Emergency surveillance law shows the Crown has too much power

New Zealand is not a democracy, if by that we mean government for the people, by the people. This was proven to me beyond a doubt when I was sworn in as an MP for the third time in 2005. MPs are required to swear allegiance to the Queen and her successors before they can take part in the Parliament. When I tried to add “to the people of Aotearoa New Zealand and the Treaty of Waitangi” (Parliament's true sources of legitimacy) I was forbidden to do so. MPs allegiance must be to the British Crown alone.

I was neither the first nor the last MP to attempt to add something meaningful to the oath, but it was a personal reminder about who the Parliament serves. Allowing New Zealanders to elect the people who serve the Crown in this country fools us into thinking that those representatives are there to serve us. More importantly, it obscures the lie that is at the heart of our constitution – that the source of political authority is the Queen.

The Parliament only sits after it receives Letters Patent from the Queen giving it the power to do so. Every Act passed through Parliament has to be signed off by the Queen, or her proxy the Governor General, before it becomes law. Regulations are actually Orders in Council from the Queen or the Governor General, made on the advice of her Minsters. Within our system, the Queen is the very source of political power and legitimacy.

This is not just abstract political theory. It distorts our very thinking about what the Government can and can't do. It is the reason why New Zealanders have so few real protections from the State, protections that would limit the power of the Crown. It is the basis for the Governments ability to sack an elected council in Canterbury and replace it with hand chosen appointees, or forcibly take over the administration of the waterfront from Auckland City. It is what allows the Government to seriously contemplate passing a law under urgency to legalise police surveillance that the courts have already ruled was illegal and that the police were repeatedly warned about. It was what allowed the last Labour Government to steal huge areas of land based on the ethnicity of its owners with the Foreshore and Seabed Act. The power of the Crown trumps the rule of law.

If we were a real democracy, our political system – our constitution – would be based on the recognition that sovereignty flows from the people, not from a monarch (and a foreigner at that). It would embody the idea that political power flows upwards. Sovereignty begins with our right as human beings to make decisions over our own lives. We express it in the collective decisions we make as communities. Elements of it can be passed on to the national parliament and to the regional and global governance bodies that we collectively choose to take part in.

A New Zealand democracy would be based on the Treaty of Waitangi, which reinforces the local decision-making rights of hapu over the things that affect them. In the Maori language version of the treaty that the chiefs and Governor Hobson signed, Maori never ceded sovereignty to the Crown. The idea that the Queen is the sovereign power is simply incompatible with the tino rangatiratanga of hapu. That is why the courts have had to invent the “principles of the Treaty of Waitangi” in an attempt to sidestep the international legal doctrines that give priority to the Maori language version.

A real New Zealand democracy would provide protection for all its people from the arbitrary use of power by the State. It would safeguard our human and civil rights from those given enforcement power over us, such as the police, prison system, customs, and increasingly food and medicines regulators. At present New Zealanders have no constitutional protection at all. It is only the lack of a simple majority due to MMP that has slowed the Government from ramming through an emergency retrospective law to give police carte blanche powers of video surveillance.

Finally a real democracy would not have local councils made and unmade by the whim of the Crown, but as expressions of people's inherent right to make decisions at a local level over the things that affect them at a local level. The ability to sack a properly elected council and replace it with Government appointees is an outrage, made possible only by a distorted view of political legitimacy and power.

New Zealand will become a republic sooner or later. The real question we need to ask ourselves, though, is much deeper. Does the power of our Parliament come from some person because they are more divine than the rest of us, more imbued with wisdom and justice? Or rather does it come from the people and their inalienable right to rule their own lives, and their choice to bestow on the Government the ability to make decisions in the best interests of the nation? Once we have decided that, eveything else will become clear.

Take prosecution power away from police

A young man I know was in court recently. He and some friends were drinking round the back of a sports club and they decided to smash a window. It was typical dumb drunk stuff and they deserved to get caught. He didn't deserve a conviction for attempted burglary, which was what the police charged him with.

I asked the police prosecutor how he justified an attempted burglary charge when the window was visibly barred and impossible to enter. He said that if the window hadn't been barred he was pretty sure the kids would have tried to get inside.

I don't need to mention that the young guy was Maori. Of course he pleaded not guilty, on the reasonable basis that he wasn't trying to burgle the place, he was just being a vandal. The case dragged on for about a year, wasting police and court time and costing who knows how much money. Eventually, frustrated over police delays and deferred proceedings, he pleaded guilty on the promise of a community sentence. I guess you could call it conviction by attrition. If the charge had been willful damage or some such, however, there would have been a guilty plea and the case could have been dealt with straight away.http://www.blogger.com/img/blank.gifhttp://www.blogger.com/img/blank.gif

For me it was just another example of why prosecuting practice needs to change. The case didn't make the national news, but it illustrated the point just as well as the infamous case of the autistic light bulb collector Cornelius Smith-Voorkamp. Mr Smith-Voorkamp was accused of being a looter, detained in custody for 11 nights (and his partner for 6 weeks) and prosecuted for 6 months before the case was dropped in August. All for taking two light bulbs. Then there is the case of singer Tiki Taane who was charged in April with disorderly behaviour likely to incite violence. He sang the NWA song 'Fuck the police' while police were in the club he was performing at. The case was dropped this week but it is hard to avoid the suspicion that the police deliberately wasted months of court time and fistfuls of public money for a bit of personal revenge.

The Minister of Justice Simon Power, like Justice Ministers before him, has recently introduced changes to the legal aid rules in a bid to cut costs. It's time his officials pointed out to him that a more effective, although less populist, way to cut spending on lawyers, as well as get the courts running more smoothly, would be to crack down on ridiculous prosecutions.

The problem is that the police seem to lose perspective. That's understandable – they are in the thick of things. But it means that we cannot rely on the police to not prosecute matters that just shouldn't ever go to court. It means we cannot rely on the police to always lay charges that are in proportion to the offense that was actually committed.

That's without even mentioning those cases where police perjury is involved, http://www.blogger.com/img/blank.gifsuchttp://www.blogger.com/img/blank.gifh as when then-senior constable Neil Robert Ford caused a traffic accident, lied about it and persuaded a to blame the victim. Shane Cribb, 17, was charged and found guilty. Mr Cribb and his supporter Steve Potter spent 5 years fighting for justice. After it was over Mr Potter said that he worked out what really happened within days of the accident. He commented that "If I could see what was gapingly wrong, why couldn't the authorities? That's the thing that I really still struggle with."

This case also demonstrates that the police find it hard to make objective decisions when it comes to prosecuting police officers who may have broken the law. The failure of the police to prosecute Constable Abbott after he shot Steve Wallahttp://www.blogger.com/img/blank.gifce dead in Waitara in 2000 is another example. The family had to bring a private prosecution before the legality of that killing could be tested, even though the courts found there was a case.

We have to take prosecuting decisions out of the hands of the police. We need an independent Public Prosecutors Office with responsibility for deciding when to prosecute and what charges to lay. The job of the police should be to investigate crime, interview suspects and gather evidence. Having a prosecutors office which can then evaluate the evidence without any prior stake in the case would clear the crap out of the courts as well as give citizens a bit more protection from malicious prosecutions. Who knows, it might even have saved those Operation 8 defendents who have just had their cases dropped after four years of legal hell.

from my Monkeywrenching column 8 Sept 2011)

Ill conceived criminal law? Just the usual thanks

After having a laugh at Clayton Cosgrove below, I thought I'd better go have a look at what he is talking about. Two bills stuck out.

The first is the Gangs and Organised Crime Bill. Going by the press release, it seems like a typical case of throwing good legislative time after bad. Justice Minister Simon Power says "“By doubling the sentence for participation in a gang we are reflecting the culpability of those gang leaders who organise the manufacture and distribution of methamphetamine, and we are addressing the low rate of successful convictions".

Eh? It appears that selling P is a worse crime if you are a Mongrel Mob member than if you are an evil sociopath with no friends. Not quite sure why. Nor am I sure why doubling the sentence will increase the number of convictions. (The release says that "of 339 prosecutions there were only 19 convictions" which I guess highlights either how poorly thought out the original legislation was or how incompetent the police are).

They ARE lowering the threshold for the police to get warrants, from investigation of offenses attracting 10 years to ones attracting 7. Of course if this is about targeting P as the Minister claims then this is irrelevant because manufacture and sale of P has a maximum of life.

Actually, it is already very easy for police to get warrants if they have a scrap of evidence to base an application on. The police always moan to politicians that the reason why they can't get on top of gangs is because they are hobbled by pesky laws protecting civil rights. So politicians give police more powers, and shortly thereafter the police are back with the same complaint. That is how civil rights are consistently and continuously undermined. Just have a look at the new campaign to give police yet more powers over boy racers.

All in all, much as it grieves me to agree with Mr Cosgrove, it looks like political theatre gone bad. Sir Graham Latimer got it right when he said that the quickest way to destabilise gangs is to legalise cannabis.

The other bill is about DNA samples.From the press release:

"It allows police to collect DNA from people they ‘intend to charge’, and to match it against samples from unsolved crimes. At present, DNA can be collected only with consent, by judicial approval, or by compulsion where people are suspected or convicted of an offence punishable by more than seven years’ imprisonment, or another specified offence"

So it is about giving the police the right to take DNA from anyone they wish (I intend to charge you....when I've got some evidence) and to use that for a fishing trip through the DNA database.

"And any misuse of profiles will be subject to the full extent of relevant law and civil rights protections, and the police will develop guidelines to avoid any arbitrary or unreasonable application of this power".

Just like they did with Tazers, MoDA search without warrant powers, pepper spray right? Somehow I don't feel comforted.