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 purpose of the Sentencing (Reinstating Three Strikes) Amendment Bill (“this bill”) is to apply disproportionately severe treatment when sentencing people for a third offence. This is in direct opposition to New Zealand Bill of Rights Act 1990 (NZBORA) s9.
4. The Council opposes this bill as it infringes on our civil liberties while not providing  sufficient justification for doing so. It seems to us that the bill is more about political signalling than improving our justice system.
5. The Council is further greatly alarmed by the duplicitous attempt to practically amend the NZBORA by stealth which is proposed section 86T.

History

6. In 2009 the Council opposed the Sentencing and Parole Reform Bill. The Council’s 2009 submission noted that the Attorney-General concluded in his Interim Report that the proposed regime raised an apparent inconsistency with the Bill of Rights Act as it could result in disparities between offenders that are not rationally based. The Attorney-General also considered that the regime may result in gross disproportionality in sentencing. The Council agrees with that conclusion.
7. While it was in force, the previous three strikes law was repeatedly found wanting by our courts.¹
8. The Council made a submission supporting the 2022 Three Strikes Legislation Repeal Bill.

The bill’s objectives

9. The bill’s objectives are key to the Hansen test, which determines if a limitation of our rights can be justified under NZBORA s5.  The pertinent portion of the Hansen test is:²

a. does the provision serve an objective sufficiently important to justify some limitation of the right or freedom?
b. if so, then:
1. is the limit rationally connected with the objective?
2. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?
3. is the limit in due proportion to the importance of the objective?

10. This bill’s explanatory note provides the following objectives:

The Government is reinstating the three-strikes regime to strongly denounce repeat serious offending and, in so doing, to increase public confidence that such conduct has very serious consequences. The Bill will increase certainty for offenders about the consequences of reoffending and may reduce offending through incapacitation and deterrence.

The Bill responds to increases in reported violent crime to Police between 2019 and 2024 (New Zealand Police, Recorded Crime Victims Statistics). It will hold repeat serious violent and sexual offenders to account for the harm they cause and will contribute to the Government’s commitment to ensure that there are 20,000 fewer victims of violent crime by 2029.

To paraphrase, the bill’s objectives are: to increase confidence, to make people more aware of the consequences of offending, to reduce offending through incapacitation, and to reduce offending through deterrence. 

11. Increasing confidence isn’t a justification for limiting anyone’s liberties.
12. The bill doesn’t make consequences clearer, it makes the law more complex, and therefore less likely to be understood.
13. Putting people in prisons doesn’t incapacitate them, nor does it reduce offending.  It has a modest effect of shifting offending to inside prisons. This effect is small compared to the ways in which prisons breed crime.³
14. Longer sentences do not deter crime.⁴  Crimes are rarely committed by rational actors, carefully accounting for the potential liabilities:⁵ 

Severe sentences do not deter crime, retribution often does not help survivors of crime heal, and the U.S. sentencing system overestimates who is a current danger to the community and when incarceration is needed for public safety. Instead, we need a system that privileges liberty while creating real safety and repairing harm.

15. The Council further notes with considerable interest, that the Ministry of Justice was not willing to say that “violent crime increased” in this bill’s explanatory note but instead says that reports of violent crime increased.  The Council suspects that this careful wording indicates that the data might not support an actual increase in violent crime.

Right not to be subjected to torture or cruel treatment

16. The bill and the supporting documents concede that this bill limits NZBORA s9 –  the right not to be subjected to torture, or to cruel, degrading, or disproportionately server treatment or punishment.
17. The supporting documents make no serious attempt to justify the s9 limitations.  The Attorney General’s Bill of Rights Act Compliance Report, discusses Fitzgerald v R and Motara v R for pages, which it does not need to.  It does not acknowledge the Hansen test, which it needs to prove.
18. It is the Council’s considered opinion that this bill fails part A of the Hansen test in regards to s29.  Neither increasing confidence nor providing clarity are sufficiently important objectives. The Council further believes that this bill fails part B1 of the Hansen test.  As we noted above deterrence does not work, and putting people in prison does not reduce crime. Parts B2 and B3 of the Hansen test are moot as we do not believe the objective will be achieved.

Section 86T 

19. Section 86T creates a new legal standard for assessing NZBORA s9. While NZBORA has constitutional significance, it is not a supreme law, unlike most equivalent jurisdictions.  Any act of parliament can override NZBORA, as this bill proposes to do with its proposed section 86T.
20. Section 86T(3)(a) bars the application of the usual mitigating factors from section 9(2) of the Sentencing Act 2002.  These eminently reasonable factors include age, diminished mental capacity, the conduct of the victim, and various restorative justice measures.
21. Section 86T(3)(b) strikes at our international human rights commitments. It allows for “manifestly unjust” sentences to “be disproportionate, unless [they] would be grossly disproportionate.”⁶  
22. Rather than making this bill compatible with a free and democratic society, its authors have instead chosen to adjust the goal posts to match their bill.
23. The Council strongly opposes this process.  NZBORA should not be limited. If NZBORA is being limited, the bill should have the decency to do so openly.

Freedom from discrimination

24. This bill discriminates against three vulnerable communities: Māori, Pasifika, and people with mental illness.

Maori and Pasifika

25. By the government’s own admission this bill will disproportionately impact Māori and Pasifika.
26. The Council believes that this bill fails parts A and B1 of the Hansen test in regards to s9, and that therefore B2 and B3 are again moot. The reasons are the same as for s29.  The Council again notes that the Attorney General’s report neglected to perform this analysis.
    
27. The Council agrees with premise of 46.2 of the Attorney General’s report, but draws the opposite conclusion, that many aspects of the criminal justice system run contrary to our right to freedom from discrimination:

If the three-strikes scheme were discriminatory because of the overrepresentation of Maori subject to the scheme, then the same would apply to many aspects of the sentencing regime and criminal justice system which are facially neutral.

28. The Council is bewildered and appalled by 46.2 of the Attorney General’s report:

The percentage of Maori and non-Maori that will likely be subject to the three-strikes scheme will be a tiny proportion of the general populations of Maori and non-Maori so that any disadvantage is so small that it does constitute material disadvantage.

If this bill unjustly limits one person’s rights, then this bill is unjust.  This line of reasoning is relevant to B2 and B3 of the Hansen test, in that it indicates that the harm this bill does will be limited. However, as there is no counteracting benefit, that point is moot.

People with Mental Disability

29. The Council agrees with the Attorney General’s assessment that this bill will disproportionately affect people with poor mental health. The majority of the people in our prisons have mental health problems. By Corrections own estimates 70% of Māori in prison have sustained a traumatic brain injury.⁷
30. Again, the Council believes that the bill fails parts A and B1 of the Hansen test.
31. The Council agrees with the premise of 49.4 of the Attorney General’s report, but again draws the opposite conclusion, that many aspects of the criminal justice system are discriminatory on the basis of mental disability:

Following the line of analysis in 46.2 above, if three strikes were discriminatory on the basis of mental disability, then the same would apply to many aspects of the criminal justice system.

Facially Neutral

32. The Council rejects the fiction that in order for a law to be discriminatory in a way which contravenes NZBORA, the groups being discriminated against have to be named.  It is entirely possible to illegally discriminate without naming the people whose liberties are being curtailed. Discrimination is a matter of outcomes, not intentions.

Te Tiriti O Waitangi

33. By the government’s own admission “there was no consultation with Māori on the proposals in the bill”.
34. The government claims that consultations were skipped as there is a need to pass this legislation quickly. The Council does not believe that the government has made the case for this urgency as a justification for abandoning its Tiriti obligations.

Recommendations

Recommendation 1

The Council recommends that the bill be withdrawn.

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

1. The two principal rulings are Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 and Motara v R [2021] NZCA 692 ↩︎
2. NZBORA section 5 “Hansen Test”: Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [123] ↩︎
3. see Petrich for a recent supporting meta-analysis of 116 studies.
   Petrich, et als. “Custodial Sanctions and Reoffending: A Meta-Analytic Review”. University of Chicago Press, 2021. https://doi.org/10.1086/715100 ↩︎
4. Daniel Nagin, “Deterrence in the Twenty-First Century: A Review of the Evidence,” Crime and Justice 42 (2013), 199–263. ↩︎
5. https://www.vera.org/publications/a-new-paradigm-for-sentencing-in-the-united-states ↩︎
6. This “grossly disproportionate” wording comes from Fitzgerald v R. It is not defined in the bill or other existing legislation. ↩︎
7. p10 of Hokai Rangi, the current top level strategy for the Department of Corrections https://www.corrections.govt.nz/__data/assets/pdf_file/0003/38244/Hokai_Rangi_Strategy.pdf ↩︎