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 opposes the Sentencing (Reform) Amendment Bill.
   
4. The bill makes a series of alterations to sentencing which run contrary to the principles of natural justice. Among the changes, the bill limits sentence reductions. It limits the court from considering mitigating factors during sentencing. It reduces the court’s ability to consider people’s circumstances.
   
5. The bill makes the absurd claim that there must be something wrong with our sentencing provisions because there has been a reduction in imprisonment. First, our prisons are fundamentally dysfunctional and the Council believes that their use should be limited.  Second, crime rates have fallen over the same period.  The Council does not believe in the proposed problem, and finds the proposed solution to be an unacceptable limit on our civil liberties.

Disproportionately severe punishment

6. The bill’s intent is to increase the severity of punishments.
   
7. Longer sentences do not deter crime. Crimes are rarely committed by rational actors, carefully accounting for the potential liabilities. As paragraph 113 of the Regulatory Impact Statement (RIS) puts it:

Shifts in sentence outcomes could reflect the judiciary’s use of scientific evidence and other relevant context to inform sentencing. For example, studies show that rates of employment are modestly higher and rates of benefit uptake lower for those who served home detention, relative to outcomes for those released after serving short sentences of imprisonment.

8. The bill plays word games. It uses the words “manifestly unjust” twenty times. This is an admission that the bill would create manifestly unjust sentences.  If this bill is to be anything other than performative, then it is going to result in sentences which do not quite reach the standard of manifestly unjust, but which are unjust all the same.
   
9. The Council is disappointed in the Attorney General’s Bill of Rights Act (BORA) compliance report (BORA report). Basically, s26 of the report says that because the bill includes a nod to BORA, the courts are free to ignore the bill because it is clearly not compliant with BORA, and that because the courts will ignore the bill then the bill is compliant with BORA.  The Council condemns these mental gymnastics and believes we shouldn’t be passing laws that require judicial creativity to be compliant with BORA.

Minimum Standards of Criminal Procedure

10. The bill encourages guilty pleas. As the BORA report cites, our supreme court recently ruled that encouraging guilty pleas “carries the unacceptable risk of pressuring persons to plead guilty to offences charged when they were not guilty”. The Council agrees.
    
11. Section 34 of the BORA report concludes that because subsection 9C(3) negates most of the rest of the proposed section 9C, there is no BORA problem.  The Council understands the logic, but finds the whole process unnecessarily convoluted.

Recommendation 1

Replace 9C with the single sentence: “The court may, if it considers it appropriate, make a reduction of up to 25% to the sentence for a guilty plea.”

Liberty of the Person

12. The government has declared a housing crisis. The cost of providing people with homes is far less than the cost of imprisoning them, and the benefits far greater.
    
13. Despite these self-evident facts, the bill’s clause 10 creates a new section 80GA which gives every constable and probation officer the power to arrest people without oversight when that person’s living conditions become unsuitable. There is oversight after the fact, but by that time the harm has been done.
    
14. There is an existing mechanism in s80F which provides for the desired outcome, and includes the appropriate safeguard of first obtaining a warrant.
    
15. The RIS goes on for over a page about how this bill has not followed good law making procedures.  Unreasonably short time constraints were placed on the Ministry.  There is an unreasonably narrow scope.  There have not been consultations.  
    
16. In addition to these flaws, it would appear that the bill was substantially altered after the RIS was completed, as there is no mention of these changes to home detention in the RIS.  Which means that the government has offered neither justification nor analysis for section 80GA.

Recommendation 2

Remove clause 10, section 80GA, from the bill.

The Right to Protest and Freedom of Information

17. The proposed section 9(1)(cc) which creates new aggravating factors for sentencing for digital or online communications starts with:

that the offender did 1 or more of the following in relation to the offending for which they are being sentenced, with no justification in the public interest, and that glorified the offending [emphasis added]

18. This section limits freedom of expression.
    
19. This section further has the potential to be used against protest. The Council understands that the phrase “with no justification in the public interest” is intended to safeguard activities like protest.  However, given the obvious danger to protest, we’d like more clarity for the avoidance of doubt.
    
20. Further the Council finds the subclauses of 9(1)(cc) overly specific and peculiar. First, by mentioning live streaming, posting, and digital communication, the clauses are creating loopholes.  A decade from now there will be new ways of sharing media, which may not be accurately described by those words.
    
21. Second, neither the bill nor the RIS have explained why digital communication is being singled out. This bill does not penalise communication in general. Sharing printed photographs, distributing physical analogue video recordings, or playing recordings on the radio will not be aggravating factors.  The Council believes this to be an oversight.

Recommendation 3

Replace proposed clause 9(1)(cc) with:

The offender glorified the offending for which they are being sentenced, without political, protest, or public interest justification.