The Here ora: Public safety and serious offenders: A review of preventive detention and post-sentence orders report by the NZ Law Commission features the following recommendations -
Preventive measures, community safety and human rights (Chapter 3)
R1 The law should continue to provide for preventive measures to protect the community from serious sexual or violent reoffending by those who would otherwise be released into the community after completing a determinate sentence of imprisonment.
R2 The preventive measures the law should provide for are: a. community preventive supervision; b. residential preventive supervision; and c. secure preventive detention
A single, post-sentence regime (Chapter 4)
R3 A new statute should be enacted to govern all preventive measures (the new Act).
R4 Sections 87–90 of the Sentencing Act 2002, providing for preventive detention, should be repealed. Part 1A of the Parole Act 2002, providing for ESOs, should be repealed. The Public Safety (Public Protection Orders) Act 2014, providing for PPOs, should be repealed.
R5 All preventive measures should be imposed as post-sentence orders. For preventive measures sought against an eligible person subject to a prison sentence in Aotearoa New Zealand for a qualifying offence, the new Act should require applications to be made prior to the person’s sentence expiry date or the date when the individual ceases to be subject to any release conditions, whichever is later.
R6 A court sentencing an eligible person to imprisonment following conviction for a qualifying offence should give written notice to the person to inform them of their eligibility to have a preventive measure sought against them.
Reorienting preventive measures (Chapter 5)
R7 The purposes of the new Act should be to: a. protect the community by preventing serious sexual and violent reoffending; b. support a person considered at high risk of serious sexual and/or violent reoffending to be restored to safe and unrestricted life in the community; and c. ensure that limits on a person’s freedoms to address the high risk they will sexually and/or violently reoffend are proportionate to the risks and are the least restrictive necessary.
R8 In proceedings under the new Act, if it appears to the court that a person against whom a preventive measure is sought or a person already subject to a preventive measure may be “mentally disordered” or “intellectually disabled”, the court should have power to direct the chief executive of Ara Poutama Aotearoa | Department of Corrections to: a. consider an application in respect of the person under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; and b. if the chief executive decides not to make an application, to inform the court of their decision and provide reasons for why the preventive measure is appropriate.
R9 If at any time it appears to the chief executive of Ara Poutama Aotearoa | Department of Corrections that a person subject to a preventive measure is mentally disordered or intellectually disabled, the chief executive should have power to make an application in respect of the person under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
R10 For the purposes of any application under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 made in relation to a person against whom a preventive measure is sought or who is already subject to a preventive measure, the person should be regarded as being detained in a prison under an order of committal.
R11 If a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or a compulsory care order under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 is imposed on a person subject to a preventive measure, the preventive measure should be suspended. While suspended, a probation officer should be able to reactivate any conditions of the preventive measure to ensure that the person does not pose a high risk to the community or any class of people. The Review Authority (see R131–R141) should annually review any reactivated conditions.
Te ao Māori and the preventive regimes (Chapter 6)
R12 When imposing a preventive measure, the new Act should require the court to consider whether the preventive measure should be administered by placing the person within the care of a Māori group or a member of a Māori group such as: a. an iwi, hapū or whānau; b. a marae; or c. a group with rangatiratanga responsibilities in relation to the person.
PART 3: ELIGIBILITY
Age of eligibility (Chapter 7)
R13 To be eligible for a preventive measure, the new Act should require that a person is aged 18 years or older at the time of an application.
Qualifying offences (Chapter 8)
R14 To be eligible for a preventive measure, the new Act should require that a person has been subject to a sentence of imprisonment for a conviction of a qualifying offence.
R15 Qualifying offences should be the same for all preventive measures.
R16 Qualifying offences should continue to focus on sexual and violent offending.
R17 Qualifying offences should be those offences set out in Appendix 1 of this Report.
R18 Imprisonable offences under the Films, Videos, and Publications Classification Act 1993 that are currently qualifying offences for an extended supervision order should be qualifying offences for all preventive measures.
R19 The offence of strangulation or suffocation (section 189A of the Crimes Act 1961) should be a qualifying offence.
R20 The following offences should not be qualifying offences: a. Incest (section 130 of the Crimes Act 1961). b. Bestiality (section 143 of the Crimes Act 1961). c. Accessory after the fact to murder (section 176 of the Crimes Act 1961).
R21 All qualifying offences should be further qualifying offences for the purpose of the application of the legislative tests in R25 except: a. imprisonable Films, Videos, and Publications Classifications Act 1993 offences; b. attempts and conspiracies to commit qualifying offences; and c. Prostitution Reform Act 2003 offences.
Overseas offending (Chapter 9)
R22 A person convicted of an offence overseas should be eligible for a preventive measure if the offence would come within the meaning of a qualifying offence as defined under the new Act had it been committed in Aotearoa New Zealand and the person: a. has arrived in Aotearoa New Zealand within six months of ceasing to be subject to any sentence, supervision conditions or order imposed on the person for that offence by an overseas court; and i. since that arrival, has been in Aotearoa New Zealand for less than six months; and ii. resides or intends to reside in Aotearoa New Zealand; or b. has been determined to be a returning prisoner and is subject to release conditions under the Returning Offenders (Management and Information) Act 2015; or c. is a returning offender to whom Subpart 3 of Part 2 of the Returning Offenders (Management and Information) Act 2015 applies and who is subject to release conditions under that Act.
PART 4: IMPOSING PREVENTIVE MEASURES
Legislative tests for imposing preventive measures (Chapter 10)
R23 All proceedings for the imposition of a preventive measure should commence by application to the court from the chief executive of Ara Poutama Aotearoa | Department of Corrections for an order for a specific preventive measure.
R24 Jurisdiction to hear and determine applications for preventive measures should be as follows: a. Te Kōti-ā-Rōhe | District Court should have first instance jurisdiction to determine applications for community preventive supervision. b. Te Kōti Matua | High Court should have first instance jurisdiction to determine applications for residential preventive supervision and secure preventive detention. c. Where the chief executive of Ara Poutama Aotearoa | Department of Corrections applies for preventive measures in the alternative, they should apply to te Kōti Matua | High Court.
R25 The new Act should provide that the court may impose a preventive measure on an eligible person if it is satisfied that: a. the person is at high risk of committing a further qualifying offence in the next three years if the preventive measure is not imposed on them; b. having regard to the nature and extent of that risk, the preventive measure is the least restrictive measure adequate to address that risk; and c. the nature and extent of any limits the preventive measure would place on the person’s rights and freedoms affirmed under the New Zealand Bill of Rights Act 1990 are justified by the nature and extent of the risk the person poses to the community.
R26 In deciding whether the tests in R25 are met, the court should take into account: a. any health assessor reports before the court; b. whether the person has, or has had, a pattern of serious offending; c. any efforts made by the person to address the cause or causes of all or any of those offences; d. whether and, if so, how a preventive measure imposed can be administered by Ara Poutama Aotearoa | Department of Corrections (or on its behalf); e. any other possible preventive measure that the court could impose that would comply with those tests; and f. any other information relevant to whether the tests in R25 are met.
R27 Special conditions of community preventive supervision or residential preventive supervision should be set in the following way: a. An application for either measure should include any special condition sought. b. The court determining the application should apply the tests in R25 to the whole application, including the special conditions sought. c. An order imposing community preventive supervision or residential preventive supervision should include any special conditions of the measure.
R28 If the court is not satisfied the tests in R25 are met in respect of the measure sought in the application, the new Act should confer on the court the power in the same proceedings to impose a less restrictive preventive measure if satisfied the tests are met in respect of that measure.
R29 Before an application for a preventive measure is finally determined, the court should have power to impose any preventive measure on an interim basis in the following circumstances: a. An eligible person is, or is about to be, released from detention. b. An eligible person who is a returning offender arrives, or is about to arrive, in Aotearoa New Zealand. c. The court directs the chief executive of Ara Poutama Aotearoa | Department of Corrections (chief executive) to consider an application in respect of a person under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under section 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. d. The chief executive makes an application to escalate a person to a more restrictive measure.
R30 To impose an interim preventive measure, the court should be satisfied the primary legislative tests in R25 are made out on the available evidence in support of the application for the interim measure.
R31 If the court imposes community preventive supervision or residential preventive supervision as an interim preventive measure, the standard conditions of that measure should apply. The court should also have the power to impose any special conditions that may be imposed under that measure.
Evidence of reoffending risk (Chapter 11)
R32 The chief executive of Ara Poutama Aotearoa | Department of Corrections should file with the court: a. two health assessor reports to accompany an application to impose residential preventive supervision or secure preventive detention on an eligible person; and b. one health assessor report to accompany an application to impose community preventive supervision on an eligible person.
R33 The health assessor reports should address whether: a. the person is at high risk of committing a further qualifying offence in the next three years if the preventive measure is not imposed on them; and b. having regard to the nature and extent of that risk, the preventive measure is the least restrictive measure adequate to address that risk.
R34 The new Act should define a health assessor as a health practitioner who: a. is, or is deemed to be, registered with Te Kaunihera Rata o Aotearoa | Medical Council of New Zealand specified by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine and who is a practising psychiatrist; or b. is, or is deemed to be, registered with Te Poari Kaimātai Hinengaro o Aotearoa | New Zealand Psychologists Board specified by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of psychology.
R35 The court should be able to direct, on its own initiative, that a report or reports prepared by health assessors be provided. R36 A person against whom an application for a preventive measure is made should be able to file a report or reports prepared by health assessors they have engaged.
R37 A person against whom a preventive measure is sought should have public funding available to them to obtain: a. two health assessor reports if the application against them is to impose residential preventive supervision or secure preventive detention; and b. one health assessor report if the application against them is to impose community preventive supervision.
R38 The new Act should provide that the court may receive and consider any evidence or information it thinks fit in proceedings under the new Act, whether or not it would otherwise be admissible. The rules applying to privilege and confidentiality under Subpart 8 of Part 2 of the Evidence Act 2006 and rules applying to legal professional privilege should continue to apply.
Proceedings under the new Act (Chapter 12)
R39 Te Kōti Matua | High Court and te Kōti-ā-Rohe | District Court should hear and determine applications for preventive measures under their criminal jurisdiction.
R40 The new Act should provide for a right of appeal to te Kōti Pīra | Court of Appeal against decisions by te Kōti Matua | High Court or te Kōti-ā-Rohe | District Court determining an application to: a. impose a preventive measure; b. impose a preventive measure on an interim basis; c. review a preventive measure; d. terminate a preventive measure; or e. escalate a person to a more restrictive measure (including to a prison detention order).
R41 Part 6 of the Criminal Procedure Act 2011 should, with the necessary modifications, apply to the appeal as if it were an appeal against sentence.
R42 The lodging of an appeal should not prevent the decision appealed against taking effect according to its terms.
R43 When a court hears and determines applications for the imposition or review of a preventive measure in respect of a person, the new Act should require the court to consider any views expressed by the person’s family, whānau, hapū, marae or iwi or anyone holding a shared sense of whānau identity with the person.
R44 The government should continue to develop and support ways to facilitate the court to hear views from family, whānau, hapū, marae, iwi and other people holding a shared sense of whānau identity.
R45 The chief executive of Ara Poutama Aotearoa | Department of Corrections should, as soon as practicable, notify each victim of a person who is considered for or subject to a preventive measure: a. that an application for a preventive measure has been made; b. of the outcome of an application when the application is determined or abandoned; c. of any special conditions that are imposed on a person subject to community preventive supervision or residential preventive supervision and when these are varied or terminated; d. that an application to the court for review or termination of a preventive measure has been made; e. of the outcome of any review conducted by the court; f. that the person subject to a preventive measure has died; g. that the person subject to a preventive measure has escaped from a secure facility; or h. that the person subject to community preventive supervision or residential preventive supervision has been convicted of a breach of their conditions.
R46 The new Act should provide that notification to victims regarding special conditions may be withheld if disclosure would unduly interfere with the privacy of any other person.
R47 The new Act should: a. entitle victims to make written submissions and, with the leave of the court, oral submissions when the court is determining an application to impose or review a preventive measure; and b. provide that victims may be represented by counsel and/or a support person or people if making an oral submission to the court.
R48 For the purposes of the new Act, a victim should be defined as a person who: a. is a victim of a qualifying offence committed by a person: i. against whom an application for a preventive measure has been made; or ii. who is subject to a preventive measure imposed under the Act; and b. who has asked for notice or advice of matters or decisions or directions and copies of orders and conditions and has given their current address under section 32B of the Victims’ Rights Act 2002.
R49 The new Act should protect information related to victims by: a. requiring that a person subject to a preventive measure or against whom an application for a preventive measure has been made: i. does not receive any information that discloses the address or contact details of any victim; and ii. does not retain any written submissions made by a victim; b. providing that the court may, on its own initiative or in response to an application, give directions or impose conditions on the disclosure or distribution of a victim’s submission if, in its opinion, it is necessary to protect the physical safety or security, emotional welfare or privacy of the victim concerned; and c. making it an offence for any person to publish information provided to the court for the purpose of making a victim submission that identifies, or enables the identification of, a victim of a person subject to an application or a preventive measure.
R50 Court proceedings concerning preventive measures should generally be open to the public.
R51 The court should have the power to make an order forbidding publication of: a. the name or any other identifying details of a person who is the subject of an application for, or subject to, a preventive measure; b. the whole or any part of the evidence given or submissions made in the proceedings; and/or c. any details of the measure imposed.
R52 The court should have the power to make an order forbidding publication of a matter listed under R51 only if satisfied that publication would be likely to: a. cause undue hardship to the person who is the subject of an application for, or subject to, a preventive measure (the person); b. unduly impede the person’s ability to engage in rehabilitation and reintegration; c. create a real risk of prejudice to a fair trial; d. cause undue hardship to any victim of the person’s previous offending; e. endanger the safety of any person; f. lead to the identification of another person whose name is suppressed by order of law; or g. prejudice the maintenance of the law, including the prevention, investigation and detection of offences.
R53 The court should have the power to make an order to clear the court if satisfied that: a. the order is necessary to avoid: i. undue disruption to the conduct of proceedings; ii. a real risk of prejudice to a fair hearing; iii. endangering the safety of any person; iv. undue hardship to the person who is the subject of an application for, or subject to, a preventive measure; or v. prejudicing the maintenance of the law, including the prevention, investigation and detection of offences; and b. a suppression order is not sufficient to avoid that risk.
PART 5: ADMINISTRATION OF PREVENTIVE MEASURES
Overarching operational matters (Chapter 13)
R54 Ara Poutama Aotearoa | Department of Corrections should be responsible for the operation of preventive measures under the new Act.
R55 The chief executive of Ara Poutama Aotearoa | Department of Corrections should appoint facility managers.
R56 For facilities operated under a facility management contract, the contractor should appoint facility managers, subject to approval by the chief executive of Ara Poutama Aotearoa | Department of Corrections.
R57 The chief executive of Ara Poutama Aotearoa | Department of Corrections should have the power to issue guidelines and instructions with which all facility managers should be required to comply.
R58 The chief executive of Ara Poutama Aotearoa | Department of Corrections should have the power to enter into a contract with an appropriate external entity for the management of a residential facility (under residential preventive supervision) or a secure facility (under secure preventive detention).
R59 Every facility management contract should: a. provide for objectives and performance standards no lower than those that apply to Ara Poutama Aotearoa | Department of Corrections; b. provide for the appointment of a suitable person as facility manager; and c. impose on the contracted entity a duty to comply with the new Act (including instructions and guidelines issued by the chief executive of Ara Poutama), the New Zealand Bill of Rights Act 1990, the Public Records Act 2005, sections 73 and 74(2) of the Public Service Act 2020 and all relevant international obligations and standards as if the facility were run by Ara Poutama.
R60 The chief executive of Ara Poutama Aotearoa | Department of Corrections should have the power to take control of externally administered facilities in emergencies (as defined in section 134 of the Public Safety (Public Protection Orders) Act 2014).
R61 The chief executive of Ara Poutama Aotearoa | Department of Corrections should appoint suitably qualified people to be independent inspectors. The chief executive should ensure that the number of inspectors appointed is sufficient for the operation of the new Act.
R62 Anyone should be able to complain to an inspector about a breach of the rights of a person subject to a preventive measure.
R63 An inspector may, on their own initiative or on receipt of a complaint against a probation officer, facility manager or facility staff, commence an investigation into an alleged breach of the new Act or any conditions imposed, or guidelines or directions issued under it. An inspector may decide not to investigate a complaint if satisfied that the complaint is frivolous or vexatious.
R64 If, after investigating a complaint, the inspector is satisfied that the complaint has substance, the inspector should, as soon as is reasonable in the circumstances, either: a. conduct an inquiry (in accordance with the Inquiries Act 2013); or b. report the matter, together with any recommendations, to the relevant probation officer or facility manager. R65 An inspector should have to power to commence an inquiry into an alleged breach of the new Act or any conditions imposed, or guidelines or directions issued under it, on their own initiative. An inspector should commence an inquiry if directed to do so by the chief executive of Ara Poutama Aotearoa | Department of Corrections.
R66 An inquiry should result in an inquiry report being prepared, which the inspector should send to: a. the relevant probation officer or facility manager; b. the chief executive of Ara Poutama Aotearoa | Department of Corrections; c. the person subject to the preventive measure concerned; and d. if applicable, any person who complained on behalf of the person subject to the preventive measure concerned.
R67 Residential facilities and secure facilities should be subject to: a. examination by a National Preventive Mechanism under the Crimes of Torture Act 1989; and b. inspections every six months by inspectors appointed under the new Act to address the facilities’ compliance with all requirements under the new Act.
R68 An inspection by an inspector appointed under the new Act should result in an inspection report being prepared, which the inspector should send to the relevant facility manager and the chief executive of Ara Poutama Aotearoa | Department of Corrections.
R69 Probation officers, as well as facility managers and their staff, should have regard to the following guiding principles when exercising their powers: a. People subject to community preventive supervision must not be subject to any more restrictions of their rights and freedoms than are necessary to ensure the safety of the community. b. People subject to residential preventive supervision or secure preventive detention must have as much autonomy and quality of life as is consistent with the safety of the community and the orderly functioning and safety of the facility. c. People subject to any preventive measure must, to the extent compatible with the safety of the community, be given appropriate opportunities to demonstrate rehabilitative progress and prepared for moving to a less restrictive preventive measure or unrestricted life in the community.
R70 The new Act should provide that people subject to a preventive measure are entitled to receive rehabilitative treatment and reintegration support.
R71 Ara Poutama Aotearoa | Department of Corrections should ensure sufficient rehabilitative treatment and reintegration support is available to people subject to a preventive measure so that the duration of the preventive measure is limited to the shortest period necessary to protect the community from the high risk the person will commit a further qualifying offence.
R72 The new Act should provide that each person subject to a preventive measure must have their needs assessed as soon as practicable after the measure is imposed. The assessment should identify any: a. medical requirements; b. mental health needs; c. needs related to any disability; d. needs related to education; e. needs related to therapeutic, recreational, cultural and religious activities; f. needs related to building relationships with the person’s family, whānau, hapū, iwi or other people with whom the person has a shared sense of whānau identity; g. steps to be taken to facilitate the person’s rehabilitation and reintegration into the community; and h. other matters relating to the person’s wellbeing and humane treatment.
R73 The new Act should provide that each person subject to a preventive measure must have a treatment and supervision plan developed with them as soon as practicable after the completion of the initial needs assessment. The treatment and supervision plan should set out: a. the reasonable needs of the person based on the completed needs assessment; b. the steps to be taken to work towards the person’s restoration to safe and unrestricted life in the community; c. if applicable, the steps to be taken to work towards the person’s transfer to a less restrictive measure; d. the rehabilitative treatment and reintegration support a person is to receive; e. opportunities to participate in life in the community for people subject to residential preventive supervision or secure preventive detention; f. any matters relating to the nature and extent of the person’s supervision required to ensure the safety of the person, other residents of a facility, staff of the facility and the community; and g. any other relevant matters.
R74 The person responsible for assessing the person’s needs and developing and administering the treatment and supervision plan should be: a. the probation officer responsible for supervising the person in the case of community preventive supervision; or b. the facility manager into whose care the person is placed in the cases of residential preventive supervision and secure preventive detention.
R75 When undertaking a needs assessment or developing a treatment and supervision plan, the responsible person should be required to make reasonable efforts to consult with the person subject to the preventive measure.
Community preventive supervision (Chapter 14)
R76 Community preventive supervision should comprise standard conditions and any additional special conditions imposed by te Kōti-ā-Rohe | District Court.
R77 When te Kōti-ā-Rohe | District Court imposes community preventive supervision, the following standard conditions should automatically apply. The person subject to community preventive supervision (the person) must: a. report in person to a probation officer in the probation area in which the person resides as soon as practicable, and not later than 72 hours, after commencement of the community preventive supervision measure; b. report to a probation officer as and when required to do so by a probation officer and notify the probation officer of their residential address and the nature and place of their employment when asked to do so; c. obtain the prior written consent of a probation officer before moving to a new residential address; d. report in person to a probation officer in the new probation area in which the person is to reside as soon as practicable, and not later than 72 hours, after the person’s arrival in the new area if the person is moving to a new probation area; e. not reside at any address at which a probation officer has, in writing, directed the person not to reside; f. not leave or attempt to leave Aotearoa New Zealand without the prior written consent of a probation officer; g. if a probation officer directs in writing, allow the collection of biometric information; h. obtain the prior written consent of a probation officer before changing their employment; i. not engage, or continue to engage, in any employment or occupation in which the probation officer has, in writing, directed the person not to engage or continue to engage; j. not associate with, or contact, a victim of their offending without the prior written approval of a probation officer; and k. not associate with, or contact, any specified person, or with people of any specified class, whom the probation officer has, in writing, directed the person not to associate with or contact unless the probation officer has defined conditions under which association or contact is permissible.
R78 The new Act should provide that the kinds of special conditions that te Kōti-ā-Rohe | District Court may impose under R76 include, without limitation, conditions: a. to reside at a particular place; b. to be at the place of residence for up to eight hours in a 24-hour period; c. not to use a controlled drug or a psychoactive substance and/or consume alcohol; d. not to associate with any person, persons or class of persons; e. to take prescription medication; f. not to enter, or remain in, specified places or areas at specified times or at all times; g. not to associate with, or contact, a person under the age of 16 except with the prior written approval of a probation officer and in the presence and under the supervision of an adult who has been informed about the relevant offending and has been approved in writing by a probation officer as suitable to undertake the role of supervision; h. to submit to the electronic monitoring of compliance with any conditions that relate to the whereabouts of the person; and i. not to use any electronic device capable of accessing the internet without supervision.
R79 The new Act should provide that a person subject to community preventive supervision must not be made subject to a special condition that requires them to take prescription medication unless the person: a. has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and b. consents to taking the prescription medication.
R80 The new Act should provide that a person subject to community preventive supervision does not breach their conditions if they withdraw consent to taking prescription medication.
R81 The new Act should provide that the following conditions must not be imposed as part of community preventive supervision: a. Any kind of detention. b. An intensive monitoring condition (in-person, line-of-sight monitoring).
R82 Special conditions should, by default, be imposed for as long as the preventive measure is in place. Te Kōti-ā-Rohe | District Court, should, however, have the power to specify a shorter period for individual special conditions where it would otherwise not be the least restrictive measure.
R83 Probation officers should be responsible for monitoring people’s compliance with conditions of community preventive supervision.
R84 The new Act should state that the rights of people subject to community preventive supervision are only limited by standard and special conditions imposed on them in accordance with the new Act.
R85 The new Act should clarify that the following rights (minimum entitlements) of a person subject to community preventive supervision may not be limited by a probation officer: a. Every person subject to community preventive supervision is entitled to be informed about conditions, instructions, entitlements, obligations and decisions that affect them. The information must be provided in a way that ensures that the person understands its nature and effect. b. Every person subject to community preventive supervision is entitled to be dealt with in a respectful manner, having regard to the person’s cultural and ethnic identity, language, and religious or ethical beliefs. c. Every person subject to community preventive supervision is entitled to make complaints about the probation officer responsible for managing their conditions to an inspector appointed in accordance with the new Act.
Residential preventive supervision (Chapter 15)
R86 Residential preventive supervision should comprise standard conditions and any additional special conditions imposed by te Kōti Matua | High Court.
R87 When te Kōti Matua | High Court imposes residential preventive supervision, the following standard conditions should automatically apply. The person subject to residential preventive supervision (the resident) must: a. reside at the residential facility specified by the court; b. stay at that facility at all times unless leave is permitted by the facility manager; c. be subject to electronic monitoring for ensuring compliance with other standard or special conditions unless the facility manager directs otherwise in writing; d. be subject to in-person, line-of-sight monitoring during outings unless the facility manager directs otherwise in writing; e. not have in their possession any prohibited items (as currently defined in section 3 of the Public Safety (Public Protection Orders) Act 2014; f. submit to rub-down searches or searches of their room (in accordance with sections 89 and 93–96 of the Corrections Act 2004) for the purpose of detecting a prohibited item if the facility manager has reasonable grounds to believe that the resident has in their possession a prohibited item; g. hand over any prohibited items discovered in their possession; h. not associate with, or contact, a victim of the resident’s offending without the prior written approval of the facility manager; and i. not associate with, or contact, any specified person, or people of any specified class, whom the facility manager has, in writing, directed the resident not to associate with or contact unless the facility manager has defined conditions under which association or contact is permissible.
R88 The new Act should provide that the kinds of special conditions that te Kōti Matua | High Court may impose under R86 include, without limitation, conditions: a. not to use a controlled drug or a psychoactive substance and/or consume alcohol; b. not to associate with any person, persons or class of persons; c. to take prescription medication; d. not to enter, or remain in, specified places or areas at specified times or at all times; e. not to associate with, or contact, a person under the age of 16 except with the prior written approval of a facility manager and in the presence and under the supervision of an adult who has been informed about the relevant offending and has been approved in writing by a facility manager as suitable to undertake the role of supervision; and f. not to use any electronic device capable of accessing the internet without supervision.
R89 The new Act should provide that the resident may not be made subject to a special condition that requires them to take prescription medication unless the resident: a. has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and b. consents to taking the prescription medication.
R90 The new Act should provide that the resident does not breach their conditions if they withdraw consent to taking prescription medication.
R91 The new Act should set out a procedure for the responsible Minister to designate a residential facility by New Zealand Gazette notice.
R92 The new Act should provide that rooms or units at a residential facility should be materially different from prison cells and provide each resident with privacy and a reasonable level of comfort.
R93 The chief executive of Ara Poutama Aotearoa | Department of Corrections should have legal custody of the residents.
R94 The facility manager should be entrusted with the residents’ care and be responsible for the day-to-day operation of the facility.
R95 The manager of a residential facility should be able to delegate any of their powers under standard or special conditions to suitably qualified staff.
R96 The new Act should state that residents’ rights are only limited by standard and special conditions imposed on them in accordance with the new Act. The new Act should provide for a non-exhaustive list of residents’ rights as set out in Appendix 2 of this Report.
R97 The new Act should clarify that certain rights of residents (minimum entitlements) set out in Appendix 2 of this Report may not be limited by standard and special conditions imposed on them unless the security of the facility or the health or safety of a person is threatened.
Secure preventive detention (Chapter 16)
R98 The new Act should require that people subject to secure preventive detention (detainees) are detained in a secure facility and must not leave the facility without the permission of the facility manager.
R99 Detainees should be in the custody of the chief executive of Ara Poutama Aotearoa | Department of Corrections.
R100 The new Act should provide that secure facilities must conform to the following design features: a. Secure facilities must be separate from prison. b. Secure facilities must have rooms or separate, self-contained units where people subject to secure preventive detention reside. The rooms or units should be materially different from prison cells and provide the detainee with privacy and a reasonable level of comfort.
R101 The new Act should set out a procedure for the responsible Minister to designate a secure facility by New Zealand Gazette notice.
R102 To ensure the safety of the community or the orderly functioning and safety of a secure facility, the manager of the facility should have powers to: a. check and withhold certain written communications; b. inspect delivered items; c. monitor and restrict mail, phone calls and internet use; d. restrict contact with certain people outside a facility; e. conduct searches in accordance with Subpart 4 of Part 2 of the Corrections Act 2004 for the purpose of detecting a prohibited item (as currently defined in section 3 of the Public Safety (Public Protection Orders) Act 2014); f. inspect and take prohibited items; g. carry out drug or alcohol tests; h. seclude detainees; i. restrain detainees; j. take all reasonable steps to return an escaped detainee to custody, including calling for assistance from Ngā Pirihimana Aotearoa | New Zealand Police; and k. call on corrections officers to use physical force in a security emergency.
R103 The manager of a secure facility should have the power to make appropriate rules for the management of the facility and for the conduct and safe custody of the detainees if authorised to do so by the chief executive of Ara Poutama Aotearoa | Department of Corrections.
R104 The manager of a secure facility may delegate any of their powers, except the powers to make rules and to delegate, to suitably qualified staff.
R105 The new Act should provide for a procedure for obtaining a warrant from a judge or, if unavailable, a registrar, and an empowering provision for Ngā Pirihimana Aotearoa | New Zealand Police to arrest an escapee without warrant where it is not reasonably practical to obtain one.
R106 The new Act should state that detainees’ rights are only limited by provisions of the new Act. The new Act should provide for a non-exhaustive list of rights of detainees as set out in Appendix 2 of this Report.
R107 The new Act should clarify that certain rights of detainees (minimum entitlements) set out in Appendix 2 of this Report may not be limited unless the security of the facility, or the health or safety of a person, is threatened.
Non-compliance and escalation (Chapter 17)
R108 The new Act should provide that a person subject to a preventive measure who breaches any conditions of that measure without reasonable excuse commits an offence and is liable on conviction to imprisonment for a term not exceeding one year or to a fine not exceeding $2,000.
R109 For a person subject to community preventive supervision or residential preventive supervision, te Kōti Matua | High Court should have power to order that the preventive measure to which they are subject be terminated and a more restrictive type of preventive measure be imposed if: a. the person would, if they were to remain subject to the current preventive measure, pose such an unacceptably high risk to the community, themselves or others that they cannot be safely managed under that preventive measure; and b. less restrictive options for managing the behaviour of the person have been considered to a reasonable extent and any appropriate options have been tried.
R110 The chief executive of Ara Poutama Aotearoa | Department of Corrections should be responsible for applying to the court for an order for a more restrictive type of preventive measure. The chief executive should file two health assessor reports to accompany the application.
R111 Te Kōti Matua | High Court should have power to order that a person subject to secure preventive detention be detained in prison (a prison detention order) if: a. the person would, if they were to remain subject to secure preventive detention, pose such an unacceptably high risk to the community, themselves or others that they cannot be safely managed on secure preventive detention; and b. less restrictive options for managing the behaviour of the person have been considered to a reasonable extent and any appropriate options have been tried.
R112 The chief executive of Ara Poutama Aotearoa | Department of Corrections should be responsible for applying to the Court for a prison detention order. The chief executive should file two health assessor reports to accompany the application.
R113 The new Act should provide that people imprisoned subject to prison detention orders, to the extent possible, have the same rights as they would enjoy if detained in a secure facility.
R114 Prison detention orders should remain in force until terminated by te Kōti Matua | High Court.
R115 The new Act should provide for the following review procedure for prison detention orders: a. The same legislative test for imposing a prison detention order should apply for reviews of the order. b. Te Kōti Matua | High Court should review a prison detention order annually upon application by the chief executive of Ara Poutama Aotearoa | Department of Corrections (chief executive). c. A prison detention order should be reviewed by the Review Authority every six months or, if there is an application for a court review pending, within six months after te Kōti Matua | High Court has determined the last application for review. d. The chief executive and, with leave of the court, a person subject to a prison detention order should be able to apply to te Kōti Matua | High Court for the termination of a prison detention order.
Duration and review of preventive measures (Chapter 18)
R116 A preventive measure should be imposed indeterminately and remain in force until terminated by a court.
R117 A preventive measure to which a person is subject should be suspended while that person is either subject to a determinate sentence of imprisonment or on remand in custody.
R118 In the case of a prisoner serving a sentence of imprisonment, a preventive measure should reactivate at the person’s sentence expiry date or the date when the individual ceases to be subject to any release conditions, whichever is later. In the case of a prisoner on remand, the preventive measure should reactivate when the individual is released from custody.
R119 If the person subject to a suspended preventive measure has been released on parole at the time of reactivation of the preventive measure, the Review Authority (R131–R141) should review the preventive measure as soon as is reasonably practical. The Review Authority should determine whether it should make the measure less restrictive or whether the relevant court should consider terminating the measure (R136).
R120 A preventive measure to which a person is subject should terminate if a sentence of life imprisonment is imposed on that person. R121 A preventive measure to which a person is subject should continue in force while that person is serving a community-based sentence or a sentence of home detention.
R122 A preventive measure to which a person is subject should be suspended while an interim preventive measure is in force in relation to that person. If the court declines the application for the new preventive measure to which the interim measure relates, the suspended preventive measure should reactivate. If the court grants the application for the new substantive preventive measure, the suspended preventive measure should terminate.
R123 The chief executive of Ara Poutama Aotearoa | Department of Corrections should apply to the court for a review of a preventive measure no later than three years after it was imposed. For subsequent reviews, the chief executive should apply for a review of the preventive measure no later than three years after the court has finally determined the previous application for review (including any appeals). Any time spent while the preventive measure is suspended should not be included in the calculation of the three-year period.
R124 Applications for a review of community preventive supervision should be made to te Kōti-ā-Rohe | District Court. Applications for the review of residential preventive supervision or secure preventive detention should be made to te Kōti Matua | High Court.
R125 To accompany an application, the chief executive of Ara Poutama Aotearoa | Department of Corrections should submit at least: a. one health assessor report for the review of community preventive supervision or two health assessor reports for the review of residential preventive supervision and secure preventive detention; b. the person’s current treatment and supervision plan and a progress report from the facility manager (in the case of residential preventive supervision or secure preventive detention) or the probation officer (in the case of community preventive supervision); and c. the decisions of the Review Authority since the last court review.
R126 The court should have the power to direct, on its own initiative, that additional health assessor reports be provided. The person subject to the preventive measure under review should be able to submit additional health assessor reports prepared by health assessors they have engaged.
R127 The health assessor reports should address whether: a. the eligible person is at high risk of committing a further qualifying offence in the next three years if the person does not remain subject to the preventive measure; and b. having regard to the nature and extent of that risk, the preventive measure is the least restrictive measure adequate to address that risk.
R128 When determining an application for review of a preventive measure, the court should review the ongoing justification for the measure by applying the same legislative tests that are used for imposing preventive measures (R25).
R129 The court should determine an application for the review of a preventive measure by: a. confirming the preventive measure and, if applicable, its conditions; b. confirming the preventive measure but varying the special conditions of the preventive measure (in the case of community preventive supervision or residential preventive supervision) to make them less restrictive; c. terminating the preventive measure and imposing a less restrictive measure; or d. terminating the preventive measure without replacement.
R130 If the court confirms the preventive measure, it should review the person’s treatment and supervision plan. It should have the power (but not be required) to do so if it orders the imposition of a less restrictive measure. The court should have the power to make recommendations to the person responsible for developing and administering the plan.
R131 To provide additional reviews of preventive measures alongside court reviews, the new Act should provide for the establishment of a Review Authority as an independent statutory entity.
R132 The Review Authority should operate in panels of three to four members, one of whom must be a panel convenor or the chairperson. A decision by a panel acting within its jurisdiction should be a decision of the Review Authority.
R133 The Review Authority should have the following membership. It should: a. be chaired by a judge or former judge; b. include other judges or former judges or experienced barristers and solicitors as members and panel convenors; c. include psychiatrists and clinical psychologists as members; d. include members with Parole Board experience and have at least one member who is also a current member of the Parole Board; and e. include members with expertise in mātauranga Māori (including tikanga Māori).
R134 The Review Authority should review a preventive measure annually except in the years during which an application for a court review of a preventive measure is pending.
R135 The Review Authority should review the ongoing justification for a preventive measure by applying the same legislative tests that are used for imposing preventive measures (R25).
R136 The Review Authority should conclude a review of a preventive measure by issuing a decision: a. confirming the ongoing justification for the preventive measure and, if applicable, its conditions; b. in the case of community preventive supervision or residential preventive supervision, confirming the ongoing justification for the preventive measure but varying the special conditions to make them less restrictive; or c. if it considers the preventive measure may no longer be justified, directing the chief executive of Ara Poutama Aotearoa | Department of Corrections to apply to the relevant court for a court review of the preventive measure.
R137 If the Review Authority confirms a preventive measure, it should be required to review the person’s treatment and supervision plan. The Review Authority should have the power to make recommendations to the person responsible for developing and administering the plan.
R138 The Review Authority should be able to regulate its own procedure. Review Authority hearings should be run in the manner of an inquiry and in an atmosphere that encourages people appearing before it to speak for themselves and as freely and frankly as possible. R139 The Review Authority should have the power to decide whether a hearing held by the Review Authority should be open or closed to the public.
R140 The Review Authority should have the power to request information relevant to the review from the people responsible for the administration of a preventive measure.
R141 The person subject to a preventive measure under review should be able to appear and make oral submissions to the Review Authority. They should be able to be represented by a lawyer.
R142 The chief executive of Ara Poutama Aotearoa | Department of Corrections and the person subject to a preventive measure should be able to apply to the court to terminate the measure without replacement or to terminate the measure and replace it with a less restrictive measure. An application concerning community preventive supervision should be submitted to te Kōti-ā-Rohe | District Court. An application concerning residential preventive supervision or secure preventive detention should be submitted to te Kōti Matua | High Court.
R143 When determining an application to terminate a preventive measure, the court should review the ongoing justification for the measure by applying the same legislative tests that are used for imposing preventive measures (R25).
R144 If, following an application to terminate a measure without replacement, te Kōti Matua | High Court is not satisfied the measure should be terminated without replacement but is satisfied the measure should be terminated and replaced with a less restrictive measure instead, it should have the power to do so in the same proceedings.
R145 If the court declines to order the termination of a measure following an application to terminate by the person subject to the measure, the court should be able at the same time, and on its own initiative or on application by the chief executive of Ara Poutama Aotearoa | Department of Corrections, to order that the person subject to the measure not be permitted to apply for termination of the measure for a specified period of not more than two years.
R146 The chief executive of Ara Poutama Aotearoa | Department of Corrections and the person subject to community preventive supervision or residential preventive supervision should be able to apply to the Review Authority to vary the special conditions of community preventive supervision or residential preventive supervision.
R147 The chief executive of Ara Poutama Aotearoa | Department of Corrections and the person subject to residential preventive supervision should be able to apply to the Review Authority to change the specific residential facility where the person subject to residential preventive supervision must stay.
R148 The chief executive of Ara Poutama Aotearoa | Department of Corrections and the person subject to a preventive measure should have a right to appeal to the relevant court (te Kōti-ā-Rohe | District Court for community preventive supervision or te Kōti Matua | High Court for residential preventive supervision) against a decision by the Review Authority to vary special conditions.
Transitional provisions (Chapter 19)
R149 Ara Poutama Aotearoa | Department of Corrections should consider the appropriate transitional arrangements to bring the new Act into effect.
