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.
2. We wish to make an oral submission to the Committee. 

Introduction

3. The Council agrees with the Attorney-General’s Bill of Rights Act (NZBORA) Section 7 report that this Bill’s numerous infringements of our liberties that cannot be demonstrably justified in a free and democratic society:
   1. Our rights of the child, in determination of a charge, to be dealt with in a manner that takes account of the child’s age (NZBORA section 25(i)); 
   2. our rights to be secure against unreasonable search and seizure (NZBORA section 21); and
   3. our rights to freedom of expression (NZBORA section 14).
4. So-called ‘ram raids’ received a high level of media attention in 2022 and 2023, This Bill was one of the last to be brought before the House before Parliament closed. We query the politics behind presenting what is a controversial Bill so late in a government’s term. This Bill seems to have been used as an electioneering tool. We believe this Bill played on the fear of crime and was used to support racist views.
5. The public perception, fed by media reporting, is that ram raids are increasing, but statistics show that ram raids have steadily declined since a peak in August 2022.  We agree with the president of the Police Association, Chris Cahill, that there is neither a need to create a specific offence for ram raids, nor a benefit from doing so.

Expansion of the Crimes Act

6. This Bill adds a new offence of ram-raiding to the Crimes Act 1961
7. Ram raids are a particular type of burglary using a vehicle to break and enter into a premises. The Crimes Act already covers burglary. 

Recommendation 1 – Do not proceed with adding a new offence of ram-raiding to the Crimes Act. 

The Right of a Child

8. NZBORA Section 25(i) specifies our right ‘to be dealt with in a manner that takes account of the child’s age.’ 
9. Aotearoa New Zealand has ratified the United Nations Convention on the Rights of the Child (UNCROC), which applies to all children under 18 years of age. This Bill contravenes the United Nations Committee on the Rights of the Children position that the minimum age of criminal responsibility should be at least 14 years old.
10. The Bill will criminalise young people aged 12 and 13. The Bill increases the situations in which young people can be prosecuted by allowing 12 and 13 year old children to be prosecuted for a ram raid offence in the Youth Court without being a previous offender. 
11. From 1974 to 2010 the only charges that children under 14 could be prosecuted for were murder or manslaughter. However, in 2010 amendments to the Oranga Tamariki Act 1989 expanded this to include 12 or 13 year olds charged with serious offending carrying maximum sentences of at least 14 years or life imprisonment, and repeat offenders facing charges where the maximum sentence ranged from 10 to 14 years imprisonment. 
12. In February 2023 the UN Committee on the Rights of the Child (CRC) criticised Aotearoa New Zealand, saying that it was ‘seriously concerned’ that ‘[t]he minimum age of criminal responsibility is below international standards and is offence-based rather than child-centred’ and also expressed concern about the practice of lowering the minimum age of criminal responsibility. This Bill will make this situation even worse.
13. Scientific research consistently shows that 12 and 13 year old children do not understand the consequences of what they are doing, that they are very strongly influenced by peer pressure, that offending often occurs in the heat of the moment, and that their sense of empathy is not fully evolved. Criminalising their behaviour is unjust and will not help anyone.
14. Research by police shows that a majority of young people involved in ram raids were linked to a family harm event before taking part in the offence. These children need care and assistance, not punishment.
15. Evidence also consistently shows that the best outcomes for young people who come into contact with our justice system come from keeping them out of our formal criminal justice system.
16. Our children must be treated age appropriately. 
17. This Bill is inconsistent with section 25(i) of the Bill of Rights Act.

Recommendation 2 – Remove clause13 from the Bill.

Unreasonable Search and Seizure

18. NZBORA Section 21 specifies our right ‘right to be secure against unreasonable search or seizure.’ This Bill will force young people who are charged with the new offence to supply body samples. 
19. As we oppose both the ram-raiding offence and the extension of criminal responsibility to children, it should be clear that we oppose this extension of search powers.
20. Further, the Law Commission’s 2020 report into the Criminal Investigations (Bodily Samples) Act 1995 found that Act to be inconsistent with NZBORA. The Law Commission’s report:

…revealed significant gaps in the operation of the current law, including insufficient independent oversight and a failure to accommodate human rights values, tikanga Māori and the Treaty of Waitangi | te Tiriti o Waitangi.

21. In 2021, the Government accepted the Law Commission’s finding that the Act is no longer fit for purpose, and the recommendation to repeal and replace the Act.
22. Widening the scope of the already controversial Criminal Investigations (Bodily Samples) Act 1995 to include 12 and 13 year old children further demonstrates how reactive and poorly thought through this Bill was.

Recommendation 3 – Remove clauses 8 and 9 from the Bill.

Freedom of Expression

23. NZBORA Section 14 specifies our right ‘right to freedom of expression.’ 
24. The bill limits Freedom of Expression by making sharing a video of an offence an aggregating factor at sentencing.  The Council considers this to be an unreasonable and unjustified limitation of our rights.
25. In the absence of any specific disclaimer to this potential outcome we are particularly concerned that this may be used to further punish people engaged in political protest and related civil disobedience who film their protest.
26. The Council agrees with sections 58-61, 63, and 65-66 of the Section 7 Report.  

Recommendation 4 – Remove clauses 12, 14, and 21-23 from the bill. 

The Council thanks members of the Committee for their time and consideration of our submission.