Reform of the country’s preventive detention and post-sentence laws are almost certain with the Law Commission keen to see the regimes align with human rights standards.
It was asked to investigate after a 2017 United Nations finding that New Zealand’s preventive detention laws breached the International Convention on Civil and Political Rights.
Preventive detention is a criminal sentence where a person remains in prison until they are considered safe enough to be released on parole.
If they are released they are subject to parole conditions for life and can be recalled to prison if these are breached.
The commission is also tackling the thorny issue of extended supervision orders and the rarely used public protection orders regime.
Extended supervision orders require people to be managed in the community under heavy restrictions, including electronic monitoring. Public protection orders, which came into effect in 2014, are a type of detention where people are managed in a secure facility in the precincts of Christchurch Men’s Prison.
In June 2022, there were 310 people subject to preventive detention, 205 people on extended supervision orders and two people subject to public protection orders.
In 2021 the Court of Appeal declared both regimes were inconsistent with the protection against second punishment under the Bill of Rights Act 1990 and that those inconsistencies had not been justified.
“Considering the limited evidence, it is difficult to draw conclusions at this stage as to the extent of the need for the preventive regimes,” said the commission’s report, released this week.
“It appears there are people who, unless detained or properly supervised after a determinate prison sentence, will pose risks to the community of serious reoffending.”
Principal adviser John-Luke Day said the measures infringed on human rights – and the question the commission now had to grapple with was whether this was justified.
“Because these measures do infringe on human rights there really needs to be a justification for those infringements based on evidence and that really repeats what the courts are saying at the moment.
“And we’re not concluding one way or the other at this stage whether they’re justified or not but what we’ve said is, like the courts, we haven’t been able to find the evidence to say human rights infringements can be justified one way or the other… so we’re asking people to give us feedback.”
Reform could also include clearly defining when someone’s punishment finished and the “community protection” element of their restriction began.
“The key thing that should happen, the human rights bodies say, is when [the offender] has served or completed the punitive sentence, they need to be moved from the prison condition into different conditions, which is still secure, and still keeps the community safe.
“But not conditions that you would associate with a punitive prison sentence.”
He said the commission also wanted to know how the laws could give effect to obligations under te Tiriti o Waitangi, given Māori were over-represented in preventive and post-sentence orders.
Its preliminary finding was that the current laws governing the preventive regimes were inconsistent with tikanga Māori.
“Responses grounded in tikanga to a person who is at risk of offending should work to restore a person’s mana, protect their tapu, and achieve ea by restoring the offender ‘back to their community as a fully functioning human being’.
“Conversely, isolating a person from their community may undermine and disrupt whakapapa and whanaungatanga,” the report said.
Other issues include the fragmented nature of the law – where the three regimes were governed under separate pieces of legislation, what offences should qualify someone for a preventive or post-sentence order and how the orders should stop, if that is appropriate.