About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.

Introduction

2. In 2023, the Council provided a submission on the Law Commission’s issues paper on preventive detention and post-sentence orders. The Council welcomes this follow up Preferred Approach Paper: Here ora? Preventive measures for community safety, rehabilitation and reintegration (the paper).
   
3. The Council opposes preventative detention and post-sentence orders in principle. Our reasons are precisely those discussed in Chapter 3: these measures are arbitrary detention prohibited by the International Covenant on Civil and Political Rights (ICCPR); and are second punishments prohibited by s26(2) of the New Zealand Bill of Rights Act 1990 (NZBORA).
   
4. The Council reluctantly acknowledges that the relevant parts of our government are in such an unsatisfactory state that we can not recommend abolishing preventative measures at this time. There are small numbers of people who are dangers to themselves and others who are currently managed though preventative measures. The Council recommends the eventual decommissioning of preventive detention in favour of other measures outside of the justice sector.

Manaaki

5. The Council applauds chapter 5 of the paper for chronicling many failures in our prisons.
   
6. The second strategic area for change in Corrections’ Hokai Rangi strategy (2019) is “Humanising in healing.” The recommendations in this area are variations on “Safety is seen through a lens of manaaki, positive relationships, and uplifting wellbeing (i.e. well people are safe people).” The Council first notes that substantive progress has not been made despite the passage of several years. Primarily, the Council notes that Corrections itself acknowledges the need to move away from punitive measures or framings. The Council agrees with Hokai Rangi’s goal to replace punitive measures with healing measures.
    
7. The Council agrees that preventative measures should focus on rehabilitation and transformative work, especially given that those measures are intended to be the focus of all of Corrections’ work.
   
8. The Council further believes that if Corrections were more effective in their rehabilitation efforts, the need for preventative measures would be much smaller than it is now.
   
9. Finally, the Council notes that reoffending is not solely a factor of the character of the individual, or even of Corrections’ work to rehabilitate that individual. The supports available to people after being released from prison are woefully inadequate. Our failure to look after the basic needs of people leaving prison is not merely a significant stress on those people and our communities; it is a cause of crime and victimisation.

Prisons

10. The Council is deeply saddened by the conditions described in paragraphs 5.10 and 5.11:
    
    The isolation, overcrowding, victimisation and poor physical environment of prisons likely contributes to the deterioration in the mental health of prisoners. Prisons have been described as “toxic environments” in which antisocial behaviour is often reinforced by criminally minded peers.

The Council decries this state, rather than accepts it. There is no inherent reason why prisons should be isolating, or crowded, or have poor physical condition. And, if we are to accept prisons as a legitimate tool of government, then they must become places where crime and victimisation are less common than elsewhere, not more common.

11. The Council maintains that the “consistent with the resources available” provision in s52 of the Corrections Act is a grave error. It is both morally bankrupt and pragmatically a cause of great harm and further expense. There ought to be an absolute obligation on Corrections to provide effective treatment to everyone in its care. The current drafting has provided successive governments with an excuse for not meeting the required standards. If the resources available only provide for a smaller number of places in prison that meet acceptable standards, this is the course of action that should be adopted. The Council is sure that the resulting public pressure would lead to the necessary resources being made available for bringing more places up to standard.

Proposals

Proposals on which we have no comment have been omitted.

P1. The law should continue to provide for preventive measures to protect the community from serious sexual or violent reoffending by those who would otherwise be released into the community after completing a determinate sentence of imprisonment.

The Council reluctantly agrees that there is a reasonable BORA s5 case to be made that other people’s rights to safety is sufficient reason for severe limits to the rights of a much smaller number of people. We will re-iterate that extreme efforts should be put into rehabilitation before measures like second punishments are considered. Without doing so, New Zealand risks falling foul of the right to freedom from arbitrary detention.

P2. The preventive measures the law should provide for are:

a. community preventive supervision;

b. residential preventive supervision; and

c. secure preventive detention.

The Council agrees that reform to impair rights to the least extent possible is necessary, and that the three levels of preventative measures are reasonable. The improvements to residential preventative supervision proposed in paragraph 3.41 are significant and important.

P3. A new statute should be enacted to govern all preventive measures (the new Act).

The Council agrees with paragraph 4.11 that the existing legislation prevents the application of the least restrictive order, and that therefore it can result in a person’s BORA rights being denied to them.

P5. All preventive measures should be imposed as post-sentence orders. The new Act should require applications for a preventive measure against an eligible person under a sentence for a qualifying offence to be made prior to the person’s sentence expiry date or the date when the individual ceases to be subject to any release conditions, whichever is later.

We agree with paragraphs 4.28 and 4.51. If most people in prison are not responding positively to their treatment, then our prisons need to be improved. For the law to assume that no one will benefit from treatment is unacceptable to us. Therefore we strongly support changing all preventative measures to be decided at the end of the sentences.

P7. The purposes of the new Act should be to:

a. protect the community by preventing serious sexual and violent reoffending;

b. support a person considered at high risk of serious sexual and/or violent reoffending to be restored to safe and unrestricted life in the community; and

c. ensure that limits on a person’s freedoms to address the high risk they will sexually and/or violently reoffend are proportionate to the risks and are the least restrictive necessary.

The Council believes that it is necessary for the new act to have purposes similar to these in order for it to be compliant with BORA.

P8. In proceedings under the new Act, if it appears to the court that a person against whom a preventive measure is sought or a person already subject to a preventive measure may be “mentally disordered” or “intellectually disabled”, the court should have power to direct the chief executive of Ara Poutama Aotearoa | Department of Corrections to:

a. consider an application in respect of the person under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; and

b. if the chief executive decides not to make an application, to inform the court of their decision and provide reasons for why the preventive measure is appropriate.

The Council supports an obligation on the CE to provide the court with the reasons for their decision, and believes this should be strengthened by requiring legal aid to be available to an interested party who seeks judicial review of the CE’s decision.

P11. If a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or a compulsory care order under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 is imposed on a person subject to a preventive measure, the preventive measure should be suspended. While suspended, a probation officer should be able to reactivate any conditions of the preventive measure to ensure that the person does not pose a high risk to the community or any class of people.

Given the problems with probation described in paragraphs 5.29-5.31, the Council is surprised to see this proposal. We agree with the report that the culture of probations views returning people to prison as its goal, rather than supporting their wellbeing. Given that both of the acts cited allow for detention, and that when they are applicable then they are clearly more suitable, the Council does not understand the rationale for Corrections to retain a role in the treatment of people being treated under either of the acts cited, after those people have already completed their sentences.

P13. The new Act should require that a person is aged 18 years or older to be eligible for a preventive measure.

The Council disagrees. We continue to maintain that preventative measures should not be applied to people under the age of 25.

As clarified in paragraph 7.23, Proposal 13 is to apply preventive measures to anyone aged 18 at the conclusion of their sentence. Paragraph 7.23’s principal argument, that if the individual poses a risk then they should be detained has merit. However, as described in Paragraphs 7.17 and 7.18 young adults are likely to have different outcomes than older people, and should be treated differently.

Paragraph 7.24 (c) proposes annual reviews by a review panel, but court reviews only every 3 years. Given the developmental issues canvassed in this section of the report, the Council recommends that the court should review the preventative detention annually too. This could be done by requiring the review panel to report its decision and reasons to the court, and the court being required to seek comment from other interested parties before deciding whether to uphold, vary, or quash the review panel’s decision.

P15. Qualifying offences should be the same for all preventive measures under the new Act.

The Council agrees.

P16. To be eligible for a preventive measure under the new Act, a person must have been convicted of an offence set out in Table 1 in Appendix 1 with the following amendments:

a. The offence of strangulation and suffocation (section 189A of the Crimes Act 1961) should be added as a qualifying offence.

b. The following offences should be removed as qualifying offences:

i. Incest (section 130 of the Crimes Act 1961).

ii. Bestiality (section 143 of the Crimes Act 1961).

iii. Accessory after the fact to murder (section 176 of the Crimes Act 1961).

The Council supported these changes in the 2023 Issues Paper, and continues to support them. We agree with paragraphs 8.45, 8.47, and 8.119 that these offences do not pose a significant enough harm to justify indefinite detention.

P17. All qualifying offences listed above should also be “further qualifying offences” for the purpose of the application of the legislative tests under the new Act with the exception of:

a. imprisonable Films, Videos, and Publications Classification Act 1993 offences;

b. attempts and conspiracies to commit qualifying offences; and

c. Prostitution Reform Act 2003 offences.

The Council does agree that these offences are troubling indicators. We further agree if the potential further offending is only more troubling indicators, that depriving someone of their liberty is not justified.

In light of the evidence presented in paragraphs 8.79 to 8.90, the Council wishes to remove our objection to the inclusion of FVPC Act violations, which we noted in our 2023 submission.  We agree with this approach, where they qualify someone to be considered for preventative measures, but that a risk of more serious offending needs to be demonstrated for preventative measures to be employed. 

We further agree with paragraph 8.38, that some of the Prostitution Reform Act offences are strict liability offences. Offences committed by accident should play no part in preventative measures.

P19. Under the new Act, the chief executive of Ara Poutama Aotearoa | Department of Corrections should be responsible for applying to the court for an order imposing a preventive measure on an eligible person.

The Council welcomes the removal of the parole board as a body able to apply preventative measures. Responsibility for such serious measures should rest at the highest level of the department.

P21. The new Act should provide that the court may impose a preventive measure on an eligible person if it is satisfied that:

a. the person is at high risk of committing a further qualifying offence in the next three years if the preventive measure is not imposed on them;

b. having regard to the nature and extent of that risk, the preventive measure is the least restrictive measure adequate to address that risk; and

c. the nature and extent of any limits the preventive measure would place on the person’s rights and freedoms affirmed under the New Zealand Bill of Rights Act 1990 are justified by the nature and extent of the risk the person poses to the community.

The Council agrees with these eligibility criteria, and strongly supports the explicit inclusion of BORA.

P34. Te Kōti Matua | High Court and te Kōti-a-Rohe | District Court should hear and determine applications for preventive measures under the new Act under their criminal jurisdiction.

The Council strongly supports making all preventative measures matters for criminal courts. We condemn the cruel fiction that the current Public Protection Orders are matters for civil court. People being detained deserve the standards of evidence and other supports of the criminal courts.

P43. Proceedings under the new Act concerning preventive measures should generally be open to the public.

The Council is a strong advocate for transparency, and supports this proposal for the reasons set out in paragraphs 12.55 and 12.57. Openness of proceedings is a fundamental pillar of open justice, and even more vital when considering the human rights implications of preventive measures. As the Commission states in paragraph 12.58, “We consider that openness of proceedings and the subsequent public scrutiny of decisions will play an important role in ensuring decisions are made appropriately and in line with human rights requirements.”

P46. Ara Poutama Aotearoa | Department of Corrections should be responsible for the operation of preventive measures under the new Act.

The Council disagrees. The Council firmly agrees with the Ombudsman’s comments in paragraph 13.25. Further we note that Corrections perpetually underperforms. We are greatly alarmed that Corrections appears incapable of fulfilling its current responsibilities. Assigning this responsibility to Corrections does not merely make implementation failure nearly inevitable, it reduces the likelihood of Corrections correcting its multitude of other human rights failures. The Council would prefer that a health agency be responsible, as suggested in paragraph 13.27.

P52. The new Act should provide that probation officers, as well as facility managers and their staff, must have regard to the following guiding principles when exercising their powers under the new Act:

a. People subject to community preventive supervision should not be subjected to any more restrictions of their rights and freedoms than are necessary to ensure the safety of the community.

b. People subject to residential preventive supervision or secure preventive detention should have as much autonomy and quality of life as is consistent with the safety of the community and the orderly functioning and safety of the facility.

c. People subject to any preventive measure should, to the extent compatible with the safety of the community, be given appropriate opportunities to demonstrate rehabilitative progress and be prepared for moving to a less restrictive preventive measure or unrestricted life in the community.

The Council agrees. These guidelines stem directly from BORA, and their application ought to be obvious. However, they have not been respected in the past, so these explicit statements should bring improvement.

P53. The new Act should provide that:

a. people subject to a preventive measure are entitled to receive rehabilitative treatment and reintegration support; and

b. Ara Poutama Aotearoa | Department of Corrections must ensure sufficient rehabilitative treatment and reintegration support is available to people subject to a preventive measure in order to keep the duration of the preventive measure as short as possible while protecting the community from serious reoffending.

These are explicit statements of obvious routes to making preventative measures compliant with BORA, and therefore would likely be the court’s interpretation. The Council believes that stating them explicitly improves transparency and the quality of law, reduces the work on the courts, and removes the possibility of a different interpretation becoming precedent.

P54. The new Act should provide that people subject to residential preventive supervision or secure preventive detention are entitled to participate in therapeutic, recreational, cultural and religious activities to the extent compatible with the safety of the community and the orderly functioning and safety of the facility.

Again the Council is saddened that this simple reiteration of our BORA rights needs to be written down, but wholeheartedly agrees that writing it down improves everyone’s liberty.

P55. The new Act should provide that people subject to residential preventive supervision or secure preventive detention are entitled to medical treatment and other healthcare appropriate to their conditions. The standard of healthcare available to them should be reasonably equivalent to the standard of healthcare available to the public.

The Council supports this proposal but is disturbed that this needs to be explicitly stated in the new Act. That this cannot already be taken for granted is grounds for condemnation of Corrections, and indeed for our entire country. This specific failure drives the Council’s position on P46, that Corrections lacks the basic competence to be entrusted with additional duties.

P64. Residential preventive supervision should comprise of standard conditions and any additional special conditions imposed by the court. The new Act should provide for the following standard conditions of residential preventive supervision. The person subject to residential preventive supervision must:

a. reside at the residential facility specified by the court;

b. stay at that facility at all times unless leave is permitted by the facility manager;

c. be subject to electronic monitoring for ensuring compliance with other standard or special conditions unless the facility manager directs otherwise;

d. be subject to in-person, line-of-sight monitoring during outings unless the facility manager directs otherwise;

e. not have in their possession any prohibited items;

f. submit to rub-down searches and to searches of their room if the facility manager has reasonable grounds to believe that the resident has in their possession a prohibited item;

g. hand over any prohibited items discovered in their possession;

h. not associate with, or contact, a victim of the resident’s offending without the prior written approval of the facility manager; and

i. not associate with, or contact, any specified person or people of any specified class with whom the facility manager has, in writing, directed the resident not to associate unless the facility manager has defined conditions under which association or contact is permissible.

The Council opposed “residential restrictions” in the issues paper saying:

The Council believes that residential restrictions are both significant limitations on civil liberties and counter productive. As such they should be abolished not codified.

The Council believes that this preferred approach paper has addressed our concerns. The three tiers of preventative measures would now all be directed by criminal courts (P34) and explicitly directed to be BORA compliant (P52-55). Further, residential preventative supervision is core to this paper, and the Council believes this paper’s proposal to be a clear improvement over the status quo. 

P67. The new Act should provide for residential facilities to be subject to examination by a National Preventive Mechanism under the Crimes of Torture Act 1989 and to periodic inspections every six months by specialised inspectors.

The Council are strong supporters of the National Preventive Mechanism’s  inspections of places of detention. We agree that these inspections should cover the proposed facilities and with the proposed frequency. The Royal Commission on Abuse in Care has shown in spades why independent inspection is needed.

P69. The new Act should provide that secure preventive detention is administered in secure facilities separate from prisons.

The Council agrees with the UN Human Rights Committee’s interpretation of article 9(1) of the International Covenant on Civil and Political Rights as discussed in paragraph 16.14. We further support this proposal as our preferred way of achieving compliance.

P78. The new Act should provide for secure facilities to be subject to examination by a National Preventive Mechanism under the Crimes of Torture Act 1989 and to periodic inspections at least every six months by specialised inspectors.

The Council sees no reason to direct the National Preventive Mechanism differently for the two levels of facilities, and therefore support this proposal for the same reason we supported P67.

P79. The new Act should provide that a person subject to a preventive measure who breaches any conditions of that measure without reasonable excuse commits an offence and is liable on conviction to imprisonment for a term not exceeding two years.

The Council is uncomfortable with this proposal, but reluctantly agrees. Certainly it is preferable for the courts to have this power rather than the parole system. 

We agree with paragraphs 17.38-17.41, that for most breaches of conditions, prosecution will be unreasonable. In general, the Council believes that bail and release conditions are far too often unreasonable, and that probation officers far too often are more interested in finding excuses to put people back in prison than in the safety of our communities. We agree with paragraph 17.19 that too many people are being recalled in the current system. We agree with the criticism of probation services in paragraph 17.23.

P81. Te Kōti Matua | High Court should have power to order that a person subject to secure preventive detention be detained in prison if:

a. the person would, if they were to remain subject to secure preventive detention, pose such an unacceptably high risk to the community, themselves or others that they cannot be safely managed on secure preventive detention; and

b. all less restrictive options for managing the behaviour of the person have been considered and any appropriate options have been tried.

The Council concedes that paragraphs 17.54 and 17.55 make a reasonable argument. Further the Council applauds restricting this power to the High Court. The Council believes that such an extreme measure as moving someone from secure preventive detention to prison requires review by the High Court every six months, and agrees with paragraph 17.58 that “it is important that people detained in prison continue to have the same right to rehabilitative and reintegrative treatment and programmes.”

It is notable that there are no footnotes or other references to supporting evidence or submissions in response to the issues paper in the paragraphs following proposal 81.

Practically, we question whether this could work. For if that person was being sent back to prison for their dangerous behaviour, then this proposal would be unnecessary as some other offence would have been committed. We do not doubt that professionals have the ability to gauge the behaviours of people they work with, or that they may predict problems which later occur. However, for this system to work, people must be given the chance to prove themselves. How is the court to determine that someone, who has not committed any offence whilst in secure preventative detention, is an unacceptably high risk?