National apparently doesn't think gang members with criminal records are properly human. Or, rather, they don't deserve to be given the same rights that full humans possess.

Yesterday, National announced a gang and drugs policy that promised both progressive and regressive change. Promises of extra money to fund drug treatment and community harm prevention sat alongside such war-on-drugs staples as heavier prison sentences and new offences for drug users.

But what really grabbed the headlines was National’s police spokesperson Paula Bennett’s frank defence of granting the police new powers to freely enter and search the cars and houses of “the most serious criminal gang members” to look for firearms. Asked about this policy’s potential impact, Ms Bennett stated; “Some have fewer human rights than others when they are creating a string of victims behind them ... there is a different standard.”

This claim is both wrong and dangerous. It is wrong because the New Zealand Bill of Rights Act 1990, section 21 guarantees each and every person the right to be free from unreasonable searches.

And it is dangerous because a government that says some people have fewer rights than others undermines their very purpose. As the UN’s Universal Declaration of Human Rights states, “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.

But surely respecting human rights shouldn’t come at the safety of the public? Don’t we want our police to be able to take firearms away from potentially dangerous individuals before they hurt someone?

The thing is, the police already can do so. Under the Search and Surveillance Act 2012, the police may search a person’s house or car without a warrant when they have good reason to suspect that person illegally possesses firearms.

National’s policy, therefore, appears to be to allow police searches even where there is no reason to believe illegal firearms are present (or any other sort of criminal offending is taking place). Those individuals subject to National’s proposed law could have their cars or homes raided at any time simply because the police want to have a look around, based not on evidence of current wrongdoing but rather their past behaviour alone.  

Unfortunately, this sort of cavalier attitude toward promoting laws without apparent concern for their impact on human rights can be seen across the political spectrum. As recently as April of this year, Labour’s then Justice spokesperson Poto Williams touted a policy under which a person charged with rape would be presumed guilty of the offence unless they could prove that consent was given.

So much for the presumption of innocence, also guaranteed in the Bill of Rights Act. As our Supreme Court stated in Hansen v R, such “reverse onus” provisions pose a real threat to the fair trial rights of the accused and raise real risks of false convictions.

However, as our constitutional arrangements currently stand, either of these policies can become law irrespective of their rights implications. That is because all the rights in our Bill of Rights Act can be overridden by any other Act of parliament.This fact then puts a lot of responsibility on our elected MPs. We entrust our rights to them, giving them the power to limit or even entirely remove them where they judge sufficiently strong reasons exist to do so.

At National’s policy launch, Bill English defended this arrangement by saying; “it's enabled the country to deal with all sorts of issues in a practical and effective way.” But when we see MPs campaigning for votes on these sorts of policies, we might ask whether “practical and effective” really means “careless and unprincipled”.

Comments (9)

by Kat on September 03, 2017

Please explain to me this announcement by National is not in any way similar to Nazism. Just so I can get to vote on the 23rd I won't be holding my breath.

by Julian Ang on September 04, 2017
Julian Ang

I guess parliament is the supreme law maker but as a matter of convention, shouldn't they make law in the spirit of the Bill of Rights Act? I guess they can choose to ignore that when it no longer suits them but maybe it could be up to the Courts then to apply the spirit of the Act and perhaps, the judicial arm can act as a potential check and balance even if against the intent of parliament? How do you see it playing out?

by Moz on September 04, 2017

Ms Bennett stated; “Some have fewer human rights than others when they are creating a string of victims behind them

Was she talking about parliamentarians or gang members there?

We already knew that in the eyes of parliament some have fewer rights than others, witness the string of court cases the government has lost on this issue. Off the top of my head there's the payments to carers case, the equal pay cases, a couple of police ones.

Sadly in most of those parliament has disagreed with the courts and either failed to legislate in accordance, or actively turned round and changed the law. Retrospectively in some cases. You don't have to be I/S to say "earning that reputation".

by Andrew Geddis on September 04, 2017
Andrew Geddis


If Parliament legislates in a way that limits the rights in the NZBORA, then we should expect it to state very clearly why it is doing so and for MPs to give their reasoning as to why they think that limit is "demonstrably justified in a free and democratic society" (to use the wording of the NZBORA itself). What we shouldn't see is MPs blithely saying "we don't need to worry about the rights impact of this law, because the people it affects simply don't have rights."

Once enacted, such legislation then needs to be actually put into effect - in the case of National's policy, "Firearms Protection Orders" have to be issued against indviduals that then would purport to allow the Police to search whenever they want. At that point, the courts do enter the picture ... they may decide that any such Order has been wrongly issued (because of its effect on the rights of the person subject to it), or that a particular search under it is "unreasonable" and so unlawful (because of the particular way it was conducted). 

Consequently, I suspect that this policy is going to be very, very hard to actually put into practice ... but I also suspect that it isn't really intended to have much impact beyond September 23.

by Tom Semmens on September 04, 2017
Tom Semmens

This is a policy of a desperate, cynical and out-of-time government that is out of ideas. There is nothing Paula Bennett would love more than to suck oxygen from the opposition during an election campaign by causing a 'controversy' and bashing a few wet liberal academics at the same time as 'cracking down' on the crims would be a bonus. I'd ignore and vote Labour. She can't enact such laws from the opposition benches.

by Charlie on September 04, 2017

There is ample precedent for removing certain civil rights for certain persons: Prisoners lose right to freedom of association, right to vote and right to freedom of movement.

So that's not much of a hurdle.

What I don't like is using 'gang member' as a proxy for convicted criminal. Why not just apply it to those previously convicted of a violent or serious offence? I think other countries make this a condition of parole.

How would they define 'gang member' in law? Would they be required to keep a list of gangs and a membership roll for each gang? How will a cop recognise a gang member if he's not wearing a patch? What about gang associates?

So in summary, forgetting all the civil rights bleating stuff, this is just a stupid idea.

Worse, it's coming from the office of a deputy prime minister.

Worse yet - she's still smarter than the opposition's equivalent!

New Zealand's NOT got talent! 

by Eszett on September 04, 2017

This is nothing but a throw-away line in context of the election.

It's throwing a bone to the lock-them-up-and-throw-away-the-key constiuents, a blatant attempt by National to appear tough on crime without actually doing anything.

All the controversy and uproar just helps National, get's them headlines and coverage, and all the people who are outraged wouldn't vote for them anyway.

Plus if anyone argues with the line "criminals have fewer human rights", National can just portray them as academic crim-huggers.

How many people rolled their eyes last night when one news proclaimed:

"National annouced new tough laws for gang members, but critics say it may violate their human rights"

Stephen Joyce couldn't have written that line better for them if he had wanted to.


by william blake on September 04, 2017
william blake

Bennett is apologising to English for his having to say she screwed up but in the same breath standing by what she saIid, this makes her way stupider than the average politician.

As for being a throw away line, yes as in throwing away a bunch of votes.

by Julian Ang on September 05, 2017
Julian Ang

Thank you Andrew for shedding light on those points. Good to know if National gets re-elected (God forbid) and that horrible policy sees light of day, the Courts can intervene to place some constrains on the abuse of state power. As you have indicated, this might just be a stunt to garner the votes from the punitive part of the electorate but this and the boot camps policy puts paid to the evidence based social investment approach that the PM keeps lauding about. Talk about reverting to their roots - sigh.

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