David Garrett's inconvenient rights problem

David Garrett's contemptuous dismissal of the Attorney-General's Bill of Rights Act report on his cherished Three Strikes Bill shows he either doesn't understand the Bill of Rights, or doesn't believe his bill can be justified

fSome interesting conversations must take place in the Act Party caucus room. On the one hand, you have David Garrett, whose response to the Attorney-General’s report that his cherished Three Strikes Bill is inconsistent with the New Zealand Bill of Rights Act was that we should “alter the Bill of Rights Act. We’ve got too hung up on people’s rights.”
Sitting opposite him in the caucus room you’ve got John Boscawen, who has spent some tens-of-thousands of his own dollars going all the way to the Court of Appeal in a vain effort to have the now-repealed Electoral Finance Act declared inconsistent with … that same Bill of Rights Act.
Then you’ve got Rodney Hide and Heather Roy, who in 2007 voted to extend that same Bill of Rights Act to protect private property rights.
All this must lead to some heated conversations, as David Garrett harangues his colleagues for their absurd hang-up regarding individual rights, while they in turn remind him that he represents a (classically) liberal party that purportedly values restrained government and individual liberty. Sir Roger Douglas must have his work cut out trying to referee that dispute!
Of course, I’m being a bit mischievous here. I’m sure David Garrett isn’t really against rights, per se. He’d say he’s just against the wrong sort of rights. The inconvenient ones that stop society from being able to properly take measures against violent criminals, for instance.
So let’s have a closer look at his criticism of the Attorney-General’s report. Because I fear he either doesn’t understand how the Bill of Rights Act works, or he’s deliberately misrepresenting this issue in an effort to deflect criticism of his pet policy. And that’s a bit worrying coming from any member of Parliament, especially one with a legal background.
As background, the Attorney-General’s role under the Bill of Rights Act is set by section 7. It requires the Attorney-General to inform Parliament if he or she believes some part of a bill introduced into Parliament is inconsistent with the Bill of Rights Act. That’s all he or she has to do; what the rest of the members of Parliament then choose to about that advice is their business.
The Attorney-General’s judgment regarding Bill of Rights Act consistency then involves two steps. First, does the new bill limit one of the substantive rights contained in the Bill of Rights Act? If yes, can this limit be “demonstrably justified in a free and democratic society”, as per section 5 of the Bill of Rights Act? It is only if this second question is answered in the negative that the Attorney-General must alert Parliament of a possible inconsistency.
And that’s just what the Attorney-General, Chris Finlayson, did with the Three Strikes Bill. He concluded that the mandatory sentencing of “third strike” offenders to 25 years in jail without any chance of parole would limit the section 9 rights of some individuals “not to be subjected to … disproportionately severe treatment or punishment.”
What's more, this limit could not be justified because: “the differential treatment of offenders, and in particular the imposition of a life sentence for offences that would otherwise be subject to a penalty of as little as five years, based on whether they have been previously convicted of listed offences and warned in terms of clause 5 may result in disparities between offenders that are not rationally based. The regime may also result in gross disproportionality in sentencing. For these reasons I consider the proposed regime raises an apparent inconsistency with the Bill of Rights Act.”
So what, then, is David Garrett’s response to these apparently reasonable observations about the potential for irrational outcomes? First, he tries to shoot the messenger, by claiming that they aren’t Chris Finlayson’s views at all but those of (and this is apparently a direct quote) “some oik in Crown Law.”
Now, it is true that Crown Law officials do advise the Attorney-General on Bill of Rights Act matters. But is David Garrett really saying that Chris Finlayson lacks the expertise or the courage to overrule his officials when he thinks they are wrong? And anyway, aren’t we meant to be in a new era of accountable government, where ministers will no longer blame officials for their mistakes?
Then he claims that the Attorney-General (or, rather, the “oik” responsible for the advice) misunderstands the purpose of the Three Strike Bill. It’s not about punishment, apparently, but rather community protection: “We are not going to allow you to remain in the community to become a killer.”
All well and good. Except that the whole point of the mandatory 25 year sentence policy is that it applies irrespective of any future risk posed by the criminal at hand. Take an extreme example: a 70 year old “three-striker” must go to jail until he is 95, irrespective of how decrepit he becomes. Meanwhile, a 20 year old assessed as “high risk” of re-offending on release may serve only as little as 5 years for committing the same crime. This protects the community how, exactly?
Obviously the whole point of the Three Strikes Bill is to punish. Yes, that punishment may have the incidental effect of keeping the community safe in some cases (say, Graham Burton's). But it is because the punishment applies even where there is no community safety issue that it has the potential to be “disproportionately severe”.
Finally, David Garrett pulls out his trump card. “I’m not interested in that person’s rights quite frankly,” he tells us. “He should have the rights to be fed adequately, to get medical care and not to get tortured - and that’s it.”
Let’s leave aside the question of why David Garrett thinks such persons should enjoy the right not to be tortured (which also is guaranteed by the Bill of Rights Act, section 9), but not the right to be free from “disproportionately severe treatment or punishment”. Because I don’t think that’s what he really means.
Instead, I think David Garrett actually believes that the jail time mandated by the Three Strikes Bill isn’t disproportionately severe at all. Or, he thinks the severity of the legislation can be demonstrably justified in a free and democratic society (which is much the same thing). Thus, there actually isn’t any inconsistency between his cherished Three Strikes Bill and the Bill of Rights Act.
Now, there’s nothing wrong with trying to run that argument. And in the end, it is for Parliament to decide the issue. The Bill of Rights Act requires that MPs make their own value judgments as to what rights require, and what limits on those rights are justifiable.
But note that this essentially is a political argument, one that requires justifying the basic policy at hand and its effects. And as Graham Edgler has pointed out, there are a number of problems with the policy incorporated in the Three Strikes Bill; problems just like those identified in the Attorney-General’s report.
So what David Garrett should do is defend the basic policy of the Three Strikes Bill – that all "third strike" violent offenders deserve extra-long jail sentences, irrespective of the crime that they are convicted for, and irrespective of their capacity to commit future crimes. If he can convince Parliament that this policy is demonstrably justified, he has no Bill of Rights Act problem. But the fact that he thinks he does have such a problem is perhaps evidence that he suspects his basic Three Strikes policy is more flawed than he wants to let on.