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PN Lawyer Challenges AG Re. Street Racing Bill


Date: Tue, 11 Jun 2002 20:29:34 +1200

Subject: Re: submission

To Bruce Thomson, CARM [Citizens Against Rowdy Motoring]

My name is Richard Fisher. I am a qualified barrister and solicitor of the Supreme Court of Nova Scotia, and of the High Court of New Zealand.

I have followed with interest the development of New Zealand's street racing bill. I was particularly interested in media reports which indicated that the Attorney General considered that the proposed bill offends the New Zealand Bill of Rights Act. The media refers to a "report" by the AG to that effect. I have not seen the report. In the absence of further information, I felt compelled to submit to the Committee in respect of the proposed bill. The gist of my submission follows:

1) The proposed bill may very well provoke a prima facie breach in the Act.

2) The Act contains provisions which allows legislation to breach the Act, provided that the breach can be demonstrably justified in a free and democratic society. I have seen no media reference to this very obvious feature of the Act.

3) In determining what exactly can be "demonstrably justified in a free and democratic society", a sophisticated legal analysis is used in both NZ and Canada, borrowed from the Supreme Court of Canada. I have not seen evidence of its application in this case.

4) Canada has much more experience than NZ in interpreting demonstrable justification. In fact, NZ's Bill of Rights Act is based upon Canada's Charter of rights and freedoms, so comparing the two countries experience is both justified, and worthwhile, in light of NZ 's smaller size and less litigious character, as well as its lesser experience in interpreting offended rights under the BRA.

5) Canada (that is, British Columbia) has promulgated legislation with regard to street racing which is similar to that in the proposed bill. The legislation is new, but has been subject to robust legal inquiry with regard to whether it will withstand a Charter (ie Bill of Rights) challenge. The view of the government, based on extensive legal experience in dealing with Charter challenges, is that it will.

6) Clearly then there is a dichotomy between the NZ and Canadian responses to street racing legislation, in terms of its possibly minimal impact on rights under the BRA. My submission supports deference to the Canadian decision, in light of Canada's much vaster experience in this area, in light of an absence of evidence of a substantial BRA legal analysis, and finally in light of the pervasiveness of this problem throughout NZ, which, I gather from media reports, is now of concern to a very large number of citizens.

RM Fisher, BSc, PhD, LLB

Bruce Thomson Coordinator, Citizens Against Rowdy Motoring

bthomson@e3.net.nz 20 Lyndhurst Street, Palmerston North, New Zealand Tel. 64-6- 3577-773 or 3577-889 Mobile 021-158-5513 (omit that 0 if overseas)

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