Public Safety (Public Protection Orders) Bill

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Commentary

Recommendation

The Justice and Electoral Committee has examined the Public Safety (Public Protection Orders) Bill and recommends by majority that it be passed with the amendments shown.

Introduction

The Public Safety (Public Protection Orders) Bill seeks to protect the public from almost certain harm by a very small number of serious sexual or violent offenders. It would do this by creating a new legislative regime allowing the High Court to make public protection orders (PPOs) that would allow detention of a subject in a secure facility.

The bill sets out four principles that courts and other people exercising power under its provisions would need to have regard to: that a PPO is not imposed as punishment; that it should be imposed only if the magnitude of the risk justifies it; that it should not be imposed if the offender is eligible to be held under mental health or intellectual disability legislation; and that people thus detained should have as much autonomy as possible.

Under the bill, applications for PPOs would be made by the chief executive of the Department of Corrections (the applicant) to the High Court in its civil jurisdiction. The applicant would need to prove that the offender (the respondent) met the threshold and test set out in the bill on the balance of probabilities. To meet the threshold a person would have to be 18 or older and fall within one of the following categories:

  • Being within six months of being released from prison for a serious sexual or violent offence.

  • Being subject to the most intensive form of extended supervision order.

  • Being subject to a protective supervision order.

  • Having arrived in New Zealand within six months of ceasing to be subject to any sentence for serious sexual or violent offending from an overseas court.

Once the threshold was met a High Court judge could make a PPO if satisfied that the respondent presented a very high risk of imminent serious sexual or violent offending and exhibited severe behavioural disturbance, evidenced by four characteristics exhibited to a high level. They are an intense drive or urge to commit a particular form of offending; limited self-regulatory capacity; absence of understanding and concern for the impact of offending on victims; and poor interpersonal relationships or social isolation. Clinical reports from health assessors would address whether a respondent exhibited these characteristics.

Where persons subject to PPOs posed an unacceptably high risk to themselves or others, the High Court could grant a prison detention order. If the High Court found on reviewing a PPO that there was no longer a very high risk of imminent serious sexual or violent offending, the PPO would be cancelled, and a protective supervision order imposed to support the resident in making a safe transition back into the community.

This commentary covers the main amendments we recommend to the bill; it does not cover minor or technical amendments.

Commencement

We recommend amending clause 2 of the bill as introduced so that its provisions would come into force on a date appointed by the Governor-General by Order in Council; and so that multiple Orders in Council could be made bringing different provisions into force on different dates. To allow time for consent processes we also recommend amending clause 2 to provide for clause 99, which deals with the establishment of residences, to come into force the day after the Royal assent is granted. Any provision not brought into force earlier would come into force one year after the bill receives the Royal assent.

Standard of proof

We recommend amending clause 13(1) of the bill to require that the court be satisfied “on the balance of probabilities” that the criteria are met before making a PPO. This would make it clear that the required standard of proof is the civil standard—the balance of probabilities. This is appropriate since the regime proposed by the bill would involve non-punitive civil detention, and applications for PPOs would be made to the High Court in its civil jurisdiction.

Suspension of PPO

We recommend inserting new clause 96A to provide for the suspension of proceedings until the person is no longer detained in a hospital, facility, or prison; and new clause 123A, providing for the suspension of a PPO, prison detention order, or protective supervision order. We also recommend the consequential deletion of sub-clauses 12(5) and (6) regarding the discontinuation and resumption of PPO proceedings.

We consider that PPO applications and orders should be suspended, rather than discontinued, if a respondent is subsequently detained in a prison or under mental health or intellectual disability legislation. This would address our concern that a person could be released from the hospital, facility, or prison while still posing harm. We recognise that a person’s very high risk of imminent serious harm to the public may not flow from their mental disorder or intellectual disability. Also, we want to avoid creating a perverse incentive to break the law in a moderate way to try to avoid being subject to a PPO, prison detention order, or a protective supervision order.

Review and oversight provisions

For consistency with similar legislation, we recommend inserting new subclause 109(6), to allow the Minister of Justice to remove a review panel member for “just cause” without compensation. Just cause could include absence.

We also recommend inserting subclause 94(2) to make evidence in proceedings under the bill subject to subpart 8 of Part 2 of the Evidence Act 2006, and to any legislative provision governing legal professional privilege; this important principle would thus be upheld.

Review of PPOs, and making of protective supervision orders

We recommend prescribing more detail about review of a PPO. We recommend adding clauses 17(2) and (2A) to require a court reviewing a PPO to consider whether the subject still poses a very high risk of imminent serious sexual or violent offending, taking into account the reports provided to the court.

We also recommend inserting subclause 17(2B) to provide that if the court finds the person no longer poses a very high risk it must make a finding to that effect. To clarify the process that would then apply, we recommend amending subclause 80(1) to require the court to cancel the PPO and impose a protective supervision order on the person. Our new subclause 80(1B) would require the person to be released from detention as soon as practicable after a protective supervision order was imposed.

Victim notification and participation

We recommend amending the definition of victim in clause 3 (Interpretation) to include reference to their request for notice or advice and copies under section 31 of the Victims’ Rights Act 2002.

We consider it important that notification of victims be consistent with the victim notification register system provided for under the Victims’ Rights Act. This Act allows certain victims to register to remain informed about the person who offended against them. We also consider that victims need to be informed at more stages in the process. Therefore, we recommend the addition of subclause 8(2) to provide for the chief executive to notify every victim as soon as practicable when an application is made for a PPO; new clause 13A providing for victims to be notified of the outcome after a PPO application is determined or suspended; new subclause 15(4) providing for victims to be notified when the chief executive has made an application for a review of a PPO; and new subclause 16(2) to provide for notification when the person subject to the PPO has applied for it to be reviewed. Similarly, we recommend inserting subclause 86(3) and subclause 87(2), imposing similar notification requirements regarding applications for review of a protective supervision order.

Legal aid

We recommend inserting new clause 124B to insert subsection 4(1)(ca) into the Legal Services Act 2011, to make any proceedings under the act a specified application. This would treat these applications in a similar way to those relating to compulsory mental health and intellectual disability proceedings, making it easier to access legal aid than it is for standard civil proceedings.

Rights and management of residents

We recommend amending clause 28 to give residents the right to participate in educational activities, and inserting subclause 38(2)(ca) to include educational needs in the needs assessment conducted of a resident. We consider there is value in explicitly providing for education as a right, and ensuring a person’s educational needs are determined.

We also recommend amending clause 30(1) to replace access to newspapers with access to news media. For the sake of clarity the amendment refers to a resident receiving a news media item and does not include by reference media representatives.

Visitors, deliveries and communications

Provisions in the bill as introduced concerning people and items entering a residence were drafted in the expectation that residences would be located only inside the secure perimeters of prisons, and people and items would enter through the main prison gatehouse and be subject to the requirements of the Corrections Act 2004. We understand there would be significant operational benefit in locating residences on prison land outside the prison wire but within their own secure perimeter fences. However, this would mean that the security provisions under the Corrections Act could no longer be relied upon, necessitating the following amendments to the bill as introduced.

Visits

We recommend amending clause 31 to allow a resident to receive visits from permitted persons, subject to any conditions or restrictions imposed by the residence manager. New subclause (1A) would permit a visit to be unsupervised if the residence manager considered it would meet the resident’s rehabilitative needs. New subclause (1B) would also exempt visits by inspectors, office-holders, or a resident’s lawyer.

We also recommend including new subclause 56(1A) to require a residence manager not to allow a person under the age of 18 to visit a resident unless the visit is likely to meet the resident’s rehabilitative needs.

Inspection of items

We recommend inserting new clause 43A, which would allow the residence manager to inspect items delivered to the resident or intended to be sent by the resident, to determine whether they were prohibited, contravened the resident’s management plan, or would be otherwise detrimental, and to deal with them accordingly.

Monitoring, seclusion, and restraint

We recommend removing subclause 62(2), which would require physical restraint to be used before mechanical restraint. Removing this priority would allow the most appropriate means of restraint to be applied where necessary. We consider it would be safer not to assume the use of physical restraint as the first resort, as it is more likely to cause harm than the use of mechanical restraints.

Searches and prohibited items

In order to allow the locating of residences on prison land outside the prison wire (rather than within as intended by the bill as introduced) the security provisions under the Corrections Act could no longer be relied upon in respect of residences, necessitating the following amendments to the bill.

Residents and residences

Clause 57 provides for searches of residents and residences. For completeness we recommend inserting new subclauses 57(1)(ab) and (ba) to include searches of any items the resident has in the residence, or that are delivered to it.

We recommend amending clause 57(3) to provide that a resident may, rather than must, be strip-searched on entering or leaving the residence or the prison within which the residence is located. This would be consistent with the Corrections Act 2004, which provides some flexibility regarding the strip-searching of prisoners entering or leaving a prison.

We also recommend defining rub-down search, scanner search, strip-search, and x-ray search in clause 3 (Interpretation) of the bill as having the same meanings as they do in the Corrections Act 2004. We recommend that these searches be listed in clause 57(2), which concerns the form searches may take.

Search of persons other than residents

We recommend inserting new clause 57A to provide for searches of people other than residents; new clause 57A(2) would allow a rub-down search with the person’s consent if there were reasonable grounds to suspect the person had a prohibited item; under new clause 57A(3) failure to consent to a scanner search or a rub-down search would result in entry being denied to the residence or the person being required to leave if they were already inside.

Search of property, use of dogs, and inspecting of prohibited items

We recommend inserting new clause 57B which provides for the authority to search any items the respondent has, new clause 57C which allows for a search dog to be used, and new clause 57D which allows a residence manager to take possession of an item, by force if necessary, and describes how items are to be dealt with.

We recommend inserting new clause 20A(1) to forbid residents from possessing prohibited items; and 20A(2) and (3) providing for the residence manager to take possession of a prohibited item and deal with it as they consider appropriate, including giving it to the Police or another person, or destroying it. This would clarify the powers of staff concerning prohibited items.

We recommend that the reference to drugs in the prohibited item list in clause 3 (Interpretation) be replaced by reference to any medicines, controlled drugs, or precursor substances except those prescribed for the resident, and psychoactive substances. This would be consistent with the Medicines Act 1981, which does not refer to drugs; and it would make the intent of the clause clearer by explicitly listing certain types of substances. We also recommend amending subclause 58(1), which provides for drug and alcohol testing, to reflect the revised wording.

We further recommend adding tobacco and equipment used for smoking substances as prohibited items (clause 3 (Interpretation)), which would reduce the risk of fire and promote a healthier environment; adding any electronic or non-electronic material that the residence manager reasonably considers to be pornographic, any electronic or non-electronic representation of inappropriate images of under-18-year-olds, any computer or other electronic device on which a prohibited item is stored; and adding any live animal to the list of prohibited items in clause 3. We consider this would remove any potential ambiguity as to the status of these items.

Inspectors and specified office holders

To improve accountability and transparency we recommend inserting subclause 106(2) to require the Department of Corrections’ annual report to include a report on the activities of inspectors.

We recommend amending subclauses 68(2) and (3), and 70(2) to require inspectors to investigate, conduct an inquiry, and report on a matter as soon as is reasonable in the circumstances after receipt of a complaint or a direction to conduct an inquiry. This is consistent with the timeframe allowed for prison inspectors to conduct investigations.

Regulations, guidelines and instructions

Consistent with advice we received from the Regulations Review Committee, we recommend including a definition of coercive power in clause 3 (Interpretation) of the bill, to clarify that it means a power that authorises a residence manager or staff member, or a corrections officer, to use force, and that it includes the powers conferred by clauses 57 to 58 and 61 to 64. We also recommend inserting new subclause 122(2) to make it explicit that only the coercive powers conferred by the bill could be regulated, and no new coercive powers could be provided for by regulations.

We recommend inserting new subclause 104(6) specifying that rules made by the residence manager under clause 104(1) for the management of the residence are not disallowable instruments for the purposes of the Legislation Act 2012, and do not have to be presented to the House of Representatives under section 41 of that Act. New subclause 104(7)would provide that these rules could not confer any coercive powers.

We further recommend inserting subclause 105(1)(b)(ia) to provide for the chief executive to issue instructions and guidelines regarding the safe custody of residents, and amending clause 105(3) to specify that guidelines and instructions are also disallowable instruments for the purposes of the Legislation Act 2012.

Deducting amounts to cover the cost of care

We recommend amending clause 37(2) so that money would be deducted from a resident’s employment earnings, rather than from their trust account. This would clarify an existing provision for a resident to be required to pay a contribution to their care while working in paid employment.

Including murder in the definition of serious sexual or violent offence

We recommend including murder in the definition of serious sexual or violent offence by inserting a reference to sections 172 to 177 of the Crimes Act 1961 in clause 3 (Interpretation). This is necessary because PPOs would also apply to those returning to New Zealand after serving a sentence for a serious sexual or violent offence in an overseas jurisdiction. A person convicted of murder in New Zealand will be detained if they pose a continuing risk to the community.

Escape from lawful custody

We recommend inserting new clause 124A to add new subsection 120(1)(bb) to the Crimes Act 1961, making it an offence for a person subject to a PPO to escape from a residence. This would authorise police to apprehend and arrest anyone who escaped from a residence.

Emergencies

Civil defence emergencies

The bill as introduced contains no provisions relating to civil defence emergencies, such as earthquake or fire. For the safety of residents, staff, and the general public we recommending inserting new clause 64A, giving the prison manager authority in a civil defence emergency. Although the management of a residence and the prison where it is situated would be kept separate under the bill, in a civil defence emergency it would be safer and more effective for a single line of command to coordinate the response for both the residence and the prison.

We also recommend inserting new clause 64B, to provide for the relocation of residents to prison if a residence is rendered uninhabitable. If the residents’ detention in prison exceeded 72 hours, new subclause 64B(2) would require the chief executive to apply for a transitional detention warrant authorising their continued detention. New clause 64C sets out the details that would be required for the issuing of such a warrant.

Security emergencies

We recommend inserting clause 64(4A) to allow the court to make an interim prison detention order while an application for a prison detention order is pending, so that the resident could be detained in prison in the meantime. This would clarify the status of an individual detained in an emergency under clause 64, ensuring their safe management and the safety and security of the prison. Should the court decline to grant an interim order, the resident would be returned immediately to a residence.

Court procedure

We recommend inserting new clause 90A to require an application for a PPO, or a prison detention order, and an application for a review of those orders or a review of a protective supervision order, to be made by originating application. Originating applications are appropriate where evidence would normally be by affidavit and the normal High Court Rules regarding settlement are not relevant.

Green Party Minority View

The Public Safety (Public Protection Orders) Bill is intended to protect the public from harm that may be posed by the release from prison of what all parties agree is a very small number of individuals (possibly as few as five, no more than twelve) who have completed their sentences. It is the Green Party’s view that many of the provisions in the bill are disproportionate and excessive in relation to the level of threat to public safety that actually exists.

The bill purports to be based on four principles, one of which is that orders are not imposed to punish persons. It is nevertheless difficult to construe the application of orders as being anything other than a punitive regime, when it denies individuals subject to them their liberty and freedom of association; limits their rights to information, visitors, correspondence; makes them subject to strip searches, and much else. The form of detention is a continuation of an imprisonment regime in all but name, even though the subjects of orders have served the full term of a sentence handed down by the courts.

The regulatory impact statement, and a number of informed submitters, indicated that the legislation is likely to be found inconsistent with the Bill of Rights Act, in particular section 22 and section 26, in respect of arbitrary detention and double jeopardy.

The United Nations Working Group on Arbitrary Detention, who visited New Zealand in March to April this year (2014) stated unequivocally that this bill is not in compliance with international law.

The Law Society has questioned the need for the bill, pointing out that there are existing sentencing options for criminal offenders, including the wider availability of preventive detention since 2002, extended supervision orders under the Parole Act 2002, and options for intellectually disabled offenders in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. The Law Society also noted that even prior to these options being available the Law Commission concluded that a civil detention regime of the kind that would be established by this bill was not necessary in the public interest.

The Green Party continues to oppose this bill, and recommends that it not proceed.

Appendix

Committee process

The Public Safety (Public Protection Orders) Bill was referred to the committee on 18 September 2013. The closing date for submissions was 1 November 2013. We received 13 submissions from interested groups and individuals, and heard eight submissions. We received advice from the Ministry of Justice and the Department of Corrections. We also considered a report from the Regulations Review Committee on the regulation-making powers in the bill.

Committee membership

Scott Simpson (Chairperson)

Paul Foster-Bell

Joanne Hayes

Raymond Huo

Alfred Ngaro

Denis O’Rourke

Hon Maryan Street

Holly Walker

Hon Kate Wilkinson

David Clendon replaced Holly Walker for this item of business.