Do New Zealand’s Gang Members Deserve Human Rights?

It was an astonishing announcement: Paula Bennett, Deputy Prime Minister of one of the world's most stable parliamentary democracies casually proclaiming that a new policy would—"probably"—breach the human rights of some New Zealand citizens if it were to become law.

Bennett's comments came during the announcement of an $82 million proposal to crack down on methamphetamine and gangs, which, among other things, would give police the power to execute warrantless searches of gang members' homes and cars. "It probably does breach the rights of some of those criminals," Bennett said, "but they have to have had a serious violent offence behind them already and a firearm charge and on the basis of that we're going ahead with it." When pressed on whether gang members had human rights, Bennett replied "some have fewer human rights than others".

The policy is, says Dr Jarrod Gilbert, author of Patched: A History of Gangs in New Zealand, of real concern, even if some of her more incendiary comments have since been dialled back by Prime Minister Bill English.

Gilbert says such populist policy goes with politics in this country, but that National's most recent announcement is different, going beyond the mere retrograde, like the party's previously released boot camp policy, and into much more insidious territory. "The difference here is that one of the 'remedies' has gone from being normal roll-your-eyes-type political grandstanding into something much more serious, and that's an attack on universal human rights."

Those rights, of course, apply to all—and not just those who society deems deserving. Gilbert points out you don't need to have any sympathy with gangs or gang members in order to want to protect them from excesses of the state. "That's exactly why [human rights] are universal, because we don't get to choose by looking at people and saying just because we don't like them they don't have rights. In fact, that idea is—not to put too fine a point on it—repugnant and ought to be condemned in the strongest terms possible."

Gilbert calls the powers that police have to go into a home "extensive", and that it needs oversight, like the courts usually provide. "Those procedures are fine, at least in part, because they are universal—they apply to a banker, a gang member, whoever. What we're talking about here is pointing to certain members of society and saying, 'These people here don't have the protections afforded to the rest of us.' And that should give us all pause for thought, I would suggest."

I asked Denis O'Reilly, long-time member of Black Power, what he thought of the announcement. "At its crudest, it's fascism. Never mind the Bill of Rights, you might as well revoke the Magna Carta. When we try and identify people by affiliation, rather than behaviour, we're on a very slippery slope."

He says a policy like this would only further entrench the sense of hopelessness felt by lower echelons of society. "And then that just consolidates oppression—these are the roots of Al-Qaeda and things like that. At a point, people just feel so damned disenfranchised they rebel."

O'Reilly isn't the only one who feels that National's new policy might run up against the Bill of Rights, which enshrines protection against "unreasonable search and seizure". Nick Chisnall, a barrister at Auckland's Blackstone Chambers, told me that, from a legal perspective, Bennett's announcement was "really concerning". He told me the Law Commission was currently reviewing the Search and Surveillance Act and that one of the issues being considered was bolstering the warrant preference rule. "And here we have the National Party effectively saying they want to water that down even more."

Both Chisnall and Gilbert spoke with concern about the precedent a policy like this could set, Gilbert asking what this would mean for New Zealand if the country ever found itself the victim of a terrorist attack. "What type of response can we expect then? What sorts of human rights will be stripped away then? These things underpin our democracy, and they quite rightly should be protected."