Criminal Cases Review Commission Bill - Submission to the Justice Committee [2019] NZHRCSub 1 (14 March 2019)

Last Updated: 15 June 2019

Criminal Cases Review

Commission Bill

January 2019

Contact Person:

1

Jaimee Paenga Legal Officer [e-mail]

Introduction

1. The Human Rights Commission welcomes the opportunity to provide the Justice Committee (“the Committee”) with a submission on the Criminal Cases Review Commission Bill (“the Bill”).
2. The Human Rights Commission supports the Bill in principle and welcomes efforts to strengthen mechanisms to identify and remedy miscarriages of justice, through the creation of an

independent Criminal Cases Review Commission (“the Review Commission”).

3. Our submission suggests amendments to maximise the opportunities the Bill can provide to address inequalities in the justice system, including the over-representation of Māori, disabled people, people with a neurodisability and tangata whaiora (people with experience of mental illness).

Human rights approach – promoting equality

4. The Human Rights Commission encourages the Government to approach legislative development from a human rights perspective.
5. In terms of the right to equality, a human rights approach means preventing unfair discrimination, while allowing positive measures to ensure equality for disadvantaged people.
6. The Human Rights Commission recognises that one of the drivers of this legislation is the over- representation of Māori in prison in contrast with low rates of applications for exercise of the Royal Prerogative of Mercy by Māori.¹
7. The Human Rights Commission agrees that this is a significant issue and supports the establishment of the Review Commission.
8. The New Zealand Government has accepted a number of relevant international recommendations made by United Nations treaty bodies and the UN Human Rights Council. ² These include recommendations to:
   1. Establish appropriate national strategies with the aim to identify and address structural discrimination in the justice system,³
   2. Enhance efforts in fighting discrimination and institutional biases against Māori and Pacific

people,⁴

100. Continue its search for creative and integrated solutions to the root causes that lead to disproportionate incarceration rates of the Māori population,⁵

4. Address the root causes leading to disproportionate incarceration rates of Māori and increase the representation of Māori, Pasifika, and other minority groups as decision makers in the criminal justice system.⁶

¹ Hansard, First Reading of the Criminal Case Review Bill, Hon Andrew Little, 16 October 2018.

² Recommendations made to New Zealand at the last UN Universal Periodic Review of New Zealand’s human rights record and supported by the New Zealand government. See New Zealand’s National Plan of Action for human rights: https://npa.hrc.co.nz/. See also https://www.upr- info.org/database/.

³ Recommendation 133.

⁴ Recommendation 77.

⁵ Recommendation 82.

⁶ Recommendation at paragraph 25 of the UN Committee on the Elimination of Racial Discrimination’s Concluding Observations after its last review of New Zealand: CERD/C/NZL/CO/21-22.

Criminal justice

24. Despite welcome reductions, through commendable efforts, in Māori adult and youth offending in recent years, the Committee is concerned at the State party’s information that Māori remain overrepresented as offenders in rates of arrest, prosecution, conviction, imprisonment and re-imprisonment and as victims (arts. 2, 5 and 6).
25. In the light of these concerns, the Committee recommends that the State party strengthen its efforts to address the root causes leading

to disproportionate incarceration rates of Māori. It further recommends that the State party ensure that justice, social sector and care

9. The work of the Review Commission can assist the Government to address the above recommendations.
10. The Human Rights Commission recommends a number of amendments to the Bill to strengthen the Review Commission’s functions, duties and powers to better address structural discrimination in the criminal justice system.

Over-representation of Māori in the Criminal Justice System

11. Māori over-representation in New Zealand’s criminal justice system is well-known. While Māori represent 17% of the population, they represent 45% of all arrests by Police, 38% of all convictions and over 50% of the prison population.⁷
12. The Human Rights Commission notes the statistics provided by the Ministry of Justice⁸ regarding the low engagement of Māori with the Royal Prerogative of Mercy. We agree that the current status quo does not adequately encourage or cater to Māori.
13. Many of the statutory complaint systems that currently exist are difficult for Māori to access and therefore do not generate appropriate levels of complaints from Māori. It is important that this issue is acknowledged and properly addressed in the proposed legislation.
14. We suggest amendments to the Bill to improve the likelihood that the Review Commission will seek, attract, and identify appropriate cases for review, including those that may have a wider impact for Māori.
15. The Human Rights Commission also sees the Review Commission as providing an opportunity for symbolic and practical recognition of the Treaty partnership to ensure that issues being faced by Tangata Whenua are prioritised.
16. Recommendations:
    1. Include an additional section under Subpart 2 which recognises the over-representation

of Māori in the criminal justice system and a commitment to addressing this;

2. Include an additional section under Subpart 2 which recognises and provides a practical commitment to te Tiriti o Waitangi;

100. Include a specific requirement in Subpart 1 that at least one-third of the Commissioners on the Review Commission have an understanding of and commitment to tikanga and te Ao Māori;

4. Provide in Subpart 1 that specialist advisers with Māori cultural expertise may be appointed to assist the Review Commission.

Powers of the Commission to initiate thematic inquiries into the Criminal Justice System

17. The Human Rights Commission supports the inclusion of a power for the Review Commission to initiate its own inquiries into general matters in the public interest.⁹

and protection initiatives for Māori are connected, have transparent governance frameworks and are based on partnerships with and inclusion of Māori. The Committee also recommends that the State party take robust measures to increase the representation of Māori, Pasifika and other minority groups as decision makers, including as prosecutors and judges, at all levels of the criminal justice system.

⁷ Statistics NZ. Population data, ethnic group, Apprehensions; Dataset: Annual Apprehensions for the latest Calendar Years (ANZSOC), Convictions: dataset: Adults convicted in court by sentence type - all offence types. Imprisonment, Dataset: Adults convicted in court by sentence type - most serious offence in A review of Police and iwi/Maori relationships: working together to reduce offending and victimization among Maori.

⁸ Departmental Disclosure Statement – Criminal Cases Review Commission Bill, page 7, paragraph 3.2.

⁹ Clause 12.

18. As the current section reads, subclause (1) suggests that the Review Commission can only initiate inquiries into general matters in the course of reviewing a conviction or sentence.
19. The Human Rights Commission would support re-wording this clause to allow the Review Commission to initiate its own inquiries, at any time, regardless of whether a conviction or sentence is specifically before it or not.
20. Recommendation:
    5. Amend clause 12 of the Bill to allow the Review Commission to initiate inquiries into general matters concerning the criminal justice system that have arisen during the course of the Commission’s work regardless of whether there is a review of conviction or sentence before it.

Over-representation of marginalised populations in the Criminal Justice System

21. The Human Rights Commission supports measures to address any disproportionate representation of marginalised populations within the criminal justice system.
22. The Human Rights Commission would support further commitments within the Bill in respect of all marginalised populations; particularly Māori women, disabled people, people with a neurodisability and tangata whaiora.
23. The Human Rights Commission would also support measures in the Bill’s implementation to ensure that these marginalised populations are properly represented within the Review Commission’s work.
24. Recommendations:
    6. Include a requirement in the legislation that the Review Commission’s work addresses any disproportionality of marginalised populations in the criminal justice system;
    7. Provide in Subpart 1 that specialist advisers with expertise working with people with diverse experiences may be appointed to assist the Review Commission.
    8. Include a requirement that the Review Commission report annually on applications received and inquiries initiated with particular reference to marginalised populations who are disproportionately represented in the criminal justice system.

Conclusion

25. The Human Rights Commission supports this Bill and the implementation of a Review Commission.
26. This submission suggests measures to maximise the effectiveness of the Review Commission in relation to Māori and marginalised groups currently over-represented in the justice system and under-represented in applications for exercise of the Royal Prerogative of Mercy.
27. The Human Rights Commission wishes to appear before the Committee to speak to this submission and is also happy to provide any further information on the matters we have raised here.