Does the Government really believe Labour (plus Greens and TPM) won’t repeal the watered-down Three Strikes?

This week, the Government will attempt to ram through Parliament the remaining stages of the seriously watered-down Three Strikes law.  

Whether that succeeds is unclear.

Justice Minister Paul Goldsmith and Associate Justice Minister Nicole McKee have been running the line that they want a Three Strikes law that Labour won’t repeal – to justify watering it down so heavily that barely 30% of former Third Strikers would qualify under the reinstated law.

Poor argument for a start.  Governments should always pass the most effective law they can unless there is clear evidence of long-term bipartisanship.

Regardless, this argument is fallacious.  Labour have always been fundamentally opposed to Three Strikes or any kind of mandatory sentencing regime.  They are consistent and principled on this – even though most of us would disagree.

But no credible Labour-led Government is possible without the support of both Greens and TPM.  And the chances of them wanting to retain Three Strikes in any form is near zero.  Apparently Three Strikes is a breach of The Treaty of Waitangi also…go figure

Here is the Labour Party’s minority view of the Sentencing (Reinstating Three Strikes) Amendment Bill as reported by the Justice Select Committee.  Does this sound like a party satisfied that Three Strikes has been watered down enough?

The Labour Party does not support this bill.

Most fundamentally there is no evidential foundation that a “three strikes” sentencing regime reduces crime and victimisations. It is clear that this is another example of the Government implementing harmful policies on the basis of coalition promises to the ACT Party rather than being committed to evidence-based justice policies. No evidence showing that the bill would work as intended was presented to the committee.

In contrast:

• The bill’s Regulatory Impact Statement (RIS) provided: “the Ministry of Justice prefers the status quo rather than a new three strikes regime due to: lack of evidence that the proposal would be effective at addressing repeated serious violent offending or sustainably improving public confidence in the justice system, risk of unintended consequences which have been observed in such systems internationally and in New Zealand’s own experience with the former regime, known downsides such as cost and issues with consistency of legal obligations, including under the Treaty of Waitangi, the current sentencing system already has the capability to respond to serious repeat offending, and disproportionate impact of a three strikes regime on population groups, particularly disproportionately harmful impacts on Māori”.

• The Children’s Commissioner opposed the bill and stated: “We are deeply concerned about the significantly inequitable and detrimental impacts that this Bill will highly likely have on whānau Māori, and therefore mokopuna Māori and their rights, interests and wellbeing, should it pass into law. The negative intergenerational impacts for Māori that this Bill will very likely perpetuate must not be underestimated – this Bill passing into law, would be, in our view, inconsistent with an intergenerational approach of upholding the promise of Te Tiriti o Waitangi”.

• The New Zealand Bar Association opposed the bill and stated “The Bar Association opposes the re-instatement of the Three Strikes regime, which limits judicial discretion and cuts against a key principle of sentencing — that each offender is dealt with in accordance with his or her individual circumstances”.

• The New Zealand Law Society opposed the bill and stated “there is inadequate evidence to suggest that a three strikes sentencing regime provides general deterrence or increases public confidence in the criminal justice system. It is not likely to achieve its purposes”.

• The Pacific Lawyers Association opposed the bill and stated “the Bill’s purpose and principles are manifestly unjust and create perverse outcomes for Pasifika and Māori communities. The PLA firmly believes in maintaining the status quo as existing legislation effectively addresses the need to denounce and deter offender conduct”.

• The Human Rights Commission opposed the bill and stated “The Bill is contrary to the [UN Committee Against Torture’s] recommendations. Reintroduction of the three strikes regime is likely to be viewed as regressive on the inter‐national human rights stage, and receive negative comment from such Committees and member states”.

• Te Hunga Rōia Māori o Aotearoa / The Māori Law Society opposed the bill and stated “The Bill represents a significant breach of Te Tiriti o Waitangi and its principles. The Bill in its current form is also highly unlikely to meet its stated purposes, and it is proceeding despite a lack of evidence that the three strikes regime will deter serious crime”.

• The Law Association opposed the bill and stated “the Three Strikes Legislation poses significant concerns for the legal community, the judiciary, and the broader societal fabric. The past repeal of this law was based on sound evidence and careful consideration of its impacts, including the ineffectiveness in reducing serious offending, the undue restriction on judicial discretion, the disproportionate impact on Māori communities, and its conflict with the Bill of Rights Act”.

This is only a small selection of the many thoughtful and evidence-informed submissions which opposed the bill. Of the submitters who came from law societies, human rights groups (including Crown agencies), and Māori organisations, none supported the bill.

We are also deeply concerned with the process by which this bill was passed. This select committee was given a truncated period to hear submissions on it. Further, after submissions had closed the Minister interfered with the select committee process by directing the committee to make changes to the bill. This interference by the Executive into a parliamentary process is contrary to the comity that is expected between branches of government and makes a mockery of a collaborative and constructive select committee process. It was particularly offensive that the Minister saw fit to publicly announce the direction to the select committee before the committee had the opportunity to discuss the changes.

The bill is not consistent with the Crown’s obligations under the Treaty of Waitangi.

The Regulatory Impact Statement itself recognises this when it states in respect of the bill:

[T]he disproportionate impact on Māori would result in divergent effective rights. In general, Māori offenders will be more likely to be sentenced in a disproportionate manner than non-Māori. This is likely to erode trust and confidence in the justice system, especially, but not exclusively, among Māori.

Under the current criminal justice settings, Māori are still disproportionately represented. It could therefore be argued that the Crown has failed to recognise its obligations to protect the rights and privileges of Māori, thus potentially being inconsistent with the Crown’s obligations of Article Three of the Treaty.

This Government does not appear to be interested in meeting its obligation to Māori under the Treaty.

The fact that the changes demanded by the Minister increase the severity of the bill and make it retrospective exacerbate this gross breach of good procedure. These are significant changes that were inserted by the Minister after the opportunity for the public to make submissions meaning that there was zero genuinely public input into critical parts of this bill.

The Minister claimed that the reason for the change was that: “We’ve heard from many people, especially through emails to my office, which has stated that this [the new regime] has not gone far enough…”.

 An Official Information Act request reveals there were in fact three emails addressed to the Minister which raised the issue.

This is reflective of the unprincipled approach to policy making that this Government has in the justice sector.

This bill differs from its predecessor in issuing a “strike” only where there is a “qualifying sentence” of one year for a first strike or two years for a second strike. While we agree that issuing a strike offence for minor offending is inappropriate, the fact is that having a bright line sentence will lead to perverse outcomes. There is a direction in the bill that judges should not sentence with the three strikes regime in mind. In fact it is impossible for judges (and prosecutors) to not be aware of the consequences of a particular sentence and while they may state that it is not a relevant consideration in decision making, it will inevitably be part of the background against which decisions are made.

The bill will require that a person sentenced to a second-strike offence will serve the entire sentence without parole. Parole is an important part of the justice and corrections system. It provides a meaningful incentive for prisoners to embark on rehabilitative programmes and cooperate within the corrections system. To remove parole in some circumstances creates an inconsistency within the system which will make it less effective overall.

The bill requires that a person convicted of a third strike will serve the maximum sentence for the offence without parole. The current law requires that a maximum sentence is reserved for those cases where “if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate”(section 8 Sentencing Act 2002). This reflects the fundamental principle that sentencing should be proportionate to the sentence. The bill cuts across this and will inevitably (and intentionally) lead to sentences that are disproportionate.

The bill provides a limited discretion where its provisions would create a manifest injustice. While this is an improvement on its predecessor, it is difficult to comprehend how the imposition of an intentionally disproportionate sentence is not manifestly unjust in any case where it is substantially greater than would be imposed under the normal and established sentencing rules. The incoherence of this position is highlighted in clause 86T(3)(b) which states that a sentence is not to be considered manifestly unjust merely because it is disproportionate—unless it is grossly so.

This is an intentional contravention of the right to be free from disproportionately severe punishment. Section 9 of the New Zealand Bill of Rights Act 1990 provides

“Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.” The Minister of Justice has shown his cavalier attitude to human rights in relation to three strikes legislation when he stated “she’s talked about the distorting effect of this Act, that it leads to disproportionate sentences. Well, hold the phone, people. That is the exact point of the legislation”. That is more than disappointing.

In introducing this bill the Minister said “We are ensuring the new three-strikes regime is not retrospective. Strikes from the previous regime will not be carried across into this new regime. This is important because we are making changes to what was in place before”.

She changed her mind—the Minister did a U-turn on this matter halfway through the select committee process and the regime will now be retrospective. The retrospectivity of this bill is an affront to constitutional principle. The New Zealand Bill of Rights Act provides that every person has: “the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty”.

Before this bill is passed there are no people in New Zealand who have active “strikes”. After this bill is passed there will be many people with one or two strikes. This means that the possible penalties for offences will be retrospectively increased.

What is more, there is no intention on the part of the Government to inform people who currently believe that they have no strikes that this will change. One of the underlying objectives of the bill is to deter offenders from reoffending by warning them of the increased consequences due to them having a first or second strike. It is fundamentally inconsistent with the deterrence model which underpins the bill to revive strikes from many years ago without informing the people who were subject to those strikes of the potential for increased sentences due to the reactivation.

Because the threshold for a strike is different under the bill from the old legislation it will be necessary for someone to review all records of earlier strikes and determine whether they meet the threshold for a strike under the existing legislation. We are not confident that this will be done consistently, effectively, or in a timely manner.

There are numerous operational challenges with this legislation. For example, the nonsensical situation created by clause 86KA whereby a person who has a first strike and is convicted of a strikable offence and sentenced to between 12 months and 24 months is to be given a “second first warning” to cover off the possibility that “first first warning” is rendered ineffective due to a successful appeal.

The court which issues a strike is required to provide an explanation of its effect in writing to the sentenced offender. However, the bill provides that if the explanation is not provided in writing (but only orally in court) the strike still stands—which in effect means that the “obligation” to provide an explanation is illusory. Given the importance of the explanation in informing the offender (and if the law is to be effective, deterring the offender) this free pass where there is no written explanation given is deeply concerning.

The bill recognises that there will be instances where a court overlooks the need to give a warning. In such a case the bill in clause 86M gives the court an indefinite right to recall the offender to administer the warning—including a power to arrest. We consider that such an indefinite right is not appropriate.

In conclusion, this bill will not have the effect of reducing crime and victims, it is in breach of the Crown’s obligations under the Treaty of Waitangi, it breaches constitutional principles against retrospectivity in criminal law, it is in breach of the New Zealand Bill of Rights guarantee of freedom from unjust and disproportionate punishment, and it is operationally unworkable.

So it is very very clear Labour, Greens and TPM will repeal this law if they can. The best way to stop them isn’t to have it watered down, but to have it effective.