National's "we know you are going to do bad things" law is now before the House. Can the people of Whanganui now sleep safe in their beds?

So the Government's proposed "Public Protection Orders" legislation has finally been rolled out. In a nutshell, it will permit prison authorities to go to the High Court and seek an order that because "there is a very high risk of imminent serious sexual or violent offending by the respondent", an individual should be detained indefinately in accommodation on prison grounds. In essence, the individual subject to the order will live in a house inside the prison fences (but not in a prison cell), be required to do what the residence's staff tell her or him to do and be subject to their monitoring ... until they are "not dangerous" enough to be released. There's then a bunch of safeguards built into the process regarding the right of a person to challenge the orders, get independent assessments, legal advice, etc, etc.

Seeing as I've posted on this issue before, I thought I'd keep following it with three initial thoughts on the legislation. I may have more to say on it later, depending on how other work commitments pan out.

First of all, the proposed legislation won't just target "dangerous prisoners" who are soon to be released from prison. Under clause 7(1)(b)(i), it also will apply to a "person [who] is subject to an extended supervision order andis, or has been, subject to a condition of full-time accompaniment and monitoring". That is, individuals who presently are out in the community under a watchful eye can get yanked back behind prison walls because they are considered too dangerous to be out there in public ... even though they've actually been living in the community without doing any harm (otherwise they'd already be back in jail for doing so).

Now, can anyone think of anyone who presently is living in ... oh, let's say, Whanganui ... under an ESO with full-time accompaniment and monitoring? And can anyone remember how that development was responded to by "middle New Zealand"? So while Judith Collins may tell us that "PPOs are not being designed to target a specific individual ...", let's just say that it's awfully fortuitous that they just happen to be designed in a way that may catch and return to detention a certain unnamed individual.

Second, this is how the Bill is justified in its "General Policy Statement":

Public safety is jeopardised by a small number of people who reach the end of a finite prison sentence or are subject to the most intensive form of an extended supervision order and pose a very high risk of imminent and serious sexual or violent reoffending. Less restrictive forms of supervision are not adequate for preventing almost certain further offending.

Well, that sounds reasonable, doesn't it? After all, these are people who've done bad things in the past that have had terrible consequences for their victims. And if they are almost certain to come out and do more bad things with terrible consequences for other victims, then it would be madness to let them go and just wait for the inevitable result before locking them up again!

Except ... it isn't that simple. You just cannot say any given individual prisoner is "almost certain" to commit a particular sort of crime upon release from prison. The most you can say is that a prisoner displays certain characteristics that make him or her more likely to reoffend in a certain way after his or her release than other prisoners who do not have those characteristics. But there is no available predictive tool in the criminologist's or psychologist's kit that allows them to say with any confidence that "Prisoner X almost certainly will commit this offence upon his or her release."

Now, I know we hear of anecdotal cases where someone - often a prison guard - will warn his or her bosses that "if such-and-such is let out, he will kill someone". And, sure enough, that prisoner is released and goes on to kill, which then makes for a media firestorm. But what we don't ever hear about are the "false positives"; that is, cases where a prison guard (or other concerned individual) gives a warning of dire consequences following the release of some individual ... and then nothing happens. And I'm prepared to bet that this happens at least as often as do correct predictions of future harm.

Furthermore, with respect to the kinds of prisoners who are being targetted by this proposed legislation, things are even murkier. In the "Agency Disclosure Statement" at the front of the Department of Corrections Regulatory Impact Statement on the Bill, the Department's General Manager (Strategy, Policy and Planning) notes that a limit to the Department's analysis is:

Data - it is not possible to accurately report recidivism data for such a small and unique subset of offenders.

Did you get that? The Department of Corrections is saying that its analysis (which, incidentally, recommends that the Bill be introduced) cannot with any certainty tell you how likely it is that the people who will be subject to it will reoffend at all - let alone commit the kinds of violent or sexual offences that they initially were imprisoned for. It's just that they know there is an "elevated risk" ... which is a long way short of being able to say it's a "virtual certainty".

Finally, the Corrections Department, in its Regulatory Impact Statement on the proposed legislation, goes on to note that:

The introduction of a continuing detention order is likely to be controversial both in New Zealand and internationally, is likely to be found to be inconsistent with the BORA and New Zealand's international obligations, and may result in complaints to the UN Human Rights Committee.

In point of fact, it would appear the Attorney-General has not attached a s.7 report to the Bill indicating his opinion that it is inconsistent with the New Zealand Bill of Rights Act - at least, there's no such paper listed on Parliament's web site. And if there really is no s.7 notice, I don't know why the Attorney-General thinks that the Bill passes muster under that legislation as the advice he received on the issue isn't yet available on the Ministry of Justice's website. Let me say that I'll be very interested to see that thinking.

But for now, I'll just make this comment. The Department of Corrections admits that its advice most likely is inconsistent with the NZBORA - that is, it recognises that the various limits on the rights of the individuals who will be subject to these PPO's cannot be demonstrably justified in a free and democratic society. However, it still thinks that this legislation is a good idea and that PPOs should be introduced "because it would provide the best means of enhancing public safety".

This line of reasoning suggests one of two things is going on, neither of which reflect particularly well on the Department.

Either the Department of Corrections just doesn't get how the NZBORA works - that public safety is a legitimate end for Government to pursue and can justify limiting the rights of individuals, provided the limits on those rights are narrowly tailored to achieve the end, rationally connected to that end, and proportionate to the overall end sought. But if the limits on individual rights don't meet those tests, then you can't use "public safety" as a trump card that defeats rights altogether. In other words, "public safety" and "rights" aren't antithetical opposites, with one having to triumph over the other - they are complimentary ends, each of which helps to define how far the other should stretch. 

Alternatively, the Department of Corrections knows full well how the NZBORA works, but also knows that it is basically irrelevant to the issue because there's no way the "rights" of a bunch of low-life scum criminals are going to stop the Government putting in place a piece of legislation it promised. So there's no real need to consider it in creating this policy, because it isn't going to change what happens one way or the other.

In either case, can anyone remind me why we have a Bill of Rights Act?