Parliament has passed public protection orders. But will they really be a last resort to contain the most dangerous? Or a means to pursue a more vindictive agenda? 

There’s no point moaning about it now. The Public Safety (Public Protection Orders) Bill has passed its final reading, with a resounding majority of 107:14.

This was always on the cards, but recent events probably sealed the deal. With the horrific crimes of Philip Smith and Trevor Hall still so fresh in mind, and the echoes of l'affair Stewart Murray Wilson not far in the background, it would have taken a brave politician to be seen even considering releasing notorious sex offenders back into the community. (Due credit to the Greens for having the courage of their convictions in this regard.)

We can probably expect it will prove popular with wider New Zealand society too. Who, after all, is likely to lose any sleep over the human rights of paedophiles and predators, when we or our children might be in danger?

As it happens (and as you probably guessed), I think there are reasons for concern. In the good old days, when more than a day or two was allowed for Select Committee submissions – or, to use the technical term, “chit-chat” - I was part of a team  (with a certain A. Geddis) which co-authored one such submission. We identified a whole bunch of problems – procedural, practical and principled – about the Bill. Some of these were, to an extent, addressed by the Select Committee, though some of the real biggies remained.

How can I explain away, something that I haven't done?

So what’s all the fuss about? The new law will introduce Public Protection Orders. PPOs will allow “dangerous” sexual or violent offenders who have reached the end of their prison sentence to be locked up again, possibly forever. This won’t be as punishment for the crimes they’ve committed – they’ll already have served their full sentence for those – but "civil" detention, on the basis of predictions about what we think they might do in future. You don’t need to be a civil liberties fundamentalist to realise that’s a pretty big step for a society like ours to take. Indeed, Jacinda Adern, while supporting the Bill, conceded as much, saying that PPOs “extend well beyond where our justice system has gone before”.

But it’s a done deal now, so there’s little to be gained from going back over that old ground. More important is to think about the future; about how this law will be used. So with that in mind, here are a few matters to be kept in mind once the Bill is in effect.

1. Is detention really necessary?

Under both NZ and international law, “civil” detention is only permissible when less restrictive means have been shown to be inadequate. The government can't just lock people away without very good reason. With regard to PPOs, this means excluding any less restrictive risk-managing measures. There are, for instance, Extended Supervision Orders, the range and duration of which will be increased by the Parole Amendment Bill, also passed last week. If detention is to be justified, it will need to be explained to the High Court why that sort of measure isn’t adequate. The fact that detention is a bit cheaper or more convenient won’t cut it. 

2. Is the detainee really "very high risk"?

More precisely, do they really pose “a very high risk of imminent serious sexual or violent offending” (cl 5(a))? In the continued absence of precog psychics, predicting future dangerousness is a tricky business. Experts disagree, methodologies and even terminologies are contested. Faced with uncertainty, there could be a temptation to “err on the side of caution”, and detain anyone who just might be dangerous. 

Evidence from Australia, where they’ve had these sorts of things for a while, suggests there is a real danger of “mission creep”. Instead of a careful evaluation of every case on its merits, courts and officials are tempted to "play it safe", by locking up anyone who looks even vaguely risky. As one Queensland lawyer put it, these matters are clouded by “an underlying fear at all levels of the process that ‘I don’t want my signature on the one that gets released and…does something very nasty’”. 

If PPOs are justified at all, it’s only as a last resort, a “nuclear option” when everything else has been considered and rejected. We’re told these Orders will be a rare measure of last report, applying to only one or two people a year, but we’ll have to be vigilant to make sure they don’t become a more routine response to offenders who pose any risk. 

3. This is not about punishment.

Whatever we might feel about the offenders who will be the subject of PPOs - and these are far from loveable people - we have to remember that they have already served their sentences for the crimes they committed. The Bill is very explicit in stating that its purpose is public protection, not additional retrospective punishment. So why do I have the strong hunch that, before long, we’ll have some politician or columnist trying to make populist capital out of exposing the “hotel-like” conditions in which they are being kept?

We have to be clear about this: if the threat posed by these people can be managed by keeping them in hotels, then that’s exactly where they should be kept. Once more; this is not about further punishment, but confinement on the basis of possible future risk. As with mental health or quarantine conditions, these should be no more harsh or unpleasant than they absolutely need to be.

4. This isn't instead of rehabilitation and therapy.

New Zealand’s international legal obligations require that “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” This seems even more pressing in the context of prisoners who, in order to be subject to PPOs, must have “severe disturbance in behavioural functioning”, “limited self-regulatory capacity” and “poor interpersonal relationships or social isolation” (cl 13(2)).

Ah yes, I can almost hear Mr McVicar and his Sensible Sentencing Trustees gnashing their molars from here. Really, though, this is pretty basic stuff. If these people are impaired or disturbed to the extent that they can barely control themselves, and that is the basis for their detention, then we surely have an obligation to try to help them deal with those impairments. The idea that sex offenders, uniquely, are immune to rehabilitative efforts seems to be a myth borne of tv dramas rather than research. Indeed, there has been some excellent work carried out in New Zealand with precisely this cohort. 

Part of the political impetus for rehabilitation programmes derives from the knowledge that, some day, offenders will have to be released. But what if they don’t? What effect will it have on funding for programmes like Kia Marama if we have the alternative of just throwing away the proverbial key? Helping notorious offenders is likely to be a lot less popular than punishing them some more - even if that further punishment comes years or decades after their last offending. If it's possible to help overcome the disturbances and impairments that renders them risky, then that's what we, as society, have to do. 

For good or ill, PPOs are now part of New Zealand’s legal landscape. What remains to be seen is if their use will be confined to their stated intention: an exceptional response to high-level threats from a few unmanageable offenders, rather than a populist excuse for inflicting further punishment on those who’ve already served their time. Safety shouldn't be allowed to become just a "big disguise" for more vengeful sentiments. But it oh so easily could.

(For a more detailed discussion of preventive detention in New Zealand, see C Gavaghan, J Snelling and J McMillan, Better and Better and Better? A Legal and Ethical Analysis of Preventive Detention in New Zealand (November 2014)) 

 * With thanks to fellow Hüskers fan Andrew Geddis for remembering the highly appropriate line that I slightly mangled for my title - yes, he really does carry all this stuff around in his head.

Comments (7)

by Cushla McKinney on December 09, 2014
Cushla McKinney

Hi Colin,

Thankyou for raising these concerns, particularly the question of rehabilitation. This seems especially important given this is 'intended' to be protective rather than punitive. This would seem to be particularly important in situations where the longer a person is kept in confinement the less able they are to function (or want to function) outside it and presumably increase the risk of reoffending if the restrictions are eventually released which is not only a danger for to the public but ethically very concerning because by our very actions we are pushing their future in a negative direction.

by Kim Workman on December 12, 2014
Kim Workman

The UK government introduced a similar measure in 2005 called 'Imprisonment for Public Protection' (IPP).  By March 2011, there were more than 6,000 IPP prisoners, around 5% of the prison population. In New Zealand, Extended Supervision Orders (ESO's) were introduced in 2006.  There were 227 offenders on ESO's as at June 2014 - most experts consider that number is double what it should be.  More significantly, there is no evidence that these measures either reduce reoffending, or act as a deterrent.  Their incapacitating effect is notoriously subject to the low accuracy of risk assessment in relation to future offending. 

It seems to me that we hold a misconception of public protection, as being nothing more than a subjective feeling of security, and the government's role is to create such feelings in members of the public.  But is it justifiable to pursue policies aimed at increasing 'public confidence' ( a nebulous notion), when it is know that such policies are unlikely to have a significant effect on objective risk or protection?  This legislation represents a major shift from evidence-based policy to policy-based evidence.  Whatever happened to the 'What Works" agenda, actively promoted by Corrections in recent years? 

by Colin Gavaghan on December 16, 2014
Colin Gavaghan

Hi Cushla,

Thanks for that. I actually have various concerns about the relationship between the therapeutic and punitive agendas at play here. The law has decided these people are sufficiently sane and responsible to deserve punishment for their actions (a criminal conviction being a necessary but insufficient precondition for a PPO.) . But once that punishment is over, it will now treat them as being too out-of-control to go back into society; as Phil Goff put it last week in Parliament, the Bill is intended to apply to “individuals who had no ability to control their behavior”. If that’s really the case, then we need to be asking whether they were suitable candidates for criminal punishment in the first place.

We're talking Legal Theory 101 here. We blame and punish those who choose to do evil. Those who are incapable of choice are not to be blamed, but they can be detained for their own and other people’s safety. That’s why we have an insanity verdict, and a scheme of mental health law that allows the mentally disordered to be detained and treated, even against their will.

 What we don’t do – what we’ve never done before, anyway - is to treat someone as both blameworthy and incapable of choosing, with the result that we can first convict and imprison them, and then, once they’ve served their full sentence, lock them up for being out of control. The old question of “mad or bad?” has never been easy to answer, but Parliament seems to have answered it with a resounding “Either. Both. Whatever. Just don’t let them out.”

by Colin Gavaghan on December 16, 2014
Colin Gavaghan

Hi Kim,

Great to hear from you; I'm a big admirer of your work. IPPs got so badly out of hand in England that they have now been abolished. (We got used to successive Nu Labour Home Secretaries/Justice Ministers trying to out-macho one another, but David Blunkett really was on another planet.) I'm keen to look more closely at how ESOs have been implemented, so any further info you have on those would be mos gratefully received.

"It seems to me that we hold a misconception of public protection, as being nothing more than a subjective feeling of security, and the government's role is to create such feelings in members of the public."

You're probably familiar with Cass Sunstein's work on this, though my friend Bernadette McSherry has also done some great work on this phenomenon. It's certainly true that our actual exposure to physical risk seems to vary inversely with our fear of those very risks. There can have been few societies in human history in which people were at less danger from dangerous strangers than contemporary New Zealand. (The incidence of family violence is another matter.) Yet our collective demand for ever greater safety seems impossible to satisfy, manifesting itself - as you say - even as a demand to be safe from the fear of danger. And few of our political parties have the nerve to resist pandering to those fears and demands.

As Sunstein says: "If the public is fearful about a trivial risk, a deliberative democracy does not respond by reducing that risk. It uses its own institutions to dispel public fear that is, by hypothesis, without foundation." By that definition, there are few deliberative democracies around today.

by Cushla McKinney on December 16, 2014
Cushla McKinney

I know that the tragedy in Sydney is a little different, but the same concerns about excessive reaction to perceived risk as a result of events there and increased surveillance etc are likely to be played out here too. 

BTW, if you're interested in a bit of 'light' reading which touches on interesting issues about pre-emptive intervention, you might like "Goodhouse" by Peyton Marshall: genetic testing of all boys at birth and sequestration of those 'at risk' in educational institutions. Scarily plausible.

by Colin Gavaghan on December 17, 2014
Colin Gavaghan

Yeah, fair point. Tony Abbott's statement that "We need to also learn how we can ensure that this doesn’t happen again” is another example of the unrealistic promise/expectation that any government could eliminate all risk from our lives. Now it may, of course, transpire that mistakes were made in that case. But that's not an inference we can readily draw from the mere fact that Something Bad Happened.

It's also interesting, I think, that the risk agenda is focussed so much on exotic risks. There were 7x as many people killed on the roads of NZ last year than there were murder victims, but we aren't witnessing a whole raft of "preventive" laws being rushed through in anticipation of the inevitable holiday road toll. In fact, the very modest changes to the speed limit around this time of year (which really amounts to enforcing the existing law) are inevitably met with precisely the sort of hmming and hawing that is dismissed as so much liberal chit-chat in other contexts.


by Cushla McKinney on December 17, 2014
Cushla McKinney

Or any suggested alcohol law reform...


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