Tuesday, April 16, 2013

Public protection orders and human rights

Last year, in a moral panic about the release of Stewart Wilson, the government introduced the Public Safety (Public Protection Orders) Bill. The bill would allow people like Wilson to be detained indefinitely upon completion of their sentences, to make the government appear tough on crime "protect the public".

Given his views on the (much milder) Parole (Extended Supervision Orders) Amendment Act 2009, I expected the Attorney-General to advise that the bill violated the BORA. He didn't - thus calling the entire BORA-vetting system into question, and raising further doubts about the ability (and willingness) of Parliament and the executive to protect our fundamental rights.

When the idea of public protection orders was first proposed, I OIA'd the advice on them. Unfortunately it was almost all withheld as "confidential", despite Cabinet having clearly made a decision. I complained to the Ombudsman, who has now forced a partial release. And what it says about the human rights implications is pretty interesting. Here's the section from a draft Cabinet paper from March 2012 [PDF; 90 - 93]:

The detention of detainees by the Department of Corrections within the preceincts of a prison, its application solely to offenders and any limitation on the provision of treatment, among other factors, may lead the courts and the international human rights bodies to determine that the order is criminal rather than civil. if so, the proposal would likely be found to infringe the rights not to be subjected to retroactive penalties or double jeopardy affirmed in section 26 of the New Zealand bill of Rights Act 1990 (NZBORA) and article 15 of the International Covenant on Civil and Political Rights (ICCPR). This is because it would apply to people who have already been sentenced and are serving a finite prison sentence or are or have been subject to the most intensive form of extended supervision order.

Although the proposed order will not be made unless the court finds that there is a very high risk of imminent and serious sexual or violent re-offending the imposition of a further significant restriction on liberty would be connected to the previous conviction. In the case of those already released into the community, i.e. the 12 offenders who are or have been subject to the most intensive extended supervision orders, this further restriction on their liberty may be done without further evidence of inappropriate behaviour by them after they have been released into society (albeit under very close supervision).

Limiting the orders solely to offenders risks the detention being found to be arbitrary, irrespective of whether or not it is considered civil or criminal, in breach of s 22 of NZBORA and article 9 of the ICCPR. Article 9(5) of the ICCPR expressly provides for compensation for those who have been arbitrarily detained.

The proposal may also limit the right to be free from discrimination affirmed in section 19 of the NZBORA on the grounds of disability, as the proposal could have a disproportionate effect on people with intellectual disabilities.

The final Cabinet paper [PDF; 100 - 103] reiterates this warning, and adds some more:
The Courts have discretion to make, or not make, an order. if they consider public protection orders to be inconsistent with fundamental human rights, they may simply decline to exercise their discretion in favour of making such orders, rendering the new regime ineffective.

New Zealand is party to the first Optional protocol to the ICCPR, which establishes an individual complaints mechanism. it is possible that individuals affected by the proposed Bill may also pursue complaints before the United Nations Human Rights Committee. Criticisms, or findings of breach by New Zealand of its international commitments following complaints to the Committee, would have no binding effect, but would have implications for New Zealand's international reputation.

Naturally, these concerns were toned down for the final Regulatory Impact Statement [PDF], which is what MPs get to see when considering a bill.

The bill is still on the Order Paper waiting for its first reading. Hopefully the government's real views on its consistency with human rights (as opposed to the Attorney-General's tawdry whitewash) will inform that debate if it ever happens.

There are a few more documents on the bill available here.