Attorney-General David Parker has slammed Labour's plan to crack down on ram raids saying it's inconsistent with the Bill of Rights Act on multiple grounds.
Last month, Labour announced it would make ram raids a specific crime, which could be punishable by up to 10 years in prison.
The move will also allow police to charge 12 and 13-year-olds so they can be tried in the Youth Court. Under the current system, they can only be charged for the most serious charges like manslaughter and murder. It will mean pre-teens can face penalties like being locked up in a youth justice facility or wearing an ankle bracelet.
Parker said while he acknowledged there was a clear public interest in tackling the rise in ram raids - particularly by those under 14 years of age - and also breaking the cycle of a "small cohort" of repeat offenders, he concluded the measure does not appear to constitute a justified limitation under the Bill of Rights.
The Ram Raid Offending and Related Measures Amendment Bill is one of many bills the Government is trying to rush through in the last sitting week of Parliament.
The bill passed its first reading on Tuesday with support from Labour, National and ACT - with the Greens and Te Paati Māori opposed.
Parker, who was vetting the bill against the protections in the Bill of Rights Act, said the plan appeared inconsistent on three grounds.
The first is a child's right to be dealt with in an age-appropriate manner, the right to be free from unreasonable search or seizure and the right to freedom of expression.
The bill could be justifiable if the benefits outweigh the harms, but Parker said that "a court is, having considered relevant evidence, likely to conclude that the harms outweigh the benefits".
The UN Committee on the Rights of the Child, which is referenced in the Oranga Tamariki Act, said a child aged 12 or 13 lacks the capacity for abstract reasoning as their frontal cortex is still developing.
Parker said a welfare-based approach was considered more suitable than a criminal law approach.
"They are unlikely to understand the impact of their actions or to comprehend criminal proceedings," Parker said.
"The default position of dealing with 12 and 13-year-old offenders through a 'non-punitive' approach, via for example care and protection proceedings in the Family Court... reflects evidence that offending by children at this age is symptomatic of problems in the home environment.
"For this group evidence suggests that measures should principally be designed to promote the welfare of the child, their family and address difficulties underlying the offending."
A child of that age can be dealt with under New Zealand's criminal law for murder, manslaughter or very serious and repeat offending. The new ram-raiding offence would lower the threshold for what qualifies as very serious offending and would apply to first-time offenders.
Parker's conclusion does not mean the Bill cannot progress, but a court might be asked to consider the Bill's consistency with the Bill of Rights Act if it became law.
If the Bill was declared inconsistent by a court, the Government in power would be required to refer the matter to a select committee and then provide a formal response after the committee's report.
