What is not generally realised is that there is no such thing as generic
human rights, in practice. If you read some legal provision about
the elimination of discrimination on the grounds of sex or race, for
example, you might be excused for thinking that it applies to both sexes
and all races. Far from it. Almost all the people (i.e.
lawyers and judges) who are crucial to the implementation of such a
provision have been trained to accept a list of categories of people
who deserve protection from discrimination. Such a list includes
women, but does not include men; it includes Blacks, but it does not
include Whites.
When I gave one of my talks to the Linguistics Staff/Postgraduate Lunchtime
Seminar at Victoria University of Wellington, some years ago, I criticised
Television New Zealand for only banning sexist
language that disadvantaged women, but not sexist langauge that
disadvantaged men. So, for example, it bans words such as "chairman"
and "postman" (you have to say "chair" or "chairperson",
and "postal worker", or something like that), but it does
not ban words such as "gunman" or "manhunt".
Words such as "chairman" and "postman" are banned
because it is argued that they create a stereotype that puts off women
from applying for the positions so described. Similarly, words
such as "gunman" or "manhunt" imply that only men
use guns or that only men are hunted by the police, and this creates
stereotypes that might well have negative consequences for men.
When I had given my talk, Dr. Laurie Bauer objected that Television
New Zealand was merely implementing a list of words that it had been
given. He appeared to mean that the problem was therefore not
Television New Zealand's fault. I should have made (but did not
have the presence of mind to make) the following point: the issue
is not whose fault it is -- the issue is that the human rights approach
to sexist language is not being applied generically to both men and
women. Television New Zealand should have insisted on a list that
included words such as "gunman" or "manhunt", and
the person (i.e. the woman) who drew up the list should have included
words such as "gunman" or "manhunt", in the first
place.
The Domestic Violence Act 1995
In New Zealand, the Domestic Violence Act 1995 provides that a person
may apply for a protection order, in order to prevent some other person
(now or formerly living with them) from coming near them or communicating
with them. Protection orders can be imposed without the other person
knowing that a court was even considering the matter. This type of application
for a protection order is called an ex parte application.
Not only can a person have this penalty imposed on them without having
a chance to defend themselves, but subsections 13(2) and 14(5) state
that, in all applications for protection orders, the judge must take
into account:
(a) The perception of the applicant or a child of the applicant's
family, or both, of the nature and seriousness of the respondent's
behaviour; and
(b) The effect of that behaviour on the applicant or a child of the
applicant's family, or both.
So, not only is Natural Justice breached by the fact that a penalty
can be imposed on someone in their absence, but they can be penalised
for the effect of their behaviour on someone else and
for the perception that someone (apart from the judge)
has of their behaviour -- neither of which the latter person can fully
control.
Some -- maybe many -- people would say that the effect of someone's
behaviour on someone else is something that the law should be concerned
with -- even if that effect is not totally under the control of the
former person. However, since the Act mentions the effect of someone's
behaviour, why should it also mention someone's perception of someone
else's behaviour, which is also not under the second person's full control?
Most people who apply for protection orders are female, so what is
really involved here is the law's concern for female subjectivity.
Section 22 of the New Zealand Bill of Rights Act 1990 reads as follows:
22. Liberty of the person -- Everyone has the right not to
be arbitrarily arrested or detained.
Does the Domestic Violence Act breach this section? There are two issues:
1. Does the Domestic Violence Act provide for people to be arrested
or detained?
2. If so, can they be arrested or detained arbitrarily, under the Domestic
Violence Act ?
The initial effect of a Protection Order is not to arrest or detain
the respondent. However, section 49 of the Domestic Violence Act provides
for
"imprisonment for a term not exceeding 6 months or to a
fine not exceeding $5,000" (or imprisonment for up to 2 years
for certain categories of repeat offenders)
for failing to comply with the terms of an Protection Order or of
a direction to attend a programme. So, if, in a particular case, a Protection
Order has been imposed, and the respondent subsequently receives a prison
term under section 49 of the Domestic Violence Act, I consider that
he has been detained in terms of section 22 of the New Zealand Bill
of Rights Act 1990.
The next question, then, is whether there is scope for the arbitrary
imposition of a Protection Order under the Domestic Violence Act. This
is the point at which words almost fail me, because of the sheer scale
of the breach of the Bill of Rights that is involved, and because of
the fact that it appears to have attracted no public criticism.
I repeat that subsections 13(2) and 14(5) state that, in all applications
for protection orders, the judge must take into account:
(a) The perception (my emphasis) of the applicant
or a child of the applicant's family, or both, of the nature and seriousness
of the respondent's behaviour; and
(b) The effect (my emphasis) of that behaviour on
the applicant or a child of the applicant's family, or both.
I do not claim an encyclopedic knowledge of the Law in all its historical
and geographical forms and variations, but this subsection seems to
me to be unprecedented in what we arrogantly call "civilised"
communities. Normal courts routinely have to determine what the objective
facts of a case are. In criminal cases, they also routinely have to
determine what was going on in the mind of the alleged perpetrator at
the time of the alleged crime, in relation to the mens rea
elements (i.e. intention, recklessness, etc) of the crime, as described
in the statute. All of that is reasonable, since a person has control
over his acts (with certain exceptions), and can reasonably be held
to account for his own intentions, negligence, or recklessness, etc.
But to be subject to a court sanction -- which may be converted into
a fine or imprisonment if one does not comply with its terms -- because
of what goes on in the mind of another person is such an unreasonable
assault on the inherent dignity of the individual, I submit, that even
the Third Reich, that icon of crimes against humanity, did not go so
far in its inhumanity to man. This modern, Feminist, New Zealand provision
is certainly arbitrary, in my opinion. In fact, it is insane!
Doug Graham
The Ministry of Justice's website (as at 8 December 2008) states that,
"The Ministry is led by Secretary for Justice and Chief Executive
Belinda Clark." She, or someone like her, was probably mainly
responsible for brainwashing Doug Graham and turning him insane.
This (below) is the evidence of his insanity:
