmost to get new MPs elected to change them.

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  16. AG (1,832 comments) says:

    [DPF: Which is stupid if that is the case. They are meant to be the public service, and part of that is not having to have people trawl through different websites to find information which can easily and logically be gathered in one place]

    Possibly so … but the MoJ service was set up to complement the s7 reporting duty, after complaints were raised that Parliament (and the public) never got to see why the AG DIDN’T put s.7 notices on some legislation (i.e. if a s.7 notice is given, the advice was there to be seen; if one wasn’t, then the advice was technically legally privileged and so couldn’t be accessed as of right). I guess the service has developed from that initial point … the MoJ puts up its advice on non-s.7 reported legislation as a matter of courtesy (even though it doesn’t have to), the A-G’s report in Parliament contains the advice on s.7 reported legislation.

    But I agree – a link from the MoJ website to the relevant parliamentary one would seem an easy and logical step.

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  17. Graeme Edgeler (3,290 comments) says:

    [DPF: I think you mean preventative not periodic detention :-)]

    I think I did too :-)

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  18. georgebolwing (1,011 comments) says:

    AG: “Frankly, I think this is a democratic abomination. So with the greatest respect to your nice New York lawyer friend, I’ll stick with members of Parliament to make my laws for me … and if I don’t like those laws, I’ll do my utmost to get new MPs elected to change them.”

    To suggest that placing agreed limits on Parliament’s abilities to pass laws is undemocratic is to misunderstand democracy.

    Democracy isn’t “half plus one wins”.

    Democracy is about respecting rights, allowing freedom and promoting liberty.

    Experience tells us that giving unlimited legislative power to politicians, even with the paramount check of having to face re-election in free and fair elections, places our liberty at risk.

    This is because unelecting a government is too crude a check on abuses of power. It works fine it there is a gross abuse, where the whole population is enraged and is prepared to focus that rage on the government and ignore all others. But elections are fought and won on a multiplicity of issues.

    Far better that we have a system that prevents abuse of power on a day-to-day basis, rather than risk the inevitable of abuses being drowned out in a once every three years political act.

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  19. AG (1,832 comments) says:

    GB:

    “To suggest that placing agreed limits on Parliament’s abilities to pass laws is undemocratic is to misunderstand democracy”

    The problem is that the “agreed limits” are placed at such a high level of abstraction that we will have no “agreement” on what they mean at the real-world, day-to-day, coal-face of policy application. Case in point. We all agree free speech is a good thing, and Parliament should not legislate to limit this. But what about laws against racial hate speech? Laws regulating election spending? Laws suppressing the media coverage of sexual-violence cases? Laws requiring internet providers to cut off persistent abusers of copyright? Etc, etc, etc? On these issues (and dozens more) you will find genuine, well-meaning disagreement on whether free speech “allows” the law or not. So who gets to decide? 5 judges in the Supreme Court who VOTE on the answer (3 judges beat 2 judges, after all!) or 122 MPs elected (and re-elected) by the people?

    Now – I’m sure you think you know the “right” answer to every free speech question (and every other rights question). But what if you end up with 3 Supreme Court judges who have a different “right” answer to you on these? Then you’ll live in a society where the highest policy maker (the interpreter and guardian of the Constitution) regularly makes decisions that you deeply disagree with … but there is NOTHING you can do about it (because the courts are “neutral” and “unbiased” and “beyond political influence”). Alternatively, you may try to get the court stacked with “the right judges”, in which case you’ve just turned them into politicians who get power without having to get elected.

    Entrenched constitutional rights are lovely in theory. In practice, they fuck democracy up.

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  20. georgebolwing (1,011 comments) says:

    AG

    All systems of government actually put into practice by flawed human beings are fucked up, compared with a theoretical ideal.

    Parliamentary sovereignty is fine in theory too, but we see so many cases of abuse of rights in such systems that I believe that having an enshrined Bill of Rights is better. Not perfect, but better.

    I would love to see the debates in New Zealand about whether particular laws are valid or not, rather than the current situation where all laws that Parliament passes are valid.

    And I think you might be over-stating the difficulties in deciding rights cases. Sure, there will always be marginal cases that are very close to the line and it is often those that get all the attention. But I would suggest that in most cases, especially with the benefit of many years of experience in countries will enshrined rights, it is actually reasonably easy to work out where a particular law lies.

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  21. Murray (8,847 comments) says:

    She didn’t find it funny, she found it hysterical. And otherwise pointless. I’m sure we can learn from the American model and come up with something that has more actually standing without the american absolutism.

    This one doesn’t do anything except lend us a perception of rights.

    On Sept 11 of lot of people lost their illusions of security. I’d prefer not to lose my illusions of rights.

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  22. AG (1,832 comments) says:

    GB:

    “but we see so many cases of abuse of rights in such systems that I believe that having an enshrined Bill of Rights is better.”

    This is a cheat. What you really are saying is that we see cases where YOU think some high level, abstract right has been applied incorrectly by the Parliament. But many others will think this application is correct (ie there is no “abuse of rights” in this situation). This is called “politics”, and it is far better carried out in the open by overtly political figures who are electable/dismissable, instead of judges who cloud their reasoning in legalese.

    (BTW: You haven’t answered my point above … what makes a vote of 3-2 in the Supreme Court on an issue of rights better/more authoritative/more legitimate than a vote of 66-56 in the House of Representatives? It’s a cheat to say “such cases are rare” … look at the number of 5-4 decisions in the US Supreme Court … and if disagreement amongst judges on rights issues is rare, then why would it be any more prevalent amongst MPs?)

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  23. Paul Marsden (999 comments) says:

    ….BREACH Bill of Rights?? WTF?? My family and I are law biding members of NZ society (like most of us here, I suspect). I want these pricks that cause angst amongst us to be locked-up. Fuck their so called rights. What about our rights? The rights of the majority FFS??

    Do the crime do the time, arsholes.

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  24. Graeme Edgeler (3,290 comments) says:

    Do the crime do the time, arsholes.

    That’s the problem.

    The penalty for a standard robbery (i.e. a single offender, no major physical harm to the victim, no kinves or guns etc.) is 10 years’ imprisonment maximum.

    “Three strikes” is designed so that someone convicted of robbery might be sentenced to life imprisonment and have to serve at least 25 years before getting out on lifetime parole. But Parliament isn’t planning on changing the penalty for robbery, Parliament will still be declaring that it thinks it appropriate that the maximum for robbery will be 10 years.

    Maximum penalty – 10 years (for some strike-eligible offences it’s even less at 7). Sentence – life imprisonment, at least 25 years. What happened to do the crime, do the time?

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  25. georgebolwing (1,011 comments) says:

    AG

    I agree that in discussions of rights there is always scope for profound disagreement. It is also often the case that those abusing the rights of others think that their position is correct.

    But I think it is possible to see clear breaches of fundamental rights and liberties in countries without the benefit of enshrined bills of rights. Queensland under Joh Bjelke-Petersen, where I grew up, was a pretty clear example. Minority groups and those with a different view to Joh had their rights pretty badly trampled upon. What the UK Parliament did in Northern Ireland was also reprehensible.

    So, what makes what makes a vote of 3-2 in the Supreme Court on an issue of rights better/more authoritative/more legitimate than a vote of 66-56 in the House of Representatives?

    If we have judges selected for their learning and impartiality and if we have a legal profession who take rights and liberty seriously and if we allow legal proceedings to be open and transparent, and if we have universities and other disinterested parties providing scrutiny and comment, and if we continue to have a internet that allows wide-ranging debate, then I think that we can have more confidence that judges will be wise and act in the interests of justice than elected politicians.

    Again, judges are not perfect and they make mistakes. The US Supreme Court has made some awful decisions, Dred Scott being the worst.

    You would expect the hard cases, where issues are finely balanced, to result in close judgements in superior courts. I don’t find dissent or debate in matters of rights bad. What is important is that we have the debates, that the dissent is heard and wisdom left to prevail.

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  26. georgebolwing (1,011 comments) says:

    Paul Marsden

    It is not the rights of the majority that are ever at risk.

    It is minorities that have the most to fear in Parliamentary systems.

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  27. Jack5 (5,167 comments) says:

    The Bill or Rights is showing it is a crock in another way.

    The ACC system, which ended a vast log jam of law suits in our tiny courts, may prove to be incompatible with the Bill of Rights.

    People are now using the Bill of Rights to sue the ACC. In today’s Christchurch Press, the Nelson Marlborough District Hospital Board is being sued by the daughter of a woman killed in a road acccident by a man on a methodone treatment programme.

    It looks as though you can’t have both — the ACC system and the Bill of Rights.

    Add to this all the crap from convicts suing the system under the Bill of Rights and there is only one conclusion in my view: the Bill of Rights is a disaster and should be scrapped forthwith.

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  28. Jack5 (5,167 comments) says:

    Whoops! In my 1.47 post I omitted a word. I meant to write: People are now using the Bill of rights to sue despite the ACC.

    My point is that the ACC gave us insurance cover in lieu of right to sue. The Bill of Rights gives us both ACC cover AND the right to sue. Doesn’t work.

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  29. getstaffed (9,186 comments) says:

    It is not the rights of the majority that are ever at risk. It is minorities that have the most to fear in Parliamentary systems.

    I can’t work out who I need more protection from: Violent criminals or people who talk like the above in relation to violent criminals.

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  30. AG (1,832 comments) says:

    GB:

    “Queensland under Joh Bjelke-Petersen, where I grew up, was a pretty clear example. Minority groups and those with a different view to Joh had their rights pretty badly trampled upon. What the UK Parliament did in Northern Ireland was also reprehensible.”

    This may be true in respect of Queensland in the 1970s/80s. But I note Queensland seems to have come right without having to rely on judges to save it. Note also that the UK’s actions in Nth Ireland fell under the purview of the European Court of Human Rights, which is in practice binding on the UK. So why exactly didn’t that court step in to prevent the “reprehensible” actions you mention? Doesn’t this fact counsel caution on relying on judges to save us from the evil done in our name? And in any case, why should NZ adopt an entrenched Bill of Rights just because other nation’s political systems have proven unable to respect human rights in what you consider an appropriate fashion? To win this argument you’ll need to show:
    (1) NZ’s Parliament has repeatedly abused rights (in a way everyone will agree is unacceptable);
    (2) NZ’s courts could have stopped this (had they the power);
    (3) The good achieved by (1) & (2) will outweigh the harm done by the courts intervening to overturn Parliament’s laws in situations where Parliament actually HASN’T unacceptably abused rights (because, after all, the courts will be wrong sometimes).

    “If we have judges selected for their learning and impartiality and if we have a legal profession who take rights and liberty seriously and if we allow legal proceedings to be open and transparent, and if we have universities and other disinterested parties providing scrutiny and comment, and if we continue to have a internet that allows wide-ranging debate, then I think that we can have more confidence that judges will be wise and act in the interests of justice than elected politicians.”

    Of course, once you start to get courts making essentially political judgment calls, then the selection of judges becomes politicised. But putting that to one side, why not focus your attention on Parliament? Why write this institution off as hopeless in terms of considering and acting on rights issues? Couldn’t it be improved (say – a dedicated select committee to study NZBORA-related matters? A requirement that any legislation receiving a s.7 notice get a 2/3rds super-majority to proceed?)? Frankly, I think the day we rely on purportedly impartial judges “a legal profession who take rights and liberty seriously” to save our liberties for us is the day that we cease to be a truely free society.

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  31. Graeme Edgeler (3,290 comments) says:

    A requirement that any legislation receiving a s.7 notice get a 2/3rds super-majority to proceed?)?

    I can’t see this one flying … the Government’s Attorney-General gets to decide whether the Government can pass something through Parliament…? Just look at the bills that didn’t receive section 7 reports over the past few years.

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  32. David Farrar (1,902 comments) says:

    One suggestion I have seen is that if we had a President (not a GG) he or she could refuse assent to any legislation that has been advised as breaching BORA, and that it would go to an automatic referendum]

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  33. baxter (893 comments) says:

    The Bill of Rights was just legislative bureaucracy to justify a highly paid sinecure for a Political flunky and support staff. The dilemma can be resolved by scrapping the Act or placing convicts outside it. I believe prior to Norm Kirk those in custody forfeited their civil rights. He needed their votes and restored them. Today they have rights (like not having their fellings hurt) that the law abiding cannot access.

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  34. Paul Marsden (999 comments) says:

    georgebolwing (167) Vote: 0 0 Says:

    March 2nd, 2009 at 1:36 pm

    Excellent post I thought. Thank you.

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  35. gd (2,286 comments) says:

    Does anyone really wonder why the citizesn regard pollies civil servants lawyers and Judgeswith disdian and contempt

    All lack common sense

    they have tunnel vision unable to see the big picture Mired in minuatiae and how many angels can dance on the head of a pin

    Geeez As others have said the law is made by humans Humans can change the law.

    As Ive said on the economic situation This is a time when even the tails of the csared cows must be lifted to see if their arses are dirty

    The usual suspects must caste off their “we cant do that” attitudes and get real for once in their miserable lives

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  36. gd (2,286 comments) says:

    Geeeez Paul Marsden you dont have RIGHTS As a taxpayer you only have RESPONSIBILITIES

    When you become a burden on the STATE THEN you have RIGHTS and lots and lots of arseholes telling you about those RIGHTS

    So called civil libertarians who aint civil and sure as hell have no liberal interest in you.

    Lawyers rushing hither and yon to defend your RIGHTS and take away the RIGHTS of the good citizens to be safe.

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  37. Patrick Starr (3,674 comments) says:

    The BORA argument is a non-issue; maybe someone can give an instance of a “disproportionately severe treatment”?
    Disproportionate to what exactly? ……Disproportionate to today’s sentences ? – well of course it is, it’s fucken intended to increase the penalties…. jezzzzzzz

    This is in keeping with the 2002 referendum where 91.75% of voters elected to do so?
    This argument is Finlayson giving the Nats some wiggle room

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  38. jackp (668 comments) says:

    What sort of bill of rights protection do the victims get? none. I suppose lcd television screens is a must for prisoners according to the bill of rights. What a load of crap!

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  39. georgebolwing (1,011 comments) says:

    AG

    A couple of points.

    Yes, after many years, many demonstrations, marches and arrests, the Bjelke-Petersen government was finally thrown out of office by the electorate, but even then it took an inordinate effort, since the unchecked parliament of Queensland had also gerrymandered the electoral seats, given rural areas disproportionate electoral power, thus securing the National Party government with far less than 50% of the popular vote.

    But it should have never come to that.

    The UK only became subject to the full EU human rights system well after interment without trial and trail without juries had been abolished in Northern Ireland.

    But it should have never come to that.

    Why is repeated abused of right necessary to prove any case? Any abuse justifies protection. And even the potential for abuse might be enough.

    Liberty is golden. We have a lot of it in New Zealand. But we need more.

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  40. georgebolwing (1,011 comments) says:

    Patrick Starr:

    To quote Gilbert and Sullivan “let the punishment fit the crime”. Disproportionate is thus that the sentence is too great for the crime committed.

    This is one of the issues with the three strikes laws; the penalty for the third strike is disproportionate to the actual crime committed. This is why there is a risk that the Crown will not prosecute or juries will not convict third strikes, because they feel that to do so, in the circumstances of the case, would be unjust. Compulsory sentences mean that the circumstances of the case to be brought into consideration.

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  41. Patrick Starr (3,674 comments) says:

    georgebowling – “the sentence is too great for the crime committed.” says who?
    My question george is who determines that? Are we comparing the proportion to tadays sentences – if so that is plain dumb considering what the bill intends to achieve – that is increase sentences

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  42. georgebolwing (1,011 comments) says:

    AG

    And yes, making it harder for the NZ Parliament to pass bad laws, even at the expense of them sometimes not being able to pass good ones would be an improvement.

    But, we always get back to my old quote from James Madison:

    “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

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  43. georgebolwing (1,011 comments) says:

    Patrick

    The idea of the NZ BORA is that it sets out a set of norms against which all legislation is judged. Where the Attorney-General determines that legislation might be inconsistent with those norms, he alerts the House this fact with a report. This allows the public and a select committee to consider the matter and determine whether the proposed bill should proceed.

    In the current case, the Attorney-General has decided that part of this bill is likely to be inconsistent, because the proposed punishment – life with 25 years non-parole for a third offence – where the maximum sentence for a first offence is much lower than that, is disproportionate.

    Any bill of rights will need to be framed in words that require interpretation, and yes, some of these interpretations can be difficult and can changed with the times.

    Any, not perfect, but probably the best we can come up with.

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  44. Patrick Starr (3,674 comments) says:

    george – the way it is framed – and interpreted by Finlayson means it would be impossible to ever increase sentences for crime.
    The Bill is not imposing a single long sentence for a third offence, its considering the cumulative sentence of three crimes.

    Of course a sentences should get harsher as a criminal proceeds with further crime. That happens to a degree now

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  45. georgebolwing (1,011 comments) says:

    No, the BORA says that if a Bill is introduced that involves a disproportionate penalty, then the Attorney-General has to bring that to the attention of the House. The House can then do whatever it wants. That’s the point and the problem.

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  46. AG (1,832 comments) says:

    GB:

    “…since the unchecked parliament of Queensland had also gerrymandered the electoral seats, given rural areas disproportionate electoral power, thus securing the National Party government with far less than 50% of the popular vote.”

    Agreed that where the basic democratic process of electing/unelecting governments is rigged, then the argument for an entrenched rights instrument is stronger. But that’s simply an argument for keeping the electoral system open and competitive. Which NZ’s undoubtedly is under MMP. So once again I don’t see 1970’s/1980’s Queensland as having much relevance to NZ today.

    “The UK only became subject to the full EU human rights system well after interment without trial and trail without juries had been abolished in Northern Ireland.”

    I think this is wrong. The UK was subject to the EU human rights framework throughout the 1970s/1980s. True, its domestic courts could only apply those rights in a domestic setting since 2000. But that’s not my point. The UCHR in Strasbourg was an available option for challenges to UK policy in Nth Ireland (in fact, it did order the UK to cease some interrogation techniques that were much like those used in Guantanamo Bay, but didn’t order an end to internment.)

    “Liberty is golden. We have a lot of it in New Zealand. But we need more.”

    Excellent. Start a political party. Campaign at the election. Win votes. Gain governmental power. Make the change. But don’t try to impose your particular vision of what policies the country “must” have through the backdoor, by getting judges to do it for you.

    “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.””

    The Federalist Papers are a great piece of political theory-cum-propoganda. But I think if you stack the USA’s human rights record under an entrenched Bill of Rights up against NZ’s record under pure Parliamentary Sovereignty, NZ comes out ahead. So it is possible … just possible … that Madison was wrong.

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  47. metcalph (1,436 comments) says:

    As for the situation in Northern Ireland, the Palace Barracks case (one of the few cases where a court considered whether stress methods in detention were torture or not) was heard in Strasbourg in the 70s. Trial without Jury (the Diplock Courts) is not a breach of the European Convention of Human Rights and several European courts do not have juries. More importantly detention without trial (aka internment) is not a breach of the Convention so long as the government announces that it is derogating from section 5 of the same convention (as it is permitted to do so under s15).

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  48. Graeme Edgeler (3,290 comments) says:

    I wonder if what happened in this case was that the Attorney-General has now released the final section 7 report. On introduction he only provided an interim report.

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  49. Madeleine (230 comments) says:

    There is no problem with the severity of the punishment of the 3rd strike because the proportionality doctrine does not apply in such cases. We don’t apply it to those not-guily by insanity whom we still lock up, ditto with self-defence, quarantine, etc. so why here?

    The point is that habitual re-offenders of serious violent crimes are a danger to life, liberty and body. Force for punishment is being confused with defensive force.

    I explain more clearly here: Three Strikes: Proportion and Protection

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