Terry Carson - Law Making with the Fairy Godmother

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If the legal Fairy Godmother ever shoulder-tapped me and gave me the option of passing any law I liked then the choice would be simple.  I would pass a law making it illegal for the New Zealand parliament to pass any more laws on any topic – ever.  I am convinced we already have all the laws we will ever need.

If the legal FGM was particularly generous and gave me a second go I would probably opt for abolishing our entire current body of criminal law legislation and replacing it with the following two simple laws:  A. Thou shalt not take anything that does not belong to you, and B. Thou shalt not do anything that hurts another person.  I believe these two simple laws, if interpreted and applied by a judge and/or jury who are directed to use only their commonsense, would be about all we need. The judge and jury could be asked, when someone was found guilty, to again use their commonsense to decide the appropriate punishment taking into account the general beliefs and standards prevailing in current Society.

As the legal Fairy Godmother, whose existence I do not for a moment doubt, is unlikely to ask me to rewrite our criminal justice system laws I want to explain briefly the reason for the first law I suggested in the opening paragraph. I have been following with interest the debate over the “freedom” camping legislation.  The bill to outlaw this practice is currently before parliament. Freedom camping is where (usually) motor caravanners park in lay-bys and other casual stopping places and stay overnight, rather than going to designated camping grounds etc.  Many of these places have no toilet facilities and the real problem with the practice is that some freedom campers leave their bodily wastes behind and, in some cases, empty out their accumulated wastes/rubbish into the nearby bushes. Most of us would agree that this is a pretty unpleasant and undesirable state of affairs that should be stopped.

The Government is anxious to pass this legislation before the Rugby World Cup (Is it legal for me to even mention the event without paying for a licence?) as apparently many of those coming from overseas to end up at Eden Park to watch England and France (sorry, I mean the All Blacks and Australia) battle out the final, will between games drive hastily out to the first bit of unspoiled New Zealand they can find to attend to their bodily functions instead of using the modern and comfortable facilities supplied in hotels, bars and stadia. To cope with this problem the Government has come up with the Freedom Camping Bill 2011.

The Bill (see www.nzlegislation.govt.nz and click on Bills) runs to a modest sixty-two PDF pages.  The Bill strikes terror into our hearts by telling us at the outset that, “the primary method of achieving the bill’s purpose is to create an infringement regime.” However, we are assured that the Bill will not infringe upon the good old Kiwi right to go camping and enjoy the great outdoors as you can still freedom camp anywhere where local authorities and the Department of Conservation has not expressly prohibited it.  One imagines in the case of some local authorities the only place you can camp will some piece of land situated in such a remote place that even the local authority does not know it exists, and even then you will probably need to consult a lawyer to be absolutely certain what you are doing is legal.

On the other hand we already have The Litter Act 1979 where Section 15 makes you liable to a $5000 fine if, as an individual, you leave litter in a public place or on private land without permission.  If the litter is likely to endanger anyone, cause physical injury, disease or infection, or is toxic or poisonous in nature etc (which would clearly cover throwing out toilet wastes) you can face one month’s imprisonment and/or a fine of $7500. So why isn’t this legislation that has been around for twenty-one years being enforced, and why do we need the proposed Freedom Camping Bill?  The short answer probably is that it requires a lot of work and proof to successfully bring a prosecution but it is very easy to hand out $200 a pop infringement notices to otherwise responsible and law abiding Kiwis, who have chosen to stay overnight at the wrong place.  It could be quite a nice little earner for local authorities, a bit like placing parking tickets on motor vehicles in the middle of the night when there is no demand for parking places.

I think we should always be concerned when Parliament’s approach to a perceived problem is to avoid targeting the actual offenders but instead bring in a one size fits all infringement regime. In Auckland around forty-two thousand motorists a year pay a staggering six million dollars plus in fines for driving in bus lanes. (source: NZ Herald) Clearly thousands of these offenders have never when driving ever hindered or caused problems to any public transport operators. They are fined simply because the enforcement authority has the power to do it, regardless of criminal or moral culpability. A system of law that does not differentiate between really culpable behaviour and totally harmless behaviour is one that risks losing public support and respect. Can you really respect a criminal justice system that punishes you for no compelling reason?

Disclaimer: The information contained in this article is of a general and summarised nature only.  It should not be used as a substitute for obtaining personal legal advice.

(c) T J Carson
 
 

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