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some tens-of-thousands of his own dollars going all the way to the Court of Appeal in a vain effort to have the now-repealed Electoral Finance Act declared inconsistent with … that same Bill of Rights Act.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.

Comments (7)

by Andrew Geddis on March 04, 2009
Andrew Geddis

As an update to my post, I see Chris Finlayson has pretty much scotched David Garrett's claim that the Bill of Rights notice was the responsibility of some "oik in Crown Law".



by Graeme Edgeler on March 04, 2009
Graeme Edgeler

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.

Unfortunately, the analysis in my post was based on David Garrett's draft bill (as available on the Sensible Sentencing Trust website, or from The ACT Party). The bill as introduced fixes a number of the problems I saw (there are now link updates at the end of my piece to analysis of the bill as introduced - which was not available when I posted it).

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.

That may have been the policy of David Garrett's draft bill, but it's not the policy of the bill as introduced. It will still impose disproportionate punishment in many instances but it categorically does not require "that all "third strike" violent offenders [receive] extra-long jail sentences, irrespective of the crime that they are convicted for..." Many offenders with two strike convictions, who commit a third strike offence will avoid the life sentence.

by Dean Knight on March 05, 2009
Dean Knight

Excellent post.

A small technical point though.  I thought the AG said in cases of "disproportionate severe treatment or punishment", one didn't get to section 5 as the right itself had an inherent qualification and one which specifically incorporates the proportionality standard? 

I'm a touch agnostic about that approach, which I think comes from Taunoa.  And, I think, the view is that it doesn't actually affect the gist of the vet itself - it's still focused on proportionality as a touchstone.

by Andrew Geddis on March 05, 2009
Andrew Geddis


First, apologies for misspelling your name! Careless of me. Thanks also for the clarification on the Bill-as-introduced versus the policy-as-first-proposed. I should have caught up with your updated post.


Yes - you are right. Once treatment or punishment is considered "disproportionately severe", it ipso facto fails the section 5 test (can't really have a "proportionate" limit on the right to be free from "disproportionately severe treatment or punishment"!).
I fudged this point.

by Madeleine on March 06, 2009

With regard the 3 strikes bill and surrounding controversy, I think appropriate force for punishment is being confused with defensive force. Given this there is no conflict with the bill and the doctrine of proportionality.
<a href="http://www.mandm.org.nz/2009/03/three-strikes-proportion-and-protection.html">Three Strikes: Proportion and Protection</a>

by Andrew Geddis on March 07, 2009
Andrew Geddis


You comment on your linked blog post "In the case of the 3-strikes policy the advocates are not claiming that a person who has committed a third crime deserves a harsher punishment, they are claiming that an habitual offender of particular serious violent crimes has shown him or herself to be a credible threat to others and should be incarcerated for this reason. If they are correct, then the proportionality doctrine does not apply."

But what about the hypothetical 70 year old "third striker" ... in what way does jailing him/her for a mandatory 25 years remove a "credible threat to others"? Will he/she really be a risk to society at 85? 90? 94? And if this is all about protecting from credible threats, then why not have a clause in the Act giving the judge discretion not to sentence a third striker for the mandatory non-parole period if they are not thought to pose such a threat? In the absence of such a provision, I take the claim "this is all about protecting the public" with more than a grain of salt!

by Dean Knight on March 10, 2009
Dean Knight


Don't worry - I understand the fudge for explanatory purposes.  It makes me wonder whether there is still some value in the proportionality calculus operating under section 5. 

I'm still lost on the relationship between sections 5 and 19.  I presume we're still stuck in the Quilter twilight?

And the present state of play on the "unreasonable" neccessarily means "disproportionate" in the context of sections 21 and 5... sigh

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