Public Safety (Public Protection Orders) Bill. justspeak.org.nz

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1 Public Safety (Public Protection Orders) Bill justspeak.org.nz

2 Public Safety (Public Protection Orders) Bill 1 Thank you for the opportunity to make this submission on the Public Safety (Public Protection Orders) Bill (the Bill) on behalf of JustSpeak. JustSpeak is a non-partisan network of young people speaking to, and speaking up for, a new generation of thinkers who want change in our criminal justice system. 2 We oppose the Bill, and submit that the Committee should recommend that it does not pass. 3 We would like to be heard in support of this submission. Summary of submissions 4 JustSpeak believes that public safety is of utmost importance. However, protecting the public should not come at the cost of unjustifiably restricting the rights of offenders. JustSpeak considers that the proposals in the Bill fail to strike a proportionate balance between the State s legitimate objective of protecting citizens and the right of the offenders. This is because: (a) (b) (c) the proposed orders do not provide new ways of addressing the underlying causes of offending or of reducing the risk, rather they simply lower the threshold for imposing further restrictions on the rights of offenders and containing that risk; the proposed orders in substance amount to further punishment of sentenced offenders, contrary to the rights against arbitrary detention and double jeopardy affirmed in ss 22 and 26 of the New Zealand Bill of Rights Act While the Bill deems the orders to be part of the civil commitment regime, and therefore not technically punishing an offender further, this is semantics; and the mechanisms for the review and removal of the orders are discretionary and when coupled with the lower civil threshold for making the orders, could make is more difficult for an offender who is subject to an order having that order removed. 5 For these reasons, JustSpeak opposes the Bill and submits that the Committee should recommend that the Bill does not pass. Our submissions are set out in more detail below. 2

3 Submissions Introduction 6 The Bill provides for three types of orders. Public Protection Orders (PPOs), Protective Supervision Orders (PSOs) and Prison Detention Orders (PDOs). PPOs can be imposed if the High Court is satisfied that the person meets the threshold for the imposition of a PPO on the ground that there is a very high risk of imminent serious sexual or violent offending by the person. A PDO can be imposed on a person who is subject to a PPO if the High Court is satisfied that the resident poses an unacceptably high risk to himself or herself, to others and that the person cannot be safely managed in the residence without any less restrictive option. This essentially allows the High Court to send the person to prison. Finally, even once a PPO has been lifted, that is once the offender does not pose a very high risk of imminent serious sexual or violent offending, this does not mean that the person is free. Under the Bill the High Court must impose a PSO. 7 These are serious restrictions on a person s freedom and rights. As such, these powers need to be critiqued to determine whether they are really necessary and whether they are reasonably justifiable in a free and democratic society like New Zealand. 8 JustSpeak considers that they are not for the following reasons: (a) (b) (c) Imposing a PPO relies on a risk assessment which is inherently uncertain and fails to first attempt to reduce the risk except by removing the person s freedom; A PPO, PDO and to some extent a PSO provides further punishment for an offender and prospective punishes a person for future crimes that they may or may not commit; The Bill has unsatisfactory and weak mechanisms for the review and removal of the orders. These are addressed in turn. Inherent uncertainty and lower threshold 9 JustSpeak considers that the PPOs do not provide any new means of reducing the offender s risk and simply adopt a containment method. 10 Ordinarily existing mechanisms provide sufficient methods of protecting the public. If an offender is released prior to finishing the offender s sentence, then the offender is subject to parole conditions and other supervision orders. JustSpeak accepts that in cases where a PPO might be imposed, where there is a serious threat, it is 3

4 unlikely that a person would be given parole and so parole conditions will not be sufficient. 11 In such cases, if the risk is ongoing, then preventive detention is available as a sentencing option. PPOs however, provide a shortcut to something akin to preventive detention. However the threshold for imposing a PPO is much lower than for imposing preventive detention. Before imposing a PPO a Court must only be satisfied that the person meets the threshold and poses an imminent and serious threat of violent or sexual offending. This determination will rely on a risk assessment which is inherently uncertain and simply trying to predict what might happen in the future. Further, the Court is only required to be satisfied on the civil standard of balance of probabilities. 12 This lower standard misses the point. Rather than adopt a new containment mechanism, with a lower threshold, this failure to reduce the risk of imminent serious violent or sexual offending points towards the need to attempt to reduce the risks while in prison or through other mechanisms in the community. If a period of imprisonment has not reduced that risk, then surely there is a problem that needs to be addressed. Further punishment and future punishment 13 Imposing a PPO, PDO and to some extent a PSO provides further punishment for offending which has already been punished as well as punishing for essentially future crimes. While the Bill states that the purpose is not to punish, and indeed this is one of the principles of the Bill, the effect of a PPO, PDO or PSO is to some extent to punish the offender. Whether or not this is the purported purpose is irrelevant. These orders objectively punish a person by restricting their rights. 14 The Attorney-General s report under s 7 of the New Zealand Bill of Rights Act 1990 states that the critical issue is whether these orders in substance [amount] to further punishment of sentenced offenders, contrary to the longstanding rights against arbitrary detention and double jeopardy affirmed in ss 22 and 26 of the Bill of Rights Act, or to civil committal, as provided for in other New Zealand legislation and widely held to be compatible with these rights. JustSpeak agrees, but considers that in substance these orders do amount to further punishment and are contrary to ss 22 and 26 of the New Zealand Bill of Rights Act The claim that they do not is not backed up in substance, when the effect of the orders is properly considered. While the Bill dresses up 4

5 the effects of the orders by referring to the persons subject to PPOs as residents living in a residence, the effects are restricting a person s liberty. In substance this is further punishment. In particular, the ability of the Court to impose a PDO which has the effect of sending the person back to prison is in substance further punishment. Unsatisfactory and weak mechanisms for review and removal of PPOs, PDOs and PSOs 16 The Bill provides for weak review mechanisms. The Review Panel is given significant discretion. Even if the Review Panel considers that there may no longer be a very high risk of imminent serious sexual or violent offending, the review panel is not required to seek to apply to the High Court to have the PPO discharged. The language is discretionary and the Review Panel may do so. 17 Further, there is a reverse onus in cl 80 of the Bill for the Court to release a person subject to a PPO. The Court may only cancel a PPO if the Court is satisfied that there is no longer a very high risk of imminent serious sexual or violent offending. Surely the same standard for imposing a PPO should apply to having it discharged. A PPO should be cancelled if the Court is not satisfied that there is a very high risk of imminent serious sexual or violent offending, rather than being satisfied that there is not. While this is technically a civil standard of balance of probabilities, so that technically being satisfied that there is not such a threat is the same as being not satisfied that there is a threat, the phrasing creates a default position that the Court must be satisfied must be overcome. The same standard for imposing a PPO should exist for determining whether the PPO is still justified. At the very least this should be made clear. 18 JustSpeak considers that the Review Panel must apply to the Court for the cancellation of the PPO if the Panel is no longer satisfied that there is a very high risk of imminent serious sexual or violent offending and that the Court must cancel the PPO if the Court is not satisfied that there is such a risk. Conclusion 19 JustSpeak considers that there are significant rights issues in the Bill as well as other deficiencies as set out above. For this reason, JustSpeak opposes the Bill and submits that the Committee should recommend that the Bill does not pass. 20 Thank you for the opportunity to make this submission. We look forward to appearing in person to present our submissions. 5

6 JustSpeak Backgrounder JustSpeak represents a non-partisan network of young people across Aotearoa interested in contributing to the debate on criminal justice in New Zealand. As a new generation of thinkers JustSpeak is working for change in the justice system through imagination, innovation and a belief that we can achieve a just Aotearoa. JustSpeak was formed in early 2011 as the youth branch of the organisation Rethinking Crime and Punishment. The group is guided by a belief that this new generation has much to offer to the national conversation on criminal justice: an imaginative outlook; a feeling of urgency; and a sense of hope, amongst other things. The group values an informed criminal justice debate based on evidence, experience and ongoing learning. And within its own operations, JustSpeak has a genuine commitment to inclusion and diversity. The aims of the group are to empower young people to think independently about criminal justice issues, to encourage networking and the engagement of those affected by the justice system, to foster learning from others, to develop a voice for a new generation of thinking on criminal justice, and to allow this next generation to own its rightful place at the policy table in this area. The name JustSpeak reflects the group s desire to encourage people to speak out, without fear of belittlement or ignorance, as well as the goal of the group to contribute to a culture of speak about what is just in relation to crime and punishment policy. JustSpeak is founded on the following whakatauki: Mā te tika o te toki o te tangere, me te tohu o te panaho, ka pai tetere o te waka i ngā momo moana katoa. (By designing the keel of the waka to perfection, your canoe will overcome obstacles.) The whakatauki articulates the need to design the keel of JustSpeak to perfection, so that the group can overcome obstacles, and maintain a durable voice in the criminal justice conversation. But it also points to the need for the keel of a bigger waka the criminal justice system as a whole to be designed carefully, so that New Zealand s criminal justice system can provide a sustainable platform to rehabilitate and reintegrate members of society. justspeaknz@gmail.com Website: justspeak.org.nz Address: P.O. Box 6884, Marion Square, Wellington Phone: (04) Join the conversation with JustSpeak: 6