On 1 November 2013, the HRLA filed a submission with the Justice and Electoral Committee (“the Committee”) opposing the Public Safety (Public Protection Orders) Bill. The Bill empowers the High Court in its civil jurisdiction to issue a public protection order to detain a person in a secure facility, when, at the end of a finite prison sentence or subject to the most intensive form of an extended supervision order, they pose a very high risk of imminent and serious sexual or violent reoffending.
HRLA’s submission argued that the Bill may be inconsistent with certain rights affirmed under the New Zealand Bill of Rights Act 1990 and international obligations under the International Covenant on Civil and Political Rights.
We emphasised that an order under the Bill is criminal in type and not civil, because of the Bill’s very real collateral punitive character. The Bill will apply to as few as five persons over a 10 year period. There is a lack of realistic or plausible pathways for such persons’ release. And conditions of detention may be comparable to those of sentenced prisoners. The HRLA was critical the Attorney General’s distinguishing of like international regimes found by the United Nations Human Rights Committee in violation of certain human rights, on the basis of largely terminological distinctions between a ‘residence’ and a prison in reality and the presence in the Bill of a ‘mental or behavioural threshold requirement’.
Section 25 of the NZBORA and Article 14 of the ICCPR, which proscribe minimum standards of criminal procedure for persons “charged” with an offence, may be engaged and breached by the Bill because of the actuarial nature of the risk assessment process undertaken by the High Court and the fact that the information relied upon by health assessors under the Bill will likely include prior and unproven offending.
New Zealand case law is unsettled as to inconsistency declarations in respect of these provisions within the criminal jurisdiction. We criticised the Attorney General’s strict reliance on European human rights case law to justify the Bill’s regime operating within the High Court’s civil jurisdiction, with its lesser standards of proof and procedure. Such case law is not necessarily consistent with New Zealand’s common law tradition and it shows an unsettled tension between a trend for the simplification of criminal justice and a contemporary trend for judicial activism that aligns with often controversial political preferences for actuarial policies concerning public protection.
Section 22 of the NZBORA and Article 9(1) of the ICCPR, which prohibit arbitrary detention, and section 26 of the NZBORA and Article 15(1) of the ICCPR, which prohibit retroactive criminal laws, may also be breached by the Bill. The ordering of offenders’ continued or indefinite detention in a punitive facility at or close to the end of a finite sentence, absent the commission of a further offence, is arbitrary and retroactive. Such is counter to fundamental common law principles, including those in favour of a subject’s knowing the type and duration of any sentence at the time of sentence, and liberty of the subject. It also is inconsistent with sentiments expressed in the Sentencing Act 2002, including the notion that penal enactments should not have retrospective effect to the disadvantage of offenders, and it may compromise the foreseeability, consistency and proportionality of sentencing.
Sections 12 to 18 of the NZBORA, which confer specified democratic and civil rights (including freedom of religion, freedom of association and freedom of movement), may also be breached by the Bill. While residents have the rights of persons with full capacity under the Bill, these can be significantly curtailed or removed altogether due to residence managers’ (and their delegates) broad and unchecked powers and discretions under the Bill. If he or she considers ‘reasonably necessary’ to prevent harm or the disruption of the orderly functioning of the residence, a residence manager may monitor telephone calls of residents, monitor written communications and articles, decline visits and oral communications, place residents in seclusion, deduct from their earnings any amount required to offset the cost of their care, and restrain them (including mechanically).
Finally, the HRLA was critical of the efficacy of safeguards provided for by the Bill. The Attorney General placed considerable and perhaps excessive weight on these in justifying the Bill’s consistency with the NZBORA. There is a lack of detail in the Bill as to what information may be relied on in the compiling of health assessors’ reports. There is a lack of discussion in the Regulatory Impact Statement of the theoretical or empirical research underlying characteristics indicative of a ‘severe disturbance in behavioural functioning’ and how these connect to actuarial risk assessments made under the Bill. There are no statutory timeframes governing the complaints procedure and the only remedy for a human rights breach under the Bill is a correction of the causal deficiency by the residence manager.
Given the above, it was submitted that the status quo regimes (composed of indeterminate sentences under the Sentencing Act 2002, extended supervision regimes under Parole Act 2002 and care orders under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003) best achieve proportionality between the Bill’s public protection objective and ensuring that the rights of persons under an order are subject to the least restrictive interventions necessary to achieve the objective. The attention of policy should shift to a more rigorous assessment of where improvements can properly be made within the ‘status quo’ regimes so as to ‘sure up’ the public protection concerns which are the subject of the Bill.
This submission was written by HRLA Executive Board Member Andrew Britton, and can be viewed here.