Labour is showing terrible judgment by repealing Three Strikes legislation at the behest of unelected and unaccountable judges, says National’s Shadow Attorney-General Chris Penk.

“In Parliament, the first justification given by the Minister of Justice was that ‘the judiciary doesn't like this law’. He then claimed, wrongly, that ‘the public don’t like this law’.

“It’s certainly true that a number of judges in senior courts have indulged in activism against the relevant provisions within the Sentencing Act – provisions passed by a democratically elected Parliament in May 2010.

“Significantly, though, fervent supporters of the repeal are now openly admitting what is effectively a constitutional crisis of confidence.

“In the words of the Green Party’s Marama Davidson, some judges have taken it upon themselves to ‘weasel their way around’ the current law of the land. In a further embarrassment for left-wing politicians and judges alike, she went further, pointing out that ‘all sorts of somersaults’ have been performed by some judges to circumvent the will of Parliament throughout the past decade.

“This is a sadly accurate charge levelled at judges who have taken issue with the Three Strikes law on the basis that it is ‘disproportionate’ to the wrongdoing of violent offenders, with activists claiming that this contravenes the New Zealand Bill of Rights Act 1990.

“This claim is spurious for at least four reasons.

“First, it was very much Parliament’s intent to create an additional level of punishment or deterrence for violent offenders. These are criminals caught injuring or killing others on multiple occasions, with less tolerance for violence on the third occasion. Any ‘disproportionate’ sentencing is therefore a feature – not a bug – of the Three Strikes law.

“Second, the Three Strikes law is at least arguably a ‘justified limitation’ on the rights of violent criminals in the New Zealand Bill of Rights Act. The policy aim of the then-National/ACT Government was to deter violent offenders and protect Kiwis from being brutalised further by such offenders.

“Third, would-be judicial legislators should acknowledge that the Bill of Rights Act itself is very clear that no provision of any law should be disregarded on the basis of supposed inconsistency with the Bill of Rights Act.

“Fourth, the Three Strikes law already contains a safety valve. It is simply untrue to claim the courts are invariably required to sentence a third-strike offender to the maximum extent of the law. Judicial discretion is already provided in the Three Strikes section of the Sentencing Act if it would be ‘manifestly unjust’ to impose the maximum penalty.

“Instead of kow-towing to judicial activists, the Minister of Justice should be listening to Kiwis who want to be safe from the violent excesses of New Zealand’s worst repeat offenders.

“There is no need for Labour to pander when the law is explicit. Kris Faafoi must pay no heed to judges intent on doing his job for him, except to remind them politely to do their own.”

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