That Speech ... In Its Entirety

Lindsay Perigo's picture
Submitted by Lindsay Perigo on Mon, 2011-09-26 05:44

LAW AND ORDER: PROTECTING NEW ZEALANDERS FROM CRIME

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.


French in uproar over oral sex anti-smoking posters

Marcus's picture

French in uproar over oral sex anti-smoking posters

[As one of the comments said, "looks like a pro-smoking ad to me"].

"French advertising companies are often criticised for using sexual images to sell everything from designer spectacles to sweetcorn. Now, for the first time, a controversy has erupted in France over the use of sexually suggestive posters as a deterrent.

A campaign to discourage young people from smoking shows male and female teenagers kneeling in front of a man, as if being forced to have oral sex. A cigarette takes the place of the man's sexual organ. The caption reads: "Smoking is to be a slave to tobacco."

The campaign, which was devised for a pressure group supporting the rights of non-smokers, has been attacked as "scandalous" and "potentially counter-productive" by feminist and pro-family campaigners."

I should say...

Ross Elliot's picture

...if it even needs to be said, that the lack of dynamism in NZ's political landscape is a result of inheritance of the Westminster system.

How does a dynamic force, like the US Tea Party, capture votes in NZ? It doesn't, because the grassroots is captured by the party apparatus.

The Tea Party has made itself a force precisely because of the primary system, which we don't have. The spectacle of candidates slugging it out simply to reach nomination doesn't apply in our system. I'm sure the very idea of multiple candidates standing before the electorate, as happens in the US, is quite bemusing to most non-Americans. As does the idea of localism, as pertains in a federal system.

The stress in our system causes voters to run to conservatism; to reject radical influences and move to the center: witness National's consolidation. I'm sure Key is pinching himself. In the US, the same stress causes massive fractures: witness the Tea Party and the vicious outpourings of the American left.

The only saving grace in our system is that if a party is returned in a landslide it can do its worst with little opposition save for bloody uprisings in the streets.

Well...

Ross Elliot's picture

...ACT's demise is a function of National's popularity, as the rise of the Greens is a function of Labour's demise.

It's that simple.

right message, wrong messenger

motley's picture

Yes of course Brash is right about decriminalising marijuana. But a bit like Goff the public have turned off Brash and no amount of spin now will bring him back. I was full of hope that Brash would turn ACT around, especially with you Lindsay, guiding him.

But Brash has failed I'm afraid to engender any enthusiasm, and no matter how logical his policies might be he is pushing the proverbial uphill to get anything across now. ACT, or the real ACt, the Libertarianz, needs a new young face . I've never been a Brash basher but it's just not working.

Mark

The Press

gregster's picture

That was a very good editorial. And Don's speech is great. One then wonders why he couldn't co-ordinate its message with his own people. And am I the only one who thinks "Asians" is meaningless? Like "African Americans."

The thing is...

Ross Elliot's picture

...that marijuana liberalisation is a metaphor for the state of our culture.

It's such a simple thing. A telling thing. If we can't do that, we can't do much else.

You have to wonder if someone had the balls to force this through parliament, they'd also have the wherewithal to put down a good scrum and push through a lot more.

Roger Douglas, who retired today, a third-way socialist, at least had the right strategy: hit them with so much, all at once, that they can't resist. Too many targets.

The irony is rich enough to choke you.

Ah, yes...

Ross Elliot's picture

...the Great Perigo, Magnus Perigo-us, stands at arms length, as he must do, and he is right.

I don't know...

Marcus's picture

...who wrote that press release but some of those points will be batted down by opponents.

Although dope was only downgraded in the UK for a year or two under the previous government - effectively it was decriminalised for personal use.

The labour government buckled under pressure from lobby groups and reversed the downgrade. This is because they argued that currently Marijuana was smoked in a much stronger form than in the 60's and that these stronger types were much more likely to cause mental problems like Psychosis.

Under this barrage of constant newspaper stories of how dangerous Marijuana has become the government decided to ignore the advice from its own review which concluded that reversing the downgrade would not reduce the consumption.

'Press' Editorial

Lindsay Perigo's picture

If only we had more media like this:

OPINION: The careful and considered suggestion by the leader of the ACT party that it is time to re-examine the legislation making possession of cannabis a criminal offence should be taken seriously.

Coming from most other advocates for liberalisation of the law on cannabis it could be dismissed as the partisan advocacy of raddled old dope-heads.

But coming from Brash, a former governor of the Reserve Bank and the epitome of a buttoned-up, middle-class, white-bread Pakeha, as a sober proposal, modestly put forward for discussion, it is not so easily dismissed.

If it is given the serious consideration it deserves, it will be found that Brash's arguments for decriminalisation of cannabis use, which he supports, or even closely limited legalisation are compelling.

Although some have greeted the proposal as somehow radical, and have tried to beat up strife between him and the ACT party candidate for Epsom, John Banks, who is resolutely opposed to any relaxation of the law, Brash's idea is increasingly part of mainstream debate about policing of drug use.

On this, it is Banks, not Brash, who is the dinosaur. As Brash noted, just a couple of months ago the Global Commission on Drug Policy declared the war on drugs a failure and recommended that governments should, among other things, explore legalising marijuana. That commission includes such pillars of rectitude as a former United States secretary of state, George Schultz (who has long been an advocate of liberalising the law in the US) and a former chairman of the US Federal Reserve, Paul Volcker.

Even without liberalisation of the law, marijuana use is widespread. It is estimated that about 400,000 New Zealanders use it routinely, which according to some accounts is proportionately more than in the Netherlands, where its use has been legal to some degree for many years. A tiny proportion of users – about 6000 – are prosecuted for cannabis offences every year but the resources deployed against it are huge. It has been reported that the cost of enforcement – police, courts and the rest – amounts to $100 million a year. Given the continued use of cannabis (possibly higher now than it was earlier and hardly less), all that effort can scarcely be called a success. Probably the only real beneficiaries of it are big-time dealers who profit from the higher price that enforcement measures create.

It used to be thought that cannabis was a health threat, which was no doubt why it was outlawed in 1927. But apart from a very slight risk that it has to some people who may be susceptible to mental disorders, no serious problems can be attributed to it. If there were any, they would have shown up among the very large population who have been using it illicitly for many years.

Decriminalisation of cannabis, allowing possession of small amounts for personal use, has been the law in two states of Australia for a while without any adverse social effects. Several US states would have gone further in recent years and legalised it but pressure from the federal government has prevented them. If the drug were to be legalised, to allow, say, not only personal possession but also growing of small amounts, it would have to be with safeguards, for instance to keep it from children. It is time, though, to recognise that trying to prohibit it entirely is a massive waste of money and effort for no good purpose and, as Brash says, to have a sensible discussion about what should be done about it.

- The Press

Oh, come on

Ross Elliot's picture

It's election year. That was a serious speech. You don't hoist that kinda flag, in that context, without knowing how it'll be taken, both by ACT supporters and potential voters.

Ross

Richard Goode's picture

"Listen, John, I'm about to outline ACT's policy on cannabis liberalisation. ...

This isn't a minor policy. It's contentious. ... Old Banksie's got a different drug policy than that of the party he represents.

Did you read the speech?

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 ...

Someone...

Ross Elliot's picture

...might have to remind me of the rules of the political game: they keep on changing them.

John Banks, former minister of police, an anti-drug hardliner, is standing for ACT in Epsom, the winning of which will pull other members of ACT into parliament from the party list.

So, did Brash think to give his old mate, John, a call and say something like: "Listen, John, I'm about to outline ACT's policy on cannabis liberalisation. I appreciate that this is something you're not in favour of, but you'll be so good as to keep you mouth shut and toe the line."?

This isn't a minor policy. It's contentious. And when you have a peacock like Banks in your ranks, you have to make sure he's on the same page as everyone else. But no. Old Banksie's got a different drug policy than that of the party he represents.

I guess this sort of compromise is the price of getting back into parliament.

That is...

Olivia's picture

the sanest political speech I have ever read on Law & Order. The usual outpouring of Brash bashing from our mediocre media just disgusts me. But this always happens to the Don when he's right about something. Powerful stuff!

I think you're wrong there...

Marcus's picture

...many people have now associated the idea of illegal substances with crime.

So it's more like: dope = theft = prostitution = death = failure

So they see banned substances as a negative rather than a positive.

I guess ACT is also perceived as a right-wing party and it is titillating to see them take what people see as a counter-intuitive position.

Greens yes, ALCP yes, Labour - perhaps, but ACT no.

Marcus

Richard Goode's picture

Was there much talk in the NZ media about this speech?

It's lucky I was in between swigs of holy water when I read that.

There has been MUCH talk in the NZ media about Brash's speech. The small part of it that dealt with cannabis decriminalisation, that is.

Unfortunately, most of the talk is Brash-bashing. And, after long and painstaking reflection, I think I know why. Rand might just as well have had the NZ media in mind when she wrote

They do not want to own your fortune, they want you to lose it; they do not want to succeed, they want you to fail; they do not want to live, they want you to die; they desire nothing, they hate existence, and they keep running, each trying not to learn that the object of his hatred is himself . . . . They are the essence of evil, they, those anti-living objects who seek, by devouring the world, to fill the selfless zero of their soul. It is not your wealth that they’re after. Theirs is a conspiracy against the mind, which means: against life and man.

Great speech...

Marcus's picture

...although it would have been more of a sensation if he had actually adopted the decriminilization of drugs as a policy.

Was there much talk in the NZ media about this speech?

Good speech. Two excellent

Sam Pierson's picture

Good speech. Two excellent musings. The right to self-defense being the far more important of the two.

It's great to see a person with a public profile in NZ able to step beyond the left/right split and be liberal in social & economic policy. I think credit is due one Mr Perigo for such a development.

Brash is upsetting the bejesus within his own party. Something I'd reckoned he'd need do. In time? We'll see. His advisors need commending.

I hasten to add

Richard Goode's picture

I advocate and approve of marijuana use.

Poopfolio

Richard Goode's picture

Results of the Campbell LIVE text poll. Should Cannabis be decriminalized? 28% NO 72% YES! I got a better question, Do you know anyone that has ever used cannabis? 95% YES Do you want to see them go to jail? 100% NO

I also voted yes in that

Stephen Berry's picture

I also voted yes in that poll. I wonder what the result would have been if the word 'legalisation' was used instead of 'decriminalisation'

Another day, another dollar

Richard Goode's picture

I voted YES.

Stunning poll result ...

Lindsay Perigo's picture

After Don's appearance on TV3's Campbell Live tonight, 72% voted yes to decriminalisation.

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