The absurdity of the Move on Orders law

Paul Goldsmith, aka Paora Goldsmith, performs an important function for the Government.

He is the Minister of Justice. He does not have a legal background. He has an MA in history and worked for a while for the Waitangi Tribunal.

He then changed and complained that he had been ““brainwashed by a left-wing history department” until he “snapped out of it” when he “met characters like John Banks and people like him””. He wrote haliographies about John Banks and Don Brash and Alan Gibbs. He claimed that he had been inspired by former Rogernome Michael Basset.

As Minister he has excelled in stoking culture wars by proposing minute adjustments to legislation to highlight issues that will get social media buzzing.

Think this is harsh?

How about this list:

• Goldsmith engaged at some expense Sunny Kaushal to stoke anger amongst small business owners. This resulted in tweaks to trespass law, and some increases to the penalties for theft as well as proposing increased citizen powers of arrest. As I said previously technically these are relatively simple changes that did not need a dedicated office to collate and drive them through.
• He introduced a bill banning “disruptive” demonstrations outside private homes. The Regulatory Impact Statement stated that the incidence of these protests “appear to have been a longstanding but minor part of protesting in New Zealand”.
• He introduced a bill increasing punishment for coward punches and attacking first responders.
• He gleefully claimed credit for disenfranchising tens of thousands of kiwis.
• He moved to stop Mike Smith from continuing with his court proceedings seeking to hold the largest climate change polluters to account.
• He has consistently attempted to undermine the Treaty of Waitangi and is currently seeking to amend legislative provisions to require no more than to take into account the provisions of the Treaty. The Treaty should be honoured, not just taken into account.

His latest cause celebre is attempting to make the lives of homeless even more wretched.

His Summary Offences (Move on Orders) Amendment Bill was introduced last week. The intent behind the bill is to give police even more powers to deal with perceived problems caused by people having nowhere to live.

Goldsmith has always had a problem with the homeless.

Back in 2008 when he was an Auckland Councillor he complained about people sleeping rough and wanted Council to spend money on harassing the homeless to get rid of them.

The number of homeless then was far smaller than it is now.

Fast forward to this year and his Government has slashed support for the homeless including the nomber of social housing available. Homeless numbers have increased dramatically particularly in Auckland.

The proposal is barbaric.

What is really appalling to me is that it applies to the young as well. It is intended that the power extends to citizens as young as 14.

The intent is to allow police to issue move-on orders requiring people who are engaging in disorderly or disruptive behaviour in public places to leave the area and not return for a specified period of time.

The behaviour has to be disorderly, intimidating, threatening, or disruptive, unreasonably obstructing entry to a trade or business, breaching the peace, begging, rough sleeping, or activities indicating an intent to inhabit a public place.

The behaviour has to be either below the threshold of criminality, or for low-level criminal behaviour that relates to public disorder:

The Bill says that the orders do not apply to protest, freedom camping, or charitable or not-for-profit fundraising. Time will tell if this is true.

If someone who receives a move on order knowingly or recklessly, and without reasonable excuse, fails or refuses to comply with the order then they can be prosecuted and face a maximum penalty of 3 months’ imprisonment or a fine not exceeding $2,000.

I wonder who Goldsmith is getting legal advice from. Because in my view the powers are totally unnecessary for young people up to the age of 18.

There is already power for police officers to take a young person into custody and either deliver them home or into the care of Oranga Tamariki.

Section 48 of the Oranga Tamariki Act 1989 states:

Where a child or young person is found unaccompanied by a parent or guardian or other person who usually has the care of the child or young person in a situation in which the child’s or young person’s physical or mental health is being, or is likely to be, impaired, a constable may, using such force as may reasonably be necessary, take the child or young person and—

(a) with the consent of the child or young person, deliver the child or young person into the custody of a parent or guardian or other person usually having the care of the child or young person; or

(b) if—

(i) the child or young person does not wish to be returned to a parent or guardian or other person having the care of the child or young person; or

(ii) no parent or guardian or other such person is willing or able to have custody of the child or young person,—

place the child or young person in the custody of the chief executive by delivering the child or young person to the chief executive (acting through the chief executive’s delegate).

(2) Placement of a child or young person in the custody of the chief executive shall be sufficient authority for the detention of the child or young person by the delegate or in a residence under this Act until—

(a) the child or young person agrees to being returned to a parent or guardian or other person usually having the care of the child or young person who is willing to have the care of the child or young person; or

(b) an application is made to the court for a care or protection order and the child or young person is brought before the court for the purpose of determining whether the child or young person is to be held in custody pending the disposal of the application; or

(c) where the circumstances of the case indicate that the child or young person is, or may be, in need of care or protection, the expiry of 5 days after the day on which the child or young person was placed in custody, or in any other case, 3 days after that date—

whichever first occurs.

Being homeless is a pretty strong indicator that a young person’s physical or mental health is being, or is likely to be, impaired. Police already have power to remove them and place them in the care of Oranga Tamariki. They don’t need this extra power.

You may ask what about the power to arrest?

After all if a young person ignores a move on order then theoretically they can be arrested and put in court.

But this is not so simple.

There are restrictions on the power of arrest of young people. It should not be used unless it is considered necessary to ensure the appearance of the child or young person before the court, or prevent that child or young person from committing further offences, or preventing the loss or destruction of evidence or interference with any witness in respect of any such offence and where the child or young person may be proceeded against by way of summons, that proceeding by way of summons would not achieve that purpose.

And to cap things off there are two principles contained in the Act that suggest that the power of prosecution should be rarely used.

Unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter. Arresting a young person only because they are homeless and being a slight nuisance would not qualify.

And criminal proceedings should not be instituted against a child or young person in order to provide any assistance or services needed to advance the well-being of the child or young person.

To summarise if a police officer finds a young person who is homeless they can already take a young person and place them in the care of Oranga Tamariki if a parent is not available. And it is extraordinarily unlikely that charges against the young person will be laid.

And under section 8G of the Bill the provisions of the Oranga Tamariki Act are not affected.

In a rational world the law would only apply to citizens over the age of 18.

In a world where social media outrage is the primary purpose young people would be included.