Don Brash's speech on how New Zealand can be made safer from serious criminals.
An address by Don Brash Leader, ACT New Zealand; 25 September 2011; Waipuna Lodge, Auckland
Ladies and gentlemen,
As we prepare to elect a new Parliament, I'm delighted to have this opportunity to share some of my reflections on one of government's most crucial functions: the maintenance of law and order in the context of a free society.
In fact, along with the defence of the country – the protection of its citizens from foreign aggression – the protection of its citizens from internal aggression is government's most crucial function.
Its importance is shown in the fact that not an election goes by without its being a political football. I'm sure this election will be no exception!
With so many people here today from the Asian community, I'm delighted to note in passing that, if the example you set were more widely followed, law and order would be much less of an issue.
Asians are admirably and spectacularly under-represented in our crime statistics!
In 2004, there were 167 arrests for every 10,000 Asians in the country, 320 arrests for every 10,000 Europeans, and 1,448 arrests for every 10,000 Maori.
I doubt the figures have altered appreciably since then. Certain high-profile exceptions notwithstanding, Asians such as yourselves – both New Zealand-born and immigrant – have long been exemplary citizens: quietly and lawfully going about your business, being good New Zealand citizens while retaining your identity, looking after your families, working extremely hard and generally achieving great results with a minimum of fuss and bother.
You have been much more often the victims of crime than the perpetrators of crime.
I'm tempted to say that the entrepreneurial ethic is part of your DNA – except that that would be to insult you. You've chosen to embrace and practise it – and for that I salute you.
As a politician, my message to voters generally is, “Ask not what the government can do for you; ask what you can do for yourselves.” In the case of this audience, such a message is redundant.
In society at large, however, there are still too many unwilling to make their own way in life, honestly and peaceably. How we deal with such people, and minimise their numbers, is the subject of my comments today.
Actually, there are encouraging signs their numbers may already be falling. Statistics suggest that violent crime is down this year for only the second time since 2000. Much credit for this is due to our National Party colleagues, and in particular to Police Minister Judith Collins, who among many other good things has put more police on the beat with encouraging results. Three hundred additional frontline officers were assigned to Counties Manukau recently, for instance, and recorded crime in the area dropped by over 3%.
It's too early to be certain that the Three Strikes legislation that the ACT Party successfully steered through Parliament has also played a part in the improved crime statistics, though this was precisely the sort of outcome supporters of the legislation expected.
But, even if this encouraging trend continues, I believe there are some quite fundamental things that need to change if we’re to drive crime figures down permanently to as low a level as can reasonably be expected in a free society.
I should say at this point that ACT is still in the process of finalising specific law and order policies for the upcoming election.
What I want to share with you is the kind of thinking that is shaping that policy formulation, so that when I do announce policy specifics, none of them should come as a shock to you!
The backdrop to all our policy is a basic bed-rock principle: that individuals are the rightful owners of their own lives and therefore have inherent rights and responsibilities. The proper purpose of government is to protect those rights and not to assume those responsibilities.
And a fundamental right is the right to defend oneself from attack when the government is not there to do so – the right to self-defence, in other words.
It's a right currently recognised in law under Section 48 of the New Zealand Crimes Act:
“Everyone is justified in using, in defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.”
Unfortunately this law has been honoured in recent times as much in the breach as in the observance.
Anyone who injures, much less kills, an intruder or attacker is as likely to be prosecuted as the intruder or attacker!
Furthermore, the intruder or attacker might well seek compensation for his injury, or for having his feelings hurt … and in this crazy politically correct world, it's entirely possible he'll get it!
Many of you will remember the case of gun-shop owner Greg Carvell. He shot and wounded an intruder who was threatening him and two staff members with a machete. Instead of applauding him, police charged him with possession of a pistol for unlawful purposes. The judge who sentenced the machete-wielder was moved to deplore the charges against Mr Carvell. As were the public-at-large. But Mr Carvell had to endure a year with the charges hanging over him before the police yielded to common sense, decency and public outrage … and dropped them.
Northland farmer Paul McIntyre was not so lucky. He did have to go to trial. His saga went on for two and a half years after he shot and wounded one of three men trying to steal his farm-bike. Police brought two charges against him: shooting the would-be thief with reckless disregard for the safety of others, and discharging a shotgun without reasonable cause in a manner likely to endanger the safety of any person. A jury found him not guilty on the first charge but couldn't reach a verdict on the second, meaning he had to endure another trial on that charge. The judge in that trial took the rare step of directing the jury to find Mr McIntyre not guilty without the trial proceeding … and there, finally, this travesty of justice ended. It should never have started.
Mr McIntyre's legion of supporters asked at the time why a blameless man, alone late at night in a remote location, should be charged for defending himself against three intruders attempting to steal his property. The answer, of course, is that he shouldn't have been. I believe we must now make it so that he couldn't be.
Note that the problem is not what the law says – everyone is entitled to use reasonable force in self-defence – but the way in which police have often chosen to thumb their nose at it.
You'll remember no doubt the case of Virender Singh, owner of a liquor store in Otara. Wielding a hockey stick, he chased off five drunken youths trying to steal alcohol from his store. One of them stabbed him. Mr Singh was arrested and charged on two counts of injuring with intent. A police spokesman said Mr Singh had used too much force and his arrest was a warning to others not to take the law into their own hands. They should ring 111, he said. Six months later, a Justice of the Peace in the Manukau District Court decided there was no case to answer and the charges were dropped. Charges should never have been laid to begin with.
A couple of months prior to the arrest of Virender Singh, another Mr Singh, Navtej, in another liquor store, had refrained from taking the law into his own hands. He offered no resistance to several youths staging an armed robbery of his store. Regardless, one of them shot him in the abdomen. Mr Singh's business partner did dial 111. Police arrived … 31 minutes later. A subsequent inquiry found the slow police response to the 111 call was unjustifiable and materially contributed to the delay in getting emergency medical treatment to Mr Singh … Mr Singh having died of his wounds in hospital the day after being shot. It was, and is, precious little consolation to his family that he had not taken the law into his own hands.
Ladies and gentlemen, these kinds of episodes are a blight on any society claiming to be civilised.
My intention is to see that ACT Party policy reflects a firm commitment to Section 48 of the Crimes Act.
To that end, I believe that the right to self-defence should be enshrined in our Bill of Rights also. It's already ACT policy to add private property rights to the Bill of Rights; the right to self-defence should be there too.
The Crimes Act should be amended to include a presumption – not a guarantee, but a presumption – of immunity from prosecution for anyone who uses reasonable force to defend his person and/or property.
And I would favour amending Section 56, which currently says:
“Everyone in peaceable possession of any land or building, and everyone lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person.”
I would delete the words “if he does not strike or do bodily harm to that person.” If a trespasser turns violent, it's entirely possible that any reasonable force used to evict him will involve striking him or causing him bodily harm. The law should allow for that.
The key concept in all of this of course is “reasonable.” Shooting someone who's retrieving a tennis ball he or she has accidentally lobbed onto your property would clearly be unreasonable, not to mention despicable … and should most definitely be prosecutable.
But – and this is the bottom line as far as I'm concerned – the status quo where innocent people are more likely than not to be prosecuted for using legitimate force in self-defence and in defence of their property must be overturned.
Your home is your castle; your body is your temple. The law must be unequivocal in allowing you to defend both with reasonable force.
I pledge that ACT policy will be directed to that end.
Part of the status quo three years ago that the National Government has taken laudable steps to overturn was an ethos that coddled perpetrators of crime and cold-shouldered their victims. Too often, the wellbeing of the criminal appeared to be paramount; his victims were ignored by the system, left to fend for themselves.
The Victims of Crime Reform Bill currently before Parliament goes a long way toward dealing with this problem. Among other things, it seeks to “increase the accountability and responsiveness of government agencies providing services to victims.”
It paves the way for victims, in their Victim Impact Statements, to be far more candid when they confront those who have wronged them than they've been able to be in the past.
In the past, statements were watered down by judges so as not to unduly hurt the perpetrators' feelings. They were often a very tepid reflection of the victim's feelings, thus denying the victim the powerful catharsis a frank account would enable, and sparing the perpetrator the full blast of his victim's wrath, hurt and pain.
But I'm concerned that a provision in the Bill allowing judges to refuse requests to make Victim Impact Statements for fear of a risk to anyone's safety or disruption of court proceedings might still act as a dampener on the content of such statements.
If a judge has such a fear, it should be open to him to ensure extra precautions are taken to ensure everyone's safety. It should not be an option to deny the victim his or her right to make an Impact Statement. That right should be absolute, and I hope the legislation in its final form will uphold that.
Perpetrators should not be spared the full blast of their victims' wrath, hurt and pain.
Concern for the hurt feelings of criminals is, of course, a sign of our crazy politically correct times. If I were to state another overarching objective I believe should guide our policy formulation, it would be the banishing of political correctness from our legal system.
Just a few months ago a hardened criminal was awarded $3500 for breach of privacy and hurt feelings. This particular man has a long and violent criminal history. His record includes aggravated robbery, aggravated assault of a police officer, unlawful possession of firearms and trying to escape from custody. He's in jail as we speak. At least, I hope he is.
At some point he learned that the Ministry of Social Development had wrongly listed him as having a conviction under the heading of “Domestic Violence.” That's one thing that is not part of his record thus far. The Ministry refused to correct the mistake and apologise. The man went to the Privacy Commissioner and the Human Rights Review Tribunal saying that, given the injury to his feelings, nothing less than an apology and monetary compensation would be acceptable to him. The Tribunal agreed that he'd suffered emotional harm and ordered not just the payout but suppression of the man's name lest he be caused further emotional distress.
Ladies and gentlemen, could a satirist writing fiction improve on this?!
Or on the ACC payout of $20,000 to a serial burglar for a new ear to be constructed, to replace the one bitten off by a police dog as he practised his craft?
At this point, I don't know what would be required, legislatively speaking, to put a stop to such grotesque inversions of justice, but my position is: whatever it takes is what we should do!
As I indicated at the outset, what I'm offering today are musings rather than definitive policy announcements – musings that will give you some idea where we're headed in our policy formulation.
There are so many things relevant to this vast and often complex topic that I could muse about – concurrent sentencing, domestic violence, name suppression, secret surveillance, to name just a few – but time permits me just one more this afternoon.
I've already stated ACT's support for the Government's boosting of police numbers. Making sure there are enough police to keep us safe from criminals – and that they're “out there,” accessible, on the beat – should always be a primary priority for any government.
So should making sure that the laws the police are enforcing are in fact keeping us safe from criminals.
Laws that do not serve that purpose, and indeed possibly make us more vulnerable to criminals, should not be on the statute books to begin with.
In that respect I have to say, after long and painstaking reflection, I have come to have serious questions about our current marijuana laws.
Since 1927, it's been a criminal offence to possess, use, produce or sell cannabis in New Zealand.
The police and the courts spend some $100 million of taxpayer money a year enforcing this prohibition of a drug believed by many people to be less dangerous than tobacco or alcohol. Is there really any point to this?
Some 6000 people are prosecuted every year for cannabis offences. Are we any safer for this?
It is believed that some 400,000 New Zealanders are cannabis users. In other words, some 400,000 New Zealanders routinely flout the law – roughly 10% of the total population. Has the sky fallen in?
Apparently, a majority of New Zealanders think this law is an ass. The last poll I saw, admittedly not a very scientific one, on stuff.co.nz, had 64% of respondents in favour of decriminalisation. Has the time come to pursue that option?
Just a couple of months ago, the Global Commission on Drug Policy pronounced the international War on Drugs a failure and recommended that governments should explore legalising marijuana and other controlled substances.
The Global Commission's members, I should add, include former UN Secretary-General Kofi Anan, former US Secretary of State George Schultz, former US Federal Reserve Chairman Paul Volcker, former presidents of Brazil, Peru and Colombia, a former Prime Minister of Greece, and businessman Richard Branson. These are hardly dope-addled hippies or wild-eyed radicals. They reported that drug prohibition has had devastating effects on individuals and societies all around the world and said the War on Drugs as we know it should end.
In the United Kingdom, the Liberal Democrats – in coalition with the Conservative Party – favour the decriminalization of all drugs.
In April this year, our own Law Commission, whose President at the time was former Prime Minister Sir Geoffrey Palmer – again, hardly a dope-addled hippy or wild-eyed radical – recommended allowing cannabis for medicinal use and substituting a cautioning regime for criminal penalties in non-medicinal cases.
I'm haunted by the thought that all that police time and all those police resources could be better deployed in actually keeping us safe from real criminals intent on harming us, instead of making criminals of 400,000 New Zealanders who are harming no one – except, arguably, themselves, which is their prerogative in a free society.
I'm deeply troubled by the fact that the biggest beneficiaries of prohibition are the gangs, just as organised crime was the biggest beneficiary of the ill-fated prohibition of alcohol in the United States.
I'm troubled by all the crime gangs commit in pursuit of their illicit trade, and all the innocent victims caught in the crossfire.
I hasten to add I do not advocate or approve of marijuana use. Unlike Helen Clark and Peter Dunne, I haven't ever tried it and I have absolutely no intention of doing so. But I have to ask myself by what right I would ban someone else from using it, or support a law that does so, especially when I'm leader of the political party in New Zealand that is most committed to personal freedom.
Let me be absolutely clear: I'm not saying it's now ACT policy to decriminalise or legalise marijuana. I'm simply saying it's my personal view that we should give the idea serious consideration as there are some strong arguments in its favour – arguments supported by some seriously sober and responsible national and international leaders.
I hope I've succeeded in conveying the flavour of my thinking on the matters I've touched on, and indeed matters I haven't, as my colleagues and I continue the process of formulating our law and order policy.
When we do announce that policy, you may be sure that it’ll be driven by four over-arching considerations:
1. making sure the government does as much as possible to keep you safe from criminals;
2. making sure that when the government can't be there, you won't be criminalised for taking reasonable steps to keep yourself safe from criminals;
3. making sure you're not criminalised for any action that is in fact a victimless crime; and
4. making sure victims are not treated as criminals, and criminals are not treated as victims.
Thank you ladies and gentlemen.
25 September 2011.
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