Clendon David: Public Safety (Public Protection Orders) Bill — In CommitteeText is incorporated into the Bound VolumeClendon David: Public Safety (Public Protection Orders) Bill — In Committee[Sitting date: 02 December 2014. Volume:702;Page:1003. Text is incorporated into the Bound Volume.]DAVID CLENDON (Green):I am pleased to take a call to speak to some of the detail of this bill and to highlight the reasons the Greens are not supporting this legislation through the House. It goes right back to the regulatory impact statement. We are basing this legislation on very little evidence and that point was made in the regulatory impact statement by the officials who note that it is not possible to accurately report recidivism data for such a small unique subset of offenders. There is not a lot of evidence surrounding this legislation to support what is quite a Draconian measure—and it has to be described in those terms. It is quite a Draconian measure to go to this extent. The lack of compliance with the New Zealand Bill of Rights Act and indeed international conventions and standards has been noted.It is interesting again to note the earlier evidence we had from officials. We heard from officials that three pieces of legislation similar to this in four Australian states—legislation that enables the ongoing detention of inmates after the expiry of their sentences—have been found by the United Nations Human Rights Council to breach the International Covenant on Civil and Political Rights. Given the similarity of that legislation to what is being proposed here it is most likely that New Zealand will find itself on the wrong side of the United Nations Human Rights Council and I think that is very regrettable—not least of all given that this afternoon in fact we are progressing legislation that the Greens do support and believe will achieve much of what is intended to be achieved with this legislation.Much has been made of the principles of this bill and we constantly hear this reference to the fact that it is not punitive. Clause 5 “Principles” states: (a) “orders under this Act are not imposed to punish persons”. I defy anyone to suggest that this is not a form of punishment. Semantically yes you can dance around that to some extent. But looking at the conditions that can be imposed on people subject to these orders essentially it is detention perhaps with one or two more creature comforts and with a modicum more of “the autonomy and quality of life” that this legislation talks about but it is an inherently punitive regime.People are prohibited from possessing quite a long list of items without specific permission from a residence manager acting on behalf of the chief executive—basic things like tobacco and alcohol. Yes of course nobody supports the use of tobacco—I certainly do not—but they are free people and adults are entitled to make their own decisions. In prisons of course alcohol and tobacco are banned and they would also be banned in the so-called residences. Electronic communication devices are not allowed—people cannot own phones in other words. There are very significant restrictions on access to mail. They may watch television and receive newspapers but any incoming or outgoing mail will be censored by the manager of the residence. These are punitive conditions. These do reflect quality of life or autonomy. People may not keep live animals for example. People are denied pets which are a commonplace sort of a thing that people have in their real lives.A decision for a public protection order to be imposed on a person rests heavily on this issue around health assessment so that a person coming up to the end of their determinate sentence will be assessed. Essentially there must be at least one registered psychologist and one other person who must be at least a psychiatrist registered to practise in New Zealand. That is all well and good. The court will be presented with two reports then the court itself or the person to whom this assessment applies can also choose to have health assessments done by other assessors—other psychiatrists or psychologists.There is no guidance in this legislation as to what the courts should do when as will inevitably happen there is conflicting advice or evidence. These are very subjective issues. Psychiatry—and I feel I can say this with no reflection on the profession—is an inexact science. There is a level of subjectivity. There are clinical tests surely but equally there is a high level of subjectivity. What is a judge or the courts to do in the situation where there are two for and two against for example? I think that that is quite unsatisfactory given the consequences of the assessments that can be made and the fact that this could effectively see people kept in detention basically for ever.The point has been made that there is quite a high bar required in order for these public protection orders to be triggered. To an extent yes and equally there are the health assessments—the psychological assessments and so on—but the decision is made by the court on the balance of probabilities which is a bar that is set for civil proceedings. A balance of probabilities is not sufficient for a criminal investigation for a ruling in a criminal court and yet effectively as I have said people who have these orders made against them will be kept in conditions not dissimilar to prison. It is very similar in fact to the situation that a person might be in if they were close to release for example—the self-care unit type of thing—although arguably a person in a residence would actually have fewer rights and more restrictions than somebody still completing a sentence in a self-care unit in one of our prisons. I hasten to say that I support the notion of units like that within prisons as self care is a step is towards release and reintegration further down.We note that people subject to these orders will be allowed to work if they can generate an income for themselves within their residence or by some means acceptable to the residence manager. That is allowed; they can earn money and have it managed on their behalf by the residence manager. I think the kicker there is though that when a person begins to earn money they can also have the ticket clipped despite the fact that they are in detention and they have completed the sentence to which they were subject for whatever crime they have committed. Nevertheless if they start earning money then a certain amount of that can be taken off them—to meet the cost of their board and lodgings presumably—which seems a pretty unhelpful thing.There is some peculiar language in terms of rehabilitation. We are told in clause 33 that residents are “entitled to receive rehabilitative treatment if the treatment has a reasonable prospect of reducing the risk to public safety posed by the resident.” This is not an expectation or something we would seek to insist upon; it is an entitlement something they may do. The question of whether or not a person subject to an order actually is able to get rehabilitation or some sort of programme is actually down to the assessment made by the residence manager.These must be quite extraordinary people these residence managers. When a person moves into a so-called residence the residence manager is responsible for a needs assessment to identify special medical requirements the cultural or religious needs of the individual any skills or capacities of the individual and any educational needs and finally they can assess any steps to be taken to facilitate rehabilitation and reintegration. That is an extraordinary load to put on one individual I would argue. We do not know what sort of level of requirement what expectations there will be or what qualifications people might require for these jobs. We do know that while they are acting as a residence manager they may not perform any function under the Corrections Act which would exclude a number of people. But it does seem that we are putting a great deal of reliance in a sense on these residence managers who may conceivably be managing a residence of as few as one or certainly only a handful of people.The practical application of this legislation leaves open many more questions than it answers regarding the ongoing conditions that these people will be subject to. Any time they leave and enter the residence they can be strip-searched and it can be an obligation. They can be forcibly strip-searched. They can be put in “seclusion” which is rather gentle language. Essentially they can be put in solitary confinement and kept there until the residence manager deems it appropriate that they should be released. They can be restrained physically—forcibly restrained. All of these are conditions that inmates in prisons are subject to. I see very little to differentiate between a person allegedly under a civil order—a non-punitive order—in a residence and the conditions that apply in a prison. For these and other reasons we will be opposing this legislation.