First nine days of lockdown unlawful, but justified


A court decision has found that the Government breached the New Zealand Bill of Rights Act 1990 in the first nine days of the lockdown.

So, what happened?

A three count complaint was made that the Government did not act within the scope of the law during lock down. Andrew Borrowdale took the Government to court, aggrieved that his rights of freedom of movement and freedom of association were being infringed on during lock down. His first point regarded comments made by Prime Minister Jacinda Ardern and other officials concerning the announcement of lock down and its onset. His second related to three orders and how they were linked to each other.

In short when New Zealand went into lockdown at 2359 hours on 25 March 2020, the Government had overstepped the order of the Director General of Health, Dr Ashley Bloomfield that forbade congregating except with social distancing.

This is to say that whilst the New Zealand Bill of Rights Act 1990 was breached by the lockdown for the first nine days, the rapidly evolving COVID19 situation meant that the Government was left with little choice but to act rapidly. Whilst staying in our homes was not a legal position until 03 April 2020 it was one that was found to be justified, reasonable and proportionate to the emergency as it stood at the time.

However only on this count, article 1, of the case laid, did the Court find in favour of Mr Borrowdale. The other two counts were dismissed.

Unsurprisingly this has drawn an angry reaction from the Opposition in Parliament today who attempted to suggest that the Government is a body with two arms but does not know what each arm is doing. However one could argue that the Government, in a time of unprecedented urgency where New Zealanders were being put on an emergency footing that had not happened since World War 2, if at all, literally did not have the time to go through and double check their legal footing before it became necessary to lock the country down.

Some will call this evidence that the Government cannot and should not be trusted with anything. But many of these are the same people currently promoting conspiracy theories around the COVID19 response when there is plenty of evidence that New Zealand’s success stems in no small part from reacting as we did. Yes, in hindsight the Government should have taken a bit longer to confirm the legal ground that it was standing on, but if we had waited another week or however long before putting lock down into effect, perhaps we would have a three digit death toll instead of 22.

That is not okay.

The case for voting YES in cannabis referendum


At the General Election of 19 September 2020, there will be a referendum on whether New Zealand should legalize cannabis.

There are numerous reasons why I am voting yes in the 2020 referendum on the legalization of cannabis. In the article following I lay out those reasons and explore some of the side issues around cannabis in New Zealand:

  • Low level cannabis offences take up police time, resources and tax payer money unnecessarily
  • The justice system is unnecessarily clogged with the resultant prosecutions from those offences
  • Minister of Justice Andrew Little has announced a probable regime that would be implemented should the referendum return a YES vote, which focuses on reducing harm
  • Recognition of need to address cannabis addiction as medical issue and not a criminal one

The regime that Mr Little has proposed, the regulatory regime would have the following provisions:

  • A minimum age of 20 for purchasing and using cannabis products
  • A ban on all marketing and advertising of cannabis
  • Requires harm minimisation messaging to be on products
  • No public use, but confined to homes and regulated premises
  • Restricts cannabis sales to physical stores
  • Regulations on the potency of cannabis products
  • A person over the age of 20 will be able to grow two cannabis plants on their property
  • Individuals will be able to carry up to 14 grams of dried cannabis in public places

Mr Little says that it will be an education and health based regime for those with addictions, assuming that they are willing to enter a treatment centre.

More critically we need to acknowledge as I have mentioned in the past that the “War on Drugs” has been an abject failure. It has driven the cannabis market underground and in doing so it has enabled growers, synthetic cannabis importers and others wanting commercial gain from growing it to thrive in a market that has no regulation and attracts the worst in society.

One of the more damaging aspects of cannabis in New Zealand and around the world has been the rise of synthetic cannabis or “synnies”. These are much stronger and more debilitating than regular cannabis, and can render users zombie like where they appear to be completely detuned from what is happening around them. Many of the users are some of the most vulnerable elements of society with no family, support networks or means of finding work, their drug use can lead to – in the case of women – being forced into prostitution to earn money.

On the whole I like the regime that Mr Little is proposing to implement if the referendum returns a YES vote. I do have concerns though about cannabis being grown on private properties, due to some of the secondary activities and behaviours that tend to be associated with drug manufacture. Specifically I am thinking of the tendency to have firearms, the construction of structures that will impede lawful surveillance and law enforcement; also the coming and going of people with connections to the criminal underworld, prostitution and gang activity.

So whilst I will be voting YES, I acknowledge that there is more work to be done yet on these reforms and I look forward to seeing what the final plan will look like.

 

N.Z. in lock down: DAY 39


Yesterday was DAY 39 of New Zealand in lock down as we fight the COVID19 pandemic.

For the last 5 weeks and 4 days we have been trying to limit the spread of COVID19 within New Zealand. To do that, the country has had to make substantial sacrifices, including briefly foregoing many of the activities we had come to take for granted. Thus far New Zealand has been very successful in containing COVID19 and restricting its ability to harm our communities. The very vast majority of New Zealanders have been stringent in their compliance with the restrictions and protective measures that have been put in place.

However, there is a small number of irresponsible morons who think that at LEVEL 3 they can have their lives back, that they can start attending parties and do not have to abide by social distancing any more. New Zealand Police in the first few days since LEVEL 3 restrictions came into force have prosecuted 135 people and warned another 342. In the last few days there have been several major incidents where people have not complied with social distancing:

  • A tangi in Christchurch where 100 people turned out, despite being told that only 10 people were allowed
  • A gang party in Christchurch

New Zealand Police need to get tough. New Zealanders are done with playing kind. We have been in LEVEL 4 for 5 weeks and now LEVEL 3 for a week. People cannot claim to not know any more. We have ample evidence both here and abroad of what happens if we are not firm on the safety measures that have been put in place. I propose:

  1. In the first instance a $500 fine payable in one week orĀ  – given the large number of people who live pay check to pay check, the impact in the bank balance and the resulting telling off that they should be getting from their bubble should be enough to make them not do it again
  2. In the second instance if a fine has failed to get the message through, a night in the police cells; should the fine fail to be paid without good reason, the punishment in the second instance is applicable
  3. In the third instance, jail time – if a person is really determined to ignore the laws and put the rest of us in unnecessary danger because all they could think of was themselves, then that person should be held until COVID19 is no longer a danger

Harsh? Well, to be honest, I heard that Australia was putting up $1,000 instant fines, so in that respect, not as harsh as people might think. And there is a simple reason for that. People who breach the rules will have to be accountable to their bubbles when they break them, and I am sure that those bubble members will not be happy at the prospect of LEVEL lasting beyond 11 May 2020.

Sorry Grace


Dear Grace Millane

This is a horrible article to write. It is horrible by virtue of the circumstances leading to it, which should have never happened.

So, your killer has been convicted by a jury that took 5 hours to reach a verdict. I can only admire their stamina going through that and am not surprised that they have been stood down from jury duty for the next 7 years. They would have seen some horrible evidence of a cowardly brutal murder committed by a person who it appears was a prolific liar.

I can only admire the police that handled the case, who would have had the god awful task of telling your family that they had lost their daughter in what should have been a fantastic once in a life time trip. What an awful job to have to do.

I am sorry Grace. I am sorry that my country was where you took your last breath in what would have been absolutely horrendous circumstances. You should have been safe here. You should have been able to enjoy all that Aotearoa had to offer and you appeared to be having a magnificent time doing exactly that. You met a man who you thought you could have some intimacy with and who appeared to be getting on well with. You should have been able to leave that room and enjoy your 22nd birthday and the hopefully many more that would have followed.

I can only hope as do my fellow New Zealanders that your killer gets the due sentence. I hope that the New Zealand justice system gives your parents a sense of closure on what without doubt would have been the most shocking, horrible experience they and the rest of the Millane family should never have had. It will never bring you back from the dead. It will never make your parents, and siblings lives what they would have been with their vivacious daughter, sister around to cause hilarity, mischief and rain down love.

I am sorry that you will never get to live the full and happy life you so richly deserved to, because of one man’s cowardly act.

Sorry Grace. Except in the eyes of your killer, it really honestly was not meant to be like this. You were meant to be able to go home or continue to travel after finishing in New Zealand happy with what you accomplished, full of awesome memories of the places you went, things you did and the people you met.

You were meant to be able to find a job, a place to live, someone who genuinely loves you and be able to love back. You were meant to be able to be so much more than this, a horrible part of the New Zealand homicide statistics for 2018. The only stat you really should have been was another visitor to these shore who had a great time and went away happy and content.

But because of this cowardly act, you are not.

I am sorry Grace.

Fly with the angels.

Addressing crime in New Zealand


My previous article explored some of the reasons for crime happening in New Zealand. This article explores how to address it.

The idea of what constitutes justice in New Zealand is one that has been controversial since the country was founded. Equally controversial is how sentencing regime under which judges hand down sentences is administered. The question of whether to jail or not is hotly debated as New Zealand often looks to the United States or overseas for ideas instead of coming up with our own.

But jail is just one tool that can be used in New Zealand, and nor is it – as we shall see below – necessarily the best sentence for many convicts. Jailing is expensive and resource consuming. Some prisoners for the first time in their lives might be experiencing order – a clean bed, shower, regular meals and supervision. It is indeed sad and quite wrong that a place of state imposed punishment somehow becomes the preferred accommodation of prisoners. And we as a nation have to look at how it came to be that.

But jail is at risk of being the ambulance at the bottom of the cliff, when solutions are needed to stop people falling down that cliff.

In thinking of how we might address our jail population, I envisage only those who pose a direct and immediate threat to society being imprisoned. I am thinking of Malcolm Rewa, Steven Williams. For offences such as drunk driving an overhaul of how the demerit point system works to enable “residual points” that accumulate if more than one such offence is committed might be better, with harsher sentencing such as jail being restricted to those offences that kill, injure or damage property. When those residual points reach a national limit, that person has to permanently surrender their driver licence.

In many instances it is not the jails or the police that are at fault. Rather it is the courts, whose interpretation of the law, has become archaic. The police are the ones who look for the offender, bring them to trial and collect the evidence. The courts are where the trial is held and the accused is found not/guilty, as well as sentenced. It is this last part of the courts role and responsibilities where the New Zealand justice system fails the public on the issue of sentencing. Judges fail to jail that small percentage of criminals who are simply too dangerous to stay in society, and many of the ones that are there in their place, might not be best suited to jail.

In the first instance, I would be happy if there were considerably expanded community programmes where prisoners are put to work in the community. Some will call it abuse of labour, but when prisoners are released from prison they will be expected to somehow live outside of the institution that released them. That means finding somewhere to live; finding a job with an income that can sustain them in terms of the basic necessities, such as food, clothing, any medical assistance, power, rent and transport. In preparation for life on the outside would it not be best to have them in some sort of prison based preparatory programme?

Many prisoners are quite skilled. They might have been in another time before they derailed builders, farmers, tradespeople and maybe forestry workers. New Zealand is screaming for more trades people and labourers. The safer ones who are not going to behave like Mr Williams, the man who murdered Coral Burrowes, and try to harm their fellow inmates, might appreciate that someone thinks enough of them to provide them an opportunity for redemption. Prison might be their night-time lock up, but during the day, they could be helping the communities that they damaged.

A second idea would be to look at Finland, where authorities have adopted a quite radical approach to jail. Not being able to envisage this myself, I do have questions such as how well would such ideas work here? Would the New Zealand public accept such a radical change in philosophy, and how well conditioned for post-jail life would it leave the prisoners?

A third idea would be to either legalize or decriminalize cannabis. I have not seriously discussed the legalization or decriminalization of cannabis here, but it needs to be made clear now that there is a difference between the two:

  1. Decriminalization in this instance is the removal or loosening of criminal penalties for possessing small amounts of cannabis – it has the effect of telling the authorities to look the other way
  2. Legalization is the removal of laws that criminalize the possession and/or personal use of cannabis; the authorities treat it is as a substance that can be regulated and taxed

Both have their merits and both have their downsides. The legalization of cannabis might be the best move, but it would involve substantial preparation – the criminal laws, the medical framework for treating such addictions and their social, medical, legal and economic consequences would all need to be revisited. The judicial, court and police systems would need to be reoriented. Before that, it is possible we may see a move to decriminalize cannabis.