People Against Prisons Aotearoa

Abolitionist Demand 14: Repeal the Bail Amendment Act 2013 and instate a presumption of innocence.

This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

The practice of incarcerating people on parole, probation, or bail for violations that are not new criminal charges is an integral component of the Criminal Injustice System (CIS). Currently, people are often remanded or detained before their case goes to trial.[1] This practice implies an assumption of guilt by inflicting punishment on people before it has been proven that they have done what they are accused of.

There are, as of June 2016, 1,611 people being held in prisons without being convicted of any crime.[2] That makes up approximately 17% of the total prison population. The average time spent on remand in 2014/15 was 59 days,[3] which is a sufficient amount of time to lose one’s job, housing, and ability to fulfil other social and economic commitments.

According to the New Zealand Bill of Rights Act, a person is supposed to be presumed innocent until, if ever, proven guilty.[4] The detainment of people who have not been convicted of an offence directly contradicts this presumption. While remanding individuals in custody is often justified as being in the interest of public safety, a growing body of research indicates that remanding people increases rates of recidivism and proliferates a cycle of incarceration.[5] In other words, remand policies and practices contradict the Department of Corrections stated objectives to “rehabilitate”[6] and “reduce re-offending.”[7]

Recently, the fifth National Government has enacted punitive criminal justice reforms that have further eroded the rights of accused people and entrenched mass imprisonment in New Zealand. The Bail Amendment Act 2013 reverses the burden of proof in bail decisions for a number of offenses.[8] Whereas previously the prosecutor bore the burden of proof, or had to demonstrate that the defendant should not be released on bail, now the defendant charged with those offences must prove why they should be granted bail.[9] In addition, the Act removes the presumption of bail for 17-20 year olds who had previously served a sentence of imprisonment.[10] Since the introduction of the Act, the New Zealand prison population has skyrocketed, almost entirely due to an increase in the number of people being held on remand.[11] The Justice Department itself has recognised that the Act is partially responsible for this increase in remand numbers.[12]

Bail policies must be made in recognition of the rights of the accused and must uphold the presumption of innocence. The failure to do so has led to the unprecedented expansion in prison numbers and the exposure of more people to the violence of the CIS. The recent amendments fundamentally undermine the presumption of innocence. No Pride in Prisons demands the immediate repeal of the Bail Amendment Act and the introduction of the right for every accused offender to be granted bail without exception.

[1] Statistics New Zealand, “Annual Remand Prisoner Throughput for the Latest Fiscal Years,” Statistics New Zealand, 13 May 2016.http://nzdotstat.stats.govt.nz/wbos/Index.aspx?DataSetCode=TABLECODE7321.

[2] Department of Corrections, “Prison Facts and Statistics - June 2016,” Department of Corrections, 30 June 2016.http://www.corrections.govt.nz/resources/research_and_statistics/quarterly_prison_statistics/prison_stats_june_2016.html.

[3] Department of Corrections, Trends in the Offender Population 2014/15, (Wellington: Department of Corrections, 2015), 9.

[4]New Zealand Bill of Rights Act 1990 s 25.

[5] JustSpeak, “Submission to the Law and Order Select Committee on the Bail Amendment Bill,” JustSpeak, 28 June 2012. http://justspeak.org.nz/wp-content/uploads/2012/06/JustSpeak-Submission-Bail-Amendment-Bill.pdf.

[6] Department of Corrections, “Rehabilitation and Intervention,” Department of Corrections, 12 April 2016.http://www.corrections.govt.nz/working_with_offenders/community_sentences/employment_and_support_programmes/rehabilitation_and_treatment_programmes.html.

[7] Department of Corrections, “Frequently Asked Questions About Reducing Re-offending,” Department of Corrections, 6 May 2016.http://www.corrections.govt.nz/about_us/Our_vision_goal_and_priorities/reducing_re-offending/frequently_asked_questions_about_reducing_re-offending.html#Anchor%20two.

[8]Bail Amendment Act 2013 s 8.

[9]Bail Act 2000 s 10(4).

[10] Judith Collins, “Collins Delivers on Tougher Bail Laws,” Beehive, 28 August 2013. https://www.beehive.govt.nz/release/collins-delivers-tougher-bail-laws.

[11] Jimmy Ellingham, “New Zealand Prison Population Rising,” NZ Herald, 18 May 2016. http://m.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11640707.

[12] Ministry of Justice, Justice Sector Outlook: March 2016 quarter, (Wellington: Ministry of Justice, 2016), 1.

Abolitionist Demand 13: Increase funding for legal aid.

This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

Legal aid is a form of government funding for legal services for people who cannot afford a lawyer and is an essential resource for people who would otherwise be unable to access legal representation. According to legal adviser and JustSpeak spokesperson Di White, “court proceedings are incredibly complex, incredibly intimidating and, if you don’t have legal representation, you’re at a significant disadvantage.”[1]

However, the New Zealand legal aid system has been subject to significant funding cuts[2] over the past few years, with total funding decreasing from $157 million[3] in 2010 to $138 million in 2016,[4] or $125 million in inflation-adjusted terms. This significant reduction in funding has led to a reduction in the total number of people eligible for and receiving state-funded legal aid. Between 2010-2015, the total number of legal aid funding requests approved fell from 66,727 to 49,569, or a total reduction of 25.7%.[5]

There have been a number of other changes to legal aid that have undermined access to reliable legal advice for poor people. Most significantly, lawyers are now to be assigned on a rotational basis so that offenders facing less serious charges can no longer choose the lawyer they want.[6] According to lawyer Maria Dhyrberg QC, this is particularly difficult for people “who could no longer nominate counsel they felt would best represent their interests, but instead had to settle for counsel assigned to them on an apparently random basis, with whom they may have had no existing relationship.”[7]

This lack of funding and subsequent lack of available legal aid resources represents a severe injustice against a part of the population that is not able to afford private legal counsel, but does not fall under the new tightened legal aid criteria.[8] This has created what is being referred to as the ‘justice gap.’[9] According to Chris Gallavin, Dean of Law at the University of Canterbury, this gap represents “the most significant challenge to the integrity of the justice system that New Zealand has ever faced.”[10]

These changes have had far-reaching negative impacts. According to Gallavin, “the funding cuts and bureaucratic barriers meant more lawyers were not bothering applying for legal aid, and more people were choosing to represent themselves rather than shoulder the cost of legal advice.”[11] Justice Andrew Tipping, New Zealand’s longest-serving senior judge, said in 2012 that the recent cutbacks to legal aid had compromised the justice system.[12]

There is no doubt that the underfunding of the New Zealand legal aid system is resulting in consequences that further compromise people’s rights to a fair trial.[13] In the short term, the government must significantly increase the funding of legal aid.

[1] Tess McClure, “Legal Aid Funding Limits Creating ‘Justice Gap’,” Stuff, 19 July 2014. http://www.stuff.co.nz/national/crime/10285613/Legal-aid-funding-limits-creating-justice-gap.

[2] Ibid.

[3]Ibid.

[4] New Zealand Treasury, The Estimates of Appropriations 2016/17 – Justice Sector, (Wellington, New Zealand Treasury, 2016), 72.

[5] New Zealand Law Society, “Legal Aid Funding 2008 to 2015,” New Zealand Law Society, 24 November 2015. https://www.lawsociety.org.nz/practice-resources/research-and-insight/practice-trends-and-statistics/legal-aid-funding-2008-to-2015.

[6] Citizens Advice Bureau, “Reforms to Legal Aid,” Citizens Advice Bureau, 16 March 2015. http://www.cab.org.nz/aboutus/news/na/Pages/ReformstoLegalAid.aspx.

[7] Maria Dhyrberg, “Court of Appeal Rules Criminal Fixed Fee Regime to be Unlawful,” ADLSI, 31 May 2013. http://www.adls.org.nz/for-the-profession/news-and-opinion/2013/5/31/court-of-appeal-rules-criminal-fixed-fee-regime-to-be-unlawful/.

[8] Citizens Advice Bureau, “Reforms to Legal Aid,” Citizens Advice Bureau, 16 March 2015. http://www.cab.org.nz/aboutus/news/na/Pages/ReformstoLegalAid.aspx.

[9] Tess McClure, “Legal Aid Funding Limits Creating ‘Justice Gap’,” Stuff, 19 July 2014. http://www.stuff.co.nz/national/crime/10285613/Legal-aid-funding-limits-creating-justice-gap.

[10] Ibid.

[11] Ibid.

[12] Sunday Star Times, “Longest-serving Judge Hits Out at Legal Aid,” Stuff, 26 August 2012. http://www.stuff.co.nz/national/7549237/Longest-serving-judge-hits-out-at-legal-aid.

[13] However, No Pride in Prisons recognises that a ‘fair’ trial is impossible within the colonial, bourgeois court system.

    • Abolitionist Demand 12: Repeal all three-strikes laws.

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

    On 1 June 2010, New Zealand Parliament passed an amendment to the Sentencing Act 2002, bringing into force what is colloquially termed ‘three strikes’ legislation.[1] This new rule applies to the 40 different offences classed as ‘serious violent offences,’ and each ‘strike’ refers to a conviction for one of those specified crimes.[2]

    According to the legislation, upon receiving a first strike, the court judge must warn the convicted person of the consequences if they are to receive a second strike.[3] If somebody receives a second strike (for an offence other than murder), that person must serve the full term of their imprisonment without parole, and must be given a final warning by the presiding judge.[4] If a third strike is received, then that person must serve the maximum term of imprisonment prescribed for the offence at hand.[5] This sentence must be served without parole, unless the court finds that it would be ‘manifestly unjust’ for parole to be denied.[6] If a person receives a second or third strike on a charge of murder, they must be sentenced to life imprisonment without parole, unless the court finds that denial of parole would be manifestly unjust.[7]

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    Abolitionist Demand 11: Institute tikanga Māori.

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

    Tikanga Māori were the first legal systems in Aotearoa.[1] For centuries both interpersonal and political relationships were mediated by and through tikanga. It is not enough to integrate some of the principles of tikanga Māori into the colonial legal system. Tikanga Māori are not a collection of adornments to be added, when deemed convenient, to a legal system otherwise wholly dictated by the coloniser. Tikanga Māori are a means for realising the rights of Māori to sovereign independence, “inherent to [their] status as tangata whenua… reaffirmed in both the 1835 Declaration of Independence and the 1840 Tiriti o Waitangi preservation of tino rangatiratanga.”[2]

    The imposition of a settler-colonial government required the annihilation of tikanga Māori as a set of varying legal systems and their replacement with colonial law. The uncritical acceptance of colonial law as the only legitimate law justifies the existence of a settler state premised on violence.[3] Tikanga Māori present a set of organisational principles which both affirm Māori collective rights and make colonisation comprehensible as hara – a transgression, a trampling of mana, a departure from equilibrium which calls for rectification. No Pride in Prisons affirms that the institution of tikanga Māori and the decolonisation of Aotearoa are the only acceptable rectifications of this hara.

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    • Abolitionist Demand 10: Institute community-based solutions to interpersonal harm and violence.

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

    In calling for the abolition of the New Zealand Police, it is necessary to propose alternative systems of intervening in harm and violence. Alongside the reinstitution of tikanga Māori, No Pride in Prisons suggests the practice of transformative justice as one of many ways for communities to deal with such problems.

    Transformative justice is an alternative justice system proposed by those advocating the abolition of the police and prisons, and is based on anti-capitalist emancipatory ideology and methods which prioritise both victim safety and perpetrator wellbeing. This means of justice is carried out by way of holding a perpetrator accountable to their community while prioritising the needs and safety of the victim. Ultimately, however, transformative justice requires understanding and mitigating any broader social factors behind the perpetrator’s actions. These may include, for example, poverty in the case of theft, and harmful notions of masculinity in the case of intimate partner violence. Transformative justice requires a commitment to taking steps to change that person’s attitudes and actions for the betterment of their community.

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    Abolitionist Demand 9: Abolish the police.

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

    For all of the reasons outlined in these abolitionist demands, the Criminal Injustice System (CIS) as a whole enacts severe social violence upon those who are criminalised. The New Zealand Police, in particular, regularly harasses homeless people[1] and, on average, uses force against people almost once every hour.[2] The New Zealand Police regularly engages in torture by sending electric shocks through the bodies of its victims, which leads to excruciating pain and, in some instances in New Zealand, death.[3] On average, police officers taser someone almost three times per day.[4] The New Zealand Police also uses force, and particularly violent force, against Māori at a far higher rate than against Pākehā.[5]

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    • Abolitionist Demand 8: Apply the funds saved by defunding the New Zealand Police to state housing and accessible housing for the homeless and previously incarcerated.

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

    As per demand 7, No Pride in Prisons calls for the progressive defunding of the New Zealand Police. In turn, we demand that the funds saved in doing so be put toward the provision of state housing, and especially housing for the homeless and previously incarcerated.

    The fifth National government has implemented a systematic attack on the state housing stock since 2011. The Social Housing Reforms in particular, which began to be rolled out in 2013, involve the transfer of the public housing stock to a private social housing market.[1] The reforms introduced a review process for state housing tenants,[2] whereas state housing tenants were previously guaranteed houses for life.[3] This review process has forced those in work to move into the private rental market.[4] It has also led to the near-destruction of long-standing state housing communities, such as in Glen Innes in East Auckland, through what has been called “state-led gentrification.”[5]

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    • Abolitionist Demand 7: Defund the New Zealand Police.

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

    The police as an institution is inherently violent. It arbitrarily enforces laws at the expense of certain populations, particularly poor and indigenous people.[1] This is demonstrated by the disproportionate number of Māori coming into contact with police,[2]being arrested,[3]having force used against them,[4]being tasered,[5] and being killed by police.[6] The answer to reducing and ultimately eradicating structural racism perpetuated by the New Zealand Police will not come through reforming the Police as an institution. It requires radical social change.

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    Abolitionist Demand 6: Support publicly-funded treatment-on-demand programmes for addiction and mental health in emancipatory, non-carceral settings.

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

    As it currently stands, the New Zealand government often treats drug addiction and mental illness as criminal justice issues, rather than health issues. This is demonstrated, in part, by the findings of the 2010 “Health in Justice” report conducted by the National Health Commission. It found that 89% of incarcerated people have suffered from substance abuse sometime in their lives, 60% of incarcerated people have a personality disorder, 52% experience anxiety and psychotic mood disorders, and 20% had been thinking a lot about committing suicide.[1]

    In other words, people who struggle with addiction[2] and mental health issues[3] are significantly more likely to find themselves in prison, where they do not have access to adequate mental healthcare.[4] Incarceration does not help people deal with these kinds of issues.[5] Instead, it further deprives a person of their liberty and places an already-vulnerable person at a high risk of sexual and other assault.[6]  

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    • Abolitionist Demand 5: End the practice of arresting and charging people under the age of 18.

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

    Under the Crimes Act 1961[1] and Children, Young Persons, and Their Families Act 1989,[2] children as young as 10 years old can be tried as adults. The United Nations Committee on the Rights of the Child considers this unacceptable, recommending an age of criminal responsibility no younger than 12.[3]

    In an article arguing for raising the age of criminal responsibility in England, Barry Goldson argued that the issue of criminalising children is “problematic for reasons that extend far beyond arbitrary constructions of criminal capacity.”[4] Goldson questions how it is that a 10-year-old child can effectively be considered an adult by the criminal justice system “when, in every other area of the law, the social rights and responsibilities that ‘adulthood’ conveys are reserved for those 18 years plus?”[5] Thus, the criminalisation of children as young as 10 years of age indicates a dangerous double standard in New Zealand law, where a child is expected to possess the ‘adult’ reason and responsibility not attributed to them in any other area of the law.

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    Abolitionist Demand 4:End the ‘War on Drugs’ approach to policing, and decriminalise all drug possession, manufacturing and selling.

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz  

    The ‘War on Drugs’ (or drug prohibition and the criminalisation of drug purchasing, selling and manufacturing) is, in part, responsible for the massive increase in prison populations across the world over the past 30 years, including in New Zealand.[1] Although drug users are more likely to be affluent, those who are most likely to be imprisoned for drug-related offences are from relatively poor backgrounds.[2] This indicates that the criminalisation of drug-related activities is less about curbing drug-taking and dependency and more about the jailing of poor people. In Aotearoa, the incarceration of Māori and Pasifika populations for drug-related offences occurs at a disproportionately high rate.[3] In particular, Māori are more likely to be arrested for cannabis possession, despite having similar usage rates to non-Māori.[4] This demonstrates that prohibition is also a racist and colonising practice.

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    • Abolitionist Demand 3: Disarm the New Zealand Police, including a ban on tasers.

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz  

    The New Zealand Police Association (NZPA) has been, for some time now, pushing for the armament of all police officers on patrol,[1] despite New Zealand Police officers already having access to firearms in all frontline squad cars.[2] The NZPA President Greg O’Connor claims that “we have reached the point where crime in New Zealand, as well as international trends to which we are not immune, make arming police not only inevitable, but necessary.”[3] He made this comment despite the fact that total reported crime[4] and total violence against police officers in New Zealand have been falling.[5] There is, however, no evidence to suggest that arming the police, in any way, reduces reported crime rates.[6] Instead, police armament serves only to increase the number of people injured or killed by police. With this in mind, No Pride in Prisons calls for the New Zealand Police to be disarmed entirely, including a ban on the use of tasers and police dogs.

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    • Abolitionist Demand 2: Prevent the implementation of any public sex offender register in New Zealand, and dissolve the soon-to-be-implemented government-restricted register.

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

    A ‘sex offender register’ refers broadly to a state-managed database of all people convicted of one or more sexual offences. One of the most significant ways in which sex offender registers vary is in their availability to the public. The US is the only country in which the national register is available for “unfettered public access.”[1] However, even those registers with access restricted to government agencies can still have incredibly negative effects on the lives of past offenders.

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    Abolitionist Demand 1: Increase funding to the Independent Police Conduct Authority and ensure its ability to hold police to account.

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

    As outlined in the Independent Police Conduct Authority Act 1988, the Independent Police Conduct Authority (IPCA) is an independent body established to investigate allegations of Police misconduct, as well as to investigate any New Zealand Police-related incidents involving death or serious bodily harm.[1] In other words, it is the institution tasked with investigating and holding the New Zealand Police to account. However, as it currently exists, the IPCA fails to fulfil this stated purpose.

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    • EDITORS’ INTRODUCTION

    This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

    No Pride in Prisons formed in opposition to the inclusion of uniformed police and corrections officers in the 2015 Auckland Pride Parade. Members of the organisation protested the presence of these officers by climbing over parade barriers and attempting to stop the police float from progressing. The protesters looked to highlight the racist practices of the police which has contributed to the disproportionate imprisonment of Māori in New Zealand. They also sought to highlight the plight of incarcerated trans women who are much more vulnerable to sexual assault while incarcerated, and who are often housed in men’s prisons against their will. In this sense, No Pride in Prisons emerged as a queer and trans prison abolitionist organisation which, while focussing on and advocating for incarcerated queer and trans people, fights for the total abolition of prisons in New Zealand.

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